Delhi District Court
Da vs . Ashok Kumar Arora Page 1 Of 18 on 26 July, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 108/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Ashok Kumar Arora S/o late Sh. Manohar Lal
M/s Arora Store,
9368/1, Gali No. 8, Multani Dhanda,
Paharganj, New Delhi - 55
R/o 9368/1, Gali No. 8, Multani Dhanda,
Paharganj, New Delhi - 55
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 108/02
Date of the commission of the offence : 20.12.2001
Date of filing of the complaint : 11.11.2002
Name of the Complainant, if any : Shri M.K. Gupta, Food Inspector
CC No. 108/02
DA Vs. Ashok Kumar Arora Page 1 of 18
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (b) (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 : 16.07.2013
Judgment announced on : 26.07.2013
J U D G M E N T
1. The present complaint has been filed on 11.11.2002 by the Delhi Administration through FI Sh. M.K. Gupta against the accused Ashok Kumar Arora. It is stated in the complaint that on 20.12.2001 at about 6.00 PM, FI Sh. Virendra Singh purchased a sample of Dal Moth Dhuli, a food article for analysis from Sh. Ashok Kumar Arora S/o late Sh. Manohar Lal of M/s Arora Store, 9368/1, Gali No. 8, Multani Dhanda, Paharganj, New Delhi55, where the said food article was found stored for sale and where accused Ashok Kumar Arora was found conducting the business of the said food article at the time of sampling. FI Sh. Virendra Singh purchased approximately 750 gms of Dal Moth Dhuli taken from an open gunny bag having no label declaration. The sample was taken after proper mixing the Dal Moth Dhuli with the help of a clean and dry Jhaba under the supervision and direction of Sh. Surender Kumar, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles and each bottle containing the CC No. 108/02 DA Vs. Ashok Kumar Arora Page 2 of 18 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 the accused vide Vendor's Receipt dated 20.12.2001. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Ashok Kumar Arora and the other witness namely Sh. N.N. Sharma, 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. N.N. Sharma, FI joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. SK/LHA/001138 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. Ashok Kumar Arora S/o late Sh. Manohar Lal is the VendorcumProprietor of M/s Arora Store and as such he is incharge and responsible for day to day conduct of the business of the said shop. Thereafter, 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) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
CC No. 108/02 DA Vs. Ashok Kumar Arora Page 3 of 184. The accused was summoned vide order dated 11.11.2002. 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 analyzing the second counterpart of the sample in question opined vide his Certificate dated 03.05.2003 that "sample does not conform to the standards of food grains as laid down in item A.18.06.14 of Appendix B of the PFA Rules 1955".
5. The prosecution examined Sh. Surender Kumar, the then SDM/LHA as PW1, FI Sh. Virendra Kumar who conducted the sample proceedings against the accused as PW2 and Sh. M.K. Gupta, FI who filed the present complaint towards precharge evidence and vide order dated 30.05.2009, pre charge evidence was closed.
6. Charge for violation of sub clause (a) (b) (j) and (m) of Section 2 (ia) of the PFA Act and also 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 21.12.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined four witnesses including Sh. Surender Kumar, the then SDM/LHA as PW1, FI Sh. Virendra Kumar as PW2, FI Sh. M.K. Gupta, and FI Sh. N.N. Sharma, FI and PE was closed vide order dated 23.06.2011.
8. Statement of accused U/s 313 Cr.P.C. was recorded on CC No. 108/02 DA Vs. Ashok Kumar Arora Page 4 of 18 16.04.2012 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
9. The accused in his defence has examined Sh. Kamal Prakash as DW1 and also examined himself as DW2 and DE was closed vide order dated 21.01.2013.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for accused has vehemently argued that accused had purchased the sample commodity from M/s Gupta Food Corporation vide Bill Mark A and sold the sample commodity in the same condition as purchased by him from the aforesaid company and, therefore, accused is entitled to the benefit of warranty U/s 19 (2) of PFA Act. He further argued that 'Tartrazine' colour found in the sample of Dal Moth Dhuli is permissible as per clause (b) of Rule 29 of PFA Rules and in view of law laid down by the Hon'ble Delhi High Court in Delhi Administration Vs. Amar Chand, Crl LP No. 266 of 2012. Ld. Counsel for accused has further argued that Director, CFL has not complied the mandatory provision of Section 13 (2B) of PFA Act and has not signed his report within one month from receiving the sample. He further argued that sample lifted by the Food Inspector was not representative one which is evident from the variations in the report of Public Analyst and Director, CFL. He further argued that the test applied by the Director, CFL for detecting the synthetic colour is paper chromatography, which is not a sure test and, therefore, accused is liable to be given benefit of doubt.
12. On the other hand, the Ld. SPP for complainant has argued that CC No. 108/02 DA Vs. Ashok Kumar Arora Page 5 of 18 accused has not been able to prove the bill Mark A through which he claims to have purchased the sample commodity from M/s Gupta Food Corporation and, therefore, no warranty U/s 19 (2) of PFA Act can be granted to the accused. He further argued that colour 'Tartrazine' is not permissible in Dal Moth Dhuli and as per clause (b) of Rule 29 of PFA Rules, the colour 'Tartrazine' is permissible in savouries, but in the present case it was not the case of accused that he was making savouries of Dal Moth Dhuli. He further argued that there is no violation of Section 13 (2B) of PFA Act as memorandum and seal was received by the Director, CFL on 07.04.2003 and the report was prepared on 03.05.2003 i.e. within one month as required u/s 13 (2B) of the Act. He further argued that as per report of Director, CFL, the sample does not conform to the standards 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.
13. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint. PW1 Sh. Surender Kumar has deposed in his examinationinchief that on 20.12.2001, he being the SDM/LHA of the area along with FI Virender Singh and N.N. Sharma with other PFA staff went to M/s Arora Store, 9368/1, Gali No. 8, Multani Dhanda Paharganj, New Delhi55, where accused Ashok Kumar Arora was found conducting the business of the food articles stored for sale including Dal Moth Dhuli, which was stored in an open gunny bag bearing no label declaration. He further deposed that FI Virender Singh disclosed his identity and intention for taking the sample to which accused CC No. 108/02 DA Vs. Ashok Kumar Arora Page 6 of 18 agreed and thereafter FI purchased 750 gms of Dal Moth Dhuli on payment of Rs. 15 vide vendor receipt Ex. PW1/A. He further deposed that sample was taken after thoroughly mixing with a clean and dry Jhaba by rotating it in all possible directions and thereafter sample commodity was divided by FI 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 Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C was prepared by the FI at the spot and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that accused vide Ex. PW1/D also gave his statement at the spot to the effect that he is sole proprietor of the shop and his shop is not registered with sales tax department. PW1 further deposed that on 21.12.2001 FI deposited in his office two counterparts of sample along with 2 copies of form VII vide receipt Ex. PW1/F under intimation that one counterpart has already been deposited with PA for analysis vide receipt Ex. PW1/G.
14. During his deposition, PW1 has also placed on record letter sent by FI to STO, Ward No. 5 as Ex. PW1/J, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/K, complaint filed FI M.K. Gupta as Ex. PW1/L, copy of intimation letter sent to the accused along with PA report as Ex. PW1/M.
15. PW2 FI Sh. Virender Singh, who conducted the sample proceedings deposed on the similar lines as deposed by PW1 in his examination inchief.
16. PW3 FI M.K. Gupta deposed in his examinationinchief that CC No. 108/02 DA Vs. Ashok Kumar Arora Page 7 of 18 Director, PFA Sh. K.S. Wahi accorded the sanction Ex. PW1/K and authorize him to file the complaint and accordingly he filed the complaint Ex. PW1/L.
17. PW4 Sh. N.N. Sharma, FI who had accompanied the raiding party and was made a witness in the sample proceedings has deposed more or less on the similar lines as deposed by PW1 and PW2 in their examinationinchief.
18. PW1 in his crossexamination after charge stated that the Jhaba in question was provided by the vendor. He further stated that the Jhaba was not made clean and dry at the spot by the vendor. Voluntarily, he stated that it was already clean and dry. He further stated that the dal moth dhuli was put with the help of the said Jhaba in the transparent polythene bag and then it was weighed. He further stated that there was approximately 20 25 Kg of dal moth dhuli in the open gunny bag. He denied the suggestion that he was not present at the spot or that sample proceedings were conducted in his absence or that he remained seated in his official vehicle.
19. PW2 in his crossexamination admitted that vendor was running a retail shop and other pulses were also lying in the shop of the accused. He stated that clean and dry Jhaba was provided by the vendor. He further stated that other Jhabas were also lying at the spot. He further stated that Tartrazine is a water soluble colour and is permitted upto 100 ppm in sweets and confectionery but not in Dal Moth Dhuli. He denied the suggestion that bottles as well as pan scale were not clean and dry.
20. PW4 stated in his crossexamination that accused was also selling other daily need food items in his shop and there were many Jhabas in the CC No. 108/02 DA Vs. Ashok Kumar Arora Page 8 of 18 shop of the accused. He further stated that Jhaba in question was provided by the accused/ vendor. He stated that the Jhaba was not made clean and dry at the spot by the vendor or by the FI as it was already clean and dry. He admitted that Tartrazine is a water soluble colour. He denied the suggestion that when dal is washed in water then the entire colour of dal washes away. Voluntarily, he stated that some portion of the colour is absorbed by the dal and some portion washes away. He denied the suggestion that a representative sample was not taken.
21. The accused in his statement U/s 313 Cr.P.C. has not disputed the fact that on 20.12.2001 at about 6.00 PM, he was found conducting the business of food articles including Dal Moth Dhuli in his shop at M/s Arora Store, 9368/1, Gali No. 8, Multani Dhanda, Paharganj, New Delhi, when PFA Team including FI Virendra Singh and FI N.N. Sharma under the supervision and direction of SDM/LHA Sh. Surender Kumar visited his shop and a sample of Dal Moth Dhuli was lifted by the Food Inspector which on analysis was found adulterated. However, it was contended by the accused that before taking the sample, the FI had not mixed the Dal properly with the help of a Jhaba. It was further contended by accused that he is running a retail shop and not the manufacturer of the sample commodity and he had purchased the Dal Moth Dhuli from M/s Gupta Food Sales Corporation.
22. 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/H. The Public Analyst vide his report Ex. PW1/H found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. The accused on appearing CC No. 108/02 DA Vs. Ashok Kumar Arora Page 9 of 18 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, who also vide his report/certificate dated 03.05.2003 found the sample not conforming to the standards of food grains as laid down in item A.18.06.14 of Appendix B of the PFA Rules 1955.
23. From the aforesaid crossexamination of the PWs and statement of accused U/s 313 Cr.P.C., the defence of the accused appears to be that a representative sample was not taken by the Food Inspector as the Jhaba used in the sample proceedings was not made clean and dry. It was further defence of the accused that he is entitled for benefit of warranty U/s 19 (2) of PFA Act as he had purchased the sample commodity from M/s Gupta Food Sales Corporation and sold the sample commodity in the same condition as purchased by him from the aforesaid company.
24. First of all, I shall deal with the contention of the accused regarding his claim for benefit of warranty U/s 19 (2) of PFA Act.
25. In the present case, it is not in dispute that sample of Dal Moth Dhuli was lifted from the accused which on analysis was found to be adulterated. The accused has claimed that he had purchased the Dal Moth Dhuli from M/s Gupta Food Sales Corporation and sold the said Dal Moth Dhuli in the same condition/state as purchased by him from the aforesaid company. The accused has also placed on record the photocopy of the Bill issued by aforesaid company as Mark A showing the purchase of Dal Moth Dhuli from the aforesaid company.
26. In order to prove this contention, the accused has examined one Sh. Kamal Prakash as DW1, who is sole proprietor of the firm M/s Gupta Food CC No. 108/02 DA Vs. Ashok Kumar Arora Page 10 of 18 Corporation, from whom the accused claims to have purchased the sample commodity. DW1 Sh. Kamal Prakash stated in his examinationinchief that he was sole proprietor of the firm M/s Gupta Food Corporation in the year 2001 also and their business in that year was sale & purchase of Dals of various kinds, including Dhowa Moth and they used to sell their Dals in stitched bags only. He further stated that the Bags were of different manufacturers, bearing their brand name. The witness was shown the document Mark A and on seeing the document, DW1 stated that he is unable to say whether the same was issued by his Firm or not. He further stated that he does not know accused Ashok Arora, present in the Court.
27. The said witness DW1 was crossexamined by Ld. Defence Counsel. In his crossexamination, DW1 denied the suggestion that vide Bill Mark A, he had sold 8 Kattas of Dhowa Moth to Arora Store of Multani Dhanda.
28. The accused has also examined himself as DW2 and stated in his evidence that he is running a shop under the name and style of M/s Arora Store at 9368/1, Gali No. 8, Multani Dhanda, Paharganj, Delhi since the year 1964 and on 20.12.2001, a sample of Dal Moth Dhuli was lifted by FI Sh. Virender Singh from his shop at about 6.00 PM. He further stated that he had purchased 8 Katta of the sample commodity from M/s Gupta Food Corporation through the Bill Mark A on 18.12.2001 and the FI lifted the sample of this Dal which was purchased by him from the above mentioned supplier.
29. In the crossexamination, DW2 stated that each Katta was having 50 Kg of Dal Moth Dhuli in it when he purchased the same from the above mentioned supplier and at that time all these Kattas were in stitched CC No. 108/02 DA Vs. Ashok Kumar Arora Page 11 of 18 condition. He admitted that the FI lifted the sample from open Katta (gunny bag), lying in his shop. He further admitted that the said gunny bag was bearing no label or declaration. He stated that he had sold approximately 1015 Kg of Dal Moth Dhuli from the above mentioned Katta from which the sample was lifted.
30. From the aforesaid evidence produced by the accused, it is evident that accused has not been able to prove the purchase of sample commodity from M/s Gupta Food Corporation vide Bill Mark A. The bill Mark A, through which the accused claimed to have purchased the sample commodity from M/s Gupta Food Corporation, has not been proved as per law because the maker of the Bill i.e. DW1 who is the sole proprietor of the aforesaid Firm M/s Gupta Food Corporation categorically denied in his crossexamination that vide Bill Mark A, he had sold 8 Kattas of sample commodity to the Arora Store, of which accused is the sole proprietor. He even did not recognize the accused present in the court.
31. It has also come on record from the evidence of DW1 that they used to sell their dals in stitched bags only and the bags were of different manufacturers bearing their brand names. Accused has also admitted in his cross examination that when he purchased the Kattas of sample commodity from M/s Gupta Food Corporation, the same were in stitched condition. Whereas, the accused was found selling the Dal Moth Dhuli in loose condition in open gunny bag which fact has also been admitted by the accused in his crossexamination. Further, the open gunny bag from which the sample commodity i.e. Dal Moth Dhuli was lifted, was having no label declaration, while as per DW1 the bags in which their Dals were kept were having their brand names on it. As such, the CC No. 108/02 DA Vs. Ashok Kumar Arora Page 12 of 18 accused has further failed to prove that he was selling the Dal Moth Dhuli in the same condition or state in which he had purchased from M/s Gupta Food Corporation. Therefore, accused cannot be said to be entitled for benefit U/s 19 (2) of PFA Act as claimed by him.
32. Now, coming to the next contention of the Ld. Counsel for accused that synthetic colour 'Tartrazine' is permissible in Dal Moth as per clause
(b) of Rule 29 of PFA Rules.
33. From the foregoing discussions, it is not in dispute that sample of Dal Moth Dhuli was lifted from the shop of the accused. The sample was sent to the Public Analyst for analysis. The Public Analyst after analyzing the sample vide his report Ex. PW1/H found the same adulterated because synthetic colour viz. 'Tartrazine' was detected in the sample which is not permissible under PFA Act and Rules. Similar view has been taken by the Director, CFL after analysing the second counterpart of the sample vide his report/certificate dated 03.05.2003.
34. As per Ld. Counsel for accused, synthetic colour which was found in the sample i.e 'Tartrazine' is permissible in Dal Moth etc. as per clause
(b) of Rule 29 of PFA Rules 1955 and, therefore, sample of Dal Moth Dhuli lifted from the accused cannot be said to be adulterated. In this regard, he has placed reliance upon the judgment passed by the Hon'ble Delhi High Court in "Delhi Administration Vs. Amar Chand", cited supra.
35. I have gone through the aforesaid authority relied upon by the Ld. Counsel for accused. In the said case, a sample of Dal Moth was lifted by the Food Inspector from the respondent, which on analysis by the Public Analyst was found to be adulterated being coloured with synthetic colouring matter i.e CC No. 108/02 DA Vs. Ashok Kumar Arora Page 13 of 18 tartrazine. It was observed by the Hon'ble Delhi High Court that Rule 28 of PFA Rules permits use of certain synthetic food colours of mixtures thereof in food. One of the colours that is permissible to be used in food is yellow, commonly known as 'Tartrazine. Rule 29 prohibits use of permitted synthetic fool colours in the food items other than those mentioned therein. Clause (b) thereof provides for use of permitted synthetic food colours including Tartrazine in the savouries such as Dal Moth etc. With these observations, the Hon'ble High Court held that, "Tartrazine being synthetic food colour and permissible in the food as per Rule 28 and Dal Moth which is undisputedly a food item, then, as per Rule 28, this is not a prohibited colour because Clause (b) of Rule 29 provides for use of permitted synthetic food colours including Tartrazine in the savouries such as Dal Moth etc."
36. In the said case, the Hon'ble High Court of Delhi relying upon the clause (b) of Rule 29 of PFA Rules, which permits the use of permitted synthetic colour including 'Tartrazine' in savouries such as Dal Moth etc, held that synthetic colour 'Tartrzine' is permissible in Dal Moth. But, in the present case, it was not the case of the accused that he was making savouries of Dal Moth Dhuli. Neither in his defence nor in the evidence of PWs, any such plea has been taken by the accused. Therefore, facts of the present case are distinguishable from the facts of the case referred in the aforesaid authority relied upon by the Ld. Counsel for accused and hence same is not applicable in the facts and circumstances of the present case. The clause (b) of Rule 29 of PFA Rules which permits the use of permitted synthetic colour including 'Tartrazine' in the savouries does not come to the rescue of the accused and it cannot be said that synthetic colour 'Tartrazine' is CC No. 108/02 DA Vs. Ashok Kumar Arora Page 14 of 18 permissible in Dal Moth Dhuli, sample of which was lifted in the present case and this contention of Ld. Counsel for accused is rejected.
37. Next contention of the Ld. Counsel for accused is regarding violation of Section 13 (2B) of PFA Act by the Director, Central Food Laboratory. It has been contended that sample of Dal Moth Dhuli was received by the Director, CFL on 13.12.2002, whereas he prepared his report/certificate on 03.05.2003 after analyzing the sample and in this manner, he has violated the provision of Section 13 (2B) of PFA Act.
38. Section 13 (2B) of PFA Act reads as under: "On receipt of the part or parts of the sample from the Local (Heath) Authority under subsection (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of subsection (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and dispatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed from within one month from the date of receipt of the part of the sample specifying the result of the analysis."
39. Perusal of the report/certificate of the Director, Central Food Laboratory reveals that sample of Dal Moth Dhuli was received by him on 13.12.2002 and after analyzing the sample, he gave his report on 03.05.2003 i.e. after about 5 months from receiving the sample. As per Section 13 (2B) of PFA Act, the Director, Central Food Laboratory (CFL) is required to send his report after analyzing the sample within one month from the date of receipt of the sample. However, there is a noting by the Director, CFL on his certificate that "Memorandum in Form I and specimen seal, seal impression used to seal the CC No. 108/02 DA Vs. Ashok Kumar Arora Page 15 of 18 parcel of the sample received on 07.04.2003 from the Hon'ble Court." Therefore, in the absence of memorandum, specimen and seal impression, the Director, CFL could not have analyzed the sample even if he had received the sample on 13.12.2002 and when he received the memorandum, specimen and seal impression on 07.4.2003, he anlayzed the sample and prepared his report on 03.05.2003 within one month from receiving the memorandum etc. on 07.04.2003. Therefore, it cannot be said that there is any violation of Section 13 (2B) of PFA Act by the Director, Central Food Laboratory as contended by the Ld. Counsel for accused.
40. The last contention of the accused is that a representative sample was not lifted by the Food Inspector as sample commodity was not properly mixed with the clean and dry Jhaba. In this regard, though the PWs stated in their crossexamination that Jhaba in question was provided by the accused and same was not made clean and dry as it was already clean and dry, but it is also undisputed fact that accused was running a retail shop and other food articles were also lying at the shop of the accused at the time of sample proceedings as also admitted by PWs in their crossexamination. Therefore, the possibility of contamination of Jhaba with the other food articles or colouring matter cannot be ruled out.
41. This contention of the accused that a representative sample was not lifted by the Food Inspector is substantiated from the variations in the report of Public Analyst and Director, Central Food Laboratory (CFL). As per report of Public Analyst (PA) Ex. PW1/H, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of 8.19%, while CC No. 108/02 DA Vs. Ashok Kumar Arora Page 16 of 18 Director, Central Food Laboratory found the same to the tune of 10.12%. Similarly, Public Analyst vide his report Ex. PW1/H found the 'Foreign matter organic' to the extent of 0.040% and 'Foreign matter inorganic' to the extent of 0.023%, whereas Director, CFL, found the 'Total foreign matter Organic' Nil.
42. The variations in the report of aforesaid two Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 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.
43. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst (PA) and Director, Central Food Laboratory, which is beyond the permissible limit of .3 %, it appears that sample was not representative one and therefore, benefit of doubt is liable to be given to the accused.
44. Further, a perusal of report of Public Analyst Ex. PW1/H shows that Public Analyst has not disclosed the method applied for detecting the CC No. 108/02 DA Vs. Ashok Kumar Arora Page 17 of 18 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.
45. 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 Moth Dhuli. 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. 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 authority cited supra, report of Director, CFL cannot be said to be a valid report.
46. In view of aforesaid discussions, prosecution has not been able to prove its case against the accused beyond reasonable doubt and accused is liable to be given benefit of doubt. Accordingly, benefit of doubt is given to the accused and the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 26th July, 2013 ACMMII/ PHC/ New Delhi
CC No. 108/02
DA Vs. Ashok Kumar Arora Page 18 of 18
CC No. 108/02
DA Vs. Ashok Kumar Arora
26.07.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.K. Sharma.
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/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/26.07.2013 CC No. 108/02 DA Vs. Ashok Kumar Arora Page 19 of 18