Delhi District Court
Ashok Kumar vs . The State (Govt. Of Nct Of on 26 July, 2022
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ASHOK KUMAR VS. THE STATE (GOVT. OF NCT OF
DELHI
CA No. 102/2017
Sh. Ashok Kumar
S/o Sh. G.R. Yadav,
R/o C10, Shashtri Park, Main Road,
Delhi 110053 ......Appellant
Versus
The State
[Govt. of NCT of Delhi] ......Respondent
Date of Institution: 18.05.2017
Date of decision : 26.07.2022
CA No. 102/20179
Ashok Kumar Vs. The State 1/15
JUDGMENT
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction dated 29.04.2017 and order on sentence dated 03.05.2017 passed by Ld. ACMMII, Patiala House Courts, New Delhi.
2. The brief facts of the case as per record are that accused was running an establishment in the name of M/s Ganga Dairy at Shashtri Park, Main Road, Delhi. On 30.05.2010, Food Inspector Ranjeet Singh alongwith Field Assistant Bhopal Singh and SDM Sh. Vipin Garg visited the said establishment and lifted 750 grams of Paneer from an open steel tray kept at the premises. The said sample was divided into three parts and packed as per Rules. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not conform to the standard because milk fat of dried matter was found to be 46.94%, which was less than prescribed minimum limit of 50%. The said analysis was carried out during the period 10.06.2010 to 16.06.2010 and the result was prepared on 24.06.2010.
3. As the sample failed to pass the test, prosecution was launched by Food Inspector by filing complaint dated 01.02.2011 with the court. Accused was summoned. He exercised his right under Section 13(2) PFA Act and got the second sample analyzed by CFL. CFL gave report dated 03.03.2011 after analyzing the sample during the period CA No. 102/20179 Ashok Kumar Vs. The State 2/15 24.02.2011 to 03.03.2011. According to the said report, the dried matter had milk fat of about 42.56%, which is further lower by about 4% when compared with the report of the public analyst.
4. Notice of accusation was served upon the accused under Section 2(ia) (a) & (m) of PFA Act; punishable under Section 16 (1) (a) r/w Section 7 of the Act of 1954 in these facts and circumstances.
5. After trial, vide judgment dated 29.04.2017, accused was convicted for offence under Section 16 (1) (a) of PFA Act and vide order dated 03.05.2017, accused was directed to undergo simple imprisonment for a period of 1 year and fine of Rs.40,000/ and in default of payment of fine SI of 15 days.
6. During the hearing of the appeal, Ld. Counsel has raised several contentions. I have divided the same under various heads based on the factual and legal question involved.
A) Delay in analysis and lodging of prosecution:
7. Ld. Counsel for the appellant has firstly stated that in the present case, the sample was lifted on 30.05.2010. Thereafter, the report of the public analyst was prepared on 24.06.2010 i.e. 26 days after the collection of sample.
8. Counsel has emphasized that the present case pertain to perishable food article i.e. paneer, which is a milk product and therefore, the same does not have very long shelf life. He has next contented that CA No. 102/20179 Ashok Kumar Vs. The State 3/15 not only there was delay on this account itself, there was a further delay of 8 months in the filing of the complaint. It was only when, after 8 months, the complaint was filed, the accused got an opportunity to get the second sample tested under Section 13 (2) of PFA Act. However, due to the delay caused in lodging of prosecution, such valuable right of the accused can be said to have been clearly defeated, as under no circumstances, paneer could have been fit for testing/analyzing after such a long period of time.
9. Ld. Counsel has relied upon the decision in State Vs. Vinod Kumar Gupta, 2010 (2) JCC 987, where lodging of prosecution even after 4 months was rejected on the account of delay as it would defeat the right of the accused for getting the sample tested for the second time.
10. Counsel has, in support of his contention, further relied upon the decision in MCD Vs. Ghisa Ram, Criminal Appeal No. 194/66 in SC of PFA cases 19511975 at page 93 and decision in Chanan Lal Vs. State, 1972 PFA Cases 292, as also, Girish Bhai Dahiyabhai Shah Vs. CC Jani, 2009 (2) FAC 194.
11. Counsel has next urged, even if it was argued that sample was fit for testing, that judicial notice can be taken of the fact that ordinarily in paneer, milk fat decreases with time. Ld. Counsel has relied upon the decision in State Vs. Praveen Aggarwal, 2012 (2) FAC 124 and State Vs. V.K. Mutto, 2008 (1) FAC 320.
B) On the manner of taking the sample:
CA No. 102/20179 Ashok Kumar Vs. The State 4/15i) Sample not representative:
12. Counsel has next urged that in the present case about 34 bricks of paneer were lying at the shop of the appellant (as per the admission made by PW1 in his evidence and cross examination), however, team had taken only one whole brick for the purposes of sample. Counsel submits that one brick of paneer was not representative of the entire lot of paneer lying at the shop of the appellant. In support of his contention that a portion of paneer should have been taken from all the bricks available and mashed together. He has relied upon the decision in Delhi Administration Vs. Suraj, 2014 (1) FAC 264.
ii) Non compliance of Rule 14 of PFA Rules in lifting sample:
13. Ld. Counsel for the accused has stated that the tray on which the paneer was placed and cut into small pieces was never cleaned before mashing of the sample on the same. Further, although, in the examination in chief, witness has stated that a clean and dry knife and tray was used by him for the purposes of mashing the paneer but in the cross examination he admitted that he had not made the knife clean and dry at the spot, nor the vendor had made the same clean and dry as it was appearing to be already clean and dry. Therefore, he has urged that the witness was required to make positive assertion in his affidavit that he had cleaned and dried the equipment used for the purposes of sampling and merely because the witness states that clean apparatus was used without positively indicating when he had the cleaned and dried, is not in CA No. 102/20179 Ashok Kumar Vs. The State 5/15 compliance of Rule 14 of PFA Rules.
14. I have gone through the trial court record, record of this appeal, submissions forwarded by counsel for appellant and Ld. SPP for State. My observation as as below: Delay in analysis and lodging of prosecution:
15. The analysis of the arguments on this ground was done by the trial court from para 27 onwards. The Trial Court has also noted from para 47 onwards that reliance placed by the accused on judgment of Chanan Lal Vs. State, 1972 FAC 292 was misplaced. On the other hand, the trial court has relied on various judgments of Hon'ble Supreme Court, Hon'ble High Court of Delhi and other Hon'ble High Courts of India. Ld. Trial court had come to the conclusion that in case, the CFL found that the sample was "Fit for Analysis", the result given by it is conclusive and does not require any interference. It also held that there is nothing on record which shows that the sample was not fit for analysis. It is further stated that no sample can be discarded on the basis of expiry of shelf life if it is opined by CFL that it is fit for analysis.
Decision
16. In this case, the sample was lifted on 30.05.2010. Deposited by FI with Public Analyst on 31.05.2010. The same was analyzed by Public Analyst from 10.06.2010 to 16.06.2010. The prosecution was launched on 01.02.2011. The sample was received by CFL on 23.02.2011. The analysis was done from 24.02.2011 to 03.03.2011 and CA No. 102/20179 Ashok Kumar Vs. The State 6/15 the report was made by CFL on 03.03.2011.
17. It is noted that from the date of taking of sample i.e. 30.05.2010 and the date on which the CFL started examination i.e. 24.02.2011, there is a gap of about 8 months and the shelf life of Paneer may already be over.
18. At this stage, the decision in Chanan Lal Vs. State, 1972 FAC 292 passed by Hon'ble High Court of Delhi may be referred to. In the said judgment, Delhi High Court had noted the evidence of two persons namely Sh. P. P. Bhatnagar, then Public Analyst and Sh. B. D. Narang, an Expert in the Field of Food Analysis before it. Para 7 and 8 of the judgment are as below: "Para 7 Sh. P. P. Bhatnagar is the Public Analyst of the Municipal Corporation of Delhi. He is a graduate in Science with Chemistry as one of the subjects and entered service in the year 1952 as a Chemist. He has been analyzing articles of food since them. He had been working as a Public Analyst for the New Delhi Municipal Committee and also for Delhi Cantonment Board since September, 1964. He states that if two drops of formalin are added to 25 grams of Paneer and the same is kept in sealed bottle, it will be fit for analysis at least for a period of 8 months. He further states that in case the contents leak out of the bottle, a part of formalin CA No. 102/20179 Ashok Kumar Vs. The State 7/15 will go out with it and there was likelihood of the Paneer getting decomposed. The action of formalin is to arrest the growth of bacteria and preserve the status quo. The period for which the sample will remain fit for analysis will depend upon the fact whether it was prepared from fresh milk or from sour milk. Moreover, if, at the time of taking the sample, the decomposition has set in, the addition of formalin will not be able to preserve the Paneer for the average period of 8 months. The weather conditions will also affect. In case of Paneer prepared from sour milk, the period of fitness will go down by two of three months. This witness never carried out any tests to find out the period during which Paneer will remain fit for analysis after formalin had been added to it.
Para 8 Dr. B. D. Narang is an M. Sc. (Hons.) in Chemistry from Punjab University any Ph. D. in Chemistry from University of Texas (USA). He has been in the field of food analysis for about 28 years and has been working as a Public Analyst since 1959. He is a member of the Central Committee for Food Standards, a statutory body of the Government of India. He claims to have carried out experiments CA No. 102/20179 Ashok Kumar Vs. The State 8/15 to find out the period of fitness of Paneer. His experiments consisted of preparing the Paneer in the laboratory after buying the milk. He had prepared two sets of sample bottles of Paneer. To one set, he did not add formalin, but had put them in dry clean bottles, which were later on sealed. The other set of bottles in which Paneer had been put in, he had added requisite drops of formalin and sealed them. From each set, some of the bottles were kept at room temperature while the rest in a refrigerator. His observations were that the sample of Paneer to which formalin had been added remained fit for analysis for about one month when kept in the refrigerator. If the same was kept at room temperature, it remained fit from 11 to 15 days. Samples to which no formalin was added and was kept at room temperature, he found, that it started giving slight putrid smell the following day and became decomposed on the 5th day. A similar sample kept in the refrigerator did not give him satisfactory values and so he discarded this part of the experiment."
19. In para 11 of the said judgment, the testimony of Dr. B. D. CA No. 102/20179 Ashok Kumar Vs. The State 9/15 Narang was relied upon and testimony of Sh. P. P. Bhatnagar was discarded stating that the statement of Sh. P. P. Bhatnagar is based on general observation while that of Dr. B. D. Narang is based on experiments conducted by him.
20. In para 13 of the said judgment, High Court held that "it is safe for me to assume that the sample of Paneer to which requisite drops for formalin have been added and which is kept in refrigerator would remain fit for analysis for about one month".
21. Now in the present case, it seems there is no dispute that formalin was added to the paneer. Why such an exercise was carried out? So, as per the rules framed in consonance with the Prevention of Food Adulteration Act, formalin is added as preservative. A preservative is a thing which increases the shelf life of a food article. The question that arises before this court is as to by how many months shelf life of paneer is raised if formalin is added? Although, the question seems to be case specific, however, if one was to consider the observations made by the Delhi High Court in the Chanan Lal's case, it can be said to some extent that the High Court has laid down a broader principle when it comes to dealing with perishable food items, which at least, would apply to paneer samples with greater rigor. The conclusion in para 13 of the said judgment "that the shelf life of the Paneer after adding formalin and kept in refrigerator, is one month", cannot be ignored nor treated as a pure question of fact. Rather, it amounts to laying down a general proposition that shelf life of paneer even after addition of formalin could CA No. 102/20179 Ashok Kumar Vs. The State 10/15 ordinarily be one month. By no stretch of imagination, it can be taken to extend up till 8 months, as seems to have been considered by the Trial Court.
22. The reasoning of the Trial Court that if the CFL found the sample fit for analysis, then the period does not matter, runs counter to the reasoning/ratio as laid down by the Delhi High Court.
23. So, in these circumstances, it can be held that formalin can only have effect as preservative up to a period of one month if the samples are kept in refrigerator. Moreover, in the present case there is no affirmative evidence that the remaining samples were preserved in refrigerator for the remaining period. It was for the prosecution to prove that the samples were preserved in refrigeration after adding the formalin until it dispatch to CFL after the filing of complaint.
24. The decisions in MCD Vs. Ghisa Ram, Criminal Appeal No. 194/66 in SC of PFA cases 19511975 at page 93 and Girish Bhai Dahiyabhai Shah Vs. CC Jani, 2009 (2) FAC 194 also support the case of the accused.
25. Moreover, there are certain other aspects which need to be noted in the present case. The report of the public analyst gives specific description of the physical appearance of the sample as follows:
ii) Physical appearance: White coloured sample of paneer.
26. The CFL report also gives the physical appearance of the sample and the same is as follows:
CA No. 102/20179Ashok Kumar Vs. The State 11/15
ii) Physical appearance: Off white solid pieces of paneer.
27. Therefore, from the aforesaid, it is obvious that the colour of the sample Paneer had already undergone change from "White" to "Off white" during the period between the analysis by the public analyst on 24.06.2010 and its examination at the CFL on 03.03.2011. Can this aspect be ignored? Is this change in the colour of the sample not indicative of the decay setting in or of the fact that the sample was not representative?
28. The matter does not rest here. It is also noteworthy that the moisture content of the two samples also has a difference of almost 3% while it was 62.07% as per report dated 24.06.2010, it had come down to 59.17% on 03.03.2011 when the CFL examined the sample.
29. This fact also has to be seen in the background of the manner in which the sample were collected. I may note here that witness PW1 had noted in examination in chief that:
The Paneer was lying in the shape of bricks. Before taking the sample, 1 entire brick having a weight of approximately 750 gms was cut into smallest possible pieces with the help of a clean and dry knife in another clean and dry Steel Tray. The pieces of Paneer were mixed properly with the help of clean and dry spoon and then this quantity was put equally into three clean and dry sample glass bottles. 20 drops of formalin were added in each CA No. 102/20179 Ashok Kumar Vs. The State 12/15 sample bottled with the help of a clean and dry Dropper. All the three sample bottles were packed, fastened, marked and sealed, according to PFA Act and Rules, after affixing LHA slips, bearing the signature and code number of LHA. Vendor signed on each counterpart in such a manner so as to appear partly on the LHA slip and partly on the wrapper of the counterpart.
30. In the cross examination on this very aspect, the witness deposed as follows:
The paneer was lying in an open Tray, kept over the Counter of the shop in question. 34 bricks of the Paneer of different weight and size were available and the total weight of all the bricks was approximately 22 ½ kg. Only only brick was selected as sample. I did not mash the brick of Paneer but, cut the same into pieces for sample proceedings. The knife in question was provided by the vendor, which was dry and clean. The knife was not made clean and dry at the spot by the vendor or by any of us as the same was appearing to be clean and dry.CA No. 102/20179
Ashok Kumar Vs. The State 13/15
31. Therefore, clearly, firstly, it was an admitted position that 3 4 bricks of Paneer of various weight and size were available, yet, only one brick was selected as sample. The same has already been considered as a incorrect method of taking of sample by the court in Delhi Administration Vs. Suraj, 2014 1 FAC, where the High Court was dealing with a case pertaining to the identical food item, namely, paneer and the sample was restricted to one brick of paneer out of the many.
The Delhi High Court observed as follows:
The trial court has rightly reached a conclusion that the entire lot of bricks of paneer lying in the tray was not cut into pieces and the sample was not taken from the entire lot, which is in contradiction to the provisions of the PFA Act, as per which the Food Inspector was required to homogenize the entire lot of bricks of paneer and then take a sample from the same. In view thereof, the first ground, which has been urged by the appellant i.e. there was no necessity to take the sample from all the bricks of paneer is without any merit.
32. Further, admittedly, in the present case, even this sample was not mashed but only cut into pieces, thereby a small piece cut out of the brick cannot even be considered as representative of the entire brick.
33. Lastly, the witness also admitted that the knife used for CA No. 102/20179 Ashok Kumar Vs. The State 14/15 cutting was neither made clean nor dry by the raiding team. The cross examination of PW2 also categorically admits that 34 bricks were lying and Paneer was not mashed before taking the sample.
34. In view thereof, it can be held that the sample taken was not non representative as well as there was violation of Rule 14 as far as the method of sampling is concerned.
35. In these circumstances, the analysis of the different samples by public analyst and the CFL is also hit by the defective manner in which sampling was carried out. In case, the samples are non representative, benefit has to be given to the accused.
36. Therefore, in view of the aforesaid findings/observations, accused is hereby acquitted.
37. TCR be returned.
38. File be consigned to Record Room.
Announced in the open court (Harjyot Singh Bhalla) on 26.07.2022 ASJ04, New Delhi CA No. 102/20179 Ashok Kumar Vs. The State 15/15