Delhi District Court
As ' State vs . Inderjeet Singh & Others' It Was Held By ... on 8 June, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 106/02
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Harbans Singh S/o Late Sh. Dulha Singh,
M/s Akali Store, 8759,
Multani Dhanda, Pahar Ganj, New Delhi-55
R/o 9133, Gali No.3, Multani Dhanda,
Paharganj, New Delhi-55
JUDGMENT
Date of Institution : 11.11.02 Date of reserving judgment : 08.06.2010 Dated of Pronouncement : 08.06.2010 U/S: 2 (ia)(a)(f) & (l) of PFA Act punishable under Section 16(1A) read with Section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through C.C. N0. 106/02 1 Food Inspector M.K. 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 25.09.01 at about 6:00 p.m., Food Inspector, Virender Singh purchased a sample of 'Suji' a food article, for analysis from Sh. Harbans Singh S/o Late Sh. Dulha Singh of M/s Akali Store, 8759, Multani Dhanda, Pahar Ganj, New Delhi, where the said food article was found stored for sale and Sh. Harbans Singh was found conducting the business of the said food article at the time of sampling. The sample consisted of 600 gms Suji ( ready for sale ) taken from an open gunny bag having no label declaration on it. The sample was taken under the supervision/direction of Sh. Surender Kumar, SDM/LHA. The sample was taken after proper mixing the ' Suji' with the help of clean and dry Jhaba. The Food Inspector divided the sample commodity into three equal parts then and there by putting into three clean and dry bottles. Each sample bottle was separately packed, fastened, and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Harbans Singh and the price of the sample was also given to him vide vendor receipt dated 25.9.2001. The Panchnama was prepared at the spot. All the documents prepared by the Food Inspector were signed by the accused Harbans Singh and the other witness C.C. N0. 106/02 2 Shri N.N. Sharma, F.I. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. N.N. Sharma, F.I 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 04.10.01 and opined that the sample is Adulterated because it is insect infested with number of living and dead insects.
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 for institution of the case and authorised Sh. M.K. Gupta, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia) (a) (f) & (l) which is punishable U/s 16 (1A) 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 4.12.02, accused Harbans Singh 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 C.C. N0. 106/02 3 counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No. CFL/55/220/03 dated 15.2.03 according to which the sample does not conform to the standards of Suji as per PFA Rules 1955 as the sample contains abundant living insects and abundant dead grubs, it is unfit for human consumption.
6. Charge for contravention of provision of Section 2 (ia)(a)(f) & (l) of PFA Act punishable under Section 16(1A) read with Section 7 of the PFA Act was framed against the accused separately on 14.01.09 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. Surender Kumar, SDM/LHA ; PW-2 F.I. Virender Singh ; PW-3 F.I. M.K. Gupta & PW-4 F.I. N.N. Sharma.
8.As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
9.As per Section 2 (ia)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
C.C. N0. 106/02 410. As per section 2 (ia)(l) of PFA Act, 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 renders it injurious to health.
11. It is true that the mensrea in the ordinary or usual sense of this 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, written submissions, 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. Counsel for the accused has vehemently argued that live insects were found in the counterparts of the sample by the Director, CFL, Pune, after about six months from the day of sampling which itself shows that the bottles were not made air tight and the insects were getting oxygen to survive. Ld. Defence counsel further argued that C.C. N0. 106/02 5 no insects were visible to any of the members of the team who visited to lift the sample and the presence of insects was a subsequent growth. Ld. Defence counsel has also drawn my attention in respect of the authorities reported as 2001(1) FAC 168 ; 2005 (1) FAC 161; 1984 (II) PFA Cases 304 .
Opinion of Director, CFL
13.On 4.12.02, accused Harbans Singh 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/55/220/03 dated 15.2.03 according to which the sample does not conform to the standards of Suji as per PFA Rules 1955 as the sample contains abundant living insects and abundant dead brubs, it is unfit for human consumption.
14. 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.
15. The main contention of the Ld. Defence counsel is that no insects were found by the Food Inspector or any member of the team at the time of sampling and the presence of live insects by the Director, C.C. N0. 106/02 6 CFL after a period of about six months itself shows that the sample bottles were not properly sealed as to why air was passing through the bottles resulting survival of the insects. Ld. Defence counsel further argued that the Public Analyst found only four living and three dead insects in 240 gms of sample and thus opined the sample adulterated while in the counterpart of the same sample, Director, CFL found abundant living insects and abundant dead grubs.
16. In an another authority reported as 2005 (1) FAC 161 titled as ' State Vs. Inderjeet Singh & Others' it was held by the Hon'ble Delhi High Court as under :-
'' .......... The report of the Director, CFL shows living insects found in the sample meaning that the sample was not properly sealed and on this account has acquitted the accused- Counsel for the State has not been able to show as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act- no reason to interfere with the well-reasoned judgment of the trial court.''
17. In an another authority reported as 1983 PFA Journal 353 titled as ' State of Punjab Vs. Raj Kumar , it was held by the Division Bench of Hon'ble Punjab & Haryana High Court as under:-
'' Sample of Saunf found adulterated due to presence of C.C. N0. 106/02 7 living and dead insects- Food Inspector deposing that he had not seen any living or dead insects in it while lifting sample-Insects might have developed after taking of sample-Trial Magistrate acquitting- Appeal against acquittal- it is not a fit case to interfere with acquittal.''
18. In an authority reported as 1972 PFA Cases 389 titled as Shri Raghbir Sharan Vs. State , Hon'ble Delhi High Court , wherein it is held as under:-
''.... Held that it is possible for eggs or larva to be present in the besan without being visible to the naked eye and for these eggs or larva to grow into insects within a period of three days. The Public Analyst in his report has merely stated that the sample was insect-infested ( living insects), but has not given the percentage of insect-infestation. It is, therefore, possible that the insect-infestation found by the Public Analyst was not present in the sample when it was taken. (Para 5 )
19.Reverting back to the facts of the present case, the sample commodity was examined by the Director, CFL on 15.2.03 and the sample was opined non-conforming to the standards because sample contains abundant living insects and abundant dead grubs and unfit for human consumption. Admittedly, the sample was lifted by the Food Inspector, Virender Singh on 25.09.01 and after about six C.C. N0. 106/02 8 months abundant live insects were found by the Director, CFL in the counterpart of the sample. PW-1 Sh. Surender Kumar, SDM/LHA confirmed in his cross-examination that no insects were visible with naked eyes at the time of sampling. PW-3 F.I. M.K. Gupta deposed that he cannot say that in an air tight sample bottle insects , if any, cannot survive for six months and further that if living insects are found after six months in the sample bottle, it is indicative of the fact that insects were breeding and multiplying in the bottle and receiving atmosphere oxygen. PW-4 F.I. N.N. Sharma also confirmed that in any stage during sampling, he did not notice any insects in the entire proceedings with naked eyes i.e mixing, weighing, dividing into three equal parts, putting the sample bottles and sealing. PW-2 F.I. Virender Singh, to a specific question as put by the Ld. Defence counsel, deposed that he is not aware that living insects , if any, will be died within a week in an air tight sample bottle and insects also required oxygen to survive. Admittedly, no live insects were found by the SDM/LHA or any member of the team in the sample commodity at the spot. The finding of the Director, CFL that abundant living insects were found in the sample commodity is indicative of the fact that the bottles were not air tight and due to passing of air in the bottles, the insects were getting oxygen for their survival and breeding , although, Public Analyst found only four living and three dead inspects in the counterpart of the same sample. Further, the fact that the moisture contents in the sample commodity were increased from 10.98% to 14.7% itself shows that the sample bottles were not made air tight. In view of above, I am of the C.C. N0. 106/02 9 considered opinion that the sample bottles were not made air tight by Food Inspector as to why insects were breeding, due to presence of air in the sample bottles, therefore, live insects were found by the Director, CFL and the moisture contents of the sample commodity also increased after about six months.
20. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove that sample commodity i.e Suji was insect infested at the time of sampling. In result, complaint stands dismissed and accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 08.06.2010 ACMM-II/NEW DELHI.
C.C. N0. 106/02 10