Delhi District Court
Da vs . Rajeev Maheshwari Etc. Page 1 Of 19 on 11 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 29/99
Food Inspector
Department of PFA
Govt of Delhi.
...........................Complainant
Versus
1. Sh. Rajeev Maheshwari
S/o Sh. Bishan Chand
M/s Hardwari Lal Bishan Chand,
1/2738, Shanti Building,
Mandoli Road, Delhi.
(DISCHARGED V/O DATED 26.08.2008)
........ VendorcumProprietor
2. Smt. Suraj Kanta
M/s Satya Narain Mahavir Prasad,
1551/1, West Rohtash Nagar,
Shahdara, Delhi32.
(DISCHARGED V/O DATED 26.08.2008)
......................SuppliercumProprietor
3. M/s Siel Foods & Fertilizer Industries
Vanaspati Depot,
CC No. 29/99
DA Vs. Rajeev Maheshwari Etc. Page 1 of 19
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 26.08.2008)
..............Supplier concern / Marketier
4. Sh. Ajay Tandon,
Sr. Manager Production
M/s Siel Foods & Fertilizer Industries
Vanaspati Depot,
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 26.08.2008)
..............Nominee of Marketier
5. M/s Suraj Solvent & Vanaspati Ind. Ltd.
Vill. Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab.
...............Manufacturer
6. Sh. S.S. Brar, Quality Control Manager
M/s Suraj Solvent & Vanaspati Ind. Ltd.
Vill. Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab.
..........Nominee.
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 29/99
Date of the commission of the offence : 01.09.1998
Date of filing of the complaint : 22.03.1999
CC No. 29/99
DA Vs. Rajeev Maheshwari Etc. Page 2 of 19
Name of the Complainant, if any : Shri Ranjit Singh, FI.
Offence complained of or proved : Violation of Section 2 (ia) (a)(b)
(c)&(l) of PFA Act 1954,
punishable U/s 16 (1A) r/w S. 7
of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 04.10.2013
Judgment announced on : 11.10.2013
J U D G M E N T
1. The present complaint has been filed on 22.03.1999 by Food Inspector Ranjit Singh against the above said accused persons. It is stated in the complaint that on 01.09.1998 at about 3:30 PM, FI Ranjit Singh purchased a sample of Vanaspati (Rath), a food article for analysis from accused Rajeev Maheshwari, S/o Sh. Bishan Chand, Vendorcum Proprietor of M/s Hardwari Lal Bishan Chand, 1/2378, Shanti Building, Mandoli Road, Delhi, where accused Rajeev Maheshwari was found conducting the business of the said food article. It is further stated in the complaint that FI Ranjit Singh purchased three originally sealed poly packs of Rath vanaspati of 1 litre (897 gms) each, having identical label declaration. Three counterparts were prepared at the spot by putting one CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 3 of 19 sealed packet in one plastic jar thereby making three counterparts. Each counterpart containing the sample commodity was separately packed, fastened, marked and sealed according to PFA Act & Rules. All the sample proceedings were conducted under the supervision and direction of Ms. Manisha Saxena, SDM/LHA. It is further stated in the complaint that after preparing three counterparts, the signatures of vendor Rajeev Maheshwari (since discharged) were obtained on the LHA slip and the wrapper of the sample counterparts. Notice in Form VI was given to vendor Rajeev Maheshwari and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by FI Ranjit Singh were signed by accused Rajeev Maheshwari, the vendor and the other witness namely Ms. Manisha Saxena, SDM / LHA. It is also stated in the complaint that efforts were made to join independent public witnesses in sample proceedings but none agreed and then SDM / LHA Ms. Manisha Saxena joined as such.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "the sample does not conform to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 4 of 19 1955, because sample shows presence of Argemone Oil".
3. It is further stated in the complaint that during investigations accused Rajeev Maheshwari (A1) was found to be VendorcumProprietor of M/s Hardwari Lal Bishan Chand, 1/2378, Shanti Building, Mandoli Road, Delhi. The sample commodity was purchased by accused Rajeev Maheshwari from M/s Satya Narain Mahavir Prasad, 1551/1, West Rohtash Nagar, Shahdara, Delhi32 which was a proprietorship concern having Smt. Suraj Kanta (A2) as its Proprietor and as such she was Incharge and responsible for conducting day to day business of the said supplier firm. It is further stated in the complaint that accused no.2 Smt. Suraj Kanta had purchased the sample commodity from M/s Siel Food & Fertilizer Industries (A3), Vanaspati Depot, 15, Shivaji Marg, New Delhi15 of which accused Ajay Tandon (A4) was Nominee and was responsible for the day to day business of the said suppliercummarketier firm. It is further stated in the complaint that the sample commodity was manufactured by M/s Suraj Solvent & Vanaspati Industries Ltd. (A5) of which accused S.S. Brar was Quality Control ManagercumNominee (A6) and as such he was responsible for conducting day to day business of the said manufacturer firm. After conducting investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 5 of 19 the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (a) (b)(c)(f) (h) & (I) of the PFA Act, 1954, punishable U/s 16 (1) (a) r/w S. 7 of the Act.
4. The accused persons were summoned vide order dated 22.03.1999.
On appearing, AR of accused no. 5 moved an application U/s 13 (2) of the Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Calcutta for analysis. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 28.05.1999 that "the sample of vanaspati Rath is adulterated".
5. Vide order dated 26.08.2008 accused no. 1 to 4 were given benefit of warranty u/s 19 (2) of PFA Act and were discharged. Now, accused no. 5 & 6 are facing the trial.
6. Thereafter, in pre charge evidence Food Inspector Ranjit Singh was examined as PW1 and pre charge evidence was closed vide order dated 26.05.2009.
7. Charges for violation of provisions of Section 2 (ia) (a) (b)(c) & (I) of PFA Act, 1954, punishable U/s 16 (1A) r/w S. 7 of the Act were framed against accused no. 5 & 6 vide order dated 18.09.2009 to which both of CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 6 of 19 them pleaded not guilty and claimed trial.
8. In post charge evidence, the prosecution examined aforesaid witness as PW1 and Smt. Manisha Saxena, SDM / LHA as PW2 and PE was closed vide order dated 15.01.2011.
9. Statements of both the accused persons U/s 313 Cr. P. C. were recorded on 22.03.2011 wherein both of them claimed themselves to be innocent and opted to lead DE. However, no DE was led by both the accused persons and hence, DE was closed vide order dated 16.12.2011.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. The Ld. Counsel for accused no. 5 & 6 argued that neither there was any provision nor any standard of Vanaspati prescribed at the time of lifting the sample that the vanaspati should be free from Argemone Oil. He further argued that Notification banning the presence of Argemone Oil in vanaspati came in force first time on 11.12.2001 while the sample in the present case was lifted on 01.09.1998. He has further argued that no percentage of Argemone Oil has been given by both the experts and in the absence of quantity, weight and proportion, it was possible that presence of argemone oil in the sample may be just negligible so as to cause no prejudice to the purchaser. He has further argued that as per 'Modi's CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 7 of 19 Medical Jurisprudence and Toxicology' about 1% of Argemone Oil as an adulterant is necessary to produce epidemic dropsy and presence of argemone oil without any percentage which may even less than 1% is not per se injurious to health and thus it can not be said that the sample was adulterated. He has further argued that there is no evidence that Argemone oil is injurious to health or likely to cause death and there is no such finding in the PA's Report that the Argemone Oil was injurious to health. He has further argued that in PA & CFL Reports there are variations which are more than .3%, which shows that a representative sample was not taken and hence, the accused persons are liable to be acquitted. He has placed reliance on case law titled as Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, Dinesh Kumar Vs. State of M.P 2004(2) FAC 151, Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Rattan Malhotra 2012 (2) FAC 398.
12. On the other hand Ld. SPP for complainant has argued that presence of argemone oil means that the oil was not edible and therefore it was harmful as the sample commodity contained argemone oil irrespective of the percentage not declared by the PA & CFL and it does not make any difference. He has further argued that CFL Report supersedes the report of Public Analyst and hence, the variations in reports of experts are immaterial CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 8 of 19 and accused persons can not be given the benefit thereof. He has further argued that the prosecution has proved its case beyond reasonable doubt and hence, the accused are liable to be convicted.
13. Both the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW1 Sh. Ranjit Singh who is complainant Food Inspector in the present case has deposed in his examinationinchief that on 01.09.1998, he under the supervision and directions of SDM/LHA Ms. Manisha Saxena had visited the premises of M/s Hardwari Lal Bishan Chand, 1/2378, Shanti Building, Mandoli Road, Delhi, where accused Rajeev Maheshwari (since discharged) was found present and conducting the business of the said shop having stored various food articles including Vanaspati for sale for human consumption. He has further deposed that they introduced their identity to accused and intention to purchase the sample of Vanaspati to which accused Rajiv Maheshwari agreed. He has further deposed that he purchased 3 x 1 litre (897 gms) of Rath Vanaspati in orignally sealed conditon, bearing identical label declaration on payment of Rs. 147/ vide vendor's receipt Ex. PW1/A. He has further deposed that he divided the sample into three equal parts by putting them in three clean and dry plastic CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 9 of 19 jars in originally sealed condition as such and each plastic jar containing the sample commodity was separately packed, fastened, marked and sealed according to PFA Act and Rules. He has further deposed that notice was prepared at the spot vide Ex. PW 1/B and a copy of the same was given to vendor Rajeev Maheshwari and vendor also made an endorsement thereon at portion A to A. He has further deposed that the vendor also made an endorsement on Notice in Form VI Ex. PW 1/B that he has purchased the sample packets from M/s Satya Narain Mahavir Prashad, 1551, West Rohtas Nagar, Shahdara, Delhi. He further deposed that a Notice u/s 14 A Ex. PW 1/C was prepared at the spot and was sent to M/s Satya Narain Mahavir Prashad, 1551, West Rohtas Nagar, Shahdara, Delhi. He has also deposed that vendor also provided copy of Bill of Purchase Mark X. Panchnama was also prepared at the spot vide Ex. PW 1/D. He has further deposed that all the documents were read over and explained to the accused/vendor Rajeev Maheshwari in Hindi and after understanding the same the vendor as well witness and he himself signed the same. He has further deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 02.09.1998 vide receipt Ex. PW 1/F and one counterpart of the sample in intact condition was deposited with with PA vide PA receipt Ex. PW 1/E. He further deposed that PA's CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 10 of 19 report Ex. PW 1/F was received, according to which the sample was found not conforming to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed presence of argemone oil.
15. PW1 has further deposed that during investigation accused furnished his statement Ex. PW 1/H that he is the sole Proprietor of M/s Hardwari Lal Bishan Singh and also provided the copy of the License Mark Y. He has further deposed that during investigation, Smt. Suraj Kanta, supplier of the sample commodity admitted the sale of the sample commodity to the vendor and disclosed that she purchased the sample commodity through M/s Siel Food & Fertilizers Industries, 15, Shivaji Marg, New Delhi and provided the copy of the Bill and Invoice of M/s Siel Food & Fertilizers Industry in respect of the sale of the sample commodity which are Mark Z & Z1 respectively. He has further deposed that he has personally visited M/s Siel Food & Industries Ltd and they replied in writing vide their letter Ex. PW 1/I that they purchased the sample packets from M/s Suraj Solvent & Vanaspati Industry Ltd and provided Invoice Mark Z2 to Z4 in respect of purchase of sample commodity from the above said firm and also furnished the copy of Nomination under Form VIII in favour of accused Ajay Tandon alongwith copy of Resolution of the Directors, which are Mark Z5 & Z6 CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 11 of 19 respectively.
16. PW1 has further deposed that M/s Suraj Solvent & Vanaspati Industry Ltd. also confirmed the sale of sample commodity to M/s Siel Food & Fertilizers Industry and also provided the copy of Nomination in Form VIII in favour of accused S.S. Brar alongwith the copy of Resolution which are Mark Z7 & Z8 respectively. He has proved the Sanction as Ex. PW 1/J, complainant as Ex. PW 1/K and intimation letter as Ex. PW 1/L.
17. PW2 Smt. Manisha Saxena, the then SDM / LHA, under whom supervision and directions the sample proceedings were conducted has deposed more or on the same pattern as deposed by PW 1 and substantiated the averments made in the complaint.
18. PW1 in his crossexamination could not comment that in the year 1998, there was no restriction of the presence of argemone oil in the standard of vanaspati or that same came into force in the year 2000. He admitted that PA had not given the method of performing the test of argemone in his report while Director CFL conducted the same by TLC method as per report. He could not comment that DGHS for the first time prescribed the TLC test for detection of argemone oil in September 1999.
19. PW2 in her crossexamination has admitted that PA has not mentioned that argemone oil is injurious to health in his report. She has CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 12 of 19 also admitted that PA has not given the percentage of argemone oil in his report.
20. In the statements U/s 313 Cr.P.C, the accused no. 5 & 6 have feigned ignorance regarding sample proceedings on the ground that they were not present at the spot on the day of sample proceedings. They have taken a defence that in their factory every batch was tested before packing as their product was I.S.I and I.S.I officers used to periodically check the laboratory and the Analytical Register. Packages were packed only after the particular batch was found not adulterated and they have taken all possible precautions to prevent the commission of the offence. They have also taken a defence that no reliance can be placed on the report of Director CFL as a representative sample was not taken.
21. It is not in dispute that on 01.09.1998, FI Ranjeet. Singh under the supervision of SDM / LHA Ms. Manish Saxena had visited the premises of M/s Hardwari Lal Bishan Chand, 1/2378, Shanti Building, Mandoli Road, Delhi where accused Rajeev Maheshwari (since discharged) was found conducting the business of various food articles including Vanaspati, sample of which was lifted by the FI. After analysing the sample commodity, the Public Analyst found the sample not conforming to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 13 of 19 1955 because sample showed presence of argemone oil. On the basis of PA's Report, the prosecutions was launched. It is also not in dispute that AR of accused no. 5 exercised the right under section 13(2) of PFA Act 1954 and the second counterpart of the sample was sent to CFL Calcutta and the Director CFL vide report dated 28.05.1999 also found the sample of Vanaspati Rath to be adulterated. It is also not in dispute that accused no. 1 to 4 were given the benefit of Warranty u/s 19(2) of PFA Act and they were discharged vide order dated 26.08.2008.
22. Now coming to the arguments advanced by Ld. counsel for accused no.5 & 6, it is evident from record that on 01.09.1998 the sample was lifted by FI and the PA & Director CFL found the sample to be adulterated because of presence of Argemone Oil. However, it is an undisputed fact that the Notification of banning the presence of Argemone Oil in vanaspati came in force on 11.12.2001 and at the time of lifting the sample there was no prohibition of Argemone Oil in vanaspati. In this context, reference may be made to the case law Dinesh Kumar Vs. State of M.P 2004(2) FAC 151. The facts of the case are that on 29.03.1998 FI lifted a sample of Besan. PA found the sample adulterated as the sample commodity was containing Kesari Dal which was prohibited under Rule 44 A of PFA Rules and on the basis of PA's Report, the complaint was filed. After considering CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 14 of 19 the material on record, the trial court acquitted the accused. Lateron on an appeal preferred by State, the Hon'ble High Court only referred to Rule 44 and allowed the appeal of the State. Aggrieved by the order of Hon'ble High Court, the accused preferred an appeal before Hon'ble Apex Court and the Hon'ble Apex Court accepted the appeal of the accused and set aside the order of Hon'ble High Court and observed as under"
"We find that so far as State of M.P. is concerned, the notification No. F3/62/98/M2/17 was issued for application of Rule 44 A with effect from 6th April, 2000. Admittedly the samples were collected much prior to that date i.e. 29.03.1988. Since Rule 44 A was not applicable and was not in operation in the State of M.P. on the date of alleged collection of samples Rule 44 A could not have been applied to find the accused guilty.".
23. Similarly in the present case also on the date of lifting the sample i.e. 01.09.1998, there was no notification providing the standard of argemone oil in Vanaspati and this standard banning the presence of argemone oil in vanaspati came in force w.e.f 11.12.2001.
24. Secondly, none of the experts has given the percentage of Argemone Oil in the sample commodity. Moreover, it is also not the case of the prosecution that owing to consumption of sample commodity in question there was any casualty and none of the experts has given any opinion that the sample commodity was injurious to health.
CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 15 of 19
25. In this regard, it is pertinent to mention that as per Modi's Medical Jurisprudence and Toxicology, at least 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. In the absence of any finding on its percentage, the possibility of argemone oil less than 1% in the sample commodity can not be ruled out. Therefore, it was necessary to give percentage of Argemone by PA & Director CFL to adjudge whether the argemone oil was to such an extent that it was injurious to health.
26. In Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, a sample of Bari Elaichi was lifted from the shop of the accused / petitioner. The second counterpart of the sample on being got analyzed from the CFL, The Director CFL found the mineral oil 'positive'. But the Director CFL nowhere mentioned the quantity, weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi so that it could be presumed to be injurious to health, nor any evidence whatsoever was brought on record to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample and, therefore, on these facts and circumstances, the revision petition was allowed and the petitioner / accused was acquitted.
27. Further perusal of both the reports of experts, it is revealed that both CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 16 of 19 the reports are at variance to each other. The PA vide its report Ex. PW 1/F has found Moisture to the tune of 0.024% whereas the Director CFL has found the Moisture to the tune of 0.07%. Further, the PA has adjudged the B.R. reading at 40 Deg. C to be 50 whereas the Director CFL has adjudged the same to be 49.8. Likewise, the PA has found B.T. red unit to the tune of 8.5 whereas the Director CFL has found B.T. red units to the tune of 2.2 red units. Furthermore, PA has found Free Fatty Acid by 0.16% whereas the Director CFL has found the same by 0.05%. Thus, there are variations to some extent which are more than .3%, which is stated to be the permissible limit of variations. These variations indicate that either a representative sample was not taken or a bad sampling procedure was adopted by the FI in this case.
28. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177 has held that, "since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 17 of 19 representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 has observed that, " 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". Similarly in State Vs. Mahender Kumar & Ors. (Supra) has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both the Public Analyst as well as the CFTRI".
29. In view of aforesaid discussion and observation, I am of the CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 18 of 19 considered view that the prosecution has not been able to prove its case beyond reasonable doubt and the case tilts in favour of accused persons. Accordingly, the accused no. 5 & 6 are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 11th October, 2013 ACMMII/ PHC/ New Delhi
CC No. 29/99
DA Vs. Rajeev Maheshwari Etc. Page 19 of 19
CC No. 29/99
DA Vs. Rajeev Maheshwari Etc.
11.10.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 to 4 have already been discharged.
Accused no. 5 & 6 are present with Counsel Sh. M.K. Gupta. Vide my separate Judgment of even date dictated and announced in the open court, all accused stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Their sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished B/Bs & S/Bs in the sum of Rs. 15,000/ each. The same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/11.10.2013 CC No. 29/99 DA Vs. Rajeev Maheshwari Etc. Page 20 of 19