Delhi District Court
Delhi Administration / Food Inspector vs A-1) Sh. Arun Tandon on 28 April, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1025/08 (42844/16)
Unique Case ID No. 02403R0979172008
Date of Institution: 20.11.2008
Date of reserving judgement: 22.03.2017
Date of pronouncement: 28.04.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Arun Tandon
S/o. Sh. Dwarka Parshad Tandon
R/o. C-302, Vasundhara Apartment,
Sector-6, Plot no.16,
Dwarka, Delhi.
A-2) M/s Piramyd Retail Limited
Shop N. Park, Plot no.2, B-Block
Community Centre, Shalimar Bagh,
Delhi-110088
A-3) Sh. Puneet Jain
S/o. Sh. Parmod Kumar Jain
R/o D-117, Vivek Vihar,
Delhi-110095. ... Accused persons
CC No. 1025/08 Page 1 of 37
JUDGEMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), wherein it is alleged that the accused persons had sold misbranded food in violation of Section 2(ix)(k) of PFA Act read with Rules 32(b), 32(e), 32(i) and 36(2)(a) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act.
2. As per the complaint, on 27.05.2008, the food officials including Food Inspector (FI) Gian Chand and Field Assistant (FA) S.N. Jindal under the supervision of Local Health Authority (LHA)/SDM Sh. B.S. Thakur reached at the premises of M/s. Indiabulls Mega Store (which was a unit of accused no. 2 company) at Shop N. Park, Plot no. 2, B-Block, Community Centre, Shalimar Bagh, Delhi, where the accused no. 1 in the capacity of its vendor cum nominee was found conducting the business of various food articles, including 'Mix Dal', which was found stored for sale for human consumption, lying in sealed poly packets of 500 gms. each bearing identical label declaration. The food officials lifted a sample of the said food article consisting of three such sealed packets of Mix Dal ready for sale. It was divided into three parts as per procedure prescribed under the PFA Act and Rules and separately packed and sealed. Necessary documents were prepared at the spot including the vendor's receipt and panchanama. Price of the sample was paid to the vendor. One counterpart of the sample was deposited with the Public Analyst (PA) and remaining two counterparts were deposited with SDM/LHA. Vide report dated 18.06.2008, the PA reported that the article was conforming to the CC No. 1025/08 Page 2 of 37 standards, yet the sample was found misbranded being in violation of Rules 32(b), 32(e) and 32(i) as the commodity was without declaration of ingredients, without declaration of batch number and the language of best before date was not as per rules. It was also found that the size of the label was only 14.1% of the size of the packet and therefore in violation of Rule 36(2)(a). Based on the report of PA, investigation was carried out by the Food Inspector as per the instructions of the SDM/LHA. It was found that the product had been procured by accused no. 2 company from M/s Vandit Enterprises which was a proprietorship concern of accused no. 3. Hence, after obtaining due sanction of the Director, PFA, the complaint was filed against all the accused persons for violation of the Section 2(ix)(k) read with Rules 32(b), 32(e), 32(i) and 36(2)(a) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act for selling a misbranded food.
3. Since the complaint was filed by a public servant in writing, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 20.11.2008.
4. Accused no. 2 company never put in its appearance through any person in terms of Section 305 CrPC and it was therefore proceeded against ex-parte vide order dated 08.05.2009.
5. Based on the report of PA, notice of accusation under section 251 CrPC was framed against accused no. 1 and 3 vide order dated 26.08.2009, for violation of section 2(ix)(k) of PFA Act read with Rules 32(b), 32(e), 32(i) and 36(2)(a) of PFA Rules leading to commission of CC No. 1025/08 Page 3 of 37 offence under Section 7/16(1)(a) of PFA Act, to which they pleaded not guilty and claimed trial.
6. At the trial, the prosecution examined three witnesses in support of its case. PW-1 FI Gian Chand, PW-2 B.S. Thakur (SDM/LHA) and PW-3 FA S.N. Jindal were part of the team that had visited the premises of accused no. 2 where accused no. 1 was the vendor and lifted the sample of Mix Dal lying in sealed packets of 500 gms each. These witnesses deposed about the sample proceedings conducted by them on 27.05.2008 and narrated the steps undertaken by them, including disclosing their identity, lifting of three sealed packets of 500 gms each, dividing the same in three counterparts by putting one sealed packet as one counterpart and separately packing them. A sum of Rs. 73.50/- was paid to the vendor as price of the sample vide vendor's receipt Ex. PW-1/A and cash memo Ex. PW-1/A1. Notice in Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C were prepared at the spot. Based on the disclosure of accused no. 1, notice under section 14A of PFA Act Ex. PW-1/D-1 was prepared addressed to the proprietorship concern of accused no.2. Raid Report Ex. PW-1/D was also prepared. On the next working day, one counterpart was deposited with the PA vide receipt Ex. PW-1/E and remaining two counterparts were deposited with SDM/LHA vide receipt Ex. PW-1/F. PA report Ex. PW- 1/G was received opining the sample to be misbranded. Investigation was then conduced by PW-1 who received back the notice under Section 14A Ex. PW-1/H-1 undelivered vide Ex. PW-1/H. He sent letter Ex. PW-1/I to accused no. 1 vendor and received reply Ex. PW-1/I-1 from the store manager of accused no. 2 company informing that accused no. 1 was its CC No. 1025/08 Page 4 of 37 nominee. Fresh address of accused no. 3 was also disclosed in the said letter. PW-1 sent letter Ex. PW-1/J to the PFA office and received reply Ex. PW-1/J-1. He then sent a letter Ex. PW-1/K to the STO and received reply. Letter Ex. PW-1/K-1 was sent to accused no. 3 who furnished his reply Ex. PW-1/K-2 wherein he confirmed the sale of the sampled commodity to accused no. 2 vide his bill no. 209 dated 12.05.2008. After completion of investigation, consent for prosecution Ex. PW-1/L was taken from the Director, PFA, after which the complaint Ex. PW-1/M was filed and intimation letter Ex. PW-1/N was sent to the accused persons through post.
7. These witnesses were duly cross examined by the respective Ld. Defence Counsel for the accused no. 1 and 3, though accused no. 2 company remained ex-parte throughout. While under cross examination on behalf of accused no.1, the witnesses accepted that the food article was lying in originally sealed condition and that the name of the packer (accused no. 3 herein) was duly mentioned on the label. While under cross examination on behalf of accused no. 3, they accepted that earlier, there was a policy of the department to issue warning for first violation of Rule 32, yet informed that the said policy was existence only till 14.09.2007. PW-1 informed that the supply of the commodity had been accepted by accused no. 3 in his letter Ex. PW-1/K-2.
8. Statements of the accused no. 1 and 3 were recorded under section 313 CrPC on 08.04.2015 wherein they denied the allegations and pleaded innocence. Accused no. 1 accepted the proceedings dated 27.05.2008 but CC No. 1025/08 Page 5 of 37 claimed that no payment was made to him and denied that efforts were made to join public witnesses. He alleged that the FI had committed irregularities to take the sample as the bags were required to be opened and put into proper containers. He also stated that the documents were not read over or explained to him nor any copy was given to him. He finally asserted that the sample was given in sealed condition in the manner he purchased from the supplier. On the other hand, accused no.3 expressed ignorance about the sample proceedings, though disputed the PA report. He claimed that he used all the due diligence in packing and labelling the product to the best of his knowledge. They however did not lead any evidence in defence despite opportunity.
9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to prove its case against all the accused persons beyond reasonable doubt, as all the witnesses have supported its case and there is no condition in their testimony. It is submitted that the accused persons have failed to rebut the findings as given by the PA or to prove their defences that there was sufficient compliance of rules.
10. On the other hand, the respective Ld. Defence Counsel for the accused no. 1 and 3 have submitted that the prosecution case fails on technical grounds, though no arguments have been advanced on behalf of accused no. 2 company that remained ex-parte. Ld. Counsel for accused no. 1 has claimed the benefit of warranty under section 19(2) PFA Act on the ground that the article had been purchased from accused no. 3 against a proper bill and the food article was sold to the FI in the same sealed CC No. 1025/08 Page 6 of 37 condition as purchased. On the other hand, Ld. Counsel for accused no. 3 has argued that there was no violation of PFA Rules. It is contended that the bag was transparent bag and when the contents were visible through it, no customer was prejudiced if individual ingredients of mix dal were not specifically mentioned. It is then submitted that Rule 32(e) has already been declared ultra vires in the judgement Dwarka Nath v. MCD [AIR 1971 SC 1844] and thus, no prosecution can lie under it. It is additionally pointed out that batch number in the form of bar-coding was already there on the label. It is also submitted that there is no violation of Rule 32(i) as the date of packing had been duly mentioned and instead of writing 'best before', the packer mentioned 'for good taste', which Ld. Counsel submits, would amount to substantial compliance and would give sufficient information to the consumer. It is submitted that the PA report is silent if the area of both the stickers on the packet was added to determine the total percentage of label so as to cause violation and also contended that 'principal display area' is different from 'label' the size of which was given by the PA. It is argued that the accused was prevented from seeking clarifications from the PA as she was never examined by the prosecution. It is also claimed that in any case, no prejudice was caused to any customer for such violation. It is also pointed out that earlier, there was a policy of the department which required only a warning to be issued in case of first violation of Rule 32, the benefit of which should be given to the accused in this case as well.
CC No. 1025/08 Page 7 of 3711. I have heard the arguments advanced by Ld. SPP for the complainant and the respective Ld. Defence Counsel for the accused no.1 and 3 and have carefully perused the material available on record.
12. In a criminal trial, the burden is on the complainant / prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by leading cogent and trustworthy evidence.
13. To begin with, it is seen that the accused persons have not seriously disputed the factum of lifting of sample from the vendor accused no. 1 on 27.05.2008. It is not their case that no such proceedings took place or that no such food article was exposed / stored / meant for sale for human consumption. All the PWs have deposed about the sample proceedings and have narrated the steps undertaken by them in detail and in corroboration to each other. It is not disputed that the food officials had lifted three packets of 500 gms each of food article bearing identical label declaration. All the PWs, who were a part of the team that had lifted the sample, have deposed in corroboration of each other. No contradiction at all can be seen in their testimony that could go to the root of the matter so as to disbelieve them. They all deposed about compliance of rules while lifting the sample. All the witnesses deposed that attempt was made to join public persons as witnesses but none had joined. There is nothing to disbelieve them or to shake their credibility.
CC No. 1025/08 Page 8 of 3714. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. There is nothing in the cross-examination of the witnesses which could shake their credibility.
15. It is then not in dispute that the premises belonged to accused no.2 company, of which accused no. 1 was the vendor at the time of lifting of the sample who also happened to be the nominee of the company as appointed under Section 17 of PFA Act. No stand has been taken by accused no. 1 that he was not the vendor-cum-nominee or that some other person was the vendor or nominee.
CC No. 1025/08 Page 9 of 3716. It is pertinent to note that the accused no. 3 has never denied and rather categorically accepted the fact that the food article had been supplied by him to the accused no. 2 company. It is also an accepted position that the food article had been manufactured / processed and packed by accused no. 3 in the capacity of proprietor of M/s Vandit Enterprises. The name of the said business concern appears on the label of the food article. It is nowhere the stand of accused no. 3 that no such article was manufactured / packed/ sold by him, or that the sampled commodity was a duplicate / spurious product being sold under his name in the market, or that some other person was the proprietor of M/s Vandit Enterprises or that the accused no. 1 or 2 had purchased the food article from some other supplier or that the food article is not the one supplied through the bill dated 12.05.2008 furnished by accused no.1. It is also clear that the food article was being sold in originally sealed condition as supplied by accused no. 3 to accused no. 2.
17. In such a position, before proceeding ahead, it would be clear that as far as accused no. 1 and 2 are concerned, they shall be protected by the concept of warranty as envisaged in Section 19(2) of PFA Act. As per this provision, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he had purchased the food article from any manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he had sold it in the same state as he purchased it.
CC No. 1025/08 Page 10 of 3718. As per section 14 of PFA Act, every manufacturer or distributor or dealer of food article is required to give a warranty in writing in the prescribed form to the vendor about the nature and quality of such food article. The proviso to section 14, as inserted in the year 1976, lays down that a bill, cash memorandum or invoice in respect of sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer.
19. In the present case, on the day of sampling itself, accused no. 1 informed the FI by making endorsement on Ex. PW-1/B prepared at the spot, to the effect that sealed poly bags of mix dal had been purchased from Vandit Enterprises vide bill no. 209, Book no.3, dated 12.05.2008. A copy of the bill Mark-X was handed over to the FI on the same day. As already stated, accused no. 3 in his reply dated 29.07.2008 Ex. PW-1/K-2 categorically admitted the fact that he had sold the sampled commodity to accused no. 2 vide said bill dated 12.05.2008. There is no allegation of furnishing any forged or fabricated bill. Therefore, in view of the fact that the accused no. 1 and 2 had purchased the food article from accused no. 3 against a proper bill / invoice, which is deemed to be a warranty in writing as per the proviso to section 14 of PFA Act, and had sold the same to the FI in the originally sealed condition in which it was purchased, the accused no. 1 and 2 shall be protected and would be squarely covered by warranty under section 19(2) PFA Act. No prosecution would lie against them. For that matter, there was no reason to even launch prosecution CC No. 1025/08 Page 11 of 37 against them because the FI was already aware of this factual position and he never pointed out any infirmity in the bill produced by accused no. 1 and 2, the genuineness of which was already accepted by accused no. 3.
20. As far as accused no. 3 is concerned, he has not questioned the analytical values of the PA report Ex. PW-1/G on the basis of which the prosecution was launched against him. It is nowhere his stand that the said report is wrong or any incorrect method had been applied by the PA (though the opinion given by the PA as to misbranding of the food article has been questioned), primarily because the said report is in his favour in as much as the sample was found conforming to the prescribed standards as to its nature, quality and substance.
21. The court does not find itself in agreement with the contention of Ld. Defence Counsel that the report of PA cannot be relied upon as she has not been examined in the court. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC read with section 13(5) of PFA Act. As per section 13(5) of PFA Act, "Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act..."
22. But that does not mean that such reports cannot be questioned on any point on which they are silent. If an accused wishes such reports to be CC No. 1025/08 Page 12 of 37 clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross-examine the analyst. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA (or even CFL), without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, if the accused was genuinely feeling aggrieved by mentioning or non-mentioning of any details in the PA report, there is no reason why he did not opt to cross-examine the PA and ask her about anything on which the report is silent. The PA maintains all the details of the tests conducted, calculations made, values derived and methods used on the basis of which final results are given as mentioned in its report. The report on record shows only the final figures as given in the format prescribed under the PFA Rules. It does not contain all the details of the entire analysis from beginning to end and such data can always be called by the accused if desired. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the PA when this opportunity was available to him, and then to raise the issue at final hearing on something on which the final report may be silent.
23. The said issue was put at rest by the 5-Judge Constitution Bench of the Hon'ble Supreme Court of India long back, in the authoritative judgement titled as Mangaldas Raghavji Ruparel v. State of Maharashtra [(1965)2 SCR 894, AIR 1966 SC 128]. The following CC No. 1025/08 Page 13 of 37 extract is worth noting [It may be noted that section 510 CrPC referred to in this judgement pertains to the CrPC of 1898 (as amended in 1955), a part of which is now Section 293 in the currently applicable CrPC of 1973]:
"As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case. Mr Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts. Mr Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is "I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows." This would show that what was done under the supervision of the Public Analyst and that should be regarded as quite sufficient.
...
This provision clearly makes the report admissible in evidence. What value is to be attached to such report must necessarily be for the court of fact which has to consider it. Sub-section (2) of Section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity CC No. 1025/08 Page 14 of 37 taken under Section 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under sub- section (5) but is given finality of the facts contained therein by the proviso to that sub-section. It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is to act on the certificate or not, as it thinks fit. ...
Sub-section (1) of Section 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-section (2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-section (2) of Section 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may be we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst. Insofar as the report of the Public Analyst is concerned we have the provisions of Section 13 of the Act."
24. In such a factual matrix, the court has to see if there is violation of provisions of the PFA Act and Rules. In this regard, the relevant portions of the following statutory provisions (PFA Act and PFA Rules) are important to be taken a note of:
Section 16. Penalties- (1) Subject to the provisions of sub-section (1-A), if any person-
(a) whether by himself or any other person on his behalf, ...
sells . . . any article of food-
CC No. 1025/08 Page 15 of 37(i) which is adulterated within the meaning of sub-clause
(m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section . . .
Section 2. Definitions-
(ix) 'misbranded'- an article of food shall be deemed to be misbranded-
(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;
(x) "package" means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing other which an article of food is placed or packed.
Rule 2: Definitions.-
(t) "prepackaged" means packaged or made up in advance in a container, ready for offer to the consumer.
(q) - label means a display of written, graphic, perforated, stamped, tag, brand, mark, pictorial or other descriptive matter, printed, stenciled, marked, embossed or impressed on, or attached to, a container, cover, lid or crown of any food package.
(u) - principal display panel means that part of a label which is intended or is likely to be displayed, and presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity contained in the package.
Rule 32. Every prepackaged food to carry a label-
(b) Labelling of prepackaged foods.- Every package of food shall carry the following information on the label.
(1) The name of the food.- . . .
(2) List of ingredients.- . . .
(e) Lot / Code / Batch Identification.- A Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution., shall be given on the label.CC No. 1025/08 Page 16 of 37
...
(i) The month and year in capital letters upto which the product is best for consumption, in the following manner, namely-
"..."
Rule 36: Principal display panel, its area, size and letter, etc.-
(1) Principal display panel means that part of a label which is intended or is likely to be displayed, presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity of food contained in the package.
(2) The area of the principal display panel shall not be less than-
(a) in the case of a rectangular container, forty percent of the product of height and width of the panel of such container having the largest area;
(b) in case of cylindrical or nearly cylindrical, round or nearly round, oval or nearly oval container, twenty percent of the product of the height and average circumference of such container; or
(c) in the case of a container of any other shape, twenty percent of the total surface area of the container except where there is label, securely affixed to the container, such label shall give a surface area of not less than ten percent of the total surface area of the container."
25. In my considered view, the poly-packets as in the present case would definitely fall within the meaning of "package" as per section 2(x) of PFA Act. As per this definition, even a wrapper or 'other thing' in which an article of food is placed or packed is included. Since the food article in question was placed and packed in the poly packet, duly closed CC No. 1025/08 Page 17 of 37 and safely packed by sealing the same, the final packet would definitely be a 'package' under the Act.
26. Further, the said package can be conveniently be called as a prepackaged product within the meaning of Rule 2(t) of the PFA Rules. When an article is packaged or made up in advance and is ready to offer to the consumer, it would be a prepackaged product. It is clear and rather an admitted position that the food article in question had been made up in advance and was ready to be offered to the consumer. The poly packet is a 'container' in which such a commodity is contained and packed. There is nothing for the court to conclude that such poly packet cannot be called as 'container' for the purposes of the Act. Going by the literal meaning and interpretation, since these poly-packets contained the food article, they can be said to be 'containers'. It is not that the food article was further to be put in some other container, in case the poly packets are not to be treated as containers. The fact that there were all other label declarations on the packet like name of packer, date of packing, MRP of individual packet, net weight, etc. would show that the individual packets were meant for retail sale.
27. Then, there is nothing to show that the food article was not yet ready for offer to the consumer. The witnesses on record have categorically deposed that the food article was lying at the spot for sale. They were actually sold to the FI for analysis, which would be covered within the meaning of "sale" as per section 2(xiii) of the PFA Act. It is nowhere the stand of the accused persons that the packets were not ready CC No. 1025/08 Page 18 of 37 for sale or were yet to be stamped further. No such stand was taken by the accused persons in their statements under section 313 CrPC. Therefore, the food article can be said to be a prepackaged article.
28. Once it is so established that the food article was a prepackaged food, there is no reason why the Packing and Labelling standards, as prescribed in Part-VII of the PFA Rules, would not apply to it. Rule 32 mandates all the prepackaged food articles to carry specific informations and declarations on their labels in the specific language, mode and manner. When these rules are to apply to all prepackaged food, there is no reason why such rules shall not apply to the prepackaged food article in question.
29. The situation might have been different if the food article is otherwise offered for sale to the consumer in loose condition and it is packed only after its actual purchase by a consumer only for the purpose of its being carried away. Therefore, if the commodity is being sold and has been offered for sale in loose condition (and not made up in advance, as per Rule 2(t) of PFA Rules) and purchased in such a condition, then mere fact that the purchased commodity is handed over to the consumer in a packet after closing or even sealing the container, such a packet would not fall within the meaning of prepackaged product. As a result, the labelling or packaging regulations may not be applicable to such a packet which is not made up in advance. But in the present case, it is not so. It is nowhere the case of the accused persons that the Mix Dal was being sold in loose condition or that they used to pack/seal/close the same after being CC No. 1025/08 Page 19 of 37 purchased by the consumer. No such suggestion was given to any PW nor any such defence was taken by the accused persons in their statements under section 313 CrPC. Therefore, if the accused persons had already packed the food article in advance and were offering the same for sale in such prepackaged condition, they were required to comply with the packaging and labelling rules, including Rules 32 and 36.
30. Is then seen that the accused no.3 has not questioned the observation of the PA that the sample was without declaration of the list of ingredients. The label declarations had been reproduced by the FI on Form VI Ex. PW- 1/B. It is nowhere the stand of the accused that the said observations were wrong, or that some other details had been mentioned on the label which were not reproduced by the FI, or that the said declarations had been wrongly or incompletely reproduced by the FI. No dispute has been raised by the accused to the fact that all the packets had identical label declarations. No attempt had been made by accused to summon the other counterparts from the office of LHA, if he was having any issues with respect to the counterparts and the declarations thereupon.
31. A perusal of the label declarations on Ex. PW-1/B would show that there was declaration of name of food article as Mix Dal thereupon in compliance of Rule 32(b)(1), but there was no declaration of ingredients of the said Mix Dal in the form of a list required by Rule 32(b)(2). The provisions of this Rule requires that every package of food sold as a mixture or combination of any ingredient, has to be mentioned in a list, in descending order in respect of their composition by weight or volume.
CC No. 1025/08 Page 20 of 3732. It is therefore clear that by omitting to mention the ingredients of Mix Dal, the accused no. 3 violated Rule 32(b)(2). There is no merit in the stand of the Ld. Counsel that no prejudice was caused to any consumer as the contents of the transparent packet were visible. Transparent packets have never been excluded from purview of Rule 32(b). Even if it is accepted that a consumer would be able to see the contents of the Mix Dal, he would never be able to ascertain, even upon seeing the content through transparent packet, as to in what composition the said mixture had been prepared. The consumer would never be able to guess, in the absence of the list of ingredients, as to in what weight or volume or quantity or proportion the specific ingredients of individual Dals had been put to prepare Mix Dal. Therefore, by omitting to mention the list of ingredients, the accused no. 3 committed violation of Rule 32(b) thereby resulting in manufacturing/selling a misbranded food.
33. As far as Rule 32(e) is concerned, the defence has relied upon the judgement titled as Dwarka Nath v. MCD [1972 FAC 1 (SC)] wherein the Hon'ble Supreme Court of India had struck down the said provision being beyond the rule making power under section 23(1) of the PFA Act. I have gone through the said judgement as well as the applicable rules. However, in my considered view, this judgement would not apply to the present case.
34. In the said judgement, the decisive factors as observed by the Hon'ble Court can be noticed as under:
CC No. 1025/08 Page 21 of 37(a) There was no definition of the expression "batch number" or "code number" in the Act or in the Rules. No affidavit had been filed on behalf of respondent to show whether any technical meaning in the trade was given to these expressions and the matter was based only on the evidence of the Food Inspector.
(b) No notification issued by the Central Government had been brought to the notice of the Hon'ble court with respect to the food article in question showing the applicability of Section 23(1)(c) of PFA Act.
(c) As per Rule 32(e) [as it is existed at that time (the said judgement was passed on 23.04.1971)], "batch number or code number", had to be mentioned in Hindi or English or numericals or alphabets or in combination, on every label.
35. In view of this factual position, the Hon'ble Supreme Court held that:
(a) There was nothing in clauses (c), (f) and (g) of section 23(1) of PFA Act which would give power to the Central Government to frame rules requiring the batch number or code number to be given on the labels, particularly there was no notification brought to the notice of the Hon'ble Court under clause (c).
(b) Clause (d) of section 23(1) would also not be applicable as there was no rational or remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.CC No. 1025/08 Page 22 of 37
(c) As there is no definition of the expression "batch number" or "code number" either in the Act or the Rules, and it was admitted that even where batch or code number was to be given, there was no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food had to be utilised, used or consumed, merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. Hence, Rule 32(e) was held to be beyond the rule-making power even under section 25(1)(d) of the Act.
36. Ld. Defence Counsel has also pointed out that relying upon the said judgement of Dwarka Nath v. MCD, Hon'ble High Court of Delhi has also upheld the acquittal of an accused in Criminal LP no. 17/2009 filed against the judgement dated 24.01.2009 of the Ld. ASJ-01 (South), Patiala House Courts, New Delhi in Criminal Appeal no. 34/08. It is submitted that against the said judgement of the Hon'ble High Court of Delhi, the State went in appeal before the Hon'ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/11] and vide order dated 27.08.2015, the Hon'ble Supreme Court reiterated that since Rule 32(e) of PFA Act had already been declared ultra vires of the constitution, no case could lie in the matter.
37. A careful study of the position would however, negate the stand taken by the Ld. Defence Counsel. It is to be noted that there has been a lot of difference in the language of Rule 32(e) as it existed at the time CC No. 1025/08 Page 23 of 37 when the judgement of Dwarka Nath v. MCD was passed and that as it existed on the day when the sample was lifted and as it existed till the PFA Act was repealed and substituted by new Food Safety and Standards Act, 2006.
38. It is to be noted that after 1971, when the judgement of Dwarka Nath v. MCD was passed holding Rule 32(e) as ultra vires of the Constitution, the said rule was amended. This Rule 32 was last amended in 2006 and clauses (d), (e), (f), (g) and (h) of Rule 32 were substituted by G.S.R. 491(E) dated 21.08.2006 (w.e.f 20.02.2008) as corrected by G.S.R. 518(E) dated 31.07.2007.
39. At the time of Dwarka Nath v. MCD judgement, Rule 32(e) read as: "a batch number or code number either in Hindi or English numericals or alphabets or in combination".
40. Rule 32(e) as it is existed prior to the G.S.R. 491(E) read as: "a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words "Batch No.", or "Batch, or Lot No.", or "Lot" or any distinguishing prefix."
41. Rule 32(e) as it stood on the day of sampling in the present case read as: "Lot/Code/Batch Identification- A Batch number or Code number or Lot number which is a mark of identification by which the food can be CC No. 1025/08 Page 24 of 37 traced in the manufacture and identified in the distribution, shall be given on the label".
42. An apparent distinction, which can be seen in the language of Rule 32(e) as it existed earlier and its existed at the time of sampling, is that the purpose of giving batch number / code number / lot number has been specified, that is to identify the food article by any identification mark so as to enable it to be traced in the manufacturing and distribution process. Such meaning / purpose was earlier missing from the language of Rule 32(e).
43. Therefore, in view of the present language of Rule 32(e), it cannot be said that there is no definition of these expressions in the Act or in the Rules so as to reveal their purpose, as observed by the Hon'ble Supreme Court of India in Dwarka Nath v. MCD decided in 1971. The purpose of mentioning such batch number / code number/ lot number has now been made clear by the legislature.
44. It is also to be seen that the Hon'ble Supreme Court of India had held Rule 32(e) as it existed at that time, ultra vires. Thus, upon passing of the said judgement, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language at its exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. There is force in the stand of Ld. SPP for the complainant that Rule 32(e) which had been declared ultra CC No. 1025/08 Page 25 of 37 vires, has now been completely changed and the modified Rule 32(e) as it existed when the sample was lifted has never been declared unconstitutional by any court of law. The said provision inserted / substituted by G.S.R. 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.
45. In view of this position, judgement in Dwarka Nath v. MCD would not help the accused persons. For that matter, even the order dated 27.08.2015 passed by the Hon'ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/2011] would not be applicable, because that order also pertained to a sample lifted on 23.08.1993 (copy of the pleadings to this effect has been shown by the Ld. SPP). Since Rule 32(e) stood amended and substituted in 2006 /2007, the said Rule would be applicable to the present case where the sample was lifted on 27.05.2008. The said rule has not been declared unconstitutional or ultra virus and is therefore binding.
46. However, the court still feels that benefit of doubt can be given to the accused no. 3 in this regard, due to the fact that a bar-coding was there on the label along with a unique number. Even as per the label declarations reproduced by the FI on Ex. PW-1/B, a number "00018718" had been mentioned below the bar-coding. In such position, there is nothing to show that this unique number cannot be called as batch number or code number or lot number as per the definition of Rule 32(e) to be a mark of identification by which the food can be traced in the manufacture and identified in the distribution. The number as mentioned on the label CC No. 1025/08 Page 26 of 37 can be thus accepted as a batch number / code number / lot number as defined in this Rule, unless there is any contrary opinion / material. There is nothing for the court on the basis of which it may hold that the number mentioned on the label along with the bar-coding would not qualify to be called as batch number / code number as per Rule 32(e). Therefore, the material is not sufficient to hold violation of Rule 32(e) and the accused no. 3 is entitled to be given the benefit of doubt on this count.
47. Moving ahead, the best before date as mentioned on the label is apparently not as per the language and manner prescribed under Rule 32(i). This rule prescribes specific manner in which the best before date has to be mentioned, and in capital letters. The manufacturer is required to use the prescribed words 'best before' along with the date / period from manufacturing / packaging. In the present case, the accused gave the date of packing as 28.04.2008 but mentioned the best before date as "for good taste use within three months date of packing". The incriminating factor here is the use of words "for good taste" instead of "best before" in capital letters.
48. It cannot be said that no consumer would be misled by the words "for good taste" instead of "best before", as contended by Ld. Defence Counsel. Though it is correct that date of packing had been given on the label, it still cannot be said that complete and sufficient information in compliance of PFA Rules had been given by the accused. Apparently and admittedly, the exact language prescribed by Rule 32(i) and the manner in which it had to be there, has not been used by the accused. As such, the CC No. 1025/08 Page 27 of 37 accused has not explained as to what was the need for him to change the language so prescribed, if it is claimed that by using different language, he substantially complied with the provisions. If that was so, there was no need to cause damage to the manner and language prescribed under the rules.
49. Technically and strictly speaking, the words "for good taste" and "best before" are not giving the same meaning. Taste is one of many characteristics of a food article. A food article may continue to taste good even after expiry of the best before date (which is different from the expiry date after which the food becomes unfit for consumption). Similarly, even if there is change in taste of a food article, it may still remain fit and best for use till a specified time. Therefore, the declaration given by the accused only reveals the period within which the food article may 'taste' good and there is no date prescribed within which the food article would still remain best for use. Though it might be argued that by going through the declarations, a customer would not ordinarily buy the food article after three months of packing, yet such an argument could be considered only as a mitigating factor if the matter results in conviction so as to award a lesser sentence. But strictly speaking, there is an apparent violation of Rule 32(i) which does not give a liberty to the manufacturers / packers to use any language of their choice till the time it gives the same or similar meaning.
50. It also cannot be said that the accused was not aware of the language required to be used or did so negligently or under a fair belief that he was CC No. 1025/08 Page 28 of 37 complying with the rules. This is because all other labelling provisions have been duly complied with by him, including mentioning of the weight, date of packing, MRP, name of the food article, name of the manufacturer / packer etc. This would show that the accused was well aware of the labelling and packaging standards . There was no reason for him to change or cause damage to the language specifically prescribed under the Rules for mentioning the best before date. Therefore, Rule 32(i) stood violated.
51. As far as Rule 36(2)(a) is concerned, the case of the complainant is based on the report of the PA who opined the sample to in violation of Rule 36(2)(a) of PFA Rules as the label was found to be only 14.1% of the size of the packet. As per this provision, in case of a rectangular container (as in this case, which fact has never been disputed), the area of the 'Principal display panel', shall not be less than forty per cent of the product of height and width of the panel of such container having the largest area. As per the PA report, the size of the 'label' was 14.1% of the size of the packet. Since it was a rectangular packet, it size would mean the 'height and width of the panel of such container having the largest area' as per the language of Rule 36. No other interpretation is possible. Ld. Defence Counsel has failed to explain what else would be called as 'height and width of the panel of such container having the largest area' in case of the packet in question, if not the size of the packet itself.
52. Further, there is no reason for the court to doubt at this stage if the PA had added the area of both the stickers on the sample to calculate the CC No. 1025/08 Page 29 of 37 total size of the label. In case of any doubts or clarifications, the accused had an option to apply and examine the PA herself under section 293 CrPC whose report is otherwise admissible in evidence without formal proof. She would have been the best witness to clarify anything or to remove any doubt. But when no such attempt was made by the accused at the trial, he cannot now choose to question the report on the ground that the same might be incomplete or a result of misinterpretation. There is also a presumption under section 114 of the Indian Evidence Act to the effect that the official acts have been regularly performed and that the common course of business has been followed. The FI had mentioned all the label declarations appearing on both the labels and there is no reason for the court to assume that the PA might not have considered both the said labels. This point was also never raised at the trial and no attempt was made to summon the other counterparts from the office of LHA or even the empty packet of the sample from the office of PA so as to enable the court to calculate the area afresh in case of any genuine dispute.
53. For that matter, the accused no. 3 has also not questioned the findings of the PA report with respect to size of label viz-a-viz size of the packet at the trial. It is nowhere his case that the percentage of the size of the label was more than that of the packet. It is not his case that there was some miscalculation on the part of the PA. His only stand is that the PA should have measured the "principal display panel" and not the "label".
54. It is clear from the above mentioned definitions of 'Principal Display Panel' and 'label' in Rules 2(u) and (q) of the PFA Rules, that CC No. 1025/08 Page 30 of 37 while 'label' is any pictorial, graphical, descriptive matter that is contained on the food package, 'principal display panel' is only that part of the label that is intended to be displayed or likely to be examined by the customer. It is also clear that 'principal display panel' is a part of the 'label'. It follows that principal display panel cannot in case be bigger in size than the label itself. Thus, if Rule 36(2)(a) of the PFA Rules prescribes that the size of the 'principal display panel' shall not be less than 40%, then it necessarily means that the size of the 'label' also has to be more than 40%. And if the label itself is less than 40% of the size of the packet, then the principal display panel would obviously be lesser than the said size of the label and it cannot be more than 40% even if entire 100% of the label is taken as principal display panel.
55. In the case at hand, the PA report mentions that "the size of the label is only 14.1% of the size of the packet". It thereby implies that the size of the 'principal display panel' was equal to or even less than 14.1%. Resultantly, if the size of the 'principal display panel' was even less than 14.1%, the violation of the Rule 36(2)(a) of the PFA Rules would be clearly established. Thus, there is no merit in the contention raised by Ld. Defence Counsel that the PA report speaks about the measurement of the label and not principal display panel.
56. There is also no merit in the argument that no prejudice was caused to any consumer if size of the label was less than the prescribed limit. The fact is that there is violation of rules and such violation is not dependent on causing or not causing prejudice to any consumer. As per section CC No. 1025/08 Page 31 of 37 19(1) of PFA Act, it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. It is thus clear that the product was misbranded within the meaning of section 2(ix)(k) of the PFA Act even on this count of violation of Rule 36(2)(a).
57. Ld. Defence Counsel has now placed reliance on Rule 22 of the PFA Rules and has argued that the sample was lifted in violation of this rule. It is contended by the Ld. Counsel that the packets in question could not have been lifted and sent for analysis in closed condition, and the proper manner would have been to open the packets, mix their contents together, divide them in three parts and then seal them separately in sample bottles.
58. However, it is to be noted that as per the 'Note' to the said Rule 22, as inserted in 2005, food sealed in packaged condition (sealed container or package), shall be sent for analyses in its original condition, without opening the package as far as practicable, to constitute approximate quantity alongwith original label. Thus, opening the said packets would have been violation of Rule 22 and not otherwise. There was no irregularity in the proceedings on this score.
59. Ld. Defence counsel has then questioned the delay in signing the PA report. The sample in this case was chemically analysed by the PA CC No. 1025/08 Page 32 of 37 from 31.05.2008 to 09.06.2008 but the report was signed by her on 18.06.2008. It is also contended that the accused did not receive the intimation letter with copy of PA report and therefore, his right under section 13(2) PFA Act for getting the sample analysed through CFL, stood frustrated. Well, such a delay would have gained relevance had it been a case of adulteration, that too if such a delay had remained unexplained. The present is a case of misbranding only for which no such delay would be relevant, primarily because even the report of PA would be insignificant to ascertain whether the product was misbranded or not. Irrespective of the contents of the PA report, misbranding of an article can still be ascertained by the court merely on the basis of the label declaration as reproduced on Form-VI by the FI. Therefore, no benefit can be granted to the accused on this count, particularly when no attempt was made by him to apply and cross examine the PA under section 293 CrPC to explain the said 'delay' when her report is admissible in evidence without formal proof. When the accused has failed to exercise the option as available to him, he cannot claim that the delay in signing the report has not been explained.
60. Similar is the position with respect to the right under Section 13(2) of PFA Act. Technically, to establish the offence of misbranding, analysis of food article by the PA and CFL would not be required. Public Analysts and Chemical experts at CFL are primarily required to chemically analyse a sample of food article lifted by the FI to determine its analytical values and then to give opinion as to if the food article was adulterated or if it was not conforming to the prescribed standards. Such chemical and CC No. 1025/08 Page 33 of 37 scientific analysis is required to ascertain the ingredients and chemical composition of the food article. As far as the offence of misbranding is concerned, it pertains to label declarations on the package of the food article and no chemical analysis of the product is ordinarily required to establish if the article is misbranded or not. There might be situations where it is necessary to ascertain the chemical composition of the product to ascertain if the ingredients of the product are in conformity with the label declarations on the product. But in other cases where the label declarations themselves are not as per the prescribed rules, no chemical analysis of the product would be necessary to establish whether the product is misbranded or not.
61. Whenever a sample is lifted by the FI, as per the procedure established under the PFA Act and Rules, the same is required to be divided into three parts and then, one counterpart is to be sent to PA for analysis and the remaining two counterparts are to be deposited with the LHA. The PA is required to chemically analyse the sample and then give opinion not only on the point of adulteration but also as to misbranding. Even if a sample is misbranded on the face of it, it is still required to be sent to the PA for chemical analysis, so as to ascertain if it is in compliance or violation of the rules, including those pertaining to prescribed standards as to its nature, substance and quality as well as those pertaining to labelling and packaging standards.
62. However, in cases where the product conforms to the standards and there is no adulteration therein, and the ingredients of the product are also CC No. 1025/08 Page 34 of 37 as per the label declaration, the chemical analysis and composition of the product need not be gone into to ascertain if the product is otherwise misbranded. For that, the court (or any other person for that matter) is only required to have a bare look at the label declarations on the product and then determine if such declarations are as per the rules. Irrespective of opinion of the PA as to misbranding on the basis of label declarations simplicitor, the court is not bound by any such opinion, primarily because the same is not based on any chemical tests or analytical values arrived at after scientific analysis.
63. If the court is only required to peruse the label declarations appearing on the package of a food article and not to go into the chemical analysis or composition of the same, any irregularity in the sample proceedings or in the chemical analysis by the PA, which has no effect on the label declarations, would not give any benefit to the accused. To establish misbranding simplicitor, any opinion of a chemical expert is neither required nor relevant, though in every case where a sample is lifted by the FI, it is necessary to send it to PA for chemical analysis to ascertain if it is in conformity of PFA Act and Rules.
64. Similarly, if a sample is sent to the Central Food Laboratory (CFL) upon the accused exercising his right under section 13(2) of PFA Act, only the analytical values therein would be final and conclusive in terms of section 13(3) and 13(5) of PFA Act and not the observations as to the labelling standards. If the label declarations are independent of chemical analysis by the PA or CFL, the analytical findings given by them need not CC No. 1025/08 Page 35 of 37 be looked into to determine the offence of misbranding. The court is required to arrive at its decision to find out if the sample is misbranded or not, by carefully perusing by contents of the label on the package of the food article, without being influenced by the analytical values arrived by the PA or CFL after chemical analysis.
65. It follows that even if the right of the accused under section 13(2) PFA Act stands frustrated (though there is no evidence to this effect) or such right is not exercised, that would not be a reason to conclude that the sample was not misbranded.
66. Now coming to the policy of the department to issue a warning for first time violation, which Ld. Counsel has put forth. There is no dispute that there was policy of the department not to prosecute the first time violation of Rule 32 and to give only a warning to the offender. In the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132], it has been held that such policy bearing no.F6(228)/85/ENF./PFA dated 23.09.1985 was in operation and during this period and no prosecution could have been launched against a first time violator of Rule 32. However, as observed in the said judgement only, the said policy was later withdrawn vide office order no. 5/07 dated 14.09.2007. It is therefore clear that on the day when the sample in question was lifted, the said policy had already been withdrawn and was no more in operation. Therefore, no benefit of that policy can be given to the accused which already stood withdrawn.
CC No. 1025/08 Page 36 of 3767. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no 3 beyond the shadow of reasonable doubt. It has been proved that the accused no.3 had manufactured / packed and sold misbranded food in violation of section 2(ix)(k) of PFA Act read with Rules 32(b), 32(i) and 36(2)(a) of PFA Rules, and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
68. Having said so, the accused no. 3 is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 1 and accused no. 2 company (though ex-parte) are given the benefit of warranty and are acquitted of the charges. The bail bond of accused no. 1 shall however remain in force for the next six months in terms of section 437-A, CrPC.
69. Let the matter be listed for arguments on sentence qua the convicted accused no. 3.
Announced in the open court this 28th day of April 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355 CC No. 1025/08 Page 37 of 37