Delhi District Court
Gian Prakash S/O Shri Devi Ram vs Delhi Administration on 7 July, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 33/1999/1986
Gian Prakash s/o Shri Devi Ram
R/o H No. 643, Chirag Delhi
New Delhi.
Appellant
versus
Delhi Administration
Respondent.
Date of Institution : 20.5.1999
Date when the arguments
were heard/filed : 27.5.2008
Date of judgment : 7.7.2008
JUDGMENT
This appeal is directed against the judgment dated 28.7.1986 passed by learned Metropolitan Magistrate convicting the appellant under section 7 read with section 16 of the Prevention of Food Adulteration Act (in short PFA Act). By subsequent order dated 30/7/1986 the appellant was sentenced to undergo rigorous imprisonment for one year and six months and to pay a fine of : 2 : rupees 3000/ . In default payment of fine he was directed to undergo simple imprisonment for three months. The coaccused the vendor Shri Vijender Kumar was, however, acquitted. Aggrieved by the judgment and order on the point of sentence passed by the learned Metropolitan Magistrate the appellant has preferred this appeal challenging the same.
PROSECUTION CASE:
The prosecution case, in brief, is that on 11.2.85 at about 3.00 pm Food Inspector Shri Dharampal Singh visited the premises of M/s Sharma Stores, Shop no.11, Mehrauli Badarpur Road, New Delhi. After disclosing his identity, the food inspector lifted the sample of Maida in accordance with the provisions of PFA Act. Appellant further alleged to have disclosed at the time of taking of the sample that he had purchased the sampled Maida from Gian Prakash, Proprietor of M/s Gupta Store, 1184/13, Gobindpuri and is also alleged to have shown the original bill to the food inspector. One counter part of the sample as usual was transmitted to the public analyst. She vide her report dt 15.2.85 declared the sample to be adulterated because of presence of five insects, one excreta and alcholic acidity as 0.14% as against the maximum limit of 0.12%. Thereafter on obtaining the sanction from competent authority, the complaint was filed against the appellant before the learned Metropolitan Magistrate.
CHARGE AND PLEA OF THE ACCUSED:
The charge under section 7 read with section 16 of the PFA Act were framed separately against both accused including appellant by the learned trial court to which they pleaded not guilty and claimed trial. : 3 : PROSECUTION EVIDENCE In support of its case, the prosecution has examined PW1 Sh S.P. Ahluwalia, Sr. Prosecutor, PW2 Sh Ram Rattan, Dealing Assistant Food & Supply Department, PW3 Sh Dharampal Singh, Food Inspector, PW4 F.A Sh Ranjit Singh and closed its evidence.
PLEA AND DEFENCE OF THE ACCUSED In his statement under section 313 Cr. P.C. the appellant Gian Prakash has denied the prosecution case in toto and has stated that it is a false case against him and he was innocent. He also stated that Maida was sold at about 7 pm on 11.2.85 and in a sealed and stitched condition having label declaration of the manufacturer. He did not know anything about the sampling but the sampled article was surely not supplied by him. He had received the copy of the notice and had replied vide Ex DA which bears his signature at mark A. Since the sampled article did not belong to him, he was not concerned with it in any manner. The complaint as well as the consent are illegal. Complaint against him has been falsely made as the food inspector connived with the vendor to save him. Appellant further statef that he used to sell Atta, Suji, Maida etc of branded articles in stitched gunny bags bearing the label declaration of the manufacturer. The food inspector was shown all these things at the spot and the authorities were also informed.
In support of its case appellant has examined two defence witnesses in his defence namely DW1 Sh D S Chadha and DW2 appellant Sh Gian Parkash : 4 : himself and closed his defence evidence.
FINDINGS:
I have gone through the written arguments filed on behalf of the parties and have also heard the learned counsel for the appellant and the learned Special Public Prosecutor for the State. I have also gone through the trial could record, the appeal file and the relevant provisions of law, carefully.
The argument on behalf of the appellant is that the consent for prosecution has been recorded in a most mechanical manner. The consent letter Ex PW1/A does not disclose the sanction or subsection of the PFA Act under which prosecution is to be instituted. The consent is not an ideal formality. It must be accorded with due application of mind.
The argument on behalf of respondent State is that the consent is specific which was exhibited and no crossexamination of the prosecution witnesses is done, thereby admission of the consent is made by the accused. The consent is not a cyclist and copy, but a fresh type one after applying to mind by the the consenting authority It is true that the consent is not on a cyclostyled paper. But there is omission of the provisions of law violated by the appellant, in it.
In State of Maharashtra v. Shrinivas Subrao Shenvi 1979 (II) FAC 5 : 5 : (Bom), it was observed as follows:
"5. In my opinion, this trial Magistrate could not proceed with the prosecution which was originally launched on the basis that the accused had completed the offence of adulteration as defined in section 2(i)(j) of the Act. Under law the report of the Central Food Laboratory supersedes the Public Analyst's report and if the Central Food Laboratory's report discloses another offence, a fresh sanction would be necessary to prosecute the accused of the offence newly disclosed. This is the view which I have taken in State of Maharashtra v. Nizamuddin Hazi Mohammed Kasam 1978 (II) F.A.C. 136. The prosecution should have been thrown out on the ground at that stage."
In The State of Maharashtra v. M/s Puranchand Giriraj & Co. and other 1979 (I) FAC 312 (Bom), it was observed as follows:
"5. The Magistrate is however demonstrately on sound ground in so far as the prosecution case related to the offence for adulteration within the meaning of section 2(i)(h) of the Act on the basis of the find of the mineral oil in the sample. This report was not before the consenting authority. Prosecution for an offence for adulteration within the meaning of section 2(i)(h) is different from the prosecution for offence for an adulteration within the meaning of section 2(i)(l) for which the original consent had been given. The prosecution, therefore, for the second charge, was incompetent as being without the consent as required by law".: 6 :
In The Corporation of the City of Nagpur v. Tulsiram Vishwanath Zade and another 1983 (1) FAC 243 (Bom) (DB), it was observed as follows :
"6. As we have already shown above in the present case, also that sanction order merely refers to section 7(i) &(v) of the Act. It does not at all refer to section 2 of the Act. Section 2 of the Act defines the types of adulterations and in our view it is necessary that it must be shown by the Sanctioning Authority under which heading the alleged adulterant falls, otherwise the sanction would be deemed to be omnibus and in general term, it indicates the nonapplication of mind on the part of the sanctioning authority."
In State of Maharashtra v. Shri Gimi Erich Rana and other 1991 (1) FAC 170 (Bom) (DB), relied on behalf of the appellant, it was observed as follows :
"2.......Though there appears to be substance in the challenges but in our view, it is not necessary to deal with all those challenges since the appeal can be is posed of on the question of sanction itself. It may be mentioned here that the question of sanction is being urged before us for the first time but since it goes to the root of the case, we have allowed Mr. Agrawal to press that challenge. The sanction in the present case is accorded by Joint Commissioner, Food and Durg Administration vide order dated 25th October 1983 (Ex. 49 and Ex. 52). Consent is required to be : 7 : given vide section 20 of the Act. The word "adulterated" has been defined in section 2(ia) and it contains several clauses i.e, clause (a) to (m). In our view, it is necessary for the authority granting sanction to indicate the clause under which the sanction is being accorded. The sanction granted in the present case does not indicate as to under which clause the alleged adulteration falls. The sanction order is omnibus and in general terms which in our view, shows nonapplication of mind on the part of the sanctioning authority. The sanction has to be for specific purpose to authorise a designated person to institute such prosecution. Unless it is in a specific term the accused is bound to be prejudiced inasmuch as he would not know as to what case he has to meet. It appears that the alleged offence may fall under clause (m) of section 2(ia) and, therefore, it was necessary that, that clause should have been specifically mentioned. However, since it is not specifically mentioned, that in our view, is sufficient to render the sanction bad. We may here usefully refer to the decision of the Supreme Court of India reported in A.I.R. 1986 S.C. 2160: 1986 (3) FAC 66, A.K. Roy and another v. State of Punjab and others. The relevant para 11 of the Judgment reads as under : "The first part of S. 20 (1) of the Act lays down the manner of launching prosecutions for an offence under the Act, not being an offence under S. 14 or S. 14A. The second part provides for delegation of powers by the Central Government or the state Government. It enables that prosecutions for an offence under the Act can also be instituted with : 8 : the written consent of the Central Government or the State Government or by a person authorised in that behalf, by a general or special order issued by the Central government or the state Government. The use of the words in this behalf in S. 20 (1) of the Act shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf. The terms of S. 20(1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prime facie case exists in the facts of a particular case and record his reasons for the launching of such prosecution in the public interest."
Mr. Agrawal has also rightly relied on the decision reported in 1985 F.A.C. Vol. II, page 88. In the circumstances the appeals are dismissed. The bailbonds of the respondents shall stand cancelled."
In view of the above the above three authorities emanating from the Hon Bombay High Court the present consent for prosecution Ex PW1/A though mention section 7 read with section 16 of the PFA Act but there is omission to mention the section 2 and in subsection and subclauses violated by the appellant. Therefore, the consent order in this case is improper, more so, when in the impugned judgement dated 28/7/1986 it is mentioned that the appellant was found guilty for the offence of adulteration as defined in section 2 (ia) (f) and : 9 : ( m) so also in the impugned order on sentence , while these provisions of law are missing in the consent order.
It is argued on behalf of the appellant that PW2 and PW3 have deposed before learned trial court that there was no visible insect in the sample at the time of lifting of sample. Therefore, the insects might have developed after taking the sample and before it was analysed on at CFL. It is also argued that if the sample bottles are properly sealed and made airtight, the insect present in it will die after about a month. In this case the insects were living even after four months which means that the sample bottle was not airtight and the insects already present in the sample continued breeding. He has also relied upon the authorities which are discussed below.
The contention on behalf of the respondent State is that no suggestion is put to the witnesses of prosecution in the crossexamination that the sample was not preserved properly by CFL or that sample bottle was not airtight nor is any such evidence produced by the accused in defence by the accused , as such there is no merit in the above contention of appellant. It is argued that the CFL certificates is conclusive, final and irrefutable in the quality and standard. Invisible insects might be the in the sample which could not be detected in the open eyes but were detected by laboratory microscopic examination. The four authorities are also mentioned in the written arguments in Para No.5 but these are not produced for appreciation.
: 10 :
Before appreciating the respective arguments it is better to examine the legal position based on authorities first.
In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), it was observed as follows:
"2 It is not a fit case in which we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render the same adulterated. The Standard of Saunf has been prescribed in Rule A. 05.11, Appendix B of the prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he has not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed."
In Shri Raghbir Sharan v. State 1972 FAC 389 (Del), it was observed as follows:
"5. The evidence of these witnesses has not been : 11 : challenged and these witnesses are Public Analysts. There is not reason to doubt there testimony. According to the evidence of these witnesses, it is possible to for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within the period of three days. In the present case even according to the evidence of the Food Inspector, P.W. 2, no insects were present when the purchased the sample of basen from the petitioner on 2961968 and that, as a matter of fact, he had not purchased the sample because of suspicion that it was insectinfested. The Public Analyst in his report, Ex....... has merely stated that the sample was insectinfested (living insects), but has given the percentage of insectinfestation. It is, therefore, possible that insectinfestation found by the Public Analyst was not present in the sample when it was taken on 2961968. It cannot, therefore, be said the sample of basen purchased by the Food Inspector from the petitioner on 296 1968 was adulterated. Accordingly to the report of the Public Analyst, the said sample was not adulterated in other respects. The additional evidence adduced by the petitioner would entitle him to an acquittal."
In Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB), it was observed as follows :
"7. The learned counsel for the respondents placing strong reliance on a decision of Allahabad High Court in Radheylal Gupta v. State and another, 1979 (II) FAC 91, strenuously contends that October being a rainy season and the sample : 12 : having been analysed on the third day, the probability of the insects having grown during that period could not be ruled out. That being so, he submits that in the facts and circumstances of the instant case, it could not be said with any degree of certainty that the sample was infested on 1st October, 1973, the date when it was taken, especially when even the Food Inspector J.S. Chadha admits that he did not see any insects with the naked eye. The learned counsel vehemently submits that at best according to the prosecution case at the time the sample was taken, eggs could be said to be present in the Atta and not insects as according to the testimony of Dr. Pingley the incubation period for eggs is 4 to 7 days. That being so, because of the eggs found in the Atta purchased by the Food Inspector from the respondents, the Atta could not be said to be insectinfested and hence adulterated. There appears to be merit in the submission sought to be urged on behalf of the respondents........."
In Municipal Corporation of Delhi v. Shri Ramji Dass and another 1983 (II) FAC 20 (Del) (DB), it was observed as follows:
"8...........The article of food was taken on 12th September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is possible that the living insects may have developed in the sample in question after the sample was : 13 : taken. P. W. 4 gave evidence that the sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or 3. The expression "insect infested" would mean a swarm of insects or at least a large number of insects. The Food Inspector may have from the presence of few insects concluded that the article of food was insect infested. See M.C.D. v. Bhawanl Shankar, 1975 (I) FAC 251 and Raghbir Sharan v. State, 1972 FAC
389."
In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), it was observed as follows:
"8........Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which the sample was analysed in the laboratory, on a consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, : 14 : the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 1031980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge against the petitioner has to fail."
In A.P. Goel and another v. The State (Delhi Admn.) 2001 (1) FAC 168 (Del), relied on behalf of the appellant, it was observed as follows :
"4. On the basis of the complaint before the learned Metropolitan Magistrate, it was found that the sample, which was sent to the CFL was found to contain both living and dead insects. The argument, therefore, that found favour with the learned Metropolitan Magistrate was that the sample was not properly sealed so as to prevent moisture from entering into the bottle thereby causing the deterioration of the sample. The : 15 : learned Metropolitan Magistrate relied upon the judgment of this Court in M.C.D. v. Ved Parkash1984 II FAC 304. The facts of' the case decided by the High Court were more or less para materia to the case in hand. This Court had held that once living insects are found in the sample sent to the laboratory after five months, it can safely be inferred that the sample was placed in a bottle, which was not in light and sealed. In the present case, the CFL examined the sample after a period of 10 months and found substantial amount of living and dead insects thereby giving rise to the inference, that the sample was not preserved correctly or properly sealed."
It was further held as follows:
"6..........The sample having been sealed on 21.1.1986 by PW3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample. The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986."
In State (Delhi Admn.) v. Inderjit Singh and another 2005 (1) FAC 161 (Del), relied on behalf of the appellant, it was observed as follows :
"3. On evaluation of the evidence on record, the learned Magistrate returned a finding that the report of the Director, CFSL shows living insects found in the sample meaning that the sample was : 16 : not properly sealed and on this account has acquitted and accused. Counsel for the State has not been able to show me as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act. He is also not been able to show me as to what is the infirmity in the judgment under challenging. That being the case, I find no reason to interfere with the wellreasoned judgment of the trial court. Crl. A. 58/1986 is accordingly dismissed."
In Om Prakash v. The State of Punjab 1986 (I) FAC 77 (P & H), it was observed as follows:
"2. Mr. Chhibbar, has very fairly not contested the recovery of the atta from the dhaba of the petitioner on the relevent day. In fact, his sole contention is that from the material on the record, it could be inferred that the recovered atta remained un anaylsed for a period of about 24 days and during this long period the possibility of some insects (susris) having infested the atta could not be excluded. He has placed reliance upon a Single Bench decision of this Court in Makand Lal v.The Stage, 1975 (1) F.A.C. 211, wherein the accused was given the benefit of doubt on the ground that the atta had remained unexamined and unanalysed for 12 or 13 days. Indeed, in that case the recovery pertained to the month of July which is a rainy season, but no hard and fast rule can be laid down in this behalf that such insect infestation could not have taken place during the month of : 17 : February, as in the present case. It was the bounden duty of the prosecution to rule out this possibility by producing expert evidence on the file, which has not been done. In these circumstances, the petitioner is entitled to the benefit of doubt."
The above case law shows that on account of delay in the analysis of the sample the insects may crop up in it on account of the sample bottles being not airtight. In case the Food Inspector who has taken the sample does not say that he saw insects in the sample of the food article at the time of taking sample then again the same inference arises. PW 3 in the Food Inspector Shri Ranjit Singh has stated in the crossexamination that he did not notice any insect at the time of taking sample nor any rodent excreta was noticed. No preservative was added. There is no procedure for adding any preservative in in the Maida he also stated that some empty space was left in the bottle. Therefore, the insect, weevils and grubs were not represent at the time of taking sample. It is to be noted that the sample of Maida was taken on 11/2/1985 but was analysed at CFL as per Certificate dated 21/6/1985, i.e., after more than four months. Therefore, in the light of the above case law the possibility that living weevils which were found in abundance cropped up in the sample after taking the sample cannot be ruled out that giving the appellant benefit of doubt.
As regards the acidity as per Certificate of Director CFL which was found 0.27% as against the prescribed maximum limit of 0.12% the delay in examination of the sample at CFL also has the accused in this matter also. : 18 :
In Anil Kumar & Another v. State of H.P. 1996 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (HP), it was observed as follows :
"6. In the present case, the sample was taken on 29th May, 1981. There is nothing on record to suggest, even remotely, that the Food Inspector noticed any living or dead insects at the time of taking of the sample of tha 'Atta'. The Public Analyst analysed the sample of 23rd of June, 1985 who opined that eight living insects were there. There is nothing in the report that these insects were detected after microscopic examination of the sample. The Alcoholic Acidity at that time was found to be 0.08%. Under Rule A.18.02, the alcoholic acidity (with 90% alcoholic), expressed at H2 SO4 (on dry weight basis), is required to be not more than 0.12%. But Public Analyst report recorded the Alcoholic acidity to be within the prescribed limit.
7. The Director Central Food Laboratory recorded that there were three live insects and seven dead insects along with 11 dead insects larva. Again, there is nothing in the report of the Director that these insects were detected after microscopic examination. In so far as the standard of alcoholic acidity was concerned, the Director has very specifically mentioned in his report that this alcoholic acidity was subject to increase from the date of drawl of sample and its ultimate analysis in the laboratory, meaning thereby, that increase, if any, in alcoholic acidity could be attributed to the : 19 : lapse of time which took place between taking of the sample and the analysis by the Director. This aspect of the opinion appears to be correct one, inasmuch as on 23rd day of June, 1981, when the Public Analyst analysed the sample, the alcoholic acidity was found to be 0.08% within the prescribed limit and the Director analysed the sample on 24th of October, 1981, say after a period of about five months after the taking of the sample and the likelihood of alcoholic acidity having been increased on the basis of the opinion given by the Director himself could not be ruled out."
It was also held that on the basis of the aforesaid circumstances, the likelihood of insects having been cropped up during the transit period also could not be ruled out, especially when it has been noticed in the two reports referred to above that the earlier report contained less insects, while the later report contained more dead and living insects, which could also lead to this inference that by the passage of time, these insects dead or alive have been cropped up in the sample and in this background , the possibility of sample being insect free at the time of taking sample cannot be ruled out.
In Gulshan Rai v. The State of Punjab 1983 (II) FAC 328 (P & H), it was observed as follows :
"2. The learned counsel for the petitioner has raised a number of points but the one which tilts the balance in his favour need be taken notice of. As said before the sample was taken on 178 : 20 : 1979, at Kapurthala, during the rainy season, when there is plenty of humidity. Even the report of the public Analyst confirms it that there was moisture in the sample to the extent of 10.70 per cent. In such moistened wheat flour insects could have grown of their own and to have died their natural death therein. It could have easily grown in this span of 19 days when the sample remained unpacked and those insects should have died as well during that period. The Public Analyst has nowhere categorised those insects and has also not mentioned their normal life span. It is not worthy that at the time of the taking of the sample no preservation was added. Equally no date is available as to whether moistened wheat flour, if kept in watertight container, would create alcoholic acidity. Thus, on this scanty material it would not be safe to maintain the conviction of the petitioner. In somewhat similar circumstances this court in Om Parkash v. The State of Punjab, 1981 CLR 220, acquitted the accused when the wheat flour recovered from him was found to be insect infested on the 24th day of its recovery. Being in respectful agreement of that view I have followed it in other case and would do so in the present one as well."
In the Certificate of Director CFL it is mentioned that the sample contained moisture 12.72% in Anil Kumar's case (supra) , Hon Himachal Pradesh's High Court has observed that there was likelihood of alcoholic acidity having been increased, on the basis of the opinion given by Director himself, when the sample was examined after about five months of taking the sample. In Gulshan Rai's case (supra) the sample of the Atta (wheat flour) was taken and : 21 : the Public Analyst examined the sample after 19 days and there was also moisture in the sample. Therefore, Hon Punjab and Haryana High Court held that in such moistened wheat flour insects could have grown of their own and to have died the natural death therein. It was also held that no data is available as to whether moistened wheat flour, if kept in watertight container, would create alcoholic acidity. On this scanty material the Hon Punjab and Haryana High Court acquitted the accused. There is similarity in the facts of the present case with the facts in these two citations relied upon by learned counsel for appellant which apply to the present appeal. In the present case also the Certificate of Director CFL shows moisture of 13.22% in the sample analysed at CFL. Therefore, applying the above two authorities to the present case the appellant cannot be held guilty on this count also. Although in Gulshan Rai's case (supra) the sample was taken in the month of August in rainy season while in the present case it is taken in the winter season in the month of February but since as per report of Director CFL the sample contained moisture and it was analysed there in CFL after more than four months, the authority, in my view, applies to the present appeal also.
The Certificate of Director CFL also shows that the presence of wheat starch in the sample but it is not quantified.In Varinder Kumar v. Union Territory Chandigarh. 1994 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (P & H), it was observed as follows : : 22 :
"5. The learned standing Counsel for Union Territory has urged that the article being not of nature, substance or quality demanded by the purchaser and is to his prejudice , it will be deemed to be adulterated, in view of the definition contained in Section 2(fa).
6. I am, however, of the view that in order to bring the item within the purview of this part of the definition, it has be stated by the Public Analyst as to what was the total content of the wheat and rice starch. The case there are only traces of those items, it will not make the Basin adulterated. In Nagar Palika Parishad, Khilchipur, through Food Inspector v. Rajendra Kuamr 1988 (II) FAC 3, the Public Analyst had certified the sample of Basin to be containing Keshari Dal Flour, but its quantity had not been mentioned. On these facts. R.K. Verma, J. of Madhya Pradesh High Court held that the report having not described whether the presence of Keshari Dal flour found in the sample was merely in traces or in any such quantities as would affect the quality of the same would not be described to be adulterated. I subscribe to the same view.
7. In the light of the above discussion, I conclude that the sample cannot be described to be adulterated and the continuation of the prosecution will only be waste of public time and money and hereby accept the petition and quash the complaint and the consequent proceedings."
Applying Varinder Kumar's case (supra) the appellant cannot be held : 23 : guilty for the presence of wheat starch in the sample between nondescribing its quantity in the Certificate of Director CFL. Even otherwise the Certificate of Director present in trial court record as Mark X shows that wheat starch was found by microscopic examination. This examination is not given any weight on judicial side.In Dhanraj Jaiswal v. State of M.P., 2006 (1) FAC 283 (MP), it was observed as follows :
"15. In the matter of Jagdish Chander v. State of U.P., the Apex Court has considered the question of applying only microscopic test by the Public Analyst with respect to the sample of 'Dalchini' (Cinnamomum Zeylanicum Knees). It was observed that, "A glance at the above Rules would show that the percentage of the various ingredients such as ash, insoluble in Hcl or volatile oil or moisture in the sample in question, cannot be ascertained with any degree of accuracy by mere ocular examination under a microscope, Chemical tests, including treatment of the ash in the sample with Hydrochloric Acid would be a must. Since in the instant case, the sample was not subjected to any chemical test or analytical process, the opinion of the Public Analyst was not entitled to.any weight whatever.
16. In the above referred case, no chemical tests were performed, whereas, in the instant case in hand, chemical tests were performed and the sample was found fit as per prescribed standard and therefore, only on the basis of microscopic examination, the Chemical Analyst report that it contained some foresight starch, then, the total value of the sample should have increased in comparison to the standard prescribed and should have been something more than 60% but the report : 24 : shows that the total starch percent was only 48.26% which was much below than the prescribed standard. In this view of the matter, the result of microscopic examination becomes doubtful.
17. The Rajasthan High Court in the matter of Municipal Council v. Harak Chand, 1990 (1) FAC 231, considered the question of analysis by micorscopic examination of Turmeric Powder. In this case also it was reported by Public Analyst that on microscopic examination wheat starch was found in the turmeric powder. The turmeric powder conformed to the prescribed standard in all respects with the standard laid down in Appendix A05.20
01. It was observed that, "There is no column like microscopic examination in AppendixI; therefore, I do not attach any importance to this remark. Standard prescribed, means that there was no adulteration as such even as per the report of Public Analyst Ex. P8".
18. The Gujarat High Court in the matter of Chimanlal Govindji Thakker, 1997 (2) FAC 39, also considered the question of microscopic test in respect of the sample of Chillies and observed that, "Having regard to the aforesaid detail and standard relating to chillies powder, it is clear that microscopic test is not provided therein. There is, therefore, substance in the submission of. Mr. Thakker that the Public Analyst adopted the test by means of microscopic test, which is not provided by the Legislature. It is also doubtful whether such microscopic test is a scientific test or otherwise. There is no other evidence available on record, in as much as, there is no method to check such test.
It may be an unreasonable test even. Suffice it to state the Legislature has not approved of such : 25 : tests. Therefore, the conviction of the petitioner for the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is unsustainable."
19. In the matter of State v. Ahmed Gulam Umar (supra), the question of microscopic test in respect of sample of turmeric powder has been considered relying upon the matter of Chimanlal Govindji, 1997 (II) FAC 39 (supra), the Court again observed that, "Test carried out by microscope to ascertain adulteration in turmeric powder not being reliable, result cannot be used to sustain the conviction".
20. The Kerala High Court in the matter of Food Inspector v. Vidhyadhharan (supra), has also considered the question of microscopic examination with respect to sample of Coriander powder.
21. The various High Courts have considered the question of microscopic examination of sample and found that such tests are not sufficient to come to the conclusion that the sample is actually adulterated. In the case in hand the sample was found in conformity with the standard prescribed and therefore, it becomes more doubtful as to whether actually some foreign substance was added."
In Food Inspector v. Vidhyadharan 1987 (I) FAC 119 (Ker), it was observed as follows :
"6. However, the lower court acquitted the accused on the ground that there was no proper analysis, Ext. P10 would show that he conducted microscopic examination. He had not stated in : 26 : Ext. P10 report that he has done any test other than microscopic test and the indication from Ext. P10 is that he conducted only microscopic test. The lower court found that in the absence of chemical test it cannot be held whether or not the sample conformed to the prescribed standard. In coming to the conclusion, the lower court relied on the ruling of the Supreme Court in the decision in Jagdish Chandra v. State of Uttar Pradesh (1982 (1) S.C.C. 350). In that case the lower court acquitted the accused on the ground that the public analyst did not perform the chemical test for analysing the sample and the only test conducted was the microscopic test. The items concerned in that case were A. 05.61 and A. 05.061 of the Prevention of Food Adulteration Rules. 1955. Their Lordships of the Supreme Court, after noticing the standard prescribed for these items held that various ingredients such as ash, insoluble in HCL, or volatile oil or moisture in the sample in question could not be ascertained with any degree of accuracy by mere ocular examination under a microscope and chemical test including treatment of the ash in the sample with hydrochloric acid would be a must and that since the sample was not subjected to any chemical test or analytical process, the opinion of the public analyst was not entitled to any weight."
It was further held as follows "7. The Supreme Court in the above decision has pointed out that the percentage of the various ingredients such as ash, insoluble in HCL or moisture in the sample cannot be ascertained with : 27 : any degree of accuracy by mere ocular examinations under a microscope.........."
Therefore, in the light of the fact that wheat starch which was not quantified and was determined by microscopic examination at CFL, the appellant cannot be held liable on this count also.
In the light of the above discussion the appellant should not have been convicted by the learned trial court in this case. Therefore, there is no need to go into the other arguments raised like nonputting of incriminating Certificate from Director CFL properly in the statement under section 313 CrPC, the complaint being silent about the relevant sections of the PFA Act, the sample not made representative raised in the written arguments as the same would not in any way change the fate of the appeal. Therefore, the appeal succeeds. RESULT OF THE APPEAL In view of the above discussion the appeal is allowed. The impugned judgement of conviction followed by the impugned order on sentence passed by the learned trial court are setaside. The appellant is acquitted of the charges framed against him by the learned trial court. The fine, if any paid by the appellant in terms of the impugned order on sentence passed by the learned trial court be directed by the learned trial court to be refunded to him. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record : 28 : room.
Announced in the open court on 7th day of July, 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi