Delhi District Court
Food Inspector vs . Dinesh Goswami on 17 November, 2012
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IN THE COURT OF SHRI MOHINDER VIRAT,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. N0. 173/05
Food Inspector Vs. Dinesh Goswami
Department of PFA S/o Shri Laxman Prasad
Govt. of NCT of Delhi M/s Family Cafe,
A20, Lawrence Road G4, Apra Plaza, Sector10,
Indl. Area, Delhi - 35 Dwarika, New Delhi.
R/o: H. No. 13, Block No. 100,
Sector1, Pushp Vihar,
New Delhi17.
J U D G M E N T
Serial number of the case : 173/05 Date of the commission of the offence : 18.09.2004 Date of filing of the complaint : 02.08.2005 Name of the Complainant, if any : Shri D.V. Singh, F.I. Offence complained of or proved : S. 2 (ia) (a) & (m) of PFA Act 1954, punishable U/s 16 (1A) r/w S. 7of PFA Act. Plea of the accused : Pleaded not guilty Final order : Acquittal. Arguments heard on : 17.11.2012 Judgment announced on : 17.11.2012. CC No. 173/05 DA Vs. Dinesh Goswami Page 1 of 10 ::2:: Brief Statement of reasons for such decision
1. The present complaint has been filed on 02.08.2005 by the Delhi Administration through FI Sh. D.V. Singh against the above said accused. It is averred in the complaint that on 18.09.2004 at about 12:00 PM, FI D.V. Singh purchased a sample of Dal Urd Dhuli, a food article for analysis from accused Dinesh Goswami from the aforesaid premises, where the said food article was found stored for sale and the accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 1500 gms of Dal Urd Dhuli, taken from an open tin container, bearing no label declaration. The sample was taken under the supervision and direction of Sh. Sushil Yadav, SDM / LHA. The sample was taken after properly mixing the Dal Urd Dhuli with the help of a clean and dry JHABA by rotating it in all possible directions. The FI divided the sample into three equal parts then and there by putting them in three separate clean and dry glass bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and on the wrapper of the sample bottles. Notice was given to accused and price was paid. Panchnama was also prepared at the spot. Rest of the procedural documents were prepared at the spot according to PFA Act & Rules.
CC No. 173/05 DA Vs. Dinesh Goswami Page 2 of 10
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2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA. The PA analysed and found the sample to be adulterated because it was not free from fungus.
3. Further, during investigation accused Dinesh Goswami was found to be VendorcumProprietor of M/s Family Cafe at the time of sampling and as such he was InCharge and responsible for the day to day conduct of the business at the aforesaid Cafe. 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.
4. The accused was summoned vide order dated 02.08.2005. He appeared in the due course and exercised the Right & option U/s 13(2) of the Act of 1954 and consequently the sample counterpart as per the choice of the accused was sent for analysis to the CFLPune. The Director CFLPune gave his report and opined that the samples bearing No. 82/LHA/6447 does not conform to the standards of split pulse (Dal) Urd as per PFA Rules 1955.
5. Charge for the violation of the Provisions of S. 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1A) r/w S. 7 of PFA Act 1954 was CC No. 173/05 DA Vs. Dinesh Goswami Page 3 of 10 ::4::
framed against the accused to which he pleaded not guilty and claimed trial.
6. Three witnesses namely Sh. D.V. Singh, Food Inspector (PW1), Shri Sushil Yadav, the then SDM/LHA (PW2) and Shri Ranjeet Singh, FA (PW3) were examined on behalf of the complainant.
7. Statement of the accused U/s 313 Cr. P.C was recorded whereby, the accused wished not to lead DE and hence the DE stood closed on the same day.
8. I have perused the entire judicial file and heard the Ld. SPP for the Complainant as well as Ld. Counsel for the accused.
9. It was the PA's Report which was made the basis for launching prosecution against the accused. The PA vide her Report dated 06.10.2004 found the sample to be adulterated as the same was not free from fungus. Besides this, the sample was found conforming to all the standards as prescribed thereof.
10. The Ld. defence counsel has argued that the analytical results of both the experts i.e. PA & CFL are highly divergent and contradictory to CC No. 173/05 DA Vs. Dinesh Goswami Page 4 of 10 ::5::
each other and thus can not be relied upon. He has vehemently argued that the sample sent to two labs were of two different character and hence there is differences in their results. Ld. defence counsel has relied upon the case law titled as State (Delhi Administrative) Vs. Kamal Dev Vashisht 2012(2) FAC 353, Delhi High Court. Per contra Ld. SPP for complainant has argued that the CFL Report has superseded the report of PA and hence, PA's Report can not be relied upon. He has further argued that the prosecution has proved its case beyond reasonable doubt and thus accused is liable to be held guilty.
11. The arguments as advanced by the Ld. SPP for the complainant has been considered by the Hon'ble Supreme Court in the case of MCD Vs. Ghisa 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 be 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.
12. This judgment has been endorsed by the Hon'ble High Court of Delhi in Kanshi Nath Vs. State, 2005(2) FAC 219 Delhi High Court, CC No. 173/05 DA Vs. Dinesh Goswami Page 5 of 10 ::6::
MCD Vs. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court and in Criminal Appeal No. 1158 (2007) vide judgment dated 08.09.2011.
13. In State Vs. 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.
14. Here, it be seen that the PA found the sample to be adulterated as it was not free from Fungus whereas the Director CFL has mentioned nothing about the Fungus. Had there been Fungus in the sample counterpart, the same should have also been found by the Director CFL.
Further in PA's Report, Uric Acid is NIL whereas the Director CFL found the same to the tune of 150 mg/kg. Moreover, in PA's Report Moisture is to the tune of 10.94% whereas the Director CFL found the same to the tune of 8.64% which is 2.3% less than that of PA's opinion. In PA's Report Foreign matter (extraneous matter) was NIL whereas the Director CFL adjudged the same to the tune of 0.51%. Thus, the report of the Director CC No. 173/05 DA Vs. Dinesh Goswami Page 6 of 10 ::7::
CFL is totally contradictory to the Report of the PA.
15. In the case titled as State (Delhi Administrative) Vs. Kamal Dev Vashisht (Supra), the appeal of the State was dismissed on the point of differences of opinion. In the aforecited case, a sample of Catechu was lifted from the shop of the respondent. Both the Reports i.e. PA & CFL Reports showed vast differences w.r.t presence of Ash Insoluble in HCL and Alcohol. Furthermore, the Director CFL notice gambier in the sample whereas as per PA's Report it was not present. Having found such variations and contradictions the appeal preferred by the State was dismissed. The relevant para no. 4 is being quoted hereunder:
"Perusal of both the reports clearly shows that there is vast differences with regard to presence of Ash insoluhle in HCL and Alcohol (dried at 100 degree Celsius) is concerned. As per the CFL Report, Alcohol Insoluble residue was to the extent of 41.3% while as per the Public Analyst report it was only 17.46%. The differences is very wide between these two reports with regard to the presence of Alcohol insoluble residue. So far as Ash Inslouble HCL is concerned, as per CFL it was 1.9%; whereas, per public Analyst report it was only 1.29%. With regard to the presence of "gambier" both the reports are contrary. As per the CFL presence of "gambier" was noticed in the sample; whereas as per the Public Analyst "gambier" was not found in the sample. This difference shows that the samples were not of representative character entitling respondent benefit of doubt"
16. Apart from all this the Director CFL vide his report, has described the CC No. 173/05 DA Vs. Dinesh Goswami Page 7 of 10 ::8::
physical appearance as follows 'Dehusked split grains of Urd dal with small insects in abundance'. However, the PA has found no such insects visible at the time of analysing the same. This has further reinforced the fact that the sample sent to CFL was not of representative nature or the bottles in which the sample was kept were not air tight. PW 1 FI D.V. Singh, during his crossexamination has answered the questions w.r.t presence of insects. The relevant portion of his crossexamination is being quoted hereunder:
"During the entire sample proceedings including weighing of the sample, dividing it into three parts and pouring the same in the sample bottles and sealing the same, I did not observe any apparent defect in the sample commodity from naked eyes. If insects are present in abundance in Dal Urad Dhuli, the same will be visible with naked eyes. In case Dal Urad Dhuli is infested with Fungus, the same will also be visible with naked eyes"
Perusal of the aforequoted crossexamination of PW 1 creates suspicion in mind and indicates that either the sample was not representative or that the sample was not preserved correctly or properly sealed due to which lapse of time insects developed therein. It is a natural phenomenon that with the lapse of time insects develops and in this case since after more than 12 month, the sample was anlysed by the Director CFL, it is quite possible that the insects could have developed therein CC No. 173/05 DA Vs. Dinesh Goswami Page 8 of 10 ::9::
within that period because if there have been insects visible in the sample commodity, the same should have been found by the PA at the initial stage but the PA has found it free from insects which leads only to the aforesaid suspicions.
16. In A.P. Goel & Another Vs. The State (Delhi Admn.), Criminal Revision No. 12 of 1991, decided on 22 March, 2001, the order of nd conviction passed by Ld. ASJ was set aside and the order passed by Ld. Metropolitan Magistrate was restored. In this case a sample of Wheat was lifted, which on being analyzed by the PA, was found to be adulterated having been found living and dead insects therein. The second counterpart of the sample on being analysed from Director CFL, the Director CFL also found both living and dead insects therein. The Ld. M.M. on relying upon the case law titled as MCD Vs. Ved Parkash, 1984 II FAC 304, acquitted the accused persons. However, the Ld. ASJ set aside the said order. The Hon'ble Delhi High Court on appeal of the petitioners restored the order of Ld. M.M. on relying upon MCD Vs. Ved Parkash (Supra). The relevant para no. 4 runs as under"
"On the basis of the complaint before the learned Metropolitan Magistrate , it was found that the sample, which was sent to the CFL was found to contain both living and dead insects. The argument, therefore, that found favour with the learned Metropolitan Magistrate was that the sample was not properly CC No. 173/05 DA Vs. Dinesh Goswami Page 9 of 10 ::10::
sealed so as to prevent moisture from entering into the bottle thereby causing the deterioration of the sample. The learned Metropolitan Magistrate relied upon the judgment of this Court in MCD. vs. Ved Parkash 1984 II FAC 304. The facts of the case decided by the High Court were more or less para materia to the case in hand. This court had held that once living insects are found in the sample sent to the laboratory after five months, it can safely be inferred that the sample was placed in a bottle, which was not air tight and sealed. In the present case, the CFL examined the sample after a period of 10 months and found substantial amount of living and dead insects thereby giving rise to the inference, that the sample was not preserved correctly or properly sealed."
17. Relying on the aforesaid case law, it is clear that the huge contradictions / variations in the analytical result of the PA & CFL indicates that the two samples were not representative in nature. In view of the same, this court is of the considered opinion that, the benefit of the same has to be extended to the accused. The accused is accordingly acquitted in the present case. File be consigned to Records after due compliance.
Announced in the (MOHINDER VIRAT)
open court on 17 Nov. 2012
th
ACMMII/New Delhi
CC No. 173/05
DA Vs. Dinesh Goswami Page 10 of 10
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