Delhi District Court
Da vs . Harish Chander Batra Page 1 Of 14 on 11 July, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 38/03
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Harish Chander Batra S/o Sh. Manohar Lal
M/s Batra Store,
5137, Gali No. 1,
East Old Seelam Pur, Delhi
R/o 5137, Gali No. 1,
East Old Seelam Pur, Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 38/03
Date of the commission of the offence : 28.10.2002
Date of filing of the complaint : 27.01.2003
Name of the Complainant, if any : Shri Ranjeet Singh, Food Inspector
CC No. 38/03
DA Vs. Harish Chander Batra Page 1 of 14
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (b) (j) & (m) of PFA Act
1954 and violation of provisions of
Rule 23 r/w Rule 28 & 29 of PFA
Rules; punishable U/s 16(1A) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 27.06.2013
Judgment announced on : 11.07.2013
J U D G M E N T
1. The present complaint has been filed on 27.01.2003 by the Delhi Administration through FI Sh. Ranjeet Singh against the accused Harish Chander Batra. It is stated in the complaint that on 28.10.2002 at about 6.30 PM, FI Sh. Ranjeet Singh purchased a sample of Dal Arhar, a food article for analysis from Sh. Harish Chander Batra S/o Sh. Manohar Lal of M/s Batra Store, 5137, Gali No. 1, East Old Seelam Pur, Delhi, where the said food article was found stored for sale and where accused Harish Chander Batra was found conducting the business of the said food article at the time of sampling. FI Sh. Ranjeet Singh purchased approximately 750 gms of Dal Arhar taken from an open wooden rack bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating in all possible directions under the supervision and direction of Sh. S.C. Tyagi, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles CC No. 38/03 DA Vs. Harish Chander Batra Page 2 of 14 and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to the accused vide Vendor's Receipt dated 28.10.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Harish Chander Batra and the other witness namely Sh. Mittar Pal, FA. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Mittar Pal, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. SCT/LHA/SDM/3002 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "the sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is revealed that Sh. Harish Chander Batra S/o Sh. Manohar Lal is the VendorcumProprietor of M/s Batra Store and as such he is in charge and responsible for day to day conduct of the business of the said shop. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (j) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA CC No. 38/03 DA Vs. Harish Chander Batra Page 3 of 14 Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 27.01.2003 The accused appeared and moved an application U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 31.03.2003 that "sample does not conform to the standards of split Pulse (Dal) Arhar as per PFA Rules 1955 ".
5. The prosecution examined Food Inspector Sh. Ranjeet Singh who conducted the sample proceedings against the accused as PW1 towards precharge evidence and vide order dated 01.06.2009, pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) (b) (j) and (m) of the PFA Act and violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 09.12.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Food Inspector Sh. Ranjeet Singh as PW1, Sh. S.C. Tyagi, the then SDM/LHA as PW2 and Sh. Mittar Pal, Field Assistant as PW3 and PE was closed vide order dated 31.05.2011.
CC No. 38/03 DA Vs. Harish Chander Batra Page 4 of 148. Statement of accused U/s 313 Cr.P.C. was recorded on 03.09.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, no evidence has been led by the accused in his defence and DE was closed vide order dated 16.12.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has vehemently argued that sample lifted by the Food Inspector was not representative one which is evident from the variations in the report of Public Analyst and Director, CFL. He further argued that the Food Inspector did not use the clean Jhaba for mixing the Dal Arhar and some colour was sticking with it and as such it is a case of bad sampling for which accused cannot be faulted with. He further argued that Public Analyst in his report has not disclosed the test applied for detecting the synthetic colour in the sample commodity, while the test applied by the Director, CFL is paper chromatography, which is not a sure test and, therefore, accused is liable to be given benefit of doubt. In support of his contentions, the Ld. Counsel for accused has relied upon the authorities titled as State Vs. Ram Rattan Malhotra 2012 (II) FAC 398, State Vs. Suresh Kumar & Ors. 2010 (2) FAC 204, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (II) FAC 523, Maya Ram Vs. State of Punjab FAC 1987 (II) 320, State Vs. Subhash Chand 2012 (2) JCC 1052, Bansi Lal Vs State of Haryana 1993 (I) FAC 117, Khusi Ram Vs. The State & Anr. FAC 1984 (II) 256, Nagar Palika parishad Khilipur, Through Food Inspector Vs. Rajender Kumar CC No. 38/03 DA Vs. Harish Chander Batra Page 5 of 14 FAC 1988 (II) 3 and Municipal Corporation of Delhi &Anr. Vs. Dewan Chand & Anr. FAC 1975 281.
11. On the other hand, the Ld. SPP for complainant has argued that as per report of Director, CFL, the sample does not conform to the standards of split Pulse (Dal) Arhar as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variations in the reports of PA and CFL. He further argued that paper chromatography test to detect the colour in the sample is a valid test.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint. PW1 Sh. Ranjeet Singh has deposed in his examinationinchief that on 28.10.2002, he along with FA Mittar Pal under the supervision of SDM/LHA Sh. S.C. Tyagi went to M/s Batra Store, 5137, Gali No 1, East Old Seelam Pur, Delhi where accused Harish Chander Batra was found conducting the business of the food articles for human consumption including Dal Arhar. He further deposed that he disclosed his identity and intention for taking the sample to which accused agreed and then at about 6.30 PM 750 gms of Dal Arhar which was contained in a wooden rack having no label declaration after proper mixing of the Dal Arhar with a clean and dry Jhaba by rotating it in all possible directions. He further deposed that sample commodity was divided into three equal parts by putting them into three clean and dry bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He CC No. 38/03 DA Vs. Harish Chander Batra Page 6 of 14 further deposed that sample price of Rs. 19.50/ was given to the accused vide vendor's receipt Ex. PW1/A and then notice in Form VI Ex. PW1/B was given to the accused and Panchnama Ex. PW1/C was prepared and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same.
13. During his deposition, PW1 has also placed on record receipt showing deposition of one counterpart of the sample with PA on 29.10.2002 as Ex. PW1/D, receipt showing deposition of remaining two counterparts of the sample with LHA as Ex. PW1/E, PA report as Ex. PW1/F, statement given by the accused on the date of sampling to the effect that his shop is not registered with any of the Govt. Department as Ex. PW1/G, letter sent by him to STO, Ward No. 78 as Ex. PW1/H, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/J, complaint filed him Ex. PW1/K, intimation letter sent to the accused along with PA report as Ex. PW1/L and photocopy of its postal registration receipt as Ex. PW1/M.
14. PW2 Sh. S.C. Tyagi, the then SDM/LHA under whose directions/supervision sample proceedings were conducted and PW3 Sh. Mittar Pal , Field Assistant who was made a witness at the time of sample proceedings have deposed more or less on the similar lines as deposed by PW1 in their examinationinchief.
15. In his crossexamination, PW1 stated that there were 23 Jhabas with the vendor and Jhaba was made of tin/iron. He denied the suggestion that some colour was sticking with the Jhaba before it was used for CC No. 38/03 DA Vs. Harish Chander Batra Page 7 of 14 mixing the Dal Arhar. He further denied the suggestion that bottles were containing some colouring material. He further denied the suggestion that sample failed due to bad sampling.
16. Similar suggestions were put to PW2 in his crossexamination that some colour was sticking with the Jhaba before it was used, bottles were containing some colouring material and that sample failed due to bad sampling which were denied by the witness.
17. PW3 in his crossexamination stated that there was only one Jhaba lying in the shop of the accused at that time and in their presence, the vendor did not use the Jhaba in any other food item. He further stated that Jhaba was cleaned with the help of a cloth by the vendor at the spot before it was used in the sample proceedings and the cloth also belonged to the vendor. He denied the suggestion that some yellow colour was sticking with the cloth, which was used for cleaning the Jhaba.
18. The accused in his statement U/s 313 Cr.P.C. has not disputed that on 28.10.2002 at about 6.30 PM, PFA Team including FI Ranjeet Singh and FA Mittar Pal under the supervision and direction of SDM/LHA Sh. S.C. Tyagi visited his premised at M/s Batra Store, 5137, Gali No. 1, East Old Seelam Pur, Delhi and a sample of Dal Arhar was lifted by the Food Inspector which on analysis was found adulterated as synthetic colour Tartrazine was detected in the sample of Dal Arhar. However, it was contended by the accused that he is not the manufacturer of the Dal in question and he is running a retail shop. It was further contended that sample was not taken properly by the FI as CC No. 38/03 DA Vs. Harish Chander Batra Page 8 of 14 the Jhaba was not made clean and dry when the sample was taken.
19. The present case has been launched against the accused on the basis of report of Public Analyst Ex. PW1/F. The Public Analyst vide his report Ex. PW1/F found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Pune dated 31.03.2003 was received. Perusal of same shows that sample does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955 because synthetic colour Tartrazine was detected in the sample.
20. From the aforesaid crossexamination of the PWs, statement of accused U/s 313 Cr.P.C. and arguments of Ld. Counsel for accused, the defence of the accused appears to be that a representative sample was not taken by the Food Inspector and wrong method of lifting the sample was adopted by the Food Inspector as the Jhaba used in the sample proceedings was not made clean and dry by him and some colouring matter was sticking with the Jhaba due to which synthetic colour 'Tartrazine' was detected in the sample of Dal Arhar.
21. With regard to the contention of accused that clean Jhaba was not used in the sample proceedings, it is relevant to refer the evidence of PWs in this regard. PW1 FI Ranjeet Singh who conducted the sample proceedings CC No. 38/03 DA Vs. Harish Chander Batra Page 9 of 14 stated in his crossexamination that there were 23 Jhabas with the vendor and the Jhaba was already clean and dry and as such same was not made again clean at the spot. PW2 Sh. S.C. Tygai, under whom the sample proceedings were conducted stated in his crossexamination that there were 23 or more Jhabas with the vendor and Jhaba was already clean and dry and as such same was not made again clean and dry at the spot. PW3 Sh. Mittar Pal, FA stated in his crossexamination that there was only one Jhaba lying in the shop of the accused at that time and the Jhaba was cleaned with the help of a cloth by the vendor.
22. From the aforesaid crossexamination of PWs, it is evident that there is contradiction in the statement of PWs regarding number of Jhaba lying at the the shop of the accused at the time of sampling and cleaning of Jhaba. As per PW1 and PW2, there were 23 Jhabas at the shop of the accused at the time of sample proceedings and since Jhaba was already clean and dry, same was not again made dry and clean. While, as per PW3, there was only one Jhaba at the shop of the accused at that time and same was made clean by the vendor with the help of a cloth. As such, PWs themselves are not sure that how many Jhaba were lying at the spot and whether the same was made clean and dry at the spot or not. The aforesaid contradiction in the statement of PWs creates a doubt regarding the number of Jhaba lying at the shop of accused at the time of sampling, as to whether there was only one Jhaba or there were 23 Jhabas and further as to whether Jhaba used in the sample proceedings was already clean and dry or same was cleaned by the vendor with the help of a CC No. 38/03 DA Vs. Harish Chander Batra Page 10 of 14 cloth and it leads credence to the contention of accused that clean Jhaba was not used in the sample proceedings.
23. It has also come on record from the statement of accused U/s 313 Cr.P.C. that the accused was running a retail shop and other food articles were also lying at the shop of the accused at the time of sample proceedings. In this regard, PW3 categorically admitted in his cross examination that haldi powder, mirchi powder, mehendi powder etc. were also lying in the shop of the accused at that time. Though, PW1 and PW2 feigned ignorance in this regard. Now, if the version of PW3 that there was only one Jhaba at the shop of the accused is assumed to be correct, though he stated that Jhaba was made clean with the help of a cloth, but since there was only one Jhaba and accused was also selling other food articles, the possibility of contamination of Jhaba with the other food articles cannot be ruled out. Hence, I find some substance in the contention of Ld. Counsel for accused that a representative sample was not taken by the Food Inspector as some colouring matter was sticking with the Jhaba used in the sample proceedings which resulted in detection of synthetic colour 'Tartrazine' in the sample of Dal Arhar.
24. The contention of accused that a representative sample was not lifted by the Food Inspector is further substantiated from the variations in the report of Public Analyst and Director, Central Food Laboratory (CFL). As per report of Public Analyst (PA) Ex. PW1/F, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of CC No. 38/03 DA Vs. Harish Chander Batra Page 11 of 14 8.80%, while Director, Central Food Laboratory found the same to the tune of 9.78%. Similarly, Public Analyst vide his report Ex. PW1/F found the damaged grain by fungus, moisture or heating internally Nil, while Director, CFL found the same to the tune of 0.02%. Again, as per report of Public Analyst, the Weeviled grains was found Nil, whereas as per report of Director, CFL, Weevilled grains was found to the tune of 0.7% by count.
25. The variations in the report of aforesaid two Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
26. In view of law laid down in the aforesaid authorities, since there is variations in the report of Public Analyst (PA) and Director, Central Food Laboratory which is beyond the permissible limit of .3 %, it appears that sample was not representative one and therefore, benefit of doubt is liable to be CC No. 38/03 DA Vs. Harish Chander Batra Page 12 of 14 given to the accused.
27. Further, a perusal of report of Public Analyst Ex. PW1/F shows that Public Analyst has not disclosed the method applied for detecting the synthetic colour in the sample commodity. The Public Analyst was required to disclose the method applied for detecting the synthetic colour in the sample commodity and in the absence of disclosure of method, it is not ascertainable that how the Public Analyst reached to findings that sample was containing synthetic colour i.e. tartrazine.
28. While, the report of Director, Central Food Laboratory (CFL) shows that Paper Chromatography method has been applied by the Director, CFL for detecting the artificial colouring matter in the sample commodity of Dal Arhar. The Hon'ble Punjab and Haryana High Court in Maya Ram Vs. The State of Punjab has held that paper chromatography test is not a sure test to detect the colour in the sample commodity. In the present case, no other method apart from the Paper Chromatography test has been applied by the Director, CFL to detect the adulteration or presence of colouring matter in the sample commodity. Therefore, in view of law laid down in the aforesaid authority cited supra, report of Director, CFL cannot be said to be a valid report.
29. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and the accused CC No. 38/03 DA Vs. Harish Chander Batra Page 13 of 14 is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 11th July, 2013 ACMMII/ PHC/ New Delhi
CC No. 38/03
DA Vs. Harish Chander Batra Page 14 of 14
CC No. 38/03
DA Vs. Harish Chander Batra
11.07.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/11.07.2013 CC No. 38/03 DA Vs. Harish Chander Batra Page 15 of 14