Delhi District Court
Mahinder Kumar Khandelwal And Oth vs State on 30 May, 2024
CA no. 134/17
IN THE COURT OF MS. KIRAN GUPTA, ADDITIONAL
SESSIONS JUDGE-04, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS: NEW DELHI
DLND010084152017
Mahinder Kumar Khandelwal & Anr.
Vs.
The State (NCT of Delhi) & Anr.
Criminal Appeal Number : 134/2017
CC No. : 123/06 (41330/16)
u/S. 16(1A) PFA Act
(More than 7 years old appeal)
1. Mahinder Kumar Khandelwal,
s/o Sh. Giri Raj Prasad,
r/o A-5/10, Sector-16, Rohini, Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.05.30
15:59:39
+0530
Page No. 1 of 20
CA no. 134/17
Delhi-110085
Present Address:
C-11/15, Sector-5,
Rohini, Delhi
2. M/s Versha Ghee Pvt. Ltd.
X-1/15, Dal Mill Road,
Budh Vihar, Phase-I
Delhi-110041 .....Appellants
versus
1. The State of NCT of Delhi
2. Delhi Administration/Food Inspector
Department of Food Safety, 8th Floor,
Mayur Bhawan, Connaught Place,
New Delhi .....Respondents
Date of Institution : 03.07.2017
Date of conclusion of
arguments : 28.05.2024
Date of Judgment : 30.05.2024
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.05.30
15:59:46
+0530
Page No. 2 of 20
CA no. 134/17
JUDGMENT
1. This is an appeal under Section 374 Cr.P.C. challenging the judgment of conviction dated 12.05.2017 and order on sentence dated 18.05.2017 passed by Ld. Additional Chief Metropolitan Magistrate-II, New Delhi. Vide judgment dated 12.05.2017, the appellants have been convicted for the offence under Section 16(1)(a) of Prevention of Food Adulteration (hereinafter referred as PFA) Act for selling adulterated food and misbranding the food article. Vide order dated 18.05.2017, appellant No. 1 has been sentenced to undergo one year simple imprisonment and to pay fine of Rs.50,000/- for the offence punishable under Section 16(1)(a) read with Section 7 of PFA Act, in default SI for one month. The appellant No. 2 has been sentenced to pay fine of Rs.1,00,000/- for offence punishable u/s 16(1)(a) read with Section 7 of PFA. Benefit u/s 428 given to the appellant No. 1.
2. Heard Arguments on the present appeal and Digitally signed by Kiran Kiran Date:
Gupta Gupta 2024.05.30 15:59:52 +0530 Page No. 3 of 20 CA no. 134/17 perused the appeal file as well as trial court record.
3. The brief facts of the present case are that on 13.09.2005, Food Inspector (FI) Sanjeev Kumar Gupta under the supervision of Local Health Authority (LHA)/SDM Sh. Kedar Nath reached at the premises of appellants at X-1/15, Dal Mill Road, Budh Vihar, Phase-I, Delhi-110041 where the appellant No. 1 was found conducting business of various food articles including 'Ghee' which were lying stored for sale for human consumption lying in open container bearing no label declaration. The sample was seized as per rules. Each sample was separately packed, fastened, marked, sealed and necessary documents including Notice as per Form-VI alongwith Panchnama etc. was prepared at the spot. Thereafter, one counterpart of sample was sent to Public Analyst (PA) in intact condition and other two counterparts were deposited with SDM/LHA. That vide report dated 05.10.2005, the PA found the sample to be adulterated not conforming to the standards on the grounds that the BR reading exceeded the prescribed maximum limit (it was 55.1 when the Digitally signed by Kiran Kiran Gupta Date:
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range should be 40.0 to 43.0), the RM value was less than the prescribed minimum limit (it was 0.62 when it should not be less than 28) and the BT Test (Baudouin Test) was positive ( should be negative in ghee ). The PA opined that the analytical data showed that the sample was made of vegetable fat instead of milk fat. Upon receipt of report, SDM/LHA directed investigation which was carried out by Food Inspector and after completion of investigation, sanction under Section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 15.05.2006 u/s 2(ia)(a), (b), (c) and (m) of PFA Act r/w Rule 41 & 44(c) of PFA Rules for the offence of adulteration and violation of S. 2(ix)(a), (e) (g) & (k) of PFA Act for the offence of misbranding and punishable under S. 7/16/1(a) of PFA Act.
4. On the basis of this PA report, notice of accusation u/s 251 Cr.P.C. was framed against the appellants u/s 7/16(1)(a) PFA Act, being violation of Section 2(ia)(a), (b), (c) and (m) of PFA Act and Rule 41 & 44(c) of PFA Rules and violation of Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:08 +0530 Page No. 5 of 20 CA no. 134/17 S. 2(ix)(a), (e) (g) & (k) of PFA Act for the offence of misbranding, to which they pleaded not guilty and claimed trial.
5. The prosecution examined two witnesses in support of its case. PW-1 is Sh. Kedar Nath (SDM/LHA) and PW-2 FI Sanjeev Kumar Gupta. Both these witnesses deposed about the proceedings conducted by them on 13.09.2005 and relied upon the documents Ex PW1/A to PW1/E and Ex.PW2/A to Ex.PW2/G. Both these witnesses were cross-examined by the counsel for appellants.
6. The statement of appellant no. 1 was recorded under section 313 Cr.PC on 24.07.2010 wherein he denied the allegations and pleaded innocence. He disputed the identity of the food article and asserted that it was actually vanaspati and not ghee. He also denied of receiving any intimation letter and claimed that they had been falsely implicated at the instance of another trader out of professional jealousy. None of the appellants lead any evidence in defence despite opportunity.
Digitally signedKiran by Kiran Gupta Date: 2024.05.30 Gupta 16:00:13 +0530 Page No. 6 of 20 CA no. 134/17 GROUNDS OF APPEAL
7. The appellants have taken the following grounds of appeal.
a. That the judgment of Ld. Trial Court is based on prediction and assumptions and suffers from errors of law and appreciation of evidence.
b. That the Ld. Trial Court has passed the judgment against the facts and without appreciating the contradictory evidence available on the judicial record.
c. That the trial court did not consider that complainant Sanjeev Kumar Gupta / PW-1 was not present at the premises of appellant No. 1 at the time of alleged raid on 13.09.2005. Since he was not present at the relevant time, he is not cited as a witness in FIR No. 1428/2005. Since the presence of food inspector is doubtful, therefore the proceedings u/s 7/16 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:19 +0530 Page No. 7 of 20 CA no. 134/17 PFA cannot be maintained and are liable to be dismissed. No reliance can be placed on the testimony of PW-1.
d. That the Ld. Trial Court failed to appreciate that there were public persons and police personnel available at the spot on 13.09.2005 but none of them were joined during investigation. That the Food Inspector has not tried to associate the independent witness intentionally at the time of sampling.
e. That the sample commodity lifted in this case was of vanaspati but under the threat of police, it was mentioned as 'Ghee'.
f. That the sanctioning authority has given the sanction to file the present case against the appellant without application of his mind and without going through the facts of the case.
g. That the documents alleged to be prepared at the Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:25 +0530 Page No. 8 of 20 CA no. 134/17 spot were not prepared at the spot but prepared later on in the office and the thumb impression of the accused were taken on blank papers.
It is prayed that in view of grounds of appeal, the impugned judgment dated 12.05.2017 and order on the point of sentence dated 18.05.2017 may kindly be set aside.
ANALYSIS AND FINDINGS:
8. Heard Ld. Counsel for appellants and Ld. Chief Public Prosecutor for Department and perused the appeal file as well as trial court record. The appellants have been convicted for the offence of adulteration and misbranding under PFA Act vide impugned judgment. The prosecution before the LD. ACMM has produced form VI Ex.PW1/E containing the label declarations which showed that the food article was stated to be "Special Grade Ghee" and "Pure and Fresh Ghee", as "Packaged and Digitally signed by Kiran Kiran Date:
Gupta Gupta 16:00:31 2024.05.30 +0530 Page No. 9 of 20 CA no. 134/17 Marketed by Varsha Ghee Pvt. Ltd." and having contents as "500ml net, 450 gms at 45o C" with MRP as Rs. 80/- , batch no. 0011, Month of Packing May 2005, Best Before - within 9 months from the date of packing. Though the appellants have taken the plea that the FI and the Team had themselves mentioned "Ghee" thereupon , however, no evidence has been lead by them to prove the same. The declarations on individual jars, which mention the batch no., MRP, net contents, etc. shows that these individual jars were for sale. The Ld. ACMM while considering these facts has rightly concluded that the food article can be said to be a pre-packaged article. There is no infirmity in the said finding of the Ld. ACMM.
9. In the present appeal, amongst the other grounds, the main ground taken by the appellants is that the sample which was taken was not of the 'ghee' but of 'vanaspati'. Admittedly, the appellants have not led any evidence before the Ld. ACMM on this aspect. Further, during the cross-examination of PW-1 and PW-2, there is not even a single suggestion that the sample which Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:36 +0530 Page No. 10 of 20 CA no. 134/17 was taken was not of the 'ghee' but of 'vanaspati'. The said plea has been taken by the appellant No. 1 for the first time during SA u/s 313 Cr.P.C. The Ld. ACMM in the impugned judgment has dealt with the said argument of the Ld. Counsel for appellants regarding the identity of the sample taken. He while dealing on this issue, has rightly noted that:
" in the present case, there is nothing to show that the food article was not ghee or was something other than ghee or was even unadulterated vanaspati as claimed by the defence. At the time of sampling, the FI had prepared several document Ex.PW1/A to Ex.PW1/C and all these documents clearly mention about the lifting of sample of ghee and the label on the container also mentioned it to be pure and fresh ghee. All these documents bear the signature of accused no. 1 / vendor and there is no endorsement of protest mentioned on these documents claiming that the food item was not ghee or was vanaspati. The accused no. 1 never objected to the food officials claiming the food article to be ghee. There is nothing on record to show that the appellants have subsequently sent the representation to PFA department in this Digitally signed by Kiran Kiran Gupta Date:
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regard. Neither any representation nor any complaint was filed by the appellants before PFA department or any other forum. Further, the submission of Ld. Counsel for appellant is contrary to the questions put during cross- examination of PW-1 and PW-2. During cross- examination of PW-2, in fact it is suggested that accused did not prepare nakli ghee but asli ghee."
10. It seems that the appellants have taken the plea disputing the nature of the article for the first time at the time of SA recorded u/s 313 Cr.P.C and at the time of appeal. The Ld. ACMM in the impugned judgment has discussed this aspect in detail and there is no infirmity in finding that the sample which was seized was ghee and not vanaspati as claimed, more particularly in view of the endorsement made to the effect on packaging "packets of ghee were ready for sale". The Ld. ACMM has further rightly noted that there is no data before the court to conclude that the sample was of pure and unadulterated vanaspati and not that of ghee adulterated with vanaspati.
Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:47 +0530 Page No. 12 of 20 CA no. 134/17 Further, the documents were prepared by FI on the spot and bears the signature of appellant no. 1, hence, the argument of Ld. Counsel for appellants that FI / PW1 was not present on the spot and that the documents were prepared later on is without any basis and not tenable.
11. Now, coming to the other ground of the appellants that the Ld. Trial Court has failed to appreciate that the witnesses deposed before the court were against the facts and contradictory to each other. Though the appellants have taken the said ground, however, they have nowhere described as to how and in which manner the deposition of witnesses were against the facts or contrary to each other. No contradiction in the deposition of witnesses which is fatal to the case of prosecution, is pointed out by the appellants. Further, the non joining of the public witnesses is not fatal to the case of prosecution.
12. One of the grounds / argument of the Ld. Counsel for the appellants is that the sanctioning authority has given the Digitally signed by Kiran Kiran Gupta Date:
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sanction without application of mind. In the present matter the sanction was taken by Food Inspector PW-1 Sh. Sanjeev Kumar Gupta from the then Director, PFA and thereafter a complaint Ex.
PW1/A was filed in the court. The appellant has failed to disclose any material on record which reflects that the sanction to prosecute was given by Director, PFA without application of mind. In the absence of any material to support this contention, the same is not tenable.
13. Now, coming to the other ground / contention that the Ld. Trial Court has wrongly placed reliance on the PA report. U/s 13(2) PFA Act. It is settled law that the accused has the right for getting the sample analyzed through CFL by moving appropriate application within the limitation period. In the present case, the appellants did not exercise such rights. Their application filed before the Ld. ACMM was dismissed on 11.06.2008. The said order was never challenged by the appellants, hence it attained finality. On the contrary, PW-1 proved the acknowledgment by appellant No. 1 of receipt of Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:00:58 +0530 Page No. 14 of 20 CA no. 134/17 intimation letters. As per the report, BR reading exceeded the prescribed maximum limit (it was 55.1 (when the range should be 40.0 to 43.0), the RM value was less than the prescribed minimum limit -it was 0.62 (when it should not be less than 28) and the BT Test (Baudouin Test) was positive ( should be negative in ghee ). The appellants have failed to tender any explanation as to how the BR reading went so high in case of ghee sold by them. The appellants have failed to point out any flaw in the findings of Ld. ACMM in placing reliance upon the PA report.
14. The Ld. Trial Court vide detailed judgment has given clear findings with regard to all the defences taken by the appellants. There is no illegality or infirmity in the impugned judgment of conviction dated 12.05.2017. The judgment dated
12.05.2017 passed by Ld. ACMM-II, New Delhi, Patiala House Courts in CC no. 123/06 (41330/16) is upheld. Accordingly, the appeal against the judgment dated 12.05.2017 is dismissed.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.05.30
16:01:03
+0530
Page No. 15 of 20
CA no. 134/17
ORDER ON SENTENCE
15. The appellants in the present appeal have also challenged the order on the point of sentence dated 18.05.2017. It is argued that the PFA act has been recently amended which prescribes the punishment of fine also. It is prayed that in view of pendency of case for a long period, a lenient view may kindly be taken. On the other hand it is argued on behalf of department by Ld. Chief Public Prosecutor that the Ld. Trial Court has already taken a lenient view and there is no illegality in the order of sentence.
16. The appellant/convict is convicted for commission of offence punishable under Section 16(1)(a) of PFA Act wherein the minimum sentence of imprisonment was awarded. However, w.e.f. 15.10.2007, new Food Safety and Standards Act, 2006 came into force in which, for similar offence, the punishment of only of fine has been prescribed.
Digitally signed by Kiran Kiran Gupta Date:
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17. In view of above, question for consideration before this court is whether after repeal of earlier Act and introduction of new Act which contains the lesser punishment, the court can take a lenient view of awarding the lesser punishment. On this issue, Hon'ble Supreme Court in case titled as M/s A. K. Sarkar & Company & Anr. Vs. The State of West Bengal & Ors, Special Leave Petition(Criminal) No.6095 of 2018, dated 07.03.2024, has observed that:
"Whether the appellant can be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law. This court in T. Barai VS. Henry Ah Hoe (1983) 1 SCC 177, had held that when an amendment is beneficial to the accused it can be applied even to cases pending the courts where such a provision did not exist at the time of commission of offence."
18. The recent judgment of Hon'ble Supreme Court in case M/s A. K. Sarkar & Company & Anr.(supra) has made it clear that if there is an amendment in the Act, which is beneficial Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:01:14 +0530 Page No. 17 of 20 CA no. 134/17 to the accused, it can be applied even to the pending cases in the court where such provision was not in existence. The ratio of judgment M/s A. K. Sarkar & Company & Anr.(supra) is squarely applicable to the facts of present case. Therefore on the basis of above case law, I have no hesitation to hold that this court can take a lenient view as per new provisions of law.
19. In the present case the complaint was filed on 15.05.2006. The appellants were held guilty and convicted for the offences punishable under Section 7/16(1)(a) of PFA Act for selling adulterated food and misbranding and have been sentenced as follows:
a. The appellant no. 1 has been sentenced to undergo SI for one year with fine of Rs. 50,000/- for the offence punishable under Section 16(1)(a) read with Section 7 of PFA Act and to undergo simple imprisonment for one month in dafault of payment of fine.
Digitally signed by Kiran Kiran Date:
Gupta Gupta 2024.05.30 16:01:19 +0530 Page No. 18 of 20 CA no. 134/17 b. The appellant No. 2 has been sentenced to pay fine of Rs. 1,00,000/- for offence punishable u/s 16(1)(a) read with Section 7 of PFA.
20. The appellants have already faced the trauma of trial for almost 18 years. The circumstances disclosed by Ld. Counsel for the appellants/convicts also warrants taking of a lenient view. Considering all the aspects; nature of offence as alleged, submissions made, a lenient view is taken and the sentence imposed by the Ld. Trial court vide order dated 18.05.2017 for commission of offence under Section 16(1)(a) of PFA Act is modified qua the appellant no. 1. The appellant no. 1 is sentenced to pay fine of Rs.1,00,000/-. The order on sentence with respect to appellant no. 2 is upheld.
21. The fine amount shall be deposited by the appellants before the concerned court within a period of 15 days from today. In case of default of payment of fine, the appellant no. 1 shall undergo simple imprisonment for a period of 60 days.
Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:01:24 +0530 Page No. 19 of 20 CA no. 134/17 Appeal is accordingly partly allowed.
Attested copy of the judgment be given to the appellants/convicts, free of cost. Trial court record be sent back to the court concerned alongwith copy of this judgment.
Appeal file be consigned to record room after necessary compliance.
Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.05.30 16:01:31 +0530 Announced in the KIRAN GUPTA open court on 30.05.2024 ADDL. SESSIONS JUDGE-04, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, DELHI/30.05.2024 Page No. 20 of 20