Delhi District Court
Subhash Chand Grover vs The State (Delhi Administration) on 26 March, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 11/03/2010
Date of judgment reserved on : 16/03/2011
Date of decision : 26/03/2011
Criminal Appeal No. 19/2010
Criminal Appeal No. 20/2010
IN THE MATTER OF :
Subhash Chand Grover
S/o Shri K. C. Grover
Subhash Masala Store,
260, Subzi Mandi,
Jheel Khuranja, Delhi ..... Appellant
Versus
The State (Delhi Administration) ..... Respondent
J U D G M E N T
By this judgment, two appeals against conviction judgments are being taken up as a common point of Law arose in the arguments and that was whether the food article sample could be said to be a representative one. Criminal Appeal No. 19/10 is against a conviction CA No. 19/10, CA No. 20/10 Page 1 of 13 Page No. 2 judgment recorded in CC No. 42/96 wherein food article Red Chilli Powder was reported to be adulterated. In Criminal Appeal No. 20/10 conviction judgment in a CC No. 43/96 was regarding food article "Haldi Powder" reported adulterated. Accused in both the cases is appellant Subhash Chand Grover, sample of these food articles was purchased from accused on 05/01/1996 from his business shop premises Subhash Masala Store, 260, Sabzi Market, Jheel Kuranja , Delhi.
A team of officials from Food Adulteration Department of Delhi Government comprising Food Inspector Prem Chand Tiwari and Food Inspector Raj Pal Singh with LHA Gopal Singh reached above said business premises of accused Subhash Chand Grover. Food Inspector Raj Pal Singh purchased Lal Mirchi Powder sample whereas Food Inspector Prem Chand Tiwari purchased Haldi powder sample from that very business premises. Accused Subhash Chand Grover was found carrying business from that shop and the said food articles besides other articles were found stored for sale. In each case the sample food article was purchased 600 gms, Haldi powder was found stored in an open tin and Lal Mirchi powder was in an open polythene bag, both bearing no label declaration Sample proceedings in accordance with the Food Adulteration Act and Rules were completed wherein before taking the sample commodity of proper mixing of the food article by clean and dry Jhaba CA No. 19/10, CA No. 20/10 Page 2 of 13 Page No. 3 was completed and then sample food article was taken into three equal parts in three separate clean and dry bottles which were packed and fastens and assaulted in accordance with the procedure and other documents like Vendor's Receipt, Panchnama and Form VI in accordance with Rule 12 were prepared. Sample in CC 42 i.e. Lal Mirchi powder when analysed by Public Analyst, as per report Ex.PW1/F it was reported adulterated on account of abundance of foreign starch and was found coloured with unpermitted oil soluble coaltar dye. Consent for prosecution of accused Ex.PW2/A was granted by Director, PFA and accordingly, the prosecution was launched vide Criminal Complaint Ex.PW2/B filed by LHA. Copy of the PA Report was sent to the accused for exercise of his option to get the second sample analysed. Accused did exercise that option and accordingly, the second counterpart sample was got analysed from Central Food Laboratory, Calcutta. A report dt. 07/10/1996 was received that Lal Mirchi Powder was adulterated. As regards presence of added colouring matter, the report indicated that sample was found presence of one Pink shaded oil soluble and one red shaded water soluble coaltar colour present.
In the second case i.e. CC No. 43/96, after food article Haldi Powder sample had been lifted in accordance with procedure prescribed under the Act and the rules, the Public Analyst as per his report CA No. 19/10, CA No. 20/10 Page 3 of 13 Page No. 4 Ex.PW1/E found sample adulterated on account of presence of foreign starches and coloured with unpermitted coaltar dye identified as maternil Yellow. In this case also accused Subhash Chand Grover exercised his option for getting the counterpart second sample examined and analysed from Central Food Laboratory and accordingly second sample was got examined at CFL, Kalkata. Report dt. 07/10/1996 was received that sample was adulterated. Added colouring matter was found positive with presence of non permitted water soluble yellow coaltar dye.
In both the cases charge was framed and trial concluded with conviction judgment in two separate trials. Accused convicted u/S 7 of the Prevention of Food Adulteration Act for violation of Clause (a) (j) and (m) of Section 2 (ia) of the Act which was punishable under Section 16 (1A) of the Act. This conviction judgment dt. 08/02/2010 in both the cases finally led to a sentence of one year imprisonment and a fine of Rs. 4000/ in CC No. 42/96 and one year imprisonment with fine of Rs. 3500/ in CC No. 43/96. Appellant filed two separate appeals questioning sustainability of conviction on the grounds pleaded in the memorandum of appeal.
Appeals have been heard from both sides wherein Counsel Sh. M K Gupta argued appeal on behalf of accused appellant and Special Public Prosecutor Mr. Padhi appeared for the Department of PFA, NCT, CA No. 19/10, CA No. 20/10 Page 4 of 13 Page No. 5 Delhi.
Counsel Sh. M K Gupta first pointed out that two reports i.e. report by Public Analyst and the report from CFL have mentioned different sample numbers and thus identity of the counter part sample examined in CFL could not be said to have been proved as the sample which belonged to this case. In the Appeal No. 19/10 concerning CC No. 42/96 which is regarding sample Lal Mirchi powder, the PA Report mentions sample serial No. RPS/O1/96 whereas the CFL Report mentions sample bearing No. RPS/01/95. Similarly in the second Appeal No. 20/10 concerning CC No. 93/96 wherein sample food article is Haldi powder, the PA Report mentions sample bearing serial No. PCT/1/96 whereas this sample number is shown PLT/1/96 in CFL report. Counsel submitted that difference in serial numbers of these samples in two reports should be taken to create doubt in the identity of the sample concerned with the case and its benefit be given to the accused. Ld. Special Public Prosecutor argued that if some typographical error appears in recording of the serial numbers in two reports whereas nature & contents of the food article sample is found same and further LHA number on both samples in two reports is identical then the no undue benefit be given to the accused because of a usual normal human error. I do agree with the submissions of Ld. Spl. PP. In the Appeal No. 19/10, CA No. 19/10, CA No. 20/10 Page 5 of 13 Page No. 6 the only discrepancy in two reports is that whereas Public Analyst has mention year as 1996 whereas CFL Report has given it as 1995, LHA No. i.e. GS/NHA/3098 is same and identical in both the reports. It appears to be a typographical error while mentioning year in two reports and no benefit can be given to accused in that regard.
Likewise in the second appeal No. 20/10 a discrepancy with regard to sample numbering in two reports is that PA Report mentioned it as PCT/ 1/96 whereas CFL report mentioned it PLT/1/96 Food Inspector in this case is Prem Chand Tiwari. May be the Alphabet 'C' has been misprinted or mistaken as L while recording the numbers as PLT in CFL report. LHA number is identical in both reports. No benefit of such a typographical error or normal human error can be given to the accused.
Ld. Counsel Sh. M K Gupta then took up the point that sample analysis report in these two cases would indicate that samples were not representative one because of variation in analysis report by Public Analyst & report by CFL.
As regards Criminal Appeal No. 19/10 concerning sample Lal Mirchi powder, Counsel pointed out that PA Report whereas showed Non Volatile Ether Extract 16.94%, non volatile ether extract as report of CFL is 6.0%. Counsel submitted that variation at such a great degree should reasonably indicate that sample food article was either not homogenized CA No. 19/10, CA No. 20/10 Page 6 of 13 Page No. 7 in accordance with the Law or the sampling process was defective and it renders the food article sample as non representative. Counsel further pointed out that crude fibre as per PA Report was 17.53%, whereas as per CFL Report this constituent was found 20.5%. Counsel submitted that this variation also could not be explained but by a non representative character of the sample. Finally Counsel pointed out that whereas PA Report mentioned abundance of foreign starches with Chillis Structure in the sample but then CFL Report showed only Chillis with wheat starches without mentioning if foreign starches were in abundance. Counsel submitted whereas PA Report found sample as adulterated because of abundance of starches, the CFL Report might not have rendered sample adulterated on that account had other parameters been found causing no adulteration.
Counsel Sh. M K Gupta then argued that sample analysis reports in both the cases indicate a significant variation in some of the constituents of sample and these variations would suggest that samples analysed were not of a representative character. Ld. Counsel relied upon Delhi High Court judgments in two cases (1) Kashi Nath Vs. State 2005 (2) FAC 219 and (2) State Vs. Mahinder Kumar and ors. 2008 (1) FAC 177 where conviction was found liable to be set aside when variations in analysis report from Public Analyst and from CFL suggested CA No. 19/10, CA No. 20/10 Page 7 of 13 Page No. 8 that samples were not of representative nature.
Referring to appeal No. 19/10 concerning Lal Mirchi Powder sample, counsel submitted that Non Volatile Ether extract as per PA Report has been found 16.94% whereas as per CFL Report it has been found 6%. Counsel further referred to PA Report mentioning crude fibre found 17.55% whereas it has been found 20.5% as per CFL Report. Finally PA Report mention abundance of foreign starches in the sample and that was said to be one cause for the sample found adulterated. The CFL Report simply mentioned presence of wheat starches but it did not describe such a foreign starches in abundance as the cause of the adulteration. Ld. Counsel pointed out that as per the standard for chillis powder provided at A.05.05.01 in appendix B of the Act the Non Volatile Ether extract has not to be less than 12% by weight. As per PA Report, the presence of Non Volatile Ether extract at 16.94% qualified the sample as unadulterated, whereas its presence at 6% as per CFL Report rendered this specification not meeting the standard requirement and thereby it was a cause for adulteration. Such a variation in two reports could suggest that sample was not a representative one.
Referring to second Appeal No. 20/10 concerning Haldi powder sample, Ld. Counsel referred to PA Report wherein total starch has been reiterated 55.43% but then CFL Report has mentioned it at CA No. 19/10, CA No. 20/10 Page 8 of 13 Page No. 9 69.6%. Counsel pointed out that as per the standard at A.05.20.01 total starch percentage by weight in turmeric powder is not more than 60%. l According to CFL Report since the total starch exceeded the prescribed percentage, as per the PA Report it was within the prescribed limit and such a variation in two reports would suggest that samples were non representative. Counsel pointed out that abundance of foreign starches has been referred to as a cause of sample adulterated as per the PA Report besides found coloured with unpermitted coaltar dye. As per CFL report only maize starches besides turmeric starches has been mentioned. Variation in percentage of starch in two reports, Counsel argued, was a significant and its benefit could be given to the accused on a findings that sample was not a representative in nature.
Ld. Special Public Prosecutor Mr. Padhi argued that where both the reports confirmed presence of non permitted coaltar dye in sample food article then the prosecution charge must be found duly established as variations qua some other tests cannot render the sample food article a nonrepresentative. He relied upon Delhi High Court judgment in a case State Gs. Satender Kumar 2009 (1) JCC 258. It was an appeal against acquittal. Sample "Rai whole" was the subject matter of the case. Reports both from Public Analyst as well CFL had found sample containing unpermitted colouring matter and accused had CA No. 19/10, CA No. 20/10 Page 9 of 13 Page No. 10 been put to trial for selling food article adulterated due to presence of artificial colouring matter. Accused was acquitted in the trial of a findings that sample could not be said to be a representative one when as per PA Report extraneous matter in the sample was found 6% whereas as per CFL report that extraneous matter was reported 1.43%. Acquittal judgment was set aside in appeal by the High Court on findings that Trial Court's observations that samples were not of a representative character could not be sustained when both Public Analyst and CFL had reached a similar conclusion with regard to presence of artificial colouring matter. Ld. PP submitted that when in both the appeals sample food article has been found containing unpermitted coaltar colour both by the Public Analyst as well by the CFL then other variations in two reports were not of much significance. He further argued that Non Volatile Ether extract qua red chilli powder sample was bound to vary because of time gap. He further pointed out that crude fibre when as per standard was not to be more than 30% then a small variation where as per PA Report it has been found 17.53% and as per CFL report it has been found 20.5% then adulterated nature of the sample food article should not be found disturbed by such variation. Similar was the arguments and contentions by Ld. SPP regarding turmeric powder sample in the other case. Counsel submitted that where permissibility of the starch as per the standard was CA No. 19/10, CA No. 20/10 Page 10 of 13 Page No. 11 not to exceed 60% then percentage of starch referred to in two reports should not undo the effect of adulteration caused by presence of unpermitted coaltar dye identified as maternil Yellow. Counsel argued that conviction was liable to be confirmed. I have given my due considerations to both sides' contentions and arguments.
Representative nature of the sample qua provisions of Section 13 (3) of the PFA Act came up for consideration in Kashinath's case. One of the arguments before the court was that whether analysis report of the CFL supersedes the PA Report then the report of Public Analyst is not to be looked into and the case has to be decided on the basis of report from CFL which attains finality for all purposes under the Act. In that record judgment of Delhi High Court by Full Bench in a case MCD Vs. Bhishan Swarup 1972 FAC 273 came to be relied upon. Full Bench in Bhishan Swarup judgment held that even after a certificate from CFL, it was open to accused to show that in the facts of given case and on concrete objective grounds he will prove sample of the food article and if that contention was found acceptable, conviction passed upon such a certificate will not be sustainable. This proposition was reiterated in Kashi Nath's case where it has been held that although in terms of Section 13 (3) of the PFA Act, Director certificate would supersede Public Analyst report, difference in two can still be looked into by the CA No. 19/10, CA No. 20/10 Page 11 of 13 Page No. 12 court for ascertaining as to whether samples were representative or not. In Kashi Nath's case the sample food article was Dhania powder and a variation was found in two reports of analysis though total ash in both the reports was found to be more than the prescribed maximum limit of 7%. Noticing variation in two reports the samples were held to be non representative nature and conviction was found unsustainable on the test report of the CFL.
In Mahinder Kumar's case (2008) (1) FAC 177, the sample food article was Haldi powder. Public Analyst found sample adulterated as found coloured with unpermitted coaltar dye identified as maternil Yellow which was further reported as injurious to health. Counterpart sample when examine at CFL it was reported adulterated as it was found added with artificial colouring matter identified as maternil Yellow. However, from two reports variations were noted. Ash contents as per PA Report was 4.04% whereas ash content in CFL report was mentioned 6%. Ash insoluble in dilute HCL was 2.55% in PA report but this constituent as per CFL report was found 1.95%, variations being more than 0.3%, identical/representative nature of the samples was found to be a question mark and conviction set aside in appeal by Sessions Court in that case was found not liable to be disturbed.
Coming to the facts in appeals before the court, qua Red Chilli CA No. 19/10, CA No. 20/10 Page 12 of 13 Page No. 13 powder there is a marked difference in two reports on non volatile ether extract. PA report mentions it 16.94% whereas CFL report mentions it 6% Ld. Spl. PP did not have any support from any decided precedent if time gap in examination of the sample food article could result in such a variation. There is a difference in crude fibre also PA report mentioned abundance of foreign starch but CFL report simply mentioned presence of wheat starches, thought it may not be a point to reflect upon the representative nature of the sample. Other two points that is presence of non volatile ether extract and crude fibre variations do suggest that sample was not a representative in nature when examined at CFL.
Similar has to be a findings qua turmeric powder. There is a marked difference regarding total starch found in sample in two reports. PA reports mentions it 55.43% whereas CFL report mentioned it at 69.6%. Representative nature of sample in such a situation becomes a question mark and its benefit is to be given to the accused.
Findings on this aspect by the trial court in favour of the prosecution therefore suffers illegality and on this point the conviction judgment cannot be sustained. Impugned conviction judgment in both appeals is, therefore, liable to be set aside and accordingly, it is set aside. Appeals are allowed. Copy of the judgment be placed in both the files.
CA No. 19/10, CA No. 20/10 Page 13 of 13 Page No. 14 Announced in the open court on 26.03.2011 (J.R.Aryan) ASJ (01) / Patiala House Courts New Delhi CA No. 19/10, CA No. 20/10 Page 14 of 13