Delhi District Court
15. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 17 August, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 04/06
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Daya Ram Chauhan
S/o Sh. M.D. Chauhan
M/s Bikaner Sweets Corner,
S. No. H-23/24, Mangol Puri, Delhi-83
R/o Q-9/66, Mangol Puri, Delhi-83
JUDGMENT
Date of Institution : 3.1.06 Date of reserving judgment : 17.08.10 Dated of Pronouncement : 17.08.10 U/S: 2 (ia) (a) & (j) of PFA Act punishable under Section 16 read with section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
C.C. N0. 04/06 11. The present complaint is filed by the Delhi Administration through Food Inspector, Sanjeev Kumar Gupta against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 22.10.2005 at about 1:30 p.m. Food Inspector, Sanjeev Kumar Gupta purchased a sample of 'Boondi Laddoo', a food article for analysis from Sh. Daya Ram Chauhan S/o Sh. M.D. Chauhan of M/s Bikaner Sweets Corner, S. No. H-23/24, Mangol Puri, Delhi-83, where the said food article was found stored for sale and Sh. Daya Ram Chauhan was found conducting the business of the said food article at the time of sampling. The sample consisted of 1500 gms of ' Boondi Laddoo' taken from an open tray exposed for sale. The sample was taken after breaking Boondi Laddoo with the help of clean and dry steel spoon in a clean and dry steel tray and mixed properly with the same spoon. The sample was taken under the supervision/direction of Sh. Kamal Malhotra, SDM/LHA. The Food Inspector divided the sample then and there into thre equal parts by putting them in three separate clean and dry bottles and added 40 drops of formalin in each of three sample bottle. Each bottle containing the sample was separately packed, fastened, sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Daya Ram Chauhan and the price of the sample was also given to him vide vendor's receipt dated 22.10.05. The Panchnama was prepared at the spot. All C.C. N0. 04/06 2 the documents prepared by Food Inspector were signed by the accused Daya Ram Chauhan and the other witness Shri Bharma Nand, F.A. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. Bharma Nand, F.A was joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 02.11.05 and opined that the sample is Adulterated because Total Dye Content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. Sanjeev Kumar Gupta, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2(ia) (j) & (m) of the PFA Act and also violated the provisions of Rule 30 read with rule 28 & 29 of PFA Rules, 1955 punishable U/s 16 (1A) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused and pursuant C.C. N0. 04/06 3 thereto he had appeared before the court. On 17.01.06, accused Daya Ram Chauhan moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No. CFL/52/112/2006 dated 24.02.06 according to which the sample of Boondi Laddoo contravenes Rule 30 of PFA Rules, 1955.
6. Charge for contravention of provision of Section 2 (ia) (a) & (j) of PFA Act punishable under Section 16 read with section 7 of the PFA Act was framed against the accused separately on 23.07.08 separately to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. Sanjeev Kumar Gupta & PW-2 Sh. Kamal Malhotra, SDM/LHA & PW-3 F.A. Brahamanand.
8. Statement of accused was recorded under Section 313 Cr.P.C on 07.05.2010 wherein he had controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and C.C. N0. 04/06 4 is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
10.As per Section 2 (ia)(j) of PFA Act, if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
11. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12. I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel for the accused, on the other hand, has vehemently argued that the sample commodity was not for sale. Ld. Defence counsel C.C. N0. 04/06 5 further argued that sample was not representative as to why there is vast variation between two reports and drawn my attention in respect of authority reported as 1981 (II) PFA Cases 206.
Whether sample commodity was not for sale
13.Ld. Defence counsel vehemently argued that Laddoos were not for sale and the accused informed the Food Inspector that Laddoos belonged to one Hempal Tanwar of Miyan Wali Nagar, Paschim Vihar, who had supplied his own raw-material and got prepared the Laddoos on labour charges. On the other hand, Ld. SPP for the complainant argued that the defence as taken by the accused is an after thought and he accepted the sample price of Rs.75/- as paid by the Food Inspector and signed on all the documents prepared at the spot. It is a matter of record that the accused has not denied his signatures or endorsement made by him on the Notice in form VI Ex. PW1/B. It is not the defence of the accused that his signatures were obtained forcibly or he was not permitted to mention this fact on the documents prepared at the spot. During investigation, accused did not make any representation or complaint to any higher authorities that the sample commodity was not for sale or he prepared the Laddoos for one customer. Further, accused has not examined the alleged customer Hempal Tanwar of Miyan Wali Nagar, Paschim Vihar, in his defence to prove this contention. The defence as taken by the accused that Laddoos belonged to one Hempal Tanwar appears to be an after thought. Vendor's receipt, Notice in form VI and C.C. N0. 04/06 6 Panchnama Ex. PW1/A to C which were signed by the accused , Food Inspector and the witness clearly prove that the sample commodity i.e Boondi Laddoo were ready for sale and same were sold by the vendor to the Food Inspector for analysis on payment of Rs.75/-.
Whether sample is representative:
14. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is vast variation between two reports in respect of colour concentration and ingredients of the sample commodity. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
15. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under:-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final C.C. N0. 04/06 7 and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. 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. ''
16. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 02.11.05, the sample was found adulterated because quantity of synthetic permitted colour used exceeded the prescribed maximum limit of 100 ppm and it was found 187.64 ppm while the second counterpart of the same sample, when examined by the Director, CFL , Calcutta , the synthetic permitted C.C. N0. 04/06 8 colours were found 266.02 ppm. There is variation of 78.38 ppm of colour concentration as found by two Analysts in respect of counterpart of same sample. Further on physical examination of the sample commodity, Public Analyst found, orange colour sample of sweet with Magaz while the Director, CFL in the second counterpart found orange colour ( dark) Laddoo, and no Magaz were found by him. There is vast variation between two reports in respect of colour concentration and same is not within acceptable range of 0.3% as held in Kanshi Nath versus State (supra). Complainant has failed to explain the variation in respect of colour concentration and presence of Magaz as analysed by two Analysts in respect of the counterpart of the same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
17. In view of the above discussion and reasons, I am of the considered opinion that complainant failed to prove the sample was representative. In result, complaint stands dismissed and accused stands acquitted. His previous bail bond furnished at the time of appearance stands cancelled. Earlier Surety discharged. Bail bond as per Section 437A Cr.P.C is furnished and accepted which shall remain in force for a period of six months. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 17.08.10 ACMM-II/NEW DELHI.
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