Delhi High Court
State (Delhi Admn.) vs Shiv Shankar on 9 March, 2010
Author: V. K. Jain
Bench: V.K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No.436/2005
% Reserved on: 03rd March, 2010
Date of Decision: 09th March, 2010
# STATE (DELHI ADMN.) ..... Appellant
! Through: Mr. Jaideep Malik, APP
versus
$ SHIV SHANKAR ..... Respondent
^ Through: Mr. M.L. Alwadhi, Adv.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: V.K. JAIN, J.
1. This is an appeal filed by the State against the Judgment dated 2nd April, 2004, whereby the respondent was acquitted of the charge under Section 16 of Prevention of Food and Adulteration Act, 1954.
Crl.A.No.436/2005 Page 1 of 22
2. On 31st December, 1992, Food Inspector Surender Kumar Sharma purchased, for analysis, a sample of paneer, a food article, from the respondent who was running business under the name and style of M/s Kumar Dairy, 6/33 Moti Nagar, New Delhi. Paneer was found stored in the shop of the respondent for the purpose of sale. The case of the complainant is that the sample of paneer purchased by the Food Inspector, weighing about 750 gms., was cut into small pieces with the help of clean and dry knife in a clean and dry aluminum tray and was mixed with the help of clean and dry steel spoons. The sample was then divided into three equal parts each of which was kept in a separate clean and dry bottle and 20 drops of formalin was added to each bottle. After packing, fastening, marking and sealing the sample as per PFA Act & Rules, signatures of the respondent were obtained on the paper slip and wrapper of the bottle. One counterpart of the sample was sent to Public Analysis, whereas the remaining two samples were deposited with the Local Health Authority. It was reported by the Public Analyst that the sample did not conform to prescribe standard, as the milk fat in paneer was less than the prescribed minimum standard of 50%. Crl.A.No.436/2005 Page 2 of 22
3. On receipt of summons, the respondent appeared before the Trial Court and on his request, the second counterpart of the sample was sent to Director, Central Food Laboratory for analysis. It was reported by Director, Food Laboratory that the sample did not conform the prescribed standard of paneer as the fat contained was below the minimum specified limit of 50%.
4. During trial, the appellant/complainant examined three witnesses.
5. PW-3 Shri S.K. Sharma, Food Inspector stated that on 31st December, 1992, he alongwith Inspector Rajesh Kumar and other staff of department visited M/s Kumar Dairy, 6/33 Moti Nagar, New Delhi under the supervision of LHA Mr. R.K. Ahuja. The appellant Shiv Shankar was found conducting business there and having stored paneer, butter, milk, etc. for sale for human consumption. He purchased 750 gms paneer which was in the form of a brick lying in the refrigerator. The paneer brick was cut into smallest pieces with the help of a clean and dry knife in a clean and dry aluminum tray. The pieces so cut were properly mixed by a clean and dry spoon, by rotating them in all possible directions, i.e., clockwise, anti- Crl.A.No.436/2005 Page 3 of 22 clockwise, upward and downward, many times. The sample was then equally divided into three parts which were put in three clean and dry glass bottles. Twenty drops of formalin were added to each counterpart of the sample, while shaking them for proper dispersion of formalin in each sample. Each counterpart was packed, fastened, marked and sealed as per PFA Act and Rules and slips of Shri R.K.Ahuja bearing his code number and signatures were affixed on each of them. The respondent also signed each counterpart in such a manner that part of his signatures came on the wrapper and the part on LHA slip. On 31st December, 1992, one counterpart of the sample along with Form VII and one Form VII which had been separately sealed, were deposited in the office of Public Analyst vide receipt Ex.PW-3/A. On the same day, two counterparts with two From VII were deposited with LHA vide receipt Ex.PW-1/D under intimation that one counterpart had already been deposited in the office of Public Analyst. All the copies of Form VII were affixed with specimen seal that was used for sealing the sample.
6. PW-1, Shri R.K.Ahuja, is the LHA, who accompanied PW-3 to the place of the respondent. He has fully corroborated Crl.A.No.436/2005 Page 4 of 22 the testimony of PW-3. PW-2, FI Rajesh Kumar, is a Food Inspector, who had accompanied PW-1 and PW-3 to the place of respondent on 31st December, 1992. He also has corroborated their testimony. PW-1, Shri R.K.Ahuja, has also stated that each counterpart of the sample was properly shaken by the Food Inspector after adding formalin, so as to mix it throughout the paneer. PW-2, Rajesh Kumar, has also deposed to the same effect.
7. In his statement under Section 313 Cr.P.C., the respondent admitted that on 31st December, 1992 PW-1 to PW- 3 visited Kumar Dairy where he was conducting business and that he had stored paneer in that premises for sale for human consumption. He also admitted that 750 gms. Panner which was in a brick form was purchased from him, though he claimed that no money was paid to him for the paneer. He denied cutting of paneer into smallest pieces and claimed that the fat was unevenly distributed in the brick which was cut into pieces without first bringing it to room temperature. He did not dispute that formalin was added to each counterpart of the sample but claimed that formalin was not of proper grade and excessive quantity was added. He admitted that each Crl.A.No.436/2005 Page 5 of 22 counterpart of the sample was packed, fastened, marked and sealed as per PFA Act and Rules and he also had signed the paper slip that was affixed on it, in such a manner that part of his signature came on the wrapper and part on LHA slip. As regards the report of Director, Central Food Laboratory, he claimed that analysis was carried out after about five months and that formalin cannot preserve paneer for more than two months. He also claimed that though the sample may appear to be wholesome, it indicates chemical changes due to hyponetic action of eyzymes. He stated that paneer was spongy and formalin could not be distributed and some fat got stuck with knife and tray.
8. The respondent produced one Mr.D.N.Mathur, Joint Director in National Dairy Research Institute, Karnal, which is a body carrying out research and providing consultancy to dairy projects. He stated that one Dr.K.R.Haridas had conducted a research in National Dairy Research Institute regarding shelf life of paneer to which formalin had been added as a preservative and the result of research was published in a Journal, copy of which is Ex.DW-1/A. According to him, it was found in research that even after addition of formalin Crl.A.No.436/2005 Page 6 of 22 chemical changes in paneer start after six days and it becomes mouldy and nytrozen content gets reduced. He opined that if two analysts examine a sample of same paneer with a time gap of about five months, the analysis which is nearner to the data of sample needs to be preferred. He stated that though a sample may be fit for analysis, it may not be fit for accurate analysis since its values may go down with lapse of time. During cross-examination, he admitted that his deposition in the court was based on above referred research paper.
9. The trial court has acquitted the respondent on the grounds that: (1) paneer was not thawed or brought to room temperature and a wrong technique was used for taking sample as neither the paneer brick was drilled nor chunks were taken from its different parts; and (2) the samples were not kept under refrigeration and there was no mention in the complaint and the documents that the refrigerator of the respondent was not working. Another consideration which weighed with the trial court in acquitting the respondent was that according to PW-1 and PW-3, the weight of the brick of paneer was 750 gms., whereas according to PW-2, it was one kilogram and there was contradiction in the testimony of Crl.A.No.436/2005 Page 7 of 22 witnesses on the question as to whether the refrigerator of the respondent was working or not. It was further noticed that date of expiry of formalin had not been given by the witnesses.
10. In my view, the contradictions noted by the learned Metropolitan Magistrate are absolutely insignificant and irrelevant. The respondent himself has admitted in his statement under Section 313 Cr.P.C. that cheese weighing 750 gms. was taken as sample from him. The same is the weight shown in the documents prepared on the spot, including the Panchnama, Ex.PW-1/C and vender receipt Ex.PW-1/A. In view of the contemporaneous documentary evidence produced by the complainant, coupled with the fact that the respondent himself has admitted the weight of the paneer taken from him as sample, it is absolutely immaterial that one of the witnesses has given its weight as one kilogram. In fact, there is no dispute between the parties as regards quantity of the paneer taken by the Food Inspector from the respondent. Therefore, the learned Metropolitan Magistrate was not at all justified in referring to the testimony of PW-2 as regards the weight of the paneer.
11. In my view, it is absolutely immaterial whether the Crl.A.No.436/2005 Page 8 of 22 refrigerator of the respondent was working or not. In any case, the complainant was under no obligation to state in the complaint itself as to whether the refrigerator was working or not at the time of taking sample. A complaint is not an encyclopedia, so as to contain even minute details. Only material facts need to be pleaded in the complaint. It is just too much to expect the complainant to state in the complaint as to whether the refrigerator in which paneer was stored was in working condition or not when the offence alleged to have been committed by him is not being attributed to his refrigerator, not being in working condition. The respondent has been prosecuted for storing, for sale, paneer which did not conform to the prescribed standard, as the milk fat in it was found to be less than the minimum percentage prescribed under the rules and not for selling paneer without keeping it in refrigerator. Irrespective of whether his refrigerator was working or not, the respondent would be guilty, if the paneer stored by him, for sale, did not conform to the prescribed standard. Therefore, as far as the charge against the respondent is concerned, nothing really turns on as to whether the refrigerator of the respondent was in working condition or Crl.A.No.436/2005 Page 9 of 22 not.
12. It is an admitted case that the samples were not kept under refrigeration. However, there is absolutely no expert opinion to show that sample of paneer, even after adding formalin to it, would become unfit for analysis, if it is not kept under refrigeration. Even DW-1, Dr.B.N.Mathur, has not stated so before the trial court. The court needs to appreciate that paneer, though a milk product, is not milk as such, and, therefore, what is true to milk may not necessarily be true in respect of paneer. The most important aspect in this regard is that when the sample of paneer was analysed by Central Food Laboratory, it was not found unfit for analysis. If the sample of paneer, to which formalin had been added, remained fit for analysis even after five months, that by itself is sufficient to show that it did not necessarily require refrigeration, at least for five months. Therefore, in my view, the trial court was not correct in acquitting the respondent on this ground.
13. As regards the method of taking samples, as noted earlier, according to witnesses, the paneer was cut into smallest possible pieces which were properly mixed using clean and dry spoon and were then rotated in all possible Crl.A.No.436/2005 Page 10 of 22 directions, i.e., clockwise, anti-clockwise, upward and downward, and this process was undertaken a number of times. There was no expert opinion before the trial court which would show that the sample of paneer, in the manner taken in the present case is not a proper method of sampling this product. Drawing chucks from portions of the brick with the help of a cheese drawer may be a proper method of taking sample of paneer, but may not necessarily be the only proper method to be adopted for this purpose. In the absence of an expert opinion, the trial court was not justified in holding that cutting of paneer into smallest pieces with the help of a clean and dry knife and then mixing them with a dry spoon and rotating them a number of times in all possible directions was not a proper method of sampling. It has to be kept in mind that no particular method of taking samples has been prescribed in PFA Act or Rules framed thereunder. Therefore, in the absence of an expert opinion, the trial court was not justified in insisting upon a particular method of taking sample of paneer. It would be relevant to note here that extract noted by the trial court from the book „Food Chemistry‟ pertains to frozen food and the paneer (cottage cheese) which Crl.A.No.436/2005 Page 11 of 22 the respondent was found having stored for sale cannot be said to be a frozen food. „Frozen Food‟ is a food article, which is exposed to extreme cold and is preserved by refrigeration below freezing point. Paneer, as we all know, is not exposed to such extreme cold and is stored at a temperature below freezing point. Also, there was no expert opinion before the trial court to take a view that the sample of paneer needs to be necessarily thawed or brought to room temperature before cutting it into smallest pieces and then mixing those pieces with the help of a spoon. It would, therefore, be difficult to say that the paneer taken from the respondent was necessarily required to be brought to room temperature or that it was obligatory for the Food Inspector to take pieces of samples by drilling or taking chunks from different parts of the package and then subject them to thawing. The trial court has ignored the fact that the whole of the brick taken from the respondent was cut into pieces and then mixed properly before dividing it into three counterparts. Therefore, the fat content of the entire sample must have necessarily gone into the samples sent to the Public Analyst and Central Food Laboratory.
14. In my view, it was too much on the part of the trial Crl.A.No.436/2005 Page 12 of 22 court to expect the witnesses to remember the date of expiry of formalin added to the sample. Before using formalin or any other chemical, Food Inspector is not expected to note down the date of its expiry. It is sufficient if he is using the chemical which has not expired. According to PW-1, the formalin used in the present case was almost fresh and was of BDH Company. In fact, according to him, the date of expiry was not mentioned at all on the bottle of formalin. This is not the case of the respondent that the formalin used by the Food Inspector was expired one. This was not his case that the date of expiry is mentioned on the bottle of formalin. During his statement under Section 313 Cr.P.C., the respondent claimed that the formalin used by the Food Inspector was not of proper grade and excessive quantity of formalin was used. He did not claim that the formalin used by the Food Inspector had expired. Therefore, the trial court was not justified in disbelieving the case of the complainant on the ground that the expiry date of formalin could not be given by the witnesses when they were examined in the court.
15. It was contended by the learned counsel for the respondent that the consent has not been duly proved by the Crl.A.No.436/2005 Page 13 of 22 complainant as neither the Consenting Authority has been produced in the witness box nor does PW-1 say that he was conversant with the signature of Consenting Authority, Shri M.P.Tyagi. I find that the consent Ex.PW-1/F was exhibited in the deposition of PW-1 without any objection from the respondent. Had the respondent objected to the consent being exhibited in the deposition of PW-1 without his claiming that he was conversant with the signature of Shri M.P.Tyagi, the complainant could have produced either the Consenting Authority himself or some other person conversant with his signature to prove the signature on the consent Ex.PW-1/F. By not objecting to the consent being exhibited in the deposition of PW-1, the respondent is deemed to have dispensed with the requirement of proving the signature of Shri M.P.Tyagi either by summoning him or by producing a person who would be conversant with his signature. Hence, no benefit, at this stage, accrues to the respondent on this ground.
16. It was also contended by the learned counsel for the respondent that there was no evidence of the sample and the specimen seal impressions having been sent by PW-3 to the Crl.A.No.436/2005 Page 14 of 22 Public Analyst and, consequently, there was breach of Rule 17(a) and Rule 18 of PFA Rules. In my view, there is no merit in the contention. A perusal of the report of Public Analyst, Ex.PW-1/E, would show that not only the sample which had been properly sealed and fastened with seals intact on it was received by him, the specimen impressions of the seal were also separately sent to him by the Food Inspector and on comparison by him, the specimen impressions of the seal tallied with the seal impressions on the sample. Though Ex.PW-1/3 has been prepared on a printed proforma after typing relevant particulars at proper places, that, to my mind, would make no difference for the simple reason that had the sample received by the Public Analyst not been properly sealed and fastened or had the seals on the sample not been intact and unbroken, he would have deleted that portion of the proforma which referred to the condition of the sample and the seals on it. The fact that the Public Analyst did not delete this portion of the proforma leaves no reasonable doubt that the sample received by him was properly sealed and fastened the seals on it were unbroken. Similarly, had the Food Inspector not sent the specimen impressions of the seal separately to Crl.A.No.436/2005 Page 15 of 22 him, the Public Analyst would have deleted that portion of the proforma which pertained to companies‟ seals on the container and outer cover of the sample with the specimen impressions of the seal separately sent by the Food Inspector. In fact, had the inspector not sent specimen seal impressions to him or had the seal impressions on the container not tallied with the specimen impressions sent separately to him, the Public Analyst would have intimated the Local Authority about the same and would have sent requisition to him for sending second part of the sample as provided in the proviso to Rule 7 of PFA Rules, which enjoined a duty upon him to compare the seals on the containers and the outer cover with the specimen impressions received separately and to note the condition of the seal thereon. I, therefore, find no merit in this contention.
17. It was also contended by the learned counsel for the respondent that there is breach of Section 11(1)(C) of PFA Act as the Food Inspector instead of sending one counterpart of sample directly to the Public Analyst, deposited with the Sample Officer of the Department. In my view, there is no merit in the contention. It was not necessary for the Food Inspector to send the sample directly to the Public Analyst. He Crl.A.No.436/2005 Page 16 of 22 could as well have used the services of Sample Officer or some other official for this purpose. Rule 17 of PFA Rules which prescribes the manner of dispatching containers of samples, to the extent it is relevant, reads as under:
"17. Manner of dispatching containers of samples.--The containers of the sample shall be dispatched in the following manner, namely:--
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means;
(b) .........."
18. The Food Inspector, therefore, could have adopted any suitable means for sending sample as well as specimen impressions of the seal to the Public Analyst and there was nothing wrong in availing the services of an official of the Department for this purpose.
19. During the course of arguments, the learned counsel for the respondent emphasized upon the result of the research stated to have been carried out by Dr.K.B.Haridas under the aegis of National Dairy Research Institute, Karnal, and contended that since, paneer loses its fat content with the Crl.A.No.436/2005 Page 17 of 22 passage of time, as established during the research carried out by Dr.K.B.Haridas and the analysis by Central Food Laboratory was carried out after more than five months of taking the sample, there was a strong possibility of the fat content in the paneer taken from the respondent, having gone down with the passage of time. In other words, the contention is that there was a reasonable possibility of the fat content in the paneer being more than 50% when the sample was taken on 31st of December, 1992 and its percentage having got reduced in a period of about five months during which the sample was lying in the office of LHA. According to him, on account of delay in filing of complaint and, consequent, delay in carrying out of analysis by Director, Central Food Laboratory, it could not remain possible for the respondent to show that at the time the sample of paneer was taken from him the fat in the paneer were more than 50% and the report of Public Analyst was not correct. The report of Director, Central Food Laboratory supersedes the report of Public Analyst as provided in Section 13(3) of Prevention of Food Adulteration Act. No doubt, if the respondent is able to satisfy the court that even after addition of formalin to it, sample of Crl.A.No.436/2005 Page 18 of 22 paneer loses its fat contents to such an extent that within a period of about five months, the percentage of fat may go down by more than 16%, that would show that there was a reasonable possibility of the paneer taken from the respondent having fat content of more than 50% at the time the sample was taken. It is, therefore, necessary for the court to find out, whether the percentage of fat in sample of paneer, goes down with the passage of time and if so, to what extent it would go down in a period of about five months, despite addition of formalin to it. In the research stated to have been carried out by Dr.H.K.Haridas, it was found that the percentage of decrease in fat content of the preserved sample for storage period of 7, 14 and 21 days varied from 0 to 1.8, 2.4 to 5.7 and 5.4 to 9.0. There is no finding as regrd decrease in fat content if the sample is preserved for a period of about five months. If the maximum decreased in fat content, noticed by Dr.H.K.Haridas, is taken into account, the percentage of fat content in the paneer taken from the respondent would still fall short of the prescribed standard. But, then the study relates to the sample stored for a maximum of 21 days and there is no finding as regards the paneer stored for more than Crl.A.No.436/2005 Page 19 of 22 five months. It would, therefore, be necessary for the court to ascertain, from a reliable expert as to how much, if any, would be the loss of fat content after five months in a sample of paneer to which formalin has been added in the quantity that was added in the present case.
20. It is true that Director, Central Food Laboratory did not find the sample analysed by him to be unfit for analysis. It is also quite possible that since the date of taking sample was known to Director, Central Food Laboratory, the same having been written on the container itself, had it been possible for the fat content to go down by as much as 16% or more, the Director himself may have noted so in his report. But, considering the fact that the Director, Central Food Laboratory was not examined by either party and the research carried out by Dr.H.K.Haridas shows loss of 9% of fat in a period of about 21 days, it would be necessary for the court to go further into this aspect and seek an authentic expert opinion on the decrease in fat content in a period of about five months.
21. For the reasons given in the preceding paragraphs, the impugned order is, hereby, set aside and the trial court is directed to summon and examine the Director, Central Food Crl.A.No.436/2005 Page 20 of 22 Laboratory as a court witness and obtain his opinion, on the question as to whether a sample of paneer, to which formalin has been added in the quantity that was used in this case, will lose its fat contents with the passage of time and if so, what would be the percentage of decrease in the fat content, between 31st December, 1992 when the sample was taken and the date on which the sample was examined by the Central Food Laboratory. While examining the Director, Central Food Laboratory, it will also be open to the trial court to obtain his opinion as to whether the method of taking sample adopted in this case, which comprised cutting the brick of paneer into smallest pieces with a clean and dry knife and then mixing them with the help of a clean and dry spoon, followed by rotating them in all possible directions, was a proper method of taking sample, for the purpose of analysis, or not.
22. The parties are directed to appear before the trial court at 10.00 a.m. on 22nd of March, 2010. The trial court will examine Director, Central Food Laboratory within two months of the parties appearing before it and will decide the matter afresh within in one month thereafter after hearing both the parties. Both the parties will be given opportunity to cross- Crl.A.No.436/2005 Page 21 of 22 examine the Director of Central Food Laboratory. Trial Court Record be sent back, with a copy of this judgment, for compliance.
(V.K.JAIN) JUDGE MARCH 09, 2010 RS/ Crl.A.No.436/2005 Page 22 of 22