Delhi District Court
Sh. K. N. Pandey (Krishna Nand Pandey) vs The State ( Govt. Of Nct Of Delhi) on 4 January, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 12.11.2010
Date of judgment reserved on : 23.12.2010
Date of decision : 04.01.2011
Criminal Appeal No.50/2010
1. Sh. K. N. Pandey (Krishna Nand Pandey)
@ K. R. Pandey S/o Sh. A. N Pandey
M/s. Ved Ram & Sons
B56, Site No. IV, Industrial Area,
Sahibabad, Distt.Ghaziabad, UP.
R/o C11, Prehlad Garhi (Nr. Sons Sweets Corner)
Sahibabad,Distt. Ghaziabad, UP.
Permanent Address : MIG144, Rajendra Nagar,
Gorakhpur, UP.
2. Sh. Phirey Singh S/o Sh. Gir Raj Singh
M/s. Ved Ram & Sons
B56, Site No. IV, Industrial Area,
Sahibabad, Distt.Ghaziabad, UP.
3. M/s. Ved Ram @ Sons
B56, Site No. IV, Industrial Area,
Sahibabad, Distt.Ghaziabad, UP. .... Appellant / accused
Versus
The State ( Govt. of NCT of Delhi) ..... Respondent
Page No. 2
J U D G M E N T : This appeal is challenging conviction judgment dt. 24.04.2008 and consequently order dt. 08.05.2008 on the point of sentence whereby Sh. K. M. Pandey vendor and Manager of M/s. Ved Ram & Son, Shri Phirey Singh nominee appointed by firm M/s. Ved Ram & Son and the firm M/s. Ved Ram & Son were convicted under section 7/16 of the Prevention of Food Adulteration Act. Accused K. N. Pandey was awarded six months RI with fine of Rs. 2000/ ID to further undergo 15 days SI, accused Phirey Singh has also been awarded the same amount of sentence and the firm M/s. Ved Ram & Son has been imposed a fine of Rs. 3000/.
Facts leading to prosecution of accused persons for said offence are that on 11.01.1997 at around 2AM , Food Inspector Suniti Kumar Gupta and a team of officials from the Department of PFA intercepted a milk tanker bearing printed description "Cow Milk" and tanker bearing registration no UP138724 at ITO Bridge ,Shakur Pur, Delhi. Milk sample 750 ml. was drawn from the vendor Shri K. N. Pandey. Milk was meant for sale in Delhi for human consumption. The sample was drawn after homogenizing milk contents by clean and dry stainless steel plunger. Sample milk was divided in three parts and 20 drops of formalin were added in each bottle. Bottles were clean and dry and were packed, Page No. 3 fastened and marked. Relevant documents were prepared. One part of the sample was deposited with Public Analyst , Food Laboratory, Government of NCT of Delhi and a report Ex. PW1/F was received that sample did not conform standards laid down under item A.11.01.11 of AppendixB of PFA Rules, because it showed presence of skimmed milk powder.
Sanction for prosecution Ex. PW1/H was obtained from Director PFA and complaint was filed. Copy of the report of the Public Analyst was served upon accused by sending notice of the same through registered post. Investigation had revealed that milk in the tanker belonged to M/s. Ved Ram & Son a partnership firm as was disclosed by Shri K. N. Pandey in his own hand writing as Ex. PW1/D and the tanker in question i.e., UP 138724 was found registered in the name of M/s. Ved Ram & Son. Accused Phiry Singh was found to be nominee appointed by the firm M/s. Ved Ram & Son for the purposes of the Act. Notice for exercise of option under section 13(2) PFA Act was sent to Phire Singh as well M/s. Ved Ram & Son also. Accused K. N. Pandey exercised an option for analysis of the counterpart of the sample by Central Food Laboratory. Vide proceeding dt. 12.9.1997 the counterpart sample was directed to be sent to CFL, Colcutta. Report Ex. PX was received to the effect that sample cow milk was adulterated due to "residual pesticides" found exceeding its permissible limits as per the standards under rules 65 of the PFA rules. Page No. 4
Trial commenced with notice of offence as a summons trial case was served upon accused persons to the effect that sample of the cow milk sold in this case on 11.01.1997 was adulterated as contents alpha HCH.089, beta HCH.025, gama HCH.015 and delta HCH.040 pesticide was in excess of the prescribed tolerance limits .05, .02,.02 and .02 respectively in PPM. Accused persons claimed trial.
On analysis of the evidence which came on record in the form of statement of LHA Shri R. K. Ahuja PW1, FI Sumiti Kumar Gupta as PW2, trial court found the offence duly proved and accordingly convicted the vendor Shri K. N. Pandey, Phirey Singh as nominee of the firm M/s. Ved Ram & Son and the firm M/s. Ved Ram & Son for offence under section 7/16 and awarded the sentence.
Shri P. R. Thakur Ld. counsel along with Shri M. K. Gupta counsel for the appellants argued that conviction judgment suffers illegality and was unsustainable. Taking of sample from a moving tanker was not permissible and for that proposition Ld. counsel relied upon a Supreme Court judgment 1996 (3) : RCR : 313 . Ld. counsel argued that meaning of the word "storage" came up for consideration and it was held that accused traveling in truck with paddy in a case of quantity permitted for storage, it came to be held that merely carrying goods in a vehicle would not amount to storage of goods. Counsel submitted that if the milk in tanker could not Page No. 5 be taken as storage then it was not permissible to draw a sample from tanker. This contention appears to be a misplaced one. The Supreme Court judgment while considering the meaning of the word "storage" was dealing with a case under Essential Commodities Act. Expression "storage" to be examined and considered in context of that would have a least relevance in the case under Prevention of Food Adulteration Act which has not been a case pleaded in defence that milk in the tanker in question was not for sale or that it was being carried for any other purpose. This arguments accordingly fails.
Ld. counsel then argued the point with great vehemence that accused persons were seriously prejudiced by a delay of more than seven months in filing of the complaint and consequently a valuable right under section 13 (2) PFA Act exercised by the accused was defeated. Ld. counsel argued that there were several judgments, the leading judgment being in Bishan Swaroop case where it came to be held that sample of milk or milk product even if added with a preservative and kept in a refrigerated condition would preserve its potentiality for a period of four months and thereafter it will start loosing in its potential and for that reason report by CFL, where milk sample was examined after a gap of four months and particularly in the present case after a gap of nine months , could not be relied upon. Ld. counsel referring to Bishan Swaroop Page No. 6 judgment (1972 : FAC : 273) read out where it has been held that the finality attaching to certificate of CFL was only in regard to what was stated in it. Even after this certificate it was open to the accused to show that in the facts of the given case and on a concrete objective grounds that he may prove on record that the sample sent for analysis to the Director, could not be taken to be a representative sample of the article. Ld. counsel then drew court's attention to the report of the Public Analyst and subsequent report of the CFL, Colcutta in this case and pointed out that whereas in the PA report fat contents in the sample was found 8.2% and solid not fat 8.95% and milk fat at 5.6% as per CFL report. Ld. counsel submitted that variance in two report in the fat and solid not fat contents must reflect that milk was not duly homogenized and thus sample could not be said to be a representative of the whole quantity of milk. Counsel argued that in such a case where milk was found stored in a tanker then homogenization ought to have been taken up by a agitator and it would not possible by a plunger. Counsel further argued that whereas Public Analyst found sample adulterated for the reason that it did not conform cow milk standards because of presence of skimmed milk powder whereas the CFL found sample adulterated because of another reason i.e., the presence of residual pesticides exceeding the limits. In this regard Ld. counsel drew attention of this court to the Manual of Methods of Tests and Analysis for Page No. 7 Food (Insecticide Residues) issued by Directorate General of Health Services, Ministry of Health and Family Welfare, Govt. of India, New Delhi. On the basis of this manual a minimum quantity for testing residual pesticide has been prescribed to be 1 ltr., and the preservative to be added for this test is potassium dichromate containing 1% amyl alcohol. Counsel submitted that Public Analyst rightly did not takes up analysis of the sample for the residual pesticide because of ineligible quantity of the milk and non presence of the said preservative. The analysis taken up by CFL for the residual pesticide thus was liable to be ignored as in the absence of a quantity of sample milk 1 ltr., and in the absence of said preservative correctness and accuracy of the report could not be assured safed. Ld. counsel argued that though the manual may not be a part of the statue but then the guidelines and the directions were not liable to be ignored and on that point, Ld. counsel relied upon a Supreme Court judgment referred as 2009(1) Supreme Court 195 where it has been held that guidelines in a given regularization may not have statutory force but unless and until they are held to be ultra - vircs they are to be complied with. Ld. counsel argued that CFL report suffers from this infirmity and illegality, was liable to be ignored particularly where the sample could not be said to be a representative one and accused were entitled to at least benefit of doubt and conviction judgment was liable to be set aside. Page No. 8 Counsel also argued that CFL report was silent about the method adopted for analysising sample for the presence of residual pesticides. Ld. counsel submitted that appeal was liable to be accepted.
On the other hand, Ld. SPP, Shri A. K. Padhey submitted that Ld. MM has duly examined all these contentions and as rejected these contentions for valid reasons and there was no ground to hold reasons given by Ld. trial court as unsound or unsupported by the law. Section 13 (5) PFA Act provides for a exclusiveness to the report of the CFL and there was no reason to differ with this report. He further argued that manual referred to by Ld. defence counsel since is not on the statutory provisions in the PFA Act or rules, its non observance could not be said to have caused any prejudice to the accused and conviction could not be held vitiated on that account. Ld. counsel in this regard referred to rules 20 & 22 of the PFA rules and submitted that there was due compliance of statutory rules when samples were drawn by specified quantity and there was no illegality and conviction judgment was liable to be upheld. I have considered these contentions and have taken close scrutiny of the trial court record.
Ld. counsel emphasized that there was a delay of around 8 - 9 months in filing of the complaint and it prejudiced the defence of accused as the shelf life of the food article milk would be 4 months provided it was Page No. 9 duly preserved in refrigerated condition and a proper preservative was added. Ld. MM dealt with this contention with a reasoning that where analysis of the milk sample revealed presence of "residual pesticide" in nd excess of a permissible limits then delayed analysis of 2 counterpart sample did not prejudice accused since pesticide was not an inherent constituent of the milk and its presence was not to increase or decrease with the passage of time. The reasoning appears to be perfectly justified.
nd Delayed examination of the 2 counterpart sample could have provided a valid defence had it been found non analyzable for any reason. Once the sample was found fit for analysis then presence of pesticide residual in excess of the permissible limits constitutes adulteration in the food article as has been observed in the certificate of CFL.
On the same analogy the other argument and contention of ld. counsel that there was variation in two reports and thereby sample could not be said to be unrepresentative one is liable to be dismissed. Ld.counsel pointed out that PFA report Ex. PW1/F shows presence of fat in the sample as 8.2% and solid not fat 8.95% and the adulteration of the sample was reported because of the presence of skimmed milk powder. As against it the CFL certificate shows presence of milk fat at 5.6% and milk solid not fat at 8.9% and adulteration was found on account of presence of residual pesticides which was in excess of permissible prescribed limits. It Page No. 10 is a matter of fact that analysis of the sample by Public Analyst has not been taken up for the presence of pesticide residual. Likewise the CFL report shows analysis not taken up for the presence of skimmed milk powder as the cause of the adulteration. When the sample was not analyzed and examined for the presence of pesticide residual by the Public Analyst and the Central Food Laboratory did not take up analysis of the sample for the presence of skimmed milk powder, two reports could not be said to be divergent on the analysis of a particular aspect. CFL report regarding presence of pesticides residual was an independent analysis and merely that Public Analyst had been examined the sample for the presence of pesticides residual, the CFL certificate could not be taken to be a divergent opinion as against the report of the Public Analyst. It is a fact that milk fat contents in two reports are found at variance but then presence of the pesticide residual may not have any connection with the said variance. Accused examined the Director, CFL as a defence witness and evidence of this witness does not suggest if any such aspect was got examined from the witness that where two reports reflected some variance about the presence of the milk fat then could it be a reason for presence of pesticide residual in the sample to suggest that the sample was a non representative one. Emphasis from defence side in the examination of this defence witness was as to what could be the effect of a quantity of milk Page No. 11 less then 1 ltr examined and analyzed for the presence of residual pesticide and the effect of the preservative " potassium dichromate"
containing 1% amyl alchohal if not put in the sample, the answer given by the witness is and to quote it " "Addition of the chemicals to stabilize the residual pesticides in the milk sample has not been made in this particular case therefore, the residue obtained is expected to be lesser than the amount mentioned here. The amount of a milk sample under rule 22 of PFA Rules has been calculated to carry out even more than triplicate analysis for some special cases if required. Particularly the organo chlorine compounds of a pesticides namely DDT its matabolites and various forms of HCH are highly stable in nature. These are not easily degradable. Therefore, we follow the method even better than the DGHS method mentioned in Association of official Analytical Chemists ( AOAC). Now a days it has already been established that AOAC Method are relevant or acceptable for the pesticides residual analysis of food. Therefore, the result as submitted by the CFL Calcutta cannot be denied on the grounds as submitted above."
Thus, the evidence of this expert witness examined in defence fails to provide support to the defence of accused persons. Witness specifically deposed that he was aware that potassium dichromate had not been added as a preservative in the sample milk and that there had been intervening period of 9 months when the counterpart sample was taken up for analysis and that sample had not been kept in refrigeration. Witness stated that the result submitted by CFL could not be denied on the said Page No. 12 grounds.
It is a settled law that the certificate of Director - Central Food Laboratory supersede the report of the Public Analyst. Defence has failed to point out legally sustainability challenge to the report of the CFL. Pesticide residual were found in the excess of the permissible limits as provided under rules 65 of the PFA Rules. Presence of the pesticides residual cannot be found connected with any such cause i.e. delayed examination of the sample food article or the non representative nature of the sample article. Judgment relied upon by Ld. defence counsel on the nd point of delayed examination of the 2 counterpart sample at CFL are basically on the proposition that food article particularly a milk product might loose in the sustainability of its constituents potentiality. Presence of the pesticides residues may not have any connection to that aspect. Accused K. N. Pandey by selling adulterated milk in this case committed offence punishable u/s. 7 / 16 of PFA Act The milk was being carried in a tanker and accused K.N. Pandey himself in his writing Ex. PW1/D disclosed that milk belonged to M/s. Ved Ram & Sons a partnership firm. Vehicle milk tanker UP138724 has been found registered in the name of M/s. Ved Ram & Sons. Prosecution has proved that accused Phirey Singh was the nominee appointed by the vendor firm M/s. Ved Ram & Sons , as a responsible officer for maintaining quantity of the food article being sold Page No. 13 by the vendor firm. Accordingly accused Phirey Singh as well firm M/s. Ved Ram & Sons have also been rightly held guilty for the offence.
Conviction of accused persons suffer no illegality and it is liable to be upheld. Conviction is accordingly upheld. Sentence awarded by Ld. trial court is the minimum prescribed in this offence and there is no reason or ground to interfere with this sentence. Accordingly conviction dt. 24.04.2008 and the order on sentence dt. 08.5.2008 passed by Ld. ACMM, New Delhi in this case are liable to be upheld and appeal is dismissed.
Announced in the Open (J. R. ARYAN)
court on 04/01/2011. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Page No. 14
CA No.50/10
K.N. Pandey Vs. State
04/1/2011
Present: Both Appellant in person with counsel
Vide separate judgment, appeal filed by appellants is
dismissed and consequently appellant accused are taken into JC to serve the sentence announced by the Ld. Trial Court.
Copy of judgment is given free to cost to the both appellants and copy of judgment along with trial court record be sent to the trial court. Appeal file be consigned to record room.
(J. R. ARYAN)
ADDITIONAL SESSIONS JUDGE
NEW DELHI.
04/1/2011.
Page No. 15
The contention that a sample could not have been drawn from a moving tanker as commodities in a tanker could not be taken to be stored is a misspelled contention sought to be based on a Hon'ble Supreme Court's judgment in a case Bijaya Kumar Aggarwal v State of Orissa 1996 (3) RCR 313. The ratio in the Hon'ble Supreme Court's judgment which dealt with a matter arising in a Essential Commodities Act will not apply to the fact of the present case merely accused expression " stored" in context of Essential Commodities Act, came to be examined and analyzed and it came to be held that food article while in a moving vehicle could not be said to be a stored. In the present case the court is not concerned with stored but has to examine if the food article even being carried in a vehicle was meant for sale for human consumption. Even sale to the Food Inspector for analysis amounts to sale of the food article. The contention is misconceived and is liable to be rejected.