Delhi District Court
Da vs . Inder Dev Tripathi & Ors. Page 1/13 on 28 January, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 129/08
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35 ........ Complainant
Versus
1.Sh. Indra Deo Tripathi @ Inder Deo Tripathi S/o Sh. G. N. Tripathi M/s Som Products, C123 Naraina Industrial Area,' Phase1, New Delhi28 ...........Vendorcumpartner.
2. Sh. Sudhir Kumar Bajpai So Sh. Guru Prasad Bajpai M/s Som Products, C123 Naraina Industrial Area,' Phase1, New Delhi28 R/o 14/60, Ground Floor, Subhash Nagar, New Delhi110027.
............Partner (Proceedings against
him abated vide order dated
24.02.2011)
3. M/s Som Products,
C123 Naraina Industrial Area,'
Phase1, New Delhi28 ........ Partnership Firm
CC No. 129/08
DA Vs. Inder Dev Tripathi & Ors. Page 1/13
Contd...2/
CC No. 129/08
DA Vs. Inder Dev Tripathi & Ors. Page 2/13
Serial number of the case : 129/08/14
Date of the commission of the offence : 08/04/08
Date of filing of the complaint : 02/09/08
Name of the Complainant : Sh. Prem Chand Tiwari, Food
Inspector
Offence complained of or proved : Section 2 (ix) (k) of PFA Act, 1954
and Rule 32 (i) of PFA Rules, 1955
which is punishable u/s 16 (1) (a) of
PFA Act 1954 r/w Section 7 of the
PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 28.01.2016
Judgment announced on : 28.01.2016
Brief facts of the case :
1.In brief the case of the prosecution is that on 08.04.2008 at about 11:45 am, Food Inspector P. C. Tiwari and Field Assistant Sh. Satish Gaur, under the supervision and directions of SDM/LHA Sh. S. M. Bhardwaj visited the premises of M/s Som Products, C123 Naraina Industrial Area,Phase1, New Delhi where accused Indra Dev Tripathi who was the vendorcumproprietor was found present conducting the business of sale of various food articles including Flavoured Pan Masala, for sale for human consumption and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected/ purchased the sample of Flavoured Pan Masala.
2.During the course of investigation, it was revealed that Sh. Indra Deo Tripathi @ Inder Deo Tripathi S/o Sh. G. N. Tripathi was the vendorcumpartner of M/s Som Products, C123 Naraina Industrial Area,Phase1, New Delhi28 at the time of taking sample and as such he is incharge of and responsible for day to day CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 3/13 conduct of the business of the said firm. M/s Som Product is a partnership firm having two partners namely (1) Sh. Indra Deo Tripathi @ Inder Deo Tripathi S/o Sh. G. N. Tripathi and (2) Sh. Sudhir Kumar Bajpai S/o Sh. Guru Prasad Bajpai (Proceedings against him abated) and as such both the partners are incharge of and responsible for day to day conduct of the business of the said firm. Being a partnership firm M/s Som Products is also liable. The sampled article of food "Flavoured pan Masala" was manufactured and packed by the vendor firm itself.
3.It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was misbranded because there is violation of Rule 32 (i). However, Pan Masala conforms to standard. Accordingly after obtaining the necessary Sanction/Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ix)(k) of PFA Act 1954 and Rule 32 (i) of PFA Rules 1955 which is punishable under section 16 (1) (a) read with Sec. 7 of the PFA Act, 1954
4.After the complaint was filed, accused persons were summoned vide order dated 02.09.2008.
5.Notice for violation of provision of Section 2 (ix) (k) of PFA Act, 1954 and Rule 32 (i) of PFA Rules, 1955 which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act were framed against the accused persons vide order dated25.06.2009 to which accused persons pleaded not guilty and claimed trial.
6.Statement of accused Indra Dev Tripathi and M/s Som Products U/s 313 Cr. P.C. were recorded on 16.09.2013 wherein accused persons claimed themselves to be innocent. Despite opportunity, accused did not lead any defence evidence. A brief scrutiny of the evidence recorded in the matter is as under: CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 4/13
7.PW1 Sh. P. C. Tiwari deposed that on 08.04.2008 he along with FA Satish Gaur along with other officials of the PFA Department under the supervision and directions of SDM/LHA Sh. S. M. Bhardwaj visited the premises of M/s Som Products, C123, Nariana Industrial Area, Phase1, New Delhi where accused Indra Dev Triapthi was found conducting the business of food articles stored there for sale ready for sale for human consumption including Flavoured Pan Masala. He deposed that they disclosed their identity and intention for purchasing the sample of Flavoured Pan Masala (ready for sale) in sealed polypackets bearing identical label declaration for analysis to which accused agreed. He deposed that before purchasing the sample, he tried his best to procure some public witness by requesting some passersby and neighboures but as none agreed and, on his request FA Satish Gaur agreed and joined as a witness. He deposed that at about 11:45 am, he purchased nine Sealed Polypackets of Flavoured Pan Masala bearing identical label declaration containing 60 pouches of 02 gms each o payment of Rs. 411/ vide vendor's receipt Ex. PW1/A. He deposed that vendor also issued a Invoice Ex. PW1/A1. He deposed that the sample was divided into three equal parts by putting three Sealed Polypackets in one plastic box and each counterpart containing the sample of Flavoured Pan Masala was separately packed, marked, fastened and sealed according to PFA Act and Rules and pasted the LHA slip bearing his code number and signatures from top to bottom in all the three parts and signatures of the vendor obtained in such a manners that partly appeared on the LHA Slip as well as on the wrapper of the sample bottle. He deposed that Notice in Form VI Ex. PW1/B was prepared and the label was reproduced in Form VI and a copy was given to the accused as per his endorsement at portion A to A bearing his signature at point A. He deposed that Panchnama Ex. PW1/C was prepared. He deposed that all these documents Ex. CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 5/13 PW1/a to Ex. PW1/C were read over and explained to the accused in Hindi and after understanding the same accused signed at point A, witness signed at point B and FI signed at point C, respectively. He deposed that the one counter par of the sample along with one copy of Memo Form VII in sealed and intact condition was deposited with the PA on 08.04.2008 i.e next working day vide receipt Ex PW1/D and a memo VII in a sealed packed separately. He deposed that all the copies of Memo in Form VII bear the seal impression with which sample were sealed. He deposed that the remaining two counter parts of sample in intact condition along with two copies of memo of Form VII in a sealed packet ere deposited with the LHA on 08.04.2008 i.e next working day vide receipt Ex. PW1/E bearing his signature at point B and that of LHA at point A which he identified, with the intimation that one counter part of the sample in intact condition has already been deposited with the PA. He deposed that all the copies of memo of Form VII were marked with the impression of seal which was used to seal the sample counter parts. He deposed that on receipt of the PA report Ex. PW1/F according to which the sample was found misbranded, as mentioned therein at portion X.
8.He deposed that during investigation, it revealed that the name of the vendor was Indra Dev Tripathi instead of Inder Dev Tripathi. He deposed that he also sent a letter Ex. PW1/G to VAT officer, Ward No. 104 and as per its reply at portion A, M /s Som Products consisting two partners and both are working partners and address C114. He deposed that then he visited at the address of the firm and Sh Sudhir Kumar Vajpayee (proceedings against him abated), another partner who gave in writing Ex. PW1/H and they had shifted to C123 have already informed to the STO and gave him the copy of the Central Excise CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 6/13 Registration Certificate of above said address i.e C123, Naraina industrial Area, Phase1, New Delhi. He deposed that after completion of the investigation, the complete case file along with all the statutory documents were sent to the Director Sh. Mohan Lal through LHA, who after going through the entire case file applied his mind and gave the sanction for prosecution Ex. PW1/I against the accused persons. He deposed that the complaint Ex. PW1/J was filed in Court by him bearing his signatures at point A on each page. He deposed that the intimation letter Ex. PW1/K along with the PA Report was sent to the accused persons by registered post through the LHA bearing his signature a point A which was not received back undelivered. He deposed that the Postal Registration Receipt copy is Ex PW1/L bearing the relevant entry at portion A.
9.He deposed during his crossexamination that Director, PFA accorded the sanction and as per direction of SDM/LHA, he filed the complaint. He stated that he is not aware that delegation of power is not permitted under the law. He stated that he is not aware whether any previous warning of department's policy was given to the accused persons but on the day of sampling, there was no policy of the department to given the warning for violation of Rule 32. He stated that he does not remember whether policy was issued by the LG Delhi and by whom it had been withdrawn. He stated that a letter was issued by the Director, PFA that the decision is taken by the department not to issue warning in future for first violation of Rule 32. He stated that the copy of the letter is not placed on judicial record. He stated that he cannot say whether the Director, PFA is not competent to withdraw the department's policy. He stated that he does not remember in how many matters, earlier warning was issued by the department.
10.PW2 Sh. Satish Gaur, Field Assistant and PW3 Sh. S. M. Bhardwaj, the then CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 7/13 SDM/LHA, deposed on the same lines as deposed by PW1 in his examination in chief.
11.This so far is the evidence in the matter.
12.I have heard the arguments advanced at bar by Ld. Defence Counsel as also Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
Whether exempted from purview of Rule 32 (i) of the PFA Rules.
13.It is argued by Ld. Counsel for accused that the accused cannot be hold guilty for violation of Rule 32 (i) of PFA Rules as wholesale packages are exempted from the purview of Rule 32 (i) of PFA Rules on account of proviso attached to Rule 32 (i) of PFA Rules. The proviso provides that in case of wholesale packages the particulars under Rule 32 clause (b) (f) (g) (h) & (i) need not be specified. It is argued that in the present case, the sample sealed poly packet was containing individuals pouches of flavoured Pan Masala and thus qualifies the definition of wholesale package as defined in PFA Act.
14.Explanation VI to Rule 32 (i) defines Wholesale Packages as under :
(a) a number of retail package, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or]
(b) a commodity of food sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity of food to the consumer in smaller quantities.
CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 8/13 The proviso attached to Rule 32 (i) exempts Wholesale Packages from compliance of Rule 32 (i) of PFA Rules.
15.In the present case, Food Inspector lifted the sealed poly packets of flavoured Pan Masala containing 60 pouches of 2 gms each. As per Clause (a) of explanation VI of Rule 32 (i) of PFA Rules, Wholesale Package means, a package having number of retail packages and the Wholesale Package is not intended for sale directly to a single consumer and intended for sale distribution or delivered to the intermediary.
16.The label declaration of sample commodity bears reproduction in Form VI. The careful perusal of the said label declaration reveals that it nowhere manifests that the sealed poly packets having 60 pouches of flavoured Pan Masala, is not to be sold directly to the consumers and only the pouches are intended to be sold to the single consumer. In absence of any such declaration, it is not established that the sampled sealed poly packet was only to be sold to the intermediary and not to the direct consumer. In fact, accused gave an endorsement at point A to A of Form VI that "Flavoured Pan Masala Ready For Sale and Supply". It gives a plain meaning that the flavoured Pan Masala was ready for sale and the entire poly packets having 60 pouches can be directly sold to the single consumer. So, in my considered opinion, the poly packets lifted in the present case, are not covered within the definition of Wholesale Package as provided by the PFA Act. So, the accused cannot seek exemption for non compliance of Rule 32 (i) of the PFA Act. The PA Report Ex.PW1/F and Form VI Ex.PW1/B, show that the accused has not given any particulars of the month and year upto which the sample commodity is best for consumption as obliged to be disclosed as per mandate of Rule 32 (i) of CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 9/13 the PFA Rules. He has thus deprived the consumer to take informed decision and is found guilty for violation of Rule 32 (i) of the PFA Act.
Violation Of Section 13 (2) Of The PFA Act :
17.It is argued by Ld. Counsel for accused that the accused has been deprived of statutory rights conferred on him U/Sec. 13 (2) of PFA Act which entitles him to get the counterpart analysed from Central Food Laboratory on receiving Intimation/ Memorandum alongwith a copy of Public Analyst Report. The accused has not received the Public Analyst Report and Intimation/ Memorandum and thus could not get the counterpart of sample analysed by the Director CFL. This has caused serious prejudice to the accused and he is entitled to be acquitted on this count alone.
18.I do not find merit in the contention of accused and there is sufficient compliance of Section 13(2) of PFA Act, 1954 by the prosecution in the present case. The PW1 categorically stated in his evidence that the intimation letter along with copy of PA Report through SDM /LHA Sh. S.M. Bhardwaj, was sent to the accused which was not received back undelivered. He also proved on record the Original Postal Receipt Ex. PW1/L. As per Section 27 of General Clauses Act, there is presumption of due service in case the document has been duly sent by properly addressing, prepaying and posted by registered post. In view of the testimony of PW1 and Ex. PW1/L it stands proved that the intimation letter along with PA Report was delivered to the accused as it was sent by registered post to the correct address of the accused and not received back undelivered. The accused has not disputed his address on which it was sent. The defence has not produced any concrete evidence to rebut the said presumption and mere agitation CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 10/13 of Intimation Letter and PA Report being not received without producing any evidence, is not sufficient to displace the presumption.
19.In view of the findings that there is sufficient compliance of Section 13(2) of PFA Act, 1954 by the complainant, the question of prejudice to the accused does not arise. But it is important to note here that the prosecution in this case was launched in the year 2008 and next date of hearing before the Court was 28.01.2009. On 28.01.2009, the accused appeared before the Court and was enlarged on bail by my Ld. Predecessor. On 28.01.2009 or any time after that or till framing of charge on 25.06.2009, the accused did not move any application u/s 13(2) of PFA Act, 1954. Once he himself does not exercise the right u/s 13(2) of PFA Act, 1954, he cannot be allowed to complain later on regarding violation of right as provided u/s 13(2) of PFA Act, 1954.
In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".
In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 11/13 Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."
In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."
In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no sample was sent to Director, CFL, the petitioner can make no grievance.
In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.
In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director. "
CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 12/13
In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under : ".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right."
In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under : "The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........
20.In view of the law laid down in the above said judgments, the plea of prejudice taken by the accused is devoid of any merit.
Prosecution is bad in law.
21.It is argued by Ld. Counsel for accused that the prosecution is bad in law as Director, PFA Subdelegated the power to institute prosecution in the Court, on LHA/SDM through Food Inspector of jurisdiction. It is urged that the same is not CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 13/13 permissible under Section 20 (1) of PFA Act 1954. To support his submissions he has relied judgment of A. K. Roy and Anr. Vs. State of Punjab and Ors, Crl Appeal No. 400/1986 decided on 29.09.1986.
22.I do not agree with the submission of Ld. Counsel for accused. To appreciate the submissions of Counsel for accused it shall be worthwhile to reproduce Section 20(1) of PFA Act, 1954. It reads as under : "(Section 20) Cognizance and trial of offences (1)No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorize in this behalf, by general or special order, by the Central Government or the State Government".
23.In the present case, Director, Prevention of Food Adulteration, Govt. of NCT of Delhi accord sanction/consent to institute prosecution in exercise of power vested in him vide Section 20 of PFA Act, 1954 and the SDM/LHA was only directed to get the complaint instituted through concerned Food Inspector. So, it does not amount to delegation of power as canvassed by Ld. Counsel for accused. It is only the Director who has been specifically authorized by the Central Government, accorded sanction to institute prosecution and only the complaint is got instituted by SDM/LHA through FI which is a ministerial Act. It in no way amounts to delegation of power by the Director, Prevention of Food Adulteration, Govt. of NCT of Delhi in favour of SDM/LHA. In A. K. Roy's case (supra) the Food Health Authority delegated its power to authorize/giving consent for the institution of prosecution in favour of Food Inspector, Faridkot and for this reason, the said notification delegating the powers was held to be invalid. It is not so in CC No. 129/08 DA Vs. Inder Dev Tripathi & Ors. Page 14/13 the present case. So, the said case is clearly distinguishable on facts and not applicable to the present case.
Policy of giving written warning for violation of Rule 32
24.It is argued by Ld. Counsel for accused that at the time of lifting of sample, there was existing policy no. no. F6 (228)/85/ENF/PFA of Food Department giving written warning to offender for first time violation of Rule 32 of PFA Rules, 1955. The accused was the first time offender and was not given the benefit of the said policy without any plausible reason. However, as pointed out by Ld. SPP for complainant the said policy was withdrawn w.e.f 14.09.2007 and the sample in the present case was lifted on 08.04.2008. So, the prosecution is rightly launched and the accused cannot claim the benefit of receiving the written warning for violation of Rule 32 of PFA Rules, 1955.
25.In view of the aforesaid discussions, the accused Indra Dev Tripathi and M/s. Som Products are convicted for the offence punishable U/Sec 2 (ix) (k) of PFA Act, 1954 and Rule 32 (i) of PFA Rules, 1955 which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act.
Announced in the open Court (PRIYA MAHENDRA)
on 28.01.2016. ACMMII/ New Delhi
CC No. 129/08
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