Delhi District Court
Vinod Kumar vs The State on 27 April, 2011
IN THE COURT OF SH. SANJIV JAIN: SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 31.08.2010
Judgment reserved on : 15.02.2011
Date of pronouncement : 27.04.2011
C.A. No. 115/10
ID No. 02403R0289492010
Vinod Kumar
S/o Sh. Ramesh Chand,
R/o 321, Main Bazar, Subzi Mandi,
Delhi - 110 007
.... Appellant
Versus
The State
..... Respondent
ORDER
1. This criminal appeal u/s. 374 of the code of criminal procedure is preferred against the judgment dt. 27.07.10 and the order on sentence dt. 31.07.10 passed by the Ld ACMM II New Delhi District whereby the appellant was convicted u/s. 16(1A) r/w Section 7 of the PFA Act for violation of Sub Section of 2(a)(j) & (m) of PFA Act and sentenced to undergo imprisonment and to pay fine. 1
2. Briefly stated, the facts of the case are that on 29.07.03, the food inspector purchased a sample of mustard oil, a food article for analysis from the appellant at his shop M/s. Prabhu Dayal Ramesh Chand, 321, Main Bazar, Old Subzi Mandi, Delhi 7. The sample consisted of approximately 750 grams of mustard oil taken from an open tin having no label declaration. It was divided then and there into three equal parts in three bottles. Notice on Form VI was given to the appellant and a panchnama was prepared. One counterpart of the sample was sent to the public analyst who in his report dt. 21.8.2003 found the sample not confirming to the standards because BR was less than the minimum limit of 58.0. Saponification Value & Unsaponifacation matter exceeded the maximum limit of 177 and 1.2%. BTT was not within limit. It was coloured with unpermitted synthetic colouring matter and was an admixture of rice bran oil.
3. After getting sanction, the prosecution was launched. The appellant exercised his right u/s. 13(2) of the PFA Act. The second counterpart was sent to CFL Pune where the sample was opined to be not conforming to the standards of mustard oil as per PFA Rules, 1955.
4. Charge u/s. 16(1A) r/w Section 7 of PFA act for contravention of Section 2 (ia)(a)&(j) and also for violation of Rule 23, 28, 29 of PFA Rules and in violation of Notification No. F.5(25)/98/PFA/ENT/5034 was framed. The respondent 2 examined four witnesses. The appellant in his statement controverted the entire evidence and pleaded his innocence. He examined Sh. S.N. Mahendroo in his defence.
5. The Trial Court held that the mustard oil as sold by the appellant to the food inspector was not of the nature or quality which it represented to be and was having unpermitted synthetic colouring matter which affected its quantity below the prescribed standard and thus convicted the appellant of the offence.
6. The appellant assailed the order of the trial Court on the ground that both the reports are highly divergent in nature ; that if two counterparts of representative sample are given to two different Analysts, the variation should not be more than 0.3%; that BTT test is an empirical and not the confirmative test ; that mustard seeds have natural antioxidants namely Tocopherol which is natural as well as synthetic.
7. Notice of this appeal was given to the State and trial court record was summoned.
8. I have heard the arguments advanced by Ld counsel Sh. M.L. Narang for the appellant and Ld Spl PP Sh AK Padhy for the respondent / State and perused the record.
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9. It was argued by Ld defence counsel that both the reports are divergent and it cannot be said that the sample was representative. Ld counsel stated that the mustard oil has its own colour. Even by subsequent amendment, food additives ie antioxidants are permitted in edible oils and fats. Ld counsel stated that the antioxidant tocopherol is natural as well as synthetic. It is pale yellow in appearance which colour is detected in the CFL report.
10. Ld spl PP on the contrary argued that as per the standards laid for the mustard oil, use of added colouring material is prohibited. Both the reports indicated the presence of added colouring material and thus the sample commodity was not of the quality or standard which it purports to be.
11. I have considered the submissions.
12. In a book written by Sh. S.N. Mahendroo and published by TATA McGraw
- Hill Publishing Ltd. on the subject of 'Food Safety a Techno Legal Analysis.', it has been stated by the scientist that all varieties of mustard seed contain natural colour pigment of their own. These colour pigments are also oil soluble. Mustard means the dried seeds of Brassica alba, yellow sarson, etc. The standards for the mustard oil have been provided under item A17.06. Of appendix B of PFA rules. It means the oil expressed from clean and sound mustard seeds 4 belonging to the compestris, juncea or napus varieties of Brassica. It shall be clean, free from rancidity, suspended or foreign matter, separated water, added colouring or flavouring substances or mineral oil.
13. Rule 59 of the prevention of food adulteration Rules 1955 provides that no anti oxindents other than lechithin ascorbic acid and tocopherol shall be added to any food unless otherwise provided in appendix B and appendix C. Provided that the anti oxidants, not exceeding in concentration mentioned against each, may be added to edible oils and fats except ghee and butter.
14. As per the public analyst report, the sample was coloured with unpermitted synthetic colouring matter and is an admixture of rice bran oil with BR value 57.7, Saponification value 183.16, Iodine value 96.98, Acid value 0.95 and Unsap. Matter 1.62. The CFL report PX indicated the sample containing synthetic yellow oil soluble colour with B.R. Value 58.4, Saponification value 175.3, Iodine value 96.70, unsaponifiable matter 0.61%, acid value 1.20, however it is silent about presence of rice bran oil.
15. Both the reports indicated the presence of synthetic yellow oil soluble colour. As per the standards laid down for the mustard oil, it should be free from added colouring matter. Thus the sample commodity as sold by the appellant was not of the nature and quality which it represented to be as it was having 5 unpermitted synthetic colouring matter. In view of the above I do not differ with the findings given by the trial court qua holding the appellant guilty of the offence punishable u/s 16 (1A) r.w.s. 7 of the PFA Act for violation of (a) (j) (m) of section 2 (ia) of the PFA Act.
16. The appellant in defence has examined Sh. S.N. Manhendroo, Retd. Chief Chemist, Govt. of India. He has stated that if two Analyst analyse the sample of mustard oil, there can be variation of 0.5 deg. C in BTT value. In mustard seeds, there is a natural antioxidant named as Tocopherols, in natural as well as synthetic state. The colour of mustard oil is yellow due to tocopherols which is oil soluble. Due to natural and addition of tocopherols, its colour will indicate in the final product. He stated that natural colour and synthetic colour are different. An Analyst can distinguish between the natural colour and synthetic colour on analysis. Tocopherol is naturally found in the mustard oil.
17. Ld. Counsel has placed before me Handbook of Food Analysis as per which tocopherols serve as anti oxidants as well as vitamin E. Due to their anti oxident nature, they serve as natural inhibitors for atmosphering oxidation and thereby protect the oil and fats from getting rancid and deteriorated in quality by virtue of the presence of the phenolic group. By notification GSR 812(E) dt. 16.12.2004, natural and synthetic tocopherol have been permitted to be used as food additives in edible oil and fats.
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18. Ld. Counsel has showed a bottle containing Dhara refined vegetable oil ie refined mustard oil in which the ingredients of Dhara refined vegetable oil are given as refined mustard oil, permitted anti oxidant (Tertiary butylhydroquinone : 0.015%) Free from Argemone oil.
19. On going through the standards for the mustard oil I find that before 2004 use of synthetic tocopherols as food additives in edible oils and fats was prohibited. By the notification 2004 natural and synthetic tocopherols are permitted to be used in edible oils and fats. The CFL report indicated the colour as yellow oil soluble colour in the sample commodity. Thus, the possibility of synthetic tocopherol in the sample commodity cannot be ruled out. In the present case the sample was taken in the year 2003 before the notification came into force.
20. In the case of Sh. Gopal Sharma and another vs Govt of NCT 1996 (1) PFA cases 258 the saccharin content in pan masala and mouth freshner sample was found to the extent of 2000 to 2450 ppm. The sample was taken on 21/8/89. By amendment with effect from 9/11/1993 saccharin to the extent of 8000 ppm. in pan masala was permitted. It was held that at the relevant time when the samples of the pan masala and the mouth freshner was taken, the saccharin content as found by the public analyst in the said article of 7 food was in violation of rule 47 of the PFA rules. Such rule was valid and operative at the relevant time. Hence, there have been violation of food adulteration act and rules framed thereunder in selling pan masala and mouth freshner. It was observed that such addition of saccharin cannot be held to injurious to health because considering later finding on research and analysis on the effect of saccharin on human system, addition of saccharin to the extent of 8000 ppm in pan masala has been allowed by amending rule 47. The Apex court held that the appellants had already faced the ordeal of criminal trials for a number of years. Thus the appellant was directed to pay Rs.7,500/.
21. In the present case also both the reports did not indicate that the added synthetic colouring matter was injurious to health. Rather by amendment w.e.f. 2004, use of tocopherol in natural and synthetic form as antioxidants agents is permitted.
22. Taking support of the case supra I am of the view that the appellant deserves leniency. The appellant has faced the rigour of trial since 2003. He is a small shopkeeper with no criminal antecedents. After this incident he is not involved in any other case. He has responsibility of his wife and three minor children. Keeping in view all these facts I sentence him to pay fine of Rs.50,000/ in default thereof to undergo simple imprisonment for a period of three months. The fine already paid be adjusted from the said fine.
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23. Appeal file be consigned to Record Room. Trial court Record be sent back.
Announced in the open court on this 27 day of April, 2011 th (Sanjiv Jain) Special Judge - NDPS Patiala House Courts : New Delhi 9