Decided on February 05,2007

STATE Appellant
MADAN GUPTA Respondents


- (1.) This appeal has been preferred against the judgment of Metropolitan Magistrate dated 20th March, 1996 whereby the respondent was acquitted of the offence under Section 7/16 of the Prevention of Food Adulteration Act.
(2.) The brief facts relevant for the purpose of deciding this appeal are that the Food Inspectors of the PFA Department visited M/s Raj Sweets, 51 Khan Market, New Delhi where Madan Gupta, respondent was conducting business at the shop. They found Khoya, a food article for sale for human consumption at the shop. 750 gms. of Khoya was purchased as a sample and a prize of Rs.33/- was offered which the respondent refused to accept stating that Khoya was not meant for sale and was meant for use in the sweets. The Khoya was lying in open tray; there was no declaration or label. The Khoya was purchased and was cut into small pieces and mixed with the help of knife, the sample was divided into three equal parts, each part was placed in separate clean and dry bottles and 20 drops of formuline were added to each bottle containing samples. Each bottle was sealed as per the rules under P.F.A Act and signatures of respondent/vendor were obtained on each counterpart of the sample. Notice in Form VI was served upon the vendor, panchnama was also prepared at the spot by Food Inspector Arun Kumar and read over and explained to the respondent. All other statutory documents were prepared at the spot, public witnesses were sought to be associated from the market but none came forward so, Food Inspector Rajesh Kumar was joined as attesting witness in the sample proceedings. The sample in intact condition was deposited with Public Analyst, Delhi for analysis and remaining two counterpart samples were deposited with the LHA in intact condition. The Public Analyst gave report dated 12th November, 1992 and as per the Public Analyst's report, the sample was adulterated because, it contained starch which was not the natural constituent of milk. So, a complaint was filed against the respondent under various Sections of the Prevention of Food and Adulteration Act. Consent for prosecution was granted by Director PFA under Section 20 of the PFA Act.
(3.) During trial, the prosecution examined four witnesses. The statement of accused under Section 313 Cr.PC was recorded and no defence witness was examined. The learned Metropolitan Magistrate observed that the prosecution failed to prove the guilt of the respondent beyond reasonable doubt. The fat content of the sample as per the report of Public Analyst was 20.60%. No percentage of the starch found in the sample was determined by the Public Analyst which only showed that the starch was present only in traces. The defence of the respondent was that along with Khoya the other Inspector of the team had taken sample of Patisa. Patisa was lying for sale at the shop, the sample of Patisa was first taken and thereafter the sample of Khoya was taken with the same knife. In Patisa ,the ingredients are besan, maida, sugar etc.. The traces of starch found in Khoya were there because of the fact that the same knife was used for taking Khoya and mixing it which was used for taking the sample of Patisa. The Court of Metropolitan Magistrate thereafter, gave benefit of doubt to the respondent.;

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