IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 41/11 Unique Case ID No. Date of Institution: 19.02.2011 Date of reserving judgement: 08.05.2017 Date of pronouncement: 08.05.2017 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 ... Complainant versus A-1) Bijender Sharma S/o. Sh. Amar Nath Sharma R/o. Village and Post Mukhmelpur, Delhi-110003. A-2) Shiv Dutt S/o. Sh. Prabhu Dutt R/o. D-63, Krishna Park, Deoli Road, Khanpur, New Delhi-110062. ... Accused persons 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 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor-cum-Manager of the Prasad Godown, of which accused no. 2 is the proprietor, from where the food article, that is, ‘Besan Ke Laddu’ was lifted for sampling.
2. As per the complaint, on 31.07.2010, the food officials consisting of Food Inspector (FI) P.M.Kothekar and Field Assistant (FA) S.Massey under the supervision of Local Health Authority (LHA)/SDM Sh. V.P.Singh reached along with their staff at the premises of the Prasad Godown, Opposite Kalkaji Mandir, Kalkaji Mandir Complex, New Delhi- 110016, where the accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Besan Ke Laddu from the vendor lying in an open tray bearing no label declaration, to which he agreed. A sample of 1500 gm of Besan Ke Laddu was then lifted and divided into three counterparts 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, 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 27.08.2010, the PA found the sample to be not conforming to the standards of refined soyabean oil declared as an ingredient as BR reading and iodine values were found less than the prescribed maximum limits. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was found that the accused no. 2 was the proprietor of the premises in question. 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 19.02.2011 against both the accused persons alleging violation of section 2(ia)(a) and (m) 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 persons were summoned vide order dated 19.02.2011. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising the 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 23.03.2011, opining the sample to be not conforming to the PFA Rules due to presence of rancidity and due to fungal growth and obnoxious smell.
4. Based on the report of the CFL, the matter was listed for pre-charge evidence, wherein the complainant examined PW-1 FI P.M.Kothekar and PW-2 FA S.Massey in pre-charge stage. On the basis of their depositions, charge was framed against both the accused persons on 03.03.2016 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. The accused persons chose not to recall PW-1 and PW-2 for further cross-examination in post charge stage. However, the prosecution also examined PW-3 Sh. V.P.Singh in post- charge stage.
5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 31.07.2010 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 gm of Besan Ke Laddu lying in an open tray bearing no label declaration, mixing/homogenizing it, dividing it in three parts and putting in clean and dry bottles, adding 40 drops of formalin in each bottle, separately, 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 Ex. PW- 1/B, Panchnama Ex. PW-1/C, Raid report Ex. PW-1/D, Statement of accused no.1 Ex.PW-1/E, PA Receipt Ex. PW-1/F and LHA receipt Ex. PW-1/G. PA report Ex. PW-1/H was received and investigation was started. Letters Ex. PW-1/I, Ex. PW-1/I-1 and Ex. PW-1/I-2 were sent to the accused no. 1 and letter Ex. PW-1/I-3 was sent to accused no. 2 but they were not replied. Letter Ex. PW-1/J was sent to the STO and its reply was received. In the meanwhile, accused no. 2 furnished his statement Ex. PW-1/K to the FI. After completion of investigation, sanction Ex. PW-1/L was taken from the Director PFA and the complaint Ex. PW-1/M was filed in the court. A copy of PA report with intimation letter Ex. PW-1/N was sent to the accused persons vide postal receipts Ex. PW-1/O. These witnesses were duly cross-examined by the Ld. Defence Counsel for both the accused persons wherein they denied that the sampling method was not proper or that the accused persons had been falsely implicated.
6. Statements of the accused persons under section 313 CrPC were recorded on 08.05.2017 wherein they denied the allegations and pleaded innocence. Though accused no. 1 admitted the proceedings dated 31.07.2010, yet he questioned the reports on PA and CFL. On the other hand, accused no. 2 expressed ignorance of the spot proceedings as he was not present therein but he also questioned the reports on the ground that the deficiencies therein were due to passage of time. They however did not lead 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 persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings of the CFL report dated 23.03.2011 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all 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 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. He has relied upon various judgements in his support.
9. I have heard the arguments advanced by Ld. SPP for the complainant and the Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
10. It is to be understood that the charges framed against the accused persons are for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. This is important to note because the ingredients of these offences are different and distinct. 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. On the other hand, section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which does not render the food article injurious to health.
11. In the case at hand, it is an admitted position that Besan Ke Laddu is not a standardized food article for which specific standards might be prescribed in any item of Appendix-B of the PFA Rules. The same has been considered as a proprietary food as defined in Rule 37A of PFA Rules.
12. The standards applied by the PA on the basis of which the sample of Besan Ke Laddu has been failed by him are not that of Besan ke Laddu (which is a proprietary food article for which there are no standards prescribed) but that of refined soyabean oil which was one of the ingredients of Besan ke Laddu. Apparently, such standard has been prescribed for refined Soyabean oil as a food article falling under Item No. A.17.13 of Appendix-B of PFA Rules. But no such standards are there for Besan Ke Laddu as a food article. The question is as to what extent the standards of soyabean oil can be applied to such a proprietary food.
13. For a proprietary food, no standards could be possibly prescribed as every manufacturer uses his own ingredients, methods and substance and combination thereof to prepare a distinct product. Unless there is violation of any prescribed rule, no standards are prescribed for such product on which they have to conform.
14. In my considered view, the standards of soyabean oil as per Item No. A.17.13 would not be safe to be applied to all the products prepared through such soyabean oil, particularly the proprietary foods that are prepared after heating various ingredients. Mixing and heating of various ingredients would result in change in chemical composition of the raw ingredients. It is not the case of the prosecution that the soyabean oil used in preparation of Besan Ke Laddu is the unheated oil which would always be as per the standards of raw and pure soyabean oil as per Item No. A.17.13. Therefore, there is nothing to show that there was any shortfall in the product on account of its nature, quality or substance.
15. There is nothing to show that the refined soyabean oil being used by the accused was not conforming to the standards. Therefore, the opinion formed by the PA on the basis of the BR reading and the iodine value, which pertained to the standards of refined soyabean oil, would not be applicable to a prepared proprietary food article. Thus, merely because the BR reading was found to be 49.5 and Iodine value was found to be 89.18, a prepared food article could not have been failed on the ground that the BR reading should be between 58.5 to 68.0 and the iodine value should be between 120 to 141, which are applicable to refined soyabean oil. It would not qualify to bring the matter within the purview of Section 2 (ia)(a) or
(m) of the PFA Act.
16. In any case, the PA report in the present case has already been superseded by the CFL certificate. 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.
17. 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.
18. 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 cetificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anamolous to hold that for some purpose it survives and for other purposes it is superseded.”
19. 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. It would be seen that the CFL report has negated the results of PA on both the counts. The BR Reading shown to be at 49.5 by PA was found to be 61.3 by CFL (within minimum and maximum prescribed limits of 58.5 to 68.0, even as per the standards of refined soyabean oil as applied by the PA). But apparently and as per the discussion above, such standards would not be applicable to the food article in question and therefore, the CFL neither failed the sample on account of BR reading or deemed it necessary to go for the iodine value test. Thus, the CFL certificate has not found any deficiency on any of the two counts on which the PA gave his report on the basis of which the prosecution was launched.
20. On the contrary, the sample was opined to be not conforming to the standards by the CFL only on the count of rancidity being positive and also due to presence of fungal growth and obnoxious smell. As such, the matter has to be determined only on the basis of report of CFL.
21. In this regard, 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], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. 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.
22. 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.
23. 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 were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
24. In the case at hand, the differences between the two reports would show substantive variations in the two. There is vast difference in the BR reading, fungal growth and smell in the two reports. However, the point to be noted is that when the sample was analysed by the PA, the sample was conforming to standards on these parameters on which the sample was failed by the CFL. There was no fungal growth or obnoxious smell in the sample analysed by the PA.
25. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
26. As far as the grounds on which CFL failed the sample are concerned, it is important to understand that Besan Ke Laddu as a food article is prone to natural variations due to presence of ingredients having limited shelf life. If quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. If the two reports are so considered showing test for fungus and rancidity, it can be said that either the food article had not been properly homogenised and made truly representative, or otherwise the sample had undergone a natural change beyond the control of the accused. The CFL had examined the sample from 15.03.2011 to 23.03.2011. Thus, it was so analysed after about 7 months when it was lifted from the possession of the accused no. 1 vendor. The nature of Besan Ke Laddu as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article. Such changes would be natural changes beyond human control. Fungus may grow with the passage of time, particularly in view of the fact that no such fungus was found in the sample analyzed by PA. Similarly, rancidity increases in sample of ghee/oil as well as in the food articles prepared with ghee / oil with passage of time. Reliance can be placed on the judgements titled as National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95] and Nebh Raj v. The State [Criminal Appeal no. 113/1975, Supreme Court of India, dated 24.10.1980]. In the present case, such development of fungus, obnoxious smell and rancidity cannot be ruled out after 07 months of lifting of the sample. Thus, there is possibility that such changes were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused persons can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get benefit of doubt.
27. Thus, 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 Besan Ke Laddu 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) of PFA Act.
28. As far as section 2(ia)(m) is concerned, the accused persons are entitled to be given benefit of doubt considering the time gap, natural variations and variations in two reports, as well as the fact that the food article is a proprietary food for which no standards have been prescribed. The standards of refined soyabean oil cannot be applied to food articles prepared using this oil after passing through a different process. 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 persons for commission of offences punishable under section 7/16 of the PFA Act.
30. File be consigned to record room.
Announced in the open court this 8th day of May 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355.