Delhi District Court
M/S A. N. Traders vs Food Inspector on 28 March, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CR No. 42/11
M/s A. N. Traders,
Through it's A.R.
KFC, (a unit of M/s A. N. Traders Private Limited),
UA-38, Bunglow Road, Kamla Nagar,
Delhi-110008 ..... Petitioner
versus
Food Inspector,
Department of PFA,
Govt. of NCT Delhi,
A-20, Lawrence Road,
Delhi-110035 ..... Respondent
Date of institution of the appeal : 31.05.2011
Date of reserving judgment/order : 28.03.2012
Date of judgment / order : 28.03.2012
JUDGEMENT :
This criminal revision u/s 397 of Code of Criminal Procedure (hereinafter referred to as "Cr.PC") has been preferred against the order dated 26.04.2011 vide which the Ld. MM had proceeded with the trial under the Prevention of Adulteration Act.
The facts in brief are that on 19.12.2009 at about CR No. 42/11 Page No. 1 of 7 -2- 05.00 p.m., Food Inspector Dharmvir Singh had purchased a sample of 750 gms of "Refined Palmolein Oil" from the respondents and divided it into three parts and put into three clean and dry glass bottles and each bottle containing the sample was separately marked, packed, fastened and sealed according to PFA Act and Rules. One sample was then forwarded to Public Analyst, who filed his report dated 18.01.2010 wherein it was opined that the sample did not conform to the standard because Butyro refractometer reading and iodine value exceeded the prescribed maximum limit. On completion of investigations, the complaint was filed before the Ld. MM, who summoned the accused persons vide order dated 14.02.2011.
Aggrieved by the said summoning order, the present revision has been filed.
It is argued on behalf of the revisionist that the sample was taken by the Food Inspector on 19.12.2009 and the Public Analyst has given his report on 18.01.2010. However, the complaint has been filed in the Court only on 14.02.2011 i.e. after a period of about 1½ years and which has resulted in defeating the valuable right of the revisionist u/s 13 (2) of PFA Act. It is argued that the "Best Before Use Date"
for the oil was six months, while the complaint has been filed after 1½ year. This inordinate delay has defeated the right of the accused u/s 13 (2) of the PFA Act.
Ld. Special PP on behalf of the Department has argued that merely because the "Best Before Use Date" was CR No. 42/11 Page No. 2 of 7 -3- six months does not imply that the accused cannot exercise his right u/s 13 (2) of the Act and in case any prejudice is caused to the accused on account of delay in filing of complaint, he can avail the same at the appropriate stage. There is no ground for challenging the summoning of the accused by the Ld. MM and the present revision is liable to be dismissed.
During the pendency of the revision the accused had moved an application u/s 13 (2) of the Act before the Ld. MM and the second counter-part sample had been sent to CFL for examination and a report dated 31.12.2011 has also been received by the Trial Court.
The first argument of the ld. counsel for the revisionist had merely because the complaint has been filed beyond the "Best Before Use Date" of the sample defeats the right of the accused u/s 13 (2) of the Act is not tenable at the outset. Even if there is a delay in filing the complaint, the accused can still avail his right u/s 13 (2) of the Act and if the sample is found to have decayed or putrified, the benefit of the same obviously would go to the accused. The claim of the revisionist that because the complaint was filed after about 1½ years in itself cannot be accepted for discharging the accused.
However, the CFL report has been received in respect of the second counter-part and huge variations in the various components have been recorded. To understand the difference it would be appropriate to re-produce the same :CR No. 42/11 Page No. 3 of 7 -4-
Sr.No. Quality Characteristics PA Report CFL Report 1 Butyro-Refractometer Reading at 50 59.1 61.7 Deg C 2 Saponification Value 194.26 191.20 3 Iodine Value 120.94 124.37 4 Moisture 0.05% 0.08% 5 Acid Value 0.16% 1.57% 6 Rancidity ---- Positive The comparison of these two reports, therefore, show that there are huge variations in the various tests conducted by the Public Analyst and by the Director CFL.
The first thing which is conspicuous from comparison of two reports is that the sample when tested by Public Analyst did not report positive for Rancidity, while in the CFL the Rancidity test has come as positive.
On Rancidity, David Pearson in his Chemical Analysis for Foods - 7th Edition Page 949, says :
"Fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity. Rancidity is brought about by the action of air or by micro-organisms. Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of certain metals (e.g. Copper, nickel, iron)... With most oils and fats and free acidity increases during storage..."
Woodmen in his Food Analysis 4th Edn. p. 170 points out :
CR No. 42/11 Page No. 4 of 7 -5-"When acted on by the oxygen of the air, especially in the presence of light and moisture, free fatty acids are liberated and altered with the accompanying production of various aldehydes and acids of lower molecular weight having a disagreeable odour and acrid taste, the fat or oil then being terms 'rancid'."
The time gap between the Public Analyst report and that of Director, CFL, is more than one year which clearly indicates that the period of one year could have been the reason for Rancidity to have set in the sample of "Refined Palmolein Oil".
It had been observed in the case of "Nebh Raj v. State (Delhi Administration and Anrs.) SC on Food Adulteration Cases 1948 to 1997 at Page No. 632 in the Criminal Appeal No. 113/1975, decided on 24.10.1980"
that where the analysis by the Director, CFL, is done after a long lapse of time, the possibility of free fatty acid content increasing enormously due to oxidation due to storage cannot be ruled out.
The very fact that there is a gap of more than one year in the two reports clearly reflects that even though the sample may not have putrified, but would have undergone certain changes and, therefore, the second sample cannot be considered representative of the first sample.
This aspect was considered in the case of "MCD v. Ghisha Ram, AIR 1967 SC 970", wherein it was held that even after the certificate of CFL, it is open to the accused to CR No. 42/11 Page No. 5 of 7 -6- show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the Certificate will not be sustainable.
This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "Kanshi Nath v. State, 2005 (2) FAC 219 Delhi High Court", (which has been upheld by the Supreme Court in "Criminal Appeal No. 1158 (2007) vide Judgment dated 08.09.2011") and also in "MCD v. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court"..
In case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" again a reference was made to the case of "Kanshi Nath" and it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
Therefore, the huge variations in these values which have been found in the report of the Public Analyst and in the report of CFL indicate that the two samples were not representative in nature and the benefit of the same has to be extended to the accused/appellants.
It had been argued that delay in filing a prosecution was attributable to the accused but the record shows that the prosecution itself had filed the complaint in the CR No. 42/11 Page No. 6 of 7 -7- Court on 18.01.2011 i.e. almost after one year and one month and the accused immediately after being summoned has exercised his right u/s 13 (2) of the Act. There is nothing to show that the delay was attributable to the accused.
In view of the above discussion the two samples cannot be considered representative of each other and the benefit has to be extended to the appellants.
The appeal is hereby allowed. Conviction is hereby set aside and the appellants are acquitted. Bail-bonds and surety bond stands discharged.
Trial Court Record be sent back along with the copy of this order.
Appeal file be consigned to the Record Room. Announced in the open Court on 28th Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CR No. 42/11 Page No. 7 of 7