Delhi District Court
Cc No:- 3653/2017 Fso(Northern ... vs . Haneef Khan And Ors. Page No. 1 Of 15 on 30 September, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW DELHI
In the matter of :
CC No. :- 3653/2017
Food Safety Officer, Northern Railway
Department of Food Safety
Govt of NCT of Delhi
A-20 Lawrence Road Industrial Area
Delhi-110035 .... Complainant
Versus
1. Sh. Haneef Khan
S/o Sh. Munabbar Khan
M/s Smt. Shahida Parveen
vending cont.N.Rly
Stn Delhi Sarai Rohilla.
Residence Add.D-505
Fakhruddin Apartment, Plot No. 18, Sec-10, Dwarka
New Delhi-110075
.... FBO-cum-Vendor
2. Smt Shahida Parveen
W/o Sh. Abdul Hameed Khan
vending cont.N.Rly
Stn Delhi Sarai Rohilla.
Residence Add: D-505
Fakhruddin Apartment, Plot No. 18, Sec-10, Dwarka
New Delhi-110075
.... Licensee
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2022.09.30
17:01:01
+0530
CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 1 of 15
JUDGMENT
(a) Serial number of the case : 3653/2017
(b) Date of commission of the offence : 26.11.2016
(c) Name of the complainant : Khem Singh
Food Safety Officer
(d) Name of the accused person(s), : 1. Sh. Haneef Khan S/o Sh. Munabbar Khan FBO/Vendor of Smt. Shahida Parveen vending Co.
2. Smt Shahida Parveen W/o Sh. Abdul Hameed Licensee of Smt. Shahida Parveen vending Co.
(e) Offences complained of : Section 26(2) (i) and 59 of Food Safety and Standards Act, 2006 (f) Plea of the accused : Not guilty (g) Date of final arguments : Concluded on 28.09.2022 (h) Date of Decision : 30.09.2022 (i) Decision : Both accused persons convicted for the offence under Section 26(2)(i) of FSS Act r/w Section 3(1)(zz)(viii) FSS Act, 2006 r/w Regulation No. 3.1.2(1) and 3.1.2(4) of FSS (Food Product Standards and Food Additives) Regulations, 2011 punishable under Section 59 of FSS Act,2006. Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:01:16 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 2 of 15 BRIEF STATEMENT OF REASONS FOR DECISION
1. This is a complaint under Section 26/59 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act'). Brief facts as enumerated in the complaint are that on 26.11.2016 the complainant Khem Singh, Food Safety Officer (hereinafter referred as the FSO) along with field assistant Sh. Kulwant Singh visited the Tea Stall at Platform No. 1, Northern Railway Station, Delhi Sarai Rohilla where accused no. 1 was found conducting the business of selling food articles which were lying stored exposed for sale for human consumption. The FSO disclosed his identity to Sh. Haneef Khan i.e. Food Business Operator-Cum-Vendor (hereinafter referred to as 'FBO') of M/s Tea Stall and expressed his intention to purchase a sample of Aloo Patties (Loose) from the vendor, to which he agreed. FSO showed his intention of taking the sample of abovesaid food article for analysis. The sample was then lifted as per procedure prescribed under the Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample i.e. Rs.100/- was paid to the FBO by the FSO.
2. The sample was analyzed by food analyst and vide his report no. NR 72/2016 dated 05.12.2016, food analyst opined that the sample is unsafe because of the presence of unpermitted colouring matter viz. 'Metanil yellow'. The Designated Officer sent copy of the report of food Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.09.30 17:01:24 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 3 of 15 analyst to the accused persons and gave them an opportunity to file an appeal against the report of food analyst under Section 46(4) of FSS Act. However, no appeal was preferred by the accused persons.
3. Thereafter, the present complaint was filed against the accused persons namely Sh. Haneef Khan, FBO/Vendor of Smt. Shahida Parveen Vending Cont.N.Rly Stn. Delhi Sarai Rohilla and Smt Shahida Parven, Licensee, Vending Cont.N.Rly Stn. Delhi Sarai Rohilla . The FSO on conclusion of investigation, also obtained consent under Section 42 of FSS Act, for filing the present complaint.
4. As the complaint was filed in writing by the public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 10.07.2017. Accused persons appeared before the court and were admitted to bail. They were thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') on 07.02.2018 for offences punishable under Section 26(2)(i) r/w Section 3(1)(zz)(viii) of FSS Act, to which they pleaded not guilty and claimed trial.
COMPLAINANT EVIDENCE
5. At the trial, the complainant department i.e. the prosecution examined two witnesses in support of its case.
6. PW-1 is Khem Singh, FSO (Northern Railway) who deposed Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.09.30 17:01:37 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 4 of 15 on the lines of the complaint and exhibited the following documents i.e.
1. Ex. PW1/A : Form VA;
2. Ex. PW1/B : From VI
3. Ex. PW1/C : Receiving of Sample sent to Food Analyst on 28.11.2016;
4. Ex. PW1/D : Receipt of remaining samples sent to the DO;
5. Ex.PW1/E : FBO receipt.
6. Ex. PW1/F : Food Analyst Report;
7. Ex. PW1/G : Panchnama;
8. Ex. PW 1/H : Present complaint.
PW-1 deposed that, he had purchased a sample of two Kg potato patties lying in open container on paying price of Rs.100/- to accused no. 1. He thereafter, divided them in four equal parts and added 40 drops of formaline and put them into four separate bottles and sealed the same with the seal of FSO. As per PW-1 labels were also pasted on each of the four sample counterparts and the FBO has also signed all the four labels affixed on each of the four sample counterparts. PW-1 stated that a notice in Form VA was prepared and copy of the same was given to FBO/accused person. PW-1 was duly cross-examined on behalf of both accused persons.
7. Sh. Kulwant Singh, who was part of the team that had visited the spot for sample proceedings was examined as PW-2. The aforesaid witness deposed on similar lines as PW-1. The witness identified both accused persons present in the court room. PW-2 was cross examined on behalf of both the accused, wherein he deposed that FSO has paid the price of the patties at Rs.5/- per piece and not at the selling price of the patties i.e. Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:01:46 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 5 of 15 Rs.10/- per piece. PW-2 admitted that the patties were procured by accused from a bakery and not manufactured at the premises.
8. No other witness was examined and thereafter, complainant's evidence was closed and matter was listed for recording of statement of accused u/s 313 Cr.P.C.
STATEMENT OF ACCUSED
9. Accused persons were thereafter, examined u/s 281 r/w Section 313 Cr.P.C on 03.02.2020, wherein accused no. 1 stated that no proper procedure was followed by the FSO and neither price of the sample was paid by the FSO nor any public witness was made. Accused no. 2 stated that she is not aware of the proceedings and was not present at the spot on the date of incident. However, none of the accused led defence evidence despite opportunity.
ARGUMENTS
10. Case then culminated into final arguments. Both the Ld. Special Prosecutor for the Department/Complainant as well as Ld. Counsel for accused persons addressed oral arguments. It was argued by Ld. SPP that the complainant has been able to establish its case against the accused persons beyond reasonable doubt and that the accused have not been able to rebut the findings of the report of Food Analyst. It was further argued that both the witnesses have supported the case of prosecution and no major Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:01:55 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 6 of 15 contradiction can be seen in their testimony.
11. On the other hand, Ld. Defence Counsel for both the accused persons has argued that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. It is argued that PW-1 in his testimony has failed to mention about signature of the FBO on the sample. It is further argued by Ld. Defence counsel that the sample were not representative in nature as homogenisation of sample was not done. It is further argued that no public person was joined as a witness to the proceedings. It is also argued by Ld. Counsel for accused persons that accused persons had obtained the food article i.e. Aloo Patties from the baker and were only selling the food articles. Ld. Counsel for accused also argued that the sample no. mentioned on Ex.PW1/D and Ex.PW1/G are different. It is further argued that the sample was lifted on 26.11.2016 and analysis started on 28.11.2016 and since the food article was a perishable item the FSO did not explain were the food article was stored for one day. It is further argued by Ld. Counsel for accused persons that the sanction in the present case is bad in law as the order mentions sample of 'tomato ketchup' instead of 'Aloo Patty'.
12. Ld. Counsels for accused persons relied upon the following judgments in support of her arguments:-
(i) State of Gujarat V. Chandrakant Gordhandas Tehlani, Gujarat High Court in R/Criminal Appeal No. 814/2009 decided on 09.02.2022;
(ii) State of Gujarat V. Laxmandas Sevaram and Ors., Gujarat High Court in Criminal Appeal No. 837/2005 decided on 09.08.2016;Digitally signed by NABEELA
NABEELA WALI WALI Date:
2022.09.30 17:02:04 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 7 of 15
(iii) Manibai and Ors. Vs State of Maharashtra, Supreme Court of India in Criminal Appeal No. 36/1970 decided on 10.08.1973;
(iv) Vijendra Vs State of Uttar Pradesh, Supreme Court of India in Criminal Appeal no. 1167/2019 decided on 31.07.2019;
FINDINGS
13. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
14. It is to be understood that the notice framed against the accused persons was for violation of Section 26 (2)(i) r/w Section 3(1)(zz)
(viii) of FSS Act, 2006 and Regulation No. 3.1.2(1) and 3.1.2(4) of FSS Regulations, 2011, punishable under Section 59 of FSS Act, 2006 which are read as under:
Section 26 deals with Responsibilities of the food business operator - (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe;
Section 3(1)(zz) defines "unsafe food" which means an article of food whose nature, substance or quality is so affected as to render it injurious to health; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.09.30 17:02:12 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 8 of 15 Regulation No. 3.1.2(1) provides that unauthorized addition of colouring matter prohibited-The addition of colouring matter to any article of food except as specifically permitted by these regulations is prohibited;
Regulation No. 3.1.2(4) deals with synthetic food colours which may be used:
No Synthetic food colours or a mixture thereof except the following shall be used in food.
Sl No. Color Common Name Colour index Chemical class (1956)
1. Red Ponceau 16255 Azo 4R Carmoisine 14720 Azo Earthrosine 45430 Xanthene
2. Yellow Tartrazine 19140 Pyrozolone Sunset Yellow FCF 15985 Azo Section 59 deals with Punishment for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees;
15. As per the case of the complainant, the incriminating material on the basis of which the sample of "Aloo Patty" has failed the examination done by the Food Analyst, is the report Ex.PW1/F as per which, the sample was unsafe due to presence of synthetic food colouring matter i.e. 'Metanil yellow' in the sampled food article which is not permissible as per rules.
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2022.09.30
17:02:49
+0530
CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 9 of 15
16. It is the argument of the accused persons that the sample of "Aloo Patty" was not lifted as per the rules and regulations prescribed under the FSS Act. Testimony of PW-1 vividly describes the manner in which sample article was collected from the shop of accused/FBO. His testimony is on the similar lines as the complaint Ex. PW1/H. PW-2 who is a witness to the sample proceedings has also supported the case of the prosecution.
17. It is argued by the Ld. Counsel for the accused that PW-1 has not mentioned about the sample being signed by the FBO in his testimony, although the same is mentioned by PW-2 as well as in the complaint. The aforesaid contradiction as pointed out on behalf of accused, do not constitute material contradictions which may go to the root of the complainants' story so as to disbelieve the entire prosecution story in totality. Rather, Court is of the opinion that some sort of discrepancies are bound to occur in the deposition of prosecution witnesses being usual and natural. Even otherwise, they are found to be formal in nature and same cannot be treated as fatal for the case of the prosecution. Furthermore in the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under:
"...In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
"... The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial".Digitally signed by NABEELA
NABEELA WALI WALI Date:
2022.09.30 17:02:58 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 10 of 15
18. Another argument to be considered on behalf of the accused is with respect to the sample being lifted on 26.11.2016 and being received for analysis on 28.11.2016 and the difference in sample No. on the documents Ex.PW1/D and Ex.PW1/E. PW-1 in his testimony has stated that 27.11.2016 was a Sunday and hence the sample was deposited on 28.11.2016 with the DO vide Ex.PW1/D. It is the case of the complainant that formalin was added in each bottle and thereafter they were sealed. It is also not disputed that the accused no. 1 had signed on the sealed bottles. As per the DO receipt Ex.PW1/D the sample having DO No. 908/1700/NR/2016 was received on 28.11.2016. The report of the food analyst Ex.PW1/F also mentions that sample serial no. 908/1700/NR/2016 has been received in sealed plastic container. The accused has not adduced any evidence to show that the sample was tampered with or perished despite adding the preservative formalin. Similarly, the argument of the Ld. Defence Counsel with respect to the sample no. being mentioned as 53/KG/FSO/FSSA/NR/2016 on Ex.PW1/D and 54/KG/FSO/NR/FSSA/2016 on Ex.PW1/E also does not hold much ground in view of the above discussions.
19. It is also argued by Ld. Counsel for accused that no person from public was made a witness and that PW-2 is a stock witness. The requirement of adding witness to the proceedings flows from the procedure prescribed for taking sample as per 'Mannual for FSO' relied upon by the Ld. Counsel for the accused, which under Chapter 7 Clause E(a) mentions that FSO has to make arrangements for one or more witnesses at the time of lifting of the sample. However Hon'ble Supreme Court in the case of Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:03:07 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 11 of 15 Ambika Prasad & Anr v. State (2002) (2) Crimes 63 (SC) has held that it is know fact that independent persons are reluctant to be a witness or to assist the investigation.
Furthermore "... In Ashraf Ali Vs. State (Delhi) 1991 SCC 203, it has been observed that:− "The testimony of a witness is not to be disbelieved or discarded on the ground that the he happens to be an official witness but it is an equally well recognized rule of caution that Court should look for independent corroboration to the testimony of official witness in such cases. Relevant, of course, in the context are the time and opportunity available to the police party to associate with such an independent witness. It is a matter of common knowledge that no public person would like to involve himself by becoming a witness of recovery. Minor contradictions are bound to occur if a witness is examined after a considerable time..."
20. In the case in hand, it can not be ignored that the food stall was located at the railway station which is generally surrounded by passengers or other food stall operators. As stated by PW-1 it is likely that none of them would have agreed to join as a witness.
21. Another argument put forth by Ld. Counsel for the accused is with respect to homogenisation of the sample and the price of the sample paid by FSO to the FBO. In support of her argument, Ld. Counsel for the accused relied on the "Mannual for sampling and analyses for Food Safety Officers issued by the FSSAI". Ld. Counsel has drawn attention of the court to the procedure and manner of taking sample as stated therein, as well as the citations put forth. As far as the argument on homogenisation is concerned, PW-2 in his testimony on being cross-examined by Ld. Counsel Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:03:16 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 12 of 15 for complainant has admitted that the FSO had mixed the sample by breaking it in a tray. On the other hand, nothing contrary has been put forth by the accused to disbelieve the testimony of PW-2 on this aspect. Also Ld. Counsel has relied on the citation in support of her argument, however the said judgments are different on facts and have considered the need for homogenisation in samples of oil, milk, curd etc. In the present case, considering the fact that the sample article is 'Aloo Patty' which has been found unsafe due to presence of synthetic coloring matter, even otherwise non-homogenisation of food article would not make much difference. Another contention raised by the Ld. Counsel for the accused is with respect to the price of the sample being underpaid by the FSO. This contention although stands supported by the testimony of PW-2, however Ld. Counsel for the accused has failed to convince this court as to how the said procedural lapse would otherwise result in any difference in the report of the food analyst, and hence absolve the accused persons from the charges against them.
22. Another argument of the Ld. Counsel for accused, to be considered is that the FSO has not impleaded the baker/manufacturer of the food article as accused person. The court is in agreement with the argument of the Ld. Defence Counsel that the manufacturer of the food article should have been given notice by the FSO, however the said omission by him, does not diminish the responsibility of the accused persons u/s 26 of the Act.
23. Moreover, Section 80 of the Act allows the sellor of the food article, the 'defence of diligence' by proving that he sold the food in the Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:03:24 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 13 of 15 same condition as and when he purchase it. However, no defence was put forth by the accused persons in support of the said fact.
24. Another leg of argument of Ld. Counsel for accused is that the sanction accorded by the Commissioner was bad in law as the sanction order dated 06.06.2017 in para 3 mentions the sample article as '2 kg Tomato sauce'. This court has gone through the sanction order wherein the sample article is mentioned as "Aloo Patties in loose" in para 2 and para 4 in the order. However, '2 Kg Tomato Sauce in loose' has been mentioned in para no. 3. The same appears to be typographical error and thus the argument of Ld. Counsel for accused lacks merit.
25. It has been thus, conclusively proved that the sampled food article of "Aloo Patty" contained unpermitted colouring matter viz Metanil Yellow which is unsafe for human consumption. In view of the aforesaid facts and evidences brought on record, it is seen that the prosecution has been able to establish its case beyond reasonable doubt that the accused persons were selling a food article which was unsafe for human consumption.
26. The accused persons namely Haneef Khan and Shahida Parveen are therefore, convicted for the violation of provisions of Section 26(2)(i) r/w Section 3(1)(zz)(viii) of FSS Act 2006 r/w Regulation No. 3.1.2(1) & 3.1.2(4) of FSS (Food Product Standards and Food Additives) Regulations, 2011, punishable u/s/ 59 of FSS Act, 2006.
Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.30 17:03:33 +0530 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 14 of 15
27. Be heard separately on the point of sentence.
28. However before concluding, this court would propound that in all cases under the FSS Act that have come before this court till date, the complaint and the testimony of the FSO is recurrent with the submission that no public person joined the proceeding and hence the Field Assistants were made witnesses. However neither any notice is served upon such persons by the FSO nor any other efforts are made by them to join public persons as is reflected in their testimony. Furthermore considering the strict liability principle under the relevant Act, the complainant has to be all the more assiduous while conducting the sample proceedings as well as preparation of documents to ensure that any omission even though small as in the present case, with respect to the payment of price of food sample, sanction order or the sample number are avoided. It is also suggested that clear and coloured photographs of the sealed samples are also annexed as part of the complaint to enable the court to examine the seal and signatures of FBO and FSO on the sample article. Let a copy of this judgment be sent to the Worthy Commissioner Food Safety, Govt of NCT of Delhi as well as Worthy Commissioner Food Safety, Northern Railway Food Safety Cell, New Delhi with the request to sensitize the Food Safety Officers in the above respect.
ANNOUNCED IN THE OPEN COURT DATED: 30th September 2022 This judgment contains fifteen pages and each page is signed by me.
Digitally signed by NABEELA NABEELA WALI
WALI Date: 2022.09.30
17:03:42 +0530
(NABEELA WALI)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI/30.09.2022 CC No:- 3653/2017 FSO(Northern Railway) Vs. Haneef Khan and Ors. Page No. 15 of 15