Delhi District Court
Da vs Amit Kumar Etc on 26 April, 2024
IN THE COURT OF SH. ABHISHEK KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
Ct Cases 19901-2016
DA Vs. AMIT KUMAR ETC.
JUDGMENT
(a) Serial number of the case : 19901-2016
(b) Name of the complainant : Food Safety Officer,
Department of Food Safety
(c) Name of the accused person : (1) Amit Kumar
S/o Lt Sh. Shyam Lal, R/o 170-
D, Kamla Nagar, Delhi-110007.
(2) Rajiv Brijwasi S/o Sh.
Shyam Lal R/o 170-D, Kamla
Nagar, Delhi-110007.
(d) Offences charged of : Section 59 of FSS Act, 2006.
(e) Plea of the accused : Accused persons pleaded not
guilty.
(f) Final Judgment : Accused persons stands
acquitted.
(g) Date of institution of case : 09.05.2014
(h) Date of final arguments : 06.04.2024
(i) Date of Judgment : 26.04.2024
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 1 of 14
1. The present complaint has been filed by the Food Safety Department through a Food Safety Officer under Section 26 of the Food Safety & Standards Act, 2006 (hereinafter referred to as the 'Act') against the accused persons.
PROSECUTIONS' CASE
2. It is the case of the Department of Food Safety that on 05-10- 2013, FSO and other staff visited the shop i.e Shree Bankey Bihari Rasgulle, 128 D, Kamala Nagar, Delhi-07, where accused/FBO Amit Kumar was found having stored/selling/exposed meant for sale for human consumption various food articles including "Yellow Cham Cham" at his shop, which was lying in an open tray bearing no label or declaration.
3. Thereafter, Food Safety Officer disclosed his identity to accused and after inspection of the shop, showed his intension of taking a sample of "Yellow Cham Cham" for analysis to which accused agreed.
4. Thereafter, the Food Safety Officer tried to associate some public witness by requesting passersby, neighboring shopkeepers and customers but none came forward, then the FSO requested field assistant to join as a witness, to which he agreed.
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 2 of 14
5. Then, at about 5:00 PM, Food Safety Officer purchased a sample of "Yellow Cham Cham" food article for analysis from accused accused/FBO, which consisted of Approx. 2 Kg of "Yellow Cham Cham" at a price of Rs. 480/- only. The amount was paid in cash to the FBO vide receipt dated 05/10/2013.
6. Thereafter, the sample was properly mixed with the help of clean and dry spoon in a clean and dry another tray and divided into four clean and dry glass bottles by adding 40 drops of Formalin with the help of clean and dry dropper in each counterparts.
7. Thereafter, each counterpart containing the sample was separately marked and fastened up and sealed according to the Food Safety Act / Rules& regulation. Then, the Designated Officer (DO) slip bearing the code number, signature and official stamp of the DO was affixed on each counterpart of the sample. Further, Labels were also pasted on each of four sample counterparts and the FBO had also signed all four labels affixed on each of the four sample counterparts. The FBO also signed on each counter part of the sample in such a manner so as to appear partly on the designated officer slip and partly on the Wrapper of the bottle containing the sample. Then, a notice in Form VA was prepared which was signed by witness/field assitant and also by the Food Business Operator. It is also stated in the complaint that the copy of this notice was given to Food Business Operator vide Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 3 of 14 his acknowledgement on the notice. Further, the FBO disclosed the ingredients of the sample article on the notice.
8. Apart from that Panchnama was also prepared at the spot. Further, all the documents were prepared by the Food Safety Officer, which were read over and explained in Hindi to Food Business Operator , who signed on the same after understanding it.
9. It is further stated that one counterpart of the sample bearing Designated officers code in intact condition along with copy of memo in form VI and another copy of Memo form VI in a sealed cover were sent separately to the food analyst. The other two counterparts of the sample along with the fourth counterpart were deposited with the Designated Officer on 07/10/2013.
10. Further, the Food Analyst vide his report dated 17/10/2013 reported that the sample is unsafe because it contains total dye content of synthetic color more than the prescribed limit of 100 ppm. Accordingly, the Designated Officer concerned sent a copy of the Food Analyst report to the Food Business Operator on 25-10-2013 for giving him an opportunity to file an appeal against the report of the Food Analyst under section 46(4) for sending one part of the sample to the Referral Lab, if so desired by him through speed post but it was returned back undelivered. None appeared to prefer an appeal against the report of Food Analyst.
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 4 of 14
11. During the investigation, it was revealed that accused Amit Kumar was the FBO cum Manager of the shop looking after its business and accused Rajiv Brijwasi was the sole proprietor of the shop and he being the in-charge was responsible for the conduct of the business. A letter was also received from Smt. Phoolwati stating herself and her grandson to be the owners of the shop. Then, copy of the report was sent to accused Rajiv Brijwasi too on 20.11.2023 by speed post which was not returned back. None came forward to file the appeal. It was disclosed through records of election commission that both accused were brothers and resident of D-170, Kamla Nagar, Delhi-07. Therefore, the present complaint was filed after obtaining sanction.
PROCEEDINGS BEFORE THE COURT
12. Upon filing of the complaint, the cognizance of the offence under section 26 and 59 of the FSS Act, 2006 was taken. The examination of the complainant was dispensed with, as he was public servant and complaint was filed in his official capacity. Accordingly, summons was issued to the accused persons.
13. Upon service of summons, accused persons entered their appearance before the court and were admitted to bail as offences were bailable in nature.
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 5 of 14
14. Thereafter, notice was framed against the accused persons under section 59 of the act, to which accused persons pleaded not guilty and claimed trial. Accordingly, the matter was fixed for Prosecution Evidence.
15. During the prosecution evidence, the department has examined 4 witnesses to prove its case. Thereafter, statement of the accused persons was recorded under section 313 CrPC. The accused persons did not lead any defence evidence despite opportunity. Accordingly, Final arguments were heard and matter was kept for orders.
PROSECUTION EVIDENCE
16. PW1 being the complainant, has filed the complaint before the court and has deposed on the same lines as per the averments mentioned in the complaint. she identified her signatures on the complaint which was exhibited as PW1/N and referred to the following documents filed in support of the complaint:
(i)FBO receipt (Ex. PW1/A).
(ii)Notice in Form no. V-A (Ex. PW1/A)
(iii)Panchnama. (Ex. PW1/C)
(iv)Raid Report as per clause 4(iii)(h) of Rule 2.1.3 of FSS Rules,2011. (Ex. PW1/D)
(v)Receipt of sample deposited with Food Analyst. (Ex. PW1/E)
(vi)Receipt of samples sent to DO. (Ex. PW1/F)
(vii)Food Analyst report. (Ex. PW1/G) Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 6 of 14
(viii)Letter regarding copy of FA report sent to FBO. (Ex. PW1/H)
(ix)Postal receipts (Ex, PW1/H1)
(x)Letter to VAT officer and reply received (Ex. PW1/I & PW1/I-2)
(xi)Letter sent to Deputy Health Officer and replies received. (Ex. PW1/J, Ex. PW1/L-1 & PW1/L-2)
(xii)Statement of neighbor of accused persons. (Ex. PW1/L-3)
(xiii)Record of election commission (Mark P)
(xiv)Sanction order. (Ex. PW1/M).
17. PW2 and PW3 deposed on the similar lines as PW1 by referring to the documents exhibited by them. Further, for the sake of brevity, the excerpts of testimony are not being reproduced herein.
18. PW4 brought the record from the VAT office and deposed that as per the record, TIN number of the shop was registered in the name of Shree Bankey Bihari Brijwasi Rasugalle Wale. The record was exhibited as Ex. PW4/A (OSR).
19. I have gone through the record and given due thought to the submissions made by parties before me. Before proceeding further, it will be pertinent to refer to the relevant provisions of law involved in the present case for ready reference, which are as follows:
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 Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 7 of 14 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 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; (v) by addition of a substance directly or as an ingredient which is not permitted; (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; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof.
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
20. The incriminating material on the basis of which the sample of "Yellow Cham Cham" had been failed by the Food Analyst was that the sample was unsafe as excessive artifical food colouring matter i.e Taratazine was found in the sampled food as 122.56 ppm which beyond the permissible limits of 100ppm.
21. In so far as visiting of the shop of FBO by FSO and consequent lifting of sample of "Yellow Cham Cham" is concerned, there is no challenge on behalf of accused persons that the sample of "Yellow Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 8 of 14 Cham Cham" was not lifted as per the rules and regulations prescribed under the FSS Act. Testimony of PW-1 vividly describes the manner in which sample article of "Yellow Cham Cham"was collected from the shop of the accused. His testimony is on the similar lines as the complaint Ex. PW1/N and there is no serious rebuttal on various exhibits pertaining to sample collection proceedings.
22. The defence has not been able to rebut or bring any credible evidence on record to show that the spoons or the bottles in which the sampled food article was collected, were not clean and dry, as has been suggested by them during the cross-examination of the witnesses. Further, merely stating so during the cross-examination of witnesses without adducing evidence on record to corroborate the said suggestions is not enough to rebut the evidence brought forth by the complainant, which per se is admissible as per law. Also, the contention that the utensils and sample bottles were not made clean at the spot are not in derogation to the FSS regulations, 2011, where the requirement is to ensure that the utensils used shall be clean and dry. The evidence brought on record clearly shows that when the samples were lifted, they were clean and dry at relevant time including the sample bottles. There is no cogent evidence or circumstances on record to infer that some yellow colour was sticking to the knife used during the sample proceedings.
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 9 of 14
23. The counsel for the accused also argued that Sh. Sohan Singh kanawat was never posted as a commissioner of food safety during the relevant period of time and there is nothing mentioned in the sanction order to show that the documents were actually seen and examined before granting the sanction.
24. In the instant case, the sanction placed on record clearly mentions that clearly mentions the name of Sh. Sohan Singh Kanwat as the commissioner of food safety and thus, merely raising doubts about it was not sufficient and there was requirement of some cogent proof to support this contention, which was never brought on record. Further, if one will go through the sanction order, it will be found that it is a detailed and reasoned order eliminating the averment that documents were not looked into and thus, it can be safely stated that sanction was granted after due application of mind.
25. The counsel has raised the doubts with respect to the report of the FA that the sample analysis was completed on 15.10.2013 and the report was prepared on 17.10.2023 and also, the name of the method used to analyse the dying content is not mentioned in the report which is in derogation to the rules and regulations of food safety act. He also stressed on the point that merely mentioning the name of method as DGHS manual was not enough as there are various methods enumerated under the rules and accused has the right to know the exact method to prepare its defence. The counsel has refered to the Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 10 of 14 judgement of honble High Court of Delhi in case titled as DA v. Amar Chand (Crl. L.P no. 266/2012)
26. The argument raised by the counsel appears to be valid and has raised a very interesting point of law in this regard. The framing of rules and regulations are not empty formality. There existence has a reason, which has to be followed by the officials of food safety as well as Labs conducting the tests. Otherwise, there will be no sanctity attached to these rules and non-compliance will render them useless. The judgment referred by the counsel clearly highlights the fact that the report has to be prepared forthwith upon the completion of analysis and any delay in preparing it, weakens the evidentiary value of the same. Also, the rules mandate that food analyst has to categorically mention the name of test adopted for analysing the sample and it has been validly stated by the defence counsel that there are number of tests available to analyse the sample and accused has the right to know the same to prepare his defence. Thus, the department or the FA cannot plead ignorance to the rules in existence or deliberately not comply with it. Any deviance or non-compliance of the rules by the FA will make his report doubtful and inconclusive and the benefit of it has to be given to the accused. In the given case, the sample analysis was completed on 15.10.2013 and report was prepared on 17.10.2013. no explanation has come in the report as to why it was prepared at a later date. Further the name of the method Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 11 of 14 and test used is mentioned as DGHS manual which is in derogation to the rules of food safety as discussed above.
27. Furthermore, the defence counsel raised the argument regarding the non-compliance of section 46(4) of the Act as the report of the FA was never supplied to both the accused defeating their essential right to get the sample analysed from the referral laboratory.
28. After going through the documents filed on record by the department and the testimonies of the prosecution witnesses, it is evident that the copy of the FA report was never supplied to the accused Amit Kumar as the letter and report sent through the speed post was received back undelivered. I wonder, when the letter was received back undelivered, then, how the DO officer came to the conclusion that none came forward to file the appeal under section 46(4) of the act. The right course of action would have been to make further efforts to serve the report to the FBO/manager by delivering the report physically at the shop or through any other mode. Absence of it, will tantamount to defeating the essential right of the accused to get sample analysed from the referral lab.
29. Also, prosecution has mentioned that they also sent the report to the accused Rajiv Brijwasi through speed post and the same has not been returned back undelivered. However, the fact that it was not received back undelivered does not establish the fact that the report Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 12 of 14 has actually reached the accused. The prosecution should have made the attempt by bringing on record the delivery tracking report to show that the report was delivered to the accused at his registered address. In the absence of the same, it cannot be presumed that the report has reached both the accused. The fact that both the accused are real brothers will not absolve the prosecution from its obligation that the reports were actually served to both the accused in their individual capacities. The defence counsel has rightly referred to the judgement of the Honble Punjab & Haryana High Court in case titled as State of Haryana v. Munim (Crl. Misc. A. no. 350 of 2005) in support of his contention and the same is applicable to given facts and circumstances of the case. Thus, the benefit of the non-compliance of the specific rules and regulations will certainly go to both the accused persons and it amply clear that the right of the accused to prefer appeal against the report was defeated due to the non-supply of the report.
30. Therefore, in view of the aforesaid discussion, the prosecution could not establish the case beyond reasonable doubt and any doubt in the case has to go in favour of the accused persons. As already discussed, no grounds are made out to declare that the sample lifted was unsafe. Accordingly, accused persons namely Amit Kumar and Rajiv Brijwasi stand acquitted for the offence U/s 59 of FSS Act, 2006.
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 13 of 14
31. Accused persons are directed to furnish personal bonds U/s 437A Cr.PC in the sum of Rs.10,000/- each.
Announced in the open Court on 26th April, 2024 This judgment contains fourteen pages and each page is signed by me.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date:
2024.04.26
17:05:17 +0530
(ABHISHEK KUMAR)
ACMM-01/NEW DELHI DISTRICT
PATIALA HOUSE COURTS/NEW DELHI
26.04.2024
Cr. Case 19901-2016 DA v. Amit Kumar Etc.. Page No. 14 of 14