Delhi District Court
16. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac on 21 July, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 74/96
Local Health Authority
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Diwakar Batra S/o Late Sh. K.N. Batra,
M/s Apex Ice Cream,
Shop No. 22, Block A1B, Shopping Centre,
Janak Puri , New Delhi
R/o A-2/27, Janak Puri, New Delhi.
JUDGMENT
Date of Institution : 16.09.96 Date of reserving judgment :21.07.10 Date of Pronouncement : 21.07.10 U/S: 2 (ia)(a) (m) punishable under Section 16(1) read with section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
C.C. N0. 74/96 11. The present complaint is filed by the Delhi Administration through LHA Dr. G.C. Raha against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The case of the complainant is that on 21.05.96 at about 2.00 P.M. Food Inspector Sh. Hukum Singh purchased a sample of Ice- cream, a food article, for analysis from Sh. Diwakar Batra s/o Late Sh. K.N. Batra at M/s. Apex Ice Cream, Shop No. 22, Block A1B, Shopping Centre, Janak Puri, New Delhi, where the said food article was found stored for sale and Sh. Diwakar Batra was found conducting the business of the said premise at the time of sampling. Approx. 900 gms. of Ice-cream ( Ready for human consumption ) was taken from the freezer from 30 wooden sticks bearing no label declaration. The Food Inspector directly transferred the Ice-cream into three dry and clean glass bottles equally by cutting with the help of dry and clean steel knife and allowed to melt at room temperature . 36 drops of formalin were added in each of the three bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Sh. Diwakar Batra and the price of the sample was also given to him. Panchnama too was prepared at the spot. All the documents prepared by Sh. Hukam Singh, Food Inspector were signed by Sh. Diwakar Batra and the other witness C.C. N0. 74/96 2 Sh. Ranjit Singh, Food Inspector. Before starting sample proceedings efforts were made to join public witnesses but none came forward. The sample was taken under the supervision of LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 20.06.96 and opined the sample does not conform to the standards laid down under item A.11.02.08 of Appendix 'B' of PFA Rules, 1955 because total solids are less then the minimum prescribed limit of 36%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Dr. G.C. Raha, LHA to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(m) punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 30.09.96, accused Diwakar Batra moved an application to get the second C.C. N0. 74/96 3 counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Calcutta vide Certificate No. G.14-4/96-319 dated 8.11.96 and opined the sample of Ice Cream is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a) (m) punishable under Section 16(1) read with section 7 of the PFA Act was framed against the accused separately on 13.10.97 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. Hukam Singh & PW-2 F.I. Ranjeet Singh.
8. Statement of accused was recorded separately on 19.02.10 under Section 313 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred to lead evidence in his defence but despite opportunity, he failed to lead evidence in his defence and finally his DE was closed on 20.04.10.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality C.C. N0. 74/96 4 which it purports or is represented to be.
10. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that Food Inspector adopted wrong procedure C.C. N0. 74/96 5 of sampling. Ld. Defence counsel further argued that a representative sample was not taken.
Whether the Food Inspector adopted wrong procedure of sampling .
13.Ld. Defence counsel vehemently argued that the Food Inspector adopted the wrong procedure of lifting the sample of ice cream and sample should have been taken at minus 30 Deg. C. On the other hand, Ld. SPP for the complainant argued that the Food Inspector adopted the correct procedure of sampling by putting the ice cream directly in the sample bottles , and drawn my attention in respect of authority reported as 2007 (1) JCC 867 wherein it was held by Hon'ble Mr. Justice Shiv Narayan Dhingra as under:-
'' ..... Sample of ice-cream /kulfi- The Food Inspector after taking several sticks/cups/pieces of bricks of ice cream together and putting them in a Patila ( a metallic utensil) and allowing them to melt in the Patiala-Then stirred the entire mass with the spoon and filled up the melted ice cream into three bottles and added preservative in each bottle at room temperature-Whether it would be a representative sample of ice cream which is sold to the customer-Held: No- Once the ice cream gets melted, the lighter particles in that mass shall float over and the heavier particles shall C.C. N0. 74/96 6 have tendency to settle down-Fat being lighter will float at the top surface of the molten ice cream due to law of gravity and the heavier particles shall have tendency to settle down and go down- When such a mass of the melted ice cream is stirred, the part of fat will stick to the surface of the container due to the tendency of fat sticking to the surface and the some of the fat would be lost to the 'patila' when sample is taken out- This molten mass of inc cream, would, therefore, not be a representative sample of ice cream which is sold to the customers- Slight variations in the result of the samples and the minimum standard prescribed under the law, it can be safely said that the sample taken by the FI was not properly taken so as to make it a representative sample in case of ice cream /kulfi- The proper way of taking sample is to put directly the part of brick of ice cream or cup or stick of ice cream/kulfi into the sample bottle and allow the same to come to room temperature and then add preservative so that there is no loss of fat etc- Once loss of fat takes place due to faulty procedure of taking samples, the shopkeeper cannot be convicted. ''
14. Reverting back to the facts of the present case as mentioned in the complaint, the Food Inspector directly transferred the ice cream into three dry and clean glass bottles equally by cutting with the help of dry and clean steel knife and allowed the same to melt at room temperature. PW-1 F.I. Hukam Singh also deposed that sample of ice cream was directly put into three clean and dry glass bottles, and C.C. N0. 74/96 7 thirty six drops of formalin were added in each sample bottle. I find no force in the contention of the Ld. Defence counsel that sample should have been taken at minus 30 Deg. C as per ISI specification mark 'X' because formalin a preservative was added in the sample commodity. Had it been a case that sample commodity was not preserved then it was required to be taken at minus 30 Deg. C. Therefore, I am of the considered opinion that the Food Inspector adopted the correct method of sampling by putting ice cream directly into sample bottles and then after allowing the same to melt at room temperature added 36 drops of formalin for equal dispersion.
Whether sample is representative:
15. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is difference of more than 0.3% between the report of the Public Analyst and Report of Director, CFL, Calcutta which itself shows that the sample was not representative or ice cream of different lot was taken as a sample. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or C.C. N0. 74/96 8 not.
16. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross- examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. '' C.C. N0. 74/96 9
17. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 20.06.96 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 10.38%
Total solids - 34.41 %
Protein - 4.28%
18. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on 08.11.96 , the result of analysis of second counterpart of the sample commodity was that milk fat was found 9.6% and total solids were found 34.3% and Protein was found 2.3%. One Analyst found the milk fat and protein as per standard of the ice-cream but the another Analyst in the counterpart of the same sample found milk fat and protein below the prescribed standards. The complainant has failed to explain in respect of these two variations appearing in the analytic results of two Analysts in respect of counterpart of same sample of ice cream. The difference of analysis in respect of milk fat and protein in respect of sample of ice-cream by the report of two analysts are not within acceptable range of 0.3% Thereby C.C. N0. 74/96 10 relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative .
19. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove that a representative sample of Ice Cream was taken . In result, complaint stands dismissed and accused is acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA )
Dated:21.07.2010 ACMM-II/NEW DELHI.
C.C. N0. 74/96 11