Delhi District Court
In Re vs ) Mohd. Kamil on 25 August, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1/13 (49207/16)
Unique Case ID No. 02403R0025162013
Date of Institution: 02.01.2013
Date of reserving judgement: 25.08.2017
Date of pronouncement: 25.08.2017
In re:
Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
1) Mohd. Kamil
S/o. Sh. Shahbuddin
M/s. Kamil Kiryana Store,
2166, Main Bazar, Turakman Gate,
Delhi - 110006
R/o. 2203, Gali Kalyanpura,
Turakman Gate, Delhi - 110006.
2) M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
3) Smt. Krishna Behl,
W/o. Sh. P. D. Behl
M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
CC No. 49207/16 Page 1 of 12
R/o. B-3/355, Paschim Vihar,
Delhi - 110063.
4) Sh. Vijay Behl
S/o. Sh. P. D. Behl.
M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
R/o. B-3/355, Paschim Vihar,
Delhi - 110063.
5) Sh. Roopak Behl
S/o. Sh. P. D. Behl
M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
R/o. B-3/355, Paschim Vihar,
Delhi - 110063.
6) Sh. Deepak Behl
S/o. Sh. P. D. Behl
M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
R/o. B-3/355, Paschim Vihar,
Delhi - 110063.
7) Sh. Sandeep Behl
S/o. Sh. P. D. Behl
M/s. Mohan Gee Industries,
2084, Gurudwara Road,
Karol Bagh, New Delhi-110005
R/o. B-3/355, Paschim Vihar,
Delhi - 110063. ... Accused Persons
CC No. 49207/16 Page 2 of 12
JUDGMENT:
1. The present is a complaint filed under section 26/59 of the Food Safety and Standards Act, 2006 (FSS Act), alleging that the accused persons have violated the provisions of the FSS Act and Rules / Regulations thereunder. The accused no.1 (since discharged) is stated to be the Food Business Operator (FBO)-cum-proprietor of M/s. Kamil Kirayana Store, from where the food article, that is, 'ghee' was lifted for sampling. Accused no.2 Firm is stated to be the packer of the food article from whom it was purchased by accused no.1. Accused no.3 (since expired), accused no.4, 5, 6 and 7 are stated to be the partners of accused no.2 firm in charge of and responsible to the firm for its affairs.
2. As per the complaint, on 10.01.2012, the food safety officials consisting of Food Safety Officer (FSO) Satish Kumar Gupta and Field Assistant (FA) Brahamanand under the orders of the Designated Officer (D.O) Sh. S. K. Nagpal reached along with their staff at the premises of M/s. Kamil Kirayana Store at 2166, Main Bazar, Turkman Gate, Delhi- 110006, where the accused no.14 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FSO disclosed his identity and expressed his intention to purchase a sample of ghee from the FBO, as lying in sealed tins of 500 ml each bearing identical label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the FSS Act and Rules / Regulations. It was divided in four parts and each sample was separately packed, fastened, marked and sealed and necessary documents CC No. 49207/16 Page 3 of 12 were prepared at the spot, including the Notice as per Form-VA, panchnama, etc. The price of sample was paid to the FBO. Thereafter, one counterpart of the sample was sent to the Food Analyst (FA) in intact condition and the other three counterparts were deposited with the D.O, as no request was made to send a counterpart to the NABL Accredited Lab. Vide report dated 20.01.2012, the FA found the sample to be substandard on the ground that the BR exceeded the prescribed maximum limit and the RM value was less than the prescribed minimum limit. Upon receipt of report, a copy of the same was sent to the FBO and the packers for giving them an opportunity to prefer an appeal against the FA report by getting the other counterpart analysed through the Referral Food Laboratory (RFL) under section 41(4) of FSS Act. The packers preferred an appeal and the sample was analysed by the RFL. Vide certificate dated 10.04.2012, the RFL found the sample to be unsafe under section 3(1)(zz)
(ii) of FSS Act as well as substandard as per section 3(1)(zx) of FSS Act read with the FSS(Food Products Standards and Food Additives) Regulations, 2011, on the ground that the sample was not free from rancid odour and the test for rancidity was positive. In the meanwhile, investigation was carried out and the packer accused no.2 was found to be a partnership firm, of which accused no. 3 to 7 were found to be its partners. After completion of investigation, sanction under section 30 of the FSS Act was obtained from the Commissioner of Food Safety. The complaint was then filed in the court on 02.01.2013 alleging violations of section 26(2)(i) and 26(2)(ii) of FSS Act read with Section 3(1)(zz)(ii) and section 3(1)(zx) of FSS Act, as punishable section 51/59 of FSS Act.
CC No. 49207/16 Page 4 of 123. 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 02.01.2013.
4. Upon appearance, an application under section 294 CrPC read with Section 26(4) of FSS Act was filed on behalf of accused no.1. The said application was allowed and accused no.1 was ordered to be discharged vide order dated 31.07.2014. In the meanwhile, accused no.3 expired and proceedings against her stood abated, as observed in order dated 31.07.2015.
5. Based on the report of the RFL, notice of accusation under section 251 CrPC were framed against the remaining accused persons on 19.03.2016 for commission of the offence punishable under section 51/59 of FSS Act, being violation of section 3(1)(zx) and 3(1)(zz)(ii) of FSS Act, to which they pleaded not guilty and claimed trial.
6. At the trial, prosecution examined only one witness in support of its case. PW-1 Sh. Satish Kumar Gupta was the then FSO who had visited the spot along with FA Brahamanand as per the order of the D.O Sh. S. K. Nagpal for sample proceedings. He deposed about the proceedings conducted by them on 10.01.2012 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 four sealed tins of 500 ml each of ghee bearing identical label declaration, CC No. 49207/16 Page 5 of 12 dividing it in four parts, separately sealing and marking the samples, and obtaining signatures of FBO and witnesses. He also proved the necessary documents including the FBO receipt Ex. PW-1/A, Notices Ex. PW-1/B and Ex. PW-1/B1, Panchnama Ex. PW-1/C, Raid report Ex. PW-1/D, FA Receipt Ex. PW-1/E and DO receipt Ex. PW-1/F. FA report Ex. PW-1/G was received and a copy thereof was sent to the accused persons by the D.O vide letter Ex. PW-1/H. Appeal Ex. PW-1/I was preferred and a sample was sent to the RFL which gave report Ex. PW-1/J. Investigation was conducted during which letter Ex. PW-1/K was sent to the accused no.1 FBO, letters Ex. PW-1/L and Ex. PW-1/L1 were sent to the VAT officers, letters Ex. PW-1/M and Ex. PW-1/M1 were sent to the supplier accused no.2 which was supplied vide letter Ex. PW1/M2. After completion of investigation, sanction Ex. PW-1/N was taken from the Commissioner of Food Safety and the complaint Ex. PW-1/O was filed in the court. The witness was cross examined only to a very limited extent during which he could not tell if rancidity was an advanced stage of deterioration or if it developed due to natural causes.
7. Subsequently, the accused persons facing the trial stated that the spot sample proceedings did not pertain to them as they were not present at the spot and therefore, there was no need to examine other witnesses. Upon this, Ld. SPP also submitted that the other witnesses need not be examined as they pertained to spot sample proceedings pertaining to accused no.1 FBO who already stood discharged. The P.E was therefore closed.
CC No. 49207/16 Page 6 of 128. Statements of the accused persons under section 313 CrPC were recorded on 25.08.2017 wherein they denied the allegations and pleaded innocence. They expressed ignorance about the sample proceedings as they were not present at the spot. They however questioned the FA report and stated that the deficiency noticed in the RFL certificate was on account of natural changes. They chose not to lead evidence in defence.
9. It is in these circumstances, Ld. SPP 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 they have not been able to rebut the findings of the RFL certificate dated 10.04.2012 which had superseded the earlier FA report dated 20.01.2012. It is submitted that PW-1 has supported its case and the accused persons have not cross examined him as to the factual position of their being the packers and supplier of the food article.
10. On the other hand, Ld. Defence Counsel has submitted that there is huge variation in the reports as given by FA and RFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the RFL report.
11. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
CC No. 49207/16 Page 7 of 1212. It is to be understood that the notice framed against the accused persons is for violation of sections 3(1)(zx) and 3(1)(zz)(ii) of FSS Act on the basis of RFL report, which is the appellate authority over the FA report. As RFL is the appellate authority, once the appeal is preferred and certificate is given by the RFL, the earlier report of FA stands nullified and superseded by the RFL certificate. After such super session, the FA report cannot be gone into for any purpose.
13. In the case at hand, it is an admitted position, as is clear from both the reports of FA and RFL, the food article fell under Regulation no. 2.1.10.2 of FSS (Food Products Standards and Food Additives) Regulations, 2011. Specific standards have been prescribed for this food product under this provision.
14. Since the report of RFL supersedes the report of FA, only this report has to be considered and the report of FA has to be ignored. It would be seen that the RFL report has completely negated the results of FA on both the counts on which the FA had initially failed the sample. The BR Reading shown to be at 44 by the FA was found to be 42.2 by RFL (within minimum and maximum prescribed limits of 40 - 43), and the RM Value shown to be 27.65 by the FA was found to be 28.9 by RFL (more than minimum prescribed limit of 28). On the contrary, the sample was opined to be not unsafe and substandard by the RFL on the ground that the rancidity was positive and the sample was not free from rancid odour, the parameters on which the sample was passed by the FA earlier. As such, the matter has to be determined only on the basis of report of RFL.
CC No. 49207/16 Page 8 of 1215. In this regard, reliance can be placed on the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], which pertained to the then existing Prevention of Food Adulteration Act (PFA Act) which stood repealed upon enactment of FSS Act. The said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. The basic provisions in the PFA Act and FSS Act with respect to the comparison between the two reports of Public Analyst (PA) and Central Food Laboratory (CFL) under the PFA Act and between the reports of FA and RFL under the FSS Act, remain similar. The law laid down in these judgements would show that if there are substantive variations in the two reports, it might mean that the sample was not representative.
16. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that CC No. 49207/16 Page 9 of 12 the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
17. Though the CFL report under PFA Act was final and conclusive as to the results therein, yet it could still be looked into to ascertain if the samples were representative or not. If the accused was able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would have get benefit on that count. Similar rules shall apply to the reports of FA and RFL.
18. In the case at hand, the differences between the two reports of FA and RFL would show substantive variations in the two reports. There is vast difference in the BR reading and RM value by the two analysts. The entire incriminating matter on the basis of which proceedings were initiated against the accused persons, stood negated by RFL.
19. As far as the grounds on which the RFL failed the sample are concerned, it is important to understand that ghee as a food article is prone to natural variations. If quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as unsafe or substandard (reliance can be placed on section 48(2) of FSS Act). If the two reports are so considered showing test for rancidity, it can be said that either the food article was not of the same lot and thus truly representative, CC No. 49207/16 Page 10 of 12 or otherwise the sample had undergone a natural change beyond the control of the accused persons. The RFL had examined the sample from 16.03.2012 to 10.04.2012. Thus, it was so analysed after about 03 months when it was lifted from the possession of the accused no.1 FBO. The nature of ghee as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Reliance can be placed on the judgements titled as National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95] and Nebh Raj v. State [Crl. Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980]. In the present case, such development of rancidity cannot be ruled out after 03 months of lifting of the sample. Thus, there is possibility that such changes were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused persons can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get a benefit of doubt.
20. Thus, the material on record is not sufficient to show that the food article was unsafe or substandard at the time it was being sold. The accused persons are entitled to be given benefit of doubt on this ground.
CC No. 49207/16 Page 11 of 1221. Having said so, the accused no.2, 4, 5, 6 and 7 are acquitted of the charges. The bail bonds of accused no.4, 5, 6 and 7 shall remain in force for the next six months in terms of section 437-A. CrPC. Accused no.1 has already been discharged and accused no.3 has already expired.
22. File be consigned to record room.
Announced in the open court this 25th day of August 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL0355 CC No. 49207/16 Page 12 of 12