Delhi District Court
Kishore Kumar S/O Kali Charan vs The State ( Govt. Of Nct Of Delhi) on 11 July, 2011
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IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 07.04.2011
Date of judgment reserved on : 04.07.2011
Date of decision : 11.07.2011
Criminal Appeal No. 24/ 2011
IN THE MATTER OF :
1. Kishore Kumar S/o Kali Charan
R/o 4614, Deputy Ganj,
Bahadurgarh Road
Delhi.
2. Brij Mohan S/o Kali Charan
M/s Kalicharan Brij Mohan
ShopNo.4615, Deputy Ganj,
Bahadurgarh Road,
Delhi.
..... Appellants
Versus
The State ( Govt. of NCT of Delhi) ..... Respondent
JUDGMENT :
1. Accused Kishore Kumar, his brother Brij Mohan and M/s Kali Charan Brij Mohan a partnership firm have been convicted U/s's 16 read with Section 7 of the PFA Act vide conviction judgment dated 15/2/2011 and accused Kishore Kumar and Brij Mohan have been awarded one year R.I with fine of Rs.10,000/ each and default sentence of 15 days S.I. Partnership firm has been awarded a 2 sentence of fine of Rs.5,000/. Accused Brij Mohan has been convicted in a vicarious liability when offence was found committed by partnership firm M/s Kali Charan Brij Mohan and accused Brij Mohan being a partner in this firm was further found to be an active partner in control of business affairs of the firm and responsible to the firm for its day today functioning. Accused Kishore Kumar besides partner in this firm was present carrying business when sampling of the food article was made in this case.
2. Present appeal has been filed by accused Kishore Kumar and Brij Mohan questioning legality of the conviction and sentence. Various grounds were pleaded in this appeal but then when appeal came up for its hearing on merits, ld counsel Sh.M.K. Gupta restricted present appeal only qua conviction of appellant Brij Mohan. Ld counsel argued that appellant Brij Mohan was not liable to be convicted in the absence of evidence and material to satisfy the requirement of provisions of Section 17 of the PFA Act. In support of his arguments and contentions ld counsel relied upon some High Court judgments reported as MCD Vs Ram Murti etc 1974 FAC 365 (Delhi High Court), State Vs Naresh Kumar and another 1980 (2) FAC 3 Delhi High Court, MCD Vs S.K.Jain & Ors 1984 (II) FAC 289 (Delh High Court ) and finally MCD Vs Desh Raj & Anr 1984 (II) FAC 163. Ld counsel relied upon these judgments for the proposition of law that where at the time of sampling one particular partner alone was present carrying the business, the other partners who were not present could not be treated to be incharge of and responsible to firm for the conduct of its business particularly where no evidence was produced by the prosecution for that requirement of law. Counsel argued that admittedly accused Kishore Kumar was present carrying 3 business in his shop premises when sample of the food article in this case was taken and thus appellant accused Brij Mohan could not be fastened liability in this case merely that he was a partner in firm M/s Kali Charan Brij Mohan and there was no evidence at all that Brij Mohan could be said to be incharge of and responsible to the firm for its business.
3. Another argument raised by ld appellant counsel was that in the absence of a specific findings that even if sample was found adulterated but not injurious to health, conviction could be found covered by Section 2 (ia) (m) and not U/s 2 (ia) (l) of the Act . Counsel submitted that even if conviction of accused Kishore Kumar was found sustainable, it could be held covered U/s 2 (ia) (m) of the Act and some leniency could be shown on the point of sentence.
4. Ld Chief Public Prosecutor Mr.Padhi opposed all these arguments and contention and submitted that conviction judgment has dealt with these arguments and contentions by valid reasoning on the basis of evidence and material on record and there was no ground to interfere with the conviction and sentence.
5. Since conviction of accused Kishore Kumar is not being challenged except the nature of offence, the uncontroverted factual situation in the present appeal as appearing from trial court record is, That on 6/8/98 a team of Prevention of Food Adulteration Department headed by Local Health Authority Sh.R.K Ahuja reached the business premises shop No.4615, Depti Ganj, Bahadurgarh Road, Delhi6. Accused Kishore Kumar was present carrying business in food articles and business was being carried in the name and style of M/s Kali Charan Brij Mohan. A sample of mustard oil 375 4 gms was taken from an open tin which did not have any label declaration and was a part of other food commodities stored for sale. Mustard oil was properly mixed by clean and dry measure before sampling. All legal requirements as per the Act & rules were followed.
6. Out of three sample bottles prepared in that sampling process, one sample when examined and analysed by Public Analyst in food laboratory Government of NCT Delhi, vide report dated 11/8/1998 Ex.PW1/F the sample was found adulterated as not confirming to standards laid down for mustard oil under PFA Rules and there was presence of argemone in the sample. From the Sales Tax Department of Delhi a reply to the query was received which is Ex.PW1/H to the effect that M/s Kali Charan Brij Mohan was a registered partnership firm and Kalicharan, Brij Mohan and Kishore Kumar were its three partners and all partners were reported as working partners. In view of report from Public Analyst that sample was found adulterated, sanction for prosecution Ex.PW3/A was obtained from Director PFA and prosecution was launched against four accused persons, three partners and the firm.
7. Accused persons on being informed about filing of the prosecution and intimation Ex.PW3/C along with copy of the Public Analyst report in terms of Section 13 of the PFA Act which was served upon accused persons by registered post, accused Kishore Kumar applied for counterpart sample to be examined at CFL and accordingly counterpart sample was sent to Central Food Laboratory Calcutta. CFL certificate dated 5/11/98 was received whereby the sample was reported adulterated wherein test for Argemone oil was reported positive in the sample.
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8. All four accused persons were put on trial after a charge for offence U/s 16 (1A) of the PFA Act was framed after examining prosecution evidence in precharge stage. With the conclusion of trial when accused persons came to be examined, accused Kishore Kumar did not deny the fact of sample of mustard oil taken from his business premises where he was conducting business in food articles. He pleaded a defence that mustard oil in question though was in an open tin but it was a branded as ''Jammu brand'' and accused being retailer and not being manufacturer was not liable to be convicted. Same defence was pleaded on behalf of accused firm M/s Kali Charan Brij Mohan examined through partner Kishore Kumar. Accused Brij Mohan pleaded defence that he was not incharge of and responsible for day today business affairs of the firm and he being not present in business premises at the time of sampling he was not liable to be convicted.
9. As seen above accused Kishore Kumar, Brij Mohan and the firm have been convicted. Third partner Sh. Kali Charan who was the father of other two partners and as per cross examination on F.I D.P Singh PW1, was 80 years of age had passed away during pendency of this case and proceedings were dropped as abated against him vide order dated 8/12/2004.
10. In view of no controversy on the facts that sample of mustard oil was drawn from Kishore Kumar while he was carrying business in food articles in the above described shop premises and the sample has been reported adulterated by the Central Food Laboratory which report is perse admissible in evidence as a conclusive proof of contents of the report, there appears no illegality in the conviction of accused Kishore Kumar when the sample mustard oil was reported 6 to have given positive test for Argemone.
11. Ld defence counsel Sh.M.K.Gupta submitted that the CFL report while describing sample as adulterated nowhere mentioned if adulterated mustard oil was injurious to health and that made a distinction between clause l & m of Section 2 (1a) of the Act, as to which particular clause was attracted so as to invite the penal provision in the Act. Ld counsel pointed out that if sample food article was found deficient in quality or purity as per the standards provided in the Act and Rules, if such deficiency rendered food article injurious to health only then it would be covered under sub clause (l) but if such deficiency did not render adulterated food article injurious to health then it would be covered by clause (m). Enhanced punishment U/s 16 (1A) was provided only where the offence was covered under clause (l). Counsel argued that a findings was required to be noted by the CFL that the sample found adulterated was injurious to health and in the absence of such a finding breach could be found covered under clause (m). Ld APP on the other hand referred to some literary material where it has been specifically observed that argemone in the mustard oil could be a cause for disease (dropsy''). A study report was cited in this work that a test of argemone oil on animals was carried by giving argemone oil in a very small quantity as a part of diet to those animals and it reflected alarming body dis functions relating to lungs, lever, hemoglobin content etc etc. I do agree with the argument of Ld APP that merely because CFL certificate has not specifically mentioned that sample mustard oil though found adulterated because of presence of argemone oil but did not mention that it was injurious to health, the court can take a judicial notice that presence of Argemone oil in mustard oil was 7 to be taken and treated as adulterated food article injurious to health. The case against accused Kishore Kumar will be covered under clause l of section 2 (ia) of the PFA Act. Ld trial court has awarded a minimum prescribed substantive sentence of one year with fine to accused Kishore Kumar. Accordingly conviction and sentence against Kishore Kumar calls for no interference.
12. As regards accused Brij Mohan, admittedly his liability is to be examined in terms of Section 17 of the PFA Act which provides for vicarious liability where offence is found to have been committed by a company or a partnership firm. Ld MM citing a judgment AIR 1960 117 found that besides salesman/vendor the owner was also to be held liable and punished in such a case. Ld MM then relying upon a reply to the query received from Sales Tax Department that all the partners of accused firm M/s Kali Charan Brij Mohan were working partners they were to be held liable and convicted. I find approach of ld MM is not in accordance with law. Section 17 of the PFA Act provides for a situation where offence under the Act is found to hve been committed by a company or a firm. Sub clause II of clause (1) (a) of the Act says that where no person has been nominated, every person who at the time the offence was committed was incharge of and responsible to the company in the conduct of business of the company shall be deemed to be guilty of offence. Accordingly before a person was to be held guilty in a vicarious liability for offence committed by company or a firm, onus was upon the prosecution to prove that such a person was incharge of and responsible to the firm for conduct of its business. In the present case all that the prosecution pleaded in its complaint in para 3 is that M/s Kali Charan Brij Mohan was a partnership firm and Kishore Kumar, Brij Mohan and Kali Charan 8 were its working partners and were incharge of and responsible for the day today conduct of the business of the firm. Pleading though did not clarify as to how all these three partners were incharge of the business affairs of the firm, or that the witness F.I PW1 deposed on this aspect that they were incharge of and responsible for the conduct of business of the firm, he did not depose any other fact in support of the above proposition as to how all these partners could be described as incharge of the business affairs of the firm. In the cross examination witness deposed that all three partners were present in the shop remises at the time of sampling which is contrary to the prosecution case itself and contrary to deposition of other two witnesses in this case who specifically deposed that accused Kishore Kumar alone was present in the shop premises when the team of the PFA department reached there and took the sample and carried out all its proceedings. A suggestion was put to witness that partner Kali Charan was 80 years of age which witness refuted as wrong but did not dare to correct the defence counsel as to what could be the approximate age of Kali Charan. Ld defence counsel relied upon certain judgments referred to in initial part of this judgment that where only one partner was present at the time of sampling and other partners were not present in the business premises, they could not be taken to be incharge of and responsible to the firm for its day today business activity. Ld Chief Prosecutor was unable to counter this argument of ld defence counsel. Even otherwise prosecution seems to rely upon a report received from Sales Tax Department that all three partners were the working partners. This report has not been got proved by examining the relevant witness from the Sales Tax Department who could have deposed as to how and in what 9 manner the three partners were stated to be working partner. Ld MM failed to consider all these important aspects while holding accused BrijMohan guilty in vicarious liability. I do not find there is any evidence or any material to hold prosecution case proved that accused Brij Mohan as a partner of M/s Kali Charan Brij Mohan was incharge of and responsible to the firm for its day today conduct. Conviction of Brij Mohan is liable to be set aside.
13. Accordingly appeal is partly allowed. Conviction and sentence of accused Kishore Kumar is upheld and confirmed whereas conviction of Brij Mohan is set aside.
Announced in the Open (J.R.ARYAN)
court on 11/07/2011. ADDITIONAL SESSIONS JUDGE (01)
NEW DELHI DISTRICT, NEW DELHI.
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Criminal Appeal No. 24/2011
Kishore Kumar S/o Kali Charan
Versus
The State ( Govt. of NCT of Delhi)
11/07/2011
Present: Appellants in person.
Ld. Chief Prosecutor for the department of PFA
Vide separate judgment appeal is partly allowed. Conviction and sentence of accused Kishore Kumar is upheld and confirmed whereas conviction of accused Brij Mohan is set aside. Trial court record along with copy of judgment be sent to the trial court. Appeal file be consigned to record room.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
11/07/2011.