Delhi District Court
Fi vs . Yogesh Sharma Page 1 Of 12 on 17 July, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 73/10
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........... Complainant
Versus
Sh. Yogesh Sharma S/o Sh. J.C. Sharma
M/S Chacha Sweets
314A, LIG Flats,
GTB Enclave, Delhi 93
R/o A12, Nathu Colony, Delhi110092
............ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 73/10
Date of the commission of the offence : 08/07/08
Date of filing of the complaint : 19.04.2010
Name of the Complainant, if any : Shri Baljit Singh, Food Inspector
CC No. 73/10
FI Vs. Yogesh Sharma Page 1 of 12
Offence complained of or proved : For violation of Section 2 (ia) (a)
(j) & (m) of PFA Act 1954 and for
violation of Rule 30 r/w Rule 28 &
29 of PFA Rules 1955;
punishable U/s 16(1A) r/w Section
7 of PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 11.07.2013
Judgment announced on : 17.07.2013
J U D G M E N T
1. The present complaint has been filed on 19.04.2010 by the Delhi Administration through FI Sh. Baljit Singh against the accused Yogesh Sharma. It is stated in the complaint that on 08.07.2008 at about 6.00 PM, FI Sh. Baljit Singh purchased a sample of Boondi Ke Laddoo, a food article for analysis from Yogesh Sharma S/o Sh. J.C. Sharma at M/s Chacha Sweets situated at 314A, LIG Flats, Delhi93 for analysis, where the said food article was being sold and where accused Yogesh Sharma was found conducting the business of the said food article at the time of sampling. FI Sh. Baljit Singh purchased 1500 gms. of Boondi Ke Laddoo, taken from an open tray without label declaration. The sample was taken under the supervision of Sh. Vipin Garg, SDM/LHA after breaking it into small pieces and mixing with the help of a clean and dry spoon in a clean and dry tray by rotating it in all directions. Thereafter, the sample was CC No. 73/10 FI Vs. Yogesh Sharma Page 2 of 12 divided into three equal parts by FI by putting it in three clean and dry bottles and 40 drops of formalin were added to each bottle with a dropper and thereafter 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 sample bottles containing the sample. Notice in Form VI was given to accused and price of sample was also paid to the accused vide Vendor's Receipt dated 08.07.2008 and Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Baljit Singh were signed by accused Yogesh Sharma and the other witness namely Sh. Bhopal Singh, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Bhopal Singh, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 53/LHA/22444 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 Total Dye Content of synthetic colour used exceeds the prescribed maximum limit of 100 ppm."
3. It is revealed that Sh. Yogesh Sharma S/o Sh. J.C. Sharma was the VendorcumProprietor of M/s Chacha Sweets at the time of sampling and he is incharge of and responsible for day to day conduct of the business of the said shop. Thereafter, the entire case file was sent to the CC No. 73/10 FI Vs. Yogesh Sharma Page 3 of 12 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 Section 2 (ia) (a) (j) & (m) of the PFA Act, 1954 and for violation of Rule 30 r/w Rule 28 & 29 of PFA Rules 1955 which is punishable U/s 16 (1A) of the PFA Act 1954.
4. The accused was summoned vide order dated 19.04.2010.
The accused appeared and moved an application U/s 13 (2) of the 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 28.05.2010 that "The sample contravenes Rule 30 of PFA Rules 1955 as synthetic food colours viz. Tartrazine and Sunset Yellow FCF exceeded the prescribed limit of 100 PPM".
5. The prosecution in pre charge evidence examined FI Baljit Singh who conducted the sample proceedings as PW1 and pre charge evidence was closed vide order dated 01.02.2011.
6. Thereafter, charge for violation of provisions of Section 2 (ia)
(a) (j) & (m) of the PFA Act and for violation of provision of Rule 30 r/w Rule 28 & 29 of PFA Rules 1955 punishable U/s 16 (1A) of the Act r/w section 7 of the PFA Act 1954 was framed against the accused vide order dated 28.04.2011 to which he pleaded not guilty and claimed trial.
CC No. 73/10 FI Vs. Yogesh Sharma Page 4 of 127. Thereafter, in post charge evidence, the prosecution examined three witnesses including FI Baljit Singh as PW1, Shri Vipin Garg, the then SDM / LHA as PW2 and Sh. Bhopal Singh, Field Assistant as PW3 and PE was closed vide order dated 16.08.2012.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 15.12.2012 wherein accused claimed himself to be innocent and opted to lead defence evidence in his defence. However, no evidence in defence was led by accused and hence DE was closed vide order dated 25.03.2013.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that sample lifted by the Food Inspector was not representative as it was not properly homogenized and, therefore, there are variations in the report of Public Analyst (PA) and Central Food Laboratory (CFL), benefit of which is liable to be given to the accused. He has relied upon the judgments reported in M/s Rajaram Seth & Anr. Vs. Delhi Administration 2012 (2) FAC 523 and Delhi Administration Vs. Narayan Dass 2012 (1) JCC 536.
11. On the other hand, the Ld. SPP for complainant has argued that the as per report of Director, CFL, the sample of Boondi Ke Ladoo lifted from the accused contravenes Rule 30 of PFA Rules 1955 and report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variation in the reports of PA and CFL and he is liable to be convicted.
CC No. 73/10 FI Vs. Yogesh Sharma Page 5 of 1212. All the three witness examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
13. PW1 Sh. Baljit Singh who has conducted the sample proceedings has deposed in his examinationinchief that on 08.07.2008, he along with FA Shri Bhopal Singh under the supervision and direction of SDM/LHA Sh. Vipin Garg visited the premises of M/s Chacha Sweets situated at 314A, LIG Flats, GTB Enclave, Delhi, where accused Yogesh Sharma was found conducting the business of sweets and namkeen items stored there for sale for human consumption including Boondi Ke Laddoo which were lying in an open tray bearing no label or declaration. He further deposed that he disclosed his identity and intention to purchase a sample of Boonki ke laddoo for analysis for which accused agreed and thereafter about 6.00 PM, he purchased 1500 gms of Boondi Ke Laddoo for analysis and price of the sample commodity was paid to the vendor vide vendor's receipt Ex. PW1/A. He further deposed that so purchased sample commodity was mixed properly with the help of a clean and dry spoon by rotating it in all possible directions, in a clean and dry tray by breaking the same into small pieces and then the same was divided into three equal parts by putting them in three clean and dry glass bottles. He further deposed that 40 drops of liquid formalin were added in each sample bottles and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
CC No. 73/10 FI Vs. Yogesh Sharma Page 6 of 1214. PW1 has further deposed that notice in Form VI Ex. PW1/B was prepared at the spot and copy of same was given to accused and panchnama Ex. PW1/C was also prepared at the spot and all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same and report under Rule 9 (e) of PFA Rules Ex. PW1/D was also prepared at the spot. It is further deposed by PW1 that one counter part of the sample alongwith one copy of memo in Form VII in intact & sealed condition was deposited with PA on 09.07.2008 vide receipt Ex. PW1/E and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA on 09.07.2008 vide receipt Ex. PW1/F.
15. During his deposition, PW1 has also placed on record report of Public Analyst as Ex. PW1/G, according to which sample was found adulterated, letter sent by him to VAT Officer, Ward No. 77 seeking information regarding constitution of M/s Chacha Sweets as Ex. PW1/I, letter sent by him to Deputy Health Officer, Shahadra (North) as Ex. PW1/J, reminder as Ex. PW1/J1, consent given by the Director, PFA Department for prosecution of accused as Ex. PW1/K, complaint filed by him as Ex. PW1/L, intimation letter along with PA Report personally served by him upon the accused as Ex. PW1/N and the envelopes received back undelivered by which intimation letter along with PA report was sent to the accused through registered post as Ex. PW1/M and Ex. PW1/M1.
16. PW 2 Sh. Vipin Garg under whom supervision and directions, CC No. 73/10 FI Vs. Yogesh Sharma Page 7 of 12 the sample proceedings were conducted has corroborated the version of PW1 in his examinationinchief.
17. PW3 Sh. Bhopal Singh who was made a witness at the time of sample proceedings by FI Sh. Baljit Singh has also deposed on the similar lines as deposed by PW1 & PW 2 in his examinationinchief.
18. In his crossexamination before charge, PW1 denied the suggestion that if the sample commodity remains lying for about 1 year and 9 months in sample bottles, then the weight of the same will decrease or that the colour concentration of the same will increase. In cross examination after charge he further denied the suggestion that the variation between PA and CFL reports, if any, has occurred due to the fact that he has not taken a representative sample in this case.
19. PW2 in his crossexamination stated that the spoon was made clean and dry at the spot with the help of a clean cloth and this cloth was available with them. He further stated that the broken pieces of sample commodity were put into sample bottles by the FA with his hands and FA washed his hands at the spot, but he does not remember if he had used soap etc. for washing his hands or not. He admitted that if a representative sample is taken then, the analytical reports of two experts in respect of its two counterpart should be same. He denied the suggestion that the variation, if any, between PA & CFL report indicates the fact that the sample was not taken in a representative manner. He further denied the suggestion that the sample bottles were not packed air tight or that some CC No. 73/10 FI Vs. Yogesh Sharma Page 8 of 12 moisture and air entered the sample bottles and caused the wetness of the same to be dried. He stated that he cannot comment if the colour concentration in the sample commodity increased due to filing of complaint after about 21 months.
20. PW 3 also in his crossexamination denied the suggestion that a representative sample was not taken in this case.
21. The accused in his statement recorded U/s 313 Cr.P.C, has not disputed the fact that on 08.07.2008 at about 6.00 PM, he was found conducting the business of food articles including 'Boondi Ke Laddoo' when PFA team including FI Baljit Singh and FA Bhopal Singh under the supervision and direction of SDM/LJA Sh. Vipin Garg visited his shop at M/s Chacha Sweets situated at 314A, LIG Flats, GTB Enclave, Delhi93 and a sample of 'Boondi Ke Ladoo' was lifted by FI Baljit Singh from him which on analysis was found adulterated. However, it was contended by the accused that FI Baljit Singh did not apply proper method of sampling and a representative sample was not taken by him. It was also contended that due to improper sampling, there is wide difference between the reports of PA and Director, CFL.
22. The present complaint has been launched against the accused on the basis of report of Public Analyst dated 22.07.2008. The report of Public Analyst has been exhibited and proved as Ex. PW1/G and same reveals that sample is adulterated because 'Total Dye Content of the synthetic colour' exceeded the maximum limit of 100 PPM. The accused CC No. 73/10 FI Vs. Yogesh Sharma Page 9 of 12 on appearing exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Pune dated 28.05.2010 was received. Perusal of same shows that sample commodity failed on the ground that the permitted synthetic food colour i.e. Sunset Yellow FCF and Tartrazine were found more than the prescribed maximum limit of 100 PPM.
23. The defence of the accused from the aforesaid cross examination of PWs and his statement U/s 313 Cr.P.C. appears to be that sample commodity taken by the FI Sh. Baljit Singh was not representative one and method of lifting the sample was not correct and, therefore, there is huge variations in the reports of both the experts.
24. Though, as per the report of Public Analyst (PA) and Director, Central Food Laboratory (CFL), the sample of Boondi Ke Laddoo lifted from the accused, was found to be adulterated because permitted synthetic colour was found exceeded the maximum prescribed limit of 100 PPM, however from the perusal of both the reports, it is revealed that both the reports are highly divergent to each other in respect of quantity of synthetic colour found in the sample commodity. The Public Analyst vide his report Ex. PW1/G, found the permitted synthetic colours in the sample commodity i.e. Sunset Yellow and Tartrazine to the extent of 143.09 PPM, whereas, the Director CFL vide his report found the same to the extent of 353.365 PPM CC No. 73/10 FI Vs. Yogesh Sharma Page 10 of 12 (Tartrazine = 27.104 ppm + Sunset Yellow FCF = 326.261 PPM). Furthermore, Public Analyst has found Baudouin Test 'Positive' whereas, the Director CFL is silent regarding Baudouin Test.
25. The aforesaid variation in the report of two Analysts in respect of quantity of permitted synthetic colour found in the sample commodity is on the higher side i.e. upto 210.27 ppm and it goes to show that the sample was not properly mixed up and hence it cannot be said to be representative sample. In Delhi Administration Vs. Narayan Dass 2012 (1) JCC 536, a sample of 'laddoo' was lifted which on analysis was found to be adulterated by the Public Analyst as well as by Director, CFL on account of it containing total dye content of the synthetic colour used exceeding the prescribed limit of 100 ppm, however it was noticed that there was variation in reports of both the experts in respect of colour concentration and variation was to the extent of 65.63 ppm and in those circumstance, the Hon'ble Delhi High Court after relying the case law titled as Kanshi Nath Vs. State 2005(2), FAC 219 held that, " In the present case, the variations in the reports of the samples of two counter parts of the same sample was large being 65.66 ppm which was more than 0.3%, the permissible limit of the variations. Such variation would certainly call to record that the sample drawn was not representative. If the sample was of representative character, then the extent of dye content in both the counter parts would not have been of such substantial variations. It can not be said that representatives of same sample were sent to Public Analyst as well as CC No. 73/10 FI Vs. Yogesh Sharma Page 11 of 12 CFL.".
26. 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." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
27. In view of law laid down in the aforesaid authority, since in the present case there is variation in the report of Public Analyst and Director, Central Food Laboratory in respect of colour concentration to the extent of 210.27 PPM, which is beyond the permissible limit of .3 %, it appears that sample taken by the Food Inspector was not representative one and, therefore, benefit of doubt is liable to be given to the 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 17th July, 2013 ACMMII/ PHC/ New Delhi
CC No. 73/10
FI Vs. Yogesh Sharma Page 12 of 12
CC No. 73/10
DA Vs. Yogesh Sharma
17.07.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, accused stands acquitted of the charges leveled against them. 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/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/17.07.2013 CC No. 73/10 FI Vs. Yogesh Sharma Page 13 of 12