Delhi District Court
Da vs . Sanjay Singhal Page 1 Of 18 on 27 May, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 191/03
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Sanjay Singhal S/o Sh. Jagmohan Lal
M/s Pradeep Kiryana Store,
669, Shri Nagar Shakur Basti,
Rani Bagh, Delhi34
R/o WZ221, Shri Nagar,
Shakur Basti, Rani Bagh, Delhi 34
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
CC No. 191/03
DA Vs. Sanjay Singhal Page 1 of 18
Serial number of the case : 191/03
Date of the commission of the offence : 24.12.2002
Date of filing of the complaint : 10/04/03
Name of the Complainant, if any : Shri B.P. Saroha, Food Inspector
Offence complained of or proved : Violation of provisions of Section
2 (ia) (a) (j) & (m) of PFA Act
1954 and violation of provisions
of Rule 23 r/w Rule 28 & 29 of
PFA Rules; punishable U/s
16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 02/05/13
Judgment announced on : 27.05.2013
J U D G M E N T
1. The present complaint has been filed on 10.04.2003 by the Delhi Administration through FI Sh. B.P. Saroha against the accused Sanjay Singhal. It is stated in the complaint that on 24.12.2002 at about 10.00 AM, FI Sh. B.P. Saroha purchased a sample of Dal Arhar, a food article for analysis from Sh. Sanjay Singhal S/o Sh. Jagmohan Lal of M/s Pradeep Kiryana Store, 669, Shri Nagar, Shakur Basti, Rani Bagh, Delhi - 34, where the said food article was found stored for sale and where accused Sanjay Singhal was found CC No. 191/03 DA Vs. Sanjay Singhal Page 2 of 18 conducting the business of the said food article at the time of sampling. FI Sh. B.P. Saroha purchased approximately 750 gms of Dal Arhar taken from an open gunny bag bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating in all possible directions i.e clockwise, anti clockwise, up and downwards several times under the supervision and direction of Shri Kartar Singh, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to the accused vide Vendor's Receipt dated 24.12.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Sanjay Singhal and the other witness namely Sh. J.S. Bisht, FA. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. J.S. Bisht, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. KS/LHA/SDM/SV/MT/3763 in intact condition was sent to the CC No. 191/03 DA Vs. Sanjay Singhal Page 3 of 18 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 is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is further stated that Sh. Sanjay Singhal S/o Sh. Jagmohan Lal was found as VendorcumProprietor of M/s Pradeep Kiryana Store and as such he is incharge and responsible for day to day conduct of the business of the said shop. Thereafter, 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) (j) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 10.04.2003 The accused appeared and moved an application U/s 13 (2) of the PFA 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 18.06.2003 that "sample does not conform to the standards of split Pulse (Dal) Arhar as per PFA Rules 1955 ".
CC No. 191/03 DA Vs. Sanjay Singhal Page 4 of 18
5. The prosecution examined Food Inspector Sh. B.P. Saroha who conducted the sample proceedings against the accused as PW1 towards pre charge evidence and vide order dated 27.01.2009, pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) (j) and (m) of the PFA Act and violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 08.05.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Food Inspector Sh. B.P. Saroha as PW1, Sh. Kartar Singh, the then SDM/LHA as PW2 and Sh. J.S. Bisht, Field Assistant as PW3 and PE was closed vide order dated 28.04.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 13.08.2010 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
9. The accused in his defence examined himself as DW1 and Sh. Anil Goel as DW2 and DE was closed vide order dated 20.08.2011.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
CC No. 191/03 DA Vs. Sanjay Singhal Page 5 of 18
11. Ld. Counsel for accused has vehemently argued that accused had purchased the sample commodity from Nihal Chand & Co. vide Bill Mark D1 and sold the sample commodity in the same condition as purchased by him from the aforesaid company and, therefore, accused is entitled to the benefit of warranty U/s 19 (2) of PFA Act. He further argued that sample lifted by the Food Inspector was not representative one and it was not properly homogenized which is evident from the variations in the report of Public Analyst and Director, CFL. He further argued that Public Analyst in his report has not disclosed the test applied for detecting the synthetic colour in the sample commodity, while the test applied by the Director, CFL is paper chromatography, which is not a sure test and, therefore, accused is liable to be given benefit of doubt. He has relied upon the authorities titled as State Vs. Ram Rattan Malhotra, Criminal LP No. 581 of 2011, State Vs. Suresh Kumar & Ors. 2010 (2) FAC 204, State Vs. Subhash Chand 2012 (2) JCC 1052, Delhi Administration Vs. Amar Chand 2012 (3) JCC 1930 and Niranjan Kumar Aggarwal Vs. State of Assam 2012 (1) FAC 457.
12. On the other hand, the Ld. SPP for complainant has argued that accused had not shown any bill of purpose of the sample commodity from its manufacturing company at the time of sample proceedings and he has fabricated the bill Mark D1 later on which also could not be duly proved by the CC No. 191/03 DA Vs. Sanjay Singhal Page 6 of 18 accused and, therefore, no warranty U/s 19 (2) of PFA Act can be granted to the accused. He further argued that as per report of Director, CFL, the sample does not conform to the standards of split Pulse (Dal) Arhar as per PFA Rules and the report of Director, CFL being conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given benefit of variations in the reports of PA and CFL. He further argued that paper chromatography test to detect the colour in the sample is a valid test.
13. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
14. PW1 Sh. B.P. Saroha has deposed in his examinationinchief that on 24.12.2002, he along with Sh. Kartar Singh, LHA/SDM visited the premises of M/s Pardeep Kiryana Shop, 669, Sri Nagar Sakur Basti, Rani Bagh, New Delhi, where accused Sanjay Singhal was found conducting the business of the food articles for human consumption including Dal Arhar. He further deposed that they disclosed their identity and intention for taking the sample to which accused agreed and then 750 gms of Dal Arhar was taken from an open gunny bag having no label declaration after proper mixing of the Dal Arhar with a clean and dry Jhaba by rotating it in all possible directions. He further deposed that sample commodity was divided into three equal parts by putting them into three clean and dry bottles and each sample bottle was CC No. 191/03 DA Vs. Sanjay Singhal Page 7 of 18 separately packed, fastened and sealed according to PFA Act and Rules.
15. PW1 has also proved on record the vendor's receipt as Ex. PW1/A by which Rs. 18/ was paid to the accused towards purchase of the sample commodity for analysis, notice in Form VI given to the accused as Ex. PW1/B and Panchnama prepared at the spot as Ex. PW1/C. He has also deposed that all these documents Ex. PW1/A to Ex. PW1/C were read over and explained to the accused and he signed the same. He has also proved on record the depositing of one counterpart of the sample with PA on 26.12.2002 in intact condition vide receipt Ex. PW1/D and depositing of two counterparts of the sample with SDM/LHA vide receipt Ex. PW1/E, PA report as Ex. PW 1/F, copy of letter sent by Sales Tax Office as Ex. PW1/G, statement of accused as Ex. PW1/H, photocopy of MCD licence as Ex. PW1/I, requisite sanction/consent by Director, PFA for initiating prosecution against the accused as Ex. PW1/J, complaint as Ex. PW1/K and the intimation letter sent to the accused as Ex. PW1/L vide postal registration receipt Ex. PW 1/M.
16. PW2 Sh. Kartar Singh, the then SDM/LHA under whose directions/supervision sample proceedings were conducted and PW3 Sh. J.S. Bisht , Field Assistant who was made a witness at the time of conducting the sample proceedings have deposed more or less on the similar lines as deposed by PW1 in their examinationinchief.
CC No. 191/03 DA Vs. Sanjay Singhal Page 8 of 18
17. In his crossexamination, PW1 stated that there was about 10 15 Kg of Dal Arhar and the capacity of the bag was 4050 Kg. He further stated that there was one Jhaba lying in the gunny bag and that jhaba was not used in other food articles. He further stated that Jhaba was not made clean at the spot as it was already clean and dry. He admitted that Haldi Powder, Mirch Powder and other food articles were also being sold in the in the Kiryana Shop. He stated that Dal was mixed by him with the help of Jhaba which was lying in the gunny bag. He admitted that vendor was running a retail shop and not the manufacturer. He stated that vendor did not disclose that he purchased the Dal from outside.
18. PW2 in his crossexamination stated that he does not remember how many Jhabas were lying with the shopkeeper. He further stated that there was one Jhaba lying in the gunny bag from which the sample was lifted. He further stated that Jhaba was not used in other food articles. He stated that vendor was running the kiryana shop but he cannot say whether he was selling Haldi Powder, Mehandi, Mirch Powder etc. He further stated that he cannot say that colour is applied at manufacturer level and not at the level of retailer.
19. PW3 in his crossexamination stated that he does not remember how many Jhabas were with the accused. He further stated that in CC No. 191/03 DA Vs. Sanjay Singhal Page 9 of 18 his presence, Jhaba was not being used in other food articles. He stated that Dal Arhar was weighed by putting in an envelope but he does not remember the colour of the envelope. He denied the suggestion that some colour was sticking in the envelope before the Dal was put. He further denied the suggestion that there were some contaminated material in the bottles.
20. From the aforesaid crossexamination of the PWs, the defence of the accused appears to be that wrong method of lifting the sample was adopted by the Food Inspector and the Jhaba used in the sample proceedings was not clean and dry. In his statement U/s 313 Cr.P.C. also, the accused has contended that there was no compliance of Rule 17 and 18 by the FI and the method of sampling by FI was wrong. It is also contended by the accused that he is a retail shopkeeper and dealing in kiryana articles and he did not apply any colour to dal arhar.
21. First of all, I shall deal with the contention of Ld. Counsel for accused that accused had purchased the sample commodity from its manufacturing company and is protected by the warranty U/s 19 (2) of PFA Act. In this regard, the accused has placed on record the original Bill of Purchase as Mark D1.
22. It is not in dispute that on 24.12.2002 at about 10.00 AM, a sample of Dal Arhar was lifted by the FI Sh. B.P. Saroha from the shop of the CC No. 191/03 DA Vs. Sanjay Singhal Page 10 of 18 accused. The sample was sent to the Public Analyst who after analyzing the same opined vide his report dated 07.01.2003 that sample was adulterated because it was coloured with synthetic colour viz. Tartrazine. The report of Public Analyst has been proved on record as Ex. PW1/F on the basis of which present complaint has been launched against the accused.
23. As per case of the accused, he had purchased the sample commodity of Dal Arhar from M/s Nihal Chand & Co. vide Bill Mark D1 and he had disclosed the said fact to the Food Inspector at the time of sampling, but the Food Inspector refused to accept the same. However, it is evident from Notice in Form VI Ex. PW1/B that the accused did not produce any Bill of purchase of sample commodity at the time of sample proceedings nor such defence has been taken by the accused in his statement U/s 313 Cr.P.C.
24. Even though, the accused had not produced the Bill of Purchase Mark D1 at the time of sample proceedings and produced the same at later stage, still the accused cannot be deprived from warranty available U/s 19 (2) of PFA Act, provided that the accused has been able to prove the Bill of Purchase. It has been held by the Hon'ble Gauhati High Court in Niranjan Kumar Agarwala Vs. The State of Assam 2012 (1) FAC 457 that, "There is no law in criminal trial, that the defence is bound to disclose its supporting documentary evidence before hand i.e. before the trial commences. The CC No. 191/03 DA Vs. Sanjay Singhal Page 11 of 18 accused is called upon for entering into his defence only after conclusion of recording evidence of prosecution witness and examination U/s 313 Cr.P.C."
25. Now, it has to be seen as to whether the accused has been able to prove that he had purchased the sample commodity from M/s Nihal Chand & Company vide Bill No. 21845 Mark D1 and, therefore, he is entitled for benefit U/s 19 (2) of PFA Act.
26. In order to prove this contention, the accused examined himself as DW1 and stated in his evidence that there was about 35 KG of dal arhar in the gunny bag and he had purchased the said dal from Nihal Chand & Co., Grain Merchant & Commission Agent, 3955, Naya Bazar, Delhi vide Bill No. 21845 dated 16.12.2002 and same is Mark D1. He further deposed that he disclosed the source of purchase to the FI at the spot but he denied to entertain the Bill and he also made cash payment for the purchase of dal.
27. In his crossexamination, DW1 stated that the Bill Mark D1 had been issued by the Muneem of the above mentioned firm, but he does not remember his name. He further stated that the signatures at point A on Bill Mark D1 are of Sh. Surender Jain who is Broker in the market. He denied the suggestion that on the day of sample proceedings, he was not having Bill Mark D1 or that he did not produce the same to the FI. He further denied the suggestion that Bill Mark D1 was later on fabricated by him. CC No. 191/03 DA Vs. Sanjay Singhal Page 12 of 18
28. From the aforesaid evidence of accused, the case of the accused appears to be that he had purchased the sample commodity from M/s Nihal Chand & Co., vide Bill Mark D1 and the sample commodity was purchased through Sh. Surender Jain, a broker in the market.
29. The accused has also examined Sh.Anil Goel as DW2, who is partner of M/s Nihal Chand & Co., who had allegedly supplied the sample commodity to the accused. In his examinationinchief, DW2 stated that on 16.12.2002 also, he was the Partner in the aforesaid firm. He further stated that he is not confirmed if the Bill No. 21845 dated 16.12.2002 i.e. Mark D1 has been issued by their firm or not. This witness was crossexamined by the Ld. Defence Counsel.
30. In his crossexamination, DW2 admitted that the name of the firm printed on the Bill is the name of their Firm. He stated that he is not confirm if any persons by name of Surender Jain was a Commission Agent during those days in their Firm. He further stated that he cannot say that any kind of Dal Arhar was sold to Pradeep Store through this Bill or not. He further stated that he cannot recognize the handwriting at portion X to X on the backside of this Bill.
31. From the aforesaid statement of DW2, it is evident that accused has not been able to prove that he had purchased the sample CC No. 191/03 DA Vs. Sanjay Singhal Page 13 of 18 commodity from M/s Nihal Chand and Co. vide Bill Mark D1. DW2 Sh. Anil Goel who is the partner of M/s Nihal Chand & Co. from which the accused claims to have purchased the sample commodity though has admitted that the name of the Firm printed on the Bill Mark D1 is the name of their Firm, but he could not confirm the factum of issuance of the Bill Mark A by their firm or that any Dal Arhar was sold to the accused vide said Bill Mark D1. He even could not recognize the handwriting at the backside of the said bill nor he could confirm the fact that one Surender Jain was a commission agent in their firm at the time of sampling, who as per the accused was a broker and supplied the sample commodity to him from M/s Nihal Chand & Co. The accused could have examined the said Surender Jain to prove his contention that he had purchased the sample commodity from M/s Nihal Chand & Co. through said Surender Jain, but the accused has not taken any steps to examine the said person. Moreover, accused in his crossexamination though stated that Bill Mark D1 had been issued by Muneem of the firm M/s Nihal Chand & Co. but the accused even did not disclose the name of the said Muneem.
32. Therefore, it cannot be said that merely by producing the Bill Mark D1, the accused has been able to prove the same on record. The onus was upon the accused to prove that he had purchased the sample commodity from M/s Nihal Chand & Co. vide Bill Mark D1, but the accused has CC No. 191/03 DA Vs. Sanjay Singhal Page 14 of 18 miserably failed to prove the same. Therefore, accused cannot be said to be entitled for benefit U/s 19 (2) of PFA Act.
33. The present case has been launched against the accused on the basis of report of Public Analyst Ex. PW1/F. The Public Analyst vide his report Ex. PW1/F found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Pune dated 18.06.2003 was received. Perusal of same shows that sample does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955 because synthetic colour Tartrazine was detected in the sample.
34. However, it is to be noted that though as per report of Public Analyst (PA) and Director, Central Food Laboratory (CFL), the sample of Dal Arhar lifted from the accused failed as synthetic colour i.e. Tartrazine was detected in the sample, but a perusal of report of both the analysts shows that there are variations in both the reports.
35. As per report of Public Analyst (PA) Ex. PW1/F, the moisture determined by heating the pulverized grains at 130133 deg. C was CC No. 191/03 DA Vs. Sanjay Singhal Page 15 of 18 found to the tune of 7.15%, while Director, Central Food Laboratory found the same to the tune of 9.11%. Similarly, Public Analyst vide his report Ex. PW1/F found the damaged grain by fungus, moisture or heating internally to the tune of 0.08%, while Director, CFL found the same to the tune of 1.4%.
36. The variations in the report of aforesaid two Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
37. In view of law laid down in the aforesaid authorities, since there is variations in the report of Public Analyst (PA) and Director, Central CC No. 191/03 DA Vs. Sanjay Singhal Page 16 of 18 Food Laboratory which is beyond the permissible limit of .3 %, it appears that sample was not representative one and therefore, benefit of doubt is liable to be given to the accused.
38. From the evidence of PWs, it has also come on record that accused was running a retail shop and other food articles such as Haldi Powder, Mirch powder, Mehandi etc. were also being sold in the kiryana shop of the accused and there was only one Jhaba in the gunny bag from which the sample was lifted and same was not made clean and dry. Though, as per the PWs the Jhaba was already clean and dry, but since there was only one Jhaba and accused was also selling other food articles, the possibility of sticking some other food material with Jhaba cannot be ruled out as also contended by the accused.
39. Further, a perusal of report of Public Analyst Ex. PW1/F shows that Public Analyst has not disclosed the method applied for detecting the synthetic colour in the sample commodity. The Public Analyst was required to disclose the method applied for detecting the synthetic colour in the sample commodity and in the absence of disclosure of method, it is not ascertainable that how the Public Analyst reached to findings that sample was containing synthetic colour i.e. tartrazine.
40. While, the report of Director, Central Food Laboratory (CFL) CC No. 191/03 DA Vs. Sanjay Singhal Page 17 of 18 shows that Paper Chromatography method has been applied by the Director, CFL for detecting the artificial colouring matter in the sample commodity of Dal Arhar. The Hon'ble Punjab and Haryana High Court in Maya Ram Vs. The State of Punjab has held that paper chromatography test is not a sure test to detect the colour in the sample commodity. In the present case, no other method apart from the Paper Chromatography test has been applied by the Director, CFL to detect the adulteration or presence of colouring matter in the sample commodity. Therefore, in view of law laid down in the aforesaid authority cited supra, report of Director, CFL cannot be said to be a valid report.
41. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 27th May, 2013 ACMMII/ PHC/ New Delhi
CC No. 191/03
DA Vs. Sanjay Singhal Page 18 of 18
CC No. 191/03
DA Vs. Sanjay Singhal
27.05.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/27.05.2013 CC No. 191/03 DA Vs. Sanjay Singhal Page 19 of 18