Bangalore District Court
Food Safety Officer vs The Proprietor (Pleaded Guilty) on 30 May, 2023
BEFORE THE SPECIAL COURT FOR ECONOMIC
OFFENCES: AT BENGALURU
Dated this the 30th day of May 2023
:Present:
Sri. ANAND S. KARIYAMMANAVAR, B.A., LL.B., (Hon')
Presiding Officer, Special Court
For Economic Offences, Bengaluru.
C.C.No.23/2022
Complainant: Food Safety Officer,
Bengaluru North Taluk,
Bengaluru Urban District.
(Reptd. By Spl. Pubic Prosecutor)
Vs.
Accused : 1. The Proprietor (Pleaded Guilty)
Alankar Tea and Coffee Centre,
No.2, 1st Cross, Bismillanagara,
Barrerghatta Road Cross,
Bengaluru - 560 029.
2. B. Rajesh
S/o. Basavaraju,
K.R. Super Market,
Beside Chamundeshwari Petrol Bunk,
Chikkabanavara,
Bengaluru - 562 090.
(Reptd. By Sri. MN., Advocate)
: JU DG M E NT :
This is a complaint made by the complainant against
the accused No.1 and 2 for the offence punishable under
section 59 of Food Safety and Standard Act, 2006.
2 C.C.No.23/2022
2. The brief facts of the case of the complainant that:
On 18.03.2021 the complainant being Food Safety
Officer visited the business premises of accused No.2 and
thereby introduced herself and verified the license for the
business. Thereafter, on suspicion she had collected Tea
powder which is named as "Alankar Tea" of four packets,
measuring each 500 grams and she had paid the amount in
respect of purchase of said food items and she issued notice
under Form VA by informing the accused No.2 sending about
the said seized food items for analysis and she drawn
mahazar in the presence of witnesses. Further, it is the case
of the complainant that after seizing the samples she
forwarded the samples to Vsix Analytical Labs Pvt. Ltd.,
Bengaluru on 19.03.2021 and the said lab forwarded the
report on 03.04.2021 stating that the samples sent to the
examination is "Unsafe". Hence, the present complaint came
to be filed.
3. Upon receiving the complaint, the sworn statement is
dispensed with as the complainant is a public servant and
this court took cognizance for the offence punishable U/s.59
of Food Safety and Standard Act, 2006. Thereafter, the
summons were issued to the accused No.1 & 2 and they
appeared and enlarged on bail. Subsequently, accused No.1
pleaded guilty. The substance of the accusation read over to
accused No.2 and explained to him in the language known to
him. He pleaded not guilty and claimed to be tried. As such,
the complainant was called upon to lead evidence.
3 C.C.No.23/2022
4. In order to bring home the guilt of the accused, the
complainant examined three witnesses as PW-1 to PW-3 and
got marked 9 documents as Ex.P-1 to Ex.P-9.
5. After the completion of evidence on behalf of
complainant, the incriminating evidence available against
accused No.2 was read over as per the provisions of Section
313 of Cr.P.C. However, accused denied the same and he has
been examined as DW-1 and got marked one document as
Ex.D-1.
6. Heard the arguments advanced by both the counsels for
the complainant and accused No.2. Upon hearing their
arguments and on going through the materials on record, the
following points arise for determination of this court:
1. Whether the complainant proves beyond all
reasonable doubt that the accused No.2
had stored adulterated Tea powder in his
shop to sell the same to his customers?
2. What order?
7. My findings on the above said points are as under:
Point No.1: In the Negative
Point No.2: As per final order
for the following:
REASONS
8. Point No.1 : The complainant in order to prove the guilt
of the accused, the prosecution examined three witnesses as
PW-1 to PW-3 and got documents marked Ex.P-1 to Ex.P-9.
9. PW-1 being the complainant in her chief-examination
deposed that on 18.03.2021 she visited the business
4 C.C.No.23/2022
premises of accused No.2 and on an suspicion she verified
Tea powder with brand name as "Alankar Tea". Thereafter,
she purchased two Kgs of said Tea powder of four packets
each weighing 500 grams, for the same, she obtained a
receipt. Further she deposed that she had drawn the samples
in the presence of one witness by name Rudresh and then she
sent the samples to the laboratory on 19.03.2021.
Subsequently, on 03.04.2021, she received the report from
the lab, in which, it was found that the samples sent for
examination is "Unsafe" for human consumption.
Accordingly, she obtained sanction and filed this complaint.
Thereby said complaint is marked as Ex.P-1, sanction is
marked as Ex.P-2, cash receipts marked as Ex.P-3, two
number of Form No.5A are marked as Ex.P-4 and Ex.P-5,
signature of the witness is marked as Ex.P-4(a) and Ex.P-5(a),
mahazar and letter given by the accused respectively marked
as Ex.P-6 and Ex.P-7 and lab report is marked as Ex.P-8 and
Ex.P-9. Further, the samples seized by the PW-1 is marked
as M.O.1.
10. Further, the prosecution examined CW-4 as PW-2, he
being the Deputy Commissioner, Squad in Food Safety Office
deposed that he had issued the sanction to prosecute the
accused as per the requisition made by the complainant
thereby signature of the witness is marked as Ex.P-2(a).
11. Further, the prosecution examined CW-3 as PW-3 he
being the pancha witness at the time of seizure, though
identified his signature on Ex.P-6 i.e., mahazar, but he
turned hostile and denied the contents of Ex.P-6.
5 C.C.No.23/2022
12. By relying on the oral and documentary evidence
adduced by the complainant, learned Sr. APP vehemently
argued that the accused No.1 in this case, who is the
manufacturer of adulterated food already pleaded guilty and
accused No.2 being the owner/license holder of the shop was
stored the said adulterated Tea to sell the same to his
customers thereby accused No.2 has to punish. However, in
the present case, the accused No.2 have taken strong defence
that the M.O.1 i.e., Alankar Tea powder was not at all been
seized in his shop. Accordingly, learned counsel for the
accused cross-examined PW-1 and during the cross-
examination of PW-1 at para No.3 she deposed that:
"I went to the shop by bus. I have also took one
person by name Venkatesh to the shop for my
assistance as collecting samples take more than
one and half hours"
13. By relying of this oral evidence, the counsel for the
accused has submitted that the sample has to be drawn in
the presence of independent witnesses. However, the witness
i.e., PW-3 by name Rudresh to whom the prosecution
claiming that he is the pancha witness at the time of drawing
the samples has turned hostile and not supported the case of
the prosecution. By relying on the evidence, the counsel for
the accused sought to dismiss this case.
14. On perusal of materials available on record, it is the
strong case of the prosecution that the accused No.2 had
stored the Tea powder packets of adulterated brand to sell it
6 C.C.No.23/2022
to his customers which is Unsafe for human consumption
and as per Food Safety and Standard Act, 2006 and Food
Safety and Standard Rules, 2011 there is a procedure how
the sample should be drawn at the time of inspection. For
the better appreciation, it is just and proper to peruse Section
41 of Food Safety and Standards Act, 2006 which reads as
under:
"41. Power of search, seizure, investigation,
prosecution and procedure thereof.-
(1) Notwithstanding anything contained in sub-
section (2) of section 31, the Food Safety Officer
may search any place, seize any article of food or
adulterant, if there is a reasonable doubt about
them being involved in commission of any offence
relating to food and shall thereafter inform the
Designated Officer of the actions taken by him in
writing:
Provided that no search shall be deemed to be
irregular by reason only of the fact that witnesses
for the search are not inhabitants of the locality in
which the place searched is situated.
(2) Save as in this Act otherwise expressly
provided, provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) relating to search,
seizure, summon, investigation and prosecution,
shall apply, as far as may be, to all action taken by
the Food Safety Officer under this Act"
7 C.C.No.23/2022
15. Further, rule 2.4.1.(1) of Food Safety and Standard
Rules, 2011 which reads as under:
"2.4.1.: Procedure for taking sample and manner
of sending it for analysis:
the Food Safety Officer while taking sample of food
for analysis under clause A of sub-section (1) of
section 38 and 47 of the Act, shall also follow the
procedure specified hereunder:
(1) Shall call one or more witnesses at the
time of lifting of the samples;
(2) Obtain the signatures from the
witnesses in all the Forms and
documents prepared;
(3) Serve the notice in Form VA to the
business operator then and there;
16. On careful perusal of the above said provisions of law, it
specifically says that at the time of lifting the samples there
shall be one ore more witnesses though need not be
inhabitance of the locality. In this case, the prosecution
claimed PW-3 as pancha witness. However, the said witness
in his chief-examination clearly denied the contents of Ex.P-6
and further he deposed that he put signature on Ex.P-6 in the
Soladevanahalli Police Station. Further, he deposed that the
complainant has not seized any samples in his presence.
Therefore, it raises doubt about the seizure of M.O.1 and
drawing the samples.
17. Further, at the time of taking samples, notice under
rule 2.4.1.(1) has to be served to the business operator in
Form No.VA. In the present case, the complainant has
8 C.C.No.23/2022
produced Ex.P-4 and Ex.P-5, in which, she claims that these
notices are served to accused No.2. However, on perusal of
Ex.P-4 and Ex.P-5 which are Form No.VA the details of the
premises/shop/market has kept blank. Therefore, the
prosecution has failed to follow the strict procedure at the
time of seizure and drawing the samples. Further, the
complainant has failed to prove that the sample was drawn in
the presence of independent witnesses. Therefore, the
complainant has failed to establish that she has seized the
said M.O.1 from the shop of accused No.2 in the presence of
independent witnesses. Further, the complainant also failed
prove that she had complied rule 2.4.1. of Food Safety and
Standards Rules, 2011 thereby the prosecution has failed to
prove the guilt of the accused No.2 beyond all reasonable
doubt. Hence, I answer Point No.1 in the Negative.
18. Point No.2: In view of my findings on Point No.1, I
proceed to pass the following:
ORDER
By exercising the power conferred under section 255(1) of Cr.P.C., the accused No.2 is acquitted for the offence punishable under section 59 of Food Safety and Standards Act, 2006.
The bail bond of accused No.2 shall stand cancelled.
9 C.C.No.23/2022M.O.1 is worthless, is ordered to destroy after the appeal period is over.
(Dictated to the Stenographer, same has been typed, corrected and then pronounced by me, in open court on this the 30 th day of May 2023) (ANAND S. KARIYAMMANAVAR) Presiding Officer, Spl. Court for Economic Offences, Bengaluru.
ANNEXURE:
List of the witnesses examined on behalf of the Complainant:
PW-1 : Smt. Anusuya
PW-2 : Dr. Harishwara C.E.
PW-3 : Sri. Rudresh
List of the Documents exhibited on behalf of the Complainant:
Ex.P-1 : Complaint
Ex.P-2 : Sanction
Ex.P-3 : Cash Receipt
Ex.P-4 : Form No.5A
Ex.P-5 : Form No.5A
Ex.P-6 : Mahazar
Ex.P-7 : Letter
Ex.P-8 : Test Report
Ex.P-9 : Test Report
List of witnesses examined on behalf of the Accused:
DW-1 : Sri. Rajesh List of Documents examined on behalf of the Accused:
Ex.D-1 : Statement of Bank List of the material objects marked behalf of the Complainant:
M.O.1 : Sample Tea Powder Presiding Officer, Spl. Court for Economic Offences, Bengaluru.1 C.C.No.23/2022
30.05.2023 Complt.: Spl. PP A-2: MN For Judgment Judgment pronounced in the open court (vide separate order) ORDER By exercising the power conferred under section 255(1) of Cr.P.C., the accused No.2 is acquitted for the offence punishable under section 59 of Food Safety and Standards Act, 2006.
The bail bond of accused No.2 shall stand cancelled.
M.O.1 is worthless, is ordered to destroy after the appeal period is over.
PRESIDING OFFICER.