Delhi District Court
Da vs Sanjay Suneja on 18 November, 2019
IN THE COURT OF MS. GURMOHINA KAUR
Addl. Chief Metropolitan Magistrate - I (New Delhi),
Patiala House Courts, New Delhi
Case No. 44691/16
Date of Institution: 01.02.2011
Date of reserving judgment: 14.11.2019
Date of pronouncement: 18.11.2019
In re:
Delhi Administration / Food Inspector
Directorate of PFA
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
Versus
Sh. Sanjay Suneja S/o. Sh. M.R. Suneja,
M/s Haryana Sweets & Restaurant,
D-132,South Ganesh Nagar,
Delhi-110092
R/o B-21, Pandav Nagar, Delhi-110092 ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the PFA Act, 1954, alleging that the accused Sanjay Suneja has violated the provisions of the PFA Act and Rules. The accused Sanjay Suneja S/o. Sh. M.R. Suneja, M/s Haryana Sweets & Restaurant, D-132, South Ganesh Nagar, Delhi-110092 is stated to be the vendor-cum- proprietor of M/s Haryana Sweets & Restaurant, D-132, South Ganesh Nagar, Delhi-110092, from where the food article, that is, 'Bundi Laddu' was lifted for sampling.
CC No. 44691/16 Page No. 1/9DA vs Sanjay Suneja
2. As per the complaint, on 05.10.2010 at about 6.45 p.m, the food officials consisting of FI Sh. Hukan Singh and FA Naubat Singh under the supervision of SDM/LHA Hukam Singh reached along with their staff at the premises of M/s Haryana Sweets & Restaurant, D-132, South Ganesh Nagar, Delhi-110092, where the accused was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Bundi Laddu from the vendor. The sample consists of 1500 gms of Bundi Laddu (ready for sale for human consumption) taken from an open tray bearing no label declaration. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, Panchnama, etc. The price of sample was paid to the vendor. All the documents were prepared and were signed by accused and other witness Sh. Naubat Singh, FA as well as by FI. Before taking the sample efforts were made to get the public witnesses to join the proceedings but none came forward, as such Sh. Naubat Singh, FA was joined as witness.
3. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA.
4. The Public Analyst vide its report dated 02.11.2010 opined that the CC No. 44691/16 Page No. 2/9 DA vs Sanjay Suneja sample was adulterated.
5. It was further revealed during investigation that the accused Sanjay Suneja was the vendor-cum-proprietor of M/s Haryana Sweets & Restaurant, D-132, South Ganesh Nagar, Delhi-110092 at the time of taking the sample and he looks after day to day business and such he was in charge of and responsible for the conduct of the business of the said shop and the sampled food article of 'Bundi Laddu' was manufactured by the vendor himself.
6. After completion of investigation, consent under section 20 of the PFA Act was obtained from the Director, PFA. The complaint was then filed in the court on 01.02.2011 alleging violation of section 7 of PFA Act, 1954 and also violated the provisions of Rule 30 r/w Rule 28 and 29 of PFA Rules, 1955 which is punishable U/s. 16 (1A) of PFA Act, 1954 r/w Section 2 (ia) (a) (j) and (m) of PFA Act, 1954 which is punishable U/s. 16 (1A) of PFA Act, 1954.
7. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 01.02.2011. The accused moved an application U/s. 13 (2) of the Act, 1954. It was heard and allowed. The second counterpart of the sample was summoned by the Court and after the sampling was found to be intact in condition, it was sent to Director, CFL for analysis. Report of Director, CFL dated 07.03.2011 was received and it was opined that the above sample contravened Rule 30 of PFA Rules, 1955 and CC No. 44691/16 Page No. 3/9 DA vs Sanjay Suneja synthetic colours of sunset yellow FCF = 59.162 ppm + Tartrazine=54.247 ppm colour present and total permitted colour was 113.409 ppm which exceeded the permitted synthetic food colour, maximum 100 ppm. PW1 was examined at the stage of pre-charge evidence. On the basis of pre-charge evidence and report of Director, CFL, prima facie charge for the violation of Section 2 (ia) (a) (j) and (m) of PFA Act, 1954 and Rule 30 r/w Rule 28 & 29 of PFA Rules, 1955, punishable U/s. 16 (1A) r/w Section 7 of PFA Act, 1954 were framed against the accused to which he pleaded not guilty and claimed trial.
8. At the trial, prosecution examined four witnesses in support of its case i.e PW-1 FI Sh. Hukam Singh, PW-2 FA Sh. Naubat Singh, PW3 SDM/LHA Sh. Hukum Singh and PW-4 Public Analyst Sh. S.M. Bhardwaj. PW1, PW2 and PW3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 05.10.2010 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gms of Bundi Laddu lying in an open tray bearing no label declaration, breaking it into smallest possible pieces, mixing/ homogenizing it, dividing it in three parts and putting in clean and dry bottles, adding 40 drops of formalin in each bottle as preservative, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, CC No. 44691/16 Page No. 4/9 DA vs Sanjay Suneja Notice Ex. PW-1/B, Panchnama Ex. PW-1/C. On the next working day i.e 06.10.2010, one counterpart sample deposited with Public Analyst vide receipt Ex.PW-1/D and the two counterparts deposited with SDM/LHA is Ex.PW-1/E. Public Analyst report Ex. PW-1/F wherein it was stated that the sample was adulterated, was received and investigation was started. During investigation, two letters Ex. PW-1/G & Ex.PW1/G-1 were sent to accused/vendor and its reply Ex.PW1/G-2, wherein the accused revealed that he was the sole proprietor of M/s Haryana Sweet & Restaurant and was responsible for running its day to day business. PW1 sent a letter to VATO, Ward No. 84 Ex.PW1/H and received its reply on the same at portion X to X that the above mentioned firm was not registered in that Ward. After completion of investigation, consent Ex. PW-1/I was taken from the Director, PFA and the complaint Ex. PW-1/J was filed in the court. The intimation letter was Ex.PW1/K alongwith photocopies of postal receipts collectively Ex.PW1/L. These witnesses were duly cross-examined by Ld. Defence Counsel for accused. PW1 during his cross-examination stated that he did not know what were the ingredients of sugar syrup but it generally contained water, sugar and colour. He added that he could not comment if water content would evaporate if the sample was tested after 5 months. He also stated that he could not say if the weight of product would loose upon evaporation of water after lapse of time. PW2 admitted during his cross-examination that Boondi used to fried in oil and then put in sugar syrup so as to prepare laddoos. PW3 admitted during his cross-examination that laddoos become hard after a period of 5 months. He further CC No. 44691/16 Page No. 5/9 DA vs Sanjay Suneja admitted that the Commissioner did not sign the sanction in his presence and admitted that the accused made the endorsement at point X to X and Y to Y on his own in document Ex.PW1/B. PW4 stated during his cross-examination that he could not comment on the variation between the two samples upto 263 ppm because the report of RFL is final and supersedes the report of Food Analyst. He stated that he had not analyzed the sample after 5 months so he could not comment on the evaporation and reduction of weight and increase of percentage of synthetic colour.
9. Statement of the accused under section 313 CrPC was recorded on 01.11.2019 wherein he denied the allegations and pleaded innocence. He added that the sample was analyzed by the Director after 5 months wherein the water evaporated and hence the percentage of colour increased. He chose not to lead evidence in defence. No defence evidence was led and defence evidence was closed and the matter was listed for final arguments.
10. Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings of the Director, CFL report. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
11. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are CC No. 44691/16 Page No. 6/9 DA vs Sanjay Suneja various missing links in the testimony of witnesses. He stated that the samples taken were not representative and they were divergent.
12. I have perused the written submissions filed by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
13. It is to be understood that the charge framed against the accused is for violation of Section 2 (ia) (a) (j) and (m) of PFA Act, 1954 and Rule 30 r/w Rule 28 & 29 of PFA Rules, 1955, punishable U/s. 16 (1A) r/w Section 7 of PFA Act, 1954. Be that as it may, under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
14. The incriminating material on the basis of which the sample of Bundi Laddu has been failed by the Public Analyst as well as by the Director, CFL, is that as per both the reports, the sample was unsafe as synthetic food colouring matter was found in the sampled CC No. 44691/16 Page No. 7/9 DA vs Sanjay Suneja food article exceeding the maximum prescribed standards of 100ppm.
15. Both the report of the Director, CFL, and the report of the Public Analyst clearly mention that synthetic colouring matter present in the sampled food article exceeded the maximum prescribed limit of 100ppm. However, it is pertinent to mention that while the report of Public Analyst mentions the total synthetic colour to be 376.63 ppm as against the permissible limit of 100 ppm, the report of Director, CFL finds the total colour present to be 113.409 ppm as against the permissible limit of 100 ppm. Furthermore, it requires mentioning that the report of Public Analyst is dated 02.11.2010, the complaint was filed before this Court on 01.02.2011 and the second counterpart was sent for analysis on 21.02.2011 to Director, CFL for analysis U/s 13(2) of the PFA Act. The report of Director, CFL is dated 07.03.2011. Therefore, these facts suggest that there was delay of four months in filing of the present complaint even after the receipt of the report of the Public Analyst. Furthermore, the sample commodity which is Bundi Ke Laddoo is perishable commodity having a limited shelf life. In fact, PW4 who was a Food Analyst despite being asked specific questions regarding the variation in the report of Director CFL and PA does not answer the questions put to him and has simply stated that he cannot comment upon the same.
16. The change of texture of the sample commodity, variation in weight, moisture etc. all have a bearing on the analysis of the CC No. 44691/16 Page No. 8/9 DA vs Sanjay Suneja sample commodity if the same is not conducted at the earliest. There is no occasion of any delay on the part of the accused in the present case. However, the variation in the two reports i.e between the Public Analyst and Director, CFL of upto 263 ppm has not been explained even by the Food Officials especially PW4 who is an Expert in the present case.
17. In the present case, it can be said that the two reports were at variation and are divergent with each other and therefore, the sample counterparts taken in the present case cannot be said to the representative. The accused Sanjay Suneja is thereby entitled to benefit of doubt. Accordingly, accused Sanjay Suneja is acquitted for the charges levelled against him.
18. Ordered accordingly.
Announced in the open court on 18.11.2019 (Gurmohina Kaur) ACMM-I (New Delhi), PHC Judge Code: DL0427 CC No. 44691/16 Page No. 9/9 DA vs Sanjay Suneja