Delhi District Court
Delhi Administration / Food Inspector vs A-1) Girish Mohan on 19 October, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1916/09
Unique Case ID No. 02403R0288522009
Date of Institution: 31.08.2009
Date of reserving judgement: 28.09.2016
Date of pronouncement: 19.10.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Girish Mohan
S/o. Lt. Sh. Nathu Mal
R/o. B-2/227, Yamuna Vihar,
Delhi-94
A-2) Vipin Kumar
S/o. Sh. Bajrang Lal
R/o. B-68/3, Ward No. 8,
Anaj Mandi, Charkhi Dadri,
Distt. Biwani, Haryana ... Accused persons
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused CC No. 1916/09 Page 1 of 12 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor-cum-proprietor of M/s. Girish Mohan Store, from where the food article, that is, 'mustard oil' was lifted for sampling, and accused no. 2 is stated to be the proprietor of M/s. V. K. Traders who had supplied the food article to the vendor.
2. As per the complaint, on 21.03.2009, the food officials consisting of Food Inspector (FI) Ranjeet Singh and Field Assistant (FA) Rakesh Kumar under the supervision of Local Health Authority (LHA)/SDM Sh. A. K. Sharma reached along with their staff at the premises of M/s. Girish Mohan Store at 94/8, Chuna Bhatti, Karawal Nagar Road, Delhi-53, where the accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of mustard oil from the vendor lying in sealed tins bearing label declaration, to which he agreed. The sample of 750 ml of mustard oil was then lifted from one such tin and divided into three counterparts as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 08.04.2009, the PA found the sample to be adulterated and also not conforming to the standards on the ground that it was coloured with synthetic unpermitted oil soluble colouring matter, that it contained CC No. 1916/09 Page 2 of 12 mixture of rice bran oil, that its BR value and saponification value exceeded the prescribed maximum limits, and that its iodine value was less than the prescribed minimum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was found that the food article had been packed by accused no. 2. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 31.08.2009 against both the accused persons alleging violation of section 2(ia)(a), (b), (c), (j) and (m) of PFA Act read with Rule 23 and 29 of PFA Rules as well as Rule 44(e) of PFA Rules, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 31.08.2009. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 09.10.2009, opining the sample to be not conforming to the PFA Rues due to the sample testing positive for rancidity and also due to the result of Bellier Test giving result of more than the prescribed maximum limit.
4. Based on the report of the CFL, notice of accusation under section 251 CrPC was framed against both the accused persons on 15.02.2010 for CC No. 1916/09 Page 3 of 12 commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which they pleaded not guilty and claimed trial.
5. At the trial, prosecution examined three witnesses in support of its case. PW-1 Sh. A. K. Sharma (SDM/LHA), PW-2 FI Ranjeet Singh and PW-3 FA Rakesh Kumar were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 21.03.2009 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 750 gms mustard oil from a sealed tin bearing label declaration, mixing/homogenizing it, dividing it in three parts and putting in clean and dry bottles, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW- 1/B, Panchnama Ex. PW-1/C, Notice under section 14A PFA Act Ex. PW- 1/D, Raid report Ex. PW-1/C1, PA Receipt Ex. PW-1/F and LHA receipt Ex. PW-1/E. PA report Ex. PW-1/G was received and investigation was started. Letters Ex. PW-2/A and Ex. PW-2/B were written to the vendor and his reply Ex. PW-2/C was received. Letter Ex. PW-2/D was sent to the STO and its reply sought. Letter Ex. PW-2/E was sent to the supplier and his reply Ex. PW-2/E1 was received. Letter Ex. PW-2/F was sent to the DHO and its reply received. After completion of investigation, sanction Ex. PW-1/H was taken from the Director PFA and the complaint Ex. PW-1/I was filed in the court. A copy of PA report with intimation CC No. 1916/09 Page 4 of 12 letter Ex. PW-1/J was sent to the accused persons videpostal receipts Ex. PW-1/K. These witnesses were duly cross-examined by the respective Ld. Defence Counsel for both the accused persons wherein they denied that the sampling method was not proper or that the accused persons had been falsely implicated.
6. Statements of the accused persons under section 313 CrPC were recorded on 18.03.2013 wherein they denied the allegations and pleaded innocence. Though accused no. 1 admitted the proceedings dated 21.03.2009, yet he questioned the reports on PA and CFL. He claimed that he had purchased the commodity from accused no. 2. On the other hand, accused no. 2 expressed ignorance of the spot proceedings as he was not present therein and also claimed that he had no connection with the sample commodity. They however did not lead evidence in defence.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings of the CFL report dated 09.10.2009 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, respective Ld. Defence Counsel have submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel have CC No. 1916/09 Page 5 of 12 strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report. They have relied upon various judgements in their support.
9. I have heard the arguments advanced by Ld. SPP for the complainant and the Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
10. It is to be understood that the notices framed against the accused persons are for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. This is important to note because the ingredients of these offences are different and distinct. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. On the other hand, section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
11. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article fell under Item A.17.06 of CC No. 1916/09 Page 6 of 12 Appendix-B of the PFA Rules. Specific standards have been prescribed for this food product under this provision.
12. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
14. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or CC No. 1916/09 Page 7 of 12 useless, repeal. The Director's cetificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anamolous to hold that for some purpose it survives and for other purposes it is superseded."
15. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. It would be seen that the CFL report has negated the results of PA on all the counts. The BR Reading shown to be at 62 by PA was found to be 60.3 by CFL (within minimum and maximum prescribed limits of 58-60.5); the Saponification Value shown to be at 191.01 by PA was found to be 173.60 by CFL (within minimum and maximum prescribed limits of 168-177); the iodine value shown to be at 92.07 by PA was found to be 96.76 by CFL (within minimum and maximum prescribed limits of 96.0-112.0). Not only this, there was no presence of rice bran oil or synthetic colouring matter in the sample observed by the CFL as agaisnt the observations of the PA. On the contrary, the sample was opined to be not conforming to the standards by the CFL only on the count of rancidity being positive and also due to Bellier Test giving result as 28.5 which was beyond the prescribed limits of 23.0-27.5. As such, the matter has to be determined only on the basis of report of CFL.
16. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in CC No. 1916/09 Page 8 of 12 State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
17. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
18. Though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone CC No. 1916/09 Page 9 of 12 a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
19. In the case at hand, the differences between the two reports would show substantive variations in the two. There is vast difference in the BR reading, Saponification Value, Iodine Value, presence of rice bran oil and even synthetic colours. The entire incriminating matter on the basis of which prosecution was launched, stood negated by CFL. Such ingredients would not have vanished or developed with the passage of time.
20. Similarly, the Bellier Test was inconclusive in PA report and it is mentioned "not clear". But it gave result as 28.5 when analysed by the CFL. Again, in the absence of exact findings in PA report, no conclusion can be drawn particularly in view of vast variations in the two reports on several other counts. If Belleir Test result would have given readings within permissible range, then again it would have been upon the prosecution to explain how the result was at variance when tested by CFL. But as such test was 'not clear' as opined by PA, not much reliance can be placed even on CFL report.
21. As far as the ground on which CFL failed the sample is concerned, it is important to understand that mustard oil as a food article is prone to natural variations. If quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. If the two reports are so considered showing test for rancidity, it can be said that CC No. 1916/09 Page 10 of 12 either the food article had not been properly homogenised and made truly representative, or otherwise the sample had undergone a natural change beyond the control of the accused. The CFL had examined the sample from 26.09.2009 to 09.10.2009. Thus, it was so analysed after about 6 months when it was lifted from the possession of the accused no. 1 vendor. The nature of mustard oil as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Rancidity increases in sample of ghee/oil with passage of time. Reliance can be placed on the judgement titled as National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 06 months of lifting of the sample. Thus, there is possibility that such changes were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get benefit of doubt.
22. Thus, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of mustard oil was demanded by the FI which was not supplied CC No. 1916/09 Page 11 of 12 to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be so as to bring the case within section 2(ia)
(a) of PFA Act.
23. As far as section 2(ia)(m) is concerned, the accused persons are entitled to be given benefit of doubt considering the time gap, natural variations and variations in two reports. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act and thus, no case would be made out against the accused persons for commission of offences punishable under section 7/16 of the PFA Act.
24. Having said so, both the accused persons are acquitted of the charges. However, their bail bonds shall remain in force for the next six months in terms of section 437-A. CrPC.
25. File be consigned to record room.
Announced in the open court this 19th day of October 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 1916/09 Page 12 of 12