IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 400/03 Unique Case ID No. 02403R0039542003 Date of Institution: 11.12.2003 Date of reserving judgement: 30.05.2017 Date of pronouncement: 02.06.2017 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 ... Complainant versus Bajrang Lal S/o. Sh. Bhagwan Dass R/o. 1/7860, Gali no.1, East Gorakh Park, Delhi. ... 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. Shri Balaji Trading Company, from where the food article, stated to be ‘pure Refined Soyabean Oil’ was lifted for sampling.
2. As per the complaint, on 26.10.2002, the food officials consisting of Food Inspector (FI) Ram Pratap Singh and FI Suniti Kumar Gupta under the supervision of Local Health Authority (LHA)/SDM Sh. R.K.Chauhan reached along with their staff at the premises of M/s Shri Balaji Trading Company at 25/123/1, Chajjupur (North), Delhi-110093, where the accused was found conducting the business of 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 Refined Soyabean Oil from the accused, lying in sealed tins having identical label declaration. The sample was then lifted from one such sealed tin as per procedure prescribed under the PFA Act and Rules (as they were existing at that time). 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 accused. The remaining tins (24 in number) were also seized at the spot under Section 10(4) of PFA Act. 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 07.11.2002, the PA found the sample to be not conforming to the standards of soyabean oil on the ground that the BR reading and iodine values were less than the prescribed minimum limits and the saponification value exceeded the prescribed maximum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. Record shows that in the meanwhile, the accused gave a representation dated 31.10.2002 to the complainant department claiming that the food article lifted from him was actually palmoline oil on which the workers had put the labels of soyabean oil by mistake. He claimed that he was in the process of replacing the wrong labels with correct labels of palmoline oil but the sample was lifted by the team before the correct labels were put. He requested that the lifted sample be tested as per the standards of palmoline oil instead of soyabean oil. However, the food officials did not find merit in such claim as no such claim was raised at the time of sampling. 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 11.12.2003 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 was summoned vide order dated 11.12.2003. The accused appeared and exercised his right under section 13(2) of PFA Act to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL), without making any admission and without prejudice to his other defences.
4. The said application was allowed and the second counterpart of the sample commodity was sent to the CFL. After analysis, the Director CFL gave certificate dated 06.02.2004, reaffirming the opinion that the sample did not conform to the standards of Refined Soyabean Oil. The analytical values again revealed that the BR reading and iodine value were less than the prescribed minimum limits and the saponification value was more than the prescribed maximum limit. The food article also tested positive for rancidity.
5. On the basis of CFL report, the matter was listed for pre-charge evidence wherein the prosecution examined PW-1 FI Ram Pratap Singh. In view of his testimony, charge was framed against the accused on 12.11.2009 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 he pleaded not guilty and claimed trial. The witness already examined in pre-charge stage was recalled for cross-examination in post- charge stage. Additionally, the complainant examined PW-2 Sh. R.K.Chauhan and PW-3 FI Suniti Kumar Gupta in post-charge stage.
6. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 26.10.2002 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 750 gms of food article after opening a sealed tin bearing identical label declarations to the effect that the food article was pure Refined Soyabean Oil. It was dividing into three parts and put in clean and dry sample bottles, which were separately fastened, sealed and marked and signatures of the accused and witness were obtained. The remaining 24 sealed tins were also seized at the spot by the FI. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, seizure memo Ex. PW-1/D and surety bond Ex. PW-1/D-1. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, investigation was carried out by PW-1. During investigation, accused submitted his statement / representation Ex. PW-1/D-2 as aforesaid. PW-1 sent letter Ex. PW-1/H to the STO and received its reply. The seized tins were deposited with the LHA vide memo Ex. PW-1/I. After completion of investigation, sanction Ex. PW-1/J was taken from the Director PFA and the complaint Ex. PW-1/K was filed in the court. Intimation Letter Ex. PW-1/L was sent to the accused along with copy of PA report through post vide receipt Ex. PW-1/M. These witnesses were duly cross-examined by the defence.
7. During cross examination, PW-1 admitted that the spot was a factory where oil was manufactured and packed. He denied that the sample was that of palmoline oil which was taken as Refined Soyabean Oil despite protest of the accused. He deposed that no label was found putting fresh labels after removing old labels from the tins.
8. PW-2 during cross-examination informed that they had reached at the spot at about 6 pm but the dealer was not available who reached at the spot after 1.5 hours after being contacted by the employees. He denied that at that time, the labour was affixing new labels on the tins after removing the old labels.
9. PW-3 under cross examination deposed that the sample had already been taken by the PFA team before his reaching at the spot. Though he stated that no labour was working inside the factory at that time, yet he did not recollect if any labour was present there or not. He denied that the accused had informed that wrong labels had been affixed on some of the tins by mistake for which labour had been called to replace the same with correct labels. He denied that the accused had informed that the food article was palmoline oil and not pure Refined Soyabean Oil.
10. Statement of the accused under section 313 CrPC was recorded on 15.12.2011 wherein he denied the allegations and pleaded innocence. He admitted the proceedings dated 26.10.2002, informed that he was not present at the premises and had rushed there after he was informed about the visit of the PFA raiding party by his staff members. He took stand that the food article was palmoline oil and not soyabean oil, that the labels of Refined Soyabean Oil had been affixed on the tins containing palmoline oil by mistake, and that representation in this regard was also given to the Director PFA during investigation. He did not lead any evidence in defence, despite opportunity.
11. 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 Certificate dated 06.02.2004 which has confirmed the findings of the PA report dated 07.11.2002 to the effect that the sample did not conform to the standards of Refined Soyabean Oil. It is submitted that the defence has not been able to establish its claim that wrong labels had been put on the food article which were in the process of being replaced, as contended. It is pointed out that all the PWs have denied that any such claim was raised by the accused at the time of sample proceedings and has argued that such a claim of the accused was an afterthought.
12. 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. It is primarily contended that after the sample was lifted on 26.10.2002, the accused after four days only, gave representation dated 31.10.2002 to the complainant department (which was admittedly received by it on 01.11.2002) informing about the fact that the food article was palmoline oil on which the labels of soyabean oil had been put by mistake which were in the process of being replaced. It is pointed out that instead of accepting or rejecting his representation or to carry out investigation on such claim, the FI chose not to take any action thereupon and simply filed the representation on record. It is submitted that the sample should have been tested for palmoline oil as requested by the accused vide his representation dated 31.10.2002. It is also asserted that if the analytical values of the PA and CFL reports are considered on the parameters prescribed for palmoline oil as per PFA Rules, the product would be as per standards, except rancidity which developed due to delay of 14 months in analysis of sample by the CFL. It is argued that the food article lying in godown of the factory was not yet ready for sale and it was yet to be labelled correctly before being offered for sale.
13. 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 including the written submissions filed by the Ld. Defence Counsel.
14. It is to be seen that the charge framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. For section 2(ia)(a) 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. 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 article injurious to health.
15. Before delving into the main issue, it would be pertinent to note that the accused has not disputed the fact that he is the proprietor of the business concern M/s. Shri Balaji Trading Company from where the food article was lifted by the PFA team. It is not his case that he was not the proprietor or that some other person was its proprietor. Again, he has not disputed the factum of lifting of sample from his premises and the steps taken during the proceedings, though has disputed the identity of the food article lifted therefrom.
16. Further, the accused has not disputed the correctness of analytical values derived by the PA and CFL in their respective reports. It is nowhere his case that the said analytical values were wrong or that the PA or CFL were not competent to analyse the sample or had adopted some invalid or incomplete testing methods. Again, he has not alleged that the deficiencies found in the sample were due to any incorrect sampling procedure or due to any contamination.
17. 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.
18. 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.
19. 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.”
20. 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. Therefore, the reports show that the BR reading and Iodine value of the food article were less than the prescribed minimum limits and the saponification value was more than the prescribed maximum limit, if tested on the parameters prescribed for Refined Soyabean Oil. Other than this, the sample also tested positive for rancidity as per the CFL certificate. The accused never claimed that the BR Reading, Iodine value and saponification value were different than what has been ascertained by the analysts. It is nowhere the case of the accused that the said analytical values derived by the PA and CFL are wrong, though the parameters on which these values have been applied have been disputed.
21. The prime ground of the defence has been that the food article was not Refined Soyabean Oil, but was Palmoline Oil and therefore, should have been analyzed as per the standards prescribed for Palmoline Oil. The court is therefore now required to ascertain the issue of identity of the food article.
22. The basis of which prosecution claims that the food article was Refined Soyabean Oil, is the label declarations on the food article. Ld. SPP has pointed out that all the tins seized from the spot were bearing identical label declarations, pointing out towards the fact that they were being sold as Refined Soyabean Oil, irrespective of the contents therein. It is also submitted that the accused never raised any objection to mentioning of the food article as Refined Soyabean Oil by the FI on the documents prepared at the spot Ex. PW-1/A, Ex. PW-1/B, Ex. PW-1/C, Ex. PW-1/D and Ex. PW-1/D-1, which also bear the signatures of the accused. It is submitted that the claim of the accused that it was only a case of wrong labels being put under mistake, is an afterthought and that too without any evidence.
23. On the other hand, Ld. Defence Counsel has submitted that the food officials did not allow the accused to write anything on the documents prepared at the spot and therefore, the accused made representation in writing within four days only to the PFA department, even before the sample was analyzed by the PA and before its analytical values were derived. It is contended that no action was taken on such representation of the accused and the food was not got analysed on the parameters of Palmoline Oil.
24. It is therefore clear that at the time of sampling, the accused never objected to the use of the words ‘Refined Soyabean Oil’ by the FI on the documents prepared at the spot. He never made any endorsement on any document claiming that the labels had been put under mistake or were being replaced. When the three PWs denied that the accused had raised any such claim at the spot, no evidence was led by the accused to rebut such evidence and to establish that he had in fact made any such claim at the spot which was not accepted by the food officials. Thus, such a stand of the accused, that he had raised any such issue at the spot, has not been proved.
25. However, the important fact to be noted is that the accused had made representation dated 31.10.2002 to the complainant department, just after four days of lifting the sample. It is an admitted position, as can be ascertained even from the letter Ex. PW-1/D-2, that the said representation was received by the complainant department on 01.11.2002. This fact assumes more importance because such a representation was made even before the sample was put to analysis by the PA. The PA report is dated 07.11.2002 and before this date, there was no occasion for the accused to have already known the result of analysis of the sampled food article.
26. As per the scheme of PFA Act, investigation is carried out after the PA gives a negative report. If the sample is passed by the PA, the matter ends there. But even after the sample is failed by the PA, the accused is never informed of the PA report or the findings therein or the opinion therein. The grounds and analytical values on which the sample is failed by the PA, are never informed to the accused. It is only when the prosecution is launched under the Act that the complainant is required under section 13 of PFA Act to send a copy of PA report along with intimation letter to the accused informing him about the position and about his right to get the other counterpart of the sample analysed from the CFL. Thus, the accused is able to get the PA report only after the prosecution is launched.
27. Therefore it has to be accepted that the accused gave representation to the PFA department even before the sample was analyzed by the PA, before the PA gave her report, before the prosecution was launched and before the copy of PA report was served upon the accused. Though there is a gap of 3-4 days in making the representation to the PFA department, yet such a delay cannot be termed as an ‘afterthought’ particularly in view of the fact that the sample was yet to be analyzed by then.
28. In his representation, the accused asserted that the sample was actually of Palimoline Oil and requested that the same may be tested accordingly. However, instead of taking any action on the said representation, the food officials simply kept the same on record on the ground that no such claim had been raised by the accused on the day of sampling. Well, even if no such claim had been raised by the accused on the day of sampling, the food officials were ideally required to investigate into the said claim made by the accused, more so when the sample was yet to be analyzed. The FI in such a position was required to ascertain the truthfulness or falsity of the allegations by making necessary inquiries from the relevant witnesses and also to inform the PA accordingly so as to enable her to analyse the food article as per the parameters of Palmoline Oil as well, in addition to those of Refined Soyabean Oil. Had it been done, it would have been possible for the court to also ascertain if the sample conformed to all the standards of Palmoline Oil or if it was being used as an adulterant in some quantities in Refined Soyabean Oil. The court would have been able to then ascertain if the food article had been substituted wholly or in part of Refined Soyabean Oil so as to injuriously affect its nature, substance or quality in terms of various clauses of section 2(ia) of PFA Act.
29. This is particularly when the presence of workers / staff / employees of the accused at the spot has been admitted by the prosecution witnesses, though in contradiction to each other. PW-1 and PW-2 in their examination-in-chief stated that the accused was found conducting the business of the shop in question at the time of raid. However, PW-2 during cross-examination informed that the accused was not available at the premises when they had reached at the spot at about 6 PM on routine checking, and that the accused had reached at the spot after 1.5 hours after he was contacted by his employees. Therefore, presence of such employees at the spot has been admitted by PW-2, though denied by PW-
3. In any case, the accused in his representation specifically claimed that the labourers were in the process of replacing the labels affixed wrongly by mistake. In such a position, FI was required to ask the accused about the names and identity of such labourers, to make inquiry from such labourers present at the spot so as to accept or reject his representation. When PW-2 stated that some empty tins were also lying at the spot and some oil was also lying in the tanks, it was also the duty of the FI to have lifted a sample from such oil tanks to ascertain the nature and identity of the food article being packed at the spot, particularly when the identity of the lifted commodity had been disputed by the accused even before the analysis by the PA. But no attempt was made by the FI to visit the premises again to ascertain if any labels other than that of Refined Soyabean Oil and Palmoline Oil were there at the premises, whether the food article could have been Palmoline Oil, and whether it was or was not a case of genuine mistake in putting the labels. Therefore, the investigation is incomplete on this point. Instead of taking any action on the representation of the accused so as to accept or reject it, the FI simply put the same on record, under his belief that representation was an afterthought as no such claim had been raised at the time of sampling. Even in that case, the FI had no occasion to form such an opinion without actually disposing the representation. The SDM/LHA or the Director PFA while granting consent never dealt with the representation of the accused and never chose to formally dispose it of. The sanction order does not even reveal if any such representation was considered by the Director PFA. Failure of the complainant department to deal with the issue has created a dent in the prosecution case.
30. Though it is correct that no evidence in defence has been led by the accused to establish that the present is a case of putting of wrong labels under mistake or that the accused was in the process of replacing the labels, yet the failure of the FI to carry out investigation on the representation made to him even before the sample was put to analysis, would be sufficient to create doubt in the mind of the court as to identity of the food article.
31. For that matter, if the analytical values derived by the PA and CFL are considered in view of the standards prescribed under PFA Rules for Palmoline Oil, the product would be as per standards. Palmoline oil (Palmolein) is also a standardised food article falling in Item no. A.17.20 of Appendix-B of PFA Rules. In addition to various other standards, it requires that the BR reading should be between 43.7 to 52.5, Iodine value should be between 54 to 62, Saponification value should be between 195 to 205, Unsaponifiable matter should not be more than 1.2% and the Acid value should not be more than 6.0%.
32. If the PA and CFL reports are considered on such parameters, it would show that the BR reading was 48 as per PA and 50 as per CFL, saponification value was 202.96 as per PA and 199.0 as per CFL, iodine value was 61.05 as per PA and 60.0 as per as CFL, unsaponifiable matter was 0.36% as per PA and 0.45% as per CFL, and acid value was 0.19% as per PA and 1.1 as per CFL. All these values are well within the standards prescribed for Palmoline Oil. Therefore, if the sample had been analyzed by the PA and CFL on the parameters of Palmoline oil as claimed by the accused, the sample would have conformed to the standards.
33. Therefore, there was no occasion for the food officials to ignore or throw away the representation of the accused, or not to investigate the same simply on the ground that no such stand was taken on the day of lifting the sample. As the representation was given even before the sample was put to analysis by the PA, it cannot be termed as “afterthought” at the outset. The claim of the accused that the labels had been put thereupon wrongly under mistake, should have been investigated and then accepted or rejected.
34. If it was only a case of wrong label, then it might have been only an offence of misbranding under any of the clauses of section 2(ix) of PFA Act. Section 2(ix)(a) applies if the food article is an imitation of or is a substitute for another food article under the name of which it is sold. Section 2(ix)(c) applies if the food article is sold by a name which belongs to another article of food. Section 2(ix)(e) applies in case of false claims made on the label. Section 2(ix)(g) applies if the labels bear any false or misleading or deceptive statement, design or device with respect to the ingredients of the product. Therefore, when the claim of the accused was not rejected by conducting suitable investigation, it is quite possible that the present case would have been only that of misbranding, under which no prosecution has been launched. In view of this position, there would be a serious doubt as to the identity of the food article, primarily due to inaction of complainant department. Such a position would certainly go against the complainant, the benefit of which would go to the accused.
35. As far as the ground of rancidity is concerned, on which CFL failed the sample, it is important to understand that oil and oil products as food articles are prone to natural variations with the passage of time. If the said food articles are kept for a long period, certain changes are bound to take place. But when the 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. The effect of presence of air, moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Rancidity develops in oils/ghee/vanaspati and the food articles prepared using these ingredients with the passage of time. Reliance can be placed on the judgements titled as Nebh Raj v. State [Criminal Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980] and National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 14 months of lifting of the sample. Thus, there is possibility that such changes as observed by the CFL in the matter in hand were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted. The only conclusion would be that the sample underwent a natural change during the intervening period which was beyond human control. Again, the accused would get benefit of doubt.
36. In a criminal trial, the burden is upon the complainant / prosecution to establish its case beyond the shadow of reasonable doubt. To bring home the guilt of an accused, it has to stands on its own legs and lead positive evidence. Mere suspicion, howsoever strong it might be, cannot take place of proof required to establish guilt of an accused. This burden has to be discharged by the prosecution and it cannot be shifted upon the accused.
37. In view of the above discussed circumstances, this court is of the view that the complainant in this case has not been able to establish beyond the shadow of reasonable doubt that the accused had sold or stored for sale any adulterated food article. The identity of the food article, to be Refined Soyabean Oil (as per prosecution case) and not to be Palmoline Oil (as per representation of accused), has not been satisfactorily established. The accused is entitled to be given benefit of doubt.
39. File be consigned to the record room.
Announced in the open court this 02nd day of June 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355