Delhi District Court
Adesh Bansal vs . State on 20 March, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ADESH BANSAL VS. STATE
CA No. 168/2022
CNR No. DLND01-007966-2022
Adesh Bansal
Shop No. 22, Central Market,
Community Centre, Ashok Vihar,
Phase-I, Delhi-110052 ......Appellant
Versus
State
Through Ld. A.P.P.
Department of Prosecution PFA
Patiala House Court, New Delhi ......Respondent
Date of Institution: 20.09.2022
Date of decision : 20.03.2023
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction dated 26.07.2022 and order on sentence dated 29.07.2022 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.
CA No. 168/20222. The brief facts of the case as per record are that accused was running an establishment in the name of M/s Bansal Corner, Central Market, Ashok Vihar, Phase-I, Delhi-110052. On 04.11.2010, Food Inspector Ms. Usha Kiran alongwith Field Assistant Sh. Manohar Lal and SDM/LHA Sh. Pradeep Baijal visited the said establishment, where accused was found vending the food article i.e. Chocopie, at the said premises. The accused sold for analysis 3 X 336 grams (12 packs) of Chocopie (ready for sale) in original sealed condition having label declaration. The said sample was divided into three parts and packed as per Rules. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, the sample was found to be misbranded. The said analysis was carried out during the period 09.11.2010 to 01.12.2010 and the result was prepared on 08.12.2010.
3. As the sample packaging failed to pass the test, prosecution was launched by Food Inspector by filing complaint with the court. Accused was summoned.
4. Notice of accusation was served upon the accused under violation of Rule 32 (c) (iii), Rule 32 (i) and Rule 64-BB of PFA Act and Rules, Section 14A of PFA act; punishable under Section 16 (1C) and provisions under Section 2 (ix)(k) of PFA Act punishable under Section 16 (1) (a) read with Section 7 of the Act of 1954 in these facts and circumstances.
5. After trial, vide judgment dated 26.07.2022, accused was convicted for the violation of provisions of Section 2 (ix) (k) read with Rule 32 (c) (iii), Rule 32 (i) and Rule 64-BB read with CA No. 168/2022 Adesh Bansal Vs. State 2/10 Section 7 of the PFA Act and PFA Rules, punishable under Section 16 (1) (a) of PFA Act and vide order dated 29.07.2022, accused was directed to undergo simple imprisonment for a period of 3 months and fine of Rs.5,000/-.
6. I have heard the arguments and have perused the Trial Court record.
7. It has been put to the Ld. SPP for the Department that the original label declaration/packaging was never produced nor tendered in evidence in court, neither the photocopy thereof, nor any photograph thereof was tendered in evidence. The entire case of misbranding depends on two documents:
firstly, the report of the Public Analyst, which concludes that the sample is misbranded, i.e. without declaration of importer's address and expiry date is given as 15 months from production and flavour is declared as Vanilla (artificial);
secondly, the Form VI filled by the Food Inspector at the spot, where a description of the print on the box has been given.
8. It was put to the Ld. SPP for the Department that the packaging is document within the meaning of Indian Evidence Act and contents of a document have to be proved by producing the original i.e. primary evidence, unless conditions are satisfied for leading secondary evidence.
9. In the present case, it is not the case of the prosecution that the original is lost or not easily movable or not in the possession of the Department or a person from whom it CA No. 168/2022 Adesh Bansal Vs. State 3/10 can be summoned. Therefore, in these circumstances, could the court have, in the absence of the original document, concluded that the label declaration on the original packaging (never produced before the court) was defective and in contravention of the rules.
10. Ld. SPP has vehemently tried to argue that the contents of the Form VI are sufficient to inform the court about the contents of the label declaration as it is a document prepared by a Public Servant in performance of the official duty and it is presumed that he has filled the Form VI correclty.
11. I am not in agreement with the submission made by the Ld. SPP for the Department for the following reasons:
12. firstly, the Form VI is mandated to be filled under Rule 12 of the PFA Rules, which reads as follows:
12. [Notice of intention to take sample for analysis:-
When a Food Inspector takes a sample of article for the purpose ofanalysis, he shall give notice of his intention to do so in writing in Form VI, then and there, to the person from whom he takes thesample and simultaneously, by appropriate means, also to thepersons if any, whose name, address and other particulars have beendisclosed under section 14-A of the Act;] [Provided that in case where a food inspestor draws asample from an open container, he shall also draw a sample from thecontainer in original condition of the same article, bearing the samedeclaration if such container is available, and intimate this fact tothe Public Analyst.]
13. Therefore, the language of Rule 12 suggests that the the purpose of filling this form is, only, to inform the vendor that the Food Inspector is taking a particular sample for the purposes of analysis. Further, at the most, the Rule requires sufficient CA No. 168/2022 Adesh Bansal Vs. State 4/10 description of the food article, so that it can be properly identified. It would be relevant for propriety food article where there is no packaging with the declaration of contents. However, I am unable to find anywhere in the language of Rule 12 that the contents of the packing have to be reduced in writing by the Food Inspector in entirety. There is no such obligation on the Food Inspector. Further, the proforma used for the purposes of giving notice (of Form VI) under Rule 12 nowhere requires that the contents of label declaration be reduced in writing in the form. Even otherwise, the possibility of any mistake can never be ruled out in law and it is for the courts to see from the original or secondary evidence, if and where permissible, as to what are the contents of the label declaration. It seems that it is for this very reason that in the subsequent law i.e. The Food Safety and Standards Act the requirement of Public Analyst, analysing the sample for defects in label declaration has been done away with by way of separate amendment.
14. Therefore, the mischief rule of interpretation should be made applicable to see what was the mischief that the legislature has removed by way of subsequent amendment i.e. the label declaration can be viewed by the court itself to conclude whether it is in accordance with law or not and the Public Analyst is not required to carry out any scientific analysis for the said purpose and therefore, the Public Analyst or CFL is not a competent authority to give opinion on the said aspect. The provision being beneficial to the accused, the principle must be applied to all cases, inasmuch as, the said principle is in CA No. 168/2022 Adesh Bansal Vs. State 5/10 consonance with the general law of evidence, as contained in Section 64 and 65 of the Evidence Act.
15. The Evidence Act mandates under Section 64 that the document must be proved by primary evidence and the exceptions to the said rules are contained in Section 65 of the Evidence Act. Certain pre conditions must exist before the secondary evidence can be taken. Section 65 reads as follows:
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is CA No. 168/2022 Adesh Bansal Vs. State 6/10 admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
16. The aforesaid provisions of the Evidence Act were considered by the Hon'ble Supreme Court of India in decision in Smt. J. Yashoda Vs. Smt. K. Shobha Rani, Appeal (civil) 2060 of 2007 decided on 19.04.2007. The relevant portion thereof is quoted for ease of reference:
Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before CA No. 168/2022 Adesh Bansal Vs. State 7/10 secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was CA No. 168/2022 Adesh Bansal Vs. State 8/10 however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
17. Therefore, in these circumstances, clearly, the conviction order cannot be upheld in the present case, as the same is based on no evidence i.e. no primary evidence and there being no rationale for production of secondary evidence.
18. At this stage, Ld. SPP submits that an opportunity may be given to the Department to lead further evidence in the matter as the original sample seized still may be available and can always be produced even at this stge for the perusal of the court.
19. Considering his request, the present matter is being remanded back to the Trial Court for recording further evidence CA No. 168/2022 Adesh Bansal Vs. State 9/10 in the matter, keeping in view the observations made by the Court.
20. List this matter before the Ld. CMM, PHC, New Delhi on 10.05.2023 for assignment of the case to the concerned Magistrate. TCR be returned.
21. Appeal file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla) on 20.03.2023 ASJ-04, New Delhi CA No. 168/2022 Adesh Bansal Vs. State 10/10