Delhi District Court
In Re vs A-1) Ashwani Kumar Yadav on 15 November, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1899/09
Unique Case ID No. 02403R0239482009
Date of Institution: 03.08.2009
Date of reserving judgement: 23.09.2016
Date of pronouncement: 15.11.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110 035 ... Complainant
versus
A-1) Ashwani Kumar Yadav
S/o Sh. R. C. Yadav
R/o 291/A, Railway Colony, Punjab Lines,
Ghaziabad, UP
A-2) Bhudev Prasad
S/o Sh. Om Prakash
R/o E-242, Inderpuri, New Delhi-110012
A-3) Sunil Sharma
S/o Sh. Satya Prakash Sharma
R/o RZF 34, Gali no. 41, Sadh Nagar
Palam, New Delhi-110045
A-4) M/s. Reliance Fresh Ltd. (formerly M/s. Ranger Farms Pvt. Ltd)
4th Floor, Brindavan, Shri Ram Mills Compound,
Ganpat Rao Kadam Marg, Worli, Mumbai-400013
CC No. 1899/09 Page 1 of 18
A-5) Ramesh Chand Vijayvargiya
M/s. A-One Products
11/6, Lalji Saand ka Rasta,
Chowkri Modi Khana,
Jaipur-3, Rajasthan ... Accused persons
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The food article, that is, 'Chulbuli Imli' was lifted for sampling from a Sales Unit of accused no. 4 Company, where accused no. 1 was the Vendor-cum-Store Incharge, accused no. 2 was its nominee at store and accused no. 3 was its nominee at warehouse. Accused no. 5 is stated to be the manufacturer/supplier of the food article.
2. As per the complaint, on 05.03.2008, the food officials consisting of Food Inspector (FI) Gian Chand and Field Assistant (FA) S. N. Jindal under the supervision of Local Health Authority (LHA)/SDM Sh. B. S. Thakur reached along with their staff at the premises of a Sales Unit of accused no. 4 Company at FD-4, Pitampura, Near Pitampura Metro Station, New Delhi-110034, where the accused no. 1 in the capacity of Store Manager was found having vending 'Chulbuli Imli' lying in originally sealed plastic boxes of 140 grams each bearing identical label declaration, for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'Chulbuli Imli' from CC No. 1899/09 Page 2 of 18 the vendor, to which he agreed. A sample of nine such sealed bottles was then lifted as per procedure prescribed under the PFA Act and Rules. The same were divided into three parts by putting together three bottles as one counterpart. Each counterpart was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with LHA/SDM. Vide report dated 26.03.2008, the PA found the sample to be adulterated due to presence of synthetic colouring matter cormoisine, and also misbranded being in violation of Rules 24 and 32(i) of PFA Rules. Upon receipt of report, the LHA ordered investigation which was carried out by FI. It was revealed that the food article has been supplied at the Sales Unit by the warehouse of the accused no. 4 company, that accused no. 2 was the nominee appointed for the sales unit, that the accused no. 3 was the nominee appointed for the warehouse and that the food article had been manufactured and supplied to the accused no. 4 company by the accused no. 5. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the SDM/LHA. The complaint was then filed in the court against all the accused persons 03.08.2009 alleging violation of section 2(ia)(a), (j) and (m) of PFA Act read with Rules 23 and 29 of PFA Rules as punishable section 7/16(1A) of PFA Act, as well as violation of section 2(ix)(k) of PFA Act read with Rules 24 and 32(i) of PFA Rules as punishable section 16(1)(a) of PFA Act.
CC No. 1899/09 Page 3 of 183. 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 03.09.2009.
4. The accused no. 5 appeared and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 11.09.2009, opining the sample to be in violation of Rule 29 of PFA Rules due to presence of synthetic colour carmoisine, and also misbranded due to violation of Rule 32(e) and (f) of PFA Rules.
5. Based on the CFL report, pre-charge evidence was recorded wherein the prosecution examined PW-1 FI Gian Chand in its support. Based on his deposition, charge was framed against all the accused persons on 28.05.2010 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (j) and (m) of PFA Act and Rule 29 of PFA Rules, as well as for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ix)(k) of PFA Act (though this section was not mentioned as such in the charge so framed) and Rules 32(e) and (f) of PFA Rules, to which they pleaded not guilty and claimed trial. The witness already examined in pre charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-3 CC No. 1899/09 Page 4 of 18 SDM/LHA Sh. B. S. Thakur, PW-3 FA S. N. Jindal and PW-4 Sh. Tota Ram.
6. PW-1, PW-2 and PW-3 were part of the team that had lifted the sample. They deposed about the proceedings conducted by them on 05.03.2008 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of nine sealed bottles of Chulbuli Imli of 140 grams, dividing it in three parts by considering three bottles as one counterpart, fastening, sealing, marking the samples, and obtaining signatures of vendor and witness. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, cash memo Ex. PW-1/A1, notice Ex. PW-1/B, Panchnama Ex. PW-1/C, Notice under section 14A Ex. PW-1/D, Raid report Ex. PW-1/D1 PA Receipt Ex. PW-1/E and LHA receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and investigation was carried out by PW-1 who ascertained the identity, role and responsibility of other accused persons by writing several letters to them and various departments. PW-4 also produced record of nomination. After completion of investigation, sanction Ex. PW-1/K was taken from the Director PFA and complaint Ex. PW-1/L was filed in the court by PW-1. A copy of PA report with intimation letter Ex. PW-1/M was sent to the accused persons through post vide receipt Ex. PW-1/N. These witness were duly cross-examined by the respective Ld. Defence Counsel for accused no. 1 to 4 on the one hand and for accused no. 5 on the other hand, wherein they denied that the sample was not tested under proper category or that a false case had been filed.
CC No. 1899/09 Page 5 of 187. Statements of the accused persons under section 313 CrPC were recorded on 05.07.2016 wherein they denied the allegations and pleaded innocence. Accused no.1 to 4 accepted the sample proceedings, though claimed that the food article had been purchased in sealed condition from accused no. 5 against a bill and was being sold in the same state. On the other hand, accused no. 5 accepted that the food article had been sold by him to accused no.4 vide bill issued by him, though claimed that there was no violation of any rule as the synthetic colour was permitted for this category of food. They chose not to lead evidence in defence.
8. It is in these circumstances, Ld. Counsel for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the PA and CFL reports which confirm that the article was containing synthetic colouring matter carmoisine in violation of Rule 29 of PFA Rules.
9. On the other hand, Ld. Defence Counsel have submitted that there is inherent defect in the prosecution case as the food article was not tested properly and proper standards were not applied while giving opinions by the analysts.
10. I have heard the arguments advanced by Ld. SPP for the complainant and respective Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
CC No. 1899/09 Page 6 of 1811. To begin with, it is seen that the accused persons have not disputed the sample proceedings dated 05.03.2008. It is nowhere in dispute that the food officials had visited the premises of accused no. 4 and had lifted a sample of Chulbuli Imli which was found stored at the site meant for sale for human consumption in originally sealed plastic bottles of 140 gram each having identical label declaration. It is again not disputed that accused no. 1 was the vendor cum store manager of the said premises of the accused no. 4 company, that accused no. 2 was the nominee at the store, and that accused no.3 was the nominee at the warehouse of the company.
12. It is also not disputed by accused no.5 that the food article had been sold by him to accused no.4 company against a proper bill / invoice. He has admitted this fact even in his statement under section 313 CrPC and has accepted that the food article in question had been manufactured / packed by him. The label declaration on the food article also show the details of accused no. 5 which have not been disputed or denied. It is not the case of accused no. 5 that the food article was a duplicate or spurious food article being sold under his name. Even during the course of investigation, he had given replies / representation to the FI admitting the issuance of bill no. 2561 dated 28.02.2008 furnished by the accused no.4 company. Vide letter Ex. PW-1/I3, accused no.5 had desired to see the food article to confirm that the sampled commodity belonged to him or not. However, as per PW-1, since the sampled bottles had already been sealed, such request could not be entertained.
CC No. 1899/09 Page 7 of 1813. After going through the entire record, it becomes clear that as far as accused no.1 to 4 are concerned, they are protected under the benefit of warranty under section 19(2) of PFA Act. The material is sufficient to show that the food article was purchased by them from accused no. 5 against a proper bill / invoice as per proviso to section 14 of PFA Act and that the same was being sold in the same originally sealed state. Therefore, these accused persons are protected under the concept of warranty.
14. As far as accused no.5 is concerned, it is not in dispute that the sample was sent for analysis to the PA by the FI which was examined by her and report Ex. PW-1/G was given. The averments pertaining to grant of sanction of the Director PFA, filing of the complaint and then sending intimation letter along with copy of PA to accused persons are not disputed. It is a matter of record that after receiving a copy of PA report, the accused exercised right under section 13(2) of PFA Act and got the sample analysed through the CFL wherein the Certificate dated 11.09.2009 was given by the Director CFL, which as per section 13(3) and 13(5) of the PFA Act is final and conclusive after superseding the PA report.
15. For that matter, it is interesting to know that the accused persons are not even questioning the said reports of the PA or the CFL with respect to the analytical values or the results therein arrived at after chemical analysis of the product. The accused persons have not disputed the presence of synthetic food colours cormoisine in the sample, as identified by both the analysis. It is nowhere the case of the accused persons that no CC No. 1899/09 Page 8 of 18 such colour was there or that the findings to this extent are wrong. Rather the label on the product itself mentioned that edible colour was one of the ingredients in the food article, as can be seen from the Notice in Form-VI Ex. PW-1/B.
16. The sole ground urged by the defence is, that the opinion given by the analysts, that the food was 'adulterated' being in violation of Rule 23 and 29 of PFA Rules, is incorrect. It is submitted that both the analysis have acted on wrong presumption by treating the food article in question as a Proprietary Food wherein the colours were not permitted. The stand of the accused persons is, that the food article fell in the category of Confectionery / Fruit Cordial / Jellies / Jam / Marmalade / Glazed Fruits etc wherein such synthetic colours are permissible for use up to certain limits. When it is not the prosecution case that the colours so used in the food article exceeded such limit, it has been argued that no offence of adulteration would be made out in this case only on account of use of food colours. It is a matter of record that even during the investigation, accused no.5 had given reply / representation Ex. PW-1/I3 and Ex. PW-1/I4, where in he claimed that synthetic colour upto 200 ppm is permitted as per Appendix-C of PFA Rules in this category of food.
17. Thus, the only question to be determined is if the use of synthetic food colour is permitted in the food article in question.
18. As per the scheme of PFA Act and Rules, there are standardized food items with respect to which certain parameters / standards have been CC No. 1899/09 Page 9 of 18 prescribed which such food articles have to conform. Several such food items have been prescribed under Appendix-B of PFA Rules. As per Rule 37-A of PFA Rules, the food which has not been so standardized in the Rules, would be Proprietary Food.
19. It is an admitted position that the food article in question, that is, 'Chulbuli Imli' is not mentioned as such under such a name, in any of the Items of Appendix-B of PFA Rules. However, more than the name of the food article, the court is concerned with the category of food article under which the sampled commodity may fall. If the sample commodity falls in any of the categories of standardized food, then that rule would apply to even that food article irrespective of the fact if the exact name given by the manufacturer is not there in the list.
20. Therefore, if 'Chulbuli Imli' falls in any of the Items of Appendix-B of PFA Rules, then the said standards would also apply to this food product. Record shows that both the PA and CFL have treated this food article as a Proprietary Food, primarily because no standard of Chulbuli Imli has been mentioned in any of the items of Appendix-B. Going by Rule 37A, Clause (e) provides that a proprietary food product shall not contain food additives except as provided in the rules for that food and / or category of food. Therefore, if food colors are permitted in the category of food articles in which Chulbuli Imli may fall, then that would not be a violation of PFA Rules.
CC No. 1899/09 Page 10 of 1821. Rule 28 of PFA Rules enumerates the synthetic food colours which are permissible to be used in food products. The food colour Carmoisine (as detected in this case) is covered in Rule 28 and is therefore permissible for used in prescribed food articles.
22. Rule 30 provides the maximum limit of permissible food colours which can be used in food articles where such use is permitted. As rightly pointed out by Ld. Defence Counsel, it is not the case of the prosecution that the synthetic colour use in the food article in question was beyond the prescribed limits, primarily because no such quantity of food colours has been determined either by the PA or CFL.
23. Rule 29 provides the food and food categories in which food colours (as prescribed under Rule 28) can be used within the limits prescribed by Rule 30.
24. Relevant portion of Rule 29 reads:
Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited:-
(a) ...
(b) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries ...
(c) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies jam, marmalade, candied crystallised or glazed fruits;CC No. 1899/09 Page 11 of 18
(d) ...
(e) ...
(f) ...
(h) ...
25. Therefore, to constitute violation of Rule 29, it has to be established beyond reasonable doubt, that the food article in question does not fall in any of the categories mentioned in Rule 29 above including those highlighted above. If the food article 'Chulbuli Imli' falls in any of the above mentioned items enumerated in Rule 29, then the prosecution case has to fail.
26. Appendix-C of PFA Rules provides for various tables and listing the food additives permitted for use in various foods. As per Table - 6, standards have been prescribed for food additives in thermally processed fruits. Various fruits have been enumerated in this table, specifying in which of the fruit the synthetic colors can be used including Carmoisine. The list would show that Carmoisine is permitted to be used in plums, strawberries, guava, papaya, chiku, litchi etc and not in fruits like peaches, pineapple, oranges, apricot etc. There is one category "fruits not specified"
which prescribes that synthetic colour Carmoisine is permitted in such fruits not specified in the list upto maximum of 200 ppm. Therefore, if the food article in question is treated as a thermally processed fruit, such colour can be used in it upto such limits.CC No. 1899/09 Page 12 of 18
27. PW-1 during his cross examination claimed that the table -6 in Appendix - C only pertains to thermally processed fruits. However, he has failed to explain as to on what ground he assumed that the food article was not a thermally processed fruit. When he had already received representation from the accused in this regard, it was his duty to clarify the position and if necessary, to take opinion from food chemical expert as well. However, it is apparent that no action whatsoever was taken by the FI and no investigation was conducted on this point to accept or reject the representation of accused no.5.
28. It is not known as to how the food article in question was prepared. Since it has been considered as a proprietary food, it is clear that no specific standards have been prescribed which are required to be complied with by the manufacturers to call it as a standardized food articles. Every manufacturer may prepare such proprietary food by adding his own ingredients and by adopting his own process till the time the same is not in violation of any provision under PFA Rules and Act.
29. It is apparent that the food article is not Imli / Tamarind fruit simplicitor. It was rather a processed / prepared food article in which various ingredients had been added, including sugar, salt etc. (as mentioned on the label as reproduced on Form VI Ex. PW1/B). If sugar was added in such food article, there is no material to show that it cannot be called as confectionery or a thermally processed fruit or jam or jelly or marmalade or their categories. If it can be called a thermally processed fruit ( PW1 stated that Imli is a fruit as well as condiment), it would fall in CC No. 1899/09 Page 13 of 18 the category of "fruits not specified" as appearing in Table 6 of Appendix- C of PFA Rules. Similarly, even as per Table 10, Carmoisine is permitted upto 200 ppm in case of jam / jellies and fruit marmalades. It is permitted upto 100 ppm in fruit chatni, seasoning powder etc. Again, Table 13 deals with sugar boiled confectionery which provides that Carmoisine is permitted upto 100 ppm in sugar based confectionery. It is pertinent to note that the sugar is one of the ingredient of Chulbuli Imli, as declared on the label and as also tested positive by the PA in her report. No test was conducted by the CFL to show presence of sugar and such presence has not been denied even by the prosecution. In such position, there is no reason why the food article cannot be called as sugar based confectionery where such colours are permitted to be used upto certain limits.
30. Now even if it is accepted that 'Chulbuli Imli' does not fall directly in any of these categories and therefore treated as a Proprietary Food, even then, there cannot be violation of Rule 29 straight away. Chulbuli Imli is nothing but a modified version of a thermally processed fruit or sugar based confectionery in which food additives like sugar and salt etc. had been added. Even by that angle, it cannot be said that by addition of such ingredients there would be violation of Rule 29. If colours are permissible to be used in various items as mentioned above, then such colours would also be permissible to use in the modified version of the said food items automatically. It would be an anomaly to say that colour is permissible to be used in sugar based confectionery but prohibited in a Proprietary Food that has sugar based confectionery as one of its ingredients. The category of food would therefore continue to remain the same even if the food CC No. 1899/09 Page 14 of 18 article is treated as Proprietary Food article due to presence of some other ingredients in addition to that of the standardized food item where food colour is permitted.
31. There is nothing on record to conclusive establish that the food article in question would certainly not fall in any of the above mentioned food articles or categories of food articles on the basis of which the court may conclude that no colour is permissible for use or that use of such colour is certainly prohibited in this article. In any case, in the absence of any such clear material, the accused persons deserve the benefit of doubt to be given.
32. The accused persons also find support from the judgement of the Hon'ble High Court of Delhi in Mayur Jaykumar v. Government of NCT of Delhi [2012 (1) FAC 435] wherein the court was dealing with a sample of 'Mango Crush". Even in that case, there was alleged violation of Rule 29 on the ground that mango crush was not falling in any of the products mentioned in Rule 29. However, the Hon'ble High Court observed that fruits squash, fruit syrup are prepared from fruit pulp / puree or fruit concentrate after blending with sweeteners, water etc. When such colours are permissible to be used in fruit syrups, fruit squash etc. then any article prepared directly from fruit juice or concentrate would also fall in the same category and being derived from ripe fruit and the standards applicable to all those products ought to be similar. The proceedings were therefore quashed.
CC No. 1899/09 Page 15 of 1833. Further, in the judgement titled as Delhi Administration v. Suresh Kumar [2012 (2) FAC 435], the Hon'ble High court accepted that if sugar was found in the sample of chutney, it can be taken as confectionery item and food colour could have been used in it by virtue of Rule 28. Therefore, if colours are permissible for use in above mentioned items or category of items, the product derived from those items or the product where such items are used as an ingredient or a part thereof, colours have to be taken as permissible. Therefore, presence of such colour by itself would not make the food article as adulterated, as opined by PA and CFL.
34. Moving ahead, the PA opined that the sample was misbranded on account of violation of Rule 24 of PFA Rules which provides that extraneous addition of colours has to be mentioned on the table. It also opined that the language of best before declaration was not as per Rule 32(i) of PFA Rules. This report was superseded by the CFL certificate that did not point out any such violation. Rather it observed that no batch number or lot number and manufacturing date or packing date was given on the label in violation of Rules 32(e) and (f) of PFA Act. As this certificate superseded the PA report, the findings of PFA were not considered at the time of framing of the charge and the charge was framed only for violation as mentioned in CFL Certificate. Therefore, the position is that the accused persons are not facing trial for violation of Rule 24 or 32 (i) of PFA Rules.
35. It would be strange to note that the CFL certificate on this point is apparently not in conformity of the documents on record. As accepted by CC No. 1899/09 Page 16 of 18 FI PW1, the contents of the label had been reproduced by him on documents Ex. PW1/B and Ex. PW1/D. These documents would clearly show that the batch number has been mentioned on the label as "A-11"
and manufacturing date has been mentioned as "MFD: Jan 2008" . When these declarations were there on the label, as reproduced by the FI himself, it is not understood as to on what basis the CFL claimed that these declarations had not been mentioned. Even the FI PW1 could not give any explanation in this regard when pointed out by the ld. defence counsel during his cross-examination. In any case, when such declarations were there on the label, there is no question of violation of Rule 32 (e) and (f) of PFA Rules.
36. In view of this position, the accused persons are entitled to be given the benefit of doubt in the present case. The matter would not be covered under section 2(ia)(a), (j) or (m) of PFA Act. There is no evidence to show that any particular nature, quality or substance of Chulbuli Imli was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be, or that it contained any prohibited food colour or food colour beyond prescribed limits, or has violated any prescribed standards otherwise. Similarity, in view of the label declarations on record, no violation of Rules 32(e) and (f) can be seen.
37. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' or 'misbranded' within the meaning of section 2(ia) or 2(ix) of PFA Act and thus, no case would be made out against the CC No. 1899/09 Page 17 of 18 accused persons for commission of offences punishable under section 7/16 of the PFA Act.
38. Having said so, the accused persons are acquitted of the charges. The bail bonds of accused no. 1, 2, 3 and 5 shall remain in force for the next six months in terms of section 437-A, CrPC.
39. File be consigned to record room.
Announced in the open court this 15th day of November 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 1899/09 Page 18 of 18