Delhi District Court
Asj vs State on 21 October, 2016
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CA No. 8465/16
1 Bhushan Lal Malhotra
S/o Late Sh. Hakim Lekh Raj Malhotra
M/s Lekhsons Pharmacy
8, Fatehpuri, Delhi-110006.
R/o 41, Sainik Vihar,
Pitampura, Delhi.
2 Sh. Rohit Malhotra
S/o Sh. Bhushan Lal
M/s Lekhsons Pharmacy
8, Fatehpuri, Delhi-110006.
R/o 41, Sainik Vihar,
Pitampura, Delhi.
3 Sh. Sumit Malhotra
S/o Sh. Bhushan Lal
M/s Lekhsons Pharmacy
8, Fatehpuri, Delhi-110006.
R/o 41, Sainik Vihar,
Pitampura, Delhi.
4 M/s Lekhsons Pharmacy
8, Fatehpuri, Delhi-110006.
Having Manufacturing unit at:-
G-50, Lawrence Road,
Industrial Area,
Delhi-110035. ....Appellants
Vs.
State
Through Commissioner of Food Safety,
(Govt of NCT of Delhi)
A-20, Lawrence Road,
Industrial Area, Delhi-110035. .... Respondent
Date of receiving of Appeal : 23.08.2014
Date of arguments : 21.10.2016
Date of judgment : 21.10.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.P.C. filed on behalf of appellants against the judgment dated 05.08.2014 and order on sentence dated 14.08.2014 passed by Sh. Gaurav Rao, then Ld. ACMM-II, Patiala House Court, New Delhi.
2 The brief facts of the case as per record and from trial court record are that accused is running an establishment namely M/s Lekhsons Pharmacy, 8 Fatehpuri, Delhi. On 27.12.2008 at about 7.45 p.m. Food Inspector Sh. Sanjeev Kumar Gupta visited the said place and purchased 3 sealed plastic bottles each of 1 Kg bearing identical label directions of "Honey" (ready for sale) from accused/appellants. FI was accompanied with SDM/LHA Sh. R. K. Sharma. The said Honey was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because "The sample is misbranded because Best before is declared in a misleading manner however honey conforms to the standard (Best Before declared as Best Before 18 months from the date of manufacture but date of manufacture not declared on label)."
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 21.10.2009 with the court. It was found that M/s Lekhsons Pharmacy is a partnership concern with accused no. 1, 2 and 3 as partners. Accused persons were summoned. They have not exercised his right u/sec.13(2) PFA Act and get the sample analyzed by CFL.
4 Charge was framed against accused persons u/sec.2(ix) (g) (k) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1a) of PFA Act.
5 After trial, vide judgment dated 05.08.2014 appellant no. 1 was convicted for offence u/sec.16(1a) of PFA Act and vide order on sentence dated 14.08.2014, accused Bhushan Lal Malhotra, Rohit Malhotra and Sumit Malhotra were directed to undergo simple imprisonment each for a period of 6 months and fine of Rs.10,000/- each and in default of payment of fine SI of 30 days.
The appellant no. 4/company i.e. M/s Lekhsons was directed to pay fine of Rs.10,000/-.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) That inadvertently instead of date of manufacture, date of packaging was printed.
(ii) There is no material against appellants no. 2 and 3 as they are not incharge of day to day work of the appellant no. 4.
(iii) After coming into Food Safety & Standards Act, the punishment is to be granted under the said Act.
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued that inadvertently instead of date of manufacture, date of packaging was printed. This argued was done before the trial court. Trial court with the argument from para 15 to 20. I do not find any different opinion except that given by the trial court. So, the finding of trial court in this regard is upheld and the arguments of Ld. counsel for appellants in this regard are rejected.
10 It is further argued that appellants no. 2 and 3 are not liable for prosecution as they are not responsible for the day to day work of appellant no. 4. This leg of argument was done by appellants in trial court. The trial court dealt these arguments from para 21 to 24 of the judgment. I do not find myself in any difference to the opinion given by the trial court. So, the finding of trial court in this regard is upheld and the arguments of Ld. counsel for appellants in this regard are rejected.
So, in these circumstances, I do not find any ground for change/modification of Trial Court's judgment, on merits. So, the finding of the trial court with respect to the conviction of accused u/sec.2(ix) (g) (k) of PFA Act 1954 read with Rule 37 and 32 (f) &
(i) and Sec.16 of PFA Act, is upheld.
11 It is submitted by Ld. counsel for appellant that on the date of judgment/order on sentence, the PFA Act, 1954 was repealed. It is further stated that the court should have passed the order on sentence as per the quantum/punishment mentioned in Food and Safety Standards Act, 2006 (hereinafter called FSSA). For this purpose, Ld. counsel for appellant had relied on Judgment i.e. 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. Supreme Court and earlier judgment T Barai Vs. Henry, 1983 (1) SCC 177.
12 On the other hand, it is argued by Ld. SPP for State 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.
13 As far as the objection of Ld. SPP for State is concerned, in the present case, the offence was that the article/food i.e. Honey was found misbranded as being violation of Rule 32 (g) (i) of PFA Rules which was termed on account of being misbranded in Sec.2(ix) (g) (k) of PFA Act and thus consequently punishable u/sec.16(1a) of PFA Act. The charge was framed with these facts.
14 Now in the FSSA, such misbranding is termed as "misbranded food" in terms of Sec.3(zf) (B) (ii) of FSSA Act punishable u/sec.52 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.
15 Hence, 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 Honey/food article being found misbranded as being violation of Rule 32 (g) (i) of PFA Rules which was termed on account of being misbranded in Sec.2(ix) (g) (k) of PFA Act and was punishable u/sec.16(1a) PFA Act is similar to the offence u/sec.52 of FSSA Act.
16 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. 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 v. 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 offence 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 v. Benabo [(1937) 1 All ER 523: (1937) 1 KB 518: 156 LT 194] .
In Regina v. Youle [(1861) 158 ER 311, 315-16: 4 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 offences, 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.
Moreover 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 cannot be that the courts would still award a sentence of death even in pending cases.
So, in these circumstances, 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 Now according to my aforesaid reasoning the offence that Honey/food article was found misbranded as being violation of Rule 32 (g) (i) of PFA Rules which was termed on account of being misbranded in Sec.2(ix) (k) of PFA Act earlier punishable u/sec.16(1a) of PFA Act is to be considered as an offence u/sec.52 of FSSA Act for the purposes of awarding punishment. The maximum punishment u/sec.52 FSSA Act is fine/penalty which may extend to Rs.3 lacs.
18 It is submitted by Ld. counsel for appellants that appellants are small shopkeeper/a partnership firm. They have suffered the long pendency of trial and a respectable persons of society and have family. So, lenient view be taken.
19 Opposed by Ld. SPP for State on the ground that the long duration of trial cannot be a ground for leniency.
20 I have gone through the rival contentions on this aspect.
21 After going through the entire arguments in this regard, it is directed that each of accused/appellants i.e. Bhushan Lal Malhotra, Rohit Malhotra, Sumit Malhotra and M/s Lekhsons Pharmacy are directed to pay fine/penalty of Rs.1,00,000/- (Rupees one lac only) each with the Trial Court. In default of payment of fine, they are directed to undergo SI of 15 days (except accused M/s Lekhsons Pharmacy).
22 Fine be deposited within 7 working days.
23 Fine already deposited with the trial court be adjusted.
24 Bail Bond u/sec.437A Cr.P.C. already furnished and accepted.
25 TCR be sent back with copy of the order.
26 Copy of order be given dasti.
27 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 21.10.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi CA No. 8465/16 Sh. Bhushan Lal Malhotra & Ors. Vs. State 21.10.2016 Present: Sh. R. K. Sharma counsel for appellants with appellants no.
1 to 3.
Sh. A. K. Mishra, Ld. SPP for State.
Matter clarified.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 21.10.2016 At 4.00 p.m. Present: Sh. R. K. Sharma counsel for appellants with appellants no.
1 to 3.
Sh. A. K. Mishra, Ld. SPP for State.
Vide separate judgment the appeal filed by the appellants is disposed off. It is directed that each of accused/appellants i.e. Bhushan Lal Malhotra, Rohit Malhotra, Sumit Malhotra and M/s Lekhsons Pharmacy shall pay fine/penalty of Rs.1,00,000/- (Rupees one lac only) each with the Trial Court. In default of payment of fine, they are directed to undergo SI of 15 days (except accused M/s Lekhsons Pharmacy).
Fine be deposited within 7 working days.
Fine already deposited with the trial court be adjusted.
Bail Bond u/sec.437A Cr.P.C. already furnished and accepted.
TCR be sent back with copy of the order.
Copy of order be given dasti.
File of appeal be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 21.10.2016