PFA – Delhi Dt.Court – Food Inspector Vs Uma Kant -Gulab Jamun sample not homogenous – Jan 13 -2017

                   IN THE COURT OF SH. ASHU GARG,
            Addl. Chief Metropolitan Magistrate - II (New Delhi),
                      Patiala House Courts, New Delhi

CC No. 03/08 (42062/16)
Unique Case ID No.

Date of Institution:              03.01.2008
Date of reserving judgement:      13.01.2017
Date of pronouncement:            13.01.2017

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110 035                                        ...      Complainant

               versus

Uma Kant
S/o. Sh. Ram Kishore
R/o. 186, First Floor,
Amrit Kaur Market, Paharganj,
New Delhi-110 055                                    ...      Accused


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused is stated to be the vendor-cum-proprietor of M/s. Mourya Chat Bhandar, from where the food article, that is, ‘Gulab Jamun’ was lifted for sampling.

2. As per the complaint, on 24.10.2007, the food officials consisting of Food Inspector (FI) M.K.Gupta and Field Assistant (FA) Raj Pal Singh under the supervision of Local Health Authority (LHA)/SDM Sh. A.K.Verma reached along with their staff at the premises of M/s. Mourya Chat Bhandar at Shop No. 186, Amrit Kaur Market, Paharganj, New Delhi – 110055, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Gulab Jamun from the vendor as lying in an open tray bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, raid report, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 26.11.2007, the PA found the sample to be adulterated on the ground that it contained added starch and hydrogenated vegetable oil which were not declared as ingredients. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 03.01.2008 alleging violation of section 2(ia)(a), (b) and (c) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 03.01.2008. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 21.04.2008, opining the sample to be not conforming to the PFA Rules due to presence of saccharin upto 520 ppm which was in contravention of Rule 47 of PFA Rules that permitted saccharin only upto 500 ppm.

4. Based on the CFL report, notice under Section 251 CrPC was framed against the accused on 05.05.2009 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (b) and

(c) of PFA Act, to which he pleaded not guilty and claimed trial.

5. At the trial, prosecution examined two witnesses in support of its case. PW-1 FI M.K.Gupta and PW-2 FA Raj Pal Singh were part of the team that had visited the spot for sample proceedings alongwith Sh. A.K.Verma (SDM/LHA) (since expired). Both these witnesses deposed about the proceedings conducted by them on 24.10.2007 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gms of Gulab Jamun, cutting the same into smallest possible pieces with the help of a clean and dry knife, mixing/homogenizing it, putting 40 drops of formalin in each bottle as preservative, dividing it in three parts and putting in clean and dry bottles, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, notice Form VI Ex. PW-1/B, Panchnama Ex. PW-1/C, Statement of accused Ex. PW-1/ D, Raid report Ex. PW-1/D-1, PA Receipt Ex. PW-1/E and LHA receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and investigation was conducted by PW-1. PW-1 sent letter Ex. PW-1/H to the STO and received its reply. After completion of investigation, sanction Ex. PW-1/I was taken from the Director PFA and the complaint Ex. PW-1/J was filed in the court. A copy of PA report with intimation letter Ex. PW-1/K were sent to the accused through post vide postal receipt Ex. PW-1/L. A copy of the letter was also personally served upon the accused vide his endorsement on Ex. PW-1/K. Both these witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused had been falsely implicated.

6. Statement of the accused under section 313 CrPC was recorded on 21.01.2013 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 24.10.2007, yet he claimed that no payment was made to him. He questioned the correctness of reports of PA and CFL on the grounds that proper method was not applied for lifting the sample and that the reports are contradictory to each other. He took stand that he had not disclosed the ingredients of the sample commodity to the FI who had himself mentioned the same on Form VI. He did not lead any evidence in defence.

7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 21.04.2008 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that both the witnesses have supported its case and no major contradiction can be seen in their testimony.

8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report.

9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.

10. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a), (b) and (c) of the PFA Act on the basis of CFL report. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Under Section 2(ia)(b), the article should contain any other substance which affects injuriously the nature, substance or quality thereof. Section 2(ia)(c) applies when any inferior or cheaper substance has been substituted in the article so as to affect injuriously the nature, substance or quality thereof.

11. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article Gulab Jamun is not a standardised food article as no standards have been prescribed for the same under any Item falling in Appendix-B of the PFA Rules. Both the analysts have therefore treated the article as “Proprietary Food” as per Rule 37-A of PFA Rules.

12. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

14. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.”

15. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. However, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], and State v. Santosh Sharma[2014(1) FAC 296]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.

16. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.

17. In the case at hand, the sample analysed by PA showed presence of added starch and hydrogenated vegetable oil. However, strangely, no test to determine presence of such starch or vegetable oil had been conducted by the CFL at all. It might also be possible that no starch or vegetable oil at all was found by the CFL. In such a case, since the CFL report is not only final and conclusive, but it also overrides the PA report and the findings therein, the court cannot go into the question if starch or vegetable oil was there in the food article or not, and if so, to what extent. The court has to confine itself to the findings in the CFL report only.

18. The Director CFL has failed the sample only on the ground that the artificial sweetner saccharin was there in the food article upto 520 ppm, whereas the maximum limit permissible in the food article was 500 ppm. However, the point to be noted is that when the sample was analysed by the PA, the sample did not show the presence or extent of such artificial sweetner saccharin. It appears that no test was conducted by the PA to determine the presence or extent of this ingredient.

19. Though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples of different food articles were put in different sample bottles or otherwise if the food article had not been properly homogenised to make the sample representative, he would get benefit on that count.

20. Well, the differences between the two reports would show substantive variations in the two reports. The CFL detected presence of saccharin beyond the prescribed maximum limits but no such presence was noticed by PA who had noticed presence of starch and hydrogenated vegetable oil. As far as presence of such matter is concerned, there could not have been much change in the same irrespective of passage of some time. Starch and hydrogenated vegetable oil would not have disappeared or artificial sweetner saccharin developed with the passage of time. Had the food article been properly homogenized and made truly representative, there was no occasion for such variation in two reports. Even if the CFL report is considered final and conducive as to the presence and extent of saccharin, it was necessary for the court to ascertain what was the result in the PA report with respect to this ingredient. If such ingredient was totally absent or present in quantity substantially different from that determined by the CFL, it could have been a reason to infer that either the samples were of two different food articles or otherwise the same had not been homogenised properly so as to make it truly representative. But the PA report shows that no test at all was conducted to determine the presence and extent of such artificial sweetner. In the absence of any such report, the court cannot make any guess and therefore, it would not be safe to rely upon the CFL report only.

21. In view of the above discussion, the only conclusion would be that either the sample did not pertain to the same food article having same properties or otherwise it was not homogenised properly so as to make it truly representative. For this, the accused would get benefit of doubt.

22. Therefore, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of Gulab Jamun was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be, so as to bring the case within section 2(ia)(a), particularly when no standards have been prescribed for this article.

23. The material is not sufficient to conclude that the food article contained any other substance or had been substituted with any inferior or cheaper substance so as to injuriously affect the nature, substance or quality thereof, so as to bring the matter within the purview of Section 2(ia)(b) or (c) of the PFA Act.

24. Therefore, considering the variations in two reports, the accused is entitled to be given benefit of doubt. The evidence on record is not sufficient to conclude that the sample in question was ‘adulterated’ within the meaning of section 2(ia) of PFA Act and thus, no case would be made out against the accused for commission of offences punishable under section 7/16 of the PFA Act.

25. Having said so, the accused is acquitted of the charges. However, his bail bonds shall remain in force for the next six months in terms of section 437-A, CrPC.

26. File be consigned to record room.

Announced in the open court this 13th day of January 2017 ASHU GARG ACMM-II (New Delhi), PHC

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