Delhi District Court
Mukesh Kumar S/O Praveen Goel vs State (Delhi Administration) on 17 July, 2009
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 7/1999/1992
Mukesh Kumar s/o Praveen Goel
R/o H No. 195, Nehru Market
Mathura Road, Badarpur, Delhi ......... Appellant
versus
State (Delhi Administration) .........Respondent
Date of Institution : 30.5.92
Date when the arguments
were heard : 17.07.09
Date of judgment : 17.07.09
JUDGMENT
This appeal is directed against the judgment dated 01/05/92 passed by learned Metropolitan Magistrate by which he had convicted the appellant under Section 16 (1) (1 A) read with section 7 of the Prevention of Food Adulteration Act (in short PFA Act). By subsequent order on sentence of the same date the appellant was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of rupees 1000/. In default payment of fine, he was directed to undergo simple imprisonment for three months. Aggrieved by the judgment of 2 conviction and order on sentence passed by the learned Metropolitan Magistrate the appellant has preferred this appeal. BRIEF FACTS:
The prosecution case, in brief, is that on 12.6.89 at about 5 pm, Food Inspector Sh S K Sharma purchased a sample of Lal Mirch Powder from appellant at his Masala Patri at Mathura Road near Chote Masjid Badarpur where it was stored for sale. The sample was taken after proper mixing with the help of clean and dry jhaba. The sample was taken from an open gunny bag having no label declaration. The so purchased sample was divided in three equal parts and each part was separately placed in clean and dry bottles which were separately packed, fastened, marked and sealed as per PFA Act. Notice was given to the appellant. Panchnama was also prepared at the spot. All the documents were signed by appellant. Since none from the public came forward to join, another Food Inspector Sanjeev Kumar Gupta was associated who also signed all the documents at the spot. One counter part of sample was got analysed from Public Analyst who found the sample to be not not confirming to the standards. In that Asu incoluble in dilute Hcl was 2.7 % in place of maximum 1.3%, it contained toxic oil soluble coal tar colours and foreign matters ( rice starch and husk). The sample was found to be adulterated being in violation of the standard prescribed. Appellant exercised his right under Section 13(2) of 3 the Act where upon the second counter part of the sample was got analysed from Director who found the sample to be not confirming to the standard in that he found ash insoluble dilute Hcl as 1.89 % as against specified limit of 1.3% it contained unpermitted artificial oil soluble colouring matter identified as orange and pink shade oil and it was not free from the presence of extravenous matter identified as rice bran. CHARGE AND PLEA OF THE ACCUSED:
Charge under section 2 (ia) (a) (b) (c) (j) (m) punishable under Sec. 7/16 PFA Act was framed against the appellant the appellant by the learned trial court on 24/01/91 to which appellant pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined three witnesses PW1 Sh S K Sharma, Food Inspector, PW2 Sh Gopal Singh, Local Health Authority and PW3 Sh Sanjeev Kumnar Gupta, Food Inspector. Thereafter it closed prosecution evidence.
PLEA AND DEFENCE OF THE APPELLANT In his statement under section 313 Cr. P.C. before learned trial court the appellant has denied the incriminating evidence against him and has stated that he is innocent. Appellant stated that he has no such stall 4 dealing in spic es. He is labourer and do not deal in spices. Appellant further stated that he had no connection with the sample in question. However he was on the patri to make purchases. Actual owner of the said stall ran away and on suspicion he was arrested. ARGUMENTS AND FINDINGS:
Both parties have filed written arguments. I have gone through the written arguments filed on behalf of both the parties, trial court record, appeal file and relevant provisions of law, carefully.
One of the main contentions on behalf of the appellant is that the sample lifted by the Food Inspector was not of representative character so the appellant is entitled to be acquitted. The contention on behalf of the respondent, on the other hand, is that since the Certificate of the Director CFL supersedes the report of the Public Analyst, the report of the Public Analyst cannot be looked into for any purpose. Reliance is placed upon several authorities mentioned in the written arguments on behalf of the respondent but these authorities are not produced.
The question arises whether despite the fact that the Certificate of Director CFL supersedes the report of the Public Analyst, can the difference between the two be compared for the incidental purpose of ascertaining whether the sample lifted by Food Inspector was of representative character or not or on account of the fact that Certificate of 5 Director CFL supersedes the report of the Public Analyst, the report of Public Analyst cannot be looked into for any purpose incidental or otherwise, as is argued on behalf of the respondent? The answer to these questions lies in the following case law:
In State v. Mahender Kumar and ors. 2008 (1) FAC 177 (Del), relied on behalf of the appellant,it was held as follows:
"11. While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant.
In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than by .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to 6 both the Public Analyst as well as the CFTRI.
12. In Kanshi Nath v. State even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan Sarup 1972 FAC 273, this Court observed as under (PFA Cases, p. 227):
Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained.
13. Following the said judgment of this Court in 7 Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative. The conviction of the Respondents can, therefore, not be sustained in law. Accordingly, the impugned order of the ASJ acquitting the Respondents calls for no interference."
In Municipal Corporation of Delhi and R.N. Gujral v. Bishan Sarup 1972 FAC 273 (Del) (FB),relied upon by learned counsel for appellant, it was observed as follows:
"10. The consideration of the timelapse between the date of the taking of the sample, the launching of the prosecution and the date when the sample was sent to the Director of Central Food Laboratory is relevant only for this purpose. Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to subsection (5) of 8 Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated ' therein. The presumption attaching to the certificate again is only in regard to what is stated in it as to the contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on the record the sample sent for analysis to the director could not be taken to be a representative sample of the article of food from which it was taken and if this contention is found to be correct, conviction based on the certificate will not be sustainable. Reference on this aspect of the question may be made to the observations of the Division Bench of the Punjab High Court in Municipal Corporation of Delhi Vs. Nirajan Kumar and others 1965 P.L.R. 941.
"We would like to clarify that finality and conclusiveness has been attached only to 'the 9 facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report, of the Central Food Laboratory was due to certain factors for which an accused could not be held responsible. In short the finality and conclusiveness are only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed."
11. The same view was taken by the Division Bench of Gujarat High Court in Mohanlal Chhaganlal Mithaiwala v. Vipanchandar R. Gandhi and another AIR 1962 Guj 44, where Shelat, J. (as he then was) speaking for the court observed as under :
"The certificate of the Director of Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test :
Under the proviso to section 13 (5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. 10 It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adul terated food. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, chemical or otherwise by the ingredients of the 11 ghee used in the preparation being mixed with the other facts, or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso.'' In MCD v Jawahar Lal 1980 (II) FAC 145 (Del), it was observed as follows:
"6. Without expressing our opinion with regard to the representative nature of the sample, we are inclined to accept the second submission sought to be urged by Shri Soni. From the certificate of the Director it cannot be inferred that any water had been added to the milk. The nonfatty solid falling below the prescribed standard would only justify an inference that because of the excess in fat contents either the cow was not properly fed or the report of the Public Analyst was erroneous. Shri Randhir Jain, however, 12 contends that to accept this contention would amount to holding as enquiry into the certificate of the Director. Further, no ground has been made out by leading evidence to challenge the correctness of the same which, in law, is conclusive of the facts stated therein. That being so, this will be embarking upon the domain of conjectures in accepting the submission of Shri Soni. We do not agree. When asked to explain for the presence of large quantity of fat contents in the sample than the prescribed standard, Shri Jain had no answer. As a matter of fact a question was addressed to Shri .P. Sharma, Public Analyst who was examined as D.W. 1 by asking him to describe reasons for a sample containing 8.14 per cent milk solids not fat and at 5.1 per cent when tested in August 1976. On again being tested on or about 25th January, 1977 would be found to contain 4.8 percent fat and milk solids not fat 7.7 percent. Shri Sharma stated that he could not give any rationable or 13 scientific reasons for such a difference.
7. Admittedly, the sample taken was that of cow's milk and that being so the fat contents ought to be 3.5 percent. Making allowance for marginal difference the fat contents could not be 4.8 percent in cow's milk. There is thus no escape from the inference that either the test conducted was erroneous or that there was imbalance in the fodder fed to the cow which resulted in the high percentage of fat present in it while giving lower percentage in solids not fats.
In this view of the matter the question of law, including the one with regard the maintainability of the appeal, are not required be gone into."
In MCD v. Lala Ram and anr, 1980 (II) FAC 147 (Del), relied upon by learned counsel for appellant,it was held:
"3. It is true that the certificate of the Director supersedes the report of the Public Analyst and that the report of the Public Analyst cannot be 14 made the basis for recording conviction or acquittal of an accused person, but in the instant case what has shocked us is that the two samples, one sent to the Public Analyst seeking his opinion and the other counterpart sent to the Director seeking his opinion, appear to be absolutely divergent and different from each other. The Learned counsel for the appellant was unable to explain the circumstances under which the divergent results were given by the two Com petent authorities in examining the sample. It is for this reason that we have looked into the report of the Public Analyst more so when the consequences involved are penal and the minimum sentence of imprisonment to be awarded to a delinquent person found guilty of having committed an offence under the Act, is 6 months, Rigorous Imprisonment. As per his certificate dt. Dec. 3 1976, the Director found not only "a few dead and living insects" but also "excessive amount of foreign seeds" in the 15 counterpart of the sample. Not only this, the Director did not find any rodent excreta as was found by the Public Analyst. As earlier noted in this judgment, the Public Analyst did not find edible seeds other than cumin seeds in the sample and the remark given in his report against the column "Edible seeds other than cumin seeds" was "Nil". Similar remark was given by the Public Analyst in his report against the column "Insect infestation per 100 gms." It is really strange as to how, if the sample was the same, the Director was able to find a few dead and living insects besides noticing excessive amount of foreign seeds, more especially when the Director had certified that the seals of the sample sent to him were intact. We are conscious of the fact that in law the certificate of the Director supersedes the report of the Public Analyst and that it is the certificate of the Director alone which has to be taken into consideration for recording acquittal or 16 conviction against an accused person, but in the circumstances noted above, we are compelled to look into the report of the Public Analyst as well. We may warn that this judgment not be taken as a precedent for comparing the certificate of the Director with the report of the Public Analyst, as in the peculiar circumstances of this case, we were, as noted earlier, compelled to look into the report of the Public Analyst, because it was pointed out by the learned Counsel for the respondents that the counterpart of the sample sent to the Director appeared to be sample of another person rather than of the respondent."
In Kanshi Nath v. State 2005(2) FAC 219 (Del), relied upon by learned counsel for appellant,it was observed as follows :
"11. Coming to the next controversy, i.e., with regard to the representativeness of the sample, it is clear from the Full Bench decision in MCD v. Bishan Sarup (supra) that if the samples are not 17 representative, then any test report based on it would not indicate the true position. That being the case, a conviction cannot be founded on such a test report. Upon an examination of the cases mentioned by Mr Mittal, it also becomes clear that although in terms of Section 13 (3) of the PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not. Mr Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under :
14. Thus the legal impact of a certificate of the Director of Central Food Laboratory is threefold.
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 18 and it becomes irrefutable so far as the facts stated therein are concerned. (emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and there can be none. But, this does not enable us to detract from ratio of the Full Bench decision of this court in the case of MCD v. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial 19 enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director. CFL who was examined as CW1 in crossexamination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than Y.3%, then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained."
20
In the light of the above case law it is clear that the consistent view of our Hon'ble High Court is that the noticeable difference between the report of Public Analyst and analysis report of the counterpart of the same sample as given in the Certificate of Director CFL indicates that the sample taken by the Food Inspector was not of representative character. The fact that the Food Inspector should take a representative sample is a settled legal position and another settled legal position is that if the sample taken was not of representative character the accused in such a case is entitled to be acquitted of the charges pertaining to adulterated food item. In the backdrop of this legal position it would be appropriate to look into and compare the report of the Public analyst Ex PW1/F and the Certificate issued by Director CFL Ex PX which is as follows:
Sr No. Item Value as per Value as per
Public Analyst Central Food
Report Laboratory
Report
1 Moisture 6.50%by weight 5.70% by weight
2 Total ash 6.4%by weight 6.4% by weight
Ash insoluble in dil 2.7% by weight 1.89% by weight
3 Hcl
Non volatile ether 12.90% by weight 11.72%by weight
4 extract
5 Crude fibre 17.8% by weight 21.64% by weight
21
The above table shows the noticeable and substantial difference
between the values given to different items in the two counter parts of the sample in the report of the Public Analyst Ex PW1/F and the Certificate issued by Director CFL Ex PX leading to the inference that the sample taken by the Food Inspector of the food article in question was not of representative character. Therefore, it is not necessary to go into the other arguments raised pertaining to TLC test, violation of Section 10 (7) of the PFA Act, the validity of consent for prosecution and the mistaken identity of the appellant/convict by the Food Inspector raised in the written arguments filed on behalf of the appellant. The appellant is entitled to be acquitted on the ground that representative sample of food article was not taken by the Food Inspector.
RESULT OF APPEAL:
In view of discussion the appeal is allowed. The order of conviction passed by the learned trial court is setaside. The appellant/convict is acquitted of the charges under sections 2(ia)(a)(c)(j) (m) punishable under section 16(1) (1A) read with sec.7 of the Act framed by the learned trial court. The fine, if already paid by the appellant/convict in terms of the impugned judgment and impugned order on sentence be ordered by learned trial court to be refunded to him The bail bonds furnished in the appeal are cancelled. The trial court record be returned along with the 22 copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on 17/07/2009 (S. K. SARVARIA) Additional Sessions Judge01/South Patiala House Court