Delhi District Court
Da vs . Mahesh Kumar Chaudhary Page 1 Of 12 on 3 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 31/03
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area,
Delhi - 110035
........ Complainant
Versus
1. Sh. Mahesh Kumar Chaudhary,
S/o Sh. Hari Chand,
M/s Sona Store, Shop No. 25,
Ratia Marg, Sangam Vihar,
Delhi62.
.............VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
CC No. 31/03
DA Vs. Mahesh Kumar Chaudhary Page 1 of 12
Serial number of the case : 31/03
Date of the commission of the offence : 24.08.2002
Date of filing of the complaint : 24.01.2003
Name of the Complainant, if any : Shri Satish Gupta, Food
Inspector
Offence complained of or proved : Violation of provisions of Section
2 (ia) (a) (j) & (m) of PFA Act
1954, provision of Rule 23 r/w
Rule 28 & 29 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 : 18.09.2013
Judgment announced on : 03.10.2013
J U D G M E N T
1. The present complaint has been filed on 24.01.2003 by the Delhi Administration through FI Sh. Satish Gupta against the accused. It is stated in the complaint that on 24.08.2002 at about 4:15 PM, FI A.K. Dhir purchased a sample of Dal Arhar, a food article for analysis from Sh. Mahesh Kumar Chaudhary S/o Sh. Hari Chand of M/s Sona Store, Shop No. 25, Ratia Marg, Sangam Vihar, Delhi62, where the said food article was found stored for sale for human consumption and accused was found conducting the business of the CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 2 of 12 said food article at the time of sampling. FI Sh. A.K. Dhir purchased approximately 750 gms of Dal Arhar from an open gunny bag, bearing no label or declaration. The sample was taken after proper mixing the Dal Ahrar with the help of a clean and dry Jhaba by rotating it in all possible directions, under the supervision and direction of Shri A.K. Singh, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector A.K. Dhir by putting it in three clean and dry sample 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 Mahesh Kumar Chaudhary 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 24.08.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Mahesh Kumar Chaudhary and the other witness namely Sh. C.B. Boora, Food Inspector. 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. C.B. Boora, Food Inspector joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. AKS/LHA/002581 in intact condition was sent to the Public Analyst, CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 3 of 12 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 further stated in the complaint that during investigation accused Mahesh Kumar Chaudhary S/o Sh. Hari Chand was found Vendor cumProprietor of M/s Sona Store, Shop No. 25, Ratia Marg, Sangam Vihar, Delhi62 and as such he was 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) (a)
(j) & (m) and of PFA Act 1954, provision of Rule 23 r/w Rules 28 & 29 of PFA Rules 1955, punishable under section 16 (1A) r/w Section 7 of PFA Act.
4. The accused was summoned vide order dated 24.01.2003. 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. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 01.04.2003 that "sample does not conform to the standards of Dal CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 4 of 12 Arhar as per PFA Rules 1955 ."
5. In pre charge examination, the prosecution examined two witnesses i.e. Sh. Satish Kumar Gupta, Food Inspector as PW1 and Sh. A.K. Singh, the then SDM / LHA as PW2 and pre charge evidence was closed vide order dated 20.01.2009
6. Charge for violation of Section 2 (ia)(a) (j) & (m) of PFA Act 1954, provision of Rule 23 r/w Rule 28 & 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 27.06.2009 to which he pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined two witnesses including Sh. A.K. Singh, the then SDM / LHA as PW2 and Sh. A.K. Dhir, Food Inspector as PW3 and PE was closed vide order dated 17.12.2009.
8. Statements of accused U/s 313 Cr. P.C. was recorded on 21.08.2010 wherein he claimed himself to be innocent and opted not to lead DE. Hence, DE was closed on the same day.
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 was not taken and FI has adopted a bad sampling procedure due to which there CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 5 of 12 are variations and contradiction in the report of PA & CFL for which benefit of doubt must go in favour of the accused. He has further argued that PA has not disclosed the name of the test on the basis of which the sample was found to be coloured with synthetic colour viz. Tartrazine and further the Director CFL has applied Paper Chromatography Test (DGHS Manual) which is not a sure and valid test hence, no reliance can be placed on the reports of both the experts and the accused is liable to be acquitted. Reliance has been placed on Kanshi Nath Vs. State 2005(2) FAC 219, State Vs. Rama Rattan Malhotra 2012(2) FAC 398, Maya Ram Vs. State of Punjab Crl. Rev. No. 705 of 1981 and State Vs. Subhash Chand 2012[2] JCC 1052.
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. He has further argued that paper chromatography test is a sure test. He has vehemently argued that the prosecution has proved its case beyond reasonable doubt and the accused is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 6 of 12
13. PW3 Sh. A.K. Dhir, who is the main Food Inspector has deposed in his examinationinchief that on 24.08.2002, he under the supervisions and directions of SDM / LHA Shri A.K. Singh had visited the premises of M/s Sona Store, Shop No. 25, Ratia Marg, Sangam Vihar, New Delhi where accused Mahesh Kumar Chaudhary was found present conducting the business of food articles stored there for sale for human consumption including Dal Arhar. He has further deposed that 750 gms of Dal Arhar was taken from an open gunny bag, having no label or declaration. He has further deposed that before taking the sample, Dal Arhar was properly mixed with the help of a clean and dry jhaba by rotating it in all possible directions in the gunny bag itself and the 750 gms of Dal Arhar was divided into three equal parts and three counterparts were prepared. 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. 22.50/was given to the accused vide vendor's receipt Ex. PW 2/A. He has further deposed that Notice in Form VI Ex. PW 2/B was prepared and a copy of the same was given to accused. He has further deposed that Panchnama Ex. PW 2/C was prepared at the spot and accused also furnished his statement Mark X, whereby the accused claimed himself to be the sole proprietor of M/s Sona Store. He has also deposed that all the documents prepared at the spot were read over and CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 7 of 12 explained to the accused in Hindi and after understating the same accused signed on the same. 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 26.08.2002 vide receipt Ex. PW 2/E and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA on 26.08.2002 vide receipt Ex. PW 2/D. He has further deposed that PA report Ex. PW 2/F was received, according to which the sample was found adulterated because of being coloured with synthetic colouring matter viz. Tartrazine. He has proved the letter sent to STO Ward No. 93 as Ex. PW 3/A, according to which the firm of the accused was found not registered in the Sales Tax. He has proved the Sanction Ex. PW 2/G.
14. PW1 Sh. Satish Kumar Gupta, who has filed the complaint has proved the complaint as Ex. PW 1/A, Intimation letter as Ex. PW 1/B and postal registration receipts as Ex. PW 1/C.
15. PW2 FI Sh. A.K. Singh, SDM / LHA under whom supervision the sample proceedings were conducted has deposed akin to the complaint.
16. In the Statement under section 313 Cr. P.C., accused has admitted that on 24.08.2002 at about 4:15 PM, FI A.K. Dhir alongwith FI C.B. Boora and other staff, under the supervision of SDM / LHA Sh. A.K. Singh had visited his premises i.e. M/s Sona Store, Shop No. 25, Ratia Marg, Sangam CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 8 of 12 Vhar, Delhi and had lifted a sample of Dal Arhar. He has taken a plea that the jhaba and bottles in which sample was taken were not clean and he was not shown the same and the FI used his own jhaba and bottles in sample proceedings. He has further taken a plea that no reliance can be placed on the certificate of the Director CFL as the sample was not taken properly.
17. The first 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. Perusal of both the reports, it is revealed that there are variations as well as contradictions to some extent. For instance, PA has found Moisture to the tune of 9.43% whereas the Director CFL has found the same to be 9.8%. PA has adjudged Foreign matter organic, Damaged grains and Weevilled grains to the tune of 0.13%, 2.23% & 0.72 respectively whereas the Director CFL has found the same to be 0.12%, 0.10% & 2.1% respectively. Furthermore, PA has not adjudged uric acid content in the sample counterpart whereas the Director CFL has found the same 60 mg/kg which is totally contradictory to each other. As such there are variations which are more than 0.3%, which is stated to be the permissible limit of variations and further both the experts have given contradictory opinion regarding presence of uric acid content. These variations and contradictions in the reports of both the experts do show that the sample was CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 9 of 12 not a representative one or that a bad sampling procedure has been adopted by FI. 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 not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained".
18. So far as the contention of the accused that paper chromatography test is not a sure test, in Maya Ram Vs. The State of Punjab (supra) it has been held that paper chromatography test is not a sure test to CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 10 of 12 detect the colour in the sample commodity. Similarly, in State Vs. Subhash Chand 2012[2] JCC 1052 the Hon'ble Delhi High by placing reliance on Maya Ram Vs. The State of Punjab (supra), Raj Kumar Vs. Union Territory, Chandigarh 1991(1) FAC 38 (P&H) and Kartar Singh Vs. State of Haryana 2000(2) FAC 243 (P&H), the appeal of the petitioner was dismissed. In that case the PA had not disclosed the nature of tests conducted and the Director CFL found the sample to be adulterated on the basis of paper chromatography test but paper chromatography test being not a sure test the petition was dismissed.
19. In the present case also the paper chromatography test has been applied by the Director CFL (as per DGHS Manual) to detect the presence of colouring matter in the sample commodity, therefore, in view of law laid down in the aforesaid authority cited, report of Director CFL cannot be said to have disclosed the true results. Furthermore, the PA has not disclosed the name of test, on the basis of which he has reached to the conclusion that the sample was coloured with synthetic colouring matter viz. Tartrazine.
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 CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 11 of 12 against him. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 3rd October, 2013 ACMMII/ PHC/ New Delhi
CC No. 31/03
DA Vs. Mahesh Kumar Chaudhary Page 12 of 12
CC No. 31/03
DA Vs. Mahesh Kumar Chaudhary
03.10.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with Counsel.
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/03.10.2013 CC No. 31/03 DA Vs. Mahesh Kumar Chaudhary Page 13 of 12