Delhi District Court
Da vs Mahesh Kumar Etc. on 20 March, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 40655/2016
Date of Institution : 27.10.2004
Date of reserving judgement : 20.03.2018
Date of pronouncement : 20.03.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Sh. Mahesh Kumar
S/o Sh Ramesh Kumar
Deepak General Store,
D-2/251, Nand Nagri,
Delhi - 93 ..... Accused.
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFA Act), alleging that the accused have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 17.02.2004 Food Inspectors (herein after referred to as FI) Ms. Usha Kiran & FA Sh Manohar Lal under the supervision of Local Health Authority (herein after referred to as LHA)/SDM Sh Anil Banka visited the premises of M/s Deepak General Store, D-2/251, Nand Nagri, Delhi - 93, where the CC No. 40655/2016 Page No. 1/10 DA vs Mahesh Kumar etc. accused Mahesh Kumar was found conducting the business of various food articles in the above said shop, including "Sugar Boiled Confectionery", which was lying in a sealed jars bearing identical label declaration. The FI disclosed his identity and expressed his intention to purchase a sample of Sugar Boiled Confectionery from the vendor for analysis. The sample consisted of 3x1 kg sealed pet jar of Sugar Boiled Confectionery was taken. The sample was taken under the supervision / direction of SDM/LHA Sh. Anil Banka. The Food Inspector divided the sample commodity into three equal parts then and there by putting one sealed pet jars of 1 kg in one part. Each sample part was separately, fastened, marked and sealed according to PFA Act & Rules. The vendor's signature were obtained on the LHA slip and the wrapper of the sample parts. Notice was given to the accused Mahesh Kumar and the price of the sample was also given to him vide receipt dated 17.02.2004. Panchanama was prepared at the spot. All the documents prepared by F.I. were signed by the accused Mahesh Kumar and other witness FA Sh Manohar Lal. Before starting sample proceeding efforts were made to join public witnesses but none came forward and FA Sh Manohar Lal was joined as witness.
3. One counter part of the sample was sent to Public Analyst, Delhi bearing LHA code No. 53/LHA/7374 in intact condition and two counterparts were deposited with SDM/LHA in intact conditions. Public Analyst analysed the sample and found the sample is adulterated because total dye content of synthetic colour used exceeds the prescribed maximum limit of 100 ppm. Sample is also misbranded because there is a violation of Rule 32 d e and f, CC No. 40655/2016 Page No. 2/10 DA vs Mahesh Kumar etc. label also gives misleading statement regarding addition of colour.
4. It is further the case of the complainant that accused Mahesh Kumar was the vendor-cum-proprietor of M/s Deepak General Store, D-2/251, Nand Nagri, Delhi - 93 at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said firm.
5. Thereafter on 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 27.10.2004 alleging violation of section 2(ia)(j) and section 2(ix) (e) & (k) of PFA Act, as punishable section 7/16(1)(a) of PFA Act against the accused.
6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 27.10.2004. Based on the report of the PA as well as evidence led in pre charge evidence, charge was framed against the accused for commission of the offence punishable under section 7/16(1) (A) PFA Act being violation of Section 2(ia)(a)(j)(m) and 2(ix)(e)(k)(i) of PFA Act and Rule 23 read with Rule 28 & 29 of PFA Rules, to which accused pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witness in support of its case i.e. PW-1 Ms.Usha Kiran, PW-2 SDM/LHA Sh Anil Banka and PW-3 FA Sh Manohar Lal. PW-1 and PW-3 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh Anil Banka. These witness narrated CC No. 40655/2016 Page No. 3/10 DA vs Mahesh Kumar etc. the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 3x1 kg sealed pet jar of Sugar Boiled Confectionery from the vendor, bearing label declaration, dividing the sample commodity into three equal parts by taking one originally sealed pet jar as one counter part, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex.PW-1/C. Report under Rule 9(e) Ex.PW1/d was also prepared at the spot. Vendor also furnished the copy of election I-card Mark X. Thereafter, the one counterpart of the sample was deposited in intact condition with PA on 19.02.2004 vide receipt Ex.PW1/E and remaining two counterpart of the sample was deposited with LHA vide receipt Ex.PW1/F. Thereafter, PA Report Ex.PW-1/G was received according to which sample was found adulterated. Thereafter during the investigation PW-1 FI Ms Usha Kiran sent letter Ex.PW1/H to vendor STO Ward No. 77 to disclose the constitution of M/s Deepak General Store and received its reply stating that no such firm was found registered with the sales tax. PW-1 also sent letter Ex.PW1/I to DHO, Shahdara North Zone but no reply was received. The reminder sent through registered envelop Ex.P-1 was received back. PW-1 also sent letter Ex.PW1/K to the manufacture which was received back vide envelop Ex.P2 with remarks that the address is incomplete. After completion of investigation the entire case file was put before the concerned SDM/LHA who forwarded the same to Sh. V.K. Singh the then Director of PFA for obtaining the sanction and the then CC No. 40655/2016 Page No. 4/10 DA vs Mahesh Kumar etc. Director PFA after going through the same gave his consent for prosecution Ex.PW-1/L. Thereafter, the present complaint Ex. PW-1/M was filed in the Court. Then intimation letter Ex. PW1/N alongwith copy of PA Reports were sent to accused persons through SDM/LHA by way of registered post vide postal registration receipt Ex.PW-1/O which were not received back undelivered. The witnesses were duly cross examined by the Ld Defence Counsel.
8. Statement of the accused under section 313 Cr.P.C. were recorded on 16.07.2015 wherein the accused denied the allegations and pleaded innocence. The accused has not led any defence evidence and vide order dated 18.02.2016 the defence evidence was closed. Thereafter, the matter was fixed for final arguments.
9. In a criminal case, the burden is only on the prosecution to prove its case against the accused beyond reasonable doubt by leading positive evidence. This burden cannot be shifted to the accused and it has to be necessary discharged by the prosecution itself.
10. The accused is alleged to have committed the offence of not only adulteration but also misbranding.
11.As far as the offence of adulteration is concerned it is the defence of the accused that the complaint was filed after the expiry of the product in question due to which the accused lost his valuable right of getting the sample analysed from CFL under section 13(2) CrP.C The whole case of prosecution is now based on the PA CC No. 40655/2016 Page No. 5/10 DA vs Mahesh Kumar etc. report. The complaint has been assailed by the defence on the ground that it was filed after the expiry of the product in question i.e. sugar boiled confectionery and the defence has relied upon of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors 1999 (2) FAC399 to argue that sugar boiled confectionary in question was best before six months. The complaint was filed on 27/10/2004 and sample was taken on 17/02/2004 that is after six months of taking it.
12. I have gone through the judgement citied by the defence. In this case, the sample in question was of an insecticide. The manufacturing date of insecticides was March 1994 and its expiry date was February 1995. By the time the accused was summoned to appear in the Court on April 06, 1995. they had lost their right of getting the samples be analysed from Central Insecticide Laboratory. The Hon'ble Court held that by the time, the respondents were asked to appear before the Court, the expiry date of insecticide was already over and sending of sample to the Central Insecticide Laboratory at that stage would be of no consequence. In the words of Hon'ble Court :-
"Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides CC No. 40655/2016 Page No. 6/10 DA vs Mahesh Kumar etc. Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
It cannot be gainsaid, therefore, that the respondents in these CC No. 40655/2016 Page No. 7/10 DA vs Mahesh Kumar etc. appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence."
13.Now in the present case, the sample of sugar boiled confectionery was lifted on 17/02/2004. Form VI prepared on the spot although does not show the date of packing but even if we take it from date of purchasing it was best before six months till August 2004. The complaint was filed in October 2004, therefore it is clear that the complaint was filed after the period of its expiry and therefore convicting the accused on the basis of analysis of such a sample, will not be proper. Therefore, placing reliance upon the aforesaid judgement of Hon'ble Supreme Court of India CC No. 40655/2016 Page No. 8/10 DA vs Mahesh Kumar etc. in State of Haryana vs Unique Farmaid P. Ltd & Ors, Hindustan Liver Ltd Vs State of Punjab 2011 (1) FAC 192, a benefit of doubt is given to the accused regarding the adulteration of the sample, which is the subject matter of the present case. Reliance may further be had upon the case titled as Food Inspector vs Banarsi Das & Ors 2014 (2) FAC 177 wherein the order of declining cognizance was uphold by Hon'ble High Court of Delhi when the complaint was filed after expiry period of the product more particularly when no preservative was added to the sample as per the prosecution evidence. Reliance may further be had on the judgement of Marico Ltd and others vs State of Delhi 2015 (1) FAC 40.
14.Regarding misbranding the defence has relied upon the judgment of Hon'ble High Court of Delhi in S.S. Gokul Krishanan & Others vs State 2009(1) FAC 132 to argue that there was a policy of the complainant department of 1985 numbered as Policy No F6(228)/85/ENF/PFA wherein a decision was taken to give a written warning to the offenders with regard to any deficiency in respect of Rule 32 of the PFA Act. Although this policy was withdrawn by order No. 5/07 dated 14.09.2007 but since this case was filed in the year 2004, the accused are covered by aforesaid policy. Although, no such policy has been placed or proved on record by other side and this policy was further withdrawn as per the aforesaid judgment on the ground that Section 20 of the PFA Act does not confer any such power on the consenting authority to issue such warning to the vendors found violating Rule 32 of the PFA Act. The judgment of Gokul Krishnan (supra) has also been followed in the judgment of M/s Bunge India Pvt Ltd & Others CC No. 40655/2016 Page No. 9/10 DA vs Mahesh Kumar etc. vs State & Another Crl.MC 439/2008 dated 20.01.2011 and recently in Hello Minerals Water PVT LTD & Ors vs State CRL.MC.224/2016 dated 10.01.2018.
15.Be that as it may, PFA Act or Rules does not provide any such warning but since the benefit of this policy has been given in the case of S.S. Gokul Krishnan (referred above), I feel myself bound by the ratio of that case. It is not the case of the prosecution that the accused is not the first offender or that he has already availed the benefit of warning.
16.On the basis of the aforesaid discussion, the accused is acquitted of the charges.
Announced in the open court this 20th day of March, 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 40655/2016 Page No. 10/10 DA vs Mahesh Kumar etc.