Delhi District Court
Sh. Sonil @ Somil vs The State on 18 April, 2018
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IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE, NEW DELHI
FSAT No. 21/16
1. Sh. Sonil @ Somil
S/o Sh. Subhash Chander
M/s Mela Restaurant
(A unit of Marko Agro Housing & Finance Ltd.)
G6, Community Center, Vikas Puri
New Delhi.
R/o J60, Vikaspuri
New Delhi110018.
2. M/s Marko Agro Housing & Finance Ltd.
G6, Community Center, Vikas Puri
New Delhi. .......Appellants
Versus
1. The State,Through Commissioner
Department of Food Safety,
Govt. of NCT of Delhi
A20,Lawrence Road Indl.Area
Delhi110035.
2. Sh. Baljit Singh
Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
A20,Lawrence Road Indl.Area
Delhi110035. ......Respondents
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APPEAL AGAINST THE IMPUGNED ORDER
DATED 15.01.2013 OF LD. ADJUDICATING
OFFICER/ADDITIONAL DISTRICT MAGISTRATE
(DISTRICT WEST), GOVT. OF NCT OF DELHI.
Date of Institution of Appeal : 25.02.2013
Arguments concluded on : 18.04.2018
Judgment announced on : 18.04.2018
J U D G M E N T
1.0 Vide this appeal, the appellants have challenged the
order dated 15.01.2013 of Ld. Adjudicating Officer/Additional
District Magistrate("ADM" in short)(District West), Govt. of NCT
of Delhi whereby a penalty of Rs.20,000/ each under Sections 51 &
52, respectively of the Food Safety & Standards Act, 2006 ("FSS
Act" in short) was imposed on the appellant no.1 and a penalty of
Rs.80,000/ each under Sections 51 & 52 respectively, of FSS Act
was imposed on the appellant no.2.
1.1 Appellant no. 1 is the Supervisor of M/s Mela
Restaurant (a unit of appellant no.2, Food Business Operator
("FBO" in short). The appellant no.2 is the Company under
which the restaurant i.e. M/s Mela Restaurant was running its
business.
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2.0 The brief facts as per the appeal are that :
(i) sample of cashews, an article of food, in originally
sealed plastic packs was lifted by the Food Safety
Officer on 24.08.2011 from appellant no.1 from the
premises of M/s Mela Restaurant, G6, Community
Centre, Vikas Puri, New Delhi110018, where the
appellant no.1 was found using and storing the said food
article for the preparation of curries of vegetables etc.
for sale for human consumption. The same was sent to
the Food Analyst. The Food Analyst vide its report
found the sample substandard because it was not free
from insects, thereby violating section 26(2) (ii) r/w
section 3(1)(zx) of FSS Act and Regulation No.2.3.47.5
of Food Safety and Standards(Food Products Standards
And Food Additives) Regulations 2011, ("FSS & FA
Regulations" in short). Sample was also found to be
misbranded as it was without declaration of complete
address of the manufacturer, batch number and date of
packing, thereby violating the Regulations 2.2.2.6,
2.2.2.8 and 2.2.2.9 of the Food Safety and Standards
(Packing & Labeling) Regulations, 2011 ("FSS (P&L)
Regulations" in short). On the basis of the same, a
complaint against the appellants was filed before the
Ld.ADM;
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(ii) the appellants had filed detailed reply before the Ld.
ADM. The Ld.ADM proceeded to pass the impugned
order imposing fine without considering the
submissions made by them.
2.1 The appellants have challenged the impugned order
interalia on the grounds that:
(i) the Ld. ADM failed to appreciate that "Cashews" is a
primary food. The sample was lifted from the restaurant
where it was not intended for sale but was meant for use
in preparation of other food articles;
(ii) Ld. ADM failed to appreciate that the Food Safety
Officer has no power to lift the sample of primary food
from a restaurant where it is not intended for sale as
such;
(iii) Ld. ADM failed to appreciate that poly pack is a
closed container and not a 'sealed' container. Thus, very
lifting of a sample in poly pack is violative of the
procedure for lifting a representative sample;
(iv) the Ld.ADM completely ignored the serious
infirmities in the prosecution case as no intimation letter
was ever served upon the appellants for referring the
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sample to the Referral Laboratory;
(v) the Ld.ADM ignored the fact that all the hotels and
restaurants use Institutional Pack i.e. one large pack
which has various small packs; complete address, date
of manufacturing etc. is written on the Master Pack;
(vi) no public witness was joined in the case and
mandatory provisions contained in Food Safety and
Standards Act, 2006 were not complied with and has
placed reliance upon State of Punjab V. Raman Kumar
(1998) 1 FAC 9.
3.0 Ld. Addl. PP for the respondent on the other hand,
sought dismissal of the appeal with heavy cost. It was submitted that
Public Analyst's report found the sample as 'substandard' as defined
under Regulation No.2.3.47.5 of FSS (FPS&FA) and misbranded as
defined Regulation No.2.2.2.6, 2.2.2.8 and 2.2.2.9 of FSS(P&L)
Regulations. All the contentions raised in the appeal were duly
considered and disposed of vide impugned order. In view of the
violations, the Ld.ADM rightly convicted the appellants. He has
imposed a total penalty of only Rs.40,000/on appellant no.1 and total
penalty of only Rs.1,60,000/ on appellant no.2, as against the
maximum prescribed penalty of Rs.Five Lakhs u/s 51 of FSS Act and
Rs.Three Lakhs u/s 52 of FSS Act
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4.0 I have heard Sh. M.L. Alwadhi, Ld. Counsel for the
appellants and Sh. Anil, Ld. Addl. PP for state and have carefully
perused the record.
5.0 Let me briefly mention here the factual background of
the case. Admittedly, on 24.08.2011, FSO purchased for analysis, a
sample of cashews in the originally sealed plastic packs from the
appellant no.1 Sh. Sonil @ Sh. Somil from the premises of M/s Mela
Restaurant. One counter part of the said sample, as per rules was sent
to Food Analyst, Govt. Of Delhi for analysis. The Food Analyst vide
his report dated 05.09.2011 reported that "the sample was substandard
because it was not free from insects. He also reported that the sample
was also misbranded because there was violation of Regulations
2.2.2.6, 2.2.2.8 and 2.2.2.9 of the FSS(P&L) Regulation". In view of
the same, a complaint/application before the Ld. ADM, DistrictWest,
Delhi against the appellants was filed under Rule 3.1.1(3) of The Food
Safety and Standards Rules, 2011 ("FSSR" in short) alleging
violation of Sections 51 & 52 of FSS Act.
5.1 The appellants had joined the proceedings. During the
hearing before the Ld. ADM, the appellant no.1 appeared for himself
as well as on behalf of the company M/s Marko Agro Housing &
Finance Ltd./appellant no.2 and its all three directors. He had filed
reply dated 22.10.2012 for himself and reply dated 31.10.2012 on
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behalf of the directors/ appellant no. 2 inter alia, raising similar
objections as raised in the present appeal. After hearing both the sides
and considering the above report of Public Analyst, the Ld. ADM
passed the order holding the appellants guilty of selling "Substandard
Food Article" in violation of section 26(2)(ii) r/w Section 3(1)(zx) of
the FSS Act and Regulations 2.3.47.5 of FSS (FPS&FA) and
"Misbranded Food Article" in violation of Regulations No.2.2.2.6,
2.2.2.8 and 2.2.2.9 of FSS(P&L) Regulations, as the sample packet did
not declare complete address of the manufacturer, batch number and
date of packing; and also of provisions of section 23(1) and 23(2) FSS
Act. He imposed a penalty of Rs.20,000/ each u/Sections 51 & 52 of
FSS Act, respectively on the appellant no.1/ FBO cum supervisor and
of Rs.80,000/ each u/Sections 51 & 52 of FSS Act, respectively on
appellant no.2. Said order is under challenge in this appeal.
6.0 The appellant has contended that the Ld. ADM failed to
appreciate that the lifted sample was a poly pack and therefore, was
only a closed container and not a sealed container. Thus, the same was
violative of the procedure for lifting of a representative sample and has
placed reliance upon the judgment of Hon'ble Kerala High Court
dated 18.09.1972 in Crl. Appeal No. 187/1972 titled as State of Kerala
Vs. R.S. Balakrishna and that of judgment of Hon'ble Madras High
Court dated 18.12.1989 in Crl. Appeal No. 181985 titled as State by
Public Prosecutor Vs. Muthukrishnan. It is further pleaded that the
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sample was lifted on 24.08.2011 and was examined by the Public
Analyst only on 05.09.2011, i.e., after a gap of 13 days. The insect
could have entered the pack or may have developed later on during this
period due to the presence of moisture in the poly pack. These
contentions are rebutted by Ld. Addl. Public Prosecutor submitting
that the lifted sample/packets were in originally sealed condition; the
appellant no.1 did not dispute that the sample was lifted in a sealed
packet while signing Notice/FormVA. Ld. Public Prosecutor also
submitted that the analysis of the sample commodity was started on
the very next day, i.e., on 25.08.2011 and was concluded on 01.09.2011
and report was forwarded on 05.09.2011.
6.1 The appellants have not disputed that the cashews were
in sealed poly packs and were lifted in the same sealed condition from
the appellant. Further, perusal of FormVA shows that it has recorded
that "About 4 X 250 gms. cashews taken as 4 originally sealed plastic
packs of about...". Even perusal of the Food Analyst's report shows
that he has mentioned that "... Sathi cashews sample in original
sealed packet ...". In view of the same, the appellant's contention that
the cashews were not sealed, but only closed lacks merit. Judgments in
R.S. Balakrishna's and Muthukrishnan's case (supra) as relied upon by
the appellant are of no assistance to the appellant, as the facts in those
cases were very different.
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6.1.1 Both, R.S. Balakrishna's and Muthukrishnan's case
(supra) involved adulteration. In R.S. Balakrishna's case, coffee
powder was found adulterated. The Hon'ble High Court observed that
no evidence was adduced by the Food Inspector to show that the
coffee was in sealed container or that the packets were sealed; and that
the witness had simply deposed that the coffee was packed in separate
packets. Considering the same, and that the sampling was not proper,
as all packets were not mixed together and other facts and
circumstances of that case, the acquittal of the accused was upheld.
Muthukrishnan's case involved aerated/ soda water and FSO had
seized 9 soda bottles, which were divided into three portions; one
portion containing 5 bottles was separately packed and sealed as
sample and was sent to the Public Analyst for examination. The
Hon'ble Court noted that PW1 in his testimony did not state anything
about the manner in which the bottles were sealed or closed. Thus,
finding that there was no material available to come to the conclusion
that the bottles were properly sealed as per Rules. Whereas, t he instant
case is only of 'substandard' food article on account of being not free from
insect and not of adulteration. Further, in the instant case, the appellant
has not disputed that the sample commodity/cashews were in pre
sealed packages and were lifted and sent for examination in the same
condition. The appellant did not raise any such objection before the FSO at
the very first available opportunity. Finding of even one sample to be not
free from insect is a violation in itself irrespective of presence/ absence of
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an insect in other packets.
6.2 As far as plea of delay in analysis is concerned, it is seen
that as per the report of Food Analyst dated 05.09.2011, the analysis
was started on 25.08.2011 and was completed on 01.09.2011. Thus, I
find no force in the appellant's contention that the analysis was started
only after 13 days and the insect may have developed during that
period due to moisture.
7.0 The appellants have also contended that the Ld. ADM
failed to appreciate that cashew is a primary food and the same was
meant for use in preparation of curries of vegetables and was not
intended for sale. The FSO had no power to lift the sample of primary
food not meant for Sale. Further, the same was to be used only after
due inspection and cleaning under the supervision of the head cook.
Therefore, the sample commodity cannot be termed as a "Food
Article", so as to attract the provisions of the FSS Act & the Rules and
Regulations framed thereunder.
7.1 Let me at the outset refer to the definition of Food.
"Food" is defined in clause (j) of Section 3 FSS Act, which reads as
under:
"Section 3 ...
(j) "food" means any substance, whether
processed, partially processed or unprocessed,
which is intended for human consumption
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and includes primary food, to the extent
defined in clause (ZK) genetically modified or
engineered food or food containing such
ingredients, infant food, packaged drinking
water, alcoholic drink, chewing gum, and any
substance, including water used into the food
during its manufacture, preparation or
treatment but does not include any animal
feed, live animals unless they are prepared or
processed for placing on the market for human
consumption, plants prior to harvesting, drugs
and medicinal products, cosmetics, narcotic or
psychotropic substances: Provided that the
Central Government may declare, by
notification in the Official Gazette, any other
article as food for the purposes of this Act
having regards to its use, nature, substance or
quality;
7.1.1 From the plain reading of the definition of "food", it is
evident that any substance whether raw material or final product,
which is intended for human consumption falls within the definition of
food. Thus, there is no doubt that cashews which were admittedly to be
used as an ingredient in preparation of vegetable curries to be
consumed by human beings, clearly falls within the definition of food.
Further, as the vegetable curries (of which such cashews were one of
the ingredients) were to be sold for human consumption, the cashews
indirectly were meant for sale, as defined in Section 3(1)(zr) of FSS
Act.
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8.0 Appellants have further contended that Ld. ADM failed
to appreciate that they were not given an opportunity to get the sample
examined by Accredited Laboratory; no intimation letter was ever
served upon the appellants for referring the sample to the Referral
Laboratory. Ld. Addl. PP in this respect submitted that vide letter
dated 14.09.2011, the report of Food Analyst was forwarded to the
appellant, specifically mentioning that the appellant may file an appeal
against the report of the Food Analyst but the appellants never opted
for examination of the sample by accredited Laboratory. Even while
signing the Panchnama, the appellants did not exercise the option for
sending of the sample to RFL.
8.1 Perusal of the trial court record shows that along with its
application under Rule 3.1.1(3) FSS Rules, the FSO had annexed the
list of witnesses and documents. In list of documents filed by FSO, at
serial no. 9, is listed the aforesaid letter dated 14.09.2011sent by DO to
FBO, Sh. Sonil, and M/s Devender Kumar Sajjan Kumar. Perusal of
the said letter bearing No. F.110 DO2/west/11/954243 dated
14.09.2011 of Designated OfficerII (West District), Department of
PFA shows that vide said letter, a copy of the Food Analyst's report
dated 05.09.2011 was forwarded to the appellant no. 1 specifically
mentioning that if he so desired, he may file an appeal under 46(4)
FSS Act 2006 read with rule 2.4.6 of Food safety & Standards Rules,
2011 against the report of Food Analyst. M/s Devender Kumar Sanjay
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Kumar (firm name as clarified by them) even responded to the said
letter vide their reply dated 01.10.2011, acknowledging the receipt of
Food Analyst's Report. There was no reason for the appellants not to
receive the said report.
8.2 Further, perusal of Panchnama shows that it specifically
records that:
".... Out of the four parts of sample, one part was kept for
sending to the Food Analyst for the purpose of analysis and the
other two/ three sample parts were kept for depositing with
the Designated Officer, Govt. of N.C.T. of Delhi as the FBO
requested/ did not request to send fourth part of the sample
to Accredited Laboratory. .."
8.3 In view of the above, it is evident that the appellants
were duly intimated about their right to appeal/ send the sample for
examination by RFL, but they did not opt for the same.
9.0 The Food Analyst's Report found that the sample was
not free from insect.
10.0 During the course of arguments, Ld. Counsel for the
appellants submitted that as only one insect was found, sample could
not have been termed as substandard merely on that basis and placed
reliance upon upon the judgment dated 22.04.1983 of Hon'ble Delhi
High Court in Crl. Appeal No. 228/1975 titled as Municipal
Corporation of Delhi Vs. Shri Ramji Dass & Anr.
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10.1 Let me mention here that the the aforesaid case was
under the old Act, i.e., Prevention of Food Adulteration Act, 1954. The
Public Analyst had found suji to be insect infested. The Hon'ble High
Court upheld the acquittal of the accused observing that the Public
Analyst had not mentioned the number of living insects found in the
sample which would mean that the number of insects may be only 2 or
3. The Hon'ble Court noted that the expression "insect infested" would
mean a swarm of insects or at least a large number of insects. As per
the definition of adulterated food in Section 2(1a)(f) of the old Act, the
food shall be adulterated, if it is "insect infested". Whereas, the instant
case is under the new Act/ FSS Act. Regulation 2.3.47.5 of Food
Safety and Standards (Food Products Standards (Food Products
Standards and Food Additives) Regulations, 2011 lays down :
8. "2.3.47 Nuts and Raisins
5. Dry Fruits and Nuts means the products obtained by drying
sound, clean fruits and nuts of proper maturity. The product
may be with or without stalks, shelled or unshelled, pitted or
unpitted or pressed into blocks. The product shall be free from
mould, living/ dead insects, insect fragments and rodent
contamination. The product shall be uniform in colour with a
pleasant taste and flavour characteristic of the fruit/ nut free
from off flavour, mustness, rancidity and evidence of
fermentation. The product shall be free from added colouring.
The product shall conform to the following requirements: ..."
10.2 Thus, as per Regulation 2.3.47.5, the food product shall
be "free from mould, living/ dead insects ...". Thus, finding of even
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one insect rendered the sample cashews not free from insect and the
same thus, violated the aforesaid Regulation. Thus, the above
judgment relied upon by the appellant is of no assistance.
11.0 With respect to misbranding/violation of Regulations
No. 2.2.2.6, 2.2.2.8 and 2.2.2.9 of FSS(P&L) Regulations, the
appellant has not disputed the findings of the Public Analyst. The only
contention put forth by the appellant is that all the hotels and
restaurants use Institutional Packs i.e. one large pack which has
various small packs. Complete address, date of manufacturing etc. is
written on the Master Pack and not on the individual packs inside the
Master Pack.
11.1 While refuting this contention, Ld. Addl. Public
Prosecutor submitted that the sample packets had labels on them but
the relevant fields, i.e., the name of the manufacturer, date etc., were
left blank. The appellant failed to show that sample packets were part
of an institutional packet. Label on every such packet was required to
comply with Regulations No. 2.2.2.6, 2.2.2.8 and 2.2.2.9 FSS (P&L)
Regulations.
11.2 It would be pertinent to mention here that the Ld. Addl.
PP also pointed out that the appellant informed the FSO that the
sample packets were purchased from Devender Kumar, Sajjan Kumar,
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536/2, Katra Ishwar Bhawan, Khari Baoli, Delhi - 110 006. It is seen
from the trial court record that letters dated 14.9.2011 and 10.02.2012/
13.02.2012 sent by registered post by FSO to the Manager, M/s Sathi
Cashew Products, Bharampur, South India (Processor and Packer, as
mentioned on the sample packet), were received back undelivered.
Letter dated 14.09.2011 was received back with the report "Unknown"
and the subsequent letter dated 10.02.2012/ 13.02.2012 was also
received back though report on the same is not clear. Further, on
taking up the matter with Devender Kumar and Sajjan Kumar at 536/2,
Katra Ishwar Bhawan, Khari Baoli, Delhi - 110 006, a reply dated
01.10.2011 was received on the letter head of Devender Kumar Sanjay
Kumar Jain under the signatures of one Sanjay Kumar Jain. Vide said
reply, the said firm clarified that the name of their firm is " Devender
Kumar Sanjay Kumar Jain" and not "Sajjan Kumar". It also stated that
M/s Mela Restaurant, G6, Community Centre, Vikas Pur, Delhi was
not their customer and they had never sold any goods to them; and that
the goods picked up from the said restaurant did not belong to them.
Thus, the information furnished by the appellants turned out to be
incorrect. It is also noteworthy that the appellant did not even produce
any Master Pack to show that the sample packets were part of
institutional pack. The appellants even failed to produce any purchase
bill. The fact that the packets bore the aforesaid label with part
information, further negates the appellant's contention.
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11.2.1 In view of the above facts and circumstances, the
appellant's contention that the sample packets were not required to
comply with Regulations 2.2.2.6, 2.2.2.8 and 2.2.2.9, is found
untenable.
11.3 Let me now refer to Regulations 2.2.2.6, 2.2.2.8 and
2.2.2.9 FSS (P&L) Regulations, which read as under:
"2.2.2: Labelling of Prepackaged Foods
....
6. Name and complete address of the manufacturer
(i) The name and complete address of the manufacturer and the manufacturing unit if these are located at different places and in case the manufacturer is not the packer or bottler, the name and complete address of the packing or bottling unit as the case may be shall be declared on every package of food; ....
8. 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: ...
Provided that in case of packages containing bread and milk including sterlised milk, particulars under this clause shall not be required to be given on the label.
9. Date of manufacture or packing. The date, month and year in which the commodity is manufactured, packed or prepacked, shall be given on the label:
Provided the month and the year of manufacture, packing or prepacking shall be given if the "Best Before Date" of the products is more than three months.
Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned on the label."FSAT No.21/2016
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11.4 From the plain reading of the above Regulations, it is evident that label on every prepackaged foods is required to mention name and complete address of the manufacturer, lot/code/batch identification number, date of manufacturing/packaging etc. Appellant has failed to show that the sample packets of cashews were part of the institutional pack and were exempted from such requirements. Even otherwise, as per FormVA (the contents of which have not been disputed), the sample packets even had printed on them, Processed and Packed by : Sathi Cashew Products, Bharampur, South India. The individual sample packs also bore the details of nutritional value, net weight etc. It also had printed on them "Batch Number" and "Date of Pkg." , but the details of the batch number and date of packaging were not mentioned, although it mentioned "Best Before", as 4 months, which in absence of date of packing had no meaning. In view of these facts and circumstances, the sample packets violated Regulations 2.2.2.8 and 2.2.2.9 of FSS(P&L) Regulations.
12.0 In view of the above facts and circumstances and the findings recorded in preceding paras, the appellants are liable for penalty under Sections 51 and 52 FSS Act, which prescribe a maximum penalty of Rs.5 lacs and Rs.3 lacs, respectively. Ld. ADM has awarded only a penalty of Rs.20,000/ each under Sections 51 & 52, respectively of FSS Act on the appellant no.1 and a penalty of FSAT No.21/2016 Sonil @ Somil Anr. V. State & Anr. Page No.18 of 19 :: 19 ::
Rs.80,000/ each under Sections 51 & 52 respectively, of FSS Act on appellant no. 2, which is much less than the maximum penalty. In view of the same, the said penalty does not call for any interference. Appeal is therefore, dismissed.
12.1 The penalty imposed upon the appellants shall be deposited with the Ld. Trial Court within one month from today.
13.0 The appeal is accordingly disposed of.
14.0 Trial court record be sent back alongwith copy of this judgment.
15.0 File be consigned to Record Room.
Announced in the open court (POONAM A.BAMBA) on this 18th day of April, 2018 District & Sessions Judge New Delhi FSAT No.21/2016 Sonil @ Somil Anr. V. State & Anr. Page No.19 of 19