Delhi District Court
15.In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 1 September, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 105/99
Food Inspector
Department of PFA
Govt of NCT of Delhi
Versus
1. Pradeep Burman S/o Sh. Gopi Krishan Burman,
M/s Pradeep Pan Corner , Shop No. 2857,
Main Bazar, Subzi Mandi, Delhi.
3. M/s Kothari Products Ltd, 24/19, The Mall,
Kanpur-208001 ( India)
JUDGMENT
Date of Institution : 4.8.99 Date of reserving judgment : 01.09.10 Dated of Pronouncement : 01.09.10 U/S: 2 (ia)(a)(b)(m) punishable U/s 16(1) (a) (i) read with Section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector, S.K. Sharma against the above said accused persons C.C. N0. 105/99 1 alongwith accused No.2 Rattan Chatterjee S/o Late Sh. S.K. Chatterjee, M/s Kothari Products Ltd, 24/19, The Mall, Kanpur-208001 ( India) ( since expired and proceedings against him were abated ) , 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 15.1.99 at about 3:00 p.m., Food Inspector, S.K. Sharma purchased a sample of ' Pan Parag Gutkha', a food article, for analysis from Sh. Pradeep Burman S/o Sh. Gopi Krishan Burman at M/s Pradeep Pan Corner , Shop No. 2857, Main Bazar, Subzi Mandi, Delhi, where the said food article was found stored for sale and Sh. Pradeep Burman was found conducting the business of the said food article at the time of sampling. The sample consisted of 3 x 50 pouches of 4 gms, each pouch containing in a sealed cardboard boxes of Pan Parag Gutkha in original condition as such bearing identical label declaration. The Food Inspector divided the sample into three equal parts then and there which were properly marked, fastened, sealed and separately packed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample pouches. Notice was given to the accused Pradeep Burman and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. S.K. Sharma, Food Inspector were signed by the accused Pradeep Burman and the other witness Shri Sanjiv Kumar Gupta, Food Inspector. Before starting the sample C.C. N0. 105/99 2 proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervision/direction of Sh. Chanderakar Bharti, SDM/LHA. 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 3.2.99 and opined that the sample shows presence of Magnesium Carbonate.
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. S.K. Sharma, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(a)(b)(m) & also violated Rule 62 of PFA Rules, 1955 punishable U/s 16(1) (a) (i) read with Section 7 of the PFA Act .
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 19.08.99 , accused No.2 Rattan Chatterjee ( since expired) 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 C.C. N0. 105/99 3 Director, CFL, Calcutta vide Certificate No. G.14-4/99 ( PT.1)-399 dated 12.10.99 and opined that the sample of Pan Parag Gutkha is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a)(b)(m) punishable U/s 16(1) (a) (i) read with Section 7 of the PFA Act was framed against the accused persons on 12.12.08 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. S.K. Sharma.
8. Statements of accused persons were recorded separately on 10.06.10 under Section 313 Cr.P.C wherein they have controverted and rebutted the entire evidence against them while submitting by them that they are innocent and preferred not to lead evidence in their 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 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)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to C.C. N0. 105/99 4 affect, injuriously the nature, substance or quality thereof.
11. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
12. 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.
13.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 are liable to be convicted. Ld. Defence counsel argued that the sample was not representative as to why divergent reports have been given by two Analysts in respect of counterpart of same sample. Ld. Defence C.C. N0. 105/99 5 counsel for accused No.3 further argued that there is no evidence that the sample commodity was manufactured or supplied by accused No.3 i.e M/s Kothari Products Ltd.
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 argued that the report of the Public Analyst and the Director, CFL are divergent which itself shows that the sample was not representative. 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 and conclusive and the Public Analyst's report cannot be looked into C.C. N0. 105/99 6 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 3.2.99 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard as the sample shows presence of Magnesium Carbonate but when the counterpart of same sample was analysed by the Director, CFL on 12.10.99, test for Magnesium and Carbonate was found 'Negative'. Both the reports are divergent as one Analyst C.C. N0. 105/99 7 found Magnesium Carbonate in the sample commodity while another Analyst did not find any Magnesium Carbonate in the counterpart of same sample. The complainant has failed to show any explanation in respect of divergent reports by two Analysts in respect of counterpart of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
Whether the sample commodity was manufactured or supplied by accused No. 3 to vendor.
17. Ld. Defence counsel for accused No.3 vehemently argued that there is no evidence on record that the sample commodity was supplied by accused No.3 to the vendor. Ld. Defence counsel further argued that accused No.3 company has been prosecuted only on the basis of the label of the sample commodity.
18.1998 (SC) Page 128 titled as ' Pepsi Food Ltd Vs. Special Judicial Magistrate & Another , it was held as under:-
''........ The allegations in the complaint merely show that the appellants have given their brand name to '' Residency Foods and Beverages Ltd.'' for bottling the beverage '' Lehar Pepsi'' . The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated.C.C. N0. 105/99 8
The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No.3........ ''
19. In an another authority reported as 1985 (I) PFA Cases 270 titled as Bhola Ram Vs State of Punjab , it was held as under :-
Para No.3 - '' In the absence of a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or a dealer to a vendor, there could arise no presumption on the mere label or wrapper that the person purported to be the manufacturer , distributor or dealer thereof is in fact such manufacturer, distributor or dealer. The bare word of the vendor in that regard would not be enough. There had to be something more to it.''
20. Reverting back to the facts of the present case, there is no evidence on record that the sample commodity was manufactured or supplied by accused No. 3 to vendor except that the name of the company was appearing on the label. PW-1 F.I. S.K. Sharma confirmed in his cross-examination that no Bill of Kothari Products was given by the vendor or distributor till today and Kothari Products was prosecuted on the basis of the label of the sample commodity. In C.C. N0. 105/99 9 the complaint, it is not mentioned how during investigation it revealed that accused No.3 company was supplier or manufacturer of the sample commodity. Relying upon the authorities reported as 1998 Supreme Court 128 ( Supra); & 1985 (I) PFA Cases 270 ( Supra) , I am of the considered opinion that in absence of any evidence to the effect that accused No. 3 supplied the sample commodity to the vendor, same was wrongly prosecuted merely on the basis of the label.
21. In view of my above discussions and reasons, I am of the considered view that the complainant has failed to prove that a representative sample was taken. In the report of the Director, CFL, no Magnesium Carbonate was found and it is admitted case of the complainant as confirmed by PW-1 in his cross-examination that there was no standard of Gutkha at the time of sampling and it was taken as a proprietary food. Complainant has also failed to show when there was no standard of Gutkha at the time of sampling, how same was declared adulterated by the Director, CFL. In result, complaint stands dismissed and accused No.1 & 3 stand acquitted of the charge. Previous bail bond of accused No.1 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: 01.09.10 ACMM-II/NEW DELHI.
C.C. N0. 105/99 10
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