Delhi District Court
In Re vs A-1) Sh. Naveen Gupta on 8 September, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1938/09 (43681/16)
Unique Case ID No. 02403R0290322009
Date of Institution: 15.09.2009
Date of reserving judgement: 08.09.2016
Date of pronouncement: 08.09.2016
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. Naveen Gupta
S/o. Sh. Balwant Rai
[Since discharged]
A-2) Sh. Manav Puri
S/o. Sh. Sushil Kumar Puri
[Since discharged]
A-3) Sh. Parul Arora
[Since discharged]
A-4) Sh. Sanjeev Kumar
S/o. Sh. K. D. Bhardwaj
R/o. E-239, Tagore Garden Extn.
New Delhi - 27.
A-5) Mahashian Di Hatti Ltd.,
9/44, Industrial Area, Kirti Nagar,
New Delhi - 15. ... Accused Persons
CC No. 1938/09 Page 1 of 8
JUDGMENT:
1. The present complaint has been filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act) wherein it has been alleged that the accused persons have violated sections 2(ix)(k) and Rule 32(i) of PFA Rules, 1955, as punishable under section 7 read with section 16(1)(a) of PFA Act.
2. As per the complainant, on 01.07.2008, food officials visited the premises of M/s. Phool Chand Balwant Rai at Shop No. 1830, Chuna Mandi, Paharganj, New Delhi, at about 03.00 PM, where accused no. 1 being the Vendor-cum-Proprietor, was found conducting the business of various food articles. They found food articles stored / exposed for sale for human consumption, including sealed packets of 'Compounded Asofoetida' bearing identical label declaration. The officials lifted a sample of said 'Compounded Asofoetida' consisting of three sealed packets of 200 gms each as per the PFA Act and Rules. The sample was sent for analysis to Public Analyst (PA) who analysed the same and gave report dated 22.07.2008 opining the sample to be misbranded as there was no Best before declaration as per Rule 32(i) of PFA Rules on the outer sealed packet. Upon this, investigation was carried out and after taking consent of the Director, PFA under section 20 of PFA Act, prosecution was initiated. Accused no.1 is the Vendor-cum-Proprietor from whom sample was taken. Accused no. 2 is the Proprietor of M/s. Shilpi Marketing who had supplied the commodity to accused no.1. Accused CC No. 1938/09 Page 2 of 8 no.3 is the Proprietor of M/s. Surya Kiran Agencies who had supplied the commodity to accused no.2. Accused no.5 is the company that had manufactured / packed the food article and had supplied the same to accused no. 3. Accused no.4 is stated to be a nominee of accused no. 5 company. The complaint was filed in the court on 15.09.2009.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 15.09.2009.
4. Notices of accusation under section 251 CrPC were framed against all the accused persons for commission of offence punishable under section 7 / 16(1)(a) of PFA Act, vide order dated 29.01.2010, to which they pleaded not guilty and claimed trial.
5. Subsequently, during the course of trial, one application under section 294 CrPC was moved on behalf of accused persons on the basis of which, statements of accused no.2, 3 and 4 were recorded. Vide order dated 13.09.2012, the Ld. Predecessor of this court gave the benefit of warranty under section 19(2) of PFA Act to accused no. 1 to 3 and stopped the proceedings against them, purportedly under section 258 CrPC. Subsequent trial was faced only by accused no. 4 and 5.
6. At the trial, prosecution examined two witnesses in support of its case. PW-1 Food Inspector M. K. Gupta and PW-2 Field Assistant Bhramananad had gone to the spot under the supervision of the CC No. 1938/09 Page 3 of 8 SDM/Local Health Authority Sh. A. K. Verma (since expired) along with other staff. Both these witnesses narrated the step-by-step proceedings carried out by them wherein the sample of 'Compounded Asofoetida' was taken and sealed as per PFA Act and Rules and necessary documents were executed. PA report Ex. PW-1/G was received after which the investigation was the carried out which led to impleadment of the accused persons. The witnesses were duly cross examined on behalf of the accused persons wherein they accepted that the outer packet was a hard paper box having 20 small plastic containers of 10 gram each of 'Compounded Asofoetida'. The FI had lifted three such packets for sampling out of which one was sent to the PA for analyses. They denied that Rule 32(i) was not applicable to such outer packets which fall in the category of wholesale packets.
7. Statements of the accused no. 4 and 5 (through accused no.4) under section 313 CrPC were recorded on 05.08.2014 wherein they denied the allegations and pleaded innocence. They claimed that Rule 32(i) was not applicable to the outer cardboard box which was a wholesale pack and that the label of the retail plastic container of 10 gram each which were saleable units, was conforming to all the rules. They chose not to lead DE despite opportunity.
8. In this factual backdrop, Ld. SPP for the Complainant has argued that the prosecution has been able to establish the guilt of the accused no. 4 and 5. Ld. SPP submits that all the proceedings conducted by the food officials were in compliance of PFA Act and Rules and that no challenge CC No. 1938/09 Page 4 of 8 has been made to the PA report which found the sample of 'Compounded Asofoetida' to be misbranded.
9. On the other hand, Ld. Counsel for the accused no. 4 and 5 has argued that no case is made out against them, primarily because the outer packet, which is stated to be in violation of the Rule 32(i), was not a retail packet but was a wholesale packet which is exempted from Rule 32(i).
10. I have heard the arguments advanced on behalf of both the sides and have carefully perused the material on record.
11. In a criminal trial, it is well settled that the burden to establish guilt of an accused beyond reasonable doubt is only upon the prosecution / complainant and this burden cannot be shifted to the accused persons. The prosecution has to stand on its own legs to establish its case by leading positive, cogent and trustworthy evidence.
12. Apparently, the present is a case of misbranding and not adulteration of any food article. The PA report shows that the sample of 'Compounded Asofoetida' was not adulterated as such. There is no allegation of any deficiency in purity or quality as per the standard prescribed or demanded. The sample of 'Compounded Asofoetida' as analysed by PA was as per the prescribed standards. However, the PA opined the sample to be misbranded on the ground that there was no Best before declarations given on the "outer sealed packet" as required by Rule 32(i) of PFA Rules.
CC No. 1938/09 Page 5 of 813. A perusal of the record including the statements of the witnesses and the documents prepared would show that the FI had lifted three hard board boxes containing 200 grams each of 'Compounded Asofoetida'. The contents of Form VI Ex. PW1/B read with the testimony of PW-1 and PW-2 would show that it was not a single packing of 200 grams but the said packet was having 20 small packets of 10 grams each of 'Compounded Asofoetida'. It is an admitted position that the outer card board box mention the label of its containing 20 x 10 grams of 'Compounded Asofoetida'. On that label, MRP was mentioned as Rs.40/-, which was apparently the MRP of the inner smaller individual containers and that was how a sum of Rs.2400/- was paid as per the vendor's receipt Ex. PW1/A. It is therefore clear that the said outer packet was not intended for direct sale to a single consumer but was to be sold to an intermediary who would have sold the individual small packets to the consumers. There is nothing even in the PA report that the sealed plastic containers of 10 gram each were in violation of any labelling and packaging rules. The incriminating report given by the PA is only restricted to the outer sealed packet.
14. As per the Explanation VI to Rule 32 of PFA Rules, "Wholesale Package means a package containing (a) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for direct sale to a single customer ; or (b) ...."
CC No. 1938/09 Page 6 of 815. Going by the said definition, it is clear that the outer hardboard box in the present case would fall in this definition. Admittedly, it was carrying 20 retail sealed packages and was not intended for direct sale to a single customer. It was intended to be sold to any intermediary (a shopkeeper or supplier or distributor) for further sale, distribution or delivery. Even as per the 'Note' to the Explanation VI, such "package" shall be construed as a package containing pre-packed commodity of food articles. As per Rule 2(t) of PFA Rules, "pre packaged" means packaged or made up in advance in a container, ready for offer to the consumer. Therefore, it is clear that the small sealed packets of 10 grams each were pre-packaged containers which were together put in a bigger Wholesale packet of 20 such containers.
16. As far as the outer box / packet is concerned, the same cannot be said to be a sealed packet, as opined by the PA, because PW-1 stated that the said hard paper box was only closed with the help of a cello tape. There is an apparent difference between a closed container and a sealed container. The said hard paper box cannot be said to be a sealed container as in case of the inner retail plastic containers.
17. Be that as it may, Rule 32(i) of the PFA Rules has a Proviso stating that "in case of Wholesale packages the particulars under Clauses (b), (f),
(g), (h) and this clause need not be specified". It is therefore clear that Rule 32(i) would not be applicable to such Wholesale packages, except when such packages fall within the purview of the other Provisos of this rule. The food article in question is not a part of the remaining Provisos CC No. 1938/09 Page 7 of 8 and therefore, there is merit in the stand of the defence that Wholesale packages of 'Compounded Asofoetida' would not be required to mention the Best before date in terms of Rule 32(i). If the retail packets are in compliance of such rules, that would suffice and there would be no violation of packaging or labelling standards.
18. Thus, there is nothing to show violation of Rule 32(i) of PFA under which the accused no. 4 and 5 have been charged, in view of the Proviso to that rule read with Explanation VI to Rule 32 of the PFA Rules. As such, no offence is made out against the accused no. 4 and 5. The accused persons are entitled to be given benefit of doubt on this count.
19. Having observed so, accused no. 4 and 5 are acquitted of the charges. However, bail bond of accused no. 4 shall remain in force for the next six months in terms of section 437-A, CrPC.
20. File be consigned to record room.
Announced in the open court this 08th day of September 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 1938/09 Page 8 of 8