Delhi District Court
Dinesh Kumar Jain vs Delhi Administration/ on 22 August, 2020
THE COURT OF SHRI ANIL ANTIL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Criminal Appeal Number : 8668/2016
CC No. : 50/2008
U/S: : 16 P.F.A Act-1954
Dinesh Kumar Jain,
S/o Sh. R.D. Jain,
r/o D-16/63-64,
Sector-3,
Rohini,
Delhi-110008 .....Appellant
versus
Delhi Administration/
Food Inspector,
Department of PFA,
Govt of NT of Delhi,
A-20, Lawrence Road,
Industrial Area,
Delhi-110035 .....Respondent
Appeal received by Court on: 28.11.2019
Arguments concluded : 10.08.2020
Date of judgment : 22.08.2020
APPEAL : Partly allowed;partly dismissed
Decision : Conviction upheld; sentence
modified
CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 1 of 24
JUDGMENT
1. Matter was listed for pronouncement of judgment through Video Conferencing on 14/08/2020 and announced on 22.08.2020.
The present appeal was preferred by the appellant on 18.07.2016 and was assigned to the then learned FSSA Court and after administrative directions vide order no. 12072-12106/ Judl. /NDD/PHC/ND dated 01.10.2019 it was assigned to this court for disposal of the same as per law.
2. By way of present appeal, the appellant Dinesh Kumar Jain herein has challenged the judgment dated 04.07.2016 and order on the point of sentence dated 14.07.2016 passed by the then learned ACMM-II, PHC, New Delhi vide which the appellant/accused was held guilty for commission of offences punishable under sections 16(1A) r/w Section 7 of PFA Act, 1954, the appellant was awarded a sentence to undergo Simple Imprisonment for 01 year with fine of Rs. 30,000/- for commission of aforesaid offences and in dafault of payment of fine to undergo Simple Imprisonment of 15 days.
3. The brief facts of the present case are that on 25.10.2007, the Food Officials consisting of Sh. Shashi Bhushan Sharma, Food Inspector, Sh. J.S. Bisht, Field Assistant, under the supervision of Local Health Authority/SDM Sh. B.S. Thakur and his staff members reached at M/s Bikaner Sweets & Snacks, 14-B, Dhakka Village, Delhi-9, the premises of accused/appellant Dinesh Kumar Jain, stated to be the vendor-cum-proprietor was found present there CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 2 of 24 running his business of food articles including 'Boondi Ke Ladoo' which were lying in an open tray, bearing no label or declaration, meant for sale for human consumption ;
- that as per the prescribed procedure under the PFA Act and Rules after giving notice to the vendor and paying price of the same, sample was then lifted ; that sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot including Notice as per Form-VI in the presence of appellant/accused, panchnama etc ; that thereafter one counterpart of sample was sent to Public Analyst (PA) in intact condition and other two counterparts were deposited with SDM/LHA ;
- that vide report dated 26.11.2007, the PA found the sample to be adulterated on the ground that total dye contents of synthetic colour used was 109.22 ppm which was in excess of the prescribed maximum limit of 100 ppm ; that upon receipt of report, SDM/LHA directed investigation which was carried out by FI and after completion of investigation sanction under Section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 23.04.2008 alleging violation of Section 2(ia)(j) and (m) of PFA Act read with Rules, 28,29 and 30 of PFA Rules, as punishable under Section 7/16(1A) of PFA. Act.
4. The appellant was summoned by the learned trial court vide order dated 23.04.2008 for 24.02.2009. After filing his appearance, the appellant moved an application under section 13(2) of the PFA Act thereby exercising his right to get the second counterpart of the sample analyzed from the Central Food CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 3 of 24 Laboratory (CFL), however, the application was not pursued by the accused and the counterpart produced in the court in the intact condition by the LHA was returned to the department.
5. Thereafter matter was listed for pre-charge evidence, wherein the complainant examined PW-1 Sh Gian Chand, FI and PW-2 Sh. S.B. Sharma, FI.
6. On the basis of testimony of these witnesses, on 26.05.2010 charge was framed against the accused for commission of offences punishable u/s 7/16(1A) PFA Act for violation of Section 2(ia)(j) and
(m) of PFA Act and Rules 28,29 and 30 of PFA Rules alleging therein that on 25.10.2007 at about 03.00 p.m, appellant being the Vendor cum Proprietor of "M/s Bikaner Sweets & Snacks", 14-B, Dhakka Village Delhi-09 sold approximately 1500 grams of 'Boondi Ke Ladoo' taken from an open tray lying there, having no label declaration, meant for human consumption on payment of Rs. 105/- to Sh. Shashi Bhushan Sharma, Food Inspector in presence of LHA and witnesses for analysis and accordingly it was analyzed by the Public Analyst vide his report no.PFA/Enf/2473/2007 dated 26.11.2007 vide which he opined that the sample is adulterated because total dye content of the synthetic colour used exceeded the prescribed maximum limit of 100 ppm to which he pleaded not guilty and claimed trial.
6.1 During trial as per existing procedure, the witnesses already examined in pre-charge stage can be recalled for further cross examination by the appellant/accused in post-charge stage but the accused/appellant did not opt to summon them for their cross CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 4 of 24 examination before the learned trial court and gave his statement on 12.01.2015 that those witnesses need not be recalled and accordingly they were not called for their further examination. 6.2 Additionally, the prosecution examined PW3 Sh. J.S. Bisht, Field Assistant and PW4 Sh. B.S. Thankur, Deputy Secretary Home, Daman ( at the time of incident was posted as LHA/SDM), in post- charge stage. PW2, PW3 and PW4 being the member of the raiding team deposed in their respective testimonies about the proceedings conducted by them on the spot on 25.10.2007 in presence of appellant and proved the documents prepared by them at the spot i.e. Sanction for prosecution Ex PW1/A, Complaint Ex PW1/B, intimation letter sent alongwith PA report Ex PW1/C to appellant, its postal receipts Ex PW1/D, Vendor receipt of Rs. 105/- towards the price of sample commodity issued by the appellant Ex PW2/A ; Copy of Notice/Form VI Ex PW2/B, Panchnama prepared and endorsed by appellant in Hindi language is Ex PW2/C, receipt of deposit of counter parts of sample in intact condition with Public Analyst is Ex PW2/D and receipt of other two counter parts of samples deposited with LHA Ex PW2/E, Public Analyst report of samples Ex PW2/F, copy of letter send to vendor Ex PW2/G and his two replies against the said letter Ex PW2/G-1 and Ex PW2/G-2, a copy of letter sent to Sales Tax Office, Ward 72 for disclosing the constitution of M/s Bikaner Sweets and Snacks Ex PW2/H and Raid report under Rule 9(e) prepared at the spot is Ex PW4/A. 6.3 These witnesses were cross examined by the learned defence counsel at length but nothing in favour of the CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 5 of 24 accused/appellant has come on record ; witnesses specifically deposed that as per the PFA Act and Rules prescribed procedure was adopted by them at the time of raid for lifting sample ; they all denied the suggestion, on a specific question put to them that the sampling method was not proper or that the tray/ bottles/ chimta/ envelope used in the proceedings were not clean and dry or that some colour was sticking with the hands of Food Inspector.
7. The statement of accused was recorded under section 313 Cr.PC in which accused pleaded his innocence and expressed his intention to lead defence evidence but no such evidence was led by him despite opportunities.
7.1 In his statement, appellant/accused admitted the visit of food officials on the alleged day of incident at his business premises, he claimed that he was not present at the spot and no payment was made to his servants present there at that time, he took defence that the sample was not taken properly and the documents were not prepared in his presence at the spot ; he also questioned the correctness of PA report on the ground that a representative sample was not taken by the FI.
8. The learned trial court in its impugned judgment dated 04.07.2016 observed that the samples had been collected according to the prescribed procedures from the vendor premises, on analyzing the sample it was found adulterated vide PA report, appellant had sold adulterated food in violation of Section 2(1a)(j) and ( m) of PFA Act read with Rules 28, 29 and 30 of PFA Rules ; has committed the offence punishable u/s 7/16(1A) PFA Act. The appellant was CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 6 of 24 accordingly convicted and sentenced by the learned trial court and aggrieved by the said judgment and order on quantum of sentence dated 14.07.2016, the present appeal has been preferred by the appellant.
9. The appellant has assailed the judgment and order on sentence passed by the learned trial court by urging the following grounds :
9.1) There is non compliance of Section 10(7) of PFA Act and Rule i.e. independent witness was not joined and this point was not considered while passing the judgment .
9.2) There is non compliance of Section 13(2) of PFA Act and Rules, this point was not considered by the learned trial court while passing the judgment hence benefit of same cannot be awarded in favour of prosecution.
9.3 There is also non compliance of Rule 14 of PFA Rules by submitting that the sample proceedings were not conducted properly ; that there are various contradictions and missing links in the testimony of examined witnesses ; that the tray/bottles/Chimta/ /envelope used in the proceedings were not made clean and dry at the spot ; and it is possible that some colour was already there on/in the said articles as put by food official which was transferred to the commodity while sampling.
- In support of his submissions, learned counsel for the appellant has relied upon on the following judgments :-
1. Hansraj Vs. State Punjab & Haryana High Court 1980(II) FAC 396;
CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 7 of 24
2. State of Himachal Pradesh Vs. Kamlesh Chand, H.P. High Court 2002(II) FAC 315 ;
3. Ramesh Dayal Vs. State 1996(2) FAC 197 ;
4.State Vs. Subhash Chand 2012 (2) JCC 1004 ;
5.State Vs. Munim 2006 (2) 93 ;
6. Kirtan Bhoi Vs. State of Orissa 1997 (2) FAC 300
7. Narotan Mal Vs. State of Rajasthan 1995(1) FAC 126
8. Shailender Kumar Vs. State of Delhi High Court 1999(1) P.15
9. Shew Chandar Mathur & Anr Vs. State Gauhati High Court 1991(1) FAC 9 ;
10. Koyakutty Vs. Food Inspector 2002(II) FAC 238 ; 11 State of Gujarat Vs. Harumal Ratumal & Ors. 2008 FAJ 292.
II) Alternatively, on the quantum of sentence, relying upon the new legislation, it was pleaded that the case of the appellant be considered sympathetically in the light of the preposition of law laid down by the Hon'ble Courts pursuant to coming of new legislatiion that is Food Safety & Standards Act
10. The State/respondent has chosen not to file any reply to the appeal filed by the appellant and straightway argued on the appeal. 10.1 Learned SPP for complainant department argued that the present appeal has been filed by the appellant on the same grounds which were raised, addressed and after great discussion disposed of by the learned trial court with proper application of judicial mind according to law. There is no infirmity, illegality, ambiguity or error while holding the accused/appellant guilty for the commission of CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 8 of 24 aforesaid offences and consequently convicting him ; and it was also discussed in the order under challenge that proper rules and procedure were adopted by the PFA department at the time of conducting raid and opportunities were given to vendor before booking him to face trial for the alleged offences. 10.2 He further urged that by adopting the delaying tackticks present appeal has been preferred by the appellant only with the intention to linger on the trial or conviction period which is clearly wastage of precious time of the court. From the record it is revealed that from the day one he has no respect for the procedure as well as to get justice ; that at one point of time he challenged the PA report, by moving application u/s 13(2) Cr. P.C, then he disappeared by not contesting the same, his warrants were issued ; and during mid-trial state that he was not present at the spot but his signatures are available on the report Ex PW2/B where he himself made endorsement in Hindi language by writing 'ye bundi ke ladoo, besan, vanaspati, cheeni, magaj or rang se banay gay hai. One copy prapat ki', he did not recalled the witnesses examined at pre charge stage for post charge evidence, did not summon the PA to challenge his report tendered u/s 293 CrPC, or even in his statement u/s 313 Cr.P.C, he sought liberty to lead DE but no witness was produced by him to prove his defence, as there was nothing wrong and he was booked by the department for his wrong acts and he was very well aware of this fact.
10.3 Learned SPP further argued that a person who is a selfish & greedy nature can never pay respect to others, and to achieve his CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 9 of 24 motives he plays with life of others, which is a precious gift of God for every one. In the present case also appellant has shown his irresponsibility towards society, by mixing the synthetic colour in the eatable/consumable foods items with the intention to earn more profits ; he played with the lives of human beings and for his misconduct and greedy nature, he has been properly and rightly convicted by the learned trial court as per the existing law of land and no leniency should be shown to him.
10.4 Learned SPP argued further that such type of people should not be set free and be convicted and sentenced with remarkable punishments for delivering a message to the Society as a lesson to put a check, control and restrict them for doing wrong activities so that before doing any wrong act they should think over the consequents and result of the same, and to boost up the morale of public servants so that they can work with sincerity and loyalty for the welfare of the public/society for which they have been appointed by the authorities.
11. I have carefully gone through the available record as well as trial court record, have heard the submissions of learned counsel for both the parties at length and have also gone through the judgment relied upon by the parties.
12. Coming to the first contention qua non joining of public witnesses : -
12.1 PW2 was a member of a raiding party and a material witness, he testified that before taking the sample, he made his sincere efforts by requesting the passersby to become a witness to CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 10 of 24 the entire proceedings but none agreed or came forward to become witness to the proceedings. Testimony of PW-2 is corroborated by the testimony of PW 3 and 4 in that regard.
12.2 It is also pertinent to note that no suggestion qua non joining of public witnesses and consequential prejudice to the accused / appellant was taken by the defence counsel while cross examining PW2, PW3, and PW4 . In fact, no such defence was raised before the learned trial court during examination/cross examination of witnesses, except the bald and vague suggestion in that regard during cross examination of PW-4, which the learned counsel for the appellant is trying to canvass here. 12.3 Further as it is evident from the testimony of PW2, PW3 and PW-4 that the efforts were made by the PW2 to join the public persons as witnesses but none came forward, and thus it can not be said that proceedings by the department stands vitiated for non compliance of section 10(7) of PFA Act.
12.4 And besides that, there is no rule of law that requires evidence of official witnesses to be viewed with suspicion and discard their testimony in background of the fact that they are otherwise fruitful and credit worthy and have withstood the rigors of cross examination at the hand of the defence counsel.
- A useful reference in that regard be also made to the decision of Hon'ble Supreme Court of India in State of UP Vs. Hanif AIR 1992 SC 1121 where the Hon'ble Supreme Court has held that :-
"It is not the law that the evidence of a Food Inspector must necessarily need corroboration CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 11 of 24 from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor should it be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per the law. He discharges the public duty. Is evidence is to be tested on its own merits and if found acceptable, the court would be entitled to accept and rely on to prove prosecution case".
12.5 Thus, appreciating the facts of the case and evidence adduced thereto, in light of above quoted judgment, I find there was no infirmity or ambiguity in the said findings, the arguments regarding this fact does not have any force and thus rejected accordingly. The observations made by the learned trial court are upheld. The benefit of the same goes in favour of State and against the accused/appellant.
13 Nextly, it was argued that compliance of Section 14 PFA Rules was not proved on record by the prosecution. It was stated that witnesses are deposing differently with respect to the cleanliness of articles used for taking samples. It was further stated that it was the duty of the prosecution to prove these facts on record beyond reasonable doubt, that all the articles/implements were properly cleaned before taking the sample in question.
CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 12 of 24 13.1 I have gone through the testimony of witnesses and arguments adduced by learned counsel for parties on this point. PW- 2, PW-3 and PW-4 were members of the raiding party, they specifically deposed about the procedure adopted by them for obtaining the sample of Boondi Ke Ladoo from the shop of the appellant at about 03.00 p.m and stated that the tray /bottles /chimta/tongue/envelope etc used in the sample proceedings were clean and dry when used ; that FI purchased 1500 grams of Boondi Ke Ladoo, lying in an open tray in the show case counter of the shop of vendor, that so purchased quantity of the sample commodity was put in another clean and dry tray and the laddoos were broken into smallest possible pieces which the help of a knife, thereafter, it was equally put into three clean and dry sample glass bottles ; 40 drops of formalin were added in each sample bottle ; after that all the thee sample bottles were separately packed, fastened and sealed as per PFA Act and rules after affixing the LHA Slips, bearing the code number and signature of LHA thereon ; vendor signature were obtained on each counterpart in such a manner so as to appear partly on the LHA slip and partly on the wrapper of the counterpart. 13.2 There is no material on record to rebut that the implements were unclean. On the other hand, the accused/appellant had been given opportunities to put forth his defence through his witnesses, but he failed to do so. It was stated by him that his servants were present at the spot and the proceedings were conducted in their presence but no such servant/employee was summoned or examined by the appellant to establish his defence.
CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 13 of 24 13.3 Pertinently, the accused/appellant is continuously shifting his defence before the learned trial court, whereby while cross examination of PW1, it was suggested that excess of 9 ppm in the food was found due to experimental error ; qua PW2 it was suggested that articles ( Boondi Ke Ladoo ) kept in sealed bottle for one month, they because dry, weight was reduced, and hence colour concentration increased thereby ; whereas in cross examination of PW3 and PW4 another stand was taken that the tray/ bottles/ chimta/ envelope used in the proceedings were not clean and dry or that some colour was sticking with the hands of Food Inspector. And, besides giving bald suggestions, no positive or cogent evidence was lead by the accused/appellant to support his case. Needless to say mere bald suggestion can not partake the character of evidence so as to falsify the case of the prosecution ; as put forth, it does not assist the accused in any manner whatsoever.
13.4 It is also relevant to note that in his statement u/s 313 Cr.P.C he claims that he was not even present at the shop at the time of the proceedings/ raid, so how can he now take the pleas that the articles used by the prosecution were not clean and dry, if he himself was not the witness to the proceedings. 13.5 There is no discrepancy in the testimony of these witnesses regarding procedure and Rules. I do not find any force in the arguments of learned counsel for the appellant that there is non compliance of Rule 14 PFA Rules 1955. The observations made by the learned trial court are upheld. The benefit of the same goes in favour of State and against the accused/appellant.
CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 14 of 24 14 It was further argued by learned counsel for appellant that there is non compliance of Section 13(2) PFA Act and Rules. On bare reading of the judgment passed by the learned trial court it is revealed that the same question of law was raised before the learned trial court, discussed in detail in para no. 17 to 20 of the said judgment. The same is reproduced here only for reference :
17. It is important to note that the accused has also not pursued his right under section 13(2) PFA Act for getting the sample analyzed through CFL. The arguments that PA report with intimation letter were never served upon him, are apparently false and baseless.
18. As per the scheme of the Act, under Section 13(2) of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court within 10 days of receipt of report , for getting the sample ( second counterpart) analyzed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right can not be frustrated by the prosecution. As per section 13(2A) when such application is made to the court, the court shall require the LHA to forward the parts of sample kept by him, who shall forward the same to the court within a period of five days from the receipt of such requisition. When the counterparts are so produced in the court, section 13(2B) CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 15 of 24 requires the court to first ascertain that the mark and seal of fastening are intact and the signature are not tampered with. Thereafter, the court is required to dispatch one counterpart under its own seal to the Director, CFL for analysis.
19. In the case in hand, record shows that no questions have been raised by the defence as to sending or receipt of PA report or intimation letter at the trial. No suggestion was put to any witness to the effect that no such letter was sent or received. PWs have deposed about sending the copy of the PA report with intimation letter through registered post. Such evidence has not been rebutted by the defence. Not even a single suggestion was given to the witnesses that the postal receipt was a forged or fabricated document or that no such letter was sent or that it was sent at an incorrect address. Thus, accused cannot take benefit on this count. And no such stand was taken by the accused even during his statement under section 313 Cr.P.C when the factum of sending of report was put to him, he simply responded by saying that it was a matter of record. (Emphasis supplied)
20. Interestingly, learned defence counsel has contended that the right of the accused under section 13(2) PFA Act was never granted to him because the PA report and intimation letter were never served upon him but the record shows otherwise. It could be seen that the accused CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 16 of 24 had in fact exercised his right under section 13(2) PFA Act and had also moved an application for getting the sample analysed through CFL. In that application filed on 07.05.2008, the accused had categorically stated that he was informed by the LHA/SDM vide his letter dated 24.04.2008 that prosecution had been launched against him on 23.04.2008. Stating that he was not satisfied with the report of PA, he wanted the second counterpart to be sent to CFL for analysis. With such unambiguous admission, the accused cannot now take a stand at the time of final arguments that he was not served with intimation letter of copy of PA report or that he could not exercise his right under section 13(2) of PFA Act. This application was listed on 08.05.2008 when the court ordered the sample to be called for 17.05.2008. The sample was produced by the LHA office but on that day, the accused absented himself. The court issued warrants against the accused and the sample so produced was ordered to be returned. Subsequently, NBWs were also issued against the accused which were cancelled on 08.04.2009. However the accused never pressed his application and never deposited the fees required under the Rules to be deposited by him before the sample could be sent for testing by CFL. Thus, it was the accused who had failed to pursue his application and thus, he cannot now say that he was prevented by the prosecution from CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 17 of 24 doing so. The accused can not opt to simply deny the things and claim that PA report was not received by him.
Thus, the accused deliberately and voluntarily forgave his right under section 13(2) of the Act.
(Emphasis supplied) 14.1 It is thus evident from the trial court record that despite having knowledge of procedure and rules the appellant/ convict/accused has not availed his rights under section 13(2) either deliberately, or may be, intentionally for the reasons best known to him. After moving an application the accused disappeared to contest or know the fate of the application moved by him. And more importantly, the accused/appellant never thereafter pressed for his application, nor deposited the requisite fees under the PFA Rules so that the sample could have been sent for testing to CFL. The appellant/accused can not blow hot and cold. He seems to have voluntarily surrendered his right qua applicability of Section 13(2) of the Act. He can not now take the advantage of his own wrong, that there there is non compliance of statutory provisions/ rules, and harp upon the contention that the samples were not sent for Director, CFL for analysis.
14.2 I find there was no infirmity or ambiguity in the findings of learned trial court qua said objection, the arguments regarding this fact does not have any force and thus rejected and accordingly.
15. In so far as the judgments relied upon by the appellant are concerned, there is no dispute to the law expounded therein, but it must be stated that each case is governed by its own peculiar facts CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 18 of 24 and circumstances; and governing principles remains the same. All these judgments were cited by the accused/appellant before the learned trial court and the learned trial court has already dealt all the judgments through a valid reasoning and I see no reason to again burdened the judgment by discussing the same herein. 15.2 So in light of my above discussion, I find no valid and legal reasons to interfere with the well reasoned judgment of the learned trial court. The findings of the learned trial court with respect to the conviction of the appellant for the offence punishable under 16(1A) of the PFA Act read with Section 7 of the PFA Act, 1954 are upheld. II. Coming to the alternate plea of giving benefit of new legislation to the accused.
16. It is argued by learned counsel for the appellant that on the date of pronouncement of judgment/order on sentence the PFA Act, 1954 was repealed and new act had come into operation. It is stated that the court should give benefit of the new legislation to the accused vide which the punishment provided under the old act has been diluted to a considerable extent, and that the offence for which the accused/appellant has been convicted now falls under the category of Substandard Food punishable under section 51 of the new Act i.e Food and Safety Standards Act, 2006 (hereinafter called FSSA) punishable with fine only upto 5 lakhs.
16.1. It was argued by learned counsel for the appellant that he is a man of old age, small shopkeeper, having responsibility of his family, has suffered long pendency of trial, has deep roots in the society and being a respectable person of society, a lenient view be CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 19 of 24 taken against him in light of the provisions of law under the new act. In support of his submissions, learned counsel for appellant had relied upon the judgment of Nemi Chand Vs. State of Rajasthan ( Crl. Appeals No. 214 and 215 of 2016, vide order dated 10.03.2016, as corrected vide order dated 17.03.2016, as reported in 2016 (1) FAC 203 ) of Hon'ble Supreme Court and earlier judgment T Barai Vs. Henry 1983 ( ) SCC 177. 16.2 Learned SPP, per contra, strongly opposed the submissions advanced by learned counsel by addressing that the sentencing cannot be done in new Act since the definition of many offences are changed in the new Act including this particular offence of which accused is charged. Definition of major offences like "adulteration" and "misbranding" have been changed. Now FSSA have definition "substandard food", "food containing extraneous matter" "unsafe food" and misbranded food". Due to this reason, the ingredients have changed and thus there is no way in which the old offences could be related to new offences.
16.3 As far as the objection of learned SPP is concerned, in the present case, the offence was that the article/food i.e. Boondi Ke Ladoo was found having adulterated because total dye content of the synthetic colour used exceeds the prescribed maximum limit of 100 ppm. This was violation of Rule 29 of PFA Rules and thus termed as adulteration in view of Section 2(1a)(j) & (m) of the PFA Act and thus consequently punishable under section 16(1) of PFA Act read with Section 7 of PFA Act.
16.4 That now in the FSSA such adulteration is termed as "unsafe CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 20 of 24 food" in terms of Section 3(zz)(viii) of FSSA Act and violation thereof is punishable u/s 59(1) of FSSA. So if we go through both these provisions of law a particular offence with a particular fact is mentioned with some other name but with same ingredients in the New FSSA Act. I do not concur.
16.5 Sub-clause (viii) of 3(zz) FSSA Act is applicable where the colouring material or the preservative other than that specified in respect there of is found in the food article and not where the colouring material exceeds the prescribed limit. 16.6 Herein is a case different. Synthetic colour in terms of Rule 28 read with Rule 29 under PFA 1954 is permitted upto 100 ppm. It is only the violation thereof, 109 ppm as is here is an offence, which in my considered opinion falls under the definition of 'substandard' as defined in section 3(zx) of FSSA. AND the violation thereof is punishable under section 51 of the Act, whereby a penalty of fine only extended upto Rs. 5 lacs, is provided.
16.7 Another aspect may also be noted is that in terms of provisions of Rule 30 in certain category of cases falling under clause (c) of Rule 29 i.e. strawberrys, pierrce, cherry, jams, glazed fruits etc., permissible food colours limit is extended upto 200 ppm. Thus, drawing the analogy, it can not also be said the presence of synthetic colour of 109 ppm in the case at hand per se is unsafe and injurious to health.
16.8 Further, the charge in this case was framed for the said offences and there is no charge in which it is stated that the said colour was injuries to health. Had it been the case, the charge should CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 21 of 24 have been for the offence punishable u/s 16(1-A)(ii) of PFA Act. 16.9 Therefore, it is held that it is the ingredients which constitute an offence determines that whether it is the same offence but with new name or an altogether different offence, Here the offence of adding colour in the food article which was punishable u/s 16(1A) PFA Act is similar to the offence u/s 51 of FSSA Act, which is now punishable only with the fine.
16.10 As far as the application of Nemi Chand Judgment (supra) is concerned, the same is based on the old judgment i.e. T Barai ( Supra) of Hon'ble Supreme Court. The relevant portion of the T Barai Judgment is as follows :
- (Para 25) It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication in Michell Vs. Brown ( 1958) 120 ER 909, 912 : 32 LTOS 146:7 WR 80 Lord Campbell put the matter thus :
- "It is well settled rule of construction that, if a later statute again describes an ofence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute see also Smith Vs. Benabo ( 1937) 1 ALL ER 523 : ( 1997) 1 KB 518: 156 LT 194"
- In Regina Vs. Youle ( 1861) 158 ER 311,315-16 : LT 299 : 9 WR 637 Martin B. said in the oft-quoted passage :
- If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 22 of 24 offence, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act."
- The rule is however subject to the limitation contained in Article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different.
- Morevoer, this particular aspect is stated as a illustration in the same judgment in Para 23 which is as follows :
- To illustrate, if Parliament were to reenact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life instead of the present sentence of death or imprisonment for life, then it can not be that the courts would still award a sentence of death even in pending cases.
- In view of the above mentioned discussion, it can be safely said that while considering on the point of sentence, the quantum of sentence in new Act i.e. FSSA is to be considered.
17. Thus analysing the facts of the case, in light of the above cited judgments and also the judgment of Hon'ble High Court of Delhi titled as GNCT Vs. Jagdish Tyagi dated 11.100.2017 in my view the convict, appellant is entitled to the benefit of new legislation. Accordingly, the sentence of the convict Dinesh Kumar Jain as imposed by the learned trial court vide order dated 14.07.2016 stands modified to the extent that the order sentencing the appellant CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 23 of 24 to undergo simple imprisonment of one year stands waived of ; and, to meet the ends of justice, the sentence of fine is enhanced from Rs. 30,000/- to Rs. 3,00,000/- In default of payment of fine the appellant/convict shall undergo simple imprisonment for two months. 18 Appellant/Convict is directed to deposit the fine amount within 30 days from the date of pronouncement of this judgment and, if any, amount of fine was deposited by the appellant before the learned trial court same shall be adjusted accordingly.
19. The present appeal is disposed of accordingly in terms thereof.
20. TCR be sent back with alongwith copy of the judgment to the learned trial court.
21. e-Copy of order be sent to all the parties through electronic mode .
22. Appeal file be consigned to record room after completion of all other necessary formalities.
Announced on virtual platform through Video Conferencing on 22.08.2020 ( Anil Antil ) Addl. Sessions Judge 04, Patiala House Courts,New Delhi District, New Delhi 22.08.2020 CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 24 of 24 IN THE COURT OF SHRI ANIL ANTIL ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI Criminal Appeal Number : 8668/2016 CC No. : 50/2008 U/S: : 16 P.F.A Act-1954 Dinesh Kumar Jain versus Delhi Administration/ Food Inspector, Department of PFA, Govt of NT of Delhi Appeal received by Court on: 28.11.2019 Arguments concluded : 10.08.2020 Date of judgment : 22.08.2020 APPEAL : Partly allowed ; partly dismissed Decision : Conviction upheld; sentence modified.
22.08.2020 Present : Appellant/convict in person.
Sh. Kundan Kohli, ld. SPP for complainant department.
Vide separate judgment announced through Video Conferencing, Appellant/Convict is entitled to the benefit of new legislation. Accordingly, the sentence of the convict Dinesh Kumar Jain as imposed by the learned trial court vide order dated CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 25 of 24 14.07.2016 stands modified to the extent that the order sentencing the appellant to undergo simple imprisonment of one year stands waived and the sentence of fine is enhanced from Rs. 30,000/- to Rs. 3,00,000/- In default of payment of fine convict/appellant shall undergo simple imprisonment for two months. Appellant is also directed to deposit the fine amount within 30 days from the date of pronouncement of this judgment and, if any, amount of fine was deposited by the appellant before the learned trial court same shall be adjusted accordingly.
The present appeal is disposed of accordingly in terms thereof .
TCR be sent back with alongwith copy of the judgment to the learned trial court.
e-Copy of order be sent to all the parties through electronic mode.
Appeal file be consigned to record room after completion of all other necessary formalities.
Announced on virtual platform through Video Conferencing on 22.08.2020 ( Anil Antil ) Addl. Sessions Judge 04, Patiala House Courts,New Delhi District, New Delhi 22.08.2020 CA no. 8668/2016 Dinesh Kumar Jain Vs. Delhi Admn (PFA) Pages 26 of 24