Delhi District Court
Delhi Administration / Food Inspector vs Kewal Krishan Gautam on 17 November, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 65/10
Unique Case ID No. 02403R0118352010
Date of Institution: 06.04.2010
Date of reserving judgement: 29.09.2016
Date of pronouncement: 17.11.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Kewal Krishan Gautam
S/o. Sh. Dulo Chand
R/o. WZ-177/178, Gurunanak Nagar,
Tilak Nagar, New Delhi-110018 ... 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. Gautam Sweets, from where the food article, that is, 'besan ki burfi' was lifted for sampling.
CC No. 65/10 Page 1 of 132. As per the complaint, on 12.10.2009, the food officials consisting of Food Inspector (FI) Shashi Bhusan Sharma and Field Assistant (FA) D. N. Verma under the supervision of Local Health Authority (LHA)/SDM Sh. Pramod Kumar reached along with their staff at M/s. Gautam Sweets at WZ-177/178, Gurunanak Nagar, Tilak Nagar, New Delhi-110018, 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 besan ki burfi from the vendor, lying in open tray 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, 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 30.10.2009, the PA found the sample to be adulterated because total dye content of the synthetic colour used exceeded the prescribed maximum limit of 100ppm. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the 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 06.04.2010 alleging violation of section 2(ia)(j) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.
CC No. 65/10 Page 2 of 133. 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 06.04.2010. 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 analysed from the 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 04.05.2010, opining the sample to be in violation of Rule 30 of PFA Rules due to presence of synthetic colour tartrazine in excess of permissible maximum limit of 100ppm.
4. On the basis of CFL report, notice of accusation under section 251 CrPC was framed against the accused on 04.06.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act being violation of Rule 30 of PFA Rules, to which he pleaded not guilty and claimed trial.
5. At the trial, complainant examined two witness in its support. PW- 1 Sh. Pramod Kumar (SDM/LHA) and PW-2 FA D. N. Verma were part of the team that had visited the spot for sample proceedings, along with FI S. B. Sharma (who had expired before he could be examined). Both these witnesses deposed about the proceedings conducted by them on 12.10.2009 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 Besan Burfi after breaking it into smallest possible pieces, mixing/homogenizing it, dividing it in three parts and putting in clean and dry bottles, putting 40 CC No. 65/10 Page 3 of 13 drops of formalin in each bottle as preservative, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor. They also proved the necessary documents including the vendor's receipt Ex. PW- 1/A, 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 and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out by FI S. B. Sharma (since expired). Thereafter, sanction Ex. PW-1/G was taken from the Director PFA and the complaint Ex. PW-1/H was filed in the court. Intimation Letter Ex. PW-1/I was sent to the accused along with copy of PA report through post. The witnesses were duly cross-examined by the defence wherein they denied that the sample method was not proper or that the accused had been falsely implicated.
6. Statement of the accused under section 313 CrPC was recorded on 29.04.2015 wherein he denied the allegations and pleaded innocence. He claimed that no spoon was used by the FI and that he had used unclean hands to break the commodity. He disputed the reports of chemical experts on the ground that proper method of analysis was not used and that there are variations between the two. He claimed that representative sample was not taken and that he had used colour within prescribed limits. He however did not lead any evidence in defence.
CC No. 65/10 Page 4 of 137. 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 04.05.2010 which as per section 13(3) and (5) 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. It is pointed out that the sample was broken with hands which is not a proper method. Ld. Counsel has contended that there is variation in the reports of the PA and CFL, in as much as PA found the colour content to be 239.62 ppm but CFL found the same to be 113.031 ppm and therefore, the samples were not representative.
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 seen that the notice framed against the accused persons is for violation of Rule 30 PFA Rules, as punishable under section 16(1)(a) of the Act. Though not specifically mentioned in the notice, violation of Rule 30 would be covered under section 2(ia)(a) and (m) of the PFA Act. For section 2(ia)(a) PFA Act, the prosecution has to establish that the CC No. 65/10 Page 5 of 13 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)(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. It is to be noted that the accused is not facing trial for violation of section 2(ia)(j) which specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability, which is punishable under section 16(1A) of the Act.
11. The commodity in the present case is Besan ki Burfi, which is not a standardized food article falling under any of the items under Appendix-B of PFA Rules. It is a proprietary item as per Rule 37-A of PFA Rules.
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 CC No. 65/10 Page 6 of 13 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.
14. 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], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
15. 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 CC No. 65/10 Page 7 of 13 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.
16. Therefore, it can be safely said that 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, he would get benefit on that count.
17. The incriminating material in this case is the presence of artificial synthetic food colours in excess of the prescribed limits. As per Rule 23 of PFA Rules, the addition of colouring matter to any article of food except as specifically permitted by the rules, is prohibited. Rule 28 provides for the food colours that are permissible for use. Rule 29 provides for the food articles where such use is permitted and clause (b) permits the use of food colours in sweets. Rule 30 on the other hand prescribes the maximum limit of such food colours to be used in those articles where such use is permitted. Except in case of clause (c) of Rule 29, the maximum limit of food colour permitted is 100 ppm (parts per million) in the final food for consumption.
18. It is nowhere the case of the said Rule is not applicable to the food article in question. Besan ki Burfi falls in the category of 'sweets' and would be governed by the Rules relating to food colours, irrespective of the fact that Besan ki Burfi as such is not a standardised food article. It CC No. 65/10 Page 8 of 13 cannot be said that no standards have been prescribed for Besan Burfi for which no prosecution can lie. Standards have been prescribed with respect to use of food colours and all the food articles are required to maintain those standards.
19. In the case at hand, there is apparent variation between the reports given by the PA and CFL. The PA found the colour content to be 239.62 ppm but CFL found the same to be 113.031 ppm. Thus, there is a difference of 126.589 ppm colour in the two reports. Well, in my considered view, such a huge difference between the two reports would weaken the prosecution case.
20. It can be taken a note of that the nature, substance, quality or quantity of synthetic colours do not change with passage of time as in case of natural colours. It is not that during the intervening period between the two reports, some colour content would have developed in or vanished from the food article. In such a case, the prosecution has not explained any reason how there is such a huge difference between the two reports. If the food article had been properly homogenised so as to evenly distribute all its ingredients, there was no occasion for such a vast difference in the two reports. Marginal differences can still be understood but not such wide differences. The only conclusion would be that either the sample was not properly homogenized or there was some error in sampling method. In any case, benefit has to be given to the accused. Reliance can be safely placed on judgements titled as Food Inspector v. Virender Kohli [2014(2) FAC 223], Food Inspector v. Mukesh Kumar [2014(2) CC No. 65/10 Page 9 of 13 FAC 430], Food Inspector v. Ram Gopal [2015(1) FAC 372] and Food Inspector v. Harsh Goel [2014(2) FAC 181] which are squarely applicable to the facts of the present case, as these precedents also deal with differences in the two reports on the point of extent of synthetic colours used in the food articles.
21. In a criminal trial, the burden is upon the complainant / prosecution to establish its case beyond the shadow of reasonable doubt. To bring home the guilt of an accused, it has to stands on its own legs and lead positive evidence. Mere suspicion, howsoever strong it might be, cannot take place of proof required to establish guilt of an accused. This burden has to be discharged by the prosecution and it cannot be shifted upon the accused.
22. The present case is based only on the testimony of food officials. There is no independent public person joined by the officials in the sample proceedings as provided by section 10(7) of PFA Act. The court is well aware of the reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments and that non joining of such witnesses would not negate the testimony of official witnesses, but in such a case, the testimony of such witnesses has to be otherwise truthful, corroborative and credit worthy. Such evidence should be free from fatal inconsistencies and contradictions.
CC No. 65/10 Page 10 of 1323. But in the present case, there are glaring contradictions appearing in the testimony of PWs which cannot be said to be minor in nature which could be ignored easily.
24. PW-1 stated that the burfi was weighed but putting it directly in a pan scale. But PW-2 stated that the commodity was put in a brown envelope for weighing. And in both the contradictory versions, there is no averment that the surface of the pan scale or the brown envelope was clean or not. Pan scale is ordinarily used to weigh all the articles at any shop. In that case, if the food article was put on it directly, as stated by PW-1, without any evidence that its surface was made clean and dry, there would be a missing link fatal to the case.
25. Again, PW-1 stated that the spoon used by them was made clean and dry at the spot with the help of a cloth provided by the vendor. But contradicting him, PW-2 stated that the spoon was already provided in a clean and dry condition and it was therefore not cleaned at the spot. Thus, there is unexplained variation in the two versions which make the prosecution case all the more doubtful.
26. Further, according to PW-2, the vendor had put the commodity in the brown envelope with his hands. Well, even such a procedure was not proper particularly when there is no evidence that the hands were made clean and dry before lifting the commodity. If PW-2 is to be believed, then the FI should have ensured that the hands of the vendor were clean and dry or otherwise he should have used a clean and dry spoon to lift the CC No. 65/10 Page 11 of 13 sample. Such a procedure as adopted by FI creates doubt as to its correctness. Hands of any persons are prone to all kinds of contamination every moment. They are used constantly for innumerable purposes. They remain in contact with natural atmosphere, dust, air, etc. and are open to contamination whenever they are used to lift any article or touch any other thing or person. Hands cleaned at one point of time may not be said to be clean and dry after a short period even if no dust as such is lifted by hands. In such a position, it was incumbent for the food officials that to ensure correct sampling, either a clean and dry utensil is used to pick and break sample commodity, or otherwise to have cleaned and dried the hands immediately before lifting the sample. Thus, such sampling method does not appear to be correct and proper and is sufficient to give benefit to the accused.
27. With such contradictory and uncorroborated evidence, it would not be safe to rely upon the sole evidence of the official witnesses (that too when the FI could not be examined due to his death) to establish guilt of the accused. Possibility of improper sampling method and procedure cannot be ruled out.
28. In view of the above discussed circumstances, this court is of the view that the complainant in this case has not been able to establish beyond the shadow of reasonable doubt that the accused had sold or stored for sale any adulterated food article. The accused is entitled to be given benefit of doubt.
CC No. 65/10 Page 12 of 1329. Having said so, the accused is acquitted of the charges. However, his bail bond shall remain in force for the next six months in terms of section 437-A, CrPC.
30. File be consigned to the record room.
Announced in the open court this 17th day of November 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 65/10 Page 13 of 13