Delhi District Court
Sunder & Others vs . State Of Haryana, 1990 (2) Fac 120, Sc , ... on 29 June, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 41/96
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
1. Upender Sharma S/o Sh. S.P. Sharma
M/s S.P. Jagan Nath & Sons,
2366, Rajguru Road, Chuna Mandi,
Paharganj, New Delhi.
R/o 2365, Rajguru Road, Chuna Mandi,
Paharganj, New Delhi.
2. S.P. Sharma S/o Late Sh. J.N. Sharma
M/s S.P. Jagan Nath & Sons,
2366, Rajguru Road, Chuna Mandi,
Paharganj, New Delhi.
R/o 2365, Rajguru Road, Chuna Mandi,
Paharganj, New Delhi.
3. M/s S.P. Jagan Nath & Sons,
2366, Rajguru Road, Chuna Mandi,
Paharganj, New Delhi.
4. Smt. Leela Wati Jain W/o Late Sh. Vakil
C.C. N0. 41/96 1
Chand Jain, M/s Deep Chand Vakil Chand
Jain, 6305, Naya Bans, Delhi-06.
R/o 1144, Bara Dari Queens Road,
Delhi.
5. Ashok Kumar Jain S/o Late Sh. Vakil
Chand Jain, M/s Deep Chand Vakil Chand
Jain, 6305, Naya Bans, Delhi-06.
R/o 1144, Bara Dari Queens Road,
Delhi.
JUDGMENT
Date of Institution : 21.05.96 Date of reserving judgment : 29.06.10 Dated of Pronouncement : 29.06.10 Under Rules 32 ( e) (f) & 42 (ZZZ) (6) punishable U/s 16(1) read with Section 7 of the PFA Act The final order : Acquitted/Convicted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Local Health Authority M.R. Grover against the above said accused persons, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 8.3.95 at about 1:00 p.m., C.C. N0. 41/96 2 Food Inspector, Arun Kumar purchased a sample of Sugandhit Laccha Supari, a food article for analysis from Sh.Upender Sharma S/o Sh. S.P. Sharma at M/s S.P. Jagan Nath & Sons, 2366, Rajguru Road, Chuna Mandi, Paharganj, New Delhi, where the said food article was found stored for sale and Sh. Upender Sharma was found conducting the business of the shop/firm at the time of sampling. The sample consisted of fifteen pouches of originally sealed packets of Sugandhit Laccha Supari each containing 100 gms of Sugandhit Laccha Supari having identical label declaration. The Food Inspector divided the sample then and there into three equal parts and each part containing the sample was separately packed, fastened, marked and sealed according to PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample parts/packets. Notice was given to Sh. Upender Sharma and the price of the sample was also given to him. Panchnama was prepared at the spot. All the documents prepared by Food Inspector, Arun Kumar were signed by Sh. Upender Sharma and other witness Sh. A.K. Dhir, FI. Before starting the sample proceedings efforts were made to join public witnesses but none came forward. The sample was taken under the supervision of Sh. M.R. Grover, LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 23.03.95 and opined that the sample is misbranded because there is violation of Rule 32 (e) & (f). There is further violation of Rule C.C. N0. 41/96 3 42 (ZZZ) (6).
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. M.R. Grover, LHA to file the present complaint.
4. The accused persons are allegedly to have violated the provisions of Section 2 (ix) (k), Rules 32 ( e) (f) & 42 (ZZZ) (6) punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. Notice under Section 251 Cr.P.C for contravention of provisions of Rules 32 (
e) (f) & 42 (ZZZ) (6) punishable U/s 16(1) read with Section 7 of the PFA Act was framed against accused persons separately on 01.10.96 to which they pleaded not guilty.
6. In support of its case, complainant examined PW-1 Sh. M.R. Grover, LHA ; PW-2 F.I. A.K. Dhir ; PW-3 F.I. Arun Kumar & PW-4 Sh. Jaswant Rao.
7. Statements of accused persons were recorded under Section 313 C.C. N0. 41/96 4 Cr.P.C on , 2.9.09 & 11.09.09 wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent and preferred to lead evidence in their defence and accused No.1 examined himself as DW-1 and accused No.5 examined himself as DW-2 under Section 315 Cr.P.C.
8.Rule 32(e) of PFA Rules, 1955 provides that 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, be provided on the label.
9. Rule 32 (f) of PFA Rules, 1955 provides that the month and year in which the commodity is manufactured or prepacked be given on the label.
10. Rule 42 (ZZZ) (6) of PFA Rules, 1955 provides that every package of supari and advertisement relating thereto shall carry the warning i.e Chewing of Supari is Injurious to Health in conspicuous and bold print.
11. It is true that the mensrea in the ordinary or usual sense of this term C.C. N0. 41/96 5 is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12. I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. On the other hand, Ld. Defence counsel for accused No. 1 to 3 argued that the accused No. 1 to 3 are entitled for benefit of warranty of Bill Ex. PW1/DA under Section 19 (2) of PFA Act. On the other hand, Ld. Counsel for accused No. 4 & 5 argued that there is violation of Section 13 (2) and Rule 22A of PFA Rules. Ld. Defence counsel further argued that Smt. Leelawati Jain, accused No.4 is an old lady of aged about 92 years and is bed ridden and she never attended the business of the firm. Ld. Defence counsel further argued that no previous warning was issued for first violation of Rule 32 of PFA Rules.
Benefit of Warranty u/S 19 (2) of PFA Act.
C.C. N0. 41/96 613. Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
14. Ld. Counsel for accused No. 1 to 3 vehemently argued that accused No.1 to 3 are entitled for benefit of warranty i.e Bill Ex. PW1/DA issued by M/s Deep Chand Vakeel Chand. On the other hand, Ld. counsel for accused No.4 & 5 denied that the sample packets were supplied by M/s Deep Chand Vakeel Chand to them. On perusal of record, it appears that vendor made endorsement at the spot on Ex.PW1/B that these packets of Sapna Supari Lachha i.e sample commodity was purchased from M/s Deep Chand Vakeel Chand , Delhi-06 vide Bill No. 033 dated 28.2.95 and also gave the photocopy of Bill of purchase Ex. P-1, ( original of which was filed before the court and same is mark as Ex.PW1/DA) . PW-3 F.I. Arun Kumar also confirmed in his cross-examination that the sample commodity was in original sealed packets and were not tempered with in any manner. Accused No. 5 also examined himself as DW-2 and deposed that vide Bill Ex. P-1 , 48 bags containing 5 k.g of Lachha Supari were sold but in the Bill , the packets of 100 gms are not mentioned, although, he C.C. N0. 41/96 7 confirmed in his cross-examination that the payment of Bill Ex. P-1 was received by cheque and further confirmed that the denomination of packet i.e 100 gms is mentioned at point A to A on Ex. P-1. On perusal of the Bill Ex. P-1 i.e Ex. PW1/DA , it appears that 240 k.g of Sapna Supari Lachha was sold in 100 gms and 250 gms packets as a ] is put up after item No. 1 & 2 i.e Sapna Supari Lachha of 100 gms and 250 gms indicating that sale of Sapna Supari Lachha in 100 gms and 250 gms packets were made. It is not the defence of the accused that the sample commodity was sold in loose condition rather the Bill itself shows that the sample commodity was available in the packets of 100 gms, 250 gms, 1 k.g. As per complaint, the sample of Sapna Supari Lachha in 100 gms packet was purchased by the Food Inspector and it is admitted by the accused No.5 that he received the payment of the Bill Ex. P-1 through cheque. The Bill clearly connects the sale of 100 gms Sapna Supari Lachha by M/s Deep Chand Vakeel Chand to M/s S.P. Jagan Nath & Sons. Therefore, I am of the considered opinion that accused No.1 to 3 are entitled for benefit of warranty of Bill Ex. P-1 ( original of which is Ex. PW1/DA) under Section 19 (2) of PFA Act.
Violation of Section 13 (2) of PFA Act and Rule 22A of PFA Rules.
15. Ld. Counsel for accused No. 4 & 5 argued that there is violation of Section 13 (2) of PFA Act as in the intimation letter, it was mentioned that the sample had been found adulterated, although it should be misbranded. On the other hand, Ld. SPP argued that the concerned C.C. N0. 41/96 8 SDM/LHA deposed in his cross-examination that it was due to oversight and in the case of misbranded even there is no obligation on the complainant to send the intimation letter alongwith PA report to the accused persons and it is only when the sample commodity is found adulterated. PW-1 Sh. M.R. Grover, SDM/LHA deposed that after filing of the complaint, intimation letter alongwith PA report was sent to the accused persons through registered post which was not received back undelivered, and further confirmed that due to oversight , it was mentioned in the intimation letter that the sample was found adulterated although it was misbranded. I find force in the contention of Ld. SPP for the complainant that Section 13 (2) of PFA Act direct that in case article of food is found adulterated , the Local Health Authority after institution of the complaint, send a copy of intimation letter alongwith PA report so that accused can get reanalysed the sample from the Director, CFL, if so desired. Even otherwise, in case of misbranded, accused had every opportunity to summon the counterpart before the Court to show that the label was not misbranded. Therefore, I am of the considered opinion that there is no violation of Section 13 (2) of PFA Act in the present case.
16.The next contention of the Ld. Defence counsel was that there is violation of Rule 22A as in absence of batch number, the packets cannot be considered similar sealed containers. Rule 22A provides that in case of sealed container having identical label declaration, the sample should be taken as such. The Notice in form VI Ex. PW1/B C.C. N0. 41/96 9 and from the testimony of the complainant witnesses, it becomes clear that all the packets were bearing identical label declaration. As batch number is not provided on the label, at the most, it can be said that sample food article was not manufactured in one lot but as far as label is concerned, if all contents of label on all packets are similar then it can be termed as identical. Therefore, I am of the considered opinion that there is no violation of Rule 22A of PFA Rules.
Whether the accused No.4 Smt. Leelawati Jain was not incharge and responsible for day to day affairs of the business of the firm.
17. Ld. Defence counsel for accused No. 4 argued that the accused Smt. Leelawati Jain is an old lady of aged about 92 years and she never attended the business of the firm and rather appointed Sh. Ashok Kumar Jain i.e accused No.5 as Manager and incharge for day to day affairs of the firm M/s Deep Chand Vakeel Chand. On the other hand, Ld. SPP argued that accused Leelawati Jain was found proprietor of the firm and as such she was incharge and responsible for day to day affairs of the shop. PW-3 F.I. Arun Kumar , who lifted the sample confirmed in his cross-examination conducted on 5.7.05 that it was disclosed by Ashok Jain that Smt. Leelawati , 82 years old suffering from various diseases and did not attend the business of the firm. Accused No. 5, who examined himself on Oath as DW-2, also deposed that he is the only incharge of the firm M/s Deep Chand Vakeel Chand Jain and his mother never attended the business. In an authority reported as Sham C.C. N0. 41/96 10 Sunder & Others Vs. State of Haryana, 1990 (2) FAC 120, SC , it was held by the Hon'ble Supreme Court as under:-
'' Para 8- It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be owing of what is going on day to day in the firm. There may be partners, better own as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-S (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-S (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. ''
18. On perusal of record, it appears that during investigation, accused Ashok Kumar Jain also sent a letter to Food Inspector that his mother never attended the business for a single day and after the death of his father, he is the only person , who is looking after the business of the firm. There is no evidence against Smt. Leela Wati Jain except that C.C. N0. 41/96 11 after death of her husband, her name was mentioned as Proprietor of the firm in Sales Tax Record. There is no evidence at all that she was responsible for conducting the business of the firm on the day of sampling. Therefore, I am of the considered opinion that accused No.4 was not incharge and responsible for day to day affairs of the business of the firm on the day of sampling.
Whether the accused were entitled for benefit of warning for first violation of Rule 32 only
19. Ld. Defence counsel argued that no previous warning for first violation of Rule 32 was issued to the accused. On the other hand, Ld. SPP for the complainant argued that there is no question of warning as there was violation of Rule 32 (e) (f) and also of Rule 42 (ZZZ) (6) of PFA Rules, and warning was earlier being issued for violation of Rule 32 only. PW-1 Sh. M.R. Grover, LHA also confirmed in his cross- examination that when there is violation of only Rule 32 , a warning was issued to the vendor. Admittedly, the accused have been prosecuted as there was violation of Rule 32 (e) & (f) and of Rule 42 (ZZZ) (6) of PFA Rules, therefore, I am of the considered opinion that the present case does not fall for issuance of warning of first violation of Rule 32 of PFA Rules as there was also violation of Rule 42 (ZZZ) (6) of PFA Rules regarding statutory warning that chewing of Supari is injurious to health as provided in PFA Act and Rules.
C.C. N0. 41/96 1220. As per report of the Public Analyst Ex.PW1/F, the sample is misbranded because there is violation of Rule 32 (e) & (f) and there is further violation of Rule 42 (ZZZ) (6) of PFA Rules. The report of the Public Analyst is per se admissible in evidence unless superseded by the report of the Director, CFL , and there is no evidence to controvert the report of the Public Analyst.
21. In view of above, I am of the considered opinion that accused No.1 to 3 are entitled for benefit of warranty of Bill Ex. P-1 i.e Ex.PW1/D1 under Section 19 (2) of PFA Act, and as such they stand acquitted of the charge. Their bail bonds stand cancelled. Sureties discharged. In absence of any evidence that accused No. 4 Smt. Leela Wati Jain was incharge and responsible for day to day affairs of the business of M/s Deep Chand Vakeel Chand Jain, she also stands acquitted of the charge. Bail bond stands cancelled. Surety discharged. Accused No.5 Sh. Ashok Kumar Jain is held guilty for violation of Rule 32 (e) & (f) and Rule 42 (ZZZ) (6) of PFA Rules punishable under Section 16 (1) read with Section 7 of PFA Act and stands convicted thereunder.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 29.06.2010 ACMM-II/NEW DELHI.
C.C. N0. 41/96 13