Delhi District Court
Da vs Amit Bansal on 15 April, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 210/03
DA Versus Amit Bansal
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 210/03
b. The date of the commission of the offence : 31.12.2002
c. The name of the Complainant, if any : F.I. Sanjeev
Kumar Gupta.
d. The name of the accused and his parentage : Amit Bansal S/o
Sh. Ved Parkash
Bansal, M/s
Suvidha Store, S.
No. A-3/172,
Sector-17,
Rohini, Delhi-85
e. The offence complained of or proved :u/s 2 (ia)(j) & (m)
of PFA Act and
also in violation of
the provision of
Rule 23 read with
Rules 28 & 29 of
PFA Rules
punishable u/s
16(1A) read with
Section 7 of the
PFA Act.
f. The plea of the accused :Pleaded not guilty
g. The final order :Convicted
h. Arguments heard on :15.04.2010
i. judgment announced on :15.04.2010
2
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector, Sanjeev Kumar Gupta against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 31.12.2002 at about 6:45 p.m., Food Inspector, Sanjeev Kumar Gupta purchased a sample of ' Dal Arhar ', a food article for analysis from Sh. Amit Bansal S/o Sh. Ved Parkash Bansal of M/s Suvidha Store, S. No. A-3/172, Sector- 17, Rohini, Delhi-85, where the food article was found store for sale and Sh. Amit Bansal was found conducting the business of the said food article at the time of sampling. The sample consisted of 750 gms of "Dal Arhar" (Ready for Sale) taken from small gunny bag bearing no label declaration. The sample was taken under the supervision/direction of Sh. Kartar Singh, SDM/LHA. The sample was taken after proper mixing Dal Arhar with the help of clean and dry Jhaba by rotating in all possible directions, clockwise, anti clockwise, up and down several times. The Food Inspector divided the sample commodity into three equal parts then and there by putting them into three clean and dry bottles. Each sample bottle was separately packed, fastened and sealed according to PFA Act & Rules. The Vendor signatures were obtained on the LHA slip and the wrapper of the sample bottle. Notice was given to Sh. Amit Bansal and the price of the sample was also given to him vide vendor receipt dated 31.12.02. Panchnama too was prepared at the spot. All the documents prepared by FI were signed by Sh. Amit Bansal and the other witness Sh. Kartar Singh, SDM/LHA.
3Before starting sample proceedings, efforts were made to join the pubic witnesses but none came forward, as such Sh. Kartar Singh, SDM/LHA was joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 10.01.2003 and opined that the sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act 1954 for institution of the case and authorised Food Inspector Sanjeev Kumar Gupta to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(j) and (m) of PFA Act and Rules 23, 28 & 29 of PFA Rules, punishable u/s 16 (1A) of the PFA Act read with section 7 of the PFA Act.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 7.5.03, accused Amit Bansal moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No.CFL/496/881/2003 dated 18.06.03 and opined that the sample does not conform to the standards of split pulse ( Dal) Arhar as per PFA Rule 1955.
46. Charge for contravention of provisions of Section 2 (ia)(j) & (m) of PFA Act and also in violation of the provision of Rule 23 read with Rules 28 & 29 of PFA Rules punishable u/s 16(1A) read with Section 7 of the PFA Act was framed against the accused on 29.11.04 to which he pleaded not guilty and claimed trial.
7. In support of its case, complainant examined PW-1 Sh. Kartar Singh, SDM/LHA & PW-2 F.I. Sanjeev Kumar Gupta.
8. Statement of accused was recorded under Section 313 Cr.P.C on 01.12.08 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred to lead evidence in his defence but despite several opportunities, accused failed to lead evidence in his defence and finally his DE was closed on 27.01.10.
9. As per Section 2 (ia)(j) of PFA Act, if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
10.As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11. It is true that the mensrea in the ordinary or usual sense of this 5 term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. On the other hand, Ld. Defence counsel argued that no public witness joined the sample proceedings Ld. Defence counsel further argued that no written notice was issued to the accused to disclose the source of purchase and the Food Inspector adopted wrong procedure of sampling.
Non-joining of Public Witness -Violation of Section 10(7) of the PFA Act:-
13. Section 10(7) of the PFA Act provides :-
Where the food inspector takes any action under clause
(a) of sub-section (1), Sub Section (2) Sub Section (4) sub section (6) , he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.
14.It is not the law that the evidence of a Food Inspector must necessarily need corroboration from independent witnesses. The 6 evidence of the FI is not inherently suspected, not should it be rejected on the ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchase in the manner prescribed under the Act is found adulterated, he is required to take action as per the law. He discharges the public duty. His evidence is to be tested on its own merits and if found acceptable, the court would be entitled to accept and rely on to prove the prosecution case. Reliance is placed upon the judgment reported as State of U.P. Versus Hanif, AIR 1992 SC 1121, The FI is a public servant. There is no cogent reason to disbelieve his evidence. Reliance is placed upon the judgment reported as Ram Gopal Aggarwal Versus S.M. Mitra 1989 (2) FAC 339, where outsiders who were present at the spot refused to cited as witness and went away, then the Food Inspector did not fault in calling independent witness. Reliance is placed upon the judgment reported as Laxmidhar Saha Versus State of Orissa 1989/(1) FAC 364.
15. In the judgment reported as Nagasuri Pullaha Versus State of A.P., 2003 Cri.L.J., 773, it has been observed that if the evidence of the FI is reliable and trust worth and supported by the public analyst report, it has no bar for believing the evidence of FI in the absence of examination of independent mediator. Corroboration must be insisted only if the evidence of FI is full of contradictions. There is no need to insist for examination of independent witnesses where FI evidence is reliable.
16.In the judgment reported as Food Inspector Versus Satyanarayan, 2002 (5) Supreme Court 373, it has been observed that section 11 of the PFA act prescribing procedure to be followed by Food Inspector for taking of sample of food does not provide for associating any other 7 person as witness for taking sample.
17.What has been enjoyed upon PFA officials is to include witnesses to the sampling proceedings and this has been shown in the present case. It has been held time and against by various courts that nowadays it is a common tendency that no outsider would like to get involved into criminal case much less in the crime of present magnitude and therefore, it is quite natural that no independent witness would come forward to assist the prosecution. Even otherwise, it has been held in various pronouncements that the testimony of the Food Inspectors alone is sufficient to prove the case if it is credible, reliable and can be acted upon.
18.In the judgment reported as Sukhbir Singh Versus The State, 2002(2) JCC 9 was observed that it is a matter of common knowledge that members of public were hesitant in joining as witnesses. Merely, because the public witnesses not joined, the prosecution case can not be thrown out. As per the settled law, Section 10(7) is not mandatory, it is evidentary in character. The complainant Sub-section (7) would be necessary for satisfying the court that the required sample was taken as alleged by the prosecution. The compliance becomes unnecessary when the accused himself admits the taking and sealing of the sample by the Food Inspector.
19.In the present case, PW-2 F.I. Sanjeev Kumar Gupta has deposed that he made efforts to join public witnesses by requesting passers- by customers, and neighbours but none agreed. PW-1 Sh. Kartar Singh, SDM/LHA also deposed that F.I. Sanjeev Kumar Gupta tried to associate some public witnesses by requesting some passers-by customers, and neighbours but they refused. In his statement under 8 Section 313 Cr.P.C, accused has not denied that on 31.12.02 sample of Dal Arhar was lifted and sealed from his shop by the Food Inspector, Sanjeev Kumar Gupta . Relying upon the authority 2002(2) JCC 9 (Supra ) when the lifting and sealing of the sample in the presence of accused is not denied, I am of the considered opinion that the non - joining of the public witness does not vitiate the present trial.
Violation of Section 14A of PFA Rules.
20.Ld. Defence counsel has vehemently argued that no written notice was issued to the accused by the Food Inspector to disclose the source of purchase. On the other hand, Ld. SPP argued that Food Inspector inquired from the accused at the spot to disclose the source of purchase but the vendor did not disclose the same and it is not mandatory for the Food Inspector to ask the source of purchase by giving written notice and vendor can disclose it while signing the documents prepared at the spot. Admittedly, accused put his signatures on the documents Ex. PW1/A to C and also furnished his statement Ex.PW1/D at spot but he did not mention the name of the alleged supplier, volunteerness of these documents was not disputed. Accused has also taken the defence in his statement under Section 313 Cr.P.C that he used to purchase Dal Arhar from M/s Bindal Traders but the Food Inspector declined to accept the same on the ground that the sample was lifted from open gunny bag and it could not be connected to the Bill of M/s Bindal Traders. It is a matter of record that even the Bill of alleged purchase is not filed on judicial record. No explanation has come on record that even if it is presumed that Food Inspector refused to accept the Bill of purchase, what prevented the accused for filing the original bill of purchase on judicial record. Therefore, I 9 am of the considered opinion that there was no bill of purchase with the vendor as to why the same was not given to the Food Inspector or filed on judicial record, and as such there is no violation of Rule 14A of PFA Rules.
Whether the Food Inspector adopted wrong procedure of sampling.
21. Ld. Defence counsel argued that the Food Inspector adopted wrong procedure of sampling. On the other hand, Ld. SPP argued that FI after proper mixing the sample commodity with the help of clean and dry Jhaba lifted the sample and there is no specific procedure provided in the PFA Act and Rules. PW-2 F.I. Sanjeev Kumar Gupta deposed that before taking the sample, Dal Arhar was mixed properly in the gunny bag with the help of clean and dry Jhaba by rotating it in all possible directions i.e clockwise, anticlockwise, upward and downwards. This fact is also mentioned in the complaint Ex. PW1/J. PW-1 Sh. Kartar Singh, SDM/LHA also deposed that sample commodity was lifted after proper mixing with the help of clean and dry Jhaba by rotating it in all possible directions several times. Ld. Defence counsel failed to show how the sample procedure was wrong, even a suggestion to this effect was not given to the main Food Inspector when he was in the witness box. The testimony of PW-2 F.I. Sanjeev Kumar Gupta that the sample commodity was taken after properly mixing with the help of clean and dry Jhaba and as also mentioned in the Notice in form VI Ex.PW1/B which was prepared at the spot appears to be reliable and there is no reason to disbelieve the same. Therefore, I am of the considered opinion that the procedure of lifting the sample was proper.
10Whether sample is representative:
22. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. SPP further argued that both the Analysts found synthetic colouring matter tartrazine in the sample commodity which itself shows that the sample was representative. In an authority reported as 2009 (1) JCC 258 titled as State Vs. Satender Kumar, it was held by Hon'ble Mr. Justice Manmohan , High Court of Delhi and I quote:
'' Para 6- I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter, the learned M.M's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter. ''
23. In the present case, as per report of the Public Analyst, sample commodity was found non-conforming to standard because it was found coloured with synthetic colouring matter viz. Tartrazine. Director, CFL also found added colouring matter tartrazine. Therefore, I am of the considered opinion that the sample was representative.
Opinion of Director, CFL
24. On 7.5.03, accused Amit Bansal moved an application to get the second counterpart of the sample analysed from the Director, CFL 11 while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No.CFL/496/881/2003 dated 18.06.03 and opined that the sample does not conform to the standards of split pulse ( Dal) Arhar as per PFA Rule 1955.
25. No doubt, the Certificate of Director, CFL shall supersede the report of the Public Analyst and shall be final and conclusive evidence of the facts stated therein.
26. In an authority reported as 1991 (1) FAC 8 titled as 'Calcutta Municipal Corporation Vs. Pawan Kumar Saraf & Others , it was held by the Hon'ble Supreme Court as under :-
'' 14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is '' conclusive proof''. '' When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.''
15.Thus the legal impact of a Certificate of the Director of Central Food Laboratory is three-fold. It annuls or replaces the report of the Public Analyst , it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. '' 12
27. The next contention of the Ld. Defence counsel is that the tartrazine is a water soluble colour and can be washed away if the Dal is washed prior to cooking. Rule 23 of the PFA Rules prohibits addition of colouring matter to any article of food except as specifically permitted. Further Rules 29 of PFA Rules 1955 provides that use of permitted synthetic food colours is prohibited except those food articles provided from sub-clause (a) to (h) of Rule 29 and Dal Arhar does not come therein meaning thereby, that even use of permitted synthetic food colours is prohibited in Dal Arhar. Both the Analysts found tartrazine in the sample commodity. Therefore, I am of the considered opinion that complainant has proved beyond reasonable doubt that sample of Dal Arhar sold by accused Amit Bansal to F.I Sanjeev Kumar Gupta on 31.12.2002 was not of the nature and quality as represented to be and was adulterated because it was coloured with synthetic colouring matter viz tartrazine, use of which is prohibited in Dal Arhar as per Rule 29 of PFA Rules, 1955. Therefore, I held the accused guilty for violation of sub-clause (j) & (m) of Section 2(ia) punishable under Section 16(1A) read with Section 7 of PFA Act. In result, accused stands convicted thereunder.
Announced in the open court. ( S.K. MALHOTRA ) Dated:15.04.2010 ACMM-II/NEW DELHI.