State (Delhi Admn.) vs Shiv Shankar
2010 Latest Caselaw 1300 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     Crl.A.No.436/2005

%                     Reserved on:     03rd March, 2010
                      Date of Decision: 09th March, 2010


#     STATE (DELHI ADMN.)                       ..... Appellant
!                  Through:        Mr. Jaideep Malik, APP


                      versus


$     SHIV SHANKAR                              ..... Respondent
^                 Through:         Mr. M.L. Alwadhi, Adv.

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?              Yes
      2.    To be referred to the Reporter or not?           Yes

      3.    Whether the judgment should be
            reported in the Digest?                          Yes


: V.K. JAIN, J.

1. This is an appeal filed by the State against the Judgment

dated 2nd April, 2004, whereby the respondent was acquitted of

the charge under Section 16 of Prevention of Food and

Adulteration Act, 1954.

2. On 31st December, 1992, Food Inspector Surender Kumar

Sharma purchased, for analysis, a sample of paneer, a food

article, from the respondent who was running business under

the name and style of M/s Kumar Dairy, 6/33 Moti Nagar,

New Delhi. Paneer was found stored in the shop of the

respondent for the purpose of sale. The case of the

complainant is that the sample of paneer purchased by the

Food Inspector, weighing about 750 gms., was cut into small

pieces with the help of clean and dry knife in a clean and dry

aluminum tray and was mixed with the help of clean and dry

steel spoons. The sample was then divided into three equal

parts each of which was kept in a separate clean and dry

bottle and 20 drops of formalin was added to each bottle. After

packing, fastening, marking and sealing the sample as per PFA

Act & Rules, signatures of the respondent were obtained on

the paper slip and wrapper of the bottle. One counterpart of

the sample was sent to Public Analysis, whereas the remaining

two samples were deposited with the Local Health Authority.

It was reported by the Public Analyst that the sample did not

conform to prescribe standard, as the milk fat in paneer was

less than the prescribed minimum standard of 50%.

3. On receipt of summons, the respondent appeared before

the Trial Court and on his request, the second counterpart of

the sample was sent to Director, Central Food Laboratory for

analysis. It was reported by Director, Food Laboratory that the

sample did not conform the prescribed standard of paneer as

the fat contained was below the minimum specified limit of

50%.

4. During trial, the appellant/complainant examined three

witnesses.

5. PW-3 Shri S.K. Sharma, Food Inspector stated that on

31st December, 1992, he alongwith Inspector Rajesh Kumar

and other staff of department visited M/s Kumar Dairy, 6/33

Moti Nagar, New Delhi under the supervision of LHA Mr. R.K.

Ahuja. The appellant Shiv Shankar was found conducting

business there and having stored paneer, butter, milk, etc. for

sale for human consumption. He purchased 750 gms paneer

which was in the form of a brick lying in the refrigerator. The

paneer brick was cut into smallest pieces with the help of a

clean and dry knife in a clean and dry aluminum tray. The

pieces so cut were properly mixed by a clean and dry spoon, by

rotating them in all possible directions, i.e., clockwise, anti-

clockwise, upward and downward, many times. The sample

was then equally divided into three parts which were put in

three clean and dry glass bottles. Twenty drops of formalin

were added to each counterpart of the sample, while shaking

them for proper dispersion of formalin in each sample. Each

counterpart was packed, fastened, marked and sealed as per

PFA Act and Rules and slips of Shri R.K.Ahuja bearing his

code number and signatures were affixed on each of them.

The respondent also signed each counterpart in such a

manner that part of his signatures came on the wrapper and

the part on LHA slip. On 31st December, 1992, one

counterpart of the sample along with Form VII and one Form

VII which had been separately sealed, were deposited in the

office of Public Analyst vide receipt Ex.PW-3/A. On the same

day, two counterparts with two From VII were deposited with

LHA vide receipt Ex.PW-1/D under intimation that one

counterpart had already been deposited in the office of Public

Analyst. All the copies of Form VII were affixed with specimen

seal that was used for sealing the sample.

6. PW-1, Shri R.K.Ahuja, is the LHA, who accompanied

PW-3 to the place of the respondent. He has fully corroborated

the testimony of PW-3. PW-2, FI Rajesh Kumar, is a Food

Inspector, who had accompanied PW-1 and PW-3 to the place

of respondent on 31st December, 1992. He also has

corroborated their testimony. PW-1, Shri R.K.Ahuja, has also

stated that each counterpart of the sample was properly

shaken by the Food Inspector after adding formalin, so as to

mix it throughout the paneer. PW-2, Rajesh Kumar, has also

deposed to the same effect.

7. In his statement under Section 313 Cr.P.C., the

respondent admitted that on 31st December, 1992 PW-1 to PW-

3 visited Kumar Dairy where he was conducting business and

that he had stored paneer in that premises for sale for human

consumption. He also admitted that 750 gms. Panner which

was in a brick form was purchased from him, though he

claimed that no money was paid to him for the paneer. He

denied cutting of paneer into smallest pieces and claimed that

the fat was unevenly distributed in the brick which was cut

into pieces without first bringing it to room temperature. He

did not dispute that formalin was added to each counterpart of

the sample but claimed that formalin was not of proper grade

and excessive quantity was added. He admitted that each

counterpart of the sample was packed, fastened, marked and

sealed as per PFA Act and Rules and he also had signed the

paper slip that was affixed on it, in such a manner that part of

his signature came on the wrapper and part on LHA slip. As

regards the report of Director, Central Food Laboratory, he

claimed that analysis was carried out after about five months

and that formalin cannot preserve paneer for more than two

months. He also claimed that though the sample may appear

to be wholesome, it indicates chemical changes due to

hyponetic action of eyzymes. He stated that paneer was

spongy and formalin could not be distributed and some fat got

stuck with knife and tray.

8. The respondent produced one Mr.D.N.Mathur, Joint

Director in National Dairy Research Institute, Karnal, which is

a body carrying out research and providing consultancy to

dairy projects. He stated that one Dr.K.R.Haridas had

conducted a research in National Dairy Research Institute

regarding shelf life of paneer to which formalin had been added

as a preservative and the result of research was published in a

Journal, copy of which is Ex.DW-1/A. According to him, it

was found in research that even after addition of formalin

chemical changes in paneer start after six days and it becomes

mouldy and nytrozen content gets reduced. He opined that if

two analysts examine a sample of same paneer with a time gap

of about five months, the analysis which is nearner to the data

of sample needs to be preferred. He stated that though a

sample may be fit for analysis, it may not be fit for accurate

analysis since its values may go down with lapse of time.

During cross-examination, he admitted that his deposition in

the court was based on above referred research paper.

9. The trial court has acquitted the respondent on the

grounds that: (1) paneer was not thawed or brought to room

temperature and a wrong technique was used for taking

sample as neither the paneer brick was drilled nor chunks

were taken from its different parts; and (2) the samples were

not kept under refrigeration and there was no mention in the

complaint and the documents that the refrigerator of the

respondent was not working. Another consideration which

weighed with the trial court in acquitting the respondent was

that according to PW-1 and PW-3, the weight of the brick of

paneer was 750 gms., whereas according to PW-2, it was one

kilogram and there was contradiction in the testimony of

witnesses on the question as to whether the refrigerator of the

respondent was working or not. It was further noticed that

date of expiry of formalin had not been given by the witnesses.

10. In my view, the contradictions noted by the learned

Metropolitan Magistrate are absolutely insignificant and

irrelevant. The respondent himself has admitted in his

statement under Section 313 Cr.P.C. that cheese weighing 750

gms. was taken as sample from him. The same is the weight

shown in the documents prepared on the spot, including the

Panchnama, Ex.PW-1/C and vender receipt Ex.PW-1/A. In

view of the contemporaneous documentary evidence produced

by the complainant, coupled with the fact that the respondent

himself has admitted the weight of the paneer taken from him

as sample, it is absolutely immaterial that one of the witnesses

has given its weight as one kilogram. In fact, there is no

dispute between the parties as regards quantity of the paneer

taken by the Food Inspector from the respondent. Therefore,

the learned Metropolitan Magistrate was not at all justified in

referring to the testimony of PW-2 as regards the weight of the

paneer.

11. In my view, it is absolutely immaterial whether the

refrigerator of the respondent was working or not. In any case,

the complainant was under no obligation to state in the

complaint itself as to whether the refrigerator was working or

not at the time of taking sample. A complaint is not an

encyclopedia, so as to contain even minute details. Only

material facts need to be pleaded in the complaint. It is just

too much to expect the complainant to state in the complaint

as to whether the refrigerator in which paneer was stored was

in working condition or not when the offence alleged to have

been committed by him is not being attributed to his

refrigerator, not being in working condition. The respondent

has been prosecuted for storing, for sale, paneer which did not

conform to the prescribed standard, as the milk fat in it was

found to be less than the minimum percentage prescribed

under the rules and not for selling paneer without keeping it

in refrigerator. Irrespective of whether his refrigerator was

working or not, the respondent would be guilty, if the paneer

stored by him, for sale, did not conform to the prescribed

standard. Therefore, as far as the charge against the

respondent is concerned, nothing really turns on as to whether

the refrigerator of the respondent was in working condition or

not.

12. It is an admitted case that the samples were not kept

under refrigeration. However, there is absolutely no expert

opinion to show that sample of paneer, even after adding

formalin to it, would become unfit for analysis, if it is not kept

under refrigeration. Even DW-1, Dr.B.N.Mathur, has not

stated so before the trial court. The court needs to appreciate

that paneer, though a milk product, is not milk as such, and,

therefore, what is true to milk may not necessarily be true in

respect of paneer. The most important aspect in this regard is

that when the sample of paneer was analysed by Central Food

Laboratory, it was not found unfit for analysis. If the sample

of paneer, to which formalin had been added, remained fit for

analysis even after five months, that by itself is sufficient to

show that it did not necessarily require refrigeration, at least

for five months. Therefore, in my view, the trial court was not

correct in acquitting the respondent on this ground.

13. As regards the method of taking samples, as noted

earlier, according to witnesses, the paneer was cut into

smallest possible pieces which were properly mixed using

clean and dry spoon and were then rotated in all possible

directions, i.e., clockwise, anti-clockwise, upward and

downward, and this process was undertaken a number of

times. There was no expert opinion before the trial court

which would show that the sample of paneer, in the manner

taken in the present case is not a proper method of sampling

this product. Drawing chucks from portions of the brick with

the help of a cheese drawer may be a proper method of taking

sample of paneer, but may not necessarily be the only proper

method to be adopted for this purpose. In the absence of an

expert opinion, the trial court was not justified in holding that

cutting of paneer into smallest pieces with the help of a clean

and dry knife and then mixing them with a dry spoon and

rotating them a number of times in all possible directions was

not a proper method of sampling. It has to be kept in mind

that no particular method of taking samples has been

prescribed in PFA Act or Rules framed thereunder. Therefore,

in the absence of an expert opinion, the trial court was not

justified in insisting upon a particular method of taking

sample of paneer. It would be relevant to note here that extract

noted by the trial court from the book „Food Chemistry‟

pertains to frozen food and the paneer (cottage cheese) which

the respondent was found having stored for sale cannot be

said to be a frozen food. „Frozen Food‟ is a food article, which

is exposed to extreme cold and is preserved by refrigeration

below freezing point. Paneer, as we all know, is not exposed to

such extreme cold and is stored at a temperature below

freezing point. Also, there was no expert opinion before the

trial court to take a view that the sample of paneer needs to be

necessarily thawed or brought to room temperature before

cutting it into smallest pieces and then mixing those pieces

with the help of a spoon. It would, therefore, be difficult to say

that the paneer taken from the respondent was necessarily

required to be brought to room temperature or that it was

obligatory for the Food Inspector to take pieces of samples by

drilling or taking chunks from different parts of the package

and then subject them to thawing. The trial court has ignored

the fact that the whole of the brick taken from the respondent

was cut into pieces and then mixed properly before dividing it

into three counterparts. Therefore, the fat content of the entire

sample must have necessarily gone into the samples sent to

the Public Analyst and Central Food Laboratory.

14. In my view, it was too much on the part of the trial

court to expect the witnesses to remember the date of expiry of

formalin added to the sample. Before using formalin or any

other chemical, Food Inspector is not expected to note down

the date of its expiry. It is sufficient if he is using the chemical

which has not expired. According to PW-1, the formalin used

in the present case was almost fresh and was of BDH

Company. In fact, according to him, the date of expiry was not

mentioned at all on the bottle of formalin. This is not the case

of the respondent that the formalin used by the Food Inspector

was expired one. This was not his case that the date of expiry

is mentioned on the bottle of formalin. During his statement

under Section 313 Cr.P.C., the respondent claimed that the

formalin used by the Food Inspector was not of proper grade

and excessive quantity of formalin was used. He did not claim

that the formalin used by the Food Inspector had expired.

Therefore, the trial court was not justified in disbelieving the

case of the complainant on the ground that the expiry date of

formalin could not be given by the witnesses when they were

examined in the court.

15. It was contended by the learned counsel for the

respondent that the consent has not been duly proved by the

complainant as neither the Consenting Authority has been

produced in the witness box nor does PW-1 say that he was

conversant with the signature of Consenting Authority, Shri

M.P.Tyagi. I find that the consent Ex.PW-1/F was exhibited in

the deposition of PW-1 without any objection from the

respondent. Had the respondent objected to the consent being

exhibited in the deposition of PW-1 without his claiming that

he was conversant with the signature of Shri M.P.Tyagi, the

complainant could have produced either the Consenting

Authority himself or some other person conversant with his

signature to prove the signature on the consent Ex.PW-1/F.

By not objecting to the consent being exhibited in the

deposition of PW-1, the respondent is deemed to have

dispensed with the requirement of proving the signature of

Shri M.P.Tyagi either by summoning him or by producing a

person who would be conversant with his signature. Hence,

no benefit, at this stage, accrues to the respondent on this

ground.

16. It was also contended by the learned counsel for the

respondent that there was no evidence of the sample and the

specimen seal impressions having been sent by PW-3 to the

Public Analyst and, consequently, there was breach of Rule

17(a) and Rule 18 of PFA Rules. In my view, there is no merit

in the contention. A perusal of the report of Public Analyst,

Ex.PW-1/E, would show that not only the sample which had

been properly sealed and fastened with seals intact on it was

received by him, the specimen impressions of the seal were

also separately sent to him by the Food Inspector and on

comparison by him, the specimen impressions of the seal

tallied with the seal impressions on the sample. Though

Ex.PW-1/3 has been prepared on a printed proforma after

typing relevant particulars at proper places, that, to my mind,

would make no difference for the simple reason that had the

sample received by the Public Analyst not been properly sealed

and fastened or had the seals on the sample not been intact

and unbroken, he would have deleted that portion of the

proforma which referred to the condition of the sample and the

seals on it. The fact that the Public Analyst did not delete this

portion of the proforma leaves no reasonable doubt that the

sample received by him was properly sealed and fastened the

seals on it were unbroken. Similarly, had the Food Inspector

not sent the specimen impressions of the seal separately to

him, the Public Analyst would have deleted that portion of the

proforma which pertained to companies‟ seals on the container

and outer cover of the sample with the specimen impressions

of the seal separately sent by the Food Inspector. In fact, had

the inspector not sent specimen seal impressions to him or

had the seal impressions on the container not tallied with the

specimen impressions sent separately to him, the Public

Analyst would have intimated the Local Authority about the

same and would have sent requisition to him for sending

second part of the sample as provided in the proviso to Rule 7

of PFA Rules, which enjoined a duty upon him to compare the

seals on the containers and the outer cover with the specimen

impressions received separately and to note the condition of

the seal thereon. I, therefore, find no merit in this contention.

17. It was also contended by the learned counsel for the

respondent that there is breach of Section 11(1)(C) of PFA Act

as the Food Inspector instead of sending one counterpart of

sample directly to the Public Analyst, deposited with the

Sample Officer of the Department. In my view, there is no

merit in the contention. It was not necessary for the Food

Inspector to send the sample directly to the Public Analyst. He

could as well have used the services of Sample Officer or some

other official for this purpose. Rule 17 of PFA Rules which

prescribes the manner of dispatching containers of samples, to

the extent it is relevant, reads as under:

"17. Manner of dispatching containers of samples.--The containers of the sample shall be dispatched in the following manner, namely:--

(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means;

(b) .........."

18. The Food Inspector, therefore, could have adopted any

suitable means for sending sample as well as specimen

impressions of the seal to the Public Analyst and there was

nothing wrong in availing the services of an official of the

Department for this purpose.

19. During the course of arguments, the learned counsel

for the respondent emphasized upon the result of the research

stated to have been carried out by Dr.K.B.Haridas under the

aegis of National Dairy Research Institute, Karnal, and

contended that since, paneer loses its fat content with the

passage of time, as established during the research carried out

by Dr.K.B.Haridas and the analysis by Central Food

Laboratory was carried out after more than five months of

taking the sample, there was a strong possibility of the fat

content in the paneer taken from the respondent, having gone

down with the passage of time. In other words, the contention

is that there was a reasonable possibility of the fat content in

the paneer being more than 50% when the sample was taken

on 31st of December, 1992 and its percentage having got

reduced in a period of about five months during which the

sample was lying in the office of LHA. According to him, on

account of delay in filing of complaint and, consequent, delay

in carrying out of analysis by Director, Central Food

Laboratory, it could not remain possible for the respondent to

show that at the time the sample of paneer was taken from

him the fat in the paneer were more than 50% and the report

of Public Analyst was not correct. The report of Director,

Central Food Laboratory supersedes the report of Public

Analyst as provided in Section 13(3) of Prevention of Food

Adulteration Act. No doubt, if the respondent is able to satisfy

the court that even after addition of formalin to it, sample of

paneer loses its fat contents to such an extent that within a

period of about five months, the percentage of fat may go down

by more than 16%, that would show that there was a

reasonable possibility of the paneer taken from the respondent

having fat content of more than 50% at the time the sample

was taken. It is, therefore, necessary for the court to find out,

whether the percentage of fat in sample of paneer, goes down

with the passage of time and if so, to what extent it would go

down in a period of about five months, despite addition of

formalin to it. In the research stated to have been carried out

by Dr.H.K.Haridas, it was found that the percentage of

decrease in fat content of the preserved sample for storage

period of 7, 14 and 21 days varied from 0 to 1.8, 2.4 to 5.7 and

5.4 to 9.0. There is no finding as regrd decrease in fat content

if the sample is preserved for a period of about five months. If

the maximum decreased in fat content, noticed by

Dr.H.K.Haridas, is taken into account, the percentage of fat

content in the paneer taken from the respondent would still

fall short of the prescribed standard. But, then the study

relates to the sample stored for a maximum of 21 days and

there is no finding as regards the paneer stored for more than

five months. It would, therefore, be necessary for the court to

ascertain, from a reliable expert as to how much, if any, would

be the loss of fat content after five months in a sample of

paneer to which formalin has been added in the quantity that

was added in the present case.

20. It is true that Director, Central Food Laboratory did not

find the sample analysed by him to be unfit for analysis. It is

also quite possible that since the date of taking sample was

known to Director, Central Food Laboratory, the same having

been written on the container itself, had it been possible for

the fat content to go down by as much as 16% or more, the

Director himself may have noted so in his report. But,

considering the fact that the Director, Central Food Laboratory

was not examined by either party and the research carried out

by Dr.H.K.Haridas shows loss of 9% of fat in a period of about

21 days, it would be necessary for the court to go further into

this aspect and seek an authentic expert opinion on the

decrease in fat content in a period of about five months.

21. For the reasons given in the preceding paragraphs, the

impugned order is, hereby, set aside and the trial court is

directed to summon and examine the Director, Central Food

Laboratory as a court witness and obtain his opinion, on the

question as to whether a sample of paneer, to which formalin

has been added in the quantity that was used in this case, will

lose its fat contents with the passage of time and if so, what

would be the percentage of decrease in the fat content,

between 31st December, 1992 when the sample was taken and

the date on which the sample was examined by the Central

Food Laboratory. While examining the Director, Central Food

Laboratory, it will also be open to the trial court to obtain his

opinion as to whether the method of taking sample adopted in

this case, which comprised cutting the brick of paneer into

smallest pieces with a clean and dry knife and then mixing

them with the help of a clean and dry spoon, followed by

rotating them in all possible directions, was a proper method

of taking sample, for the purpose of analysis, or not.

22. The parties are directed to appear before the trial court

at 10.00 a.m. on 22nd of March, 2010. The trial court will

examine Director, Central Food Laboratory within two months

of the parties appearing before it and will decide the matter

afresh within in one month thereafter after hearing both the

parties. Both the parties will be given opportunity to cross-

examine the Director of Central Food Laboratory. Trial Court

Record be sent back, with a copy of this judgment, for

compliance.

(V.K.JAIN) JUDGE MARCH 09, 2010 RS/