Delhi District Court
Da vs Narender Kumar Etc. on 12 December, 2017
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 39467/2016
Date of Institution : 01.11.2006
Date of reserving judgment : 12.12.2017
Date of pronouncement : 12.12.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Narender Kumar
s/o Sh. Daulat Ram
Lala General Store
Bank Colony Road
Plot no. 98 Mandoli
Delhi-93
A-2) Sh. Gauri Shanker Goel
M/s Haryana Oil traders
Shamshan Gali Vill. Prahladpur
Delhi-110039
[Since PO] ... Accused persons.
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that CC No. 39467/2016 Page No. 1/11 DA vs Narender Kumar etc. the accused persons have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 29.12.05 at about 6.00 pm, Food Inspector (herein after referred as FI) Ms Usha Kiran alongwith Field Assistant (herein after referred as FA) Sh Manohar Lal under the supervision of Local Health Authority (LHA)/SDM Sh. Dayanand visited the premises of M/s Lala General Store, Bank Colony Road Plot no. 98 Mandoli Delhi-93, where the accused No. 1 Sh. Narender Kumar was found conducting the above mentioned shop, having stored various food articles including Mustard Oil of Nandi Brand for sale for human consumption, which was lying in sealed tin of 15 litre capacity, bearing label declaration. The FI disclosed his identity and expressed his intention to purchase a sample of Cow's milk from the vendor to which he agreed. Thereafter FI purchased 750 grams of Mustard Oil, from the accused. The sample was taken after mixing the contents of the tin by shaking the tin and thereafter sample was taken in a clean and dry plastic jug and again mixed in all directions with the help of a clean and dry stainless steel spoon. The Food Inspector divided the sample commodity into three equal parts then and there by putting into three clean and dry bottles. Each sample bottle was separately packed, fastened up and sealed according to PEA Act and Rules. The vendor's signature was obtained on the LHA slip and wrapper of the sample bottles. Notice was given to accused No. 1 Narender Kumar and the price of sample was also given to him vide Vendor's receipt dated 29.12.05. Panchnama was prepared at the CC No. 39467/2016 Page No. 2/11 DA vs Narender Kumar etc. spot. All the documents prepared by the FI, were signed by the FI herself, and also by vendor/accused No.1 Sh. Narender Kumar and the witness Sh. Manohar Lal FA. Before starting sample proceedings efforts were made to join public witnesses but when none came forward. Accordingly Sh. Manohar Lal FA was joined as a witness. The tin after emptying the contents was taken into possession.
3. One counter part of the sample bearing LHA code No. 53/LHA/11775 was sent to Public Analyst, Delhi in intact condition and two counter parts were deposited with LHA in intact condition. Public Analyst analysed the sample and found that the sample does not conform to standards because B R and Saponification value exceeds the prescribed maximum limit of 60.5 and 177 respectively and BTT is less than the prescribed minimum limit if 23 Deg C. It also contains admixture of Rice Bran Oil.
4. It is further the case of the complainant that accused No. 1 Narender Kumar was the Vendor-cum-Proprietor of Lala General Store, Bank Colony Road Plot no. 98 Mandoli Delhi-93 at the time of sampling and as such he is in-charge and responsible to day to day conduct of business of the said shop. The Mustard Oil in question was supplied to the accused No. 1 by M/s Haryana Oil traders Shamshan Gali Vill. Prahaladpur Delhi-39 and accused No. 2 Gauri Shanker Goel was the Proprietor of the Manufacturing Company as on the date of sampling and he is liable for prosecution.
CC No. 39467/2016 Page No. 3/11DA vs Narender Kumar etc.
5. Thereafter, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the Court on 01.11.2006 alleging violation of Section 2(ia) (a) (b)
(c) and (m) and Section 2(ix) (b) (e) (f) (g) (k) of PFA Act and Rule 37 and Rule 44 (e) of PFA Rules 1955 punishable under section 16 of the PFA Act 1954 against the accused persons.
6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 01.11.2006. The accused persons appeared before the Court and exercised their option of analysing the counter part through CFL under section 13 (2) of the PFA Act. Based on the CFL report as well as evidence led in pre charge evidence, charges was framed against the accused No. 1 on 03.11.2009 for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Section 2(ia)
(a) and (m) of PFA Act, to which accused person pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witness in support of its case. PW-1 Ms. Usha Kiran, PW-3 Sh Manohar Lal FA were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh Daya Nand. All these witnesses deposed about the proceedings conducted by them on 29.12.2005, corroborated each other in material particulars and narrated the steps undertaken by them during the sample proceedings, including Mustard Oil, expressing intention to CC No. 39467/2016 Page No. 4/11 DA vs Narender Kumar etc. purchase sample for analysis, lifting the sample of Mustard Oil, dividing it in three parts and obtaining signatures of vendor and witness. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice in Form VI Ex.PW1/B, Panchnama Ex. PW-1/C and Raid Report Ex.PW1/D, deposition of one counterpart vide PA's receipt Ex.PW1/E, deposition of remaining two counterparts vide LHA receipt Ex.PW1/F, receipt of PA Report Ex.PW1/G. During the investigation PW-1 sent letter Ex.PW1/H to STO ward No. 74 and received its reply at portion X to X. PW-1 also sent letter Ex.PW1/H1 to DHO-MCD and received its reply at portion X to X stating that no Health Licence has been issued to Lala General Store. She also sent letter Ex.PW1/H2 to vendor and received two replies Ex.PW1/H3 and Ex.PW1/H4. PW-1 also sent letter Ex.PW1/I to M/s Haryana Oil Traders and received its reply Ex.PW1/I-1 wherein the said firm denied the sale of sample commodity to accused no. 1. PW-1 also sent letter Ex.PW1/J to STO Ward No. 63 and received its reply on the back portion from X to X. PW-1 also sent letter Ex.PW1/J-1 to DHO-MCD and received its reply at portion X to X stating that no Health Licence has been issued to M/s Haryana Oil Traders. PW-1 also sent to letter Ex.PW1/K to Officer In- charge Department of Excise and Taxation and received its reply Ex.PW1/K1. Thereafter, PW-1 put the entire file before SDM/LHA who forwarded the same to the then Director PFA for obtaining his Consent and after obtaining the Consent for prosecution Ex.PW1/L of accused persons the present complaint Ex.PW1/M was filed before the Court. Thereafter PW-1 sent intimation letter Ex.PW1/N to the accused persons through postal registration CC No. 39467/2016 Page No. 5/11 DA vs Narender Kumar etc. receipt Ex.PW1/O. These witnesses were duly cross-examined by Ld. Defence Counsel.
8. Statement of the accused No.1 under section 313 CrPC was recorded on 04.05.2017 wherein he denied the allegations and pleaded innocence. Thereafter, the accused choses not to lead defence evidence and vide order dated 11.08.2017 defence evidence was closed and the matter was fixed for final argument.
9. I have heard arguments on behalf of state and defence and perused the records of the case.
10. In a criminal trial, the burden is on the complainant / prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by leading cogent and trustworthy evidence.
11. It is to be understood that the present is a case of adulteration on the ground that the test for rancidity was found positive which has to be negative in the CFL Report. Further the BR reading was 62 which has to be not more than 60.5, the saponification value was 186.37 which has to be not more than 177 and the acid value was 12.17 which has to be not more than 6.
12. In the present case, there is a report of Public Analyst and thereafter a report of CFL. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the CC No. 39467/2016 Page No. 6/11 DA vs Narender Kumar etc. report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
14. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other CC No. 39467/2016 Page No. 7/11 DA vs Narender Kumar etc. purposes it is superseded."
15. The whole case of prosecution is now based on the CFL report.
The CFL report has been assailed by the defence on the ground that the sample was analysed by CFL after expiry of the product in question i.e. mustard oil and the defence has relied upon of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors 1999 (2) FAC399 to argue that the mustered oil was packed in September 2005 and it was best before six months from the date of packing. The sample was analysed by the CFL from 21.12.2006 to 22.12.2006 i.e. after a period of 10 months of the expiry of the product and therefore its analysis by CFL has no value.
16. I have gone through the judgement citied by the defence. In this case, the sample in question was of an insecticide. The manufacturing date of insecticides was March 1994 and its expiry date was February 1995. By the time the accused was summoned to appear in the Court on April 06, 1995. they had lost their right of getting the samples to be analysed from Central Insecticide Laboratory. The Hon'ble Court held that by the time, the respondents were asked to appear before the Court, the expiry date of insecticide was already over and sending of sample to the Central Insecticide Laboratory at that stage would be of no consequence. In the words of Hon'ble Court :-
"Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other CC No. 39467/2016 Page No. 8/11 DA vs Narender Kumar etc. mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940;CC No. 39467/2016 Page No. 9/11
DA vs Narender Kumar etc. Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence."
17. Now in the present case, the sample of mustard oil was lifted on 29.12.2005. Form VI prepared on the spot shows that the date of CC No. 39467/2016 Page No. 10/11 DA vs Narender Kumar etc. packing of mustard oil was September 2005 and it was best before six months from the date of packing. The sample was analysed in CFL in December 2006 and therefore it is clear that the sample was analysed by the CFL after the period of its expiry and therefore convicting the accused on the basis of analysis of such a sample, will not be proper. Therefore, placing reliance upon the aforesaid judgement of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors, Hindustan Liver Ltd Vs State of Punjab 2011 (1) FAC 192, a benefit of doubt is given to the accused regarding the adulteration of the sample, which is the subject matter of the present case.
18. In view of the aforesaid discussion the accused are acquitted from the charges in the present case.
Announced in the open court this 12th day of December 2017 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 39467/2016 Page No. 11/11 DA vs Narender Kumar etc.