Delhi District Court
19. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 2 July, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 130/98
Local Health Authority
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
1. Naresh Kumar S/o Sh. B.D. Gupta
M/s Naresh General Store,
B-1087, Shastri Nagar Delhi
2. Sh. D.K. Gupta,
M/s A.R. Distributors Pvt. Ltd.
27 F, Kamla Nagar, Delhi-7
3. M/s A.R. Distributors Pvt. Ltd.
27 F, Kamla Nagar, Delhi-7
4. K.K. Bhadra, Asstt. Manager ( Sales )
Gujarat Cooperative Milk Marketing
Federation Ltd., 1210, New Delhi ,
House, 27, Barakhamba Road, New Delhi.
5. Gujarat Cooperative Milk Marketing
Federation Ltd., 1210, New Delhi ,
House, 27, Barakhamba Road, New Delhi.
6. C.H. Satyanarayana,
C.C. N0. 130/98 1
Quality Control Officer,
National Dairy Development Board, Rajkot.
8. National Dairy Development Board, Anand.
JUDGMENT
Date of Institution : 22.09.98 Date of reserving judgment : 30.06.10 Dated of Pronouncement : 02.07.10 U/S: 2 (ia) (a) (b) (c) (m) punishable U/s 16 (1) (a) 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 LHA S.K. Nanda against the above said accused persons alongwith accused No.7 Sh. N.K. Chawla , Executive Director, National Dairy Development Board, Anand ( who has already been discharged by the Ld. Predecessor of this court) 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 26.8.98 about 3.30 p.m., Food Inspector, C.B. Boora purchased a sample of ' Refined Mustard Oil (Dhara), a food article, for analysis from Sh. Naresh C.C. N0. 130/98 2 Kumar S/o Sh. B.D. Gupta at M/s Naresh General Store, B-1087, Shastri Nagar Delhi, where the said food article was found stored for sale and Sh. Naresh Kumar was found conducting the business of the said food article at the time of sampling. The sample consisted of 3 x 1 liter ( 910 gms ) of refined mustard oil taken as such in form of polythene packets bearing identical label declaration ( ready for sale for human consumption). The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry plastic jar. Each jar containing the sample was separately packed, fastened, marked 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 jars. Notice was given to accused Naresh Kumar and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. C.B. Boora, Food Inspector were signed by the accused Naresh Kumar and the other witness Sh. Virender Singh , FI. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under supervision of Sh. Sanjeev Gupta, F.I. 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 03.09.98 and opined that the sample does not conform to the standards laid down under item No. A.17.06 read alongwith A.17.15 of Appendix B of PFA Rules, 1955 because sample shows presence of Argemone oil.
C.C. N0. 130/98 33. 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. S.K. Nanda, LHA to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia) (a) (b) (c ) (f) (h) (l) punishable U/s 16(1) (1A) of the PFA Act ,1954 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 15.10.98, A.R of accused No.8 moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising their 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.14-4/98 (PT.2)-401 dated 30.11.98, according to which, the sample of Mustard Oil is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia) (a) (b) (c) (m), punishable U/s 16 (1) (a) read with Section 7 of the PFA Act was framed against the accused persons separately on 18.09.03 to which they pleaded not guilty.
C.C. N0. 130/98 47. In support of its case, complainant examined PW-1 Sh. S.K. Nanda, LHA & PW-2 F.I. C.B. Boora.
8. Statements of accused persons were recorded on 25.01.10 under Section 313 Cr.P.C wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent. Accused No.6 preferred to lead evidence in his defence and examined Dr. P.K. Jaiswal as DW-1.
9. 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 misbranded 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.
10.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.
11. As per Section 2 (ia)(b) of PFA Act, if the article contains any C.C. N0. 130/98 5 other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
12. As per Section 2(ia)(c) of PFA Act, if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof.
13. 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.
ARGUMENTS AND FINDINGS.
14. 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 on behalf of accused No.1 to 3 argued that accused No.1 to 3 are entitled for benefit of warranty of their respective bill of purchase under Section 19 (2) of PFA Act. Ld. Defence counsel on behalf of accused No. 4 to 6 & 8 argued that sample was not representative as to why the reports of the two Analysts are divergent as Public Analyst opined that the sample does not conform to the standards as it shows presence of argemone oil C.C. N0. 130/98 6 but no argemone oil was found by the Director, CFL in the counterpart of the same sample.
Benefit of Warranty u/S 19 (2) of PFA Act.
15.Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
16.Ld. Counsel for accused No. 1 to 3 vehemently argued that accused No.1 is entitled for benefit of warranty of Bill mark 'X1' ( original of which is Ex.D-1 ) issued by M/s A.R. Distributors Pvt. Ltd. Ld. Counsel for accused further argued that accused No.2 & 3 are entitled for benefit of warranty of Bill mark 'X2' ( original of which is Ex. D-2 ) issued by M/s G.C.M.M.F. Ltd.
17.It is a matter of record that accused No. 2 & 3 and accused No.5 M/s G.C.M.M.F Ltd have not denied their respect bill in respect of sale of sample commodity. PW-2 F.I. C.B. Boora confirmed in his cross-examination that vendor disclosed at the spot while making endorsement on Notice in form VI that he purchased the sample C.C. N0. 130/98 7 commodity from accused No.3 and gave the photocopy of Bill mark 'X-1' and further M/s A.R. Distributors i.e accused No.3 gave the copy of Bill of purchase mark 'X-2' issued by G.C.M.M.F Ltd during investigation. PW-2 further confirmed that sample packets were in original sealed condition and not tempered with in any manner and were properly stored. I have perused the bill of purchase Ex. D1 & D-2 whereby the sale of refined mustard oil was made. In view thereof, I am of the considered opinion that the accused No.1 is entitled for benefit of warranty of Bill Ex.D-1 issued by the firm of the accused No. 2 , and accused No.2 & 3 are entitled for benefit of warranty of Bill Ex. D-2 issued by accused No. 5 G.C.M.M.F Ltd. under Section 19 (2) of PFA Act.
Whether sample is representative:
18. 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 as per the report of the Public Analyst, BTT Value of sample commodity was found within prescribed standards but the sample was opined not conforming to the standards of mustard oil as per PFA Rules for the presence of argemone oil, while the Director, CFL did not find any argemone oil in the counterpart of the same sample commodity but found BTT 29.6 Deg. C ( against maximum 27.5 Deg. C). On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as C.C. N0. 130/98 8 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.
19. 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 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 C.C. N0. 130/98 9 not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. ''
20. 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 ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 3.9.98 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standards and the result of the Public Analyst was as follows:-
B.R at 40 Deg. C. : 60.0
Iodine value : 106.32
Acid value : 0.15
Test for Argemone oil : Positive
B.T.T ( Acetic acid method ) : 27.2 Deg. C.
21. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 30.11.98 , the result of analysis of second counterpart of the sample commodity is as under :
Butyrorefractometer reading at 40 Deg. C - 59.9 Iodine value - 104.8 acid value - 0.23 Test for Argemone oil by T.L.C. - Negative C.C. N0. 130/98 10 B.T.T ( Acetic acid method ) - 29.6 Deg. C.
22. The two analytic reports of the Public Analyst and the Director, CFL in respect of the same counterpart of the sample commodity are divergent to a great extent. One counterpart of the sample commodity shows BTT value in the prescribed limit while another counterpart of the same sample commodity shows BTT value above the prescribed limit. Further, Public Analyst finds the test for argemone oil 'positive' and due to only this reason declared the sample non- conforming to the standard of mustard oil, while Director, CFL, finds the test for argemone oil 'Negative' in the counterpart of the same sample commodity. DW-1 Dr. P.K. Jaiswal, who was Director of Central Agmark Laboratory , Govt of India, Nagpur, deposed that if a representative sample of mustard oil is analysed by more than one Analyst , if argemone oil is found present, every Analyst would find the same, and the maximum error/tolerance i.e analytic error in determining B.T.T in any representative sample should not be more than +/- 0.5 Deg. C. Complainant has failed to explain how the two analytic reports in respect of same counterpart of the sample commodity are divergent to such an extent. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two Analysts.
23.In view of the above discussion and reasons, I am of the considered C.C. N0. 130/98 11 opinion that a representative sample was not taken by the Food Inspector and the complainant has failed to prove its case against all the accused. In result, complaint stands dismissed and all the accused stand acquitted. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 02.07.2010 ACMM-II/NEW DELHI.
C.C. N0. 130/98 12