Delhi District Court
Ravinder Nath Chawla vs State (Delhi Administration) on 1 July, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 55/1999
Ravinder Nath Chawla
s/o Y.D. Chawla
M/s New Uphar Dairy
583, Chirag Delhi
New Delhi
Petitioner
versus
State (Delhi Administration)
Respondent
Date of Institution : 30.9.1999
Date when the arguments
were heard. :15.5.08
Date of judgment :1.7.08
JUDGMENT
This appeal is directed against the judgment dated 10/8/1993 passed by learned Metropolitan Magistrate, New Delhi : 2 : by which the appellant was convicted under section 7/16 of the Prevention of Food Adulteration Act, 1954 (in short PFA Act) and also the order on sentence dated 22/9/1999 passed by learned Metropolitan Magistrate, New Delhi against the appellant sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of rupees 5000/ and in default of payment of fine to undergo simple imprisonment for the period of one month. In fact the appellant was earlier convicted by the said judgment and the sentence of rigorous imprisonment of one year and fine of rupees 5000/ was passed on the same day, i.e., 10/8/1993 and in default of payment of fine the accused was to undergo simple imprisonment for six months. Thereafter, the appellant preferred an appeal being Criminal Appeal No. 70/1999 which was partly allowed and the order of sentence was set aside and the matter was remanded back to the learned trial court for hearing the appellant and then to pass appropriate order on : 3 : sentence which led to the passing of the order of sentence dated 22/9/1999 which is also under challenge in the present appeal. PROSECUTION CASE:
The case of the respondent is that a complaint under section 16 of the PFA Act was filed against the appellant before learned Metropolitan Magistrate alleging that on 7/7/1988 at about 5 p.m. the Food Inspector Shri Baljit Singh visited M./S. New Uphar Daily, Chirag Delhi, New Delhi where he found cow's milk stored in open in the drum bearing declaration as a cow's milk. He purchased sample of the said milk after homogenising with the help of plunger. The sample was sent to the Public Analyst whose report shows that the said sample was adulterated on account of solids not fat being 6.78% which was less than the minimum prescribed 8.5%. The sanction for prosecution was obtained and the complaint was filed against him before learned Metropolitan Magistrate. The accused also exercised his right under section 13 : 4 : (2) of the PFA Act and the second counterpart of the sample is selected and was got analysed from the Director CFSL who by his certificate dated 1/5/1989 reported in December it to be adulterated on account of milk fat 2.8% which was less than the specified limit of 3.5%. Further the milk solids not fat contents were found 7.5% which fell below the minimum specified limit of 8.5%..
CHARGE AND PLEA OF THE ACCUSED:
The notice under section 251 Cr. P.C. for the offence under section 7/16 of PFA Act was given to the appellant/convict who pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
In support of its case the prosecution has examined four witnesses in all namely PW1 Shri Gopal Singh,LHA, PW2 Shri Baljit Singh, Food Inspector, PW3 Shri V.P.S Chaudhary,Food Inspector and PW4 Shri N.K. Sehgal, UDC. DEFENCE OF THE ACCUSED : 5 : In his statement under section 313 Cr. P.C. the appellant has stated that he was not selling the milk. The milk was yet to be tested in the machine installed at his premises and then it was to be exposed for sale. He also stated that the milk was not homogenised with a plunger. He also stated that the contents of documents were neither read over nor explained to him in vernacular by the Food Inspector. He also stated that he was innocent and has been falsely implicated. The milk had just arrived from U.P. and was in a chilled condition. The milk was lying just outside the shop. Small quantity of milk was transferred to the drum for testing on the machine. If the sample is found according to the standard, only then sale is conducted. Launching of the prosecution has been intentionally delayed and deprived the valuable right of his under section 13 (2) of the PFA Act to get the certificate from the Director CFSL, Mysore, smell 'O' without bringing the milk at room temperature. The sample was lifted on : 6 : two intervals. First, the first bottle was completed and then the second was filled and finally third bottle. Milk cannot retain in its original composition for more than four months. Neither the bottles nor the plunger was clean. They were not dried and cleaned. No proper homogenisation was possible with the alleged plunger. Formaline was not of proper grade and had lost its strength and had become just water.
In the defence evidence the appellant has examined two witnesses namely DW1 Dr K.V. Nagaraj and DW2 Vijay Kumar ARGUMENTS AND FINDINGS:
I have heard the learned counsel for the appellant and the learned Chief Public Prosecutor and have gone through the record of the case and relevant provisions of law, carefully.
The thrust of the argument of the learned counsel for appellant is that the difference in the report of Public Analyst and Certificate of Director CFL shows that the sample in question collected by the Food Inspector was not of representative of the : 7 : whole milk available at the spot. On behalf of the respondent State it is argued that since the Certificate of Director CFL has superseded the report of Public Analyst so the difference between the two reports is immaterial.
In State v. Mahender Kumar and ors. 2008 (1) FAC 177 (Del), relied on behalf of the appellant it was held as follows:
" 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 both : 8 : the Public Analyst as well as the CFTRI.
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.
Following the said judgment of this Court in Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst : 9 : 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 MCD v Jawahar Lal 1980 (II) FAC 145 (Del), relied on behalf of the appellant it was observed as follows:
"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, 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 : 10 : 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 scientific reasons for such a difference.
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 : 11 : 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 on behalf of the appellant it was held:
" 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 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 : 12 : 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 counter part 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 : 13 : 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 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."
The above citations relied upon by learned counsel : 14 : for appellant clearly shows that though the Certificate of Director CFL supersedes that of Public Analyst but the variation between the two leads to the inference that the sample taken was not of representative character of the whole milk available at the spot. In the present case the report of Public Analyst Ex PW1/E shows that the milk fat contents in the sample were 5.1 per cent while milk solids not fat contents 6.78%. But according to the Certificate of Director CFL the milk fat contents in the samples sent to him were 2.8% while the milk solids not fat 7.5%. If the sample milk was taken by properly homogenising the whole milk how can the two counterparts of the sample milk could have such a noticeable variation. Although the Food Inspector PW1 Shri Ghopal Singh has stated in the statement that before purchasing the sample milk it was properly homogenised with the help of the clean and dry plunger, the plunger was inserted up and down then the sample was taken. The so purchased sample of cows milk was equally : 15 : divided into three parts and poured into three clean and dry bottles and 20 drops of Formaline were poured in each counterpart of the sample bottle. But if the milk was so, homogenised with the help of the plunger as stated by PW1 why there was so much difference in the report of Public Analyst and the Certificate of the Director CFL, referred before? In the light of the above case law this difference leads to the inference that the sample taken was not representative of the whole milk available at the spot. On behalf of the respondent State it is argued that the Certificate of Director CFL having superseded the report of Public Analyst the former shall only needs to be looked into in the case and difference between the two in the sample analysis has no bearing in the case. Reliance is placed upon the authority "Jagdish Prasad v. State of Delhi" AIR 1982 SC 57, wherein it was observed as follows:
" The offence took place nearly eleven years ago and there is no evidence on the record to show : 16 : what was the extent of insect infestation in the sample when it was taken. A rather interesting feature of this case is that when, on the application of the prosecution, the report of the Director of Central Food Laboratory was brought on the record of the case, the earlier report of the analyst was replaced by that report. The result is that though there is evidence on the record to show that the sample was "highly insect infested" on September 10, 1971 when the Director of the Central Food Laboratory gave his report there is no evidence on the record to show as to what was the state of the sample on October 3, 1970. Shri Bawa Gurcharan Singh argues that in this state of affairs the appellant is entitled to an acquittal but we are not inclined to accept that submission. The evidence on the whole can be accepted as justifying the conclusion that on the date on which the sample was taken, it was insect infested within the meaning of section 2 (ia) (f) of the Act."
In Mathukutty v. State of Kerala , AIR 1988 Kerala 60, also relied upon on behalf of respondent State, it was : 17 : observed as follows:
"15. We are not impressed by the argument that because there is disparity in the results declared by the public analyst and by the Director of Central Food Laboratory and living insects were present at the time of analysis, it has to be assumed that sample contained only eggs or larvae at the time of the sale or that there was rapid growth of insects after the date of sale or that the sample was not insect infested at the time of sale and the percentage of insect damaged matter could have been below 5% or even negligible at the time of sale. The report of the public analyst is superseded by the certificate of the Director. Even if there is wide variation between the Director's certificate and analyst's report, the former supersedes the latter and the superseded report cannot be revived for any purpose. The difference in the percentage of insect infested matter as reported in Ext. P6 and Ext. D1 cannot be an indication of any steady growth of insects or increase in infestation after the sale. One of us in Food : 18 : Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224), after considering practically the entire case law on the point, including the decisions in Abdul Hameed v. Food Inspector, 1969 Ker LR 922, State of Kerala v. Vasudevan Nair, 1974 Ker LT 617 :
(1975 Cri LJ 97) (FB), State of Kerala v. P.K. Chamu, 1975 Ker LT 411 and State of Kerala v. K.C. John, 1978 Ker LT 738 : (1979 Cri LJ NOC 48), observed in para 23 :
".....it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analyses. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is : 19 : superseded by the report of the Director of Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of SubSecs. (3) and (5) of S.13 of the Act."
We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the Public Analyst and the Director. Hence we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate."
: 20 : In Jagdish Prasad's case (supra) the food item was not milk or milk product. The sample taken was of Amchoor Sabat made from peals of unripe mangoes Further the report of the Director CFL was obtained on the request of the prosecution and not by the accused , like in the present case, to challenge the report of public analyst. The report of Director CFL was obtained by the prosecution in that case as the extent of insect infestation was not mentioned in the report of the public analyst. Therefore, the Jagdish Prasad's case (supra) is distinguishable on facts and inapplicable to the present appeals. The observations of Kerala High Court in Mathukutty's case (supra) being in conflict with the consistent view of our Hon High Court in Lala Ram's case (supra), Jawaharlal's case (supra) and the recent Mahender Kumar's case (supra) does not help the respondent State in these appeals.
It is next argued on behalf of the appellants that the : 21 : milk present at the spot was not properly homogenised before taking the sample by the Food Inspector and therefore representative sample was not taken. This argument is strongly objected on behalf of the respondent State.
The other argument on behalf of the appellant is that although PW1 and PW2 has stated that the milk was homogenised before the sample was taken and they have stated that the homogenisation was done with the help of the plunger but neither the complaint nor the panchnama Ex PW1/C shows this fact so the statement of the witnesses of the prosecution in this regard should be discarded.
In Rama Nand v. State of Haryana 1988 (I) FAC 157 (P & H), it was observed as follows:
"5. ..........It is not necessary that the complaint should contain all the details connected with the performance of an act by a Government official in the discharge of is duty, but at the same time it cannot be said that the complainant can remain content by only giving : 22 : sketchy facts in the complaint. The complaint in criminal cases has a very important role. It is the earliest version of the case which is presented before the Court. In food cases this complaint this complaint assumes more importance regarding the details of the facts since it is prepared by a Food Inspector, who is educated and is presumed to be proficient in the performance of his duties to detect adulteration in articles of food keeping in view the technicalities of law. They are expected to keep in touch with the latest law whether statutory or Judge made on the subject. The Food Inspectors prepared the complaints after a lapse of many days and in certain cases months after the detection of the crime or the result given by the Public Analyst. As these complaints are prepared ling time after the detection of the crime, they are expected to contain details like making of the bulk, from which a sample is taken, homogeneous. The principle that bulk should be made homogeneous before the sample in taken has attained judicial recognition and is well known to the persons who are engaged in the trade of articles of food and the law : 23 : enforcement agencies. It is rather late in the day for the State counsel to take up the plea that the Food Inspectors do not know the importance of this aspect of their act. The omission of the fact regarding stirring of the milk in a case in which sample of milk is taken, assumes importance as its later introduction in evidence amounts to improvement of the part of the witnesses to bring their statements in conformity with the law on the subject. If the Food Inspector, at the time of making of the statement, exhibits knowledge about this aspect of law, he cannot be said to be ignorant at the time when he drafted the complaint. In The State of Punjab and another v. Jagan Nath 1986 (2) C.L.R. 479, a Division Bench of Punjab & Haryana Court observed:
"There is, therefore, no gainsaying that before a sample of milk is taken by the Food Inspector he must ensure that the milk has been made homogeneous. Otherwise the report of the analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report it becomes the duty of the Court to ascertain if the sample of milk had been properly taken by the Food Inspector. The proper : 24 : sample would only be of milk made homogeneous by stirring. If the Court comes to the conclusion that the milk was not properly stirred and made homogeneous it is not bound to rely upon the report of Public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken the contents of the complaint have necessarily to be looked into. In case the factum of stirring of the milk is missing in the complaint, it is open to the trial Court to entertain doubt on the statements of the Food Inspector and his witnesses in respect thereof."
The effort of Shri Satpal Malik, Food Inspector PW 1 and Dr. Harbans Lal Arora PW 2, cannot escape the inference that they had made improvement to make their evidence more effective and weighty against Rama Nand petitioner. It was for the first time in their statements at the trial that this was made known to the accuses. In the documents prepared prior to this, there is no mention of the stirring of the milk. Even the complaint prepared much later does not have even a distant reflection about his performance of the duty by the Food Inspector."
: 25 : In Shyam Lal v. State 1991(I) FAC 223 (Del), relied on behalf of the appellant it was held as follows:
" Submission of learned counsel for the respondent has been that the very fact of the Food Inspector having mentioned that the milk was made homogeneous would indicate that the sample was taken properly and petitioner has not made any grievance in this regard, I, however, don not agree with this submission. For the offences alleged to have been committed by the petitioner minimum sentence is provided a strict compliance of the provision is expected from a Food Inspector taking sample. In these circumstances, I have no hesitation in holding that it was incumbent upon the Food Inspector to have mentioned in the documents prepared at the time of taking the sample that the milk was made homogeneous. Merely his saying so in the Court in my view, cannot be considered to be sufficient that it was complied by him. This fact, would amount to an improvement made during trial which is not permissible and cannot be relied upon. I find support : 26 : for this view from the case Har Lal v. State of Haryana 1988 (I) RCR 666 (Supra) and Mitha Ram v. The State of Punjab 1989 (II) FAC 34: 1989 C.C. Cases
213. Considering all these judgement I am clearly of the view that no latitude can be granted to the Food Inspector to make improvement in the case at the time of the trial and this material fact having been proved that the milk was not stirred properly before taking the sample is also a ground on account of which the conviction and sentence are liable to be set aside."
In the present case the panchnama Ex PW1/C does not show that the milk was homogenised before taking sample iand any plunger was used for this purpose. The complaint filed by Local Health Authority before learned Metropolitan Magistrate also does not show this fact specifically. Therefore, in the light of the above case law the statement of the PW1 and other witnesses of the prosecution regarding homogenisation of the milk before taking sample by use of plunger for this purpose , cannot be believed.
In view of the above it is clear that the samples sent : 27 : for analysis either to the Public Analyst or to Director CFL was not true representative of the milk in question available at the spot with the appellant. The fact that samples of the food product sent for analysis should be of representative character has attained judicial recognition and deviation from this principle entitles the accused benefit of doubt in a case of food adulteration filed against him. Therefore, the appellant is entitled to benefit of doubt in this case. Therefore, there is no need to go into the other arguments raised on behalf of the appellant or the defence of the appellant.
RESULT OF APPEAL:
In view of the above discussion the appeal is allowed. The order of conviction and consequent order on the sentence passed by the learned trial court are setaside. The appellant/convict is acquitted of the allegations made in the complaint under sections 7/16 PFA Act framed by the learned trial : 28 : court. The fine if appointed by the appellant with the trial court be refunded to him by the learned trial court. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the 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 1st day of July, 2008 ( S. K. Sarvaria ) Additional Sessions Judge Patiala House Court