Delhi District Court
Smt. Nirmal Jain vs The State on 25 April, 2015
IN THE COURT OF SHRI AMAR NATH
DISTRICT & SESSIONS JUDGE : NEW DELHI DISTRICT
NEW DELHI
Crl. Appeal No.04/2014
Smt. Nirmal Jain Versus The State
W/o Late Sh. V.K. Jain Govt. of NCT of Delhi
M/s. Shahank Confectioners Pvt. Ltd. Department of P.F.A.
1862, Chandni Chowk,
Delhi.
Date of Institution: 03.02.2014
Date of Reserving the Judgment: 23.04.2015
Date of Judgment: 25.04.2015
JUDGMENT
1. This appeal is directed against the judgment dated 06.01.2014 and order on sentence dated 13.01.2014 passed by the court of Shri Balwant Rai Bansal, the then ACMM-2, Patiala House Courts, New Delhi in CC No.10/2000 whereby the appellant was convicted under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") and to undergo SI for six months and fine of Rs.1000/-. In default of payment of fine, undergo to further SI for five days praying therein; to set aside the impugned judgment and order on sentence.
2. The case of the prosecution 'in brief' is that a complaint was filed by Crl. Appeal No.04/2014 Page No. 1 of 15 the Delhi Administration through FI Shri N.N. Sharma against the accused for the offence punishable under section 7 read with Section 16 of the Act against accused Nirmal Jain w/o Late Shri V.K. Jain and firm M/s. Shashank Confectioners Pvt. Ltd. According to the prosecution, on 27.07.1999 at about 6 pm, (FI) Shri N.N. Sharma purchased a sample of 450 gram of Ghee which was found stored in premises for preparation of sweets to be sold and accused Smt.Nirmal Jain was found conducting the business of the said food article at the time of sampling. The said sample was sent for analysis which was found to be adulterated by the public analyst who submitted the report by Certificate of Directorate. Notice in Form-VI was given to the accused and price of sample was also offered which was not accepted. The public analyst opined the sample after analyzing 'the sample does not confirm to standard because Reichert Value is less than the prescribed minimum limit of 28'.
3. On receipt of summons, the accused appeared and moved an application u/s 13(2) of the Act whereby the second counterpart of the sample was sought to be sent to CFL for analysing which was accordingly allowed by the court. On analysing the second counter part of the sample in question it was opined " the sample of ghee is adultrated vide certificate of Crl. Appeal No.04/2014 Page No. 2 of 15 Director CFL dated 27.3.2000. A notice U/s 251 Code of Criminal Procedure for violations of the provisions of PFA Act was framed against the accused no.1 for herself and also on behalf of accused no.2 being its AR vide order dated 8.5.2001 to which she pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined three witnesses in all and thereafter closed its evidence on 06.02.2010. Statement of the accused Nirmal Jain recorded u/s 313 of the Code of Criminal Procedure wherein she claimed herself to be innocent and thus, she opted to lead the evidence in her defence. She examined two witnesses including herself.
5. I have heard the rival contentions advanced on behalf of both the sides and have carefully perused the trial court record.
6. Learned counsel for the appellant has made three-fold submissions.
Firstly, that the Learned trial court ought to have acquitted the appellant by giving findings that the sample commodity was not for direct sale, in fact, the same was to be used in the preparation of sweets and hence, the food inspector was not empowered to lift the sample of ghee. Secondly, the procedure of lifting the sample itself creates serious doubts as the same was not in accordance with the mandatory requirements in view of the Rule 14 of The Prevention of Food Adulteration Rules, 1955 which requires Crl. Appeal No.04/2014 Page No. 3 of 15 elimination of the possibility or the coloring material in the sample bottle/ vessel. The sample of ghee ought to have been taken after heating the same, which method was not applied by the Food Inspector and hence, sampling is bad which itself demolishes the case of the prosecution. Lastly; there are variations in the reports of Public Analyst and CFL which makes the case of the prosecution highly doubtful. To substantiate the contention, he placed reliance upon various judicial pronouncements of Hon'ble Apex Court and Hon'ble High Court of Delhi as well.
7. In Delhi Administration (through Food Inspector) Vs. Vidya Gupta, 2014 (1) FAC 291 their Lordships were pleased to observe as follows:--
"B)Criminal Procedure Code, 1973. Section 378(1).
Leave to appeal petition filed against the order of acquittal. Sample of Ghee taken. Since the item lifted as sample ie. ghee was not meant for the purpose of sale but it was to be used merely as an ingredient in the preparation of sweets which was the final article ready for sale, no offence is made out under the provisions of section 2 (ia)(a)(c) & (m) and s.16 (1)(a) r/w section 7 of the PFA Act, 1954. The discrepancy between the report of the Public Analyst and that of CFL with respect to B.R. Reading. While Public Analyst has recorded the B.R. Reading as 52.7, the CFL has recorded the same to be 53.1. It has been clearly laid down in the case of State (Delhi Administration) v. Ram Singh & Anr., reported (2009) 1 FAC 371 that if the Crl. Appeal No.04/2014 Page No. 4 of 15 variation in the two reports is more than 0.3%, it cannot be said that the sample was representative in nature. In the present case, variation in both the reports with respect to BR reading was 0.76%. No grounds are made out to entertain the present leave to appeal petition and the same is accordingly dismissed."
8. In State Vs. Malik Ram, Criminal Appeal No.849 of 1960, Decided on 07.12.1960, wherein his Lordship was pleased to observe as follows :--
"One sample of the Ghee was sent to the Directorate of Central Food Laboratory. He found that the Reichert value was 26.3. He, therefore, expressed the opinion that the Ghee was adulterated. It is not denied on behalf of the respondent that the Reichert value was in fact 26.3. But Mr.Chaturvedi appearing for the respondent urged that the Ghee was nevertheless pure."
9. In Food Inspector / Food Safety Vs. Kamal Aggarwal and ors 2014 (2) FAC 183, his Lordship was pleased to observe as follows :--
"Prevention of Food Adulteration Act, 1954 - Section 2(1a)(a) and (m) offence under - punishable under section 16 (1A) read with section 7 - acquittal under - State seeks to appeal - Food Inspector purchased a sample of 1 liter (910 grams) of ghee - one sample was sent for testing to the Public Analyst ('PA') who opined that the sample did not conform to standards of ghee because the B.R. Reading exceeded the prescribed Crl. Appeal No.04/2014 Page No. 5 of 15 maximum limit of 43, the reichert value was less than the prescribed minimum limit of 28 and gave a positive B.T. Test. The complaint was filed on 18th January 2005, i.e., nearly one year later. The second sample was sent to the Central Food Laboratory ('CFL'), Pune, who opined that the sample did not conform to the standards of ghee as per the PFA Rules 1955 - variations in the reports of both the PA as well as the CFL and came to the conclusion that since the variations in the above parameters are more than 0.3%, the two samples sent for testing were not truly representative of the food article purchased - benefit of doubt was rightly granted to the Respondent."
10. Per contra, learned Special PP has refuted the entire line of arguments while making submissions that the Food Inspector was within its power to lift the sample of Ghee. It is immaterial that Ghee was not meant for direct sale as the same was to be used in preparation of sweets which was ultimately for human consumption and as such, it comes within the mischief of Section 16(1)(a) of PFA Act.
11. Before proceeding further, let me examine the Rules as enunciated in 'The Prevention of Food Adulteration Rules, 1955'.
"Vegetable oil and fat, mineral oil and added flavour. It shall have pleasant taste and flavour free from off flavour and rancidity. It may contain food additives permitted in Appendix-C. It shall conform to the microbiological requirement Crl. Appeal No.04/2014 Page No. 6 of 15 prescribed in Appendix-D :-
Provided that where butter is sold or offered for sale with out any indication as to whether it is table or desi butter, the standards of table butter shall apply.
It shall conform to the following requirements:--
Product Moisture Milk Fat Milk solids not Common salt
fat
(1) (2) (3) (4) (5)
(i)Table Not more than Not less than Not more than Not more than Butter 16.0 per cent. 80.0 per cent. 1.5 per cent. 3.0 per cent.
m/m m/m m/m m/m
(ii)Desi - Not less than - -
Butter 76.0 per cent.
m/m
Ghee means the pure clarified fat derived solely from milk or curd or from desi (cooking) butter or form cream to which no colouring matter or preservatives has been added. The standards of quality of Ghee produced in a State or Union Territory specified in column 2 of the Table.
Rule A.11.02.20 prescribed that desi (cooking) butter means the product obtained from cow or buffalo milk or a combination thereof or curd obtained from cow or buffalo milk or a combination thereof without the addition of any preservative including common sale, any added colouring matter or any added flavouring agent. It shall be free from other animal fats, wax and Crl. Appeal No.04/2014 Page No. 7 of 15 mineral oils, vegetable oils and fats. It shall contain not less than 76.0 per cent of milk fat by weight. Provided that where butter is sold or offered for sale without any indication as to whether it is table butter or desi butter, the standards of quality prescribed for table butter shall apply.
TABLE
Sl. Names of State/Union Butyro Minimum Percentage of
No. Territory refractometer Reichert
reading at 40 value
degree Celsius
FFA as Moisture
oleic (Max)
acid (max)
(1) (2) (3) (4) (5)
1. Andhra Pradesh 40.0 to 43.0 24 3.0 0.5
2. Andaman and Nicobar 41.0 to 44.0 24 3.0 0.5
Islands
3. Arunachal Pradesh 40.0 to 43.0 26 3.0 0.5
4. Assam 40.0 to 43.0 26 3.0 0.5
.. .. .. .. .. ..
.. Delhi 40.0 to 43.0 28 3.0 0.5
12. First and foremost point raised on behalf of the appellant is that Learned Trial Court had formed the opinion on the basis of presumption that in the month of July being hot summer season, the Ghee is found in liquid form and thus, the Food Inspector was not required to melt the Ghee further before taking the sample and as such, it cannot be said that Crl. Appeal No.04/2014 Page No. 8 of 15 Food Inspector had adopted the bad sampling procedure. He further observed that the sample commodity was allegedly stated to be manufactured at Hathras, UP but the same was not substantiated with any documentary evidence. The appellant did not prove the bill by examining the relevant witness from whom she had purchased the Ghee. He gave the further findings that the accused (appellant herein) has not given the declaration as required under the provisions of Rule 44(B) of PFA Rules, 1955 at the time of lifting the sample which disentitles the accused/appellant any benefit on the ground that sample commodity was manufactured at Hathras and standards of quality of Ghee produced in State of UP would be applicable and as such, the plea of the appellant with regard to the manufacturing of the sample commodity (Ghee) at Hathras was rejected being unfounded.
13. A plain reading of the Act, it appears that Section 7 "prohibits a person to 'manufacture for sale' or 'store' or 'sell' or 'distribute', inter alia, any adulterated food. Undoubtedly, Section 10 provides power to Food Inspector to take samples of any article of food from any person selling such article under sub section (1) whereas sub section (2) confers on him power to enter and inspect any place where any article of food is Crl. Appeal No.04/2014 Page No. 9 of 15 manufactured or exposed for sale or stored for the manufacture of any other article of food for sale, or exposed for sale and take samples of said articles of food for analysis". Section 16 provides for Penalties.
14. The legislative in its wisdom to enact the Act to ensure the sale and supply of pure food to the public. In other words, the Act prevents adulteration of food articles.
15. It is an undisputed fact in the instant case that Ghee was not heated up before lifting the sample. According to the learned trial court that since the sample of the Ghee was lifted in the month of July which is one of the month of hot summer season and as such, the Ghee was already in liquid state and thus, the same did not require further heating, does not inspire any confidence simply for the reason that the mandatory rules while lifting the sample cannot be dispensed with on account of the season. It needs to be noticed that the months of July and August are not meant for summer season only as per the climate in the NCR. If good amount of rain pours then temperature certainly would come down and in that circumstances Ghee could have been found in a semi solid form also. Undoubtedly it depends upon the temperature on a particular day when the sample was taken. Furthermore, there is no whisper in the complaint Crl. Appeal No.04/2014 Page No. 10 of 15 that Ghee was already in melted condition at the time of lifting the same.
16. In State of Gujarat Vs. Parkashbhai Ramchandra Takhtani (Vendor) & Anr., 2010 (1) FAC 460, the Hon'ble High Court of Gujarat has held that sample of pure ghee is to be collected only after heating it in a given temperature and stirring it so as to make it homogeneous. The similar view has been reiterated by the Hon'ble Punjab & Haryana High Court by observing that the contents of entire tin containing ghee should be heated to change from semi solid state to liquid state and the contents of the tin are required to be thoroughly stirred after melting and stirring. Furthermore, PW-1 Food Inspector N.N. Sharma categorically admitted during his cross examination that ghee was not heated up before taking the sample as it was already in liquid state.
17. I think that there were lapses on the part of Food Inspector while taking the sample of the ghee as he did not heat up the same indicating a deviation from the law as laid down in the aforesaid cited judgments which attracts an inference against the prosecution.
18. His second limb of argument is that if the variations in the two reports are more than 0.3% then it cannot be said that the sample was representative in nature. On the basis of variations which are negligible Crl. Appeal No.04/2014 Page No. 11 of 15 and minor in nature, the court cannot make basis for conviction. The sample of Ghee, which was lifted by the Food Inspector from the shop of the appellant, was one of the ingredient to be used for the preparation of sweets. The respondent refused to accept the price of the Ghee which was offered to him in return of the sample lifted from her shop.
19. The Learned Trial Court had formed the opinion to arrive at the conclusion that sample was not representative one by ignoring the minor variation in respect of the sample commodity. He went to state further, it cannot be concluded on the said count that the sample was not made homogeneous. He has also referred the report of the Public Analyst ExPW1/F, Butyro-refractometer Reading at 40 degree Celcius was 43, whereas the report of the Director, CFL found the same to be 42.7 and the variation is up to 00.3. As per report of Public Analyst "moisture" was 0.057% while the Director CFL found the moisture to the extent of 0.04% after analyzing the second counter part of the sample and the variation is up to 0.017%. Reichert value 26.01 instead of permitted minimum limit of 28% in ghee and the variation is up to 0.19. As per Learned Trial Court the only variation which is beyond the permissible limit of 0.3% as in respect of "Free Fatty Acid is Oleic Acid". On the basis of the report Crl. Appeal No.04/2014 Page No. 12 of 15 of Public Analyst is 1.44 while the Director, CFL found the same to the extent of 1.01% and the variation is up to .43%. On the basis of aforesaid findings, he concluded that variations are minor and negligible.
20. On referring to Appendix-B of the Rules framed under the Prevention of Food Adulteration act, the various values of pure clarified Ghee are laid down as under :--
Butyro refractometer reading at 40 C 40.0 to 43.0 Reichert Value Not less than 28.0 per cent Free Fatty Acid as Oleic Acid Not less than 3.0 per cent Moisture Not more than 0.3 per cent
21. If the values in the instant case are examined in the light of aforesaid data, it appears the Reichert Value is undoubtedly 26.1% instead of 28% but from this fact alone, it is unsafe to conclude that the sample of Ghee was adulterated. In the matter of Food Inspector Vs Kamal Aggarwal (supra), it has been observed that since the variations in the parameters are more than 0.3%, two samples sent for testing were not truly representative of the food article purchased. Similarly, in the case of Crl. Appeal No.04/2014 Page No. 13 of 15 Vidya Gupta (supra), it has been held that on comparison of the reports of Public Analyst and CFL vast variations are found then it cannot be said that samples were representative and consequently the accused would be entitled to an acquittal.
22. The last contention of the appellant is that the respondent had failed to prove that the bottle and intermediary vessel used during the sample were cleaned and dried, meaning thereby the requirements of Rule 14 of Prevention of Food Adulteration Rules have not been complied with to substantiate the contention, Ld. Counsel for the appellant has placed the reliance on the judgment of our own Hon'ble High Court, Delhi Administration V/s Rattan Lal, decided on 30.07.2014, wherein it was observed that the jhaba used to lift the sample was not cleaned at the spot, therefore, the contamination of jhaba by other food articles or coloring matter could not be ruled out and thus, the judgment of the Ld. Trial Court was upheld with regard to the acquittal of the accused with the observation that the Rule 14 of PFA Rules was not complied with.
23. In view of the aforesaid discussion, the appellant succeeds. Accordingly, the judgment dated 06.01.2014 and order on sentence dated 13.01.2014, both are set aside. Appellant is acquitted from all the offences Crl. Appeal No.04/2014 Page No. 14 of 15 by giving the benefit of doubt. The bail bond furnished by the appellant stands cancelled and surety is discharged. Original documents, if any, be returned to the rightful claimant after cancellation of the endorsement, if any. No order as to costs. TCR be sent back along with the copy of the order. Appeal file be consigned to record room.
Announced in the open court On 25.04.2015 of New Delhi (AMAR NATH) District & Sessions Judge New Delhi Crl. Appeal No.04/2014 Page No. 15 of 15 IN THE COURT OF SH. AMAR NATH DISTRICT & SESSIONS JUDGE NEW DELHI CA No.04/14 Nirmal Jain Vs. State 25.04.2015 Present: Appellant in person.
Naib Court Sube Singh for State.
Vide separate judgment, appeal is allowed and judgment dated 06.01.2014 & order on sentence dated 13.01.2014, both are set aside. Appellant is acquitted from all the offences by giving the benefit of doubt. The bail bond furnished by the appellant stands cancelled and surety is discharged. Original documents, if any, be returned to the rightful claimant after cancellation of the endorsement, if any. No order as to costs. TCR be sent back along with the copy of the order. Appeal file be consigned to record room.
(AMAR NATH) District & Sessions Judge New Delhi/25.04.2015 Crl. Appeal No.04/2014 Page No. 16 of 15