Delhi District Court
Da vs Sanjay Kumar Gupta on 28 July, 2009
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 10/02
DA Versus Sanjay Kumar Gupta
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 10/02
b. The date of the commission of the offence : 25.05.2001
c. The name of the Complainant, if any : Sh. R.P. Singh, F.I.
d. The name of the accused and his parentage : Sanjay Kumar Gupta
S/o Sh. Bhagwan
Singh Gupta, Vendor-
cum-Proprietor of M/s
Pummy Sweet Corner,
L-4, Dilshad Garden,
Delhi-95 R/o 398-B,
Pocket J&K, Dilshad
Garden, Delhi-95.
e. The offence complained of or proved : u/s 2 (ia)(a)(b) (m)
punishable under
Section 16 (1) (a) read
with section 7 of the
PFA Act.
f. The plea of the accused : Pleaded not guilty
g. The final order : Acquitted
h. Arguments heard on : 21.07.09
i. judgment announced on : 28.07.09
Brief statement of the reasons for such decision-
21. The present complaint is filed by the Delhi Administration through Food Inspector, R.P. Singh against the accused Sanjay Kumar Gupta S/o Sh. Bhagwan Singh Gupta, Vendor-cum-Proprietor of M/s Pummy Sweet Corner, L-4, Dilshad Garden, Delhi-95, 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 complainant has submitted that on 25.05.2001 at about 2:00 p.m. Food Inspector, R.P. Singh purchased a sample of 'Boondi Ladoo', a food article for analysis from Sanjay Kumar Gupta S/o Sh. Bhagwan Singh Gupta at M/s Pummy Sweet Corner, L-4, Dilshad Garden, Delhi-95 , where the said food article was found stored for sale for human consumption. Accused Sanjay Kumar Gupta was found conducting the business of the said food article at the time of sampling. The sample consisted of approximate 1500 gms of ' Boondi Laddoo' ( ready for sale) taken from an open tray bearing no label declaration. The sample was taken under the supervision/direction of Sh. Satnam Singh, SDM/LHA. The sample was taken after cutting the Boondi Laddoos into smallest possible pieces with the help of clean and dry spoon and mixed well with the same spoon in a clean and dry tray. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 40 drops of formalin were added in each sample bottle and each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice in Form VI was given to the accused Sanjay Kumar Gupta and the price of the sample was given to him. The Panchnama was prepared at the spot. All the documents were prepared by Sh. R.P. Singh, Food Inspector and were signed by the accused and the other witness Shri J.P. Bhardwaj, F.A. Before starting the sample 3 proceedings efforts were made to join the pubic witnesses but none came forward. 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 06.06.01 and found that the sample is adulterated because total dye content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm.
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 Sh. R.P. Singh as Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(b)(c)(j)(m) of the PFA Act and also violated the provisions of rule 30 read with Rules 28 & 29 of the PFA Rules, 1955 punishable U/s 16 (1A) 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 31.01.02, accused moved an application to get the second 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, Kolkata vide Certificate No. G.14-4/2002-46 dated 13.03.02 according to which the sample of Boondi Laddoo is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a)(b) (m) punishable under Section 16 (1) (a) read with 4 section 7 of the PFA Act was framed against the accused on 03.03.2003 separately to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. R.P. Singh; PW-2 Sh. Satnam Singh, SDM/LHA & PW-3 F.A. J.P. Bhardwaj.
8.Statement of accused was recorded under Section 313 Cr.P.C on 23.04.09 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
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 which it purports or is represented to be.
10. As per Section 2 (ia)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
11. 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.
12. 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 5 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.
13. 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 for the accused, on the other hand, has vehemently argued that the sample was not representative due to which divergent reports have been given by two Analysts. Ld. Defence counsel further argued that standard of fresh Vanaspati cannot be applied on the Ghee extracted from Ladoos and drawn my attention in respect of the authorities reported as 1979 (1) PFA Cases 72 ; 1994 (2) PFA Cases 24; (2006) 1 Supreme Court Cases ( Cri.) 288; (2006) 1 Supreme Court Cases ( Cri.) 290 ; IX-1999 PFA Journal 424.
Whether sample is representative
14. 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 Pubic Analyst found total dye contents 187.55 ppm while the Director, CFL found 94.7 ppm i.e within the permissible limit. However, Public Analyst found 'Baudouin Test 'positive' while the Director, CFL found the Baudouin test 'negative' in the counterpart of the same sample which itself shows that sample was not representative and different kind of Laddoos 6 were put into the sample bottles. 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 not.
15. 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;-
'' Coming to the next controversy, i.e with regard to the representativeness of the sample, it is clear from the Full bench decision in MCD Vs. Bishan Sarup (supra) that if the samples are not representative, then any test report based on it would not indicate the true position. That being the case, a conviction cannot be founded on such a test report. Upon an examination of the cases mentioned by Mr. Mittal, it also becomes clear that although in terms of Section 13(3) of the PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not.'' Mr. Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under:-
14.Thus the legal impact of a certificate of the Director of Central Food Laboratory is three-
fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the 7 quality and standard of the food article involved in the case and its becomes irrefutable so far as the facts stated therein are concerned.
(emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and there can be none. But, this does not enable us to detract from the ratio of the Full Bench decision of this court in the case of MCD vs. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. 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 8 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. ''
16. 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 find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 06.06.2001, the sample was declared adulterated because total dye content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm, as it was found 187.55 ppm while the second counterpart of the sample was examined by the Director, CFL and total dye contents in the counterpart of the same sample was found 94.7 ppm and the sample was declared adulterated as Baudouin test was found 'negative'. Complainant has failed to show how the reports of two Analysts in respect of the counterpart of the same sample are divergent to such an extent. One Analyst declared the sample adulterated because total dye content of synthetic colour used exceeds the prescribed 9 maximum limit of 100 ppm and found Baudouin test 'positive' while another Analyst found the total dye contents in the counterpart of the same sample within prescribed maximum limit but the sample was declared adulterated as Baudouin test was found 'negative'. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative due to which different analytic reports in respect of the sample commodity were given by two experts.
17. In view of the above discussion and reasons, I am of the considered opinion that the sample was not representative, therefore, there is no need to go into another aspect. Complainant has failed to prove its case against the accused beyond reasonable doubts. In result, accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 28.07.09 ACMM-II/NEW DELHI.