Delhi District Court
Da vs Lalit Jain & Others on 19 May, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 209/93
DA Versus Lalit Jain & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 209/93 b. The date of the commission of the offence : 13.05.93 c. The name of the Complainant, if any : F.I. P.N. Khatri d. The name of the accused and his parentage :(1) Lalit Jain S/o Sh. M.L. Jain , Moti Mahal Restaurant Daryaganj, 3704, Netaji Subhash Marg, Darya Ganj, New Delhi.
(2) Vinod Chadda S/o Sh. Yogender Nath Chadda, Moti Mahal Restaurant Daryaganj, 3704, Netaji Subhash Marg, Darya Ganj, New Delhi.
(3)Moti Mahal Restaurant Daryaganj, 3704, Netaji Subhash Marg, Darya Ganj, New 2 Delhi.
(4)Smt. Pushpa Kandhari, Partner, M/s Kandhar Dairy, 1665, Kucha Dakhni Rai, Darya Ganj, Delhi.
(5) Vikas Kandhari, Partner, M/s Kandhar Dairy, 1665, Kucha Dakhni Rai, Darya Ganj, Delhi.
(6)Vishal Kandhari, Partner, M/s Kandhar Dairy, 1665, Kucha Dakhni Rai, Darya Ganj, Delhi.
(7)M/s Kandhar Dairy, 1665, Kucha Dakhni Rai, Darya Ganj, Delhi.
e. The offence complained of or proved :u/s 2 (ia) (a) &
(m) punishable u/s 16 (1) read with Section 7 of the PFA Act.
f. The plea of the accused : Pleaded not guilty g. The final order : Acquitted h. Arguments heard on : 19.05.2010 i. judgment announced on : 19.05.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through 3 Sh. P.N. Khatri, Food Inspector against the above said accused persons, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act) 2 .The complainant has submitted that on 13.05.93 at about 1:30 p.m., Food Inspector, V.P.S. Choudhary took a sample of 'Paneer', a food article for analysis from Lalit Jain ( Manager) S/o Sh. M.L. Jain at Moti Mahal Restaurant Daryaganj, Delhi, 3704, Netaji Subhash Marg, Darya Ganj, New Delhi, where the said food article was found stored for use in food articles for sale. Accused Lalit Jain was found conducting the business of the Restaurant/firm at the time of sampling. The sample was taken from a tray bearing no label declaration. The sample was taken after cutting it into smallest pieces and proper mixing in a clean and dry tray with a clean and dry knife. The Food Inspector divided the sample then and there into three equal parts and put them in separate clean and dry bottles. 20 drops of formalin were added in each of the three bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Lalit Jain and the price of the sample was also offered but not accepted. The Panchnama was prepared at the spot. All the documents prepared by Sh. V.P.S. Chaudhary, Food Inspector were signed by Lalit Jain and other witness Sh. Baljeet Singh, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervision of FI P.N. Khatri. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with 4 the LHA in intact condition. The Public Analyst analysed the sample on 31.05.93 and opined that the sample does not conform to standard because milk fat of dry matter is less than the prescribed minimum limit of 50%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. P.N. Khatri, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(a) (m) punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 17.12.93 accused Lalit Jain moved the application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Mysore vide Certificate No.463/PFA/93 dated 17.01.94 and opined that the sample does not conform to the standards laid down for 'paneer' under the provisions of PFA Act and Rules thereof, in that the milk fat content falls below the minimum specified limit of 50.0% on dry matter basis.
6. Notice under Section 251 Cr.P.C for contravention of provisions of Section 2 (ia) (a) & (m) punishable U/s 16 (1) read with Section 7 5 of the PFA Act was framed against the accused persons on 7.4.94 & 28.02.2009 separately to which they pleaded not guilty.
7. Before trial, accused No.1 moved an application under Section 20A of PFA Act to implead M/s Kandhar Dairy as an accused as the sample commodity was supplied by M/s Kandhar Dairy vide Bill No. 306 dated 13.5.93 and the same was allowed by the Ld. Predecessor of this court vide order dated 23.3.98 and M/s Kandhar Dairy and its partners were summoned as an accused.
8. In support of its case, complainant examined PW-1 Sh. R.K. Ahuja, LHA ; PW-2 F.I. V.P.S. Chaudhary & PW-3 F.I. Baljeet Singh.
9.Statements of accused persons were recorded under Section 313 Cr.P.C on 14.10.2009, 9.11.2009 and 4.12.2009 wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent and preferred to lead evidence in their defence and accused Lalit Jain examined himself as DW-1 under Section 315 Cr.P.C.
10. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
11. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below 6 the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
12. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
13.Ihave heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel for accused No.1 to 3 argued that accused No.1 to 3 are entitled for benefit of warranty of Bill of M/s Kandhar Dairy under Section 19 (2) of PFA Act. Ld. Defence counsel for accused No.1 to 3 further argued that there was delay of about six months in filing the complaint and sample was not representative. On the other hand, Ld. Counsel for the accused M/s Kandhar Dairy and its partners argued that the sample commodity was not supplied by them and at the time of sampling, vendor did not disclose the source of purchase.
Benefit of Warranty u/S 19 (2) of PFA Act.
714.Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
15. Ld. Counsel for accused No. 1 to 3 vehemently argued that accused No.1 to 3 are entitled for benefit of warranty i.e Bill mark 'X' of M/s Kandhar Dairy ,and his application under Section 20A of PFA Act was allowed by the Ld. Predecessor of this court. On the other hand, Ld. Counsel for accused M/s Khandar Dairy and its partners argued that the Bill mark 'X' is a cash memo and cash memo is always issued when payment is made in cash. Ld. Defence counsel further argued that the Bill mark 'X' was not issued by the M/s Kandhar Dairy and they have been wrongly prosecuted.
16. It is a matter of record that on the day of sampling, vendor did not disclose at spot that the sample commodity was supplied by M/s Kandhar Dairy. Vendor also sent a letter Ex.PW2/H to Food Inspector during investigation but this fact that sample commodity was supplied by the M/s Kandhar Dairy is also not mentioned on Ex.PW2/H. Accused Lalit Jain is vendor of the sample commodity, who examined himself under Section 315 Cr.P.C as DW-1 deposed that consolidated payments in respect of purchased goods were made approximate 15 days through cheque but also confirmed in his cross-examination that cash memo issued when the payment is 8 made in cash and otherwise credit memo is issued. He further confirmed that he did not mention in his representation that he is submitting bill of purchase. No explanation has come on record on behalf of accused No.1 to 3 that why vendor did not mention on the documents prepared at the spot or gave in writing during investigation that the sample commodity was supplied vide cash memo mark 'X' dated 13.5.93 by M/s Kandhar Dairy or that he was not having bill at that time. DW-1 further deposed that Bill mark 'X' is printed one and signed probably by one Mukesh. It has not come on record that said Mukesh in which capacity issued the alleged bill. The Bill mark 'X' , has not been proved, in accordance with law. Therefore, I am of the considered opinion that the accused No.1 to 3 are not entitled for benefit of warranty of Bill mark 'X' under Section 19 (2) of PFA Act.
Delay in filing the complaint and its effect :-
17. In the present case the sample of Paneer was taken by Food Inspector V.P.S. Chaudhary from accused Lalit Jain on 13.5.93 and it was analysed by the Public Analyst on 31.5.93 i.e within eighteen days. However, the complaint was filed on 2.12.93.
18. In the case reported as Channan Lal Versus The State, 1972, Prevention of Food Adulteration Cases, 292, it has been held by the Hon'ble Delhi High Court that it is the duty of the prosecution to see that the right conferred by Section 13 on the petitioner to have the sample analysed by the Director of Central Food Laboratory is not frustrated. For this they have to take steps not only for the analysis of the sample by the Public Analyst at an early date but also in launch the prosecution as quickly as the circumstances ordinarily permit if, 9 however, this right of the petitioner is frustrated because of any order of the court or due to the conduct of the accused, the accused cannot claim any benefit.
19. In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:
9. ........ However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the 10 samples to sending it to CFL.
20. In an another authority reported as State Vs. Vinod Kumar Gupta, 2010 (2) JCC 957 , wherein it is held by the Hon'ble Delhi High Court as under :-
'' Para No.5 - The delay in filing of complaint and the consequent delay in sending of the counterpart sample to CFL weighed in the mind of learned appellate court for acquitting the respondent. As per learned appellate court delay in filing the complaint would result in depriving the respondent of his valuable right under Section 13 (2) of the P.F.A Act. Sample was taken on 7th December, 1988 whereas complaint was filed after about four months thus, according, to learned appellate court respondent could exercise right under Section 13 (2) of P.F.A Act only after lapse of more than five months. It was held that sample was not preserved by that time, thus, would have de- composed and become unworthy for analysis by CFL. Reliance was placed on Chanan Lal vs. State reported in 292, Prevention of Food Adulteration Cases 1972 DEL.''
21. In the present case, it is clearly seen from the record that the sample of Paneer was analysed by the Public Analyst, Delhi on 31.5.93 i.e within eighteen days from which the sample was lifted by F.I V.P.S. Chaudhary but complaint was filed on 2.12.93 and the Director, CFL could examine the second counterpart on 17.1.94. No explanation whatsoever came on record that even after opinion of Public Analyst in respect of a sample of paneer, why period of almost 11 seven months occurred by the department to launch the prosecution against the accused persons in a case of sample of paneer, although, complainant was aware that accused can exercise their right under Section 13 (2) of PFA Act only after institution of complaint, which is also fatal to the case of complainant.
Whether sample is representative:
22. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is difference of more than 0.3% between the report of the Public Analyst and Report of Director, CFL, Mysore which itself shows that the sample was not representative. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
23. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the 12 Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. ''
24. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 31.5.93 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat of dry matter - 40.65% Test for starch and sugar- Negative
25. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Mysore dated 17.1.94 , the result of analysis of second counterpart of the sample commodity is as follows:-
13Milk fat of dry matter - 37.71% Test for starch and sugar- Negative
26. The difference of analysis in respect of fat content on dry weight matter in respect of sample of paneer by the report of two analysts are not within acceptable range of 0.3% . Complainant has failed to explain the variation of 2.94% in milk fat of dry matter in respect of counterpart of same sample. Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative.
27. In view of the above reasons and discussions, I am of the considered opinion that there was inordinate delay in filing the complaint in case of sample of Paneer and sample was not representative. In result, complaint stands dismissed and all the accused stand acquitted. Their Bail bonds stand cancelled. Sureties discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 19.05.2010 ACMM-II/NEW DELHI.