-1- IN THE COURT OF MS. NEENA BANSAL KRISHNA : ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI In re : CA No. 63/11 [ENTITY] v. Food Inspector 1 Sh. [ENTITY] S/o Sh. Moti Lal Goyal Rasoi Ghar - The Departmental Store, 22/10, Shakti Nagar, Delhi-7 Acquitted 2 Sh. [ENTITY] S/o Sh. Man Singh M/s [ENTITY] 7255/56, Ajindra Market, Prem Nagar, Shakti Nagar, Acquitted Delhi-7. 3 [ENTITY] 4 [ENTITY] Block-H, Plot No. 5 & 6, Kunwar Singh Nagar, Radar Road, Delhi-41. appellants versus Food Inspector, Department of PFA, Govt. of NCT of Delhi, A-20, Lawrence Road Indl. Area, Delhi-35 Respondent Date of institution of the revision : 08.11.2011 Date of reserving judgment/order : 16.03.2012 Date of judgment / order : 11.04.2012 CA No. 63/11 Page No. 1 of 12 -2- JUDGMENT :
1. This is an appeal against the conviction of the appellants vide judgment dated 30.08.2011 u/[SECTION] [ACT] (hereinafter referred to as "[ACT]") and order on sentence dated 07.10.2011 vide which the appellants no. 3 has been sentenced to rigorous imprisonment for one year and further to pay a fine of Rs. 20,000/- each, in default of payment of fine further SI for month and the appellant no. 4 has been sentenced to pay a fine of Rs.60,000/-.
2. The facts in brief are that on 31.01.2004 at about 03.15 p.m., Food inspector Sh. [ENTITY] under the supervision of Sh. [ENTITY], SDM/LHA had purchased three originally packed polypacks of 1000 ml of "Ghee (Hare Krishna)", having identical label declaration and Batch No. / Melt No. sample of "Ghee (Hare Krishna)" from the accused [ENTITY] of M/s Rasoi Ghar - The Departmental Store, 22/10, Shakti Nagar, Delhi-07, where the said food articles were found to be stored for sale and the accused was conducting the business of said food article. The Food Inspector then divided the sample into three equal parts by putting each packet as one counterpart and sealed them as per [ACT]. One counterpart of the sample was sent to Public Analyst, who reported that the sample not conforming to the standards because B. R. reading was exceeding the prescribed maximum limit of 43, Reichert Value less than the minimum limit of 28 and Baudouins Test was positive, which should be negative.
3. During investigations it was found that accused [ENTITY] was the Vendor-cum-Proprietor of Rasoi Ghar - the Departmental Store (as above) and thus, he was in-charge and person responsible for the day to day conduct of the business of the said departmental store. It is further narrated in the complaint that the vendor disclosed that he had purchased the sample commodity from M/s [ENTITY], 7255/56, Ajindra Market, Prem Nagar, Shakti Nagar, Delhi-7, of which accused [ENTITY] was the proprietor and was also in-charge and person responsible for the day to day conduct of the business of the firm. It was further revealed that the sample commodity was manufactured by M/s Deppanshu Foods Pvt. Ltd., Block-H, Plot No. 5 & 6, Kunwar Singh Nagar, Radar Road, Delhi-41, having its manufacturing unit at Alwar, Rajasthan and accused [ENTITY] and accused [ENTITY] were its two directors, but accused [ENTITY] was the working Managing Director of the company and was responsible for the day to day conduct of the business of the said company i.e. [ENTITY] Accordingly, all the accused were found to have committed offence for violation of provisions u/[SECTION] of the Act and accordingly, after getting the requisite consent u/[SECTION] of the Act, present complaint filed against all the accused persons.
4. The accused were summoned vide order dated 15.07.2004. On appearance accused no. 3 [ENTITY] exercised his right and option u/[SECTION] and the second counterpart was sent to Director, [ACT], but vide report dated 02.09.2004 he opined that the sample does not conform to the standards of "Ghee" as per [ACT].
5. Prosecution examined two witnesses viz. PW1 Sh. [ENTITY], the then SDM / LHA and PW2 Sh. [ENTITY], Food Inspector, at the pre-charge stage.
6. Charges for the violation of provisions of S.2 (i-a)
(a) & (m) of the Act of 1954, [SECTION] of [ACT]; punishable u/[SECTION]/[SECTION] of the Act of 1954 were framed against all the accused vide order dated 05.12.2008, to which they pleaded not guilty and claimed trial.
7. The prosecution in support of its case examined PW3 Sh. [ENTITY] in addition to the earlier witnesses.
8. Statements of all the accused were recorded u/[SECTION] [ACT] wherein they pleaded their innocence and opted to lead defence evidence. DW1 [ENTITY] and DW2 [ENTITY] accused examined themselves u/[SECTION] [ACT] in their defence.
9. Ld. Trial Court after considering the evidence, acquitted accused no. 1 and 2 after being given benefit of [SECTION] of the Act, while accused no. 3 and 4 were found guilty of the charges and accordingly convicted and sentenced.
10. Aggrieved by the said order, the present appeal has been preferred.
11. It has been argued on behalf of the appellants that the actual culprit was the vendor [ENTITY], who was selling spurious articles, who has cleverly escaped the conviction. The appellant who was the manufacturer has been wrongly convicted as the articles seized were not manufactured by his company and were spurious. Furthermore, accused no. 1, at the time of taking of sample had revealed that he had purchased the goods from M/s [ENTITY] Enterprises, but later he stated that goods have been purchased from [ENTITY], the accused no. 2. Bills, which were subsequently procured, are not genuine and in fact accused no. 1 and 2 have connived and the accused / appellants no. 3 and 4 have been wrongly convicted. Ld. counsel on behalf of the appellants has further argued that there was violation of [SECTION] and [SECTION] and the benefit of the same be extended to the appellants.
12. Ld. Special PP on behalf of the Department has argued that the Ld. ACMM has correctly observed that the "Ghee", sample of which was taken, was found to be adulterated and as such the appellants have been rightly convicted.
13. I have heard the arguments and have also perused the record. My observations are as under :
14. The first argument raised by ld. counsel for appellants was that the appellants have been wrongly implicated in this case. The perusal of the documents show that at the time of taking of the sample the accused no. 1 had written that he had purchased the "Ghee" from M/s [ENTITY] Enterprises, Prem Nagar, Shakti Nagar and that the bills would be produced later on. However, during the investigations it was found that there was no firm by the name of M/s [ENTITY] Enterprises existing at the given address. It was clarified later by the accused no. 1 [ENTITY] that he had in fact purchased the goods from M/s [ENTITY], which was existing at the same address. It has come in the testimony of PW1, the accused [ENTITY] that it was informed by his servant that one [ENTITY] had supplied the packets of "Ghee" to his two servants, who had objected to the same on which the servants were assured by [ENTITY] that he would take back the packets. However, on the same day i.e. 31.01.2004, the said packets were lifted by the Food Inspector. He on enquiry, came to know next day that [ENTITY] was the grand son of [ENTITY], the accused no. 2 and he confirmed that he had sent the packets for sale for which [ENTITY] made the payment and he was given bill Ex.DW1/A. This testimony has not been challenged by accused no. 3 and 4 to the extent that [ENTITY] was not the grand son of [ENTITY] and that the packets had not been distributed through M/s [ENTITY]. Likewise, [ENTITY] in his testimony has admitted that he had sold the packets to accused no. 1 [ENTITY] and the packets were delivered to [ENTITY] by his grand son [ENTITY] on 31.01.2004.
15. The testimony of DW1 and DW2, therefore, establish that in fact the distributor of the said "Ghee" packets was M/s [ENTITY] and the address of the distributor which was furnished by accused no. 1 [ENTITY] was also that of M/s [ENTITY]. Merely giving a wrong name of the enterprises would not establish false implication of accused no. 2 especially when he himself has admitted that he had distributed packets of "Ghee" to accused no. 1.
16. The appellants had tried to build up their case by claiming that accused no. 1 and 2 have got him falsely implicated. However, there could not be any possible false implication of accused no. 3, who was admittedly the manufacturer, Ms/ [ENTITY], Radar Road, Delhi, and these details were printed on the packets of "Ghee", which were seized. Ld. ACMM has rightly observed that the accused no. 3 and 4 had tried to give a new twist to the defence by pleading that the sample commodity is actually spurious article but this defence was never taken during the cross-examination of prosecution witnesses nor was any such suggestion given to the DW1 and DW2, who were accused no. 1 and 2 respectively. Also, the appellant did not lead any evidence whatsoever to substantiate its alleged version of samples being spurious. The Ld. ACMM, therefore, right gave the benefit of warranty provisions u/[SECTION] to accused no. 1 and 2 and acquitted them and the defence set up by the appellants of false implication has been rightly rejected.
17. The question, however, which confronts this Court is whether two samples which were examined by Public Analyst and Director, [ACT], were representative and whether on the basis of these reports the appellants can be convicted.
18. To appreciate this aspect it would be pertinent to re-produce both the reports, which are as follows :
19. The other variations which have been noted int he Public Analyst and [ACT] report are as under :
Sr.No. Quality Characteristics PA Report [ACT] Report 1 Baudouin Test () Positive Positive 2 Added Colouring matter () Nil 3 Moisture 0.08% 0.088% 4 Free Fatty Acid (as oleic Acid) 0.14% 0.21% 5 Butyro-Refractometer Reading at 40 51.6 52.5 Deg C 6 R. M. Value () 5.1 4.7 7 Rancidity Positive
20. The two reports at first glance reveal that there are significant variations in the two reports for R. M. Value, which is a difference of 0.4, in B.R. Value there is a difference of 1.59% and in Fatty Acid the difference is of 0.7%. While the R.M. Value has been found to be lower in the [ACT] report, the B. R. Value and Fatty Acid have been found to be much more in the [ACT] Report. The another significant thing which is evident from the [ACT] report is that the test for rancidity was found to be positive.
21. On Rancidity, [ENTITY] in his Chemical Analysis for Foods - 7th Edition Page 949, says :
"Fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity. Rancidity is brought about by the action of air or by micro-organisms. Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of certain metals (e.g. Copper, nickel, iron) With most oils and fats and free acidity increases during storage "
22. [ENTITY] in his Food Analysis 4th Edn. p. 170 points out :
"When acted on by the oxygen of the air, especially in the presence of light and moisture, free fatty acids are liberated and altered with the accompanying production of various aldehydes and acids of lower molecular weight having a disagreeable odour and acrid taste, the fat or oil then being terms 'rancid'."
23. The time gap between the Public Analyst report and that of Director, [ACT], is more than one year which clearly indicates that the period of one year could have been the reason for Rancidity to have set in the sample of "Ghee".
24. It had been observed in the case of "[PRECEDENT] at Page No. 632 in the [CASE NUMBER], decided on 24.10.1980"
that where the analysis by the Director, [ACT], is done after a long lapse of time, the possibility of free fatty acid content increasing enormously due to oxidation due to storage cannot be ruled out.
25. The very fact that there is a gap of more than one year in the two reports clearly reflects that even though the
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sample may not have putrified, but would have undergone certain chemical changes and, therefore, the second sample cannot be considered representative of the first sample.
26. This aspect was considered in the case of "[PRECEDENT]", wherein it was held that even after the certificate of [ACT], it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the Certificate will not be sustainable.
27. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "[ENTITY] v. State, 2005 (2) FAC 219 Delhi High Court", (which has been upheld by the Supreme Court in "[CASE NUMBER]) vide Judgment dated 08.09.2011") and also in "[PRECEDENT]"
28. In case titled "[PRECEDENT]" again a reference was made to the case of "[ENTITY]" and it was reiterated that if on comparison of the report of Public Analyst and the [ACT] unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
29. Though, the sealed packet had a declaration that the "Ghee" was manufactured in January, 2004, and its "Best
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Before" was indicated as nine months from the date of packaging. The sample had been lifted on 31.01.2004 and had been forwarded to Public Analyst on 03.02.2004, who had analyzed the same from 04.02.2004 to 17.02.2004. The complaint has been filed in the Court only on 15.04.2004 and the sample has, thereafter, been forwarded to Director, [ACT], vide order dated 30.07.2004. The Director, [ACT] had examined the sample from 28.08.2004 to 02.09.2004 and has found the Rancidity to be positive. These, dates are important because the declaration of the Best Before on the "Ghee" was nine months from date of packing which was January, 2004, but the presence of Rancidity in the second counterpart examined by the Director, [ACT], shows that the "Ghee" had undergone chemical changes and could not have been considered fit for analysis.
30. From the evidence on record it is shown that the second counterpart had undergone chemical changes and could not be considered representative. The complaint itself had been filed in the Court on 15.07.2004 and the accused have immediately exercised their right u/[SECTION] and delay cannot be attributed to the accused persons. Therefore, considering the fact that the second counterpart sample had become rancid, it cannot be said that accused was able to effectively exercise his right u/[SECTION] of the Act and, therefore, he is entitled to be acquitted.
31. The appeal is accordingly allowed and the impugned judgment and order on sentence are hereby set
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aside. Appellants are accordingly discharged. Their bail-bonds and surety-bonds stand cancelled.
32. Trial Court Record be sent back along with the copy of this order.
33. Appeal file be consigned to the Record Room. Announced in the open Court on 11th Day of April,2012.
([ENTITY]) ASJ-01/PHC/New Delhi