Delhi District Court
Delhi Administration / Food Inspector vs Jitender Kumar Singhal on 4 November, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 196/11 (42817/16)
Unique Case ID No. 02403R0083172011
Date of Institution: 11.11.2011
Date of reserving judgement: 04.11.2016
Date of pronouncement: 04.11.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110 035 ... Complainant
versus
Jitender Kumar Singhal
S/o. Late Sh. Ram Niwas Singhal
R/o. 1889A/17, Govindpuri Extension,
Kalkaji, New Delhi. ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused is stated to be the vendor-cum-proprietor of M/s. Aggarwal Store, from where the food article, that is, 'Lal Mirch Powder' was lifted for sampling.
CC No. 196/11 Page 1 of 112. As per the complaint, on 03.06.2011, the food officials consisting of Food Inspector (FI) P.M.Kothekar and Field Assistant (FA) S.Maissy under the supervision of Local Health Authority (LHA)/SDM Sh. Kuldeep Singh reached along with their staff at the premises of M/s. Aggarwal Stores at Shop No. 1910/18, Govindpuri Extension, New Delhi-110019, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Lal Mirch Powder from the vendor as lying in sealed poly packets of one kg each bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, raid report, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 28.06.2011, the PA found the sample to be adulterated on the ground that it was coloured with unpermitted oil soluble synthetic colouring matter, to be not conforming to the standards because total ash and ash insoluble content exceeded the prescribed maximum limit, and also misbranded because of violation of Rules 32 and 42 (zzz)(17) of PFA Rules. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 11.11.2011 alleging violation of section 2(ia)(a), (b), (h), (j), (l) and (m) of CC No. 196/11 Page 2 of 11 PFA Act, as punishable section 7/16(1A) of PFA Act, as well as violation of Section 2(ix)(k) of PFA Act, as punishable under Section 7/16(1)(a) of PFA Act.
3. 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 11.11.2011. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 14.12.2011, opining the sample to be not conforming to the PFA Rules due to presence of non volatile ether extract less than the prescribed minimum limits.
4. Based on the CFL report, notice of accusation under Section 251 CrPC was framed against the accused on 25.08.2012 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 he pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined four witnesses in support of its case. PW-1 FI P.M.Kothekar, PW-2 Sh. Kuldeep Singh and PW-3 FA S.Maissy were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 03.06.2011 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of three sealed packets of CC No. 196/11 Page 3 of 11 one kg each of Lal Mirch Powder, dividing it in three parts by putting one poly pack as one counterpart, fastening, sealing, marking the sample jars, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, notice Ex. PW-1/B, Panchnama Ex. PW-1/C, Statement of Accused Ex. PW-1/D, Raid report Ex. PW-1/E, PA Receipt Ex. PW-1/F and LHA receipt Ex. PW-1/G. PA report Ex. PW-1/H was received and investigation was conducted by PW-1. PW-1 sent letter Ex. PW-1/I to the accused and received his reply Ex.PW1/I-1. He also sent letters Ex.PW1/J and Ex.PW1/J-1 to the VAT Office and DHO/MCD respectively. After completion of investigation, sanction Ex. PW- 1/K was taken from the Director PFA and the complaint Ex. PW-1/L was filed in the court. A copy of PA report with intimation letter Ex. PW-1/M were sent by PW-4 Sh. K.K.Mittal to the accused through post. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused had been falsely implicated.
6. Statement of the accused under section 313 CrPC was recorded on 04.01.2016 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 03.06.2011, yet he claimed that no efforts were made to join public witnesses. He questioned the correctness of reports of PA and CFL on the grounds that they are highly divergent. He did not lead any evidence in defence.
CC No. 196/11 Page 4 of 117. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 14.12.2011 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, CC No. 196/11 Page 5 of 11 substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) provides situation where quality or purity of a food article falls below the prescribed standards or its constituents are present in quantity not within the prescribed limits of variability but which does not render it injurious to health.
11. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article Lal Mirch Powder is a standardised food article falling in Item No. A.05.05.01 of Appendix-B of the PFA Rules under the head Spices and Condiments. Both the analysts have therefore treated the article as such.
12. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the 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.
CC No. 196/11 Page 6 of 1114. 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 purposes it is superseded."
15. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. However, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], and State v. Santosh Sharma [2014(1) FAC 296]. It is submitted that comparison of the two reports would show that there are CC No. 196/11 Page 7 of 11 substantive variations which would show that the sample was not representative.
16. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
17. In the case at hand, the sample analysed by PA showed presence of unpermitted oil soluble synthetic colouring matter but the CFL found no extraneous colour in the sample. Similarly, the PA found the ash content to be 9.84% (more than the prescribed maximum limit of 8.0%) and ash insoluble content to be 1.91% (more than the prescribed maximum limit of 1.3%) but these contents were found by the CFL to be 6.29% and 0.58% respectively (within the prescribed limits). Not only this, the opinion of the PA with respect to misbranded food article was also reversed by the CFL that did not find any such misbranding. In such a case, since the CFL report is not only final and conclusive, but it also overrides the PA report, the court has to confine itself to the findings in the CFL report only.
18. It is to be noted that as per the PWs, the sample commodity was lying in sealed poly packets of one kg each and they were put separately in sample CC No. 196/11 Page 8 of 11 jars. As per the PA report, the sample was received in sealed plain polythene packet contained inside plastic jar. On this basis, the PA opined that the sample was misbranded as there were no declarations on the label of such poly packet. Strangely, the sample with the PA was not in any sealed packet. The CFL report shows that the sample was received in a plastic jar. There is no observation that the plastic jar contained any polythene sealed packet. That is the reason why the label column was left blank in the CFL report and no opinion was given to the effect that the sample was misbranded.
19. Though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
20. Well, the differences between the two reports would show substantive variations in the two reports. The CFL detected presence of non volatile ether extract to be 11.40% (which was less than the prescribed minimum limit of 12.0%) but no such deficiency was noticed by the PA who had found this content to be 14.65% and more than the minimum limits. Similarly, the ash and ash insoluble contents found by the PA to be in excess of the maximum limits, were found to be within limits by the CFL. Not only this, the synthetic colour found positive by the PA was opined to be negative by the CFL. As far as presence of such colouring matter is concerned, there could not have been much change in the same irrespective of considerable passage of time.
CC No. 196/11 Page 9 of 11Synthetic colour would not have disappeared with the passage of time. Had the food article been truly representative and of the same lot, there was no occasion for such variation in two reports.
21. As far as presence of non volatile ether extract is concerned, it is important to understand that Lal Mirch Powder being a produce of agriculture or horticulture is such that it is prone to natural changes with the passage of time. Where the quality or purity of an article has fallen below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article shall may not be considered adulterated.
22. The CFL had examined the sample from 08.12.2011 to 14.12.2011. Thus, it was so analysed after about 6 months when it was lifted from the possession of the accused. The nature of Mirch Powder is such that some changes are bound to happen if sample is kept for a long period at room temperature. The effect of air, moisture, internal heat and external environment etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control.
23. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted, particularly in view of such substantive variations in the two reports and the fact that no such material was detected by the PA. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural CC No. 196/11 Page 10 of 11 change during the intervening period which was beyond human control. For this, the accused would get benefit of doubt.
24. Therefore, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of Lal Mirch Powder was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be. Similarly, the variations in the two reports and the time gap would give benefits to the accused for violation of Section 2(ia)(m) of the Act.
25. Therefore, considering the time gap, natural variations and variations in two reports, the accused is entitled to be given benefit of doubt. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act and thus, no case would be made out against the accused for commission of offences punishable under section 7/16 of the PFA Act.
26. Having said so, the accused is acquitted of the charges. However, his bail bonds shall remain in force for the next six months in terms of section 437-A, CrPC.
27. File be consigned to record room.
Announced in the open court this 04th day of November, 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 196/11 Page 11 of 11