Delhi District Court
Sawar Mal Saini vs Food Inspector on 18 February, 2012
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE - NDPS PATIALA HOUSE COURTS : NEW DELHI
C.A. No. 119/10
ID No. 02403R00288172010
1. Sawar Mal Saini
S/o Sh. Sohan Lal Saini
M/s. Kuber Tobacco Products (P) Ltd.,
31L, Siraspur, G.T.Karnal Road, Delhi42
2. M/s. Kuber Tobacco Products (P) Ltd.
31L, Siraspur, G.T.Karnal Road,
Delhi42
.... Appellants
Versus
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road,
Indl. Area, Delhi25.
.... Respondent
Date of Institution : 07.09.2010
Order was reserved on : 13.01.2012
Date of pronouncement : 18.02.2012
CA No. 119/10 Page No. 1 of 11
ORDER
1. This criminal appeal has been preferred against the judgment dated 29.07.2010 and the order on sentence dt. 18.08.2010 passed by Ld. ACMMII, New Delhi District whereby the appellants have been convicted for committing violation of Rule 62 & Rule 32 (f) & (i) of PFA Rules punishable under section 16 read with Section 7 of PFA Act (hereinafter referred to as the PFA Act) and the appellant no.1 has been sentenced to rigorous imprisonment of six months and fine of Rs. 5000/ and appellant no.2 has been imposed a fine of Rs.10,000/.
2. Briefly stated the case of the prosecution put up before the Ld. Trial Court was as follows:
(a) On 11.07.2001 at about 6.40 p.m. PW1 Food Inspector Dr. Pramod Kothekar purchased a sample of "Gutka" from the premises of appellant No.2 herein, namely M/s Kuber Tobacco Products (P) Ltd., where the said sample was found stored for sale and appellant No.1 herein, Sh. Sanwar Mal Saini was found conducting the business of the said food articles.
(b) As per the evidence led, the sample consisted of 9x169 grams of Gutka taken as such from the sealed poly packets bearing identical label declaration and that the said sample was taken under the direction/supervision of PW2 Sh. K.K. Mittal, ALHA. The Food CA No. 119/10 Page No. 2 of 11 Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry packets. Each packet containing the sample was separately packed, fastened, and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles.
Notice was given to the accused Sanwar Mal Saini and the price of the sample was also given to him vide vendor's receipt dated 11.07.2001. The Panchnama was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused.
(c) One counter part of the sample was sent to public analyst in intact condition and two counter parts were deposited with LHA in intact condition. The Public Analyst analysed the sample on and opined that the sample contains Magnesium carbonate in violation of Rule 62 and that the sample is also misbranded as there is violation of Rule 32 (f) and (i) on small pouches.
(d) Vide the impugned judgment, the Ld. ACMM has convicted both the appellants and held them guilty for violation of Rule 62 and Rule 32 (f) and (i) of PFA Rules punishable U/Sec.16 r/w Section 7 of PFA Act.
3. The judgment of the Ld. ACMM has been assailed before this court mainly on the ground that the trial court has erred in holding the CA No. 119/10 Page No. 3 of 11 appellants guilty of having violated Rule 62 of the PFA Rules in as much as the said Rule restricts the use of anti caking agents i.e. Carbonates and Phosphates of Calcium and Magnesium in any food and the appellants never used the said agents in the preparation of Gutka and that the said elements are inherently present in supari, lime, tobacco which are the main ingredients of Gutka. It has also been contended that the appellants were never served with the report of the Public Analyst and therefore, they could not exercise their valuable right of getting the sample retested and that there has been a contravention of section 13(2) of the PFA Act. It is also the case of the appellant that there has been a violation of Rule 17 and 18 of the PFA Rules and therefore on this ground also, they could not have been convicted. As regards the conviction of appellants for the violation of Rule 32(f) and (i) of PFA Rules, it has been contended that as per the own policy of PFA Department, no prosecution is done in the first case of contravention of Rule 32 of PFA Rules and that a mere warning is given and that therefore, in the present case also, the appellants herein are not liable to be prosecuted/convicted for the first contravention of Rule 32 of PFA Rules.
4. It is a matter of record that initially no reply was filed by the respondent to the present appeal petition but when the Ld. Predecessor CA No. 119/10 Page No. 4 of 11 of this court on an application filed by the appellants u/s 391 Cr.PC summoned the CFL Director and recorded his evidence, a reply was filed thereafter by the respondent State. The CFL Director Sh. Dhir Singh was examined as court witness by the Ld. Predecessor of this court and he has stated before the court that Gutka is not a food article and is covered under the Cigarettes and other Tobacco Products Act, 2003. After the said deposition of the CFL Director, a reply has been filed on behalf of the respondent wherein it has been submitted that the Hon'ble Supreme Court in its Judgment pronounced in the case reported as Godawat Pan Masala products I.P. Limited and Another Vs. Union of India AIR 2004 SC 4057 has held Pan Masala, Gutka etc. to be food products and therefore it is being contended that the deposition of the CFL Director that Gutka is not a food article has no relevance. It has also been submitted by Ld. Counsel for respondent that none of the contentions raised in the appeal have any merit and that the Ld. Trial court has already dealt with all the submissions made on behalf of the appellant herein.
5. I will first deal with the conviction of the appellants herein for the violation of Rule 32 (f) and (i) of the PFA Rules. It is very surprising that the appellants have been convicted for the violation of said Rule though in the para 2 of the complaint itself, it is mentioned by the CA No. 119/10 Page No. 5 of 11 complainant themselves that since the sample pouches were contained in another original sealed packet which in turn was having all the declarations including statutory warning, as per the provisio of the Rule 32 (f) and (i), there was sufficient compliance of this Rule and that therefore the delinquents are only liable for the violation of Rule 62 of the PFA Rules. In other words, in the present case, though the Public Analyst in his report had stated that there is a violation of Rule 32 (f) and (i) with respect to the small pouches, the said report was not accepted by the complainant and they themselves, keeping in view the provisio of Rule 32 (f) and (i) decided not to prosecute the accused/appellants herein for the violation of Rule 32 (f) and (i). The said proviso makes it clear that in case of wholesale packages, the particulars required under clause (f) and (i) need not be specified. In the present case, since the sample packets of 169 gms each were taken out from another original sealed polypack, the complainant was satisfied that the sample pouches did not require to contain a declaration as required in Rule 32 (f) and (i). In such view of the matter, the conviction of the appellants herein cannot at all be held for the violation of Rule 32(f) and (i). To be fair to the Ld. Trial Court, it appears that the said fact did not even come to the notice of Ld. Defence Counsel for as per record this point was never canvassed CA No. 119/10 Page No. 6 of 11 before the Ld. Trial Court and has not even been argued before this court.
6. Coming now to the conviction of the appellants for the violation of Rule 62 of the PFA Rules, Ld. Counsel for appellants has submitted that he is not pressing any other ground of appeal, apart from the ground that the appellants cannot be held guilty for the violation of the said rule in view of the fact that the ingredients of Gutka inherently contain anti caking agents and the appellants have not "used" the said agents. In view of the said submissions of Ld. Counsel for appellants, Sh. Narang, no other ground except this ground is being considered. Now, Rule 62 lays down that no anti caking agents shall be used in any food except where the use of anti caking agents is specifically permitted. The proviso to the said Rule names the articles namely table salt, onion powder, garlic powder, fruit powder and soup powder, in which the use of anti caking agents is permitted. In the present case, since the sample in question as per the report of Public Analyst was found to contain Magnesium Carbonate, an anti caking agent, it has been reported by Public Analyst that there has been a violation of Rule 62. Now, the defence of the appellants is that they had not used Magnesium Carbonate in the Gutka sold by them but that the said elements are present naturally in Tobacco and Supari and Lime which CA No. 119/10 Page No. 7 of 11 are the ingredients of the Gutka and the said ingredients are mentioned on the package itself. Ld. Defence Counsel has also contended that the Director of CFL in his deposition before the court has himself deposed that Supari and Lime have inherent Magnesium Carbonate. Some literature namely a dictionary of Indian Raw Materials and Industrial Products by the name of 'The Wealth of India' published by CSIR, New Delhi has also been placed on record according to which, tobacco contains a high percentage of organic acids in the form of calcium, magnesium salts. It has also been submitted that no standard for Gutka is prescribed by the PFA Rules and that therefore in view of the judgment of the Hon'ble Supreme Court pronounced in M.V. Krishnan Vs. State of Kerala AIR 1966 SC 1976 and Hindustan Lever Ltd. Vs. Food Inspector and Anr. (2006) 1SCC (Cri) 288, the appellants cannot be convicted for selling Gutka on the alleged violation of Rule 62. It is also relevant to mention herein that though Ld. Counsel for appellants had initially contended that Gutka does not fall within the definition of food and therefore is outside the purview of PFA Act, he did not press this contention in view of the judgment of Hon'ble Supreme Court pronounced in Godawat's case (supra).
7. In rebuttal, Ld. Counsel for respondent Sh. Om Prakash has submitted that despite the fact that the ingredients of Gutka have magnesium CA No. 119/10 Page No. 8 of 11 carbonate inherently, the appellants herein are to be held guilty of violation of Rule 62 of the PFA Rules, as the said Rule strictly prohibits the use of the said anti caking agents in any food.
8. I have given careful consideration to the submissions made by both the Ld. Counsels. In my considered opinion, the submissions made on behalf of the appellants are to be upheld taking into consideration the scheme of Prevention in Food Adulteration Act and the meaning assigned to the word "use" in the said Act. The said Act has been enacted to make provisions for the prevention of adulteration of food. Section 23(1A)(f) of the said Act also empowers the Central Government to make rules for prohibiting the sale or defining the conditions of sale of any substance which may be injurious to the health when used as food or restricting in any manner, its use as an ingredient in the manufacture of any article of food etc. Thus by virtue of this section, the Central Government may completely ban the sale of a substance, if it is considered injurious to the health of the consumer.
9. This has been done by the Central Government, for instance, in the case of Kesari gram and dal (Lathyrus Sativus) by virtue of incorporation of a prohibition under Rule 44A. This rule states that no person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette CA No. 119/10 Page No. 9 of 11 specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale Kesari Dal and its products, including any mixture of Kesari gram, dal or flour with any other gram dal or flour.
10. Now, admittedly, till date the Central Government has not banned the sale of Gutka or any of its ingredients, namely supari, lime, tobacco etc. Further in the present case the Director, CFL has stated before this court that Supari, Lime and tobacco inherently contain magnesium which is an anticaking agent. In such view of the matter it is to be presumed that the legislature vide Rule 62 did not intend to cover such Food which inherently contains elements which are in the nature of anti caking agents but it is the addition of anti caking agents in Food which is sought to be prohibited vide this Rule. If the argument of the Ld. Counsel for Respondent, PFA is accepted, the sale of Gutka would automatically become banned in view of the provisions of Rule 62 referred hereinabove.
11. No doubt, by virtue of the provisions of the Act and the Rules thereunder, the Central Government can lay down the standards for the manufacture of Gutka and specify therein the quantity in which its ingredients i.e. Supari, Lime, tobacco etc. may be used in the CA No. 119/10 Page No. 10 of 11 manufacture of Gutka but, in the absence of any such standards laid down, the food authorities cannot be allowed to take to resort to Rule 62 to urge that a vendor is liable to be convicted for violation of Rule 62 in case the sample of Gutka sold by him is found to contain anti caking agent despite the fact that the ingredients of Gutka inherently contain anti caking agent.
12.In view of my discussion herein above, I am of the considered opinion that it cannot be stated that the appellants have used (added) any anti caking agent in Gutka and that therefore, I am of the opinion that there has been no violation of Rule 62 of PFA Rules. Accordingly, the appellants cannot be held guilty for the violation of the said rule and are liable to be acquitted. Accordingly, the judgment dated 29/7/2010 and the order on sentence dt. 18/8/2010 passed by Ld. ACMM II are hereby set aside. The appellants stand acquitted. Bail bonds stand cancelled. Sureties stand discharged. A copy of this order be sent to the Ld. Trial Court for record. Trial Court Record be also sent back. Appeal file be consigned to record room.
Announced in the open court on this 18th day of February, 2012 (ANU GROVER BALIGA) Special Judge - NDPS Patiala House Courts : New Delhi CA No. 119/10 Page No. 11 of 11