Delhi District Court
13. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 28 May, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 45/03
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Sh. Narayan Dass S/o Sh. Sita Ram
M/s Bikaner Bhujiawala,
7075, Rameshwari Nehru Nagar,
Karol Bagh, Delhi-5
Date of Institution : 29.01.03
Date of reserving judgment : 28.05.2010
Dated of Pronouncement : 28.05.2010
The offence complained of or proved:
u/s : 7/16 of 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, Gian Chand against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration C.C. N0. 45/03 1 Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 28.10.02 at about 6:30 p.m. Food Inspector, Gian Chand purchased a sample of ' Laddoo', a food article for analysis from Sh. Narayan Dass S/o Sh. Sita Ram from the premises of M/s Bikaner Bhujiawala, 7075, Rameshwari Nehru Nagar, Karol Bagh, Delhi-5, where the said food article was found stored for sale and Sh. Narayan Das was found conducting the business of the said food article at the time of sampling. The sample consisted of 1.5 k.g of 'Laddoo' taken from an open tray for sale bearing no label and declaration. Laddoo were prepard from Besan, Maida, Sugar, Vanaspati and Colour. The sample was taken under the supervision/direction of Sh. Daljit Singh, SDM/LHA. The sample was taken after cutting the laddoo into smallest possible pieces with the help of clean and dry spoon over clean and dry tray. Then mixed properly with the same spoon. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 40 drops of formalin added in each counterpart of the sample bottle. Each bottle containing the sample was separately packed, fastened, sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Narayan Dass and the price of the sample was also given to him vide vendor's receipt dated 28.10.2002. The Panchnama was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused Narayan Dass and the other witness Shri Siya Ram, F.A. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward , as such Sh. Siya Ram , F.A was joined as witness. One counter part of the sample was sent to the C.C. N0. 45/03 2 Public Analyst in intact condition and two counter parts were deposited with the LHA in intact conditions. The Public Analyst analysed the sample on 15.11.02 and opined that the sample is adulterated. Because Total dye content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm. It also gives a Negative B.T Test in the extracted fat declared as vanaspati which should be positive.
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. Gian Chand, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2(ia)
(j) & (m) of the PFA Act and also violated the provisions of Rule 30 read with Rule 28 & 29 of PFA Rules punishable U/s 16 (1A) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 05.02.03, accused Narayan Dass 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 Director, CFL, Pune vide Certificate No. CFL/212/552/03 dated 31.3.03 according to which the sample contravenes Rule 30 of the PFA Rules, 1955.
C.C. N0. 45/03 36. Charge for contravention of provision of Section 7/16 of PFA Act was framed against the accused separately on 17.05.06 separately to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. Daljeet Singh, SDM/LHA; PW-2 F.I. Gian Chand & PW-3 F.A. Siya Ram.
8. Statement of accused was recorded under Section 313 Cr.P.C on 02.03.2010 wherein he had controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
9. Rule 30 of PFA Rules provides the maximum limit of permitted synthetic food colours or mixture thereof which may be added to any food article enumerated in rule 29 shall not exceed 100 parts per million of the final food or beverage for consumption, except in case of food articles mentioned in clause (c) of rule 29 where the maximum limit of permitted synthetic food colours shall not exceed 200 parts per million of the final food or beverage for consumption.
10.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.
C.C. N0. 45/03 4ARGUMENTS AND FINDINGS.
11. 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 is liable to be convicted. Ld. Defence counsel for the accused, on the other hand, has vehemently argued that the sample was not representative as to why there is vast variation in the analytic results of two Analysts in respect of counterpart of same sample. Ld. Defence counsel has also drawn my attention in respect of the authorities reported as 2008 (1) FAC 177; 2008 (1) FAC 182; 2005 (2) FAC 219 .
Whether sample is representative:
12.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 there is vast variation upto the tune of 50% in respect of colour concentration as analysed by two Analysts in respect of counterpart of same sample which itself shows that the sample is 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.
13. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, C.C. N0. 45/03 5 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 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. ''
14. 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 15.11.02, the sample was found non- conforming to standard because quantity of synthetic permitted colour used exceeded the prescribed maximum limit of 100 ppm and it was found 197.96 ppm while the second counterpart of the sample, when C.C. N0. 45/03 6 examined by the Director, CFL , Pune , total dye content were found 132.33 ppm. PW-2 F.I. Gian Chand , who lifted the sample, deposed that he is M.Sc in chemistry and confirmed in his cross-examination that if the sample of Laddoo is representative, the results of two laboratories must be almost similar and identical within experimental error. To a specific question as put by the Ld. Defence counsel, PW-2 deposed that he cannot say if the sample is representative, the experimental error should not be more than + - 0.1% to + - 0.2%. Complainant has failed to explain the variation of 65.63 ppm in colour concentration between two counterparts of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
15.In view of my above discussion and reasons, I am of the considered opinion that complainant failed to prove that a representative sample was taken. In result, complaint stands dismissed and accused stands acquitted. Bail bond of accused stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 28.05.10 ACMM-II/NEW DELHI.
C.C. N0. 45/03 7