Delhi District Court
Da vs . Deepak Goyal Page 1 Of 11 on 4 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 192/04
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area,
Delhi - 110035
........ Complainant
Versus
Deepak Goyal
S/o Sh. Mahender Goyal,
M/s Mahender Kumar Naveen Kumar,
5069, Rui Mandi, Sadar Bazar, Delhi6.
R/o 1209/3, Bara Dari,
Behind Novelty Cinema,
Chandni Chowk, Delhi6.
.............VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
CC No. 192/04
DA Vs. Deepak Goyal Page 1 of 11
Serial number of the case : 192/04
Date of the commission of the offence : 14.06.2004
Date of filing of the complaint : 24.09.2004
Name of the Complainant, if any : Shri N.N. Sharma, Food
Inspector
Offence complained of or proved : Violation of provisions of Section
2 (ia) (a) (b) (c) (h) & (I) of PFA
Act 1954; provision of Rule 44 A
of PFA Rules 1955; punishable
U/s 16 (1A) r/w section 7 of the
PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquittal.
Arguments heard on : 05.09.2013
Judgment announced on : 04.10.2013
J U D G M E N T
1. The present complaint has been filed on 24.09.2004 by the Delhi Administration through FI N.N. Sharma against the accused. It is stated in the complaint that on 14.06.2004 at about 3:30 PM, FI N.N. Sharma purchased a sample of Dal Chana, a food article for analysis from Sh. Deepak Goyal S/o Sh. Mahender Goyal of M/s Mahender Kumar Naveen Kumar, 5069, Rui Mandi, Sadar Bazar, where the said food article was found stored for sale for human consumption and accused was found conducting the business of the CC No. 192/04 DA Vs. Deepak Goyal Page 2 of 11 said food article at the time of sampling. FI N.N. Sharma purchased approximately 1500 gms of Dal Chana from an open plastic bag, bearing no label or declaration. The sample was taken after proper mixing the Dal Chana with the help of a clean and dry Jhaba by rotating it in all possible directions, under the supervision and direction of Sh. Dharam Pal, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector N.N. Sharma by putting it in three clean and dry sample glass bottles and each sample bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of accused Deepak Goyal were obtained on the LHA slip and the wrapper of the counterparts containing the sample. Notice was given to accused and price of sample commodity was also paid to him vide Vendor's Receipt dated 14.06.2004. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Deepak Goyal and the other witness namely Sh. J.P. Bhardwaj, Field Assistant. It is stated in the complaint 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. J.P. Bhardwaj, Field Assistant joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 43/LHA/6957 in intact condition was sent to the Public Analyst, CC No. 192/04 DA Vs. Deepak Goyal Page 3 of 11 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 contains admixture of Khesari".
3. It is further stated in the complaint that during investigation accused Deepak Goyal, S/o Sh. Mahender Goyal was found Vendorcum Proprietor of M/s Mahender Kumar Naveen Kumar and as such he was responsible for day to day conduct of the business of the said shop/firm. 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) (a) (b) (c) (h) & (I) and of PFA Act 1954, provision of Rule 44A of PFA Rules 1955, punishable under section 16 (1A) r/w Section 7 of PFA Act.
4. The accused was summoned vide order dated 24.09.2004. On appearing accused 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. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 11.11.2004 that "sample bearing No. 43/LHA/6957 does not conform to the standards of Dal Chana as per PFA Rules 1955" CC No. 192/04 DA Vs. Deepak Goyal Page 4 of 11
5. In pre charge examination, the prosecution examined two witnesses i.e. Sh. Dharampal, then then SDM / LHA as PW1 and Sh. N.N. Sharma, Food Inspector as PW2 and pre charge evidence was closed vide order dated 14.01.2009.
6. Charge for violation of Section 2 (ia)(a) (b) (c) (h) & (I) of PFA Act 1954, provision of Rule 44A, punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 22.04.2009 to which he pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Sh. Dharampal, the then SDM / LHA as PW1, Sh. N.N. Sharma, Food Inspector as PW2 and Sh. J.P. Bhardwaj, Field Assistant as PW3 and PE was closed vide order dated 06.04.2010.
8. Statement of accused U/s 313 Cr. P.C. was recorded on 28.07.2010 wherein he claimed himself to be innocent and opted to lead DE. However, the accused did not examine any witness in his defence and DE was closed vide order dated 19.02.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that a representative sample CC No. 192/04 DA Vs. Deepak Goyal Page 5 of 11 was not taken and FI has adopted a bad sampling procedure due to which there are variations and contradiction in the report of PA & CFL for which benefit of doubt must go in favour of the accused. Reliance has been placed on Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Rattan Malhotra 2012(2) FAC 398.
11. On the other hand, Ld. SPP for complainant has argued that accused has exercised the right under section 13(2) of PFA Act 1954 and got analyzed the second counterpart of sample from CFL and the report of Director CFL being conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given the benefit of variations in the reports of PA and CFL.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
13. PW2 Sh. N.N. Sharma, who is the main Food Inspector has deposed in his examinationinchief that on 14.06.2004, under the supervisions and directions of SDM / LHA Sh. Dharampal had visited the premises of M/s Mahender Kumar Naveen Kumar, 5069, Rui Mandi, Sadar Bazar, Delhi where accused Deepak Goyal was found present conducting the business of food articles stored there for sale for human consumption including Dal Chana. He has further deposed that 1500 gms of Dal Chana was taken from an open CC No. 192/04 DA Vs. Deepak Goyal Page 6 of 11 plastic bag, having no label or declaration. He has further deposed that before taking the sample, Dal Chana was properly mixed with the help of a clean and dry jhaba by rotating it in all possible directions in the plastic bag itself and the 1500 gms of Dal Chana was divided into three equal parts thereby making three counterparts. He has further deposed that all the sample counterparts were separately packed, marked, fastened and sealed according to PFA Act and Rules. He has further deposed that Rs. 30/was given to the accused vide vendor's receipt Ex. PW 1/A. He has further deposed that Notice in Form VI Ex. PW 1/B was prepared and a copy of the same was given to accused. He has further deposed that Panchnama Ex. PW 1/C was prepared at the spot. He further deposed that all the documents i.e. Ex. PW 1/A to Ex. PW 1/C prepared at the spot were read over and explained to the accused in Hindi and after understating the same accused signed on the same at point A, witness at point B and he signed the same at point C. He has also deposed that one counterpart of the sample alongwith one copy of memo in Form VII in intact & sealed condition was sent to the PA on 15.06.2004 vide receipt Ex. PW 1/E and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA on 15.06.2004 vide receipt Ex. PW 1/D. He has further deposed that PA report Ex. PW 1/F was received, according to which the sample was found adulterated because it was containing admixture of CC No. 192/04 DA Vs. Deepak Goyal Page 7 of 11 khesari. He has proved the letter sent to DHO as PW 2/A, letter sent to STO Ward No. 35 as Ex. PW 2/B, letter sent to vendor as Ex. PW 2/C and vendor's statement as Ex. PW 2/D. He has proved the Sanction Ex. PW 1/G, complaint as Ex. PW 2/E, intimation letter as Ex. PW 2/F and postal registration receipts as Ex. PW 1/G.
14. Rest of both the witnesses have deposed on the same lines in their examination in chief as deposed by PW1.
15. PW1 in his crossexamination has deposed that clean and dry jhaba was provided by the vendor and the Dal was mixed by the FI with the help of clean an dry jhaba. He has further deposed that bottles were already dry and clan and the same were not made again dry and clean at the spot.
16. PW2 in his crossexamination has denied the suggestion that Kesari Dal was not present at the time of sampling and it was later on added in the sample commodity. He has further denied the suggestion that his procedure of taking sample was wrong.
17. PW3 has deposed in his crossexamination that he had seen the Dal Chana but no insects were visible with naked eyes. He has denied the suggestion that bottles were already containing Kesri Dal which were brought by the FI.
18. In the Statement under section 313 Cr. P.C., accused has admitted CC No. 192/04 DA Vs. Deepak Goyal Page 8 of 11 that on 14.06.2004 at about 3:30 PM, FI N.N. Sharma alongwith FA J.P. Bhardwaj and other staff, under the supervision of SDM / LHA Sh. Dharampal had visited his premises of M/s Mahinder Kumar Naveen Kumar, 5069, Rui Mandi, Sadar Bazar, Delhi and had lifted a sample of Dal Chana. He has taken a defence that no reliance can be placed on the certificate of the Director, CFL, as the sample was not taken properly. He has taken plea that he has been falsely implicated in this case, he is running a retail shop and not the manufacturer of Dal Chana. He has lastly taken a defence that sample failed due to bad sampling.
19. The main contention of the accused is that a representative sample was not taken and a bad sampling procedure was adopted in this case hence, there are variations in the reports of both the experts and on the basis of an un representative sample, he can not be convicted. Perusal of both the reports, it is revealed that there are variations as well as contradictions in the results of both the experts. For instance, PA has found Moisture to the tune of 11.07% whereas the Director CFL has found the same to be 13.05%. Furthermore, PA has adjudged Wevilled grains and uric acid content NIL whereas the Director CFL has found Wevilled grains to the tune of 16.0% and Uric Acid Content to the tune of 360 mg / kg. As such there are variations which are more than 0.3%, which is stated to be the permissible limit of variations and further both CC No. 192/04 DA Vs. Deepak Goyal Page 9 of 11 the experts have given contradictory opinion regarding presence of wevilled grains and uric acid content. These variations and contradictions in the reports of both the experts do show that the sample was not a representative one or that a bad sampling procedure has been adopted by FI and hence, it can not be said that the sample was properly homogenized and on the basis of an un representative sample, the accused can not be held guilty. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177 has held that, "since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 has observed that, "
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 CC No. 192/04 DA Vs. Deepak Goyal Page 10 of 11 not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained".
20. In view of aforesaid discussion and observation, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the benefit of the same is liable to be given to the accused. Accordingly, the accused is acquitted of the charges leveled against him. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 4th October, 2013 ACMMII/ PHC/ New Delhi
CC No. 192/04
DA Vs. Deepak Goyal Page 11 of 11
CC No. 192/04
DA Vs. Deepak Goel
04.10.2013
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 stand 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. He has furnished fresh 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/04.10.2013 CC No. 192/04 DA Vs. Deepak Goyal Page 12 of 11