Delhi District Court
Da vs . Satish Kumar Khandelwal Page 1 Of 15 on 25 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 152/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Satish Khandelwal S/o Sh. Birdichand
M/s Super Traders, Shop No. 407 D,
Gadodia Road, Anad Parvat,
New Delhi - 110005
R/o H. No. 206, Than Singh Nagar,
Gali No. 9, Anand Parvat, New Delhi 05
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 152/02
Date of the commission of the offence : 15.02.2002
Date of filing of the complaint : 16.11.2002
Name of the Complainant, if any : Shri V.P.S. Chaudhary, Food Inspector
CC No.152/02
DA Vs. Satish Kumar Khandelwal Page 1 of 15
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (j) & (m) of PFA Act 1954 and
violation of provisions of Rule 23 r/w
Rule 28 & 29 of PFA Rules;
punishable U/s 16(1A) r/w section 7 of
the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 09/09/13
Judgment announced on : 25.09.2013
J U D G M E N T
1. The present complaint has been filed on 16.11.2002 by the Delhi Administration through FI Sh. V.P.S. Chaudhary against the accused Satish Khandelwal. It is stated in the complaint that on 15.02.2002 at about 3.00 PM, FI Sh. R.K. Bhaskar purchased a sample of Arhar Dal a food article for analysis from Sh. Satish Khandelwal S/o Sh. Birdichand of M/s Super Traders, Shop No. 407 D, Gadodia Road, Anand Parvat, New Deli05, where the said food article was found stored for sale and where accused Satish Khandelwal was found conducting the business of the said food article at the time of sampling. FI Sh. R.K. Bhaskar purchased approximately 750 gms of Dal Arhar taken from an open gunny bag bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating it in all possible directions under the supervision and direction of Sh. Vijay Khanna, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 2 of 15 and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Satish Khandelwal and the other witness namely Sh. V.P.S. Chaudhary, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. V.P.S. Chaudhary, FI joined as witness.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is revealed that Sh. Satish Khandelwal S/o Sh. Birdichand was the VendorcumProprietor of M/s Super Traders, Shop No. 407D, Gadodia Road, Anand Parvat, New Delhi at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said shop. After conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (j) of the PFA Act and also for violation of Rule 23 r/w Rules CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 3 of 15 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 16.11.2002 The accused appeared and moved an application U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 04.03.2003 that "sample does not conform to the standards of Arhar Dal as per PFA Rules 1955 ".
5. The prosecution examined Food Inspector Sh. R.K. Bhaskar who conducted the sample proceedings as PW1 towards precharge evidence and vide order dated 17.02.2009, pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) (j) and (m) of the PFA Act and for violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 06.05.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Food Inspector Sh. R.K. Bhaskar as PW1, Sh. Vijay Khanna, the then SDM/LHA as PW1, and FI V.P.S. Chaudhary, who was made a witness in the sample proceedings as PW 3 and PE was closed vide order dated 05.06.2012.
CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 4 of 158. Statement of accused U/s 313 Cr.P.C. was recorded on 04.10.2012 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 15.01.2013.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has vehemently argued that the Food Inspector has not applied correct procedure for lifting the sample as Jhaba by which the sample was lifted was not made clean and dry by him and due to bad sampling, the sample commodity got contaminated with other food articles or colouring material which resulted in detection of synthetic colour in the sample for which accused cannot be held guilty. He further argued that Food Inspector did not homogenize the sample before lifting it and a representative sample was not lifted by the Food Inspector which is evident from the variations in the report of Public Analyst and Director, CFL, benefit of which is liable to be given to the accused. He further argued that Public Analyst in its report has not disclosed the method applied for detecting the synthetic colour in the sample commodity, whereas the test applied by the Director, CFL is paper chromatography test, which is not a sure and valid test and for this reason also accused is liable to be acquitted.
11. On the other hand, Ld. SPP for complainant argued that in the present case clean and dry Jhaba was used in the sample proceeding. He further argued that so far the variations in the report of both the Analysis are CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 5 of 15 concerned as per report of Director, CFL, the sample was found not conforming to the standards of Dal Arhar as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variations in the reports of PA and CFL. He further argued that paper chromatography test to detect the colour in the sample is a valid test. The Ld. Prosecutor has vehemently argued that prosecution has been able to prove its case against the accused and hence he is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
13. PW1 FI Sh. R.K. Bhaskar who is the complainant and conducted the sample proceedings in the present case deposed in his examinationinchief that on 15.02.2002 at about 3.00 PM, he along with FI V.P.S. Chaudhary and other officials of the PFA department under the supervision and directions of SDM/LHA Sh. Vijay Kr., visited the premises of M/s Super Traders, Shop No. 407D, Gadodia Bhawan, New Delhi, where accused was found conducting the business of food articles stored there for sale for human consumption including Dal Arhar. He further deposed that he disclosed his identity and intention to purchase a sample of Dal Arhar (ready for sale) for analysis to which accused agreed and thereafter sample of 750 gms of Dal Arhar was taken from an open gunny bag having no label declaration on payment of Rs. 16.50/vide vendor receipt Ex. PW1/A after properly mixing the same with the help of a clean and dry jhaba lying in the CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 6 of 15 bag by rotating it in all possible directions. He further deposed that thereafter he divided the sample into three equal parts by putting them into three clean and dry bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that he prepared Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He also deposed that vendor also gave his statement vide Ex. PW1/D to the effect that he was the sole proprietor of the shop and his shop was not registered with MCD or Sales Tax. PW1 further deposed that on 18.02.2002, one counterpart of the sample in intact condition was deposited with the PA vide receipt Ex. PW1/E and remaining two counterparts were deposited with the LHA on the same day vide receipt Ex. PW1/F.
14. PW1 during his deposition has also placed on report of Public Analyst as Ex. PW1/G,, letter sent by him during investigation to STO, Ward No. 47 as Ex. PW1/H, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/I, complaint filed FI V.P.S. Chaudhary as Ex. PW1/L, copy of intimation letter sent to the accused along with PA report as Ex. PW1/M and copy of postal registration receipts as Ex. PW1/N.
15. PW2 Sh. Vijay Khanna, the then SDM/LHA under whose direction sample proceedings were conducted has corroborated the testimony of PW1 in his examinationinchief.
CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 7 of 1516. PW3 FI V.P.S. Chaudhary who had accompanied the raiding party and was made a witness in the sample proceedings has also deposed in his evidence more or less on the similar lines as deposed by PW1 and PW2 in their examinationinchief.
17. PW1 in his crossexamination admitted that PA and Director, CFL have not given the percentage of colour in their report. He denied the suggestion that the colour was already sticking with the Jhaba which came into the Dal Arhar. He further denied the suggestion that adulteration is due to bad sampling.
18. Similar suggestion was put to PW2 in his crossexamination that colour was found due to bad sampling, which was denied by the witness. He stated that Jhaba was made clean and dry with the help of piece of cloth which was provided by the vendor. He admitted that PA and the Director, CFL have not given the percentage of colour. He stated that he does not know that presence of tartrazine in traces cannot be ruled out.
19. PW3 in his crossexamination stated that clean and dry jhaba was used for mixing the sample commodity, which was provided by the accused.
20. The accused in his statement recorded U/s 313 Cr.P.C. has not disputed the fact that on 15.02.2002 at about 3.00 PM, he was found conducting the business of food articles including Dal Arhar at his shop at M/s Super Traders, Shop No. 407 D, Gadodia Road, Anand Parvat, New Delhi, when PFA Team including FI R.K. Bhaskar and FI Sh. V.P.S. Chaudhary CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 8 of 15 under the supervision and direction of SDM/LHA Sh. Vijay Khanna visited his shop and a sample of Dal Arhar was lifted by the Food Inspector which on analysis was found to be adulterated. However, it was contended by the accused that he has not made any adulteration and he is innocent and has been falsely implicated in the present case.
21. The present case has been launched against the accused on the basis of report of Public Analyst which has been proved on record as Ex. PW1/G. The Public Analyst vide its report Ex. PW1/G found the sample lifted from the accused adulterated on account of containing synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and got analyzed the second counterpart of the sample from Director, Central Food Laboratory (CFL), Pune, who also vide his report/certificate dated 04.03.2003 found the sample not conforming to the standards of Arhar Dal as per the PFA Rules 1955 as synthetic colour 'Tartrazine' was detected.
22. From the crossexamination of PWs, the main defence of the accused appears to be that synthetic colour was detected in the sample due to bad sampling on the part of the Food Inspector as he had not made the Jhaba clean and dry before using the same in the sample proceedings.
23. In the present case, admittedly, the sample of Dal Arhar was mixed with the help of the Jhaba. Now, it has to be seen as to whether clean and dry Jhaba was used in the sample proceedings or not. In this regard, it is relevant to refer the crossexamination of PWs. PW1 FI R.K. Bhaskar stated CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 9 of 15 in his crossexamination that Jhaba was not made clean and dry at the spot as the same was already clean and dry. Whereas, PW2 Sh. Vijay Khanna, the then SDM/LHA under whose supervision and direction, sample proceedings were conducted stated in his crossexamination that sample commodity was mixed with the help of clean and dry Jhaba which was provided by the vendor and Jhaba was made clean and dry with the help of piece of cloth which was provided by the vendor.
24. From the aforesaid crossexamination of PWs, it is evident that there is contradiction in the statement of PWs regarding cleaning of Jhaba at the time of sample proceedings. As per PW1, Jhaba was not made clean and dry at the spot as it was already clean and dry. Whereas, PW2 stated that Jhaba was made clean and dry at the spot with the help of a piece of cloth provided by the accused. As such, PWs themselves are not sure that whether the Jhaba was made clean and dry at the spot or not and it raises a doubt that in fact clean and dry Jhaba was used at the time of sample proceedings or not. In the given circumstances, where accused has raised a plea that clean and dry Jhaba was not used in the sample proceedings and the PWs are making contradictory statement to each other regarding cleaning of Jhaba, the complainant was required to lead positive evidence to the effect that clean and dry Jhaba was used while taking the sample to rule out any kind of possibility of contamination of Jhaba with some colouring material.
25. In a criminal revision titled as Rajinder Kumar Vs. State of Haryna & Anr. (supra), a sample of chilly powder was taken, which on CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 10 of 15 analysis was found adulterated. In the said case, as per the witness examined by the prosecution, the sample of chilly powder was taken from an open tin with the help of a ladle, which was not cleaned before using the same. The sample of chilly powder was put into a paper envelope, and thereafter, it was weighed and thereafter ultimately the sample was put into bottles, which were also not cleaned in the presence of the witness. In those circumstances, the Hon'ble Punjab and Haryana Court held that, "The prosecution was required to prove beyond a reasonable doubt, that the paper envelope in which, in the first instance, the sample of chilly powder was put from the tin, in which the same was earlier lying, was not smeared with any colour or colouring material and was completely clean. It was also requirement of the prosecution to prove beyond reasonable doubt that the ladle, with which the chilly powder was taken from the tin, and put on the paper envelope, in the first instance, was cleaned, and was not smeared with any colour or colouring material. It was also requirement of the prosecution to prove beyond reasonable doubt, that the bottles, in which ultimately, the sample after dividing into portions, was put from the envelope, were dry and clean and were not smeared with any colour or colouring material. Since, there is not even a whisper in the stateswomen of witness, on the aforesaid aspects of the matter, it could be said that the sample was not taken, in accordance with the provisions of Rule 14 of the Rules." It was further held that the possibility of the paper envelope, ladle and the bottles having presence of some colour or colouing material cannot be ruled out.
CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 11 of 1526. In the present case also, no positive evidence has been led by the prosecution to the effect that clean and dry Jhaba was used in the sample proceedings. Rather, the case of the prosecution that clean Jhaba was used in the sample proceedings, became doubtful on account of contradictions in the statement of PWs regarding cleaning of the Jhaba by which the sample was taken.
27. It has also come on record from the evidence of PWs that accused was found conducting the business of other food articles apart from the Dal in question. Therefore, possibility of contamination of Jhaba with the other food articles or colouring matter cannot be completely ruled out and it leads credence to the contention of accused that clean Jhaba was not used in the sample proceedings and synthetic colour was found by the Public Analyst due to contamination in jhaba for which accused cannot be held guilty as also argued by Ld. Counsel for accused.
28. There is another aspect of the matter. Though, as per report of Public Analyst and Director, CFL, the sample of Dal Arhar failed on account of detection of synthetic colour viz. 'Tartrazine', but a perusal of reports of both the Analysts shows that there is variations in both the reports in respect of different parameters of sample commodity, which are beyond the permissible limit of .3%. As per report of Public Analyst (PA) Ex. PW1/G , the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of 7.59%, while Director, Central Food Laboratory found the same to the tune of 9.2%. Similarly, Public Analyst vide its report found the 'Foreign CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 12 of 15 matter organic' to the extent of 0.15% and 'Foreign matter inorganic' as Nil, while the Director, CFL found the 'Total Foreign matter' to the extent of 0.02%. Likewise, Public Analyst did not found Grain damaged by fungus, moisture or heating internally in the sample, but the Director CFL found the 'Damaged grain' upto 2.1% by wt.
29. The aforesaid variation in respect of moisture detected by both the Analysts are higher than .3% i.e. the permissible range of variation, which shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors., 2008 (1) FAC 177, the Hon'ble Delhi High Court held that, "Since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". Similarly, it has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Reliance may also be placed upon State (Delhi Administration) Vs. CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 13 of 15 Ram Singh & Ors. 2009 (1) FAC 371 and State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
30. In view of law laid down in the aforesaid authorities, since there are variation in the report of Public Analyst (PA) and Director, Central Food Laboratory in respect of moisture detected in the sample, which are beyond the permissible limit of .3 %, it would clearly imply that samples sent to both the Analysts were not representative and identical.
31. Further, a perusal of report of Public Analyst Ex. PW1/G shows that Public Analyst has not disclosed the method applied for detecting the synthetic colour in the sample commodity. The Public Analyst was required to disclose the method applied for detecting the synthetic colour in the sample commodity and in the absence of disclosure of method, it is not ascertainable that how the Public Analyst reached to findings that sample was containing synthetic colour i.e. tartrazine.
32. While, the report of Director, Central Food Laboratory (CFL) shows that Paper Chromatography method has been applied by the Director, CFL for detecting the artificial colouring matter in the sample commodity of Dal Masoor. The Hon'ble Punjab and Haryana High Court in Maya Ram Vs. The State of Punjab FAC 1987 (II) 320 has held that paper chromatography test is not a sure test to detect the colour in the sample commodity. The Hon'ble High Court of Delhi in State Vs. Subhash Chand 2012 (2) JCC 1052, after relying upon the various judgments of Hon'ble Punjab & Haryana High Court in Raj Kumar Vs. Union Territory, Chandigarh 1991 (1) FAC 38, CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 14 of 15 Kartar Singh Vs. State of Haryana, 2000 (2) FAC 243, Maya Ram Vs. The State of Punjab (cited supra) and Balmukand Singh Vs. State of Punjab 2008 Cril. LJ 1084, held that the paper chromatography test was not sufficient to conclude as to whether permitted or unpermitted colouring material has been used. The expert has to examine carefully the colouring matter by applying various tests by excluding the use of permitted colours, before reaching to the conclusion to detect the unpermitted colour. Thus, it was all the more necessary for the concerned laboratory to have had conducted such necessary tests to rule out the use of permitted colouring material.
33. In the present case, no other method apart from the Paper Chromatography test has been applied by the Director, CFL to detect the adulteration or presence of colouring matter in the sample commodity. Therefore, in view of law laid down in the aforesaid authorities cited supra, report of Director, CFL cannot be said to be a valid and sure report.
34. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and he is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 25th September, 2013 ACMMII/ PHC/ New Delhi
CC No.152/02
DA Vs. Satish Kumar Khandelwal Page 15 of 15
CC No. 152/02
DA Vs. Satish Kumar Khandelwal
25.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. M.L. Narang.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/each. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/25.09.2013 CC No.152/02 DA Vs. Satish Kumar Khandelwal Page 16 of 15