Delhi District Court
Food Inspector vs . Nathu Ram on 1 February, 2011
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
PATIALA HOUSE COURTS, NEWDELHI
CC. No. 81/98
Food Inspector Vs. Nathu Ram
Department of PFA S/o Shri Om Parkash
Govt. of NCT of Delhi M/s Kamal Store,
A-20, Lawrence Road RZ 56A, Vaishali Dabri,
Indl. Area, Delhi - 35 Delhi.-45
R/o: RZ/37E,
Vaishali Dabri, Delhi-45
JUDGMENT
Serial number of the case : 81/98
Date of the commission of the offence : 13.08.1998
Name of the Complainant, if any : Shri S.K. Nanda, LHA.
Offence complained of or proved : Violation of provisions S. 2(ia)(a)(b)(c)
(f)(h) (I) 2 (ix)(k) and Rules 32,
punishable U/s 16 (1)(1-A), r/w S. 7 of
the PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments concluded on : 01.02.2011
Judgment announced on : 01.02.2011
CC No. 81/98
FI Vs. Nathu Ram
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Brief statement of the reasons for such decision:
1. The present complaint was filed by the LHA Sh. S.K. Nanda as on 31.08.1998. It runs to the effect that on 13.08.1998 at about 1:30 PM FI, Sh. R.K. Bhaskar purchased a sample of Mustard Oil, a food article, for analysis from Sh. Nathu Ram S/o Sh. Om Parkash at M/s Kamal Store RZ- 56A, Vaishali Dabri-45, where the said food article was found stored for sale and said Sh. Nathu Ram was found conducting the business of the said food article. The sample consisted of approx. 375 gms of Mustard Oil taken from an open Tin bearing no label declaration. It was taken after properly mixing it with the help of measure lying in the Tin by rotating it in all possible directions. The FI divided the same then and there into three equal parts and put it into three separate clean and dry bottles which was separately packed, fastened, marked and sealed. Vendor's signature was obtained on the LHA slip & the wrapper of the sample bottles. Notice was given to said Sh. Nathu Ram and price of the sample commodity was also paid to him. Panchanama was prepared at the spot. All these documents were prepared by FI,Sh. R.K. Bhaskar and were signed by Sh. Nathu Ram and other witness namely Sh. Rajesh Kumar. The FI before starting the sample proceedings made efforts to join public witnesses but none came forward. The sample was taken under the supervision the complainant herein i.e. LHA Sh. S.K. Nanda.
2. It is further averred in the complaint that one counterpart of the sample was sent to Public Analyst in intact condition and the remaining CC No. 81/98 FI Vs. Nathu Ram ::17::
two counterparts were deposited with the LHA in intact condition. The PA found the sample adulterated with Argemone Oil. The Report also disclosed that the sample was having saponification value more than the prescribed limit of 177. The PA's Report disclosed that the sample in question was injurious to health and was likely to cause death (in case of consumption).
3. It is further revealed in the complaint that the accused thus violated of Provision of S. 2(ia) (a)(b)(c) (f) (h) (l), S. a(ix)(k) and Rule 32 of the PFA Act & Rules; punishable U/s 16 (1 A) r/w S. 7 of the Act. Further, the entire case file after the conclusion of the investigation ; was sent to the Director, PFA who accorded consent U/s 20 of the Act of 1954 for the purpose of initiation of the proceedings against the accused.
4. The accused was summoned vide order dated 31.08.1998. The accused appeared and exercised the option U/s 13(2) of the PFA Act. The Director PFA gave the Certificate dated 10.11.1998 to the effect that the sample of Mustard Oil was adulterated. It reflects that the sample was found "strongly positive" on being analysed for detecting the presence of Argemone Oil.
5. Vide order dated 01.12.2008, charge for the violation of Provision U/s 2 (ia) (a) (b) (c) (f) (h) (l), S. 2 (ix)(k) and Rule 32 of the PFA Act / Rules ; punishable U/s 16 (1A), r/w S. 7 of the PFA Act was framed against the accused to which he pleaded not guilty and claimed trial.
CC No. 81/98FI Vs. Nathu Ram ::17::
6. The prosecution examined two witnesses i.e. FI Sh. R.K. Bhaskar and LHA Sh. S.K. Nanda and the PE stood closed vide order dated 24.07.2009.
7. Statement of the accused U/s 313 Cr. P.C was recorded as on 09.11.2009.
8 One witness namely Sh. S.N. Mahendru was examined as defence witness and the DE stood closed vide order dated 26.04.2010.
9. File perused. Counsels heard.
10. In the present proceedings the accused has been charged with the violation of Provision U/s 2(ia) (a) (b) (c) (f) (h) (l) & S. 2 (ix) (k) alongwith Rule 32 of the PFA Act / Rules; punishable U/s 16 (1A), r/w S. 7 of the Act of 1954. The complaint containing the allegations had been filed against the accused on the basis of the Public Analyst Report dated 20.08.98. Perusal of this Report reveals that the sample of mustard oil was found not conforming to the standards laid down under Item No. A.17.06 of Appendix B of the PFA Rules 1955; because of the presence of Argemone Oil there in the sample counterpart.
11. The accused on being served, appeared and exercised the Right U/s 13 (2) of the Act of 1954 and consequent thereto, the second counterpart of the sample of mustard oil was sent & got analysed and the CC No. 81/98 FI Vs. Nathu Ram ::17::
Director CFL gave the Report dated 10.11.98. The said Report also reveals that the mustard oil was found adulterated. It specifically contains that the Argemone Oil was found present in the mustard oil in question and shows the presence thereof as "strongly positive". The said Report of the Director CFL is not only 'per se' admissible but also the final and conclusive evidence of the facts stated therein. Hence, the accused [by virtue of Provision U/s 13 (5) (Proviso Clause) of the Act of 1954, r/w S. 4 of the Indian Evidence Act 1872] cannot agitate rather cannot be allowed to dispute the veracity of the Report of the CFL in its contents and outcome. The Report of the Director CFL is thus the conclusive proof of the fact that the mustard oil in question was found adulterated with Argemone Oil and that its presence was found to be strongly positive.
12. Perusal of the case file further reveals that the complainant i.e. LHA Sh. S.K. Nanda and the other witness namely FI Sh. R.K. Bhaskar have deposed in their examinations-in-chief in such a fashion so as to cover up each and every minute detail of the complaint. The complainant i.e. PW-2 has categorically stated in his examination-in-chief that on 13.08.98 the Raiding Party; under his supervision, had visited the premises of the accused Sh. Nathu Ram and had lifted the sample of mustard oil from / in the presence of; the vendor / accused Sh. Nathu Ram. The oil in question was lying in an open Tin, having no label declaration, and was purchased against the payment of the price.
CC No. 81/98FI Vs. Nathu Ram ::17::
13. It is further deposed that the sample was lifted after proper homogenization of the entire contents of the open Tin and that thereafter, it was equally divided into 3 parts and was put into 3 clean and dry glass bottles. The deposition regarding following the requisite procedural formalities also does appear on record.
14. Further, the testimony of PW-1 well covers in itself, the fact that the payment of the sample commodity was made to the vendor vide Receipt Ex. PW 1/A and that requisite Notice & Panchnama were prepared at the spot vide exhibits PW 1/B & PW 1/C respectively. It is also well stated that the copy of the Notice was provided to the accused and that the contents thereof were read over and explained to him in Hindi and thereafter, his signatures were obtained. It is also reflected in clear terms that one counterpart of the sample alongwith copy of Memo in Form VII (i.e. Memo containing seal impression) was duly deposited with PA vide Receipt Ex. PW 1/D and the remaining two counterparts (alongwith copy of Memo in Form VII) were deposited with LHA vide Receipt Ex. PW 1/E. Perusal of the document Ex. PW 1/D affirms the fact that the sample counterpart had duly been deposited with the PA on the very next day i.e. 14.08.98. PA Report is exhibited and proved as Ex. PW 1/F and the requisite consent stands proved vide document Ex. PW 1/G.
15. A careful perusal of the 'examination' of both the complainant witnesses; makes it clear that the accused has not raised any hue & cry on numerous aspects despite these facts having duly been asserted in the CC No. 81/98 FI Vs. Nathu Ram ::17::
depositions of the witnesses. It has nowhere been disputed that the premises in question was raided on the date and time as reflected in the complaint Ex. PW 1/J. It is also an undisputed fact that the requisite procedural formalities were duly performed / followed during sample proceedings. The defence is also silent on the aspect of proper homogenization of the entire quantity of the mustard oil lying in the Tin. In these eventualities, Court is bound to assume that the prosecution has duly established the facts of:- lifting the sample of mustard oil from the premises of the vendor / accused; the requisite formalities while conducting the sample proceedings; proper homogenization of the entire quantity of the mustard oil; etc. etc.. The complaint was filed in less than 20 days reckoned from the date of sampling.
16. Now stepping ahead, the crux of the entire defence lies in stressing upon that in both the Reports (PA & CFL Report), it has nowhere been reflected that the Argemone Oil was injurious to health, and that the %age of Argemone Oil detected in the sample commodity i.e. mustard oil was not reflected in these Reports. Another aspect of defence is that the presence of Argemone Oil was also possible due to contamination at the harvesting stage. It is further agitated that the Argemone Oil is costlier than the mustard oil.
17. Besides the cross examination of the CWs, one witness namely Sh. S.N. Mahendru; was also examined in defence. The crux of his examination-in-chief is that at least 1% of Argemone Oil must be present in CC No. 81/98 FI Vs. Nathu Ram ::17::
mustard Oil so as to render the same injurious (to health) or likely to cause dropsy. The said witness has also pointed out certain variations in the Report of the two experts w.r.t. BTT; Iodine Value and the Saponification value of mustard oil. Witness has further deposed that such like contamination may also happen at farmer level.
18. Considering the view points of defence; one by one, the first such defence pertains to the suggestions put to the witnesses to the effect that the presence of Argemone Oil ( in the mustard oil) might be possible due to the contamination during harvesting. Besides the mere suggestion; the defence did not bother to place on record any such material so as to substantiate the same. The cases under the PFA Act do not require any sort of 'mens rea' on the part of the accused. Moreover, it is immaterial as to at what stage the alleged adulteration took place. The prosecution was supposed only to prove that the food article in question which was being sold by the vendor / accused; was an adulterated one within the meaning inscribed in the Act of 1954.
19. It is also worth mentioning that the plant of Argemone Oil is not cultivated but grows on fallow lands and the mustard has a canopy that does not let anything grow under it. The fact that the Argemone plant grows on fallow lands, has very well been reflected in a book titled as 'Handbook of Food Analysis' (at page no. 177) and the said book is authored by none other than the DW-1 himself. It is also a matter of common knowledge that mustard ripens in the beginning of March, CC No. 81/98 FI Vs. Nathu Ram ::17::
whereas Argemone somewhere in peak Summer. Hence there cannot be any possibility of any sort of unintentional adulteration. Even if it is assumed for a moment that any such adulteration may have taken place at the farmer level itself, it is of no avail for the defence purpose as the accused was legally bound to ensure that whatever he was selling (as food articles) was required to be 'adulteration-free' within the meaning of the Act. It is also pertinent to mention herein that the mustard seeds are mainly of two types i.e. light variety of mustard seeds called Brassica compestris and the dark variety i.e. Brassica Nigra. The light variety can easily be differentiated from Argemone seeds by simple visual inspection whereas, the dark variety can be distinguished by placing the seeds in normal saline in which eventuality mustard seeds will sink whereas, the Argemone seeds will float as the Argemone seeds are the 'false' seeds.
20. Next point of defence is that the Argemone Oil was costlier than the mustard oil. In the suggestion given to PW-2 LHA Sh. S.K. Nanda, the cost of Argemone Oil is shown to the tune of Rs. 1200/- per kg. However, the defence has not substantiated the same in any manner. This sort of suggestion becomes meaningless, the same being nowhere near the common sense. Had that been the case, the instances would have been of adulteration / contamination of Argemone Oil with (the adulterant like) mustard oil or any other Oil of the like nature. Further, in that eventuality the farmers would have started growing the Argemone plants and would have discontinued cultivating the mustard.
CC No. 81/98FI Vs. Nathu Ram ::17::
21. It is also worth mentioning that the Argemone Oil amounts to be an adulterant within the meaning of 'adulterant' U/s 2 (i). This Provision is being quoted hereunder:-
S. 2 (i) "adulterant means any material which is or could be employed for the purposes of adulteration;"
22. Even the afore discussed defence points do substantiate the view point of the prosecution to the effect that the mustard oil was adulterated with the Argemone Oil, no matter at what stage and in which mode the adulteration took place.
23. It has further been agitated that at least 1% of Argemone Oil was necessary so as to render the mustard oil injurious to health and that in the Reports of both the Experts the quantity of the adulterant has not been reflected in terms of percentage. Prior to adjudging in this context, it would be appropriate to quote the requisite provision Under Item A.17.06 of Appendix B hereunder:-
"Rapeseed oil (Toria Oil), mustard oil (Sarson ka Tel) means the oil extracted from clean and sound mustard seeds, belonging to the compestris, juncea or napus varieties of Brassica. It shall be clean, free from rancidity, suspended or CC No. 81/98 FI Vs. Nathu Ram ::17::
foreign matter, separated water, added colouring or flavouring substances or mineral oil. It shall conform to the following standards:-
(a) Butyro-refractometer reading at 40
Deg. C : 58.0 to 60.05.
(b).....................................
(c).................................
(d)................................
(e).....................................
(f)....................................
(g) Test for Argemone oil : Negative.
(h).........................................
...................................................................... .
......................................................................
. ......"
24. The afore quoted provision makes it clear that the oil in question must not only be extracted from clean and sound mustard seeds, but must also be free from any sort of Argemone Oil.
25. However, it is yet to be adjudged if the 'adulterant' found present in the mustard oil; was or was not injurious to health. Adjudging the same is also of immense significance as in case if it is proved that the adulterant in CC No. 81/98 FI Vs. Nathu Ram ::17::
question was injurious to health; the accused may be subjected to enhanced penalty.
26. The very language of S. 16 (1A) of the Act of 1954 reflects in itself that it is the very nature of the adulterant which is to be adjudged whether the adulterant was or was not injurious to health. In this eventuality the entire defence appears to be on passive / wrong footing as it has nowhere been disputed that the adulterant in question i.e. Argemone Oil was injurious to health. Moreover, the very facts and circumstances of the present case do impel the court to take judicial notice of the fact that in the year 1983 and again in the year 1998 (the very year in which the sample in question was lifted), the epidemic dropsy had created havoc in Delhi as it had caused sufferings to thousands of people and some of them also lost their lives. The main stress of the defence is that if the adulterant in question was present to the extent of 1 % or more, then only it was capable of causing epidemic dropsy. Even in this sense the defence as raised and summarised herein above, is not forceful and convincing. The alleged 1% minimum requirement is stated to be required only for the purpose of causing dropsy. However, it has nowhere been touched upon that in case if the adulterant in question is present in lesser quantity then it may cause glaucoma or some times even the total blindness due to the presence of alkaloid sanguanarine and its related compounds. This sort of opinion has very well been reflected in the document Ex. DW 1/A i.e. the document relied upon by the defence; without any sort of indication of the quantity of the adulterant in terms of percentage. Moreover, it is also worth CC No. 81/98 FI Vs. Nathu Ram ::17::
mentioning that by virtue of the Report of the Director CFL dated 10.11.98 it has already been conclusively proved that the Argemone Oil was strongly present in the mustard oil in question and the Report to that effect is very much convincing to reasonably adduce that such a report can in no way be construed to be less than 1% and in that sense, the oil in question was definitely adulterated so as to cause even the epidemic dropsy.
27. As far as the variations in the Reports of PA and CFL w.r.t. Iodine value and saponification value etc. are concerned, though it is correct that there are variations (to some extent) on the aspects as above, yet, both the Reports do indicate one and the same result in so far as the presence of adulterant argemone oil is concerned. Hence, these variations do not affect adversely the outcome of the case, which otherwise stands duly proved. Moreover, the Report of the Director, CFL does supercede the Report of the Public Analyst by virtue of provision U/s 13 (3) of the Act of 1954. It is also worth mentioning that it was the accused's own free volition that the second counterpart of the sample be sent to the Director CFL and the accused was well aware of the legal consequences and the binding & conclusive effect of the said Report.
28. The afore made discussion is clear enough to fairly conclude that the prosecution has very well established the guilt of the accused. It stands proved beyond reasonable doubts that the Mustard Oil was adulterated with the adulterant called argemone oil and the presence CC No. 81/98 FI Vs. Nathu Ram ::17::
thereof was detected to be strongly positive in the given food article. Thus, the violation of S. 2 (ia) (a) (b) (c) (f) (h) & (l), [punishable U/s 16 (1A), r/w S. 7 of the Act of 1954], stands duly proved. Accordingly, the accused is found and held guilty for the same.
29. Be put up on 21.02.2011, for arguments / order on sentence.
Announced in the open Court Raghubir Singh
on 1st February, 2011 ACMM-II/New Delhi
CC No. 81/98
FI Vs. Nathu Ram
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II, PATIALA HOUSE COURTS, NEWDELHI CC. No. 81/98 Food Inspector Vs. Nathu Ram Department of PFA S/o Shri Om Parkash Govt. of NCT of Delhi M/s Kamal Store, A-20, Lawrence Road RZ 56A, Vaishali Dabri, Indl. Area, Delhi - 35 Delhi.-45 R/o: RZ/37E, Vaishali Dabri, Delhi-45 ORDER ON SENTENCE Present: Shri Masood Ahmad, Ld. SPP for the Complainant.
Convict in person with Ld. Counsel.
Heard on the point of sentence. Ld. Counsel for convict has prayed for taking a lenient view on the ground that the accused / convict has closed down the shop in question and has discontinued the business and also that he had met with an accident in the year 2002. It is further stated that the convict has also undergone the operation for hernia and stone. Further it is stated that no one fell ill by consuming the mustard oil, purchased from his shop. The convict has two sons aged about 21 & 22 years respectively and the wife. One of the son of the accused is employed whereas, the other one is unemployed. Both sons are CC No. 81/98 FI Vs. Nathu Ram ::17::
unmarried. His wife is a housewife.
On the other hand, Ld. SPP for the complainant has argued that the offence proved against the accused is very serious in nature and such like adulterations result into serious consequences and are a cause of concern for the entire society. The offences under the PFA Act are economic offences and should be dealt with suitably and that no one should be allowed to dupe the innocent mases and to make money by selling such adulterated articles.
In the present context, the accused / convict has already been held guilty of selling adulterated article, having an adulterant therein, which was un-disputedly injurious to health. The said adulterant is a non edible oil and had been a cause of concern in the past more particularly in the year 1983 and again in the year 1998.
Taking into consideration the submissions as summarised herein above, the convict is hereby sentenced to undergo R.I. for 3 ½ years and to pay fine in the sum of Rs. 5,000/- (Rupees Five Thousand Only) and in default thereof the accused shall further undergo S.I. for 1 month. Fine paid.
At this stage, the convict has moved an application seeking Interim Bail for the period of filing the appeal against the Judgment and Order on Sentence. Heard.
Since the convict has been sentenced to undergo imprisonment for a period exceeding 3 years, his plea for bail is not covered within the provision U/s 389 (3) Cr. P.C. Accordingly, the application seeking Interim Bail stands disposed off as dismissed. Convict be taken into custody and CC No. 81/98 FI Vs. Nathu Ram ::17::
be sent to Jail.
Copy of the judgment as well as order on sentence supplied to the convict free of cost; against receipt.
File be consigned to Record Room.
Announced in the open Court Raghubir Singh
on 22nd February, 2011 ACMM-II/ New Delhi
CC No. 81/98
FI Vs. Nathu Ram