Delhi District Court
In Re vs Dinesh Kumar Maheshwari on 3 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 99/11
Unique Case ID No. 02403R0045822011
Date of Institution: 25.05.2011
Date of reserving judgement: 28.06.2016
Date of pronouncement: 03.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA, Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Dinesh Kumar Maheshwari
S/o. Sh. Ram Parshad Maheshwari
R/o. 16/18-H, Tank Road, Karol Bagh,
New Delhi-110005 ... 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 Dinesh Kumar Maheshwari is stated to be the vendor-cum-proprietor of M/s. Ram Parshad Kiryana Store, from where the food article, that is, 'Kali Mirch Whole' was lifted for sampling.
CC No. 99/11 Page 1 of 162. As per the complaint, on 15.04.2011, the food officials consisting of Food Inspector (FI) C.B. Boora and Field Assistant (FA) Ranjeet Singh under the supervision of Local Health Authority (LHA) / SDM Sh. Girish Pandey reached along with their staff at the premises of M/s. Ram Parshad Kiryana Store at 16/32H, Tank Road, Near Water Tank, Karol Bagh, New Delhi-05, 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 Kali Mirch Whole from the vendor, as lying in open plastic jar bearing no label or 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, etc. The price of sample was paid to the vendor vide vendor's receipt. 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 25.04.2011, the PA found the sample to be adulterated on the ground that it contained mineral oil. 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 25.05.2011 alleging violation of section 2(ia)(a), (b) and (m) of PFA Act as well as section 2(ix)(d) of PFA Act read with Rule 44-AAA of PFA Rules, as punishable under section 7/16(1)(a) of PFA Act.
CC No. 99/11 Page 2 of 163. 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 25.05.2011. The accused appeared but chose not to file any application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). Vide order dated 10.06.2011, the court had specifically inquired from the ld. Defence counsel as to if the accused wanted to exercise such right, which was replied in negative.
4. On the basis of PA report, notice of accusation under section 251 CrPC was framed against the accused on 21.07.2011 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (b) and (m), to which he pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined three witnesses in support of its case. PW-1 FI C. B. Boora, PW-2 Sh. Girish Pandey (the then SDM/LHA) and PW-3 FA Ranjeet Singh, were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 15.04.2011 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 1500 gms of Kali Mirch Whole lying in an open plastic jar bearing no label declaration, mixing it using a clean and dry steel spoon, dividing it in three parts, sealing and marking the samples and obtaining signatures of vendor and witnesses. They also proved the CC No. 99/11 Page 3 of 16 necessary documents including the vendor's receipt Ex. PW-1/A vide which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C and Raid Report Ex. PW-1/D. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, investigation was carried out by PW-1. During investigation, accused submitted his written statement Ex. PW- 1/H. The FI also sent a letter Ex. PW-1/I to the STO and its reply sought. Thereafter, sanction Ex. PW-1/J was obtained from the then Director PFA and the complaint Ex. PW-1/K was filed in the court. Copy of PA report and intimation letter Ex. PW-1/L were sent to the accused through registered 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 17.05.2016 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 15.04.2011, yet he claimed that the PA report was wrong. He admitted the sample proceedings and also issuance of intimation letter but took a stand that there was no adulteration in the article. He chose not to lead evidence in defence.
7. 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 CC No. 99/11 Page 4 of 16 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings of the PA report dated 25.04.2011. 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. The prime argument of the Ld. Defence Counsel is that percentage or extent of mineral oil has not been mentioned in the report of the PA and it might be possible that only its traces were present which would not be an offence in view of the law laid down in judgements titled as Khushi Ram v. State [1984(II) PFA Cases 256], State v. Kharati Lal [2009 (II) FAC 50] and State v. Dwarka Dass [2007 (I) FAC 229]. It is further contended that the accused was only a retail shopkeeper and not the manufacturer of the product and also that the contamination in the form of kerosene oil evaporates in the atmosphere and settles on food commodities in negligible quantities without any human intervention.
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), (b) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the CC No. 99/11 Page 5 of 16 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, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(b) of PFA Act requires that the food article contains any substance affecting injuriously the nature, substance or quality thereof. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
11. To begin with, it is seen that the accused has disputed the factum of his being the vendor-cum-proprietor of the shop in question. The accused has not questioned the fact that the shop in question belonged to him or that he was the proprietor of the business concern responsible for its affairs. It is not his case that he was not the owner of the said business concern or was not responsible to ensure compliance of PFA Act and Rules. No such stand has been taken by the accused at the trial or in his statement under section 313 CrPC.
12. It is then not the case of the defence that the food article in question was not meant for sale for human consumption. It is nowhere the stand of the accused that the food article was not a finished or final product or was not for sale or was for his own use as consumer. The food articles were lying at the shop of the accused and the article was sold to the food officials against monetary consideration as per the vendor's receipt Ex. PW-1/A. CC No. 99/11 Page 6 of 16
13. The commodity in the present case is Kali Mirch Whole (Black Pepper Whole) which is a standardized food article falling in Item No. A.05.17 of Appendix-B of PFA Rules. Specific standards have been prescribed statutorily which are required to be complied with by every person selling the said product.
14. The incriminating material in this case is the presence of mineral oil in the food. Though Rule 44-AAA generally provides that "No person shall sell... food articles which have been coated with mineral oil, except where the addition of mineral oil is permitted in accordance with the standards laid down in Appendix-B", yet Item No. A.05.17 specifically provides "The product shall be free from added colour, mineral oil and other harmful substances". It is nowhere the case of the defence that the said Rule or standards are not applicable to the food article in question.
15. The case of the prosecution is based on the PA report. It is important to note that the accused has chosen not to exercise his right under section 13 (2) of PFA Act to get the sample analyized from CFL. It is not his case that the PA report with intimation letter were not sent to or received by him. No such stand was taken by the accused during the entire trial nor any such defence was suggested to any witness. PW-1 and PW-2 deposed that the copy of PA report with intimation letter were sent to the accused through registered post and such a fact deposed by them was never rebutted or denied by the accused. Though the record shows that the original postal receipt was not filed on record and only a CC No. 99/11 Page 7 of 16 photocopy Mark-X was furnished by the prosecution, yet it is to be understood that this fact has never been denied by the defence. Not even a single suggestion was given to any PW that the letter was not so sent or was sent at some incorrect address. No PW was ever required by the accused to produce any such letter or receipt and it is not the case that any witness had failed to produce it despite demand. Rather the accused in his statement under section 313 CrPC categorically admitted the fact that the letter and report had been sent to him. It is also clear that the accused voluntarily gave up his right to get the sample anlayzed through CFL as is also clear order dated 10.06.2011. It is nowhere the case of the accused, at the time of trial or even during the arguments, that his right under section 13 (2) PFA Act stood frustrated due to any act on the part of the complainant / prosecution. The accused has chosen to contest the matter only on the PA report.
16. In the present case, the PA failed the sample on account of presence of mineral oil. As per Item no. A.05.15 of Appendix-B of PFA Rules, the product in question has to be free from mineral oil. Hence, no mineral oil could be added to Black Pepper Whole and use of any mineral oil is absolutely prohibited. Reliance can be also placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] which pertains to food grains and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] the law laid down in which are squarely applicable to this case as well.
CC No. 99/11 Page 8 of 1617. At this stage, it is necessary to delve into the law laid down in the judgement titled as Khushi Ram v. State [1984(II) PFA Cases 256] as strongly relied upon by the defence. In that matter, the Hon'ble Court was dealing with a sample of 'Bari Elaichi' where mineral oil was found present. Testing it for violation of sections 2(ia)(a) and (b) of PFA Act, the Hon'ble Court held that since percentage / quantity / proportion of mineral oil was not given, it was possible that the same was negligible so as not to cause prejudice to the purchaser as per section 2(ia)(a) or to injuriously affect the nature, substance or quality of product under section 2(ia)(b).
18. This judgement was passed on 08.10.1984. However, subsequently, Rule 44-AAA was introduced in PFA Rules in the year 1990, which provided that no food article coated with mineral oil can be sold, except as permitted by the Appendix-B.
19. The point however to be noted is, that in the aforesaid judgement, the sample of Badi Elaichi was governed by the standards laid down in Item No. A.05.04 of Appendix-B. As per this Item No. A.05.04, "The product shall be free from added colouring matter and any harmful substances". This standard of Bari Elaichi as per Item No. A.05.04 is apparently different from standard of Kali Mirch Whole as per Item No. A.05.17 which specifically provides "The product shall be free from added colour, mineral oil and other harmful substances", in as much as mineral oil has been specifically provided to be a violation.
CC No. 99/11 Page 9 of 1620. From conjoint reading of these provisions, it would emerge that for Rule 44-AAA to apply, there has to be "coating" of mineral oil, for which quantity / percentage / proportion would be necessary to be mentioned because a negligible quantity may not be sufficient to be called as a coating. Rule 44-AAA is not restricted to any particular food article and applies generally to every food article for sale. This would however not apply to those food articles where use of mineral oil has been permitted by PFA Rules.
21. But Item No. A.05.17 which deals with Black Pepper Whole, specifically provides that the said product shall be free from mineral oil. This provision is not governed by Rule 44-AAA and operates independently. To establish violation of Item No. A.05.17, it is not necessary to establish that there was a "coating" of mineral oil on Black Pepper Whole as required by Rule 44-AAA. No such restriction was there even before Rule 44-AAA came into existence when Item No. A.05.17 was very much there. Thus, no quantity of mineral oil is permitted to be used in case of Black Pepper Whole, though for other food articles it has to be established that there was a coating of mineral oil.
22. Having said so, it is immaterial to go into the question as to what was the percentage or quantity or proportion of mineral oil used in the sample of Black Pepper whole. Even if the said quantity is in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as mineral oil is not permitted within any limits for use in this food article. In any case, it would be for the accused to show as to on CC No. 99/11 Page 10 of 16 what basis he claims presence of such mineral oil in traces in food article in question. The burden would upon be him to show how even traces of mineral oil could have entered the food articles being sold by him. But no evidence has been led by the accused to establish this fact. Mere bald averments and hypothetical assumptions, that some unburnt vapours of mineral oil emitted by vehicular traffic (as suggested to PW-1 and PW-3) or kerosene oil automatically evaporated from the neighbouring shop of the accused (as suggested to PW-2) had settled on the food article, would have no takers. No specific and certain evidence has been brought on record to this effect and accused cannot be given benefit on such a vague assumption.
23. This would also answer the argument of the Ld. Defence Counsel that the PA had not categorised food grade and non food grade mineral oil. Even if such a stand is accepted (though there is no evidence to this effect because neither the PA had been opted to be cross-examined by applying under section 293 CrPC, nor any expert witness has been examined in defence), still it would be clear that such a distinction would not apply in case of Black Pepper Whole. As clear from the language of Rule 44- AAA, mineral oil is permitted to be used in some food articles as provided in Appendix-B. It is only in those articles that food grade mineral oil would be permitted. Non food grade mineral oil would not be permitted even in those food articles. And neither food grade nor non food grade mineral oil would be permitted for use in case of Kali Mirch in view of Item No. A.05.17 of Appendix-B. Therefore, there was no necessity for the PA to have mentioned such details in his report as mere presence of CC No. 99/11 Page 11 of 16 mineral oil in Kali Mirch would be a violation, irrespective of the fact if it was food grade or non food grade. In any case, if the accused still required clarification, he should have applied under section 293 CrPC and opted to cross-examine the PA who had examined the sample on any point on which his report is silent. The report only shows the final results and the detailed steps, procedures adopted and detailed figures are maintained separately by the analysts in their records. When the accused has not exercised the option as available to him, he cannot choose to question the report on hypothetical assumptions without affording any opportunity to the scientific expert to explain or deny his stand.
24. Thus, there is no reason to disbelieve the report of the PA. For that matter, even the accused has not questioned the correctness of the report on any ground. It is not his case that the report is wrong or that any method of analysis was wrong or that there was any other technical defect in the same. It is rather seen that the accused has tried to justify the presence of mineral oil on the ground that it was on account of atmospheric contamination. Well, by putting such a stand, the accused has rather accepted the presence of mineral oil in the sample and has lost the right to claim that there was no such mineral oil. It is now upon him to prove by leading positive evidence that certain facts existed on the basis of which such presence of mineral oil may not be attributed to him. However, his stand is very vague and general in nature without any evidenciary support and moreover, no such stand has been taken by him in his statement under section 313 CrPC and no evidence in defence was led by him to establish such a defence. If such a stand is to be believed, then CC No. 99/11 Page 12 of 16 the accused should have been also prosecuted for not storing the food article in safe condition for sale so as to prevent adulteration. There is no evidence on record to show that the presence of mineral oil was a natural consequence or a result of something which was beyond the control of the accused. Therefore, no benefit can be given to the accused on this count.
25. Now the defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. All the witnesses narrated in one voice the steps taken by them during the sample proceedings. PW-2 deposed that the sample bottles were already clean and dry but were again cleaned at the spot with the help of a cloth before putting the commodity therein. No questions to this effect were put to PW-1 or PW-3 and therefore there is no contradiction whatsoever in their testimony.
26. It is again not a defence that the commodity was not properly homogenised by the FI. No such stand was taken at the trial. Ordinarily, homogenisation is required so as to evenly distribute the ingredients of the commodity so as to make the sample representative of each other. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk contains deadly poison which is a prohibited substance, then any minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is CC No. 99/11 Page 13 of 16 homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect. Thus, as far as mineral oil is concerned, its very presence is incriminating and even the best possible distribution of mineral oil would have not made any difference. When the sample of Kali Mirch Whole is to be tested for presence of mineral oil, which is a prohibited substance for use in this product, then any homogenization would be immaterial. Even if properly homogenized, such mineral oil would still be there, though evenly distributed, which would be an offence in any case. Thus, there is no merit in the contention that the sample was not properly homogenised, as any such method would have given no benefit to the accused.
27. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they CC No. 99/11 Page 14 of 16 are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc.
28. The judgements relied upon by the accused would also not help him. The cited ruling titled as State v. Kharati Lal [2009 (II) FAC 50] and State v. Dwarka Dass [2007 (I) FAC 229] were primarily the appeals against acquittal in which there is limited scope of intervention, as explained in these judgements only. In any case, when a prohibited ingredient is found in the food article, as in the present case, there would be a violation. The judgement of Khushi Ram v. State [1984 (2) FAC 256] which was relied in these judgements is clearly distinguishable when the item number of Appendix-B of PFA Rukes under which the commodities fall are compared.
29. No other stand has been taken by the accused at the trial or during the arguments advanced.
CC No. 99/11 Page 15 of 1630. The case in hand would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that it was not of the nature, substance or quality which it is purported to be, and section 2(ia)(m) of PFA Act as the content of mineral oil is present in quantities not within the prescribed limits, being totally prohibited. However, in the absence of quantity or percentage of mineral oil, it cannot be said that the extent of mineral oil was affecting injuriously its nature, substance or quality thereof and in such position, the court cannot conclude that there is a violation of section 2(ia)(b). No such fact can be ascertained even from the PA report.
31. Having said so, it can be said that the complainant has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(a) and (m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
32. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.
33. Let the matter be listed for arguments on sentence.
Announced in the open court this 3rd day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 99/11 Page 16 of 16