Delhi District Court
Complainant vs . on 2 December, 2022
IN THE COURT OF MS NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW
DELHI
In the matter of :
CC No. :- 42757/2016
Food Safety Officer
Department of Food Safety
Govt of NCT of Delhi
8th Floor, Mayur Bhawan
Connaught Place, New Delhi
....Complainant
versus.
1) Sh. Manoj Dua
S/o Sh. Som Nath Dua
M/s Kwality Store,
10/1, Chhoti Subzi Mandi,
Janakpuri, New Delhi-110058
Also at:-
R/o House No. 518, B-1 Block
Janakpuri, New Delhi-110058
.... FBO-cum-Partner of accused no. 3
2) Sh. Som Nath Dua
S/o Sh. Gopal Das Dua
M/s Kwality Store,
10/1, Chhoti Subzi Mandi,
Janakpuri, New Delhi-110058 .. Partner of accused no. 3.
3) M/s Kwality Store, Digitally signed
by NABEELA
NABEELA WALI
10/1, Chhoti Subzi Mandi, WALI Date:
2022.12.02
17:18:29 +0530
CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 1 of 23
Janakpuri, New Delhi-110058 .... FBO Firm
JUDGMENT
(a) Serial number of the case : 42757/2016
(b) Date of commission of the offence : 17.09.2015
(c) Name of the complainant (if, any) : Sh. Satish Kumar Gupta, Food Safety Officer
(d) Name of the accused person(s), :1) Sh. Manoj Dua their parentage and residence S/o Sh. Som Nath Dua M/s Kwality Store, 10/1, Chhoti Subzi Mandi, New Delhi-
110058 Also at:-
R/o House No. 518, B-1 Block, Janakpuri, New Delhi-110058
2) Sh. Som Nath Dua, S/o Sh. Gopal Dass Dua, M/s Kwality Store, 10/1, Chhoti Subzi Mandi, Janakpuri, New Delhi-110058
3) M/s Kwality Store, 10/1, Chhoti Subzi Mandi, Janakpuri, New Delhi-110058
(e) Offences complained of : Section 26/27 & 59(i) of Food Safety and Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:18:41 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 2 of 23 Standards Act, 2006
(f) Plea of the accused : Not guilty
(g) Date on which final arguments concluded : 30.11.2022
(h) Date of Decision : 02.12.2022
(i) Decision : All accused are convicted u/s 26(2)(i), Section 27(1) r/w Section 59(i) of FSS Act, 2006.
BRIEF STATEMENT OF REASONS FOR DECISION
1. Facts giving rise to the present complaint under Section 26/27 r/w Section 59 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act') are that on 17.09.2015, the complainant Sh. Satish Kumar Gupta, Food Safety Officer (hereinafter referred to as 'FSO') visited the shop of the accused persons. Thereafter he purchased, a sample of "Sakkar" (food article) for analysis from Sh. Manoj Dua i.e. Food Business Operator-Cum- Partner of accused no. 3 (hereinafter referred to as 'FBO') of M/s Kwality Store, 10/1, Chhoti Subzi Mandi, Janakpuri, New Delhi- 110058 where the said food article was stored for sale for human consumption at the time of taking sample. The "Sakkar" was available in original sealed condition having identical label declaration on the packet. The sample consisted of 4x250 grams of 'Sakkar' (ready for sale) in original sealed condition in sealed packets bearing label declaration and price of sample i.e. Rs.52/- was paid to FBO vide Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:18:50 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 3 of 23 FBO receipt dated 17.09.2015.
2. As mentioned in the complaint, the sample was taken under the directions of Designated Officer after dividing it equally into four equal parts by putting one sealed packet containing "Sakkar" as one counterpart of sample. Thereafter, each counterpart containing sample was separately packed, fastened and sealed according to FSS Rules and Regulations. DO slip bearing the code number, signature and official stamp of DO was affixed on each sample counter part. A label was also pasted on each of the four sample counterparts and the FBO had signed all the four labels affixed on each of the four sample counterparts. FSO completed the remaining formalities and notice in Form VA was prepared and copy of the same was given to FBO/accused namely Manoj Dua. Panchnama was also prepared. One counter part of the sample bearing Code no. 07/DO-15/7932 in intact condition in a sealed packet along with copy of memo in Form-VI in a sealed packet along with copy of another memo in Form VI under sealed cover were sent to food analyst on 18.09.2015. The remaining two counterparts of the sample along with two copies of memo in Form VI in a separate sealed packet were deposited with the Designated Officer Dr. Parmod K Kothekar on 18.09.2015.
3. The sample was analyzed by food analyst and vide his report no. FSS/814/2015 dated 24.09.2015, food analyst opined that Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:18:57 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 4 of 23 the sample is unsafe because it is coloured with synthetic colouring matter viz. Sunset Yellow fcf, Tartrazine and Carmoisine and is also misbranded because there is violation of Regulation No.2.2.2.10 and 2.3.2(a) of the Food Safety & Standards (Packaging & Labelling) Regulation, 2011.
4. The Designated Officer sent copy of the report of food analyst to FBO on 01.10.2015 and gave him an opportunity to file an appeal against the report of food analyst under Section 46(4) of FSS Act, by sending one part of sample to Referral Food Laboratory (hereinafter referred to as 'RFL'). The FBO preferred an appeal against the report of Food Analyst and one counterpart of the sample was sent to RFL for analysis on 05.01.2016. The Director of RFL, Mysore vide certificate no. 289F/FSSA/2015 dated 05.01.2016 reported that the sample was unsafe as defined under Section 3(1)(zz)
(viii) of FSS Act.
5. It is also the case of complainant that accused no. 1 and 2 were in-charge and responsible for day to day conduct of its business of accused no. 3. After the conclusion of the investigation and obtaining the consent under Section 42(4) of FSS Act, present complaint had been filed against all accused persons.
6. As the complaint was filed in writing by the public servant, recording of pre-summoning evidence was dispensed with Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:19:06 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 5 of 23 and the accused persons were summoned vide order dated 29.03.2016. Accused persons appeared before the court and were admitted to bail. They were thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') on 15.11.2016 for offences punishable under Section 26(2)(i) and 27(1) r/w Section 3(i)(zz)(viii) of FSS Act punishable under Section 59 (i) of FSS Act, to which they pleaded not guilty and claimed trial.
COMPLAINANT'S EVIDENCE
7. At the trial, the complainant department i.e. the prosecution examined four witnesses in support of its case.
8. Sh. Satish Kumar Gupta, Designated Officer was examined as PW-1. He deposed on the lines of the complaint and exhibited the following documents, i.e.
1. Ex. PW 1/A : Vendor's Receipt;
2. Ex.PW1/A1 : Invoice issued by FBO
3. Ex. PW 1/B : Notice in Form VI;
4. Ex. PW 1/C : Panchnama;
5. Ex. PW 1/D : Raid report;
6. Ex. PW 1/E : Receipt of sample sent to Food Analyst;
7. Ex. PW 1/F : Receipt of sample sent to DL;
8. Ex. PW 1/G : FA report;
9. Ex. PW 1/H : Letter sent to FBO;
Digitally signed
NABEELA by NABEELA
WALI
WALI Date: 2022.12.02
17:19:14 +0530
CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 6 of 23
10. ExPW1/I : Letter regarding appeal;
11.Ex.PW1/J : Form VIII;
12.Ex.PW1/K : Copy of memorandum;
13.Ex.PW1/L : Postal receipt;
14.Ex. PW1/M : RFL Report;
15.Ex.PW1/N : Letter to FBO;
16. Ex.PW1/N-1 : Reply of letter to FBO;
17. Mark 1/1 : Copy of partnership deed;
18. Mark 1/2 : Copy of FSSAI Licence;
19. Mark 1/3 : Copy of registration form of ST-8;
20. Mark ¼ : Copy of Form G-8A of MCD;
21. Ex.PW1/O : Sanction letter;
22. Ex.PW1/P : Present complaint;
9. PW-1 was cross-examined by Ld. Counsel for the accused wherein he stated that all the four counterparts were bearing identical label declaration. He also admitted that accused no. 2 was not present at the time of sampling.
10. Sh. Suniti Kumar Gupta, Designated Officer was examined as PW-2. She deposed that accused no. 1 had appeared before her on 12.10.2015 and made a request to send one sample counterpart to RFL. She further deposed that accused no. 1 again appeared on 21.10.2015 and one sample counterpart of the sealed packet was sent to RFL in his presence vide memorandum Ex.PW1/K Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:19:21 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 7 of 23 bearing signatures at point A and the postal receipt ExPW1/L. During her cross-examination, witness deposed that the counterparts were requisitioned from the custody of Dr. P.M. Kotekar, DO for sending to RFL. She further stated that sample was sealed in the presence of the accused and there was no tampering when the sample was sent to the RFL Mysore.
11. Dr. P.M Kotekar, DO was examined as PW-3 and Sh. Subedar Mishra, Field Assistant was examined as PW-4. Both the witnesses deposed on the similar lines as PW-1 and corroborated his version. Both witnesses were cross-examined by Ld. Counsel for the accused.
EXAMINATION OF ACCUSED U/S 313/281 CRPC
12. Accused persons were then examined under Section 313 Cr.P.C. while accused no. 1 stated that the sample taken was duly labelled, accused no. 2 stated that he is merely a sleeping partner in M/s Kwality Store i.e. accused no. 3 and was not even present at the time of lifting of samples. Accused persons thereafter lead defence evidence and examined the following witnesses.
DEFENCE EVIDENCE
13. Accused Manoj Dua examined himself as DW-1. He deposed that the sample taken by Food Safety Officer was of "Sakkar and was in sealed pack bearing identical label declaration. However, Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:19:29 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 8 of 23 report received from the Mysore laboratory was pertaining to the sample which was bearing no label declaration and sample was reported to be of prepared food. DW-1 further deposed that he had filed an RTI in this regard to seek clarification and photocopies of the RTI application were placed on record as Ex. DW 1/A (OSR) and Ex. DW 1/B (OSR). DW-1 was cross-examined by Ld. SPP for the complainant.
14. Ms. Asha Martin, Director Referral Food Laboratory, Mysore was examined as DW-2. DW-2 deposed that on 28.10.2015 the sample of present case was received in CFTRI, Mysore for analysis of sample under the provision of the FSSA Act, 2006, Rules and Regulations, 2011, and she had sent the acknowledgment in this regard which is Ex.DW2/A bearing her signature at point A along with her report Ex.PW1/M bearing her signature at point A. She further deposed that the sample counterpart that she received was sealed in poly cover and was not having any label and was also not tampered. DW-2 deposed that to ensure that the sample is not tampered with she had checked the conditions of the seal on the container and the outer covering of the package of the sample and these were found to be intact and unbroken. DW-2 further deposed that she had also received the memorandum in Form VI sent by Delhi Designated Officer separately under seal cover. The witness was not cross-examined by Ld. SPP for the Department. Digitally signed by NABEELA NABEELA WALI WALI Date:
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15. Case then culminated into final arguments. Both the Ld. SPP for the Department/Complainant as well as Ld. Counsel for accused addressed oral arguments. Ld. Counsel for accused also placed on record written submissions.
16. It is argued by Ld. Counsel for the accused that the sample analyzed by the RFL, Mysore was not the same as seized by the FSO. It is argued by Ld. Counsel for the accused that as mentioned on the RFL report there was no label on the said sample. It is further argued that as per the testimony of prosecution witnesses all the sample counterparts were bearing identical label declaration. It is further argued by Ld. Counsel for the accused that none of the prosecution witnesses nor Director of the referral lab has explained the absence of label from the sample counterpart received by Director RFL, Mysore. It is further argued by Ld. Counsel for the accused that the Director of RFL, Mysore in her report has failed to mention about the comparison of seal as per Rule No. 2.4.2.1 of FSS Rules,2011. It is thus argued by Ld. Counsel for the accused that in view of the said omissions the report of the RFL can not be relied upon and the report of the Food Analyst does not stand once the accused has preferred the right to appeal under the Act.
17. It is next argued by Ld. Counsel for the accused that the Director RFL in her report has mentioned the sample food article as Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors 17:19:46 +0530Page No. 10 of 23 'prepared food' article. It is argued by Ld. Counsel for the accused that since the sample food product i.e. 'Sakkar' is primarily made of Sugars, hence the food product as per provisions of law can only be categorized under sweets or sugar based confectionery in which synthetic colors up to 100 PPM under Regulation No. 3.1.2 of FSS (Food product standards and food additives) Regulation 2011 and Table Number 13 of appendix 'A' regarding 'permitted food additives pertaining to sugar based confectionery' is permitted. It is thus argued by Ld. Counsel for the accused that the food article has been wrongly mentioned as prepared food in the RFL report and the opinion of Director RFL on this aspect is not binding.
18. It is further argued by Ld. Counsel for the accused that accused no. 2 was neither present at the spot at the time of sample proceedings and was not in-charge and responsible for day to day business of the partnership firm i.e. accused no. 3 and hence is not liable for any offence under the Act. Ld. Counsel for accused in support of his arguments had relied upon the following judgments:-
a) Calcutta Municipal Corporation v. Pawan K. Saraf & Anr in CRL No. 3708/2019 decided on 13.01.1999(Hon'ble Supreme Court of India) ;
b) Tilak Raj v. The State in Criminal Revision No. 25/1966 decided on 10.11.1966 (Hon'ble High Court of Punjab and Haryana);
c) State v. Shri Naresh Kumar & Anr in Criminal Revision No. 7 of 1980 decided on 23.05.1980 (Hon'ble Delhi High Court);
d) Yogender Singh & Ors. v. State & Anr in Criminal WP Digitally (Crl) No. signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:19:55 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 11 of 23 1511/2009 decided on 19.02.2010 (Hon'ble Delhi High Court);
19. On the other hand, Ld. SPP for the complainant argued that as per DO receipt FBO was given an opportunity to identify the sample and since the data of FA and RFL report is the same, hence the sample article examined was same. He further argued that as per testimony of DW-2 she had compared the seal though the same is not mentioned in the report. It was argued by Ld. SPP that the complainant has been able to establish its case against the accused persons beyond reasonable doubt and that the accused have not been able to rebut the findings of the report of Food Analyst. It was further argued that all the witnesses have supported the case of prosecution and no major contradiction can be seen in their testimony.
20. I have heard the rival submissions on behalf of both the parties and carefully perused the record.
21. It is to be understood that the notice framed against the accused persons was for violation of Section 26 (2)(i) & 27(1) r/w Section 3(i)(zz) & (viii) of FSS Act, 2006 and Regulation No. 3.1.2 of FSS Regulations, 2011, punishable under Section 59 (i) of FSS Act, 2006.
22. Before proceeding let us examine the relevant provisions of law, which are read as under: Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:20:04 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 12 of 23 Section 3(1)(zz) defines "unsafe food" which means an article of food whose nature, substance or quality is so affected as to render it injurious to health; (vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is;
Section 26 deals with Responsibilities of the food business operator - (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe;
Section 27 Liability of the manufacturers, packers, wholesalers, distributors and sellers (1) The manufacture or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder. (a)....
(b)...
(c) Unsafe or misbranded; or Regulation No. 3.1.2(1) provides that unauthorized addition of colouring matter prohibited-The addition of colouring matter to any article of food except as specifically permitted by thesep regulations is prohibited;
Regulation No. 3.1.2(6) deals with Use of permitted synthetic food colours prohibited-Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited :-
(i) Ice-cream, milk lollies, frozen desserts, flavoured milk yoghurt, ice-cream mix powder;
(ii) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dalmoth, mongia, phululab, sago papad, dal biji only);
(iii) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit crushes, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(iv) Non-alcoholic carbonated and non-carbonated ready to Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:20:14 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 13 of 23 serve synthetic beverages including synthetic syrups, sherbats, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(v) Custard powder;
(vi) Jelly crystal and ice-candy;
(vii) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only under label declaration as provided in regulation 2.4.5(35) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
Section 59 deals with Punishment for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees;
23. The sample of "Sakkar" has been found unsafe by the Food Analyst and later by RFL, Mysore, due to presence of artificial food colouring matter which was found in the sampled food article which is not permissible as per rules.
24. With respect to the first argument put forth by the Ld. Counsel for the accused, perusal of the record shows that PW-1, PW-3 and PW-4 in their testimonies have deposed that the food article i.e. 'Sakkar' was lying in sealed polybags bearing identical label declaration. In so far as the sample proceedings in the present case are concerned the same are not disputed by the accused persons. Further, PW-2 in her testimony has deposed that the accused preferred an appeal to the RFL, vide his request ExPW1/J. As per PW-2 the Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:20:24 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 14 of 23 accused thereafter appeared before her on 21.10.2015 and was shown the sealed packet of two counterparts of the sample of "Sakkar" having sample no. 748/1038/133/2015 and his statement was also recorded wherein he has stated that both the counterparts of the sample are properly packed, fastened, marked and sealed. Accused no. 1 also identified his signatures on each counterparts of the sample. Further as per the statement of accused no. 1 recorded on 21.10.2015 the seals and fastening on the sample were intact and he himself has selected one counterpart of the sample to be sent for analysis.
25. The statement of the accused is Ex.PX. Accused no. 1 during his cross-examination by Ld. SPP for the Department has admitted his signatures at point A on the said statement which is part of Ex.PW1/J. Also as per Ex.PW1/K the sample bearing no. 748/1038/133/2015 was sent for analysis along with Form VI bearing the seal impression of the seal used by the FSO. The prosecution has also placed on record postal receipt Ex.PW1/L to show that the sample as well as the seal impression was sent to RFL, Mysore by the DO for the purpose of analysis. As per letter of Director RFL, Mysore addressed to DO i.e. PW-2 which is Ex.DW2/A the sample no.748/1038/133/2015 was analysed . As per report of the RFL which is Ex.PW1/M the condition of the seal of the container and outer cover is mentioned as "intact and unbroken". Also it is mentioned in the said report that the sample is packed in a poly cover. The physical Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:20:32 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 15 of 23 description of the sample is also mentioned as yellowish orange colored product. Similar description is mentioned in report of FA which is Ex.PW1/G. However, there was no label on the said sample as mentioned in Ex.PW1/M. It is pertinent to mention here that when the said sample was deposited by the FSO on 18.09.2015, DO No. 07/DO-15/7932 and sample no. 748/1038/133/2015 were assigned to the samples as mentioned in DO receipt which is Ex.PW1/F. The said report Ex.PW1/M mentions that the sample bearing no 748/1038/133/2015 (07/DO-15/RL/16/7932/2015) was received for analysis. There is nothing on record by the accused to show as to when and how the said sample was replaced or tampered with. Thus, in the opinion of this court, the absence of label on the sample does not prove the fact that the sample analysed was tampered with or a different sample.
26. Further it is the argument of the Ld. Counsel for the accused that in view of the Rule 2.4.2.1 of the Food Safety & Standards Rules, 2011, the Food Analyst was bound to compare the seals on the container and outer cover with specimen impression of the seal received and shall note the condition of the seal thereon. Although the report Ex.PW1/M does mention the condition of the seal as intact and unbroken, however, as per the argument of the Ld. Counsel for the accused, since the said report does not mention about the comparison of seals hence the same can not be considered by this Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.02 17:20:39 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 16 of 23 court.
27. Ld. Counsel for the accused in support of his argument has relied upon the judgment in Tilak Raj v. The State in Criminal Revision No. 25/1966 decided on 10.11.1966 (Hon'ble High Court of Punjab and Haryana) which is on complaint filed under the Prevention of Food Adulteration Act and not under FSSA. Further in view of the judgment of the Hon'ble Supreme Court in case titled as Delhi Administration v. Vidya Gupta, Criminal Appeal No. 625 of 2018, Date of Decision 24 April, 2018 the following paras of which are worth reproducing :
"... 11. Once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context the proviso to sub-section (5) of Section 13 can also be looked at which deals with the evidentiary value of such certificate. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of section 4 of the Evidence Act. Thus the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.
12. The finding of the High Court that the variation between the two reports was 0.76% and therefore more than 0.3% as permitted in Ram Singh's case (supra) is completely unsustainable and liable to be set aside. The reliance placed by the High Court on the decisions in Kanshi Nath v. State and State v. Mahender Kumar and Ors which hold that if in the comparison of the reports of the PA and the Director vast variations are found, then the samples are not representative, is improper. Those decisions do not lay down good law..." Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.12.02 17:20:47 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 17 of 23
28. Ld. Counsel for the accused has examined the Director RFL, Mysore who had examined the said sample. DW-2 in her examination-in-chief has stated that to ensure that the sample was not tampered with she had checked the conditions of the seal on the container and the outer covering of the package of sample which were found to be intact and unbroken. The witness has also mentioned about receiving the Memorandum in Form VI separately under sealed cover. She has further stated that she had matched the number mentioned on the sample with the number mentioned in the Memorandum Form VI i.e. Ex.PW1/K. During her examination-in- chief DW-2 has also denied the submission that she did not compare the seal impression with the seal on the container. Moreover, as prescribed under Rule 2.4.2.1 of the Rules 2011, the condition of the seal is clearly mentioned on Ex.PW1/M. In the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under:
"...In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
"... The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial".
Thus in view of the same the submission of the Ld. Counsel for the Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:20:54 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 18 of 23 accused that the RFL report can not be considered on account of the omission of Director RFL to mention the fact of matching of seal is hereby negated.
29. Another leg of argument of Ld. Counsel for the accused persons is that the sample of food article i.e. "Sakkar" has been wrongly mentioned as 'prepared food' in the report Ex.PW1/M. Ld. Counsel for the accused has vehemently argued that the said food article would fall under the category of ' proprietary foods'. It is further argued that since the sample food product is primarily made out of sugar, hence the same shall be categorized under the category of sweets and sugar based confectionery and hence in view of Rule 3.1.2.6 of FSS (Food Product Standards and Food Additives) Regulations, 2011 and Table No. 13 of Appendix 'A' synthetic food colors as food additives are permitted to 100 PPM for use in the present food article. Ld. Counsel for the accused has also relied upon the definition of confectionery under Indian Food Code in support of his submission.
30. In order to decide the above submission, it is relevant to note the definition of proprietary food under the Act.
Rule 2.1.2.1: Proprietary food means a food that has not been standardized under these regulations.
31. Further as per Ex.PW1/G the food article i.e. "Sakkar"
Digitally signed by NABEELA NABEELA WALI Date: WALI 2022.12.02 17:21:03 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 19 of 23
was falling under Regulation No. 2.8.4. Although it is not in dispute that the said report ExPW1/G stands superseeded by report Ex.PW1/M, however let us look at the said definition under Rule 2.8.4:-
Rule 2.8.4 GUR OR JAGGERY means the product obtained by boiling or processing juice pressed out of sugarcane or extracted from palmyra palm, date palm or coconut palm. It shall be free from substances deleterious to health and shall conform to the following analytical standards, on dry weight basis:-
Total sugars express as invert sugar Not less than 90 percent and sucrose not less than 60 percent
32. It is not in dispute by the accused that the said food item is "Sakkar". The physical description of the article in Ex.PW1/M is mentioned as yellowish orange coloured product. Also the composition of the food article as per Ex.PW1/M is 99 % sugar by dry weight basis & sucrose is 81 %. Thus in the opinion of the court the said food article in view of the components shall fall under the definition of 'Gur or Jaggery' under Rule 2.8.4 placed under the heading of 'Sweetening agents including honey.' Thus in view of the above discussion, the contention of the Ld. Counsel for the accused persons that the food article shall fall under the category of proprietary food or under the category of sweet or sweet based confectionery and hence use of permitted synthetic colours is permitted upto 100 PPM in view of Rule 3.1.2(6) does not hold good.Digitally signed
NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:21:12 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 20 of 23
33. Further as discussed above Rule 3.1.2(6) of Food Product Standards and Food Additives prohibits use of permitted synthetic food colors other than those enumerated below:
(i) Ice-cream, milk lollies, frozen desserts, flavoured milk yoghurt, ice-cream mix powder;
(ii) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dalmoth, mongia, phululab, sago papad, dal biji only);
(iii) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit crushes, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(iv) Non-alcoholic carbonated and non-carbonated ready to serve synthetic beverages including synthetic syrups, sherbats, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(v) Custard powder;
(vi) Jelly crystal and ice-candy;
(vii) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only under label declaration as provided in regulation 2.4.5(35) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
Food article in question does not fall under the category of food items mentioned under Rule 3.1.2(6). Hence in view of Rule 3.1.2 permitted synthetic food colours are not permitted in the present food article.
34. It is next argued by Ld. Counsel for accused that accused no. 2 was not present at the premises at the time of lifting of the sample and is not responsible for the day to day business of the Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:21:20 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 21 of 23 partnership firm and hence is not liable for any offence. Now in the present case accused no. 1 and 2 have been impleaded as partners of accused no. 3. Vide letter dated 18.12.2015 issued by FSO to accused no. 1 which is Ex.PW1/N details of the partnership firm was sought from the accused persons and the reply to the same was filed by the accused persons which is Ex.PW1/N-1 wherein Mr. Somnath Dua and Mr. Manoj Dua are mentioned as partners. Also a copy of the partnership deed which is Mark 1/1 has been placed on record by the prosecution wherein both accused persons are mentioned as equal partners. Also the copy of sales tax form which is Mark 1/3 shows the proprietor/partner as accused no. 2 and further the MCD tax receipt which is placed on record as Mark 1/4 mentions the name of accused no. 2 as the applicant. The said documents are not disputed by the accused persons. Nothing else has been brought on record by the accused no. 2 to show that only because he was not present at the shop on the date of lifting of the sample he was not responsible for carrying out the day to day business of the firm i.e. accused no. 3.
35. It has been thus, conclusively proved that the sampled food article of "Sakkar" contained unpermitted colouring matter viz Tartzazine & sunset yellow which is unsafe for human consumption. In view of the aforesaid facts and evidences brought on record, it is seen that the prosecution has been able to establish its case beyond reasonable doubt that the accused persons were packing and selling a food article which was unsafe for human consumption. Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.02 17:21:28 +0530 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 22 of 23
36. The accused no. 1 persons namely Sh. Manoj Dua S/o Sh. Som Nath Dua, accused no. 2 Sh. Som Nath Dua S/o Sh. Gopal Das Dua and accused no. 3 M/s Kwality Store are therefore, convicted for the violation of provisions of Section 26(2)(i) & Section 27(1) r/w Section 3(1)(zz)(viii) of FSS Act 2006 r/w Regulation No. 3.1.2(6) of FSS (Food Product Standards and Food Additions) Regulations, 2011, punishable u/s 59(i) of FSS Act, 2006.
37. Be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN COURT DATED: 2nd December, 2022 This judgment contains twenty three pages and each page is Digitally signed by signed by me. NABEELA NABEELA WALI WALI Date: 2022.12.02 17:21:37 +0530 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI 02.12.2022 CC No:- 42757/2016 Food Safety Officer v. Manoj Dua & Ors Page No. 23 of 23