Delhi District Court
Da vs . Rajeev Goyal Etc. Page 1 Of 18 on 11 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 57/99
Food Inspector
Department of PFA
Govt of Delhi.
...........................Complainant
Versus
1. Sh. Rajeev Goyal
S/o Sh. J.N. Goyal
M/s Bangla Sweets Corner,
74, Khan Market, New Delhi
(DISCHARGED V/O DATED 29.05.2000)
........ VendorcumManager
2. M/s Bangla Sweets Corner,
74, Khan Market, New Delhi
(DISCHARGED V/O DATED 29.05.2000)
......................Partnership firm
3. M/s Bharat Supply Co.
F130/34, Gautam Nagar, Delhi16
(DISCHARGED V/O DATED 29.05.2000)
.....................SuppliercumPartnership firm
CC No. 57/99
DA Vs. Rajeev Goyal Etc. Page 1 of 18
4. Sh. Naresh Chand
S/o Sh. Panna Lal
M/s Bharat Supply Co.
F130/34, Gautam Nagar, Delhi16
R/o D12, Ashok Vihar, PhaseI, Delhi
(DISCHARGED V/O DATED 29.05.2000)
..............Partner of the Supplier firm
5. Sh. Suresh Chand
S/o Sh. L.Kundan Lal
M/s Bharat Supply Co.
F130/34, Gautam Nagar, Delhi16
R/o 2539, Dharampura, Delhi
(DISCHARGED V/O DATED 29.05.2000)
..............Partner of the Supplier firm
6. M/s Siel Foods & Fertilizer Industries
Vanaspati Depot,
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 29.05.2000)
..............Marketier
7. Sh. Ajay Tandon,
Sr. Manager (Production)
M/s Siel Foods & Fertilizer Industries
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 29.05.2000)
..............Nominee
CC No. 57/99
DA Vs. Rajeev Goyal Etc. Page 2 of 18
8. M/s Suraj Solvent & Vanaspati Ind. Ltd.
Vill. Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab.
...............Manufacturer
9. Sh. S.S. Brar, Quality Control Manager
M/s Suraj Solvent & Vanaspati Ind. Ltd.
Vill. Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab.
..........Nominee.
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 57/99
Date of the commission of the offence : 01.09.1998
Date of filing of the complaint : 17.05.1999
Name of the Complainant, if any : Shri A.K. Singh, FI.
Offence complained of or proved : Violation of Section 2 (ia) (a)(b)
(c)(e) (h) & (l) of PFA Act 1954,
punishable U/s 16 (1A) r/w S. 7
of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 04.10.2013
Judgment announced on : 11.10.2013
CC No. 57/99
DA Vs. Rajeev Goyal Etc. Page 3 of 18
J U D G M E N T
1. The present complaint has been filed on 17.05.1999 by Food Inspector A.K. Singh against the above said accused persons. It is stated in the complaint that on 01.09.1998 at about 2:00 PM, FI A.K. Singh purchased a sample of Vanaspati (Panghat), a food article for analysis from accused Rajeev Goyal, S/o Sh. J.N. Goyal, VendorcumManager of M/s Bangla Sweets Corner, 74, Khan Market, New Delhi, where accused Rajeev Goyal was found conducting the business of the said food article. It is further stated in the complaint that FI A.K. Singh purchased 1500 gms of Vanaspati from accused Rajeev Goyal, taken from an originally sealed tin, having label declaration after cutting the tin from upper side. It is further stated in the complaint that the sample commodity was divided into three equal parts by putting the same into three clean and dry sample bottles and each bottle was separately packed, fastened, marked and sealed according to PFA Act & Rules. It is further stated in the complaint that before taking the sample, the whole contents of the sealed tin were properly mixed with the help of clean and dry karchi. All the sample proceedings were conducted under the supervision and direction of Sh. T. Phillips, SDM/LHA. It is further stated in the complaint that after preparing three counterparts, the signatures of vendor Rajeev Goyal (since discharged) CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 4 of 18 were obtained on the LHA slip and the wrapper of the sample bottles. Notice in Form VI was given to vendor Rajeev Goyal and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by FI A.K. Singh were signed by accused Rajeev Goyal, the vendor and the other witness namely Sh. T. Phillips, SDM / LHA.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, 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 does not conform to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955, because sample shows presence of Argemone Oil".
3. It is further stated in the complaint that during investigations accused Rajeev Goyal (A1) was found to be VendorcumManager of M/s Bangla Sweets Corner (A2), 74, Khan Market, New Delhi, which was a partnership firm consisting of two partners namely Harsh Goyal and Smt. Kusum Goyal but as per partnership deed accused Rajeev Goyal was the ManagercumIncharge and responsible person for conducting the business of the said firm. The sample commodity was supplied to the vendor's firm by M/s Bhagat Supply company i.e. accused no. 3 of which five persons CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 5 of 18 were partners but accused Naresh Chand (A4) and accused Suresh Chand (A5) were persons Incharge and responsible for the day to day business of the said supplier firm. It is further stated in the complaint that the supplier firm i.e M/s Bharat Supply Company had purchased the sample commodity from M/s Siel Food & Fertilizer Industries (A6) of which accused Ajay Tandon (A7) was Nominee and was responsible for conducting day to day business of the said marketier firm. It is further stated in the complaint that accused M/s Suraj Solvent & Vanaspati Industries Ltd (A8) had manufactured the sample commodity and accused S.S. Brar (A9) was its Nominee and was responsible for conduct of the business of manufacturer firm. After conducting investigation, 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)(f)(e) (h) & (I) of the PFA Act, 1954, punishable U/s 16 (1) (a) r/w S. 7 of the Act.
4. The accused persons were summoned vide order dated 17.05.1999.
On appearing, AR of accused no. 8 moved an application U/s 13 (2) of the 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, Calcutta for analysis. CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 6 of 18 The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 24.08.1999 that "the sample of vanaspati Panghat is adulterated".
5. Vide order dated 29.05.2000 accused no. 1 to 7 were given benefit of warranty u/s 19 (2) of PFA Act and were discharged. Now, accused no. 8 & 9 are facing the trial.
6. Thereafter, two witnesses were examined in pre charge evidence namely Sh. T. Phillips, SDM / LHA as PW 1 and Sh. A.K. Singh, Food Inspector as PW2 and pre charge evidence was closed vide order dated 23.07.2008.
7. Charges for violation of provisions of Section 2 (ia) (a) (b)(c)(e) (h) & (I) of PFA Act, 1954, punishable U/s 16 (1A) r/w S. 7 of the Act were framed upon accused no. 8 & 9 vide order dated 21.01.2009 to which they pleaded not guilty and claimed trial.
8. In post charge evidence, the prosecution examined aforesaid two witnesses and PE was closed vide order dated 09.08.2011.
9. Statements of both the accused persons U/s 313 Cr. P. C. were recorded on 05.03.2012 wherein both of them claimed themselves to be innocent and opted not to lead DE hence, DE was closed on the same date i.e. 05.03.2012.
CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 7 of 18
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. The Ld. Counsel for accused no. 8 & 9 argued that neither there was any provision nor any standard of Vanaspati prescribed at the time of lifting the sample that the vanaspati should be free from Argemone Oil. He further argued that Notification banning the presence of Argemone Oil in vanaspati came in force first time on 11.12.2001 while the sample in the present case was lifted on 01.09.1998. He has further argued that no percentage of Argemone Oil has been given by both the experts and in the absence of quantity, weight and proportion, it was possible that presence of argemone oil in the sample may be just negligible so as to cause no prejudice to the purchaser. He has further argued that as per 'Modi's Medical Jurisprudence and Toxicology' about 1% of Argemone Oil as an adulterant is necessary to produce epidemic dropsy and presence of argemone oil without any percentage which may even less than 1% is not per se injurious to health and thus it can not be said that the sample was adulterated. He has further argued that there is no evidence that Argemone oil is injurious to health or likely to cause death and there is no such finding in the PA's Report that the Argemone Oil was injurious to health. He has further argued that in PA & CFL Reports there are variations which are CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 8 of 18 more than .3%, which shows that a representative sample was not taken and hence, the accused persons are liable to be acquitted. He has placed reliance on case law titled as Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, Dinesh Kumar Vs. State of M.P 2004(2) FAC 151, Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Rattan Malhotra 2012 (2) FAC 398.
12. On the other hand Ld. SPP for complainant has argued that presence of argemone oil means that the oil was not edible and therefore it was harmful as the sample commodity contained argemone oil irrespective of the percentage not declared by the PA & CFL and it does not make any difference. He has further argued that CFL Report supersedes the report of Public Analyst and hence, the variations in reports of experts are immaterial and accused persons can not be given the benefit thereof. He has further argued that the prosecution has proved its case beyond reasonable doubt and hence, the accused are liable to be convicted.
13. Both the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW2 Sh. A.K. Singh who is complainant Food Inspector in the present case has deposed in his examinationinchief that on 01.09.1998, he CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 9 of 18 under the supervision and directions of SDM/LHA Sh. T. Phillips had visited the premises of M/s Bangla Sweets Corner, 74 A., Khan Market, Delhi, where accused Rajiv Goyal (since discharged) was found present and conducting the business of the said shop having stored various food articles including Vanaspati (Panghat) for sale and for preparing sweets etc, which were meant for sale. He has further deposed that he introduced himself and intended to purchase the sample of Vanaspati (Panghat) to which accused Rajiv Goyal agreed. He has further deposed that he purchased 1500 gms of Vanaspti (Panghat), taken from originally sealed tin, having label declaration, on payment of Rs. 77.20/ vide vendor's receipt Ex. PW1/A. He has further deposed that he divided the sample commodity into three equal parts by putting the same into three sample bottles and each sample bottles was separately packed, fastened, marked and sealed according to PFA Act and Rules. He further deposed that notice was prepared at the spot vide Ex. PW 1/B and a copy of the same was given to vendor Rajeev Goyal and vendor also made an endorsement thereon at portion A to A that the aforesaid sealed tin of 15 kg of panghat vanaspati was supplied by M/s Bharat Supply Company vide Bill No. 4203, dated 29.8.1998. He further deposed that a Notice u/s 14 A Ex. PW 1/C was prepared at the spot and was sent to M/s Bharat Supply Company, F130/34, Gautam Nagar, Delhi. CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 10 of 18 Panchnama was also prepared at the spot vide Ex. PW 1/D. He has further deposed that all the documents were read over and explained to the accused/vendor Rajeev Goyal in Hindi and after understanding the same the vendor as well witness and he himself signed the same. He has further deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 02.09.1998 vide receipt Ex. PW 1/E and one counterpart of the sample in intact condition was deposited with with PA vide PA receipt Ex. PW 2/A. He further deposed that PA's report Ex. PW 1/F was received, according to which the sample was found not conforming to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed presence of argemone oil.
15. PW2 has further deposed that during investigation it was revealed that accused Rajeev Goyal had purchased the sample commodity from M/s Bharat Supply Company, F130/34, Gautam Nagar, Delhi which was having five partners however, accused Suresh Chand and accused Naresh Chand were responsible for day to day conduct of business of the said firm. He has further deposed that accused Suresh Chand and Naresh Chand had purchased the sample commodity from M/s Siel Foods & Fertilizers Industries Ltd. of which accused Ajay Tandon was Nominee. He has CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 11 of 18 further deposed that the sample commodity was manufactured by M/s Suraj Solvent and Vanaspati Industries Ltd of which accused S.S. Brar was the Nominee / Quality Control Manager and was responsible for the day to day conduct of the business of the firm. He has proved the letters and replies received during the correspondence of investigation. He has proved the Sanction as Ex. PW 2/S, complainant as Ex. PW 2/T, intimation letter as Ex. PW 2/U and postal receipts as Ex. PW 2/V.
16. PW1 T. Phillips, the then SDM / LHA, under whom supervision and directions the sample proceedings were conducted has deposed more or on the same pattern as deposed by PW 1 and substantiated the averments made in the complaint.
17. In the statements U/s 313 Cr.P.C, the accused no. 8 & 9 have feigned ignorance regarding sample proceedings on the ground that they were not present at the spot on the day of sample proceedings and have taken a defence that no reliance can be placed on the report of Director CFL as a representative sample was not taken. They have also taken a defence that in the year 1998 there was no restriction on the presence of Argemone Oil in Vanaspati and this amendment was made for the first time in the year 2001.
18. It is not in dispute that on 01.09.1998, FI A.K. Singh under the supervision of SDM / LHA Sh. T. Phillips had visited the premises of M/s CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 12 of 18 Bangla Sweets Corner, 74, Khan Market, New Delhi where accused Rajeev Goyal (since discharged) was found conducting the business of various sweet items including Vanaspati, sample of which was lifted by the FI. After analysing the sample commodity, the Public Analyst found the sample not conforming to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed presence of argemone oil. On the basis of PA's Report, the prosecutions was launched. It is also not in dispute that AR of accused no. 8 exercised the right under section 13(2) of PFA Act 1954 and the second counterpart of the sample was sent to CFL Calcutta and the Director CFL vide report dated 24.08.1999 also found the sample of Vanaspati Panghat to be adulterated. It is also not in dispute that accused no. 1 to 7 were given the benefit of Warranty u/s 19(2) of PFA Act and they were discharged vide order dated 29.05.2000.
19. Now coming to the arguments advanced by Ld. counsel for accused no. 8 & 9, it is evident from record that on 01.09.1998 the sample was lifted by FI and the PA & Director CFL found the sample to be adulterated because of presence of Argemone Oil. However, it is an undisputed fact that the Notification of banning the presence of Argemone Oil in vanaspati came in force on 11.12.2001 and at the time of lifting the sample there was CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 13 of 18 no prohibition of Argemone Oil in vanaspati. In this context, reference may be made to the case law Dinesh Kumar Vs. State of M.P 2004(2) FAC 151. The facts of the case are that on 29.03.1998 FI lifted a sample of Besan. PA found the sample adulterated as the sample commodity was containing Kesari Dal which was prohibited under Rule 44 A of PFA Rules and on the basis of PA's Report, the complaint was filed. After considering the material on record, the trial court acquitted the accused. Lateron on an appeal preferred by State, the Hon'ble High Court only referred to Rule 44 and allowed the appeal of the State. Aggrieved by the order of Hon'ble High Court, the accused preferred an appeal before Hon'ble Apex Court and the Hon'ble Apex Court accepted the appeal of the accused and set aside the order of Hon'ble High Court and observed as under"
"We find that so far as State of M.P. is concerned, the notification No. F3/62/98/M2/17 was issued for application of Rule 44 A with effect from 6th April, 2000. Admittedly the samples were collected much prior to that date i.e. 29.03.1988. Since Rule 44 A was not applicable and was not in operation in the State of M.P. on the date of alleged collection of samples Rule 44 A could not have been applied to find the accused guilty.".
20. Similarly in the present case also on the date of lifting the sample i.e. 01.09.1998, there was no notification providing the standard of argemone oil in Vanaspati and this standard banning the presence of argemone oil in CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 14 of 18 vanaspati came in force w.e.f 11.12.2001.
21. Secondly, none of the experts has given the percentage of Argemone Oil in the sample commodity. Moreover, it is also not the case of the prosecution that owing to consumption of sample commodity in question there was any casualty. PW2 in his crossexamination himself has admitted that they had not come across any complaint that any person has fallen ill after consuming the sweets or namkeen from the shop of accused no. 1 or that there was any case of dropsy within a radius of 5 k.m.
22. In this regard, it is pertinent to mention that as per Modi's Medical Jurisprudence and Toxicology, at least 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. In the absence of any finding on its percentage, the possibility of argemone oil less than 1% in the sample commodity can not be ruled out. Therefore, it was necessary to give percentage of Argemone by PA & Director CFL to adjudge whether the argemone oil was to such an extent that it was injurious to health.
23. In Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, a sample of Bari Elaichi was lifted from the shop of the accused / petitioner. The second counterpart of the sample on being got analyzed from the CFL, The Director CFL found the mineral oil 'positive'. But the CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 15 of 18 Director CFL nowhere mentioned the quantity, weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi so that it could be presumed to be injurious to health, nor any evidence whatsoever was brought on record to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample and, therefore, on these facts and circumstances, the revision petition was allowed and the petitioner / accused was acquitted.
24. Further perusal of both the reports of experts, it is revealed that both the reports are at variance to each other. The PA vide its report Ex. PW 1/F has found Moisture to the tune of 0.08% whereas the Director CFL has found the Moisture to the tune of 0.03%. Further, the PA has adjudged the B.R. reading at 40 Deg. C to be 50 whereas the Director CFL has adjudged the same to be 48.9. Likewise, the PA has found B.T. red unit to the tune of 4.2 whereas the Director CFL has found B.T. red units to the tune of 1.5 red units. Furthermore, PA has found Free Fatty Acid by 0.07% whereas the Director CFL has found the same by 0.11%. Thus, there are variations to some extent which are more than .3%, which is stated to be the permissible limit of variations. These variations indicate that either a representative sample was not taken or a bad sampling procedure was adopted by the FI in this case.
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25. 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". Similarly in State Vs. Mahender Kumar & Ors. (Supra) has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 17 of 18 the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both the Public Analyst as well as the CFTRI".
26. 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 the case tilts in favour of accused persons. Accordingly, the accused no. 8 & 9 are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 11th October, 2013 ACMMII/ PHC/ New Delhi
CC No. 57/99
DA Vs. Rajeev Goyal Etc. Page 18 of 18
CC No. 57/99
DA Vs. Rajeev Goyal Etc.
11.10.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 to 7 have already been discharged.
Accused no. 8 & 9 are present with Counsel Sh. M.K. Gupta. Vide my separate Judgment of even date dictated and announced in the open court, all accused stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Their sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished B/Bs & S/Bs in the sum of Rs. 15,000/ each. The same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/11.10.2013 CC No. 57/99 DA Vs. Rajeev Goyal Etc. Page 19 of 18