Delhi High Court
M/S. Gupta Tea Traders vs State on 7 May, 2012
Author: Pratibha Rani
Bench: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION : MAY 07, 2012
+ CRL.M.C. 530/2011
M/S GUPTA TEA TRADERS ..... Petitioner
Through: Ms.Rebecca M.John, Adv. with
Mr. Kushdeep Gaur, Adv.
versus
STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for State.
AND
+ CRL.M.C. 1682/2010
NARESH GUPTA ..... Petitioner
Through: Ms.Rebecca M.John, Adv. with
Mr. Kushdeep Gaur, Adv.
versus
STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for State.
AND
+ CRL.M.C. 1683/2010
OM PRAKASH GUPTA & ANR. ..... Petitioners
Through: Ms.Rebecca M.John, Adv. with
Mr. Kushdeep Gaur, Adv.
versus
STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for State.
Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 1 of 10
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J. (Oral)
%
1. The three Criminal Misc. Petitions bearing Crl.M.C.Nos. 530/2011, 1682/2010 & 1683/2010 have been filed by M/s Gupta Tea Traders; Naresh Gupta; and Om Prakash Gupta & Dinesh Kumar Gupta.
2. The case of the petitioners is that M/s Gupta Tea Traders (petitioner in Crl.M.C. No.530/2011) was a partnership concern with Mr.Naresh Gupta (petitioner in Crl.M.C. No.1682/2010), Om Prakash Gupta and Dinesh Kumar Gupta (petitioners in Crl.M.C. No.1683/2010) as partners. The partnership was dissolved vide dissolution deed dated 01.04.1993 and thereafter Naresh Gupta became proprietor of M/s Gupta Tea Traders and it became a proprietorship concern. The other two partners namely Om Prakash Gupta and Diniesh Gupta ceased to have any concern with the proprietorship concern of Naresh Gupta.
3. On 26.04.2004 at about 7.00 pm the Food Inspector purchased a sample of 'Tea', a food article from the petitioner Naresh Gupta which consisted of 750 grams (3 X 250 grams) originally sealed polythene packets of 'Tea' (ready for sale) bearing identical label declaration. The said sample was divided in three equal parts by putting one packet in one part and each counter part of the sample was separately packed, Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 2 of 10 fastened and sealed in accordance with PFA Act and Rules. One counter part of the sample bearing LHA Code No.72/LHA/6204 was also sent to Public Analyst, Delhi with intact seal, who analyzed the same and found it to be misbranded. As per report dated 26.05.2004 prepared by Public Analyst, the sample was misbranded because there was violation of Rule 42(YY), however tea conformed to standard.
4. The complaint was filed for prosecution of all the petitioners alleging that at that time, M/s Gupta Tea Traders was a partnership firm with Naresh Gupta, Om Prakash Gupta and Dinesh Kumar Gupta as its partners, all of them were found to be in charge of and responsible for day to day conduct of the business of M/s Gupta Tea Traders. The petitioners had violated the provisions of Rule 42(YY) and 42 (ZZZ) (17) of the Prevention of Food Adulteration Rules, 1955 read with Section 2(ix)(g) & (k) of Prevention of Food Adulteration Act, 1954.
5. The learned MM ordered for summoning all the accused persons in the said complaint case. The petitioners filed an application seeking discharge in the light of decision of this Court in S.S. Gokul Krishnan & Ors. Vs. State thr. Food Inspector, Govt. Of NCT of Delhi 2009 II AD (Delhi) 365, however, the said application was dismissed by the learned trial Court, hence this petition.
6. The petitioners are seeking quashing of the complaint and their prosecution on the ground that as per the report of the Public Analyst, sample of tea conformed to standard, it was a Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 3 of 10 first offence and only written warning was required to be given for violation of Rule 42(YY). Consent for prosecution has been accorded by Director, PFA, Govt. of Delhi in a mechanical manner without application of mind and without even referring to the policy No.F6(228)/85/ENF/P.F.A.
7. It has been contended that in the year 1985 vide above policy, a decision was taken by Department of PFA that in case, the contents of the sealed packet conformed to the standard laid down under the PFA Rules, deficiency with regard to Rule 32, which pertained to the particulars of the labelling on the container or packets, is only a technical offence. In such a case, the party concerned be given a written warning drawing its attention to Rule 32 and in case the practice is repeated after a written warning, the party committing the offence second time should be prosecuted. It has been further contended that no complaint could have been filed by the Department of Prevention of Food Adulteration, Govt. of NCT of Delhi against the petitioners under Section 7 read with 16 of the PFA Act, 1954 for violation of Section 2 (ix)(g) & (k) which envisages violation of Rule 32 followed by Rule 42(YY) and Rule 42(ZZZ)(17) of PFA Rules, for the first offence, in terms of policy No.F6(228)/85/ENF/P.F.A. which was in force at the time of alleged commission of the offences by the petitioners.
8. As the policy No.F6(228)/85/ENF/P.F.A was in force on the relevant date and as per prosecution case, no written warning was ever given to the petitioners drawing their attention to Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 4 of 10 Rule 32, no complaint could have been filed by the Department. The petitioners prayed for setting aside the order dated 11.01.2010 passed by learned MM in the complaint case No.249/04 in view of the legal position laid down in S.S. Gokul Krishnan & Ors. Vs. State thr. Food Inspector, Govt. Of NCT of Delhi (Supra) and followed in M/s Hindustan Unilever Ltd. vs. State (NCT of Delhi) & Ors. in Crl.M.C. 2636/2008 and Crl.M.A. 9737/2008 decided on 01.12.2010
9. On behalf of State, learned Addl. PP has fairly conceded that before filing the complaint No.294/04 against the petitioners, no written warning was given to them and it is also not disputed by the State that the sample of tea was taken during the period when the policy No.F6(228)/85/ENF/P.F.A. was in force.
10. In the case S.S. Gokul Krishnan & Ors. Vs. State thr. Food Inspector, Govt. Of NCT of Delhi (supra), the facts as mentioned in the complaint were that a sample of processed cheese was purchased from Ashok Chabra, accused in Complaint Case No.232/2006 titled as Food Inspector (PFA) vs. Ashok Chabra and Ors. The sample consisted of three sealed tin packs of 400 grams each with identical declaration and taken under the supervision and direction of SDM/LHA. The vendor also disclosed the source of supply to be M/s NGS Commerce vide bill No.1677 dated 22.09.2005 and notice was also sent to the supplier. The sample was divided into three equal parts i.e. one sealed tin pack in each counterpart and Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 5 of 10 each packet was separately packet, fastened and sealed.
(i) One counter part of the sample bearing LHA Code No.72/LHA/13788 was sent to Public Analyst. The report of the Public Analyst dated 10.10.2005 was to the effect that the sample was misbranded because it gave misleading statement regarding 'BEST BEFORE'. However, processed cheese conformed to standard.
(ii) On 06.10.2006 complaint under Sec.16 PFA Act was filed in the Court of learned MM for violation of Section 2(ix)(g) and
(k), PFA Act and also Rule 32(f) and Rule 37 of PFA Rules punishable under Section 16(1)(a) read with Section 7 of PFA Act. The learned MM ordered for summoning of the accused and that order was challenged before this Court mainly on the ground that even if violation of Rule 32 is admitted by the petitioner, it was a case of first violation. Vide policy No.F6(228)/85/ENF/P.F.A. decision was taken by the Department of PFA, Govt. of NCT of Delhi as far back as in 1985, that in case, the contents of the sealed packet or container conformed to the standard laid down under the PFA Rules, deficiency with regard to Rule 32 which pertained to the particulars of the labelling on the container or packets is only a technical offence. In such a case the party concerned be given a written warning drawing its attention to Rule 32 and in case the practice is repeated after a written warning, the party committing the offence second time should be prosecuted.Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 6 of 10
(iii) After considering the rival contentions, the Co-ordinate Bench of this Court, in paras 27 to 30, held as under :-
27. The alleged offence of violation of Rule 32 (f) and (i) was found to have been committed in the year 2005. At the relevant time department policy No.F6(228)/85/ENF/P.F.A. was in force and the said policy was cancelled, modified or withdrawn vide order order No.5/07 dated 14.09.2007. As per the said policy, cases of breach of Rule 32, since pertained to the particulars of the labelling on the container or packet, were technical offences, the party affected was to be given a written warning drawing its attention to Rule 32, which required of date, month and year of manufacturing to be exhibited on the labels affixed on tin or the packet. It was only if the violation was repeated after a written warning, the party committing the offence second time had to be prosecuted. As per this policy, pending cases pertaining to breach of Rule 32 being of technical nature were decided to be disposed of accordingly.
28. It is not the case of the prosecution that petitioners were given warning by way of a notice drawing their attention to Rule 32 which provided for particulars to be exhibited on the sampled tin or the packet, and it was a case of second breach of Rule 32, i.e. in other words the offence was committed for the second time and therefore, the petitioners were liable to be prosecuted.
29. The policy being in force at the relevant time should have been adhered to by the department before it decided to file a complaint in the Court for offences under Section 7/16 of the PFA Act. The petitioners are therefore within their rights to seek protection under the said policy which was in existence at the relevant time.
30. In view of my discussion as above, it is not a case of misbranding within the meaning of Rule 32 of the Act. Also there is non-compliance of the policy No.F6(228)/85/ENF/P.F.A. by the department. The complaint deserves to be quashed and is accordingly quashed. The impugned summoning order dated 6.10.2006 and other proceedings conducted therein also stand quashed. Petition stands allowed accordingly.' Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 7 of 10
11. The ratio of S.S. Gokul Krishnan & Ors. Vs. State thr. Food Inspector, Govt. Of NCT of Delhi was followed in M/s Hindustan Unilever Ltd. vs. State (NCT of Delhi) & Ors. (supra). The facts leading to the prosecution of petitioners in M/s Hindustan Unilever Ltd. vs. State (NCT of Delhi) & Ors. and as mentioned in para 2 of the report, are as under :-
'2. Briefly stated, the facts leading to the filing of these petitions are that on 10th May, 2005, 18th April, 2006, 24th May, 2006 and 7th November, 2006, the concerned Food Inspectors purchased samples of Kissan Tomato Ketchup for analysis from the premises of M/s. Nut and Cookies, Shop No.G-24/1, Rajouri Garden, New Delhi; M/s Shangrila Chinese Food (Kitchen of Golden Dragon Restaurant), RBI Colony, Outer Ring Road, Hauz Khas; M/s Modern Store, 42, Each Avenue Road, East Punjabi Bagh, New Delhi and from Sh. Ravinder Kumar, nominee of M/s. Intercontinental. The Grand (a unit of Bharat Hotels LTd.), Barakhamba Avenue, New Delhi respectively. Those samples were sent to Public Analyst and as per the reports of Public Analyst, the samples were found to be misbranded because the label declared 'Best Before' in a misleading manner, though the samples conformed to standards. As per the report of the Public Analyst, the label on samples declared 'Best before 12 months from manufacture' but the date of manufacture was not mentioned on the label, though the date of packaging was given.' Applying the ratio in S.S. Gokul Krishnan's case to the facts of this case, in para 10 of the Report, it was concluded as under:
10. The present case is fully covered in facts and law by the decision of this Court in S.S.Gokul Krishnan (supra), the SLP filed against which judgment being SLP Crl.M.P.No.13188/2009 has also been dismissed by the Supreme Court vide order dated 24 th August, 2009. In view of the decision in the above referred case as also the policy notification No.F6(228)/85ENF/P.F.A. dated 20.09.1985, the respondent was required Crl.M.C.439/2008 page Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 8 of 10 5 of 6 to issue a notice/warning to the petitioners, drawing their attention to violation of Rules regarding labelling particulars before any complaint could have been instituted against the petitioners. Admittedly, neither any notice nor any warning was issued to the petitioners. Thus, the filing of complaints against the petitioners under Section 7/16 of PFA Act without issuing warning against the misbranding as per the notified policy of the respondents is not justified.
12. Reverting to the facts of the present case, the sample was taken on 26.04.2004. The report of Public Analyst is to the effect that the sample was misbranded because there was violation of Rule 42(YY), however tea conformed to standard. Learned APP for State has fairly conceded that before filing the complaint prosecuting the petitioners, no written warning was given to them, hence admittedly, it is not a case of second violation. Following the ratio of S.S. Gokul Krishnan & Ors. Vs. State thr. Food Inspector, Govt. Of NCT of Delhi (supra) M/s Hindustan Unilever Ltd. vs. State (NCT of Delhi) & Ors. (supra), the case of the petitioners being squarely covered by the decision of this Court in the above noted two reports and undisputedly the policy No. F6(228)/85/ENF/P.F.A. was in force at the time when the samples of the tea was taken and it was found to be conforming to the standards except for violation of Rule 42"(YY).
13. The complaint case No.249/2004 and all the proceedings emanating therefrom are quashed qua the petitioners.
Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 9 of 1014. All the three petitions are allowed. Registry is directed to send the copy of the order to learned Trial Court.
PRATIBHA RANI (JUDGE) MAY 07, 2012 'st' Crl.M.C.Nos. 530/2011, 1682 & 1683 of 2010 Page 10 of 10