Supreme Court - Daily Orders
Food Inspector, Dept. Of Pfa, Govt. Of ... vs Kailash Chand on 31 August, 2015
Bench: Dipak Misra, R. Banumathi
Crl.A.1138/15
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1138 OF 2015
(Arising out of S.L.P.(Crl.) No.10266 of 2014)
Food Inspector, Department of PFA Appellant(s)
Govt. of NCT of Delhi
Versus
Shri Kailash Chand Respondent(s)
O R D E R
Leave granted.
Heard Mr. Neeraj Kishan Kaul, learned Additional Solicitor General for the appellant and Mrs. K. Sarda Devi, learned counsel for the respondent.
The present appeal, by special leave, calls in question the legal defensibility of the order dated 16th April, 2014, passed in Criminal Leave Petition No.264 of 2014, by the learned Single Judge of the High Court of Delhi at New Delhi, declining to grant leave to appeal against the judgment dated 28th September, 2013, passed by the learned Additional Chief Metropolitan Magistrate-II, New Delhi, in Signature Not Verified C.C. No.150 of 2004, acquitting the respondent of the Digitally signed by Chetan Kumar Date: 2015.09.03 18:49:28 IST Reason: offences under Section 2(ia)(j) and (m) of the Prevention of Food Adulteration Act, 1954, (for short, 'the PFA Act') and Rule 23 read with Rules 28 and 29 of the Prevention of Food Crl.A.1138/15 2 Adulteration Rules, 1955 (for short, 'the 1955 Rules') punishable under Section 16(1A) red with Section 7 of the PFA Act.
The learned Single Judge has taken note of the fact that there were two test reports which were beyond the permissible limit of 0.3%. The reasons ascribed by the learned Single Judge reads as follows:
“In the report of the PA, the moisture was found to be 9.86%, whereas in the report of the CFL, it was found to be 14.4%. The damaged grain in the report of the PA was found to be 0.44% and weevilled grains was found to be 'nil', whereas in the report of the CFL, damaged grain was found to be 03.1% and weevilled grains was found to be 02.2%. While in the report of the PA, the uric acid content was not detected in the sample, in the report of the CFL, it was found to be 54.45 ppm.
The learned trial Court has rightly granted the benefit of doubt to the Respondent because of the above variations, which was beyond the permissible limit of 0.3%.” It is submitted by Mr. Neeraj Kishan Kaul, learned Additional Solicitor General that the High Court has not kept itself alive to two aspects, namely, the mandate of Section 13(3) of the PFA Act and the language employed in Rules 23, 28 and 29 of the 1955 Rules. Section 13(3) of the PFA Act reads as follows:
“The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section (1).” Crl.A.1138/15 3 Relying on the same, it is urged by Mr. Kaul that in case of two reports, if there is a certificate issued by the Director of Central Food Laboratory under Section 13(2B), the same shall supercede the report given by the public analyist under sub-section (1) of Section 13; and in the case at hand as such, a certifiate has been obtained by the prosecution and, therefore, the High Court has erred in law by expressing the opinion that there is variation in reports.
Learned Additional Solicitor General pointing out to the 1955 Rules, submits that the addition of synthetic red colour is totally prohibited. Rules 23, 28 and 29 of the 1955 Rules read as under:
“23. Unauthorised addition of colouring matter prohibited.- The addition of a colouring matter to any article of food except as specifically permitted by these rules is prohibited.
28. Synthetic food colours which may be used.- No synthetic food colours or a mixture therfeof except the following shall be used in food.
28A. Use of Lake colours as colourant in foods.- Aluminum Lake of Sunset Yellow FCF may be used in powdered dry beverages mix (powdered softdrink concentrate) upto a maximum limit of 0.04 per cent. weigh by weight. The maximum limit of colour content in final beverage for consumption shall not exceed 8.3 ppm and that of aluminum content shall not exceed 4.4 ppm of the final beverage for consumption:
Provided that the powdered dry beverages mix (powdered softdrink concentrate) label shall give clear instruction for reconstitution of Crl.A.1138/15 4 product for making final beverage.
29. Use of permitted synthetic food colours prohibited.- Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited:
(a) Ice-cream, milk lollies, frozen dessert, flavoured milk, yoghurt, ice-cream mix powder;
(b) Biscuits includign biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dal moth, mongia, phululab, sago papad, dal biji only);
(c) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato jice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits:
(d) Non-alcoholic carbonated and non-carbonated ready-to-serve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(e) Custard powder;
(f) Jelly crystal and ice-candy;
(h) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only under label declaration as provided in clause (13) of sub-rule (zzz) of rule 42.” Learned counsel appearing for the respondent has supported the judgment and order passed by the High Court.
On a perusal of the judgment and order passed by the High Court, it is perceptible that there has been no analysis in this regard.
Crl.A.1138/155
In view of the aforesaid, we think it appropriate that the judgment and order passed by the High Court declining to grant leave to appeal, should be set aside and the matter be remanded to the High Court to consider the case in the light of the statutory provision and the provisions enshrined under the 1955 Rules.
Resultantly, the appeal is allowed and the judgment and order passed by the High Court is set aside and the matter is remitted for reconsideration.
....................J. [Dipak Misra] ....................J. [R. Banumathi] New Delhi August 31, 2015.
Crl.A.1138/156
ITEM NO.46 COURT NO.5 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.10266/2014 (Arising out of impugned final judgment and order dated 16/04/2014 in CRLP No. 264/2014 passed by the High Court of Delhi at New Delhi) FOOD INSPECTOR, DEPT. OF PFA, GOVT. Petitioner(s) OF NCT OF DELHI VERSUS KAILASH CHAND Respondent(s) (With interim relief and office report) Date : 31/08/2015 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MRS. JUSTICE R. BANUMATHI For Petitioner(s) Mr. N.K. Kaul, ASG Ms. V. Mohna, Sr. Adv.
Mr. Kapil Rustagi, Adv.
Mr. S.S. Rawat, Adv.
Mr. D. S. Mahra, AOR For Respondent(s) Mrs. K. Sarada Devi, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master
(Signed order is placed on the file)