Delhi District Court
Da vs . Mahender Mahajan Page 1 Of 16 on 10 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 168/06
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Mahender Mahajan
S/o Sh. Bishamber Lal Mahajan
M/s Shri Kartikay Store, 25, DDA Market,
Opp. Rajouri Garden Police Station,
Vishal Enclave, New Delhi
R/o House No. E173,
Ramesh Nagar, New Delhi 15
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 168/06
Date of the commission of the offence : 20.04.2006
Date of filing of the complaint : 13.07.2006
CC No. 168/06
DA Vs. Mahender Mahajan Page 1 of 16
Name of the Complainant, if any : Shri S.K. Sharma, Food Inspector
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (b) (j) & (m) of PFA Act
1954 and violation of provisions of
Rule 23 r/w Rule Rule 28 & 29 of
PFA Rules; punishable U/s 16(1A)
r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 23.08.2013
Judgment announced on : 10.09.2013
J U D G M E N T
1. The present complaint has been filed on 13.07.2006 by the Delhi Administration through FI Sh. S.K. Sharma against the accused Mahender Mahajan. It is stated in the complaint that on 20.04.2006 at about 7.30 PM, FI Sh. S.K. Sharma purchased a sample of Arhar Dal, a food article for analysis from Sh. Mahender Mahajan S/o Bishamber Lal Mahajan of M/s Shri Kartikay Store, 25, DDA Market, Opp. Rajouri Garden Police Station, Vishal Enclave, New Delhi27, where the said food article was found stored for sale and where accused Mahender Mahajan was found conducting the business of the said food article at the time of sampling. FI Sh. S.K. Sharma purchased 1500 gms of Arhar Dal taken from an open tin bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating it in all possible directions several times under the supervision and direction of Sh. B.M. Jain, SDM/LHA.
CC No. 168/06 DA Vs. Mahender Mahajan Page 2 of 16Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to the accused vide Vendor's Receipt dated 20.04.2006. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Mahender Mahajan and the other witness namely Sh. Om Prakash, FA. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Om Prakash, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 93/LHA/15101 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 is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is stated that during investigation, it is revealed that Mahender Mahajan S/o Sh. Bishamber Lal Mahajan was the Vendorcum Proprietor of M/s Shree Kartikay Store, 25, DDA Market, Opp. Rajouri Garden Police Station, Vishal Enclave, New Delhi27 at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of CC No. 168/06 DA Vs. Mahender Mahajan Page 3 of 16 the said shop. It is further stated that after conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (j) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 13.07.2006 The accused appeared and moved an application U/s 13 (2) of the PFA 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 22.08.2006 that "sample does not conform to the standards of split Pulse (Dal) Arhar as per PFA Rules 1955 ".
5. The prosecution examined Sh. B.M. Jain, the then SDM/LHA under whose supervision and directions sample proceedings were conducted as PW1 and Food Inspector Sh. S.K. Sharma who conducted the sample proceedings as PW2 towards precharge evidence and vide order dated 09.06.2008, pre charge evidence was closed.
6. Charge for violation of provisions of sub clause (a) (b) (j) and
(m) of Section 2 (ia) of the PFA Act and for violation of provision of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 14.09.2009 to CC No. 168/06 DA Vs. Mahender Mahajan Page 4 of 16 which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Sh. B.M. Jain, the then SDM/LHA as PW1, Food Inspector Sh. S.K. Sharma as PW2 and Sh. Om Prakash, Field Assistant as PW3 and PE was closed vide order dated 08.07.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 19.05.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 16.08.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has vehemently argued that sample commodity does not belong to the accused and he has been falsely implicated in the present case. He further argued that sample commodity was not lifted from the shop of the accused and the accused sells only confectionery and packed items and does not deal in Dal Arhar, sample of which was lifted in the present case. It is further argued by Ld. Counsel for accused that public witnesses were not joined in the sample proceedings nor any such efforts were made and it casts doubt on the story of the prosecution. He further argued that even otherwise, in view of the diversion report of Public Analyst and Director, CFL, it cannot be said that representative sample was lifted by the Food Inspector, benefit of which is liable to be given to the accused. He further CC No. 168/06 DA Vs. Mahender Mahajan Page 5 of 16 argued that both the Analysts applied paper chromatography test for detecting the synthetic colour in the sample commodity, which is not a sure and valid test and for this reason also accused is liable to be acquitted.
11. On the other hand, the Ld. SPP for complainant has argued that sample of Dal Arhar was lifted from the shop of the accused and the accused himself has admitted this fact vide his reply which is on record and to argue at this stage that accused has been falsely implicated in the present case or that the sample commodity had been planted in the shop of the accused is not tenable. He further argued that nonjoining of public witnesses does not make any dent to the case of prosecution and all the PWs have explained the reasons for nonjoining of public witnesses in the sample proceedings that despite best efforts made by the Food Inspector, no public witness agreed to join the sample proceedings. Ld. Prosecutor has further argued that so far the variations in the report of both the Analysis are concerned, as per report of Director, CFL, the sample was found not conforming to the standards of Dal Arhar as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variations in the reports of PA and CFL. He further argued that paper chromatography test to detect the colour in the sample is a valid test. The Ld. Prosecutor has vehemently argued that prosecution has been able to prove its case against the accused and hence he is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
CC No. 168/06 DA Vs. Mahender Mahajan Page 6 of 1613. FI Sh. S.K. Sharma who is the complainant and conducted the sample proceedings in the present case has been examined as PW2. He stated in his examinationinchief that on 20.04.2006, he along with FA Om Prakash under the supervision of SDM/LHA Sh. B.M. Jain, visited the premises of M/s Shri Kartikay Store, 25, DDA Market, Opposite Rajouri Garden Police Station, Vishal Enclave, New Delhi27, where accused was found conducting the business of food articles store there for sale for human consumption. He further deposed that they disclosed their identity and intention for purchasing Arhar Dal lying in an open tin having no label declaration, for which accused agreed. He also deposed that he tried to join some public witnesses to join the sample proceedings, but as none came forward, on his request FA Om Prakash agreed and joined as a witness. He further deposed that thereafter sample of 1500 gms of Arhar Dal was taken after proper mixing the same with the help of a clean and dry Jhaba by rotating it in all possible directions and thereafter he divided the sample into three equal parts by putting them into three clean and dry bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that sample price of Rs. 48/ was given to the accused and then vendor's receipt Ex. PW1/A was prepared. It is further deposed by PW2 that he prepared Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same.
14. PW2 further deposed that on 21.04.2006, he deposited one CC No. 168/06 DA Vs. Mahender Mahajan Page 7 of 16 counterpart of the sample in intact condition with PA and remaining two counterparts with the LHA. He further deposed that after receipt of PA report according to which sample does not conform to standard because it is coloured with synthetic colouring matter viz. Tartrazine, he investigated the matter and after conclusion of investigation, file was sent to Director, PFA who gave consent for launching prosecution against accused and accordingly complaint was filed against the accused persons and after filing the complaint, intimation letter along with PA report were sent to the accused persons through registered post. During his deposition PW2 has also placed on record letter sent by him during investigation to the accused as Ex. PW2/A, its reply sent by accused as Ex. PW2/B along with copy Ex. PW2/C, letter sent to STO, Ward No. 57 as Ex. PW2/D.
15. PW1 Sh. B.M. Jain, the then SDM/LHA under whose direction sample proceedings were conducted deposed on the similar lines as deposed by PW2 in his examinationinchief and has placed on record vendor's receipt by which price of sample commodity was paid to the accused as Ex. PW1/A, notice in From VI and Panchnama prepared by the Food Inspector at the spot as Ex. PW1/B and Ex. PW1/C respectively, receipt showing deposition of one counterpart of the sample with PA as Ex. PW1/D, receipt showing deposition of two counterparts of sample with him by the Food Inspector as Ex. PW1/E, report of Public Analyst as Ex. PW1/F, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/G, complaint filed FI S.K. Sharma as Ex. PW1/H, copy of CC No. 168/06 DA Vs. Mahender Mahajan Page 8 of 16 intimation letter sent to the accused along with PA report as Ex. PW1/J and copy of postal registration receipts as Ex. PW1/K.
16. PW3 Sh. Om Prakash Field Assistant who had accompanied the raiding party and was made a witness in the sample proceedings has deposed more or less on the similar lines as deposed by PW1 and PW2 in their examinationinchief.
17. PW1 in his crossexamination before charge denied the suggestion that he was not present at the shop at the time of sampling and hence no public witness was tried to join the sampling. He further denied the suggestion that none of raiding party visited the shop of the accused or taken any sample for alleged analysis. He also denied the suggestion that all the documents as aforesaid were not prepared in which signatures of the accused were taken. He stated that the FI in his presence served the notice copy Ex. PW1/B to the accused at the spot. He denied the suggestion that the signatures of accused were not taken on Ex. PW1/A to Ex. PW1/C.
18. PW2 in his crossexamination stated that all the counterparts were signed by the accused. He further stated that efforts were made to join other shopkeepers as public witness but they refused to join. He denied the suggestion that no sample was ever taken but accused is falsely implicated in the present case to put pressure upon him. He further denied the suggestion that the documents in the case were signed blank by the accused and thereafter they filled. He admitted that accused also sells goods of confectionery, cold drinks etc. He denied the suggestion that he alone visited the shop of the CC No. 168/06 DA Vs. Mahender Mahajan Page 9 of 16 accused for sampling.
19. PW3 in his crossexamination stated that two customers were present at the spot at the time of sampling and they were requested to join the sample proceedings, but they refused. He denied the suggestion that accused has been falsely implicated.
20. The accused in his statement recorded U/s 313 Cr.P.C. has admitted that on 20.04.2006 at about 7.30 PM, FI Sh. S.K. Sharma along with FA Sh. Om Prakash and other PFA Staff, under the supervision and direction of SDM/LHA Sh. B.M. Jain visited his premises at M/s Shri Kartikay Store, 25 DDA Market, opposite Rajouri Garden Police Station, Vishal Enclave, New Delhi, but he denied that he was found selling the Dal Arhar at that time. He contended that he sells confectionery and packet items and he was not having any Tin at that time in his shop from where the sample of Dar Arhar was lifted by the Food Inspector. He further contended that sample commodity did not belong to him and his signatures were obtained on the blank papers and he has been falsely implicated in the present case.
21. The present case has been launched against the accused on the basis of report of Public Analyst which has been proved on record as Ex. PW1/F. The Public Analyst vide its report Ex. PW1/F found the sample lifted from the accused adulterated on account of containing synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and got analyzed the second counterpart of the sample from Director, Central Food CC No. 168/06 DA Vs. Mahender Mahajan Page 10 of 16 Laboratory (CFL), Pune, who also vide his report/certificate dated 22.08.2006 found the sample not conforming to the standards of split pulse (Dal) Arhar as per the PFA Rules 1955 as synthetic colour 'Tartrazine' was detected.
22. The main defence taken by the accused in his statement recorded U/s 313 Cr.P.C. is that sample commodity does not belong to him as he sells only confectionery and packed items and does not deal in Dal Arhar, sample of which was lifted in the present case.
23. It is not in dispute that on 20.04.2006 at about 7.30 PM, PFA team visited the shop of the accused at M/s Kartikay Store situated at 25, DDA Market, Opposite Rajouri Garden Police Station, Vishal Enclave, New Delhi. As per case of prosecution, accused was found present there conducting the business of food articles stored there for sale for human consumption including Dal Arhar which was lying in an open tin bearing no label declaration. Accused in his statement U/s 313 Cr.P.C. has denied that he was selling Dal Arhar at that time and he contended that he was not having any tin at that time in his shop which was not bearing any label or declaration. As per accused, he sells only confectionery and packed items and does not deal in Dal Arhar, sample of which was lifted in the present case and hence he has no connection with the sample commodity of Dal Arhar.
24. However, as per the notice in Form VI Ex. PW1/B prepared at the spot by the Food Inspector at the time of sample proceedings, which find mentioned the details of food, 1500 gms. of Dal Arhar which was lying in an open tin having no label declaration was lifted as a sample for analysis from CC No. 168/06 DA Vs. Mahender Mahajan Page 11 of 16 the shop of the accused. A copy of the said notice Ex. PW1/B was also received by the accused at the time of sample proceedings under his signatures. Meaning thereby, accused has admitted that sample of Dal Arhar was lifted from his shop. Though, accused has claimed that his signatures were obtained on the blank documents which were filled in later on, but except a suggestion put to PWs that signatures of accused were taken on blank documents and same were filled on later on, no other material has been placed on record by the accused to substantiate the said plea. Even otherwise, if the signatures of accused were obtained on blank documents by the PFA team at the time of sample proceedings as contended by the accused, the accused should have lodged a complaint with the higher authorities of PFA Department or any other Government Authority for the same. But, the accused has not done so.
25. Apart from this, the accused has categorically stated in his reply Ex. PW2/B sent by him in response to the letter sent by Food Inspector that he is the proprietor of the shop M/s Kartikay Store, 25, DDA Market, Opposite PS Rajouri Garden, Vishal Enclave, New Delhi, from where the sample of Arhar Dal was lifted and said Arhar Dal was purchased by him from Mr. Mahesh Bansal having grocery shop in Raghubir Nagar, New Delhi. The said reply Ex. PW2/B is not in dispute and it is not the case of accused that the said reply Ex. PW2/B is forged and fabricated. Hence, the defence of the accused that he does not deal in sample commodity and deals only in confectionery items or that he has been falsely implicated in this case and has no connection with the sample commodity is demolished in view of categorical CC No. 168/06 DA Vs. Mahender Mahajan Page 12 of 16 admission of the accused vide his reply Ex. PW2/B that the Dal Arhar sample of which was lifted from his shop was purchased by him from one Sh. Mahesh Bansal.
26. So far as the contention of the accused that no efforts were made by the Food Inspector to join the public witnesses in the sample proceedings is concerned, PW2 S.K. Sharma, the Food Inspector who conducted the sample proceedings stated in his evidence that he tried to join some public witnesses in the sample proceedings, but as none came forward, on his request FA Om Prakash agreed and joined as a witness. The said testimony of PW2 is corroborated by PW1 Sh. B.M. Jain and PW3 FA Om Prakash. In the crossexamination of PWs, except a suggestion that no efforts were made to join the public witnesses, which was denied by the witnesses, nothing material could be extracted. PW2 FI S.K. Sharma categorically stated in his crossexamination that efforts were made to join other shopkeepers as public witness but they refused to join. Though, he stated that he has not given any notice to any of the shopkeeper to the effect that in case if they refused to join as witness, legal action may be taken against them. But, this statement of PW2 is not sufficient to discard the version of the PWs that despite their best efforts, no public person agreed to join the sample proceedings as a witness. Hence, it cannot be said that Food Inspector did not take any steps for joining the independent witness in the sample proceedings as alleged by accused.
27. However, it is to be noted that though as per report of Public Analyst and Director, CFL, the sample of Dal Arhar failed on account of CC No. 168/06 DA Vs. Mahender Mahajan Page 13 of 16 detection of synthetic colour viz. 'Tartrazine', but a perusal of reports of both the Analysts shows that there is variations in both the reports in respect of moisture detected by both the Analysts, which is beyond the permissible limit of .3%. As per report of Public Analyst (PA) Ex. PW1/F, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of 7.33%, while Director, Central Food Laboratory found the same to the tune of 10.71%. Thus, there is variation to the extent of 3.38% which is much higher than .3% i.e. the permissible limit of variation.
28. The aforesaid variation in respect of moisture detected by both the Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. 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, the Hon'ble Delhi High Court 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.". Similarly, it has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is CC No. 168/06 DA Vs. Mahender Mahajan Page 14 of 16 liable to be given to the accused." Reliance may also be placed upon State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371 and State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
29. In view of law laid down in the aforesaid authorities, since there is variation in the report of Public Analyst (PA) and Director, Central Food Laboratory in respect of moisture detected in the sample, which is beyond the permissible limit of .3 %, it would clearly imply that samples sent to both the Analysts were not representative.
30. Further, a perusal of report of Public Analyst Ex. PW1/F as well as Director, CFL shows that both the Analysts applied the Paper Chromatography method for detecting the artificial colouring matter in the sample commodity of Arhar Dal. The Hon'ble Punjab and Haryana High Court in Maya Ram Vs. The State of Punjab FAC 1987 (II) 320 has held that paper chromatography test is not a sure test to detect the colour in the sample commodity. The Hon'ble High Court of Delhi in State Vs. Subhash Chand 2012 (2) JCC 1052, after relying upon the various judgments of Hon'ble Punjab & Haryana High Court in Raj Kumar Vs. Union Territory, Chandigarh 1991 (1) FAC 38, Kartar Singh Vs. State of Haryana, 2000 (2) FAC 243, Maya Ram Vs. The State of Punjab (cited supra) and Balmukand Singh Vs. State of Punjab 2008 Cril. LJ 1084, held that the paper chromatography test was not sufficient to conclude as to whether permitted or unpermitted colouring material has been used. The expert has to examine CC No. 168/06 DA Vs. Mahender Mahajan Page 15 of 16 carefully the colouring matter by applying various tests by excluding the use of permitted colours, before reaching to the conclusion to detect the unpermitted colour. Thus, it was all the more necessary for the concerned laboratory to have had conducted such necessary tests to rule out the use of permitted colouring material.
31. In the present case, no other method apart from the Paper Chromatography test has been applied by both the Analysts to detect the adulteration or presence of colouring matter in the sample commodity. Therefore, in view of law laid down in the aforesaid authorities cited supra, report of both the Analysts cannot be said to be valid and sure report.
32. In view of foregoing discussions, since there is variation in the report of Public Analyst and Director, Central Food Laboratory in respect of 'moisture' which is beyond the permissible limit of 3% and further the test applied by both the Experts in the present case for detecting the artificial colouring material is not a valid test in view of law laid down in the authorities cited supra, benefit of doubt is liable to be given to the accused. Accordingly, accused is given benefit of doubt and is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 10th September, 2013 ACMMII/ PHC/ New Delhi
CC No. 168/06
DA Vs. Mahender Mahajan Page 16 of 16
CC No. 168/06
DA Vs. Mahender Mahajan
10.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/10.09.2013 CC No. 168/06 DA Vs. Mahender Mahajan Page 17 of 16