Delhi District Court
Da vs Sushil Kumar & Ors on 21 August, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 49208/2016
Date of Institution : 11.03.2013
Date of reserving judgement : 21.08.2018
Date of pronouncement : 21.08.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Sushil Kumar
S/o Late Sh. Vidya Sagar
M/s Kuber Jee Halwai
1/6958 Shivaji Park,
Shahdara Delhi-110032
R/o - 1/10999, Gali no. 3,
Sapt Rishi Marg, Subhash Park,
Shahdra, Delhi-110032
A-2) Sh. Sunil Kumar
S/o Late Sh. Vidya Sagar
M/s Kuber Jee Halwai
1/6958 Shivaji Park,
Shahdara Delhi-110032
R/o 1/5478, Gali no. 16, Balbir Nagar Ext.
Shahdara Delhi-l 10032
A-3) M/s Kuber Jee Halwai
1/6958 Shivaji Park,
Shahdara Delhi-110032 ... Accused person
CC No. 49208/2016 Page No. 1/11
DA vs Sushil Kumar & ors
JUDGMENT:
1. The present is a complaint filed under section 59(i) of Food Safety and Standards Act 2006 (herein after referred to as FSS Act), alleging that the accused have violated the provisions of the FSS Act and Rules.
2. As per the complaint, on 10.11.2012 at about 03:30 pm, Food Safety Officer(FSO) D.V. Singh purchased a sample of 'MOONG DAL BURFI' a food article for analysis from accused no.1 Sushil Kumar from the premises M/s Kuber Jee Halwai, 1/6958 Shivaji Park, Shahdara Delhi-110032 where said food article was found stored for sale for human consumption and where accused No. 1 Sh. Sushil Kumar was found storing the article of food at the time of taking sample. Before taking the sample efforts were made to general public to join the sample proceeding but none came forward. Then Sh. Ram Partap Singh FSO joined as witness to the sample proceedings.
3. The sample consisted of approx. 2 Kg of "MOONG DAL BURFI"
(ready for sale) taken from an open tray bearing no label declaration. The sample was taken as per direction of Sh. S.K. Sharma, Designated Officer. The sample was taken after proper mixing with the help of clean and dry spoon in a clean & dry tray by rotating it several times in all possible directions. Food Safety Officer divided the sample of the article of food into four equal parts then and there by putting it into four clean and dry glass bottles and then added 40 drops of formalin in each sample bottle CC No. 49208/2016 Page No. 2/11 DA vs Sushil Kumar & ors and shacked them well. The sample contained in the bottles was separately packed, fastened and sealed according to the provisions of food Safety & Standards Act, 2006 and rules/regulations made there-under. The Food Business Operator's(FBO) signatures were obtained on the D.O slip and on wrapper of the bottles containing the sample. Food Safety Officer also obtained signatures of FBO on the labels of all counter parts of the sample.
4. Notice in Form VA was given to accused Sushil Kumar and the price of sample was also paid to him vide Food Business Operator's receipt dated 10.11.2012. Panchnama too was prepared at the spot. All the documents prepared by Food Safety Officer, were signed by accused Sushil Kumar and also by the other witness Sh. Ram Panap Singh, F.S.O.
5. One counter-part of the sample bearing DO Code Number 04/DO/11/2775 in intact condition along with copy of memo in Form VI and another copy of memo in Form VI under sealed cover was sent separately to the Food Analyst, Delhi on 11.11.2012. The other two counterparts of the sample along with two copies of memos in Form VI were deposited with DO Sh. S.K. Sharma in intact condition in a sealed packet on 11.11.2012. As the food Business operator did not request to send the fourth counter part of the sample for analysis from an NABL Accredited Laboratory under Rule 2.4.5 of food safety and standard Rule, 2011 as such the fourth counterpart along with copy of memo in form VI was also deposited with designated officer Sh. S.K. Sharma in intact condition in a sealed packet on 11-112012. All CC No. 49208/2016 Page No. 3/11 DA vs Sushil Kumar & ors copies of memo in form VI bearing the seal impression with which sample part was sealed. Food Analyst analyzed the sample and found the sample to be unsafe. The report of Food Analyst is as follows :-
"The Sample is unsafe because total dye content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm".
6. The Designated Officer concerned sent a copy of the Food Analyst report to the Food Business Operator vide letter no. F6(182)/FS/DO-NE/2012-7730-31 on 13-12-2012 for giving him an opportunity to tile an appeal against the report of the Food Analyst under section 46(4) for sending one part of the sample to the Referral Lab., if so desired by the Food Business Operator. The Food Business Operator preferred an appeal against the report of Food Analyst and one counterpart of the sample No.51/1019/56/12 was sent to the Referral Food Laboratory by the designated Officer on 18.12.2012. The Director Food Laboratory, Mysore vide certificate No. 432F/FSSA/2012 dated 16.01.2013 reported that the sample is "unsafe" as it does not conform to the standards laid down for Food Article under Food Safety Standard Act 2006 and Rules 2011, thereof in that - a.) Added artificial colouring matter exceeds the maximum permissible limit of 100 ppm. (section 3.1.2.6(ii) and 3.1.2.7)
7. As per certificate of the Director, Referral Food Laboratory the sample contains colour positive identified as Tartazine 274.5 Sunset Yellow FCF-10.0 Carmosine BDL of 5 Total Qty:284.5 ppm instead of maximum permissible limit of 100 ppm as prescribed under Regulation No.3.1.2(6)(ii) & 3.1.2.7 of Food Safety and CC No. 49208/2016 Page No. 4/11 DA vs Sushil Kumar & ors Standards (Food Product Standards and Food Additives) Regulation, 2011.
8. It is the case of the complainant that accused No. 1 Sushil Kumar was the Food Business Operator cum partner of accused No. 3 M/s. Kuber Jee Halwai 1/6958 Shivaji Park, Shahdara Delhi 110032 at the time of taking the sample and he looks after the day to day business of M/s. Kuber Jee Halwai. M/s. Kuber Jee Halwai have two partner i.e. accused No. 1 Sushil Kumar and accused No.2 Sunil Kumar and they are all responsible for day to day conduct of their business and they look after their day to day business and as such they are incharge and responsible for the conduct of business of the said firm. according to partnership deed and by their letter M/s. Kuber Jee Halwai being the firm is also liable.
9. It is further stated that the accused persons mentioned above have violated the provisions of Section 26(2)(i) of Food Safety and Standard Act, 2006 read with Section 3(1)(zz)(vii) read with regulation 3.1.2(6)(ii) & 3.1.2.7 of Food Safety and Standard Act, 2006 of Food Safety and Standards (Food product standards and Food additive) Regulation, 2011 which is punishable under section 59(i) of Food Safety and Standards Act 2006.
10. After conclusion of the investigation of entire case file including the statutory documents, Food Analyst's report and Food Safety officer report were sent through the Designated Officer to Commissioner Department of Food Safety, Government of Delhi, who has accorded consent under section 42 (4) of the Food CC No. 49208/2016 Page No. 5/11 DA vs Sushil Kumar & ors Safety and Standards Act 2006 for prosecution of accused persons in exercise of the powers vested under section 30(2)(e) of the Food Safety And Standard Act 2006 and upon the dir5ection, the present case has been been instituted.
11.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 11.03.2013. Based on the report of the CFL, notice under section 251 Cr.PC was framed against the accused for commission of the offence punishable under section 59(i) of FSS Act, 2006 being violation of Section 26(2)(i) read with section 3(1)(zz)(vii) of FSS Act, 2006 and Regulation No. 3.1.2 (6)(ii) & (7) of FSS Regulation, 2011, to which accused person pleaded not guilty and claimed trial.
12. At the trial, the prosecution examined three witness in support of its case i.e. PW-1 FSO D.V. Singh, PW-2 DO S.K. Sharma and PW-3 FSO Ram Pratap Singh. PW-1 and PW-2 were part of the team that had visited the spot for sample proceedings under the supervision of Designated Officer Sh.S.K. Sharma. These witness narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting of 2 kg Moong Ki Daal Burfi which was lying in an open tray, kept in a showcase, bearing no label declaration from the vendor for analysis, mixing the sample commodity was properly mixed with the help of a clean and dry spoon, dividing the sample into four equal parts by putting them into four separate clean and dry sample glass bottles, putting 40 drops of formalin in each sample bottle, separately CC No. 49208/2016 Page No. 6/11 DA vs Sushil Kumar & ors sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the FBO receipt Ex.PW-1/A, Notice in Form VA Ex.PW-1/B, Panchnama Ex.PW-1/C. Thereafter, FSO prepared the Raid Report under Clause 4 (iii)(h) of Rule 2.1.3 of FSS Rules, 2011 Ex. PW 1/D. Thereafter, on the next day of sample proceedings i.e. 11.11.2012, one counterpart of the sample along with a copy of Memo in Form VI in intact condition in a sealed packet and another copy of Memo in Form VI in a separate sealed cover were deposited with Food Analyst by the FSO. The other two counterparts of the sample along with two copies of memo in Form VI were deposited vide receipt Ex.PW- 1/F. As the FBO did not request to send the fourth counterpart of the sample for analysis from NABL Accredited Laboratory under Rule 2.4.5 of Food Safety and Standard Rules 2011, as such, the fourth counterpart along with the copy of memo in form VI was also deposited with me in intact condition in a sealed packed. The Food Analyst report Ex. PW-1/G was received by PW-2 stating that the sample was unsafe. On the direction of PW-2 S.K. Sharma, FSO started the investigation. During the investigation, PW-2 S.K. Sharma sent a copy of Food Analyst report along with intimation letter to accused / FBO Sushil Kumar for giving him an opportunity to file an appeal against the report of food analyst under Section 46(4) and for sending one part of sample to the referral food laboratory if accused desired and accordingly, the second counterpart was analysed by RFL vide report Ex. PW-1/I. The office copy of intimation letter is Ex. PW-1/J. Thereafter, the FSO put up the entire file before PW-2 DO Sh S.K. Sharma to get the sanction against accused persons. PW-2 DO S.K. Sharma CC No. 49208/2016 Page No. 7/11 DA vs Sushil Kumar & ors forwarded the file before the then Commissioner, Food Safety, Sh. K.J.R.Barman to accord his sanction Ex. PW/K. Thereafter, FSO filed the present complaint Ex PW-1/L in the Court. These witnesses were duly cross-examined by Ld. Defence Counsel.
13. Statement of the accused under section 313 CrPC were recorded on 03.08.2017 wherein the accused denied the allegations and pleaded innocence. Thereafter the accused chooses not to lead defence evidence accordingly the matter was listed for final arguments.
14. 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.
15. The present case alleges adulteration in the sample of Moong Dal Burfi collected from the business concern of the accused. This sample of Moong Dal Burfi has been analysed twice, firstly by the PA and secondly, by the CFL. According to CFL the sample is not as per standard because the amount of colour found in the sample was 284.5 whereas the maximum permissible colour is 100 ppm. Therefore the sample was adulterated due to presence of excess quantity of colour in it.
16. Ld. Defence Counsel has pointed out that the reports of PA and CFL are at variance and claim that the samples were not representative due to said 'variations of more than 0.3%' in PA and CFL report.
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17. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in many other decisions.
18. This issue of variation was considered by Hon'ble Supreme Court of India in the case of Delhi Administration vs Vidya Gupta Criminal Appeal No. 625 of 2018 dated 24.04.2018 wherein it was held that the finding of Hon'ble High Court in Kanshi Nath vs State and State vs Mahender Kumar & Ors, which hold that if in the comparison of reports of PA and the Director vast variations are found, then the samples are not representative, is improper. Those decisions do not lay down good law. It is was further observed that once the certificate of the Director of the Central Food Laboratory reaches the court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context the proviso to sub-section (5) of Section 13 can also be looked at which deals with the evidentiary value of such certificate. If a fact is declared by a statue as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of Section-4 of the Evidence Act. Thus, the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuals or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.
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19. Therefore, on the basis of aforesaid discussion, the defence relied upon by the accused is not available to him.
20. The other defence of accused is that the sample examined by CFL was of boondi ka ladoo as stated in the report. This is not a valid ground as this seems to be a typographical error. The certificate given in the report clearly says that sample bearing number 51/1019/56/2012CODE:06/DO-011/RL/2012(04/ DO- 11/2775) purporting to the sample of Moong Dal Burfi was received for analysis in CFL. Therefore the prosecution has proved that the sample of Moong Dal Burfi purchased from the accused was unsafe as defined under section 3(1)(ZZ)(viii) of The FSS Act, 2006 due to the addition of synthetic colour to the tune of 284.5 ppm, which is permitted only to the extent of 100 ppm.
21. It is therefore clear that the accused has committed an offence under section 59(i) of Food Safety and Standards Act 2006. There are three accused in this case. Accused No. 3 is a partnership firm and therefore not a legal entity. Accused no. 1 was the vendor of the shop. Accused No. 2 was not present at the shop and it is the submission of his counsel that he has nothing to do with the business of the shop. The liability of a partners of a firm is similar to the directors of the company. There is nothing on record to show that the offence was committed with the consent or connivance of accused No.2 or is attributable to his negligence. Therefore accused No. 2 cannot be convicted. Being the vendor of the firm, accused No. 1 Sushil Gupta is convicted for offence of 59(i) of Food Safety and Standards Act 2006.
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22. Let the matter be fixed for arguments on sentence on behalf of accused No.1 Announced in the open court this 21st day of August 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 49208/2016 Page No. 11/11 DA vs Sushil Kumar & ors