Delhi District Court
Additional Sessions Judge-01 : New ... vs The State on 17 February, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 23/11
1 Mahender Kumar Sharma
S/o Sh. Chandan Singh Sharma
M/s Laxmi Dairy,
Shop No. 1/12022, Udhan Pur,
Naveen Shahdara, Delhi-32
R/o 46/2, C/1, East Azad Nagar,
Delhi-51
1 Surender Kumar
S/o Sh. Chandan Singh Sharma
M/s Laxmi Dairy,
Shop No. 1/12022, Udhan Pur,
Naveen Shahdara, Delhi-32
R/o 46/2, C/1, East Azad Nagar,
Delhi-51 ..... Petitioners
versus
The State
[Delhi Administration]
P.F.A. Deptt. A-20,
Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 06.04.2011
Date of reserving judgment/order : 13.02.2012
Date of judgment / order : 17.02.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 10.03.2011 and CA No. 23/11 Page No. 1 of 8 -2- order on sentence dated 17.03.2011 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 156/06, vide which the appellants has been convicted for offences punishable u/s 16 (1) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced the appellants to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 10 days.
2. The facts in brief as stated in the complaint are that on 28.04.2004, Food Inspector Ram Pratap Singh purchased a sample of 600 gms of "Ghee", which was ready for sale, from accused Mahender Kumar Sharma, which he had stored in his shop for sale and in which he was found conducting his business of said food articles. The sample was divided into three equal parts and was sealed packed as per PFA Rules. One sample was sent to Public Analyst, who gave his opinion that the sample did not conform to the standards because BR exceeded the prescribed maximum limit of 43 and RM value was less than the prescribed minimum limit of 28.
3. On 15.04.2005, the complaint was filed in the Court after due investigations. The appellants was summoned, who exercised his right and option u/s 13 (2) of the Act and the sample was got analyzed from Director, CFL, Pune. The report of CFL, Pune, dated 10.06.2005 opined that the sample did not conform to the standards of Rules of PFA.
CA No. 23/11 Page No. 2 of 8 -3-4. Charge for the violation of provisions of S. 2 (ia) (a) & (m) of the PFA Act, 1954, punishable u/s 16 (1), r/w S. 7 of the Act of 1954 was framed upon both the accused vide order dated 04.06.2009, to which they pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined three witnesses viz. The Food inspector, the then SDM/LHA and the Food Assistant. The statements of accused were recorded u/s 313 Cr.PC, wherein they pleaded innocence. No defence evidence was led on behalf of the accused persons.
6. Ld. Trial Court after considering evidence concluded that the sample of "Ghee" was adulterated and accordingly convicted and sentenced the appellants.
7. Aggrieved by the said conviction and sentence, the present appeal has been filed.
8. The ld. Counsel on behalf of the appellants has argued that the complaint had been filed in the Court highly belatedly because of which the appellants was able to exercise his right u/s 13(2) after about one year and in effect his right u/s 13 (2) has been defeated. It is argued that in view of the delay, the report of CFL cannot be considered and the appellants has to be extended the benefit.
9. The Ld. Special PP has argued that the delay, if any, in filing of the complaint was attributable solely to the accused and he cannot claim any benefit of the same. Furthermore, the report of CFL takes precedence u/s 13 (2) of the Act. As per the report the sample of "Ghee" was found to CA No. 23/11 Page No. 3 of 8 -4- be adulterated and the accused has been rightly convicted.
10. I have heard the arguments and perused the record.
11. My observations are as under :
12. The first line of argument addressed on behalf of the appellants was that there was a time gap of more than one year between the examination of the sample by the Public Analyst and by Director, CFL, and in view of the huge variations in the two reports it cannot be said that the sample was representative and, therefore, that accused is entitled to be acquitted.
13. The relevant documents for consideration are, therefore, the Public Analyst report dated 26.05.2004 Ex.PW1/F and the CFL report dated 10.06.2005. In the Public Analyst report the physical appearance is stated to be white colour in solid state while in the CFL report it is found to be off white semi solid. The sample when taken by the Food Inspector on 28.04.2004 was in liquid stage.
14. The other variations which have been noted int he Public Analyst and CFL report are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Butyro-Refractometer Reading at 40 43.7 45.0 Deg C 2 Moisture 0.28% 0.13% 3 R. M. Value 26.98 23.2 4 Free Fatty Acid (as oleic Acid) 0.71% 0.99% 5 Rancidity ---- Positive CA No. 23/11 Page No. 4 of 8 -5-
15. The comparison of these two reports, therefore, show that there are huge variations in the various tests conducted by the Public Analyst and by the Director CFL.
16. The first thing which is conspicuous from comparison of two reports is that the sample when tested by Public Analyst did not report positive for Rancidity, while in the CFL the Rancidity test has come as positive.
17. On Rancidity, David Pearson in his Chemical Analysis for Foods - 7th Edition Page 949, says :
"Fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity. Rancidity is brought about by the action of air or by micro-organisms. Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of certain metals (e.g. Copper, nickel, iron)... With most oils and fats and free acidity increases during storage..."
18. Woodmen in his Food Analysis 4th Edn. p. 170 points out :
"When acted on by the oxygen of the air, especially in the presence of light and moisture, free fatty acids are liberated and altered with the accompanying production of various aldehydes and acids of lower molecular weight having a disagreeable odour and acrid taste, the fat or oil then being terms 'rancid'."
19. The time gap between the Public Analyst report CA No. 23/11 Page No. 5 of 8 -6- and that of Director, CFL, is more than one year which clearly indicates that the period of one year could have been the reason for Rancidity to have set in the sample of "Ghee".
20. It had been observed in the case of "Nebh Raj v. State (Delhi Administration and Anrs.) SC on Food Adulteration Cases 1948 to 1997 at Page No. 632 in the Criminal Appeal No. 113/1975, decided on 24.10.1980"
that where the analysis by the Director, CFL, is done after a long lapse of time, the possibility of free fatty acid content increasing enormously due to oxidation due to storage cannot be ruled out.
21. The very fact that there is a gap of more than one year in the two reports clearly reflects that even though the sample may not have putrified, but would have undergone certain changes and, therefore, the second sample cannot be considered representative of the first sample.
22. This aspect was considered in the case of "MCD v. Ghisha Ram, AIR 1967 SC 970", wherein it was held that even after the certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the Certificate will not be sustainable.
23. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "Kanshi Nath v. State, 2005 (2) CA No. 23/11 Page No. 6 of 8 -7- FAC 219 Delhi High Court", (which has been upheld by the Supreme Court in "Criminal Appeal No. 1158 (2007) vide Judgment dated 08.09.2011") and also in "MCD v. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court"..
24. In case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" again a reference was made to the case of "Kanshi Nath" and it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
25. Therefore, the huge variations in these values which have been found in the report of the Public Analyst and in the report of CFL indicate that the two samples were not representative in nature and the benefit of the same has to be extended to the accused/appellants.
26. It had been argued that delay in filing a prosecution was attributable to the accused but the record shows that the prosecution itself had filed the complaint in the Court on 15.04.2005 i.e. almost only after eleven months and the accused immediately after being summoned has exercised his right u/s 13 (2) of the Act. There is nothing to show that the delay was attributable to the accused.
27. In view of the above discussion the two samples cannot be considered representative of each other and the benefit has to be extended to the appellants.
28. In view of the above discussion, the appeal is CA No. 23/11 Page No. 7 of 8 -8- hereby allowed. Conviction is hereby set aside and the appellants are acquitted. Bail-bonds and surety bond stands discharged.
29. Trial Court Record be sent back alongwith the copy of this order.
30. Appeal file be consigned to the Record Room. Announced in the open Court on this 17th Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 23/11 Page No. 8 of 8