Delhi District Court
15. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 4 June, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 149/2000
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
J. N. Gupta
S/o Sh. Barumal Gupta,
M/s Jai Store, Shop No.11,
DDA Market No.1,
Munirka, New Delhi.
Date of Institution : 18.9.2000
Date of reserving judgment : 19.05.2010
Dated of Pronouncement : 04.06.2010
u/s : 2 (ia)(a)(b)(j) punishable under
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, Dr. Pramod Kothekar against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food C.C. N0. 149/2000 1 Adulteration Act, 1954 (hereinafter referred to as the PFA Act).
2. The complainant has submitted that on 8.6.2000 at about 4:00 p.m., Food Inspector, Dr. Pramod Kothekar purchased a sample of 'Ajwain' (ready for sale ), a food article, for analysis from Sh. J. N. Gupta S/o Sh. Barumal Gupta at M/s Jai Store, Shop No.11, DDA Market No.1, Munirka, New Delhi where the said food article was found stored for sale and accused J.N. Gupta was found conducting the business of the said food article at the time of sampling. The sample consisted of approx. 600 gms. of 'Ajwain' taken from an open wooden box bearing no label declaration. The sample was taken under the supervision/direction of Sh. K.R. Mehandiratta, SDM/LHA. The Food Inspector took the sample after proper mixing in all possible directions i.e clockwise, anti clockwise, ups and down several times with the help of dry and celan Jhaba and divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. Each bottle containing the sample was separately packed, fastened, and sealed according to PFA Act and Rules. Vendor's Signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to J.N. Gupta and the price of the sample was also given to him. Panchnama too was prepared at the spot. All the documents prepared by Dr. Pramod Kothekar, Food Inspector were signed by accused J.N. Gupta and the other witness Sh. M.K. Gupta, Food Inspector. Before starting sample proceedings efforts were made to join public witnesses but none came forward. One counter part of the sample was sent to the Public Analyst, Delhi in intact condition and two C.C. N0. 149/2000 2 counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 21.6.2000 and opined that the sample does not conform to standard because Extraneous organic matter and inorganic matter exceeds the prescribed maximum limit of 3.0% and 2.0% respectively.
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 Dr. Pramod Kothekar, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(b)(l)(h) of PFA Act 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 29.9.2000, accused J.N. Gupta 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, Calcutta vide Certificate No.G.14- 4/2000 (PT-2)-477 dated 14.11.2000 and opined that the sample of Ajwain is adulterated.
C.C. N0. 149/2000 36. Charge for contravention of provisions of Section 2 (ia)(a)(b)(j) punishable under Section 16 (1A) read with Section 7 of the PFA Act was framed against the accused separately on 8.4.2009 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. K.R. Mehandiratta, SDM/LHA; PW-2 F.I. Dr. Pramod Kothekar.
8. Statement of accused was recorded under Section 313 Cr.P.C on 22.4.2010 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred not to lead evidence in his 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)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
11. As per Section 2 (ia)(j) of PFA Act, if any colouring matter other C.C. N0. 149/2000 4 than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
12. 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.
13. 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 persons argued that the sample was not representative as to why divergent reports have been given by two Analysts in respect of counterpart of same sample.
Whether sample is representative:
14. Ld. SPP for the complainant has submitted that the sample is C.C. N0. 149/2000 5 representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that both the reports are divergent as one Analyst found added colouring matter in the sample commodity while another Analyst did not find any added colouring matter in the counterpart of the same sample. 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.
15. 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 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 C.C. N0. 149/2000 6 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. ''
16. 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 21.6.2000 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:-
Added colouring matter- Nil Extraneous organic matter - 4% Extraneous inorganic matter - 2.50% Foreign edible seeds- 0.01%
17. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta dated 14.11.2000 , the result of analysis of second counterpart of the sample commodity is as follows:-
Added colouring matter- sunset yellow present Extraneous organic matter - 0.1% C.C. N0. 149/2000 7 Extraneous inorganic matter - 0.7% Foreign edible seeds- Absent.
18. Reverting back the facts of the present case, one Analyst found sunset yellow added colouring matter in sample commodity while another Analyst did not find any added colouring matter in the counterpart of same sample . One Analyst found the sample non- conforming to standard because extraneous organic and inorganic matter exceeds the prescribed maximum limit of 3% & 2% respectively while another Analyst in the counterpart of same sample finds extraneous organic and inorganic matter below the prescribed maximum limit. Both the reports in respect of counterpart of same sample are divergent. No explanation has come on record on behalf of the complainant in respect of divergent reports given by two Analysts in respect of counterpart of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
19. In view of the above reasons and discussions, I am of the considered opinion that the complainant has failed to prove that a representative sample was taken. In result, complaint stands dismissed and the accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be considered to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated:04.06.2010 ACMM-II/NEW DELHI.
C.C. N0. 149/2000 8
C.C. N0. 149/2000 9