Delhi High Court

Food Inspector vs Rajender Rathore & Ors. on 23 September, 2015

         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                     Date of decision: 23rd September, 2015

CRL.L.P.533/2015

FOOD INSPECTOR                                     ..... Petitioner

                          Through: Mr.Rajat Katyal
                          versus

RAJENDER RATHORE & ORS.                            ..... Respondents

Through: None.

CORAM:

HON'BLE MR JUSTICE SIDDHARTH MRIDUL

SIDDHARTH MRIDUL, J (ORAL)

1. The present appeal has been preferred by the State against the order

dated 28th June, 2010 passed by Ld. ACMM-II/New Delhi in C.C. No. 85/97

whereby the complaint filed by the Food Inspector against the respondents

under Section 2(ia)(a)(m) punishable under Section 16(1) read with section 7

of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as

the PFA Act) has been dismissed and the respondents have been acquitted.

2. The accused are allegedly said to have violated the provisions of

Section 2 (ia)(a)(m) punishable u/s 16(1) read with Section 7 of the PFA Act

and Rules.

3. The facts in brief are that a complaint was filed by the Delhi

Administration through Local Health Authority R. K. Ahuja against the

respondents alleging that on 12th February, 1997 at about 5.30 p.m. Food

Inspector, Suniti Kumar Gupta purchased a sample of Pizza Cheese (Hard

Cheese) for analysis from Shri Rajinder Rathore S/o Sh. Pudena Singh

Rathore at M/s Premila‟s Cheese Co., 1B, Shahpur Jat, New Delhi-49 where

the said food article was found stored for sale and Sh. Rajender Rathore was

found conducting the business of the said shop. The sample consisted of 600

gms of Pizza Cheese (Hard Cheese) taken from a brick of cheese ready for

sale, which was cut into small pieces in a clean and dry stainless steel tray

with a clean and dry stainless steel knife and mixed with a clean and dry

stainless steel spoon. The Food Inspector divided the sample into three equal

parts and put them in three separate clean and dry bottles and 16 drops of

formalin were added in each of the three bottles. Each bottle containing the

sample was separately packed, fastened, marked and sealed according to the

PFA Act and Rules. Vendor‟s signatures were obtained on the LHA slip and

the wrapper of the sample bottles. Notice was served on the accused

Rajender Rathore and the price of the sample was also paid to him. A

Panchnama was also prepared. All the documents prepared by Shri Suniti

Kumar Gupta, Food Inspector were signed by the accused Rajender Rathore

and the other witness Sh. Rajesh Kumar. Before starting the sample

proceedings, efforts were made to join the public witnesses but none came

forward. The sample was taken under the supervision of Sh. R.K. Ahuja,

LHA. One counterpart of the sample was sent to the Public Analyst in intact

condition and two counterparts were deposited with the LHA in intact

condition. The Public Analyst analysed the sample on 4 th March, 1997 and

opined that the sample does not conform to the standards laid down under

item A.11.02.07 of Appendix „B‟ of the PFA Rules 1955 because moisture

content is more than the prescribed limit of 43.0% and fat content is less than

the minimum prescribed limit 42%.

4. After the conclusion of the investigation, the entire case file including

the statutory documents and PA‟s report and the report of the F1 was sent to

the Director (PFA) Delhi Administration, Government of NCT of Delhi who

accorded consent under section 20 of PFA Act for institution of the case and

authorized Shri R.K. Ahuja, Local Health Authority to file the present

complaint.

5. The foremost question for consideration is that whether the standard of

hard cheese can be applied on the sample of Pizza Cheese, as collected in the

present case. As per the admitted position there was no standard of Pizza

Cheese at the time of sampling and the standard of Pizza Cheese has been

provided under the PFA Rules on a date later than the date of raid in the

present case as the standard of Pizza Cheese has been provided in item

No.A.11.02.06 of Appendix „B‟, of PFA Rules and the same was inserted by

the GSR 356 (e) dated 7.06.05 (w.e.f. 7.3.06). As the Rules stand today, the

Pizza Cheese and Hard Cheese are two different varieties.

6. The trial court while relying upon the decision of this Court in MCD

Vs. Ram Kishan, reported as 1985 PFA Cases 192, dismissed the present

complaint. In the said decision this Court observed as follows:

"....... This analysis was made on the basis of prescribed standard for ice-cream the rule treating same standard for softy ice cream and ice-cream came in force w.e.f. 23rd February 1974. This clearly shows that the earlier rule prescribing standard for ice-cream was not meant to apply for softy ice-cream. Held as the same was taken on 16.2.73 this rule previously cannot be applied with retrospective effect."

7. The Ld. Trial Court relied on another decision of this court in Pale

Ram Vs. State, reported as 1976 PFA Journal 203, wherein it was held as

under :

"(ii) Prevention of Food Adulteration Rule 1955

- Article of food for which no standard has been laid down in the .... Cannot be compared with articles for which standards have been laid down. Held that there is no reason why an article of food for which no standard has been laid down under the Prevention of Food Adulteration Rules, 1955, should be compared with articles of food for which standards have been laid down in order to find out whether there has been a violation of the standard or not. This would result in the Curt legislating and laying down the standard of articles of food for which admittedly no standard has been laid down."

8. Public Analyst in his report Ex. PW1/F compared the standard of Hard

Cheese with the sample of present Pizza Cheese (Hard Cheese) and stated

that the same does not conform to the standard as moisture content is more

than the prescribed limit and fat content is less than the minimum prescribed

limit and as per analytic result, moisture was found 52.92% and fat on dry

weight basis was found 37.70%. It has been observed by the Ld. Trial Court

that:-

"...It is further matter of record that the analysis of the Public Analyst on the sample commodity conforms to the

standard of Pizza Cheese as provided in the year 2006. Had it been that the standards of Pizza Cheese were provided by the legislature at the time of sampling, as per report of the Public Analyst the sample would have been conforming to the standard of Pizza Cheese."

9. In view of the above, it is clear that the Public Analyst analyzed the

sample commodity being Pizza Cheese while taking the standards for hard

cheese as the yardstick, whereas on the said date there was no standard in

existence for the Pizza Cheese, which admittedly came in force w.e.f. 7th

March, 2006.

10. The argument of the prosecution that the vendor declared Pizza

Cheese as Hard Cheese in his own writing and made endorsement on the

document, which is duly exhibited and not rebutted in cross-examination or

statement of accused recorded under Section 313 Cr.P.C., or in defence

evidence is of no avail, as in the complaint filed by the prosecution before

the Competent Authority, it has itself been mentioned by the prosecution that

Food Inspector purchased a sample of Pizza Cheese and only in brackets it