Delhi District Court
Da vs . Mukesh Garg & Anr. Page 1/14 on 11 February, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 71/07
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35 ......... Complainant
Versus
1.Mukesh Garg S/o Sh. C.S. Garg M/s. Laxmi Agency, D14/21, Sec. 3, Rohini Delhi 110085 R/o D14/21, Sec. 3, Rohini, Delhi 110085 ......VendorcumProprietor
2. Reena Malhotra W/o Sh. Sudhir Malhotra R/o JE 1/1 Khirki Extn. Malviya Nagar, New Delhi S.M. Foods, WZ114D, Main Road, Todapur Village New Delhi ..........Incharge of Delhi Division
3. Milind Randhir (Nominee) M/s. Venkataramana Food Specialities Ltd.
Plot No. A474, Road No. 34Wagle Industrial Estate, Thane 400604 .......... Nominee
4. T.K. Barik S/o Sh. D.N. Barik Manager (Production) M/s. Venkataramana Food Specialities Ltd.
Plot No. 9, Industrial Area, Malan Pur Distt. Bhind, Gwalior 474001 ........ Nominee CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 1/14
5. M/s. Venkataramana Food Specialities Ltd. (VFSL) Madras, Tamilnadu, Plot No. A474, Road No. 34 Wagle Industrial Estate, Thane 400604 ......... Company Serial number of the case : 71/07 Date of the commission of the offence : 08.06.2006 Date of filing of the complaint : 06.06.2007 Name of the Complainant : Sh. Sanjiv Kr Gupta, Food Inspector Offence complained of or proved : Section 2 (ix) (g) & (k) of PFA Act, 1954 r/w Rule 37 of PFA Rules, 1955 which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty Final order : Acquitted. Arguments heard on : 11.02.2016 Judgment announced on : 11.02.2016 Brief facts of the case 1 In brief the case of the prosecution is that on 08.06.2006 at about 1.15
p.m, Food Inspector Sanjiv Kumar Gupta and Field Assistant Brahamanand under the supervision and directions of SDM/LHA Sh. B.S. Thakur visited the premises of M/s Laxmi Agency, where accused Mukesh Garg who was the vendorcumproprietor was found present conducting the business of sale of Cheese Ball, for sale for human consumption and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the PFA Act & PFA Rules) the Food Inspector collected/ purchased the sample of Cheese Ball.
2 During the course of investigation, it was revealed that Sh. Mukesh Garg S/o Sh. C.S. Garg was the vendorcumproprietor of M/s Laxmi Agency and the CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 2/14 Incharge and responsible for the day to day conduct of the business of the said shop.
3 It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was misbranded because best before date is declared in a misleading manner and there is complete violation of Rule 37 of PFA Rules, 1955. Accordingly, after obtaining the necessary Sanction/ Consent under Section 20 of the PFA Act, the present complaint was filed for violation of provisions of section 2 (ix) (g) & (k) of the PFA Act which is punishable under section 16 (1) (a) read with Sec. 7 of the PFA Act, 1954. 4 The case was further investigated and during investigation, the vendor Mukesh Garg disclosed that the sample commodity was supplied to him by M/s S.M Foods and Smt Reena Malhotra is in incharge of M/S S.M Foods. M/s S.M Foods is a division of Venkataramana Food Specialities Ltd. And Sh. Milind Randhir is the nominee of Venkataramana Food Specialities at Thane and Sh. T.K Barik is the nominee of the company of Gwalior Establishment.
5 After the complaint was filed, the accused were summoned vide order dated 06.06.2007.
6 Notice for violation of provision of Section 2 (ix) (g) & (k) of the PFA Act and violation of Rule 37 of PFA Rules punishable under section 16 (1) (a) read with Sec. 7 of the PFA Act, 1954 was framed against all the accused persons vide order dated 15.12.2009 to which accused persons pleaded not guilty and claimed trial. CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 3/14 7 Statements of the accused persons U/sec. 313 Cr. P.C. were recorded on 21.10.2013 wherein the accused persons claimed themselves to be innocent. Despite opportunity, accused persons did not lead any defence evidence. 8 The prosecution examined two witnesses in support of its case namely PW1 Sanjeev Kumar Gupta and PW 2, Brahmanand.
A brief scrutiny of the evidence recorded in the matter is as under: 9 PW1 Sh. Sanjeev Kumar Gupta, FI deposed that on 08.06.2006, he alongwith Field Assistant Brahamanand under the supervision and direction of SDM/LHA, Sh. B.S. Thakur visited the M/s Laxmi Agencies, D14/21, Sector 3, Rohini, Delhi, where accused Mukesh Garg was found conducting the business of food articles in the said shop including 'Cheese Ball' in sealed foil packs of 25 gms each bearing identical label declaration. He deposed that he disclosed his identity and intention for taking the sample of Cheese Ball for analysis, to which accused agreed. Before taking the sample he tried his best to procure some public witnesses by requesting some neighbourers, customers and passerby to join the sample proceedings but as none agreed and on his request, FA Brahamanand, agreed and joined as witness. At about 1.15 pm, he purchased 60 x 25 gms of 'Cheese Balls' in sealed foil packs bearing identical label declaration on payment of Rs. 525/ vide vendor's receipt Ex. PW1/A. Then he divided the sample into three equal parts by putting 20 sealed foil packets as such of Cheese Ball in one cardboard box as one counterpart and each counterpart containing the sample of Cheese Ball was separately packed, fastened, marked and sealed according to PFA Act and Rules. LHA Slip bearing his code number and signature was affixed on all the three counterparts of the bottle. Then, the vendor signatures were obtained on LHA Slip in CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 4/14 such a manner that a portion of his signature were on the wrapper as well as on the LHA Slips. Then notice in Form VI Ex.PW1/B was prepared at the spot and copy of it was given to the accused as per his endorsement at potion A to A bearing his signature at point A. He deposed that vendor made endorsement at point B to B that he purchased the sample packets from M/s. S.M. Foods, WZ114D, Todapur Village, New Delhi vide Invoice No. DEL 139 dated 29.05.2006. He deposed that accordingly, a notice U/Sec. 14A Ex.PW1/D addressing to M/s. S.M. Foods, WZ114D, Todapur Village, New Delhi was also prepared at the spot and same was sent through the registered post on the next working day. He deposed that Panchnama Ex.PW1/C was prepared. He deposed that vendor also furnished his statement Ex.PW1/D1 that he is the proprietor of the said shop and gave the photocopy of DL, DVat Form and Bill of purchase of sample commodity mark X1 to X3.
10 He deposed that all these documents Ex.PW1/A to Ex.PW1/D were read over and explained to the accused in Hindi and after he understood the same accused signed at point A and witness signed at point B and then he signed at point C respectively. He deposed that one counterpart of the sample was deposited with the PA on 09.06.2006 i.e. next day vide receipt Ex.PW1/E in a sealed packet containing one copy of memo in Form VII and another sealed envelop containing one copy of another Memo in Form VII separately. He deposed that two counterparts of the sample alongwith two copies of Memo of Form VI in a sealed packet were deposited in intact condition with the LHA on 09.06.2006 i.e. next working day vide receipt Ex.PW1/F bearing his signature at point A with the intimation that one counterpart of the sample has already been deposited intact condition with the PA. He deposed that all the copies of memo of Form VII bore the same seal impression CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 5/14 with which the sample in question was sealed. He deposed that the PA Report Ex.PW1/G was received according to which, the sample was found misbranded as Best before declaration was mentioned in the misleading manner, as mentioned therein at point X. 11 He further deposed that during investigation, he also sent a letter Ex.PW1/H to STO Ward No. 63 to disclose the constitution of M/s. Laxmi Agencies and reply received at portion A according to which, Sh. Mukesh Garg was the proprietor of M/s. Laxmi Agencies. He deposed that he sent a letter Ex. PW 1/1 to STO Ward no. 103 to disclose the constitution of M/s. S M Foods and as per its reply at portion A , no such firm was found registered with the Sales Tax. He deposed that he also sent letter Ex. PW 1/J to M/s. S.M Foods and received reply Ex. PW 1/J1 that Smt. Reena Malhotra was the incharge of M/s. S.M.Foods, the Regional Sales Manager and she also gave the photocopy of stock transfer note Ex. PW 1/J2 of Venkataramna Food Specialities Ltd. He deposed that he sent two letters Ex. PW 1/K & K1 to Registrar of Companies, Tamilnadu and Madhaya Pradesh, but no reply was received. He deposed that he also sent letter Ex. PW 1/L to Vaishali M. Shetty and received the list of Directors Ex. PW 1/L1, it also revealed that Sh. T K Barik was the Nominee of the company of Gwalior Establishment i.e. manufacturing unit and Sh. Milind Randhir was the Nominee of Venkataramana Food Specialities Ltd. at Thane, copy of form VIII and Resolution is Ex. PW 1/L2 to L5. He deposed that he enquired from the office vide letter Ex.PW1/L6 in respect of warning issued to M/s. Laxmi Agencies, Venkataramana Food Specialities Ltd. & M/s. S.M. Foods and as per reply at portion A, no warning was issued to them. He deposed that on completion of the investigation by him, the complete case file alongwith all statutory documents were sent to LHA to the Director (PFA), Sh. K.S. Wahi, who after going through the case CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 6/14 file, gave his consent for prosecution Ex.PW1/M which bears his signature at point A. He deposed that the intimation letter Ex.PW1/O alongwith PA Report was sent to accused by registered post by the SDM/LHA, Sh. M.K. Dwivedi which was not received back undelivered. He deposed that the postal registration receipt copy is Ex.PW1/P bearing the relevant entry at point A. 12 During his crossexamination, he stated that Cheese Ball is not a kind of milk product. He stated that Cheese Flavour was one of the ingredients. He stated that cheese ball is a type of prepared food. He stated that he cannot say some preservative is required to be added for prepared food. He stated that he cannot say that if sorbic acid is recommended preservative for such type of food. He stated that PA Report was received on 15.07.2006. He stated that the complaint was filed after about one year as time was taken during investigation. He stated that he had not discussed the facts of this case with the Director, PFA. He stated that he cannot say that Director, PFA did not mention the date on consent to cover up the delay. He denied that he intentionally delayed the filing of the complaint so that right of accused U/Sec. 13(2) of PFA Act may be frustrated. He stated that as per the complaint and sanction, there was violation of Rule 37 of PFA Rules as beset before declaration was misleading. He stated that generally, consent is given on the basis of the report of PA. He stated that in the PA Report, violation of Rule 37 is not mentioned, but is mentioned that Best before is declared in misleading manner. He denied that consenting authority had given the consent without application of mind. He stated that he did not go to Gwalior during investigation to ascertain that Venkataramana Food Specialities Ltd. is an automatic plant where manufacturing and packing work is done simultaneously or that date of manufacturing and packing is one and same. He stated that date of packing was reproduced on Ex.PW1/B. He stated that he had not CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 7/14 mentioned in the complaint that LHA slip was pasted on the cardboard box. He denied he did not follow the procedure for lifting the sample. He stated that he mentioned in the Raid Report under Rule 9 (e) Ex.PW1/D1 that he tried to associate the public witnesses but none agreed. He accepted that Ex.PW1/D1 does not bear the signature of vendor. He denied that Report under Rule 9 (e) was prepared later on.
13 PW2 Sh. Bhramanand, Field Assistant deposed on the same lines as deposed by PW1 in his examination in chief.
During his crossexamination by accused no. 1, he stated that the sample in question was found properly stored and vendor gave the sample to the FI in the sealed and intact condition.
During his crossexamination by accused no. 2 to 5, he stated that he cannot say if now a days manufacturing and packing of the food items like the present one is done simultaneously in ultra modern manufacturing plants. He stated that he cannot say if the date of manufacturing and the date of packing is same in ultra modern manufacturing plants. He stated that he cannot say that the product in question was manufactured at Malanpur, District Bhind, Rajasthan or the stock was transferred to Delhi to M/s. S.M. Foods from there. He stated that he cannot say if M/s. S.M. Foods is the division of Venkatrana Food Specialities Ltd. Gwalior. He stated that he has no knowledge if the PFA Department used to issue the warning for the first violation of Rule 32 of PFA Rules. He stated that he cannot say if Cheese Ball, a product of Cheese is a perishable commodity or not. He stated that no preservative was added by the FI at the time of sample proceedings. He stated that CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 8/14 he cannot say that the complaint has been filed belatedly or not. 14 This so far is the evidence in the matter.
15 Ld. Counsels for accused persons has pleaded for acquittal of accused. It is argued by him that Food Department formulated a policy way back in the year 1985 vide policy No. F.6(228)/851/ENF/PFA Dated 29.09.1985. The said policy provides that in case of first violation of Rule 32 of PFA Rules 1955 (hereinafter referred to as PFA Rules), the defaulter must be given a written warning at the first instance drawing its attention to Rule 32 of PFA Rules, providing for particulars to the exhibited on sealed container or package. Only in the event of said offence being repeated even after giving written warning, the accused should be prosecuted. The sample confirmed to standards in the present case and it is a case of only misbranding for violation of Rule 32 of PFA Rules, by the accused persons and they were not given the benefit of written warning in terms of aforesaid policy without any plausible reason. It is argued on this count only, the accused is entitled to be acquitted. It is also argued that the prosecution has also not succeeded in proving violation of Rule 37 of PFA Rules by the accused persons. It is argued that the packet of sample commodity bears the date, month and year of packing. In modern time in automatic plants, there is not considerable time gap between the two processes of manufacturing and packaging and therefore non mentioning of the date of manufacturing of the product will not amount to violation of PFA Act. Reliance is placed on judgment titled as S.S. Gokul Krishnan and Ors. Vs. State through Food Inspector (PFA) Government of NCT of Delhi, 2009 (1) FAC 132 by Ld. Counsel for accused persons.
CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 9/14 16 On the other hand, Ld. SPP for the complainant has argued that the accused persons are not entitled to the benefit of the aforesaid policy as they have been prosecuted for violation of Rule 37 of the PFA Rules. As per the said policy, the benefit of said policy could be given only to the first time offender of violation of Rule 32 of PFA Rules prescribing labelling conditions/ requirements for sealed container or packet.
17 I have carefully considered the submissions and perused the record meticulously.
18 The Public Analyst vide her report dated 11.07.2006 found that the sample misbranded because Best before is declared in a misleading manner. The notice in Form 'VI' bears reproduction of label declaration which reads as follows: LHA Code No. 63/LHA/15865 Details of Food Cheese balls (Ready for sale) 60X25 gms of cheese balls taken as such in the form of sixty foil packs, having following main identical label and declaration : o green PEPPY SM FOODS M.R.P. Rs. 10.00 CHEESE BALLS (Inclusive of all Taxes) Net Wt 25 g Ingredients : Corn Grits, Vegetable (In gms) Oil, Cheese, Flavour, Salt & Batch No. 1313 Anti oxidants.
Pkd. On - 11 May 06. No Onion No Garlic
Mfd. By VFSL G Namkeen Papad.
For S.M. Foods (A division of VFSL) Manufacturing location
Best before 4 Months from Mfg. Tiemac Snack Food Pvt Ltd (TSFPL)
Consumer Cell Village Dharsania Dist. Barabanki
S.M.Foods (A Division of VFSL) Venkataramana Food.
Plot No. A/474 Road No. 34 Specialities Ltd. Gawalior (VFSLG)
Wagle Industrial Estate. Thane 400604 Malanpur Indu. Estate Bind (Gwalior)
CC No. 71/07
DA Vs. Mukesh Garg & Anr. Page 10/14
Rule 37 of PFA Rules provides;
"A label shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place of origin of the said food.
Rule 32 (i) of PFA Rules provides the manner in which the best before date is to be written/declared on sealed container. The relevant portion of Rule 32 (i) of PFA Rules are reproduced herein below:
32. Every prepackaged food to carry a label. xxxx xxxx xxxx xxxx
(i) The month and year in capital letters upto which the product is best for consumption, in the following manner, namely : "BEST BEFORE...... MONTHS AND YEAR"
OR "BEST BEFORE......MONTHS FROM PACKAGING" OR "BEST BEFORE......MONTHS FROM MANUFACTURE"
OR "BEST BEFORE UPTO MONTH AND YEAR......"
OR "BEST BEFORE WITHIN...... MONTHS FROM THE DATE OF PACKAGING / MANUFACTURE"
xxxx xxxx xxxx xxxx 19 On perusal of Form VI as reproduced above, it is found that sealed
packet bears the date, month and year of packing(11 May 2006) and the expression "Best before 4 months from manufacturing". In a similar case of alleged misbranding, the Hon'ble High Court of Delhi in S.S. Gokul Krishnan (Supra) quashed the proceedings under Rule 32 (i) of PFA Rules and also held that the label with respect to best before date, is not misleading to the consumer. In the said case, the declaration on sample commodity contained "Best Before 9 Months From Date of CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 11/14 Packing" and date of packing was not given and only month and year of manufacturing was given. The Hon'ble High Court of Delhi observed as under : "19. In the instant case, declaration under Rule 32(i) is 'best before' 9 months from packing. Since the month and year of manufacture of the food article i.e. processed cheese is clearly disclosed on the packet, it cannot be said that the consumer would be mislead from the terms 'best before 9 months from packing'. The consumer, under these circumstances, would be clear in his mind to consider the best before from the date of manufacturing. The processed cheese conformed the standard on analysis.
20. Prime facie, therefore, it cannot be said that the sample was misbranded because misleading statement was given on the label with respect to best before date. The consumer is provided with sufficient information as required under the Act and Rule 32 to know about the genuineness of the product and also to enable him to make a decision whether to purchase the said food article or not. Even if, the words 'best before 9 months from manufacturing or packing' are not contained on the packet; instead the words best within 4 months are mentioned on the packet, it would not in any way mislead the consumer. Hence by no stretch of imagination the product could be termed as misbranded. There is no adulteration in the product. As per the information disclosed on the packet, it cannot be said that there is misbranding, only because the date of packaging has not been disclosed specially when the month and year of manufacturing is specifically disclosed.
20 In the present case also the date, month and year of packing is clearly displayed on sealed Cheese Balls Packets alongwith expression "Best before 4 months from manufacturing". The facts of the present case are squarely covered by the law as propounded in S.S. Gokul Krishnan judgment (Supra). So, the prosecution has not successfully proved that any false or misleading statement has been made in respect of labelling of sample commodity and the violation of Rule 37 of the PFA Rules by accused persons.
21 As regards violation of Rule 32 by the accused persons, Ld. SPP for the CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 12/14 complainant has not disputed that the policy bearing No. F.6 (228)/851/ENF/PFA Dated 29.09.1985 was in force at the time of lifting of sample i.e. on 8.06.2006 in the present case. The Hon'ble High Court of Delhi in judgment of S.S. Gokul Krishnan and Ors.(supra)accorded the benefit of the aforesaid policy to the accused who was found contravening Rule 32 of PFA Rules for the first time and was deprived of the benefit of first warning ignoring the aforesaid policy. The said judgment of S.S. Gokul Krishnan (Supra) was thereafter followed by Hon'ble High Court of Delhi in M/s. Hindustan Unilever Vs. State (GNCT of Delhi) & Ors 2011 (1) FAC 183 and M/s. Gupta Tea Traders & Ors. Vs. State 2012 (2) FAC 415.
22. Here, it would be apposite to reproduce the relevant policy. It reads thus: "2. It would be noted from the perusal of the above Rule that an elaborate procedure has been prescribed for labelling sealed contents indicating therein the code number date of packing etc. However, it has been noticed that in quite a few cases contents of the sealed article of food was found conforming to the standard prescribed under the Rules, whereas the labelling done on the container or the packet was deficient in certain respect and was not in conformity with the provision contained in rule 32 of the PFA Rules, 1955. After detailed discussion on the subject, it was appreciated that in case the contents of the sealed packets or container conform to the standard laid down under the PFA Rules, deficiency with regard to Rule 32 which pertains to the particulars of the labelling on the container or packet, was only a technical offence, though it attracted Rule 32 and there was breach of this Rule in some respect in the course of packing the article of food. In such cases there was unanimous view during the course of discussion that the party effected may be given a written warning drawing his attention to Rule 32 which provides for labelling particulars to be exhibited on the sampled Tin or the packet and in case the practice is repeated after a written warning to the party concerned, the CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 13/14 party committing the offence second time should be prosecuted. However, this could not apply in case where the contents of the sealed packed or container are not conforming to the prescribed standard and hence are adulterated. In such cases, prosecution would be launched both for adulteration and for breach of Rules
32. After the Secretary (Medical), as the consenting Authority, has approved the above proposal all the pending cases would be disposed of accordingly."
23 The first time offender for violation of Rule 32 of PFA Rules, is entitled to benefit of said policy. The FI clearly deposed that no previous warning was given to M/s. Laxmi Agencies, Venkataramana Food Specialities Ltd. & M/s. S.M. Foods as per EX. PW1/L6. The sample was lifted on 8.06.06 when the abovesaid policy was in force. The sample commodity was not found to be adulterated. The department thus deprived the accused persons of benefit of first warning without any plausible reason and they were entitled to benefit of warning and prosecution was not rightly launched against them.
24 In view of the aforesaid discussions, all the accused persons namely Mukesh Garg, Reena Malhotra, Milind Randhir, T.K. Barik and M/s. Venkataramana Food Specialities Ltd. (VFSL) are acquitted for offence punishable U/Sec. 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act for violation of Section 2 (ix) (k) of PFA Act, 1954 read with Rule 37 of PFA Rules, 1955.
Announced in the open Court [PRIYA MAHENDRA] on 11.02.2016. ACMMII/ New Delhi CC No. 71/07 DA Vs. Mukesh Garg & Anr. Page 14/14