Delhi District Court
Da vs Ashok Khurana & Others on 11 March, 2010
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IN THE COURT OF SHRI SANJEEV KUMAR
MALHOTRA, ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE-II, NEWDELHI
C.C. No. 93/03
DA Versus Ashok Khurana & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 93/03 b. The date of the commission of the offence : 31.07.2002 c. The name of the Complainant, if any : (1) Sh. Ashok Khurana S/o Sh.
T.C. Khurna M/s Khurana store 61/32, Ramjas Road, New Delhi-
110005 (2) Siyana Dairy, Siyana, Distt.
Bulandshar(UP) (3) Sh. Shish Pal S/o Ami Chand, Siyana Dairy, Siyana, Distt.
Bulandshar(UP) e. The offence complained of or proved : u/s 2 (ia)(a)(m) punishable under Section 16(1) read with Section 7 of the PFA Act.
f. The plea of the accused : Pleaded not guilty g. The final order : Acquitted h. Arguments heard on : 11.03.2010 i. Judgment announced on : 11.03.2010
Brief statement of the reasons for such decision-
21. 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 Act, 1954 (hereinafter referred to as the PFA Act).
2. The complainant has submitted that on 31.07.2002 at about 6:00 p.m., Food Inspector Gian Chand, purchased a sample of 'Pasteurised Full Cream Milk' a food article, for analysis from Sh. Ashok Khurana S/o Sh. T.C. Khurna at M/s Khurana store 61/32, Ramjas Road, New Delhi-110005 where Ashok Khurana was found conducting the business of he said food article at the time of sampling. The sample consisted of 1 Litre 'Pasteurized full cream milk' taken from a sealed polythene Packet of 1 Litre (Bal Gopal). The sample was taken under the supervision/direction of Sh. Daljit Singh, SDM/LHA. The sample was taken after proper mixing the milk by pouring & repouring in another clean and dry jug. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 27 drops of formalin were added in each sample bottle. Each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Sh. Ashok Khurana and the price of the sample was given to him vide vendor receipt dated 31.07.2002. Panchnama too was prepared at the spot. All the documents prepared by Sh. Gian Chand, Food Inspector were signed by Sh. Ashok Khurana and the 3 other witness Sh. Satish Gupta, FI. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward and then Sh. Satish Gupta, F.I was joined as witness. Notice in Form VI was also sent to Supplier Siyana Dairy, Siyana Dist. Bulandshar (UP) by registered post. 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 21.08.2002 and found that the sample does not conform to standard because milk fat is less than the prescribed minimum limit of 6% when judged on the standards of full cream milk.
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, FI to file the present complaint.
4. The accused persons are allegedly to have violated the provisions of Section 2 (ia)(a)(m) of PFA Act punishable U/s 16(1A) of the PFA Act 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 05.03.2003, accused No.3 Shish Pal 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 4 the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No. CFL/256/613/03 dated 16.04.2003, according to which, the sample does not conform to the standards of pasteurised full cream milk as per PFA Rules 1955.
6. Charge for contravention of provision of Section 2 (ia)(a)(m) punishable under Section 16(1) read with Section 7 of the PFA Act was framed against all the accused separately on 16.03.2009 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1, Daljit Singh, Deputy Secretary (Finance), Delhi Govt. & PW-2 F.I. Gian Chand.
8. Statement of all the accused persons were recorded separately under Section 313 Cr.P.C on 07.12.2009 wherein they have controverted and rebutted the entire evidence against them while submitting 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)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article 5 falls below the prescribed standard or its constitute are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11.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.
12. 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. On the other hand, Ld. Defence counsel argued that there was an inordinate delay in filing the present complaint which caused prejudice to the accused in obtaining the correct analysis of the second counterpart of the Director, CFL. Ld Defence counsel further argued that the sample was not representative as to why there is vast variation between two reports in respect of counterpart of same sample.
6Delay in filing the complaint and its effect :-
13. In the present case the sample of Pastaurized Full Cream Milk was taken by Food Inspector Sh. Gian Chand from accused Ashok Khurana on 31.7.02 and it was analysed by the Public Analyst on 21.8.02 i.e within 21 days. However, the complaint was filed on 17.2.03.
14. In the case reported as Channan Lal Versus The State, 1972, Prevention of Food Adulteration Cases, 292, it has been held by the Delhi High Court that the sample of "Paneer" to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month. It has also been held in this very case that it is the duty of the prosecution to see that the right conferred by Section 13 on the accused, to have the sample analysed by the Director, of the Central Food Laboratory is not frustrated. For this they have to take steps not only for the analysis of the sample by the PA at an early date but also to launch prosecution as quickly as the circumstances ordinarily permit. If, however, this right of the accused is frustrated because of any order of the court or due to conduct of the accused , the accused can not claim any benefit.
15. In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:
9. ........ However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified 7 because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no.
1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the samples to sending it to CFL.
16. In the present case, it is clearly seen from the record that the sample of Pasteurized Full Cream Milk was analysed by the Public Analyst, Delhi on 21.8.02 i.e within twenty one days from which the sample was lifted by F.I Gian Chand but complaint was filed on 17.2.03, and second counterpart of sample could be analysed by the Director, CFL on 16.4.03. No explanation 8 whatsoever came on record that even after opinion of Public Analyst in respect of a sample of Pasteurized Full Cream Milk, why period of almost six months occurred by the department to launch the prosecution against the accused, although, complainant was aware that accused can exercise his right under Section 13 (2) of PFA Act only after institution of complaint, which is also fatal to the case of complainant.
Whether sample is representative:
17. 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 submitted that there is difference more than .3% in reports of the Public Analyst and Director, CFL, Pune 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.
18. 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 9 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. ''
19. 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 21.8.02 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 3.4 % Milk solids not fat - 9.56% 10
20. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 16.4.03 , the result of analysis of second counterpart of the sample commodity is as follows:-
Milk fat - 4.7 %
Milk solids not fat - 10%
21. The difference of analysis in respect of milk fat and milk solids not fat in respect of sample of Pasteurized Full Cream Milk by the report of two analysts are not within acceptable range of 0.3% . Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative.
22.In view of the above discussions and reasons, I am of the considered opinion that the complainant has failed to prove that the sample of Pastaurized Full Cream Milk was representative in nature . Therefore, all the accused stand acquitted of the charge. Bail bonds stand cancelled. Sureties discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 11.03.2010 ACMM-II/NEW DELHI.
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