Delhi District Court
Food Inspector vs . 1. Durga Prasad on 5 July, 2011
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEWDELHI
Food Inspector Vs. 1. Durga Prasad
Department of PFA S/o Shri Kanhya Lal
Govt. of N.C.T. of Delhi M/s Shri Annapurna Bhandar
A20, Lawrence Road 14A/2, WEA, Channa Market
Industrial Area Karol Bagh, New Delhi 05
New Delhi (Discharged vide order dated 28.05.2009)
R/o: I52, West Patel Nagar
New Delhi
2. Lata Minocha
W/o Shri A.K. Minocha
M/s V.M. Electronics
(Unit - Tasty Food)
9/14, East Patel Nagar
New Delhi
R/o: B8, Inderpuri, New Delhi - 08
(Discharged vide order dated 28.05.2009)
3. Sarfaraz Hussain
S/o Shri Shafat Hussain
M/s D.S. Foods Ltd.
V & PO Raison, Distt. Kullu
R/o: V & PO, Raison, Distt. Kullu
Himachal Pradesh
CC No. 62/04
DA Vs. Durga Prasad etc.
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4. M/s D.S. Foods Ltd.
V & PO, Raison, Distt. Kullu
Himachal Pradesh
Regd. Office: 7/22 Daryaganj, New Delhi 02
5. M/s Dharamapl Satyapal
Regd. Office - 7/22, Ansari Road
Darya Ganj, New Delhi
6. Jayesh D. Desai
S/o Shri D.N. Desai
Regd. Office - 7/22, Ansari Road
Darya Ganj, New Delhi
R/o: 39A, Kamla Nagar, Delhi 07
J U D G M E N T
Serial number of the case : 41/08 Date of the commission of the offence : 29.08.2007 Date of filing of the complaint : 21.04.2008 Name of the Complainant, if any : Shri Suniti Kuamr Gupta,FI Offence complained of or proved : S. 2 (ia) (a) & (m) of the Act of 1954, punishable U/s 16 (1) r/w S. 7 of the Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 04.07.2011
Judgment announced on : 05.07.2011
CC No. 62/04
DA Vs. Durga Prasad etc.
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Brief statement of the reasons for such decision:
1. The present complaint was filed by the Delhi Administration through FI Shri Virender Singh as on 15.03.2004. It is averred therein that on 13.08.2003 at about 6:30 PM, FI Shri Gian Chand purchased a sample of "Carbonated Water", a food article for analysis from Shri Durga Prasad, S/o Shri Kanhya Lal of M/s Shri Annapurna Bhandar, 14A/2, WEA Channa Market, Karol Bagh, New Delhi; stored there for sale and the Durga Prasad was found conducting the business of the same at that time. FI purchased 3 originally sealed bottles of "Carbonated Water" of 750 ml each, bearing identical label declaration, under the supervision and direction of Shri S.K. Malhotra, SDM/LHA. The sample was divided into three equal parts and each counterpart containing the sample was separately packed, fastened and sealed according to PFA Act and Rules. The vendor's signatures were obtained on the LHA slips and on the wrapper of the sample bottles.
Notice in Form VI was given and price was paid against Vendor's Receipt of the same date. Panchnama was prepared at the spot. All the documents prepared by the FI were signed by said Shri Durga Prasad and also by Shri Siya Ram, FA as witness. Efforts were made CC No. 62/04 DA Vs. Durga Prasad etc. ::4::
to join public witnesses but none came forward.
2. It is further revealed in the complaint that one counterpart of the sample bearing LHA Number 12/LHA/44629 was sent to the PA and the remaining two counterparts were deposited with the LHA; all in intact condition. PA found the sample "Misbranded because there was picture of fruits on the label [violation of Rule 42 (2)]. However, the sample conformed to the standards".
3. It is further stated in the complaint that Durga Prasad was the VendorcumProprietor of M/s Shri Annapurna Bhandar (as above) and he was the Incharge and persons responsible for the day to day conduct of the business of the said Shop. The vendor had purchased the sample commodity from M/s V.M. Electronics (Unit - Tasty Food), which is a Proprietorship Concern, having Lata Minocha as its Proprietor.
4. The sample commodity was supplied to M/s V.M. Electronics by M/s D.S. Foods Ltd., which is a Manufacturing Company, having Sarfaraz Hussain as the Nominee. The Brand of the food article is CC No. 62/04 DA Vs. Durga Prasad etc. ::5::
owned by M/s Dharampal Satyapal, having Jayesh Desai as its Nominee. Thereafter, the requisite sanction U/s 20 of the Act was obtained and the present complaint was filed.
5. The accused persons were summoned vide order dated 15.03.2004 and on appearance, none of the accused persons exercised the Right and Option U/s 13 (2) of the Act of 1954.
6. It is pertinent to mention herein that accused nos. 1 & 2 were given the benefit of warranty and both the accused persons stood discharged vide orderd 28.05.2009. Notices U/s 251 Cr. P.C. were framed upon accused nos. 3 to 6 vide order dated 23.09.2009 for the violation of provision of Rule 40 (2) of PFA Rules, 1955, SubClause
(g) of S. 2 (ix) of the Act of 1954, punishable U/s 16 r/w S.7 of the Act, to which the accused persons pleaded not guilty and claimed trial.
7. Four witnesses were examined on behalf of the prosecution i.e. Shri S.K. Malhotra; the then SDM/LHA (PW1), Shri Gian Chand; Food Inspector (PW2), Shri Virender Singh; Food Inspector (PW3) and Shri Siya Ram; Field Assistant (PW4) and PE stood closed vide order dated CC No. 62/04 DA Vs. Durga Prasad etc. ::6::
07.09.2010.
8. Statements of accused persons U/s 313 r/w 281 Cr. P.C. were recorded vide order dated 21.12.2010 wherein, all the accused persons opted to lead evidence in their defence. However, no evidence in defence was led on behalf of any of the accused persons and DE stood closed vide order dated 04.04.2011.
9. File perused. Counsels heard.
10. The accused nos. 1 & 2 were discharged vide order dated 28.05.2009 thereby giving them the benefit of the provision U/s 294 Cr.
P.C. r/w S. 19 (2) of the Act of 1954. Hence, the material on record is to be appreciated for the purpose of adjudging the same in respect of the rest of the accused persons.
11. PA Report dated 09.09.2003 was made the basis for launching the prosecution against the accused persons. The said Report has been exhibited and proved as Ex. PW 1/G. Perusal of the same makes it clear that the sample of Carbonated Water was found conforming to CC No. 62/04 DA Vs. Durga Prasad etc. ::7::
the standards. However, it was adjudged 'misbranded' as the label appearing on the bottles of Carbonated Water was containing picture of fruits. Thus, it is clear that the sample in question was not adulterated at all and the question of the same being misbranded or not; is the subject matter of the controversy.
12. As far as defence of accused no. 5 & 6 is concerned, the Ld. Defence Counsel during the course of arguments relied upon the Case Law cited as 2007 (1) F.A.C. 1 titled as M/s Sonal Food Products & Others Vs. State through FI (PFA) G.N.C.T. of Delhi. In the given context the accused no. 5 i.e. M/s Dharam Pal Satya Pal has been shown as the 'Brand Owner Firm' and accused no. 6 is the Nominee thereof. The Memo of Parties annexed with the Complaint in question is well indicative thereof. It is also worth mentioning that as per the contents of the complaint, nothing sort of role of the accused no. 5 Firm i.e. the 'Brand Owner Firm' has been shown except the Firm being the Owner of the Brand 'M/s Dharam Pal Satya Pal'. The Case Law cited herein above and relied upon in defence; for and on behalf of accused nos. 5 & 6 is squarely applicable in the given context. Hon'ble Mr. Justice Badar Durrez Ahmad has categorically held therein that in case CC No. 62/04 DA Vs. Durga Prasad etc. ::8::
if the brand owner / franchiser does have nothing to do with the manufacture of the article in question, he does not owe any liability for the same merely on the ground that the brand name of the product in question was in its name. In the present complaint, there is not even a remote indication that the accused no. 5 i.e. the 'Brand Owner Firm' was in any way connected with the manufacturing process of the given product. It is also worth mentioning that prosecution has even failed to lead any sort of evidence so as to show as to how the accused no. 5 Firm was connected with / concerned with; the offence in question and as to how the criminal liability could be fastened thereupon. On the other hand, it was categorically admitted by the PW3 FI Shri Virender Singh that during entire investigation, no Bill or Invoice etc. of M/s Dharam Pal Satya Pal could be obtained so as to show its indulgence in the crime in question or involvement in the manufacturing process etc. of the given food article. It would also not be out of context to mention that the afore cited Judgment of our own High Court was in a case of offence of adulteration whereas, the present case (i.e. of misbranding) is even of lesser gravity. Thus, it is clear that no case at all is made out as against the accused nos. 5 & 6.
CC No. 62/04 DA Vs. Durga Prasad etc. ::9::
13. The remaining two accused persons i.e. accused nos. 3 & 4 are the Nominee of the Manufacturing Company and the manufacturing company itself. The charges leveled against them are contained in the Notices U/s 251 Cr. P.C. as framed vide order dated 23.09.2009. it is alleged against them that the sealed bottles of Carbonated Water were containing picture of fruits on the label in violation of Rule 40 of PFA Rules, 1955 and they being the Manufacturing Company / Nominee; were liable for the same in that capacity.
14. Rule 40 of the PFA Rules, 1955 prohibits 'unauthorised use of 'words' showing imitation'. The said provision is being reproduced hereunder: Rule 40 Unauthorised use of words showing imitation prohibited - There shall not be written in the statement or label attached to any package containing any article of food the word "imitation" or any word, or words implying that the article is a substitute for any food, unless the use of the said words is specifically permitted under these Rules. CC No. 62/04 DA Vs. Durga Prasad etc. ::10::
[2] Any fruit syrup, fruit juice, fruit squash, fruit beverage or cordial or crush, which does not contain the prescribed amount of fruit juice, shall not be described as a fruit syrup, fruit juice, fruit squash, fruit beverage or cordial or crush, as the case may be, and shall be described as a synthetic product. Every synthetic product shall be clearly and conspicuously marked on the label as "SYNTHETIC" and no container containing such product shall have a label, whether attached thereto or printed on the wrapper of such container or otherwise, which may lead the consumer into believing that it is a fruit product. Neither the word "FRUIT" shall be used in describing such a product nor shall it be sold under the cover of a label which carries picture of any fruit.
Carbonated Water containing no fruit juice or pulp shall not have a label which leads the consumer into believing that it is a fruit product. CC No. 62/04 DA Vs. Durga Prasad etc. ::11::
15. Now it is to be seen if, the accused persons i.e. accused nos. 3 & 4 had violated the said provision and if so, whether the same has been proved by the prosecution. PW1 Shri S.K. Malhotra, the then SDM/LHA, Delhi Cantt. has categorically admitted in his cross examination conducted as on 16.03.2010 that the label of the sample commodity was containing a declaration to the effect that it was containing no fruit juice. The same is also true w.r.t. the depositions of PW2 FI Shri Gian Chand and PW3 FI Shri Virender Singh. The PA Report Ex. PW 1/G and the document i.e. Form VI Ex. PW 1/B are also affirmative of the same fact. Thus it is very much clear that the label appearing on the sealed bottles of Carbonated Water did contain a declaration to the effect that it was containing no fruit juice. It is also worth mentioning that the prosecution has entirely failed to lead evidence so as to prove any sort of unauthorised used of words showing any type of imitation etc., so as to form violation of the provison Under Rule 40 of the PFA Rules, 1955.
16. Further, the prosecution witnesses (by way of their respective depositions) have failed to convince the Court as to how and why the sample in question was to be treated misbranded; in the given CC No. 62/04 DA Vs. Durga Prasad etc. ::12::
eventuality. The purpose behind the provision Under Rule 40 of PFA Rules, 1955 is to protect the consumer by providing certain safeguards in the form of requirements to be inserted in the label declaration of a given product. The said provision clearly provides that Carbonated Water containing no fruit juice or pulp shall not have a label, which leads the consumer into believing that it was a fruit product. Ex. PW 1/B i.e. Form VI, which is a document prepared at the spot by the concerned FI, itself makes it clear that the label declaration appearing on the sample bottles was very much clear in its contents, so as to apprise the intending purchaser about the nature of the product as well as about the ingredients thereof in their minute details. It is very much reflected in Ex. PW 1/B that not only a declaration to the effect that 'the Carbonated Water was containing no fruits'; was inserted therein, but certain other detailed particulars such as; the same being calorie free, having no added sugar, the list of ingredients etc. etc. were also the part of the declaration, printed on the sample bottles. In case if it was clearly declared as calorie free product, how it could be possible that an intending purchaser would be misled, so as to (mis)treat the same to be a fruit product. The allegations thus, are found to be substanceless.
CC No. 62/04 DA Vs. Durga Prasad etc. ::13::
17. On the basis of findings and discussion made herein above, it is crystal clear that the case tilts in favour of the accused persons and against the prosecution. The accused persons are thus entitled to be acquitted. Ordered accordingly.
Endorsement on the security documents be cancelled. File be consigned to Record Room.
Announced in the open Court (Raghubir Singh) on 05 July, 2011 th ACMMII/ New Delhi CC No. 62/04 DA Vs. Durga Prasad etc.