Delhi High Court
State vs Deepak Bansal on 25 March, 2014
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment:- 25.03.2014.
+ CRL.A. 197/2006
STATE
..... Appellant
Through Ms. Kusum Dhalla, APP
versus
DEEPAK BANSAL
..... Respondent
Through Mr. Puneet Mitta, Mr. M.C.
Sanghi, Mr. Ankit Goel, Mr.
Nitin Sharma and Mr. Ankur
Aggarwal, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This appeal is directed against the impugned judgment dated
25.10.2004 wherein the respondent Deepak Bansal has been acquitted of
the offence under Section 16 of the Prevention of Food Adulteration
Act, 1954 (hereinafter referred to as the 'PFA Act').
2 Record shows that on 23.10.1997, a sample of 'Chenna' was
purchased by the Food Inspector (F-1) from the shop of the respondent
which was in the name Madhuban Sweets, 3 MJ Sweet Centre, Shop
No.10 Madhuban Road, Shakarpur. The cost of the sample was offered
to the respondent but the respondent refused to take the money stating
that the 'Chenna' was not for sale; it was being used for preparation of
sweets. The Food Inspector after having taken the sample divided it into
three parts putting them into three clean and dry bottles; 20 drops of
formalin were added in each of the bottles.
3 In the course of investigation, the sample was sent to the Public
Analyst who gave its report on 13.11.1999. The said report reads herein
as under:-
"Milk fat on dry weight basis- 39.13%
Moisture- 67.02%
B.R. of the extracted fat- 43
Baudouin test of the extracted fat- Negative
Test for colour- Negative
Test for starch- Negative
Test for sugar- Negative
and am of the opinion that the sample does not conform to the standards laid down
under item No.A.11.02.05 of Appendix B of the PFA rules because the milk fat of the
dry matter is less than the minimum prescribed limit of 50 %"
4 The milk fat on dry weight basis was 39.13%. The moisture
content was 67.02%. The sample was adulterated in terms of item
No.A.11.02.05 of Appendix B of the PFA Rules because the milk fat of
the dry matter was less than the minimum prescribed limit of 50% .
5 During trial, the respondent exercised his statutory right under
Section 13 (2) of the PFA Rules; a second counter part of the sample
was sent to the Central Food Laboratory (CFL). The CFL analyzed the
sample and submitted its report on 11.04.1998. The said report reads
herein as under:-
"Physical Examination : White soft mass
Milk fat: 30.4% (of dry matter)
Milk solids not fat: Moisture 66.1%
Cane Sugar: Absent
Starch: Absent
Formalin: Present
Urea: Absent
Vegetable Oil: Absent
Added colouring mater: Absent
Residual pesticides (in ppm):
HCH OP-DDT: Aldrin:
HCH PP-DDT Heptachlor:
HCH PP-DDE Dieldrin:
HCH PP-TDE DDT (in combination)
Opinion: The sample of Chhana is adulterated."
6 The milk fat content was 30.4% of dry matter and moisture was
66.1%. The same was noted to be adulterated.
7 On the basis of the aforenoted evidence, the Magistrate had
convicted the respondent. The learned Sessions Judge had however
acquitted the respondent noting that the sample being a milk product i.e.
'Chenna' had not been refrigerated during the continuous period
between 23.10.1997 (when the sample was taken) to 04.03.1998 (when
the sample was sent to the Director, CFL) and in the absence of which
the sample was not fit for analysis as has been laid down by the Apex
Court in case of Chanan Lal Vs. State 1972 Prevention of Food
Adulteration Cases 293. The Sessions Judge had given benefit of doubt
to the respondent and acquitted him.
8 It is this judgment which has been impugned by the State.
9 On behalf of the State, it has been submitted that both the samples
were adulterated and the report of the Public Analyst and the Director,
CFL have confirmed this fact. It is pointed out that the margins between
the two reports are minimal; further submission being that the sample
was not putrefied; there was no fungal growth upon it and as such non-
refrigeration of the food article did not affect its contents. The impugned
judgment acquitting the respondent calls for an interference. It
necessarily has to be set aside.
10 Arguments have been refuted by the learned counsel for the
respondent. It is pointed out that on no count, does the impugned
judgment call for any interference.
11 The present case is admittedly a case of milk product being
'paneer'/'Chenna'; the standards of which are laid down in A.11.02.05.
The said standards read herein as under:-
"A.11.02.05-CHHANNA OR PANEER means the product obtained from cow or
buffalo milk or a combination thereof by precipitation with sour milk, lactic acid or
citric acid. It shall not contain more than 70.0 per cent moisture, and the milk fat
content shall not be less than 50.0 per cent of the dry matter."
12 The Supreme Court in the case of Chanan Lal (supra) had the
occasion to examine a sample of 'paneer'. They were dealing with the
evidence of Dr. Narang who was a member the Central Committee for
Food Standards set up by the Government of India. The Apex Court in
para 13 of this judgment had inter-alia noted as under:-
"On the basis of the abovementioned evidence, it is safe for me to assume that the
sample of Panir to which requisite drops of formalin have been added and which is
kept in a refrigerator would remain fit for analysis for about one month"
13 Thus a sample of 'paneer' to which requisite drops of formalin
have been added would remain fit for analysis for a period of one month
and that too if it is kept in a refrigerator.
14 In this case, it has come on record (it is also not disputed by the
learned public prosecutor) that the sample of 'Chenna' which had been
picked up from the shop of the respondent was never refrigerated
between the period from 23.10.1997 to 04.03.1998 i.e. for almost four
months. The sample had thus lost its shelf-life; this had weighed in the
mind of the Sessions Judge while giving benefit of doubt to the
respondent. The Court had noted that 'Chenna' is another form of
'paneer' and analysis can be correctly given only if it is done within 30
days of the taking of the sample and that also if the sample is kept in a
refrigerator.
15 In this case, the sample was not kept in the refrigerator for the
aforenoted period. It was thus not fit for analysis. It was correctly noted
that there was an inordinate delay in filing the complaint; in this case,
the complaint was filed on 20.02.1998 after the sample had been drawn
on 23.04.1997 this had frustrated the right of the respondent under
Section 13 (2) of the PFA Act as the sample had become unfit for
analysis.
16 In this background, the Director, CFL noting that the sample was
not putrefied would not be an argument which could come to the aid of
the appellant. It was obligatory upon the Food Department to have
refrigerated this sample of 'Chenna' if it indeed wanted a fair
investigation. The judgment of the trial Court is sustainable on this
ground alone.
17 That apart in view of the law laid down by the Apex Court in case
of Kanshi Nath Vs. State 2005 (3) 1637 which has been followed by a
Bench of this Court in 2010 (2) JCC 1250 State Vs. Ramesh Chand and
2012 (4) JCC 2688 State Vs. Satish Kumar wherein the proposition that
where there are marked variations in the report of the Public Analyst and
the Director, CFL; which being significant would entitle a benefit of
doubt to the appellant.
18 In this case, the report of the Public Analyst has noted milk fat on
dry weight basis was 39.13%; the moisture content was 67.02%. The
Director CFL had noted milk fat as 30.4% and moisture content as
66.1%. Variation being more than 0.3% was significant. Moreover the
food article is a milk product; which by its very nature is perishable; the
Director, CFL had given its report on 11.04.1998. The summer months
had also set in.
19 In this background, on both counts i.e. the sample being a milk
product and not having been refrigerated from 23.10.1997 to 04.03.1998
as also the fact that the report of the Public Analyst and report of the
Director, CFL were at marked variance on material points, the order of
acquittal passed by the Sessions Judge against the respondent suffers
from no manifest error or perversity. It calls for no interference. Appeal
is without any merit. Dismissed.
INDERMEET KAUR, J
MARCH 25, 2014
A
