Delhi District Court
Da vs Gurvinder Kumar Saluja & Others on 22 January, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 22/96
DA Versus Gurvinder Kumar Saluja & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 22/96 b. The date of the commission of the offence : 09.05.95 c. The name of the Complainant, if any : LHA Gopal Singh d. The name of the accused and his parentage : (1) Gurvinder Kumar Saluja S/o Late Sh. Gain Chand Saluja, M/s Saluja Dairy, 61, Khan Market, New Delhi-3 (2) Ravinder Kumar Saluja S/o Late Sh.
Gain Chand Saluja, M/s Saluja Dairy, 61, Khan Market, New Delhi-3, (3) M/s Saluja Dairy, 61, Khan Market, New Delhi-3, (4) Suresh Parsad Roy S/o Sh. Ram Bilas Roy, M/s Ashish Cheese Products, Khasra No. 363/2, Village Sultan Pur, the. Mehrauli, Mehrauli-Gurgaon Road, New Delhi-30, (5) M/s Ashish Cheese 2 Products, Khasra No. 363/2, Village Sultan Pur, the. Mehrauli, Mehrauli-Gurgaon Road, New Delhi-30 e. The offence complained of or proved : u/s 2 (ia) (m) and also in violation of Section 2 (ix) (k) punishable U/s 16(1) read with Section 7 of the PFA Act.
f. The plea of the accused :Pleaded not guilty g. The final order :Acquitted h. Arguments heard on :12.01.2010 i. judgment announced on :22.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Local Health Authority Sh. Gopal Singh against the above said accused persons, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 09.05.95 at about 3:00 p.m., Food Inspector, Ms. Usha Kiran purchased a sample of 'Mozrella Cheese', a food article for analysis from Gurvinder Kumar Saluja, S/o Late Sh. Gain Chand Saluja, at M/s Saluja Dairy, Shop No 61, Khan Market, New Delhi-3, where the said food article was found stored for sale and Gurvinder Kumar Saluja was found conducting the business of the firm at the time of sampling. The sample consisted of 600 gms of Mozrella Cheese taken from three sealed polythene packets bearing identical label declaration as "Mozrella Cheese" only. The contents of the polypacks were taken out after 3 opening and mixed properly, after cutting into small pieces with the help of clean and dry stainless steel knife in a clean and dry steel tray. The Food Inspector divided the sample then and there into three equal parts by putting them in three clean and dry bottles and 16 drops of formalin were added in each bottle. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Gurvinder Kumar Saluja and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents were prepared by Ms. Usha Kiran, Food Inspector and were signed by Gurvinder Kumar Saluja and by the under signed, the other witness. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervisions of LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 30.05.95 and found that the sample does not conform to standards of Cheese (Hard) because Moisture exceeds the prescribed maximum limit of 43% and Milk Fat is less than the prescribed minimum limit of 42%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. Gopal Singh, Local Health Authority to file the present complaint.
44. The accused are allegedly to have violated the provisions of Section 2 (ia)(a) (m) and also in violation of Section 2 (ix) (k) which is punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 02.04.96 accused No.1 Gurvinder Kumar Saluja moved the application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Mysore vide Certificate No.97/PFA/96 dated 09.05.96 and found that the sample does not conform to the standards of cheese (hard) as laid down under the provisions of PFA Act, 1954 and Rules as Moisture content is more than the maximum specified limit of 43.0%. and Milk Fat content falls below the minimum requirement of 42.0% on dry basis.
6. Notice under Section 251 Cr.P.C for contravention of provisions of Section 2 (ia) (m) and also in violation of Section 2 (ix) (k) which is punishable U/s 16(1) read with Section 7 of the PFA Act and Rules was framed against the accused persons separately on 19.02.97 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 Ms. Usha Kiran,FI; PW-2 Sh. Gopal Singh.
8. Statement of accused persons were recorded under Section 313 Cr.P.C on 31.07.2009 wherein they have controverted and rebutted the entire evidence against themselves while submitting that they are innocent and preferred to lead evidence in their defence and accused 5 No.2 Ravinder Kumar Saluja examined himself as DW-1.
9. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
10. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
11. I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, written submissions, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel for accused No.1 to 3 argued that the accused No.1 to 3 are given benefit of warranty of Bill Ex.D-1. Ld. Defence counsel, on the other hand, has vehemently argued that at the time of sampling, there was no standard of Mozzarella Cheese and same has been provided in the year 2005. Ld. Defence counsel further argued that the standard of hard cheese should not have been applied on the sample of Mozzarella Cheese. On the other hand, Ld. SPP argued that the sample commodity was hard cheese and the standard 6 of hard cheese was rightly applied on the sample commodity. Ld. Defence counsel has also drawn my attention in respect of the authority reported as (2006) 1 Supreme Court Cases ( Crl) 288; (2006) 1 Supreme Court Cases (Crl) 290; 1985 (II) PFA Cases 192; 2001 (2) FAC 306; 2001 (2) FAC 309.
Benefit of Warranty u/S 19 (2) of PFA Act.
12. Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
13. Ld. Counsel for accused No. 1 to 3 vehemently argued that accused No.1 to 3 are entitled for benefit of warranty i.e Bill Ex. D-1 issued by accused No.5 i.e M/s Ashish Cheese Product. On the other hand, Ld. counsel for accused No.4 & 5 denied the sale of the sample commodity vide Bill Ex. D-1. On perusal of the Bill Ex. D-1 which is hand written and a rubber stamp of the firm is put over it , it is mentioned at serial No.3 that 6 k.g of Mozzarella was sold at the rate of Rs.100 per k.g on 4.5.95. It is a matter of record that vendor made endorsement on Ex. PW1/B i.e Notice in form VI at the spot that he purchased the Mozzarella Cheese from M/s Ashish Cheese Product. Accordingly, a Notice under Section 14A addressing to M/s Ashish Cheese Product was sent through registered post. PW-1 F.I Usha Kiran confirmed in her cross-examination that the sample packets were in sealed condition and word ' Mozzarella Cheese' was also written on the packets and there 7 was no apparent tempering on the sample packets at the time of sampling, and to a suggestion as put by the Ld. Defence counsel for accused No.5 denied the suggestion that Bill mark 'A' does not connect the sale of the sample commodity by accused No.5 to accused No.1. Accused No.1 Gurvinder Kumar Saluja also examined himself as DW-1 and deposed that he purchased the mozzarella cheese of which sample was lifted from M/s Ashish Food Product vide Bill dated .4.5.95 Ex.D-1 and made the payment on 30.6.95, and the same was supplied to them by Sh. Miteshwar Pandey, Delivery man of the accused No.5 who received the payment and put his signatures on the Bill Ex. D-1 in his presence. No suggestion was given to DW-1 by Ld. Defence counsel for accused No.5 that Sh. Miteshwar Pandey was not their Delivery man or that the Bill was not signed or payment was not received by him on behalf of accused No.5 Firm. Therefore, I am of the considered opinion that the sample commodity was supplied in sealed packets by accused No.5 to the vendor vide Bill Ex. D-1, and they are entitled for benefit of warranty of Bill Ex.D-1 under Section 19 (2) of the PFA Act.
Whether the standard of hard cheese could have been applied on Mozzarella Cheese .
14. Now coming to the next controversy, whether the standard of hard cheese can be applied on the sample of Mozzarella Cheese, as also confirmed by PW-2 LHA Gopal Singh in his cross-examination that at the time of sampling that there was no standard of Mozzarella Cheese and the standard of hard cheese was applied by the Public Analyst and the Director, CFL. It is also admitted fact that the standard of Mozzarella Cheese have been provided in the item No. A.11.02.06 of Appendix 'B' of PFA Rules and the same was inserted by the GSR 356 (e) dated 7.6.05 ( w.e.f. 7.3.06). Thus the testimony of Sh. Gopal Singh LHA also 8 shows that there was a need/proposal for separate standard of Mozzarella Cheese which were provided by the legislature in its wisdom in the year 2005.
15. In an authority reported as' M.C.D Vs. Ram Kishan, 1985 PFA Cases 192, the Hon'ble Division Bench of Delhi High Court held as under:-
''............ This analysis was made on the basis of prescribed standard for ice-cream- the rule treating same standard for softy ice- cream and ice-cream came in force w.e.f 23rd February 1974. This clearly shows that the earlier rule prescribing standard for ice-cream was not meant to apply for softy ice-cream. Held as the sample was taken on 16.2.73 this rule previously cannot be applied with retrospective effect. ''
16. In an another authority reported as 1976 PFA Journal 203 titled as Pale Ram Vs. State wherein Hon'ble Delhi High Court held as under:-
'' (ii) Prevention of Food Adulteration Rules, 1955- Article of food for which no standard has been laid down in the - Cannot be compared with articles for which standards have been laid down.
Held that there is no reason why an article of food for which no standard has been laid down under the Prevention of Food Adulteration Rules, 1955, should be compared with articles of food for which standards have been laid down in order to find out whether there has been a violation of the standard or not. This would result in the Court legislating and laying down the standard of articles of food for which 9 admittedly no standard has been laid down.''
17.Reverting back to the facts of the present case, the sample commodity was examined by the PA and the Director, CFL while applying the standard of cheese hard. It is further matter of record that the analytic results of the Public Analyst and the Director, CFL is as per the standard of Mozzarella Cheese as provided in the year 2005. Had it been that the standards of Mozzarella Cheese were provided by the legislature at the time of sampling, as per report of the Public Analyst, the sample would have been conforming to the standard of Mozzarella Cheese.
18. In view of the above discussions and reasons, I am of the considered opinion that the standard of hard cheese was wrongly applied upon the sample of Mozzarella Cheese for which no standard were prevailing at the relevant time. In result, complaint stands dismissed and all the accused stands acquitted. Bail bonds stand cancelled. Sureties discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 22.01.2010 ACMM-II/NEW DELHI.