Delhi District Court
16. In A Criminal Appeal No. 158/1988 ... vs Jehmat Mal, on 14 July, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 24/06
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Satya Pal S/o Darshan Singh
M/s Deepak Store ( Khokha )
Near Shiv Mandir, Tilak Bridge, New Delhi.
R/o C-4A, Aruna Park, Laxmi Nagar, Delhi.
JUDGMENT
Date of Institution : 09.01.06 Date of reserving judgment : 14.07.10 Dated of Pronouncement : 14.07.10 under sub-clause (a) (f) & (m) of Section 2 (ia) punishable Section 16(1A) 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 Bal Mukand against the above said accused, for C.C. N0. 24/06 1 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 05.10.05 at about 4:00 p.m., Food Inspector, Bal Mukand purchased a sample of 'Dal Channa', a food article for analysis from Sh. Satya Pal S/o Sh. Darshan Singh of M/s Deepak Store ( Khokha), Near Shiv Mandir , Tilak Bridge, New Delhi, where the said food article was found stored for sale and Sh. Satya Pal was found conducting the business of the said food article at the time of sampling. The sample consisted of approximate 1500 gms of ''Dal Chana'' taken from an open tin container bearing no label declaration. The sample was taken under the supervision/direction of Sh. I.D. Pandey, SDM/LHA. The sample was taken after proper mixing the Dal Chana with the help of clean and dry Jhaba by rotating in all possible directions. The Food Inspector divided the sample into three equal parts then and there by putting into three clean and dry bottles. Each sample bottle was separately packed, fastened and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and wrapper of the sample bottles. Notice was given to Sh. Satya Pal and the price of sample was also given to him vide vendor receipt dated 05.10.05. Panchnama too was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused Satya Pal and the other witness Sh. S.N. Jindal , FA. Before starting sample proceedings efforts were made to join public witnesses but none came forward, as such Sh. S.N. Jindal, F.A was C.C. N0. 24/06 2 joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the SDM/LHA in intact condition. The Public Analyst analysed the sample on 24.10.05 and opined that the sample is Adulterated because it is infested with Dead and living insects.
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. Bal Mukand, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(f) & (m) 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. Charge for contravention of provision of sub-clause (a) (f) & (m) of Section 2 (ia) punishable Section 16(1A) read with Section 7 of the PFA Act was framed against the accused separately on 2.5.09 to which he pleaded not guilty.
C.C. N0. 24/06 36. In support of its case, complainant examined PW-1 F.I. Bal Mukand & PW -2 Sh. I.D. Pandey, Retd. SDM/LHA .
7. Statement of accused was recorded on 10.02.10 under Section 313 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
8. 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.
9. As per Section 2 (ia) (f) of PFA Act, if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.
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 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.
C.C. N0. 24/06 411. 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 is liable to be convicted. Ld. Defence counsel for accused, on the other hand, has vehemently argued that no live or dead insects were found by the Food Inspector at the time of sampling and mere presence of two live insects and two dead insects by the Public Analyst after a period of about fifteen days from the day of sampling does not amount to adulteration, and drew my attention in respect of authorities reported as XII-1990 All India PFA Journal 573 ; 1979 (II) PFA Cases 138; 1983 (II) PFA Cases 87 ; 1972 PFA Cases 335.
C.C. N0. 24/06 5Report of Public Analyst.
13. In the present case, report of the Public Analyst dated 24.10.05 is Ex. PW1/F and as per opinion of the Public Analyst, the sample is Adulterated because it is infested with Dead and living insects, and it is mentioned in the report that two living insects and two dead insects were found in approximate 500 gms of sample.
14.The main contention of the Ld. Defence counsel is that no live or dead insects were found by the Food Inspector or SDM/LHA at the time of sampling and the mere presence of two live insects and two dead insects in whole sample of Dal Channa was a subsequent growth as eggs of the insects usually floats in the air and an egg can hatch at any moment. Ld. Defence counsel further argued that Public Analyst analysed the sample from 13.10.05 to 19.10.05 and during this period, the insects can develop in the sample bottles itself.
15. PW-2 Sh. I.D. Pandey, SDM/LHA under whose supervision, the sample was lifted, confirmed in his cross-examination that it took about half an hour in mixing , dividing and putting the sample into the bottles and he did not observe any live insect during the period with naked eyes. To a specific question as put by the Ld. Defence counsel, PW-2 deposed that he cannot comment that eggs can hatch into insects at any moment. PW-1 F.I. Bal Mukand , who lifted the sample, also deposed that no live or dead insects were visible with naked eyes.
C.C. N0. 24/06 616. In a Criminal Appeal No. 158/1988 titled as State Vs Jehmat Mal, wherein it is held by Hon'ble Mr. Justice S.N. Dhingra, High Court of Delhi as under:-
''Law also permits foreign matters up to one percent out of which 0.10% can be impurities of animal origin. Thus, in food grains presence of impurities of animal origin like Rodent excreta are not ruled out and mere presence of Rodent excreta the food grain can be called as adulterated food grain unless the quantity exceeds the limit provided by law. In the present case 01 full Rodent excreta or 08 pieces of small Rodent excreta in 300 gms by no imagination can be said that exceeding 0.1 percent of 300 gms. Similarly presence pf 07 living and 15 dead insects is natural as the law recognizes presence of weevilled grains which means those grains whose kernels are wholly or partially bored by grains. If insects bore the kernels, many a time insects are very likely to be present in kernel and keep moving in and out of the food grains. The presence of living or dead insects is not adulteration unless the quantity of insects infested grains exceeds the prescribed limit. It was not the case of prosecution that the percentage of insect infested food grains was more than the prescribed quantity. I find that the Trial Court was justified in acquitting the accused there is no force in the appeal. The appeal is hereby dismissed.''
17. In an authority reported as State Vs. Anil Kumar Sodhi & Anothers , 2009 (2) JCC 904, it was held by the Hon'ble Delhi High C.C. N0. 24/06 7 Court, as under:-.
'' Prevention of Food Adulteration Act, 1954- Secs 7 & 16 - Appeal against acquittal-Metropolitan Magistrate convicted the accused/respondent- In appeal Sessions Judge acquitted the accused/respondent- Hence this appeal- Food Inspector visited the firm of respondent and purchased 600 gms Atta- Sample was sent to P.A. Delhi for analysis- P.A analysed the sample and found Atta was adulterated because 3 living and 3 dead insects were found- A.D.J held that since Atta, is standardised commodity and the standards have been complied with, it cannot be said that food article was adulterated- And observed that it was not a case of adulteration- Finding of insects does not mean that it had been deliberately done by the respondent to increase the value or down grade the quality of the food- As per report of P.A. It is also found standard of Atta was not below the quality which was required-Presence of insects was only an incident which can occur due to open storage- Appeal dismissed.''
18. In an another authority reported as 1983 (II) PFA Cases 20 titled as MCD Vs Shri Ramji Dass and another wherein it is held by Hon'ble Division Bench of Delhi High Court as under:-
'' ........... We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or 3. The expression '' insect infested'' would mean a swarm of insects or at least a C.C. N0. 24/06 8 large number of insects.
19. In an authority reported as 1985 (2) C.L.R. 483, it was held by the Hon'ble Supreme Court as under:-
(c) Insect-infested Connotation of ' Insect' and 'worm' are distinct from each other- Mere presence of 9 living meal worms in an article of food held to be insufficient to render the article adulterated in terms of S.2 (1)(f) of Prevention of Food Adulteration Act, 1954.''
20. Reverting back to the facts of the present, no live or dead insects were found by the Food Inspector or SDM/LHA at the time of sampling and as per report of the Public Analyst, weevilled grains were found only 0.31% against maximum 3% as provided in the standard of 'Dal Chana' in item No. A.18.06.12 of Appendix 'B' of PFA Rules. Therefore, relying upon the law as discussed above, I am of the considered opinion that mere presence of two live and two dead insects after one week from the day of sampling, does not amount to adulteration when at the time of sampling, no live or dead insects were found by the Food Inspector or SDM/LHA in the sample of Dal Channa. In result, complaint stands dismissed and the accused is acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 14.07.2010 ACMM-II/NEW DELHI.
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