Delhi District Court
Da vs . Sudarshan Kumar & Ors. Page 1 Of 16 on 12 December, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 2/2001
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1. Sh. Sudershan Kumar
S/o Sh. Lajpat Rai
M/s Singla Confectionery Store,
Ratia Marg, Sangam Vihar,
Delhi.
R/o C22, Jawahar Park, Khanpur,
Delhi.
(Discharged v/o dated 24.09.2001)
........................VendorcumProprietor
2. M/s Cosmetics & Allied Agencies
7D, Khirki Village,
Malviya Nagar,
CC No. 2/01
DA Vs. Sudarshan Kumar & Ors. Page 1 of 16
New Delhi17
(Discharged v/o dated 24.09.2001)
.............Supplier firm
3. Sh. Suresh Kumar
S/o Sh. Kabul Chand
M/s Cosmetics & Allied Agencies
7D, Khirki Village,
Malviya Nagar,
New Delhi17
R/o Laxmi Bhawan, Sadar Bazar,
Delhi Cantt., New Delhi10.
(Discharged v/o dated 24.09.2001)
4. Mrs. Shilpa Aggarwal
W/o Sh. M.R. Aggarwal
M/s Cosmetics & Allied Agencies
7D, Khirki Village,
Malviya Nagar,
New Delhi17
R/o Laxmi Bhawan, Sadar Bazar,
Delhi Cantt., New Delhi10.
(Discharged v/o dated 24.09.2001)
..........Partner of supplier firm
5. M/s Nisha Enterprises
C16, Kiran Garden, Uttam Nagar,
New Delhi59
(Discharged v/o dated 24.09.2001)
............Distributor to the supplier firm
CC No. 2/01
DA Vs. Sudarshan Kumar & Ors. Page 2 of 16
6. Sh. Kishan Chand Solanki
S/o Sh. Jeet Ram
C16, Kiran Garden, Uttam Nagar,
New Delhi59
R/o New T13, PhaseII,
Uttam Nagar
New Delhi59.
(Discharged v/o dated 24.09.2001)
......Partner of accused no. 5
7. Sh. Jasbir Solanki
S/o Sh. Jeet Ram
C16, Kiran Garden, Uttam Nagar,
New Delhi59
R/o H. No. 192, Village Matiala,
Uttam Nagar, New Delhi59.
(Discharged v/o dated 24.09.2001)
.........Partner of accused no. 5
8. M/s G.D. Food Mfg. (India) Pvt. Ltd.
Plot No. 61, Matiala Indl. Complex,
Uttam Nagar, N. Delhi59.
......Manufacturing firm
9. Sh. Lal Babu
S/o Sh. Madan Lal
Production Manager
M/s G.D. Food Mfg. (India) Pvt. Ltd.
CC No. 2/01
DA Vs. Sudarshan Kumar & Ors. Page 3 of 16
Plot No. 61, Matiala Indl. Complex,
Uttam Nagar, N. Delhi59.
R/o RZ New T18 A, Uttam Nagar
New Delhi59.
......Nominee of accused no. 8.
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 02/2001
Date of the commission of the offence : 28.04.2000
Date of filing of the complaint : 12/01/01
Name of the Complainant, if any : Shri Ranjeet Singh, Food
Inspector.
Offence complained of or proved : violation of Section 2 (ia) (a) (b)
(j) & (m) of PFA Act 1954,
violation of Rule 23, Rule 28 & 29
of PFA Rules 1955; punishable
U/s 16(1A) of PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 29.10.2013
Judgment announced on : 12/12/13
J U D G M E N T
1. The present complaint has been filed on 12.01.2001 by the CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 4 of 16 Delhi Administration through FI Ranjeet Singh against the above said accused persons. It is stated in the complaint that on 28.04.2000 at about 5:30 PM, FI Ranjeet Singh purchased a sample of Mango Juice, a food article for analysis from accused Sh. Sudershan Kumar, S/o Sh. Lajpat Rai of M/s Singla Confectionery Store, Raita Marg, Sangam Vihar, Delhi, where he was found conducting the business of the said food article. FI Ranjeet Singh purchased 6 sealed bottles of 250 ml each of Mango Juice, bearing identical label declaration. The sample was divided into three equal parts by putting two originally sealed bottles of Mango Juice in one counterpart and each counterpart containing the sample commodity was separately packed, fastened and sealed according to PFA Act and Rules. It is stated in the complaint that all the sample proceedings were conducted under the supervision and directions of SDM / LHA Sh. Lakhbir Singh. The signatures of vendor Sh. Sudershan Kumar were obtained on the LHA slip and the wrapper of the sample counterparts containing the sample commodity. Notice in Form VI was given to accused / vendor and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by FI Ranjeet Singh were signed by accused Sh. Sundershan Kumar and the other witness namely Sh. Shivaji Mehto, FA. It is stated that before taking the sample, efforts were made to get the public CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 5 of 16 witnesses to join the sample proceedings, but none came forward and as such Sh. Shivaji Mehto, FA joined as witness.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that, "the sample does not conform to standard because it contains added permitted colours use of which is prohibited under Rule 29 in case of Fruit Juice".
3. It is further stated in the complaint that accused Sh. Sudershan Kumar was found VendorcumProprietor of M/s Singla Confectionery Store and was responsible for day to day conduct of the business of the said firm. It is further stated in the complaint that accused no. 1 Sh. Sudershan Kumar had purchased the sample commodity from accused no. 2 M/s Cosmetics & Allied Agencies which was a partnership firm having two partners namely Sh. Suresh Kumar (A3) and Mrs. Shilpa Aggarwal (A4) and since no Nominee was appointed by the said firm therefore all of them were liable for the prosecution. It is further stated in the complaint that accused no. 3 M/s Cosmetics & Allied Agencies had purchased the sample commodity from accused no. 5 M/s Nisha Enterprises which was a partnership firm having its two partners namely Sh. Kishan Chand Solanki CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 6 of 16 (A6) and Sh. Jasbir Solanki (A7) and both of them were responsible for conducting the day to day business of the firm and as such they have been prosecuted. It is further stated in the complaint the accused no. 5 had purchased the sample commodity from accused no. 8 M/s G.D. Food Mfg. (India) Pvt. Ltd. of which Sh. Lal Babu (A9) was Nominee and was responsible for day to day business of the said manufacturing firm and as such he as well as the firm have been prosecuted. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section Section 2 (ia) (a) (b) (j) & (m) of PFA Act, 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, which is punishable U/s 16 (1A) r/w Section 7 of PFA Act 1954.
4. The accused persons were summoned vide order dated 12.01.2001. On appearing accused no. 1 to 7 moved applications u/s 294 Cr. P.C seeking benefit of Warranty u/s 19(2) of PFA Act and accordingly vide order dated 24.09.2001, accused no. 1 to 7 were discharged. Thereafter on 20.08.2001 accused no. 9 moved an application u/s 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL) but vide order dated 29.01.2002, the same was dismissed.
CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 7 of 16
5. The prosecution in pre charge evidence examined one witness namely Sh. Ranjeet Singh, Food Inspector as PW1 and pre charge evidence was closed vide order dated 08.09.2008.
6. Thereafter, charges for violation of provisions of Section 2(ia) (a) (b) (j) & (m) of PFA Act 1954, Rule 23 r/w Rule 28 & 29 of PFA Rules 1955 punishable U/s 16 (1A) r/w section 7 of PFA Act 1954 were framed against accused no. 8 & 9 vide order dated 21.05.2009 to which both of them pleaded not guilty and claimed trial.
7. Thereafter, in post charge examination, the prosecution examined Sh. Ranjit Singh as PW1 and PE was closed vide order dated 03.12.2009.
8. Statements of both the accused persons U/s 313 Cr.P.C. were recorded on 08.03.2010 wherein both of them claimed themselves to be innocent and opted to lead defence evidence.
9. One witness Sh. S.N. Mahendru was examined in defence by accused persons as DW1 and DE was closed vide order dated 13.05.2010.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for the accused persons argued that Mango Juice falls within the category of Thermally Processed Fruit Product in which CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 8 of 16 Tartrazine and Sunset Yellow f.c.f colours are permissible. He further argued that in Table 10 of Appendix C of PFA Rules 1955, colours permitted in the Thermal Processed Fruit Beverages / Fruit Drinks / ready to serve Fruit Beverages have been specified in which it is clearly mentioned that use of Tartrazine and Sunset Yellow FCF is permissible upto the maximum limit of 100 PPM while in the present case Total Dye Content is 57.82 PPM which is well within permissible limit hence, no case is made out against the accused persons. He further argued that since the sample commodity in question was a Ready to Serve Fruit Juice therefore no case of violation is made out against the accused persons. He has relied upon the case law titled as Mayur Jaykumar Vora Vs. Govt. of NCT of Delhi 2012 (3) JCC 1864, Rajiv Vora Vs. Govt. of NCT of Delhi 2012 (3) JCC 2037 and Amalgamanted Bean Coffee Trading Co. Ltd. & Anr Vs. Delhi Administration 2011 (6) LRC 248.
12. On the other hand, the Ld. SPP for complainant has argued that the Public Analyst has found the sample commodity to be adulterated as the sample commodity was containing added permitted colours use of which was prohibited under Rule 29 in Fruit Juice and therefore, they are liable to be convicted.
13. PW1 examined by the prosecution has deposed more or less CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 9 of 16 as per the averments made in the complaint and substantiated the averments.
14. PW1 Sh. Ranjeet Singh who has conducted the sample proceedings has deposed in his examinationinchief that on 28.04.2000 he alongwith FA Shri Siya Ram under the supervisions and directions of SDM/LHA Sh. Lakhbir Singh had visited the premises of M/s Singla Confectionery Store, Ratia Marg, Sangam Vihar, Delhi where accused Sudershan Kumar was found conducting the business of the said shop having stored Mango Juice, a food article for sale for human consumption. He has further deposed that he purchased 6 sealed bottles of Mango Juice for analysis on payment of Rs. 52/ vide vendor's receipt Ex. PW 1/A. He further deposed that he divided the sample bottles into three equal parts by putting two sealed bottles as such as one counterpart and each counterpart was separately packed, fastened, marked and sealed as per PFA Act and Rules.
15. PW1 has further deposed that notice in Form VI was prepared at the spot and a copy of the same was given to accused Sudershan Kumar which is Ex. PW 1/B, wherein accused / vendor disclosed the source of purchase of sample commodity. Panchnama was also prepared at the spot which is Ex. PW 1/C. He further deposed that he prepared notice u/s 14 A CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 10 of 16 at the spot addressing to M/s Cosmetics & Allied Agencies vide Ex. PW 1/D. He further deposed that all the aforesaid documents were read over and explained to the accused / vendor in Hindi who after understanding the same signed the same. He has also deposed that one counterpart of the sample alongwith one copy of memo in Form VII in intact & sealed condition was sent to the PA on 01.05.2000 vide receipt Ex. PW 1/E and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA vide receipt Ex. PW 1/F. He has further deposed that PA's report Ex. PW 1/G was received according to which the sample was found adulterated. He has proved the letters sent during investigation as Ex. PW 1/H, Ex. PW 1/J, Ex. PW 1/K1, Ex. PW 1/K2, Ex. PW 1/K3, Ex. PW 1/K4, Ex. PW 1/K5, Ex. PW 1/K6, Ex. PW 1/L, Ex. PW 1/M, Ex. PW 1/N1, Ex. PW 1/N2, Ex. PW 1/N3, Ex. PW 1/O, Ex. PW 1/P1, Ex. PW 1/P2 and Ex, PW 1/P3. He has also proved the consent as Ex. PW 1/Q, complaint as Ex. PW 1/R, intimation letter as Ex. PW 1/W and postal registration receipts as Ex. PW 1/T.
16. In the statement under section 313 Cr. P.C., accused no. 9 who is also AR of accused no. 8 has feigned ignorance about the lifting of the sample on 28.04.2000. He has taken a plea that the sample commodity was Thermally Processed Fruit and use of colour is permitted in the same. CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 11 of 16
17. On the basis of PA's Report dated 10.05.2000 the prosecution against the accused persons was launched. Vide order dated 24.09.2001, accused no. 1 to 7 were given benefit of Warranty u/s 19(2) of PFA Act and were discharged, hence, it is accused no. 8 & 9 only whose fate has to be decided. The PA's Report is as under:
"The sample does not conform to standard because it contains added permitted colours use of which is prohibited under Rule 29 in case of Fruit Juice".
18. The main contention of Ld. counsel for accused persons is that the colours detected by Public Analyst in her report are permitted colours and therefore no case is made out against the accused persons. In this regard, defence witness Sh. S.N. Mahendru (Retd. Chief Chemist, Regional Agmark Laboratories, Govt of India) who has been examined by the accused persons in their defence as DW1 has deposed that he analysed thousands of food samples of various food articles during his service and written 19 books on food analysis and food chemistry, food additives, food contaminates etc. He has further deposed that Mango Juice falls within the category of Processed Fruit Product and one cannot manufacture fruit product without FPO License. He has further deposed and proved the copy of his book as Ex. DW 1/A and has deposed that the Tartrazine and Sunset CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 12 of 16 yellow FCF are permitted colours as mentioned in Ex. DW 1/B. He has also filed copy of Fruit product order 1955 and proved the same as Ex. DW 1/C, whereby permitted colour are allowed in Fruit Juice and same are also allowed in Table 10 of Appendix C of Thermally Processed Fruit Beverages of PFA Rules 1955 and proved the copy of the same as Ex. DW 1/D.
19. In Table 10 of Appendix C of PFA Rules, 1955, list of Food Additives for use in Food Products has been given. Perusal of the same would reveal that at column no. 10 thereof under the heading of Thermally Processed Fruit Beverages / Fruit Drink / ready to serve Beverages at Sl No. 4 & 5 the name of synthetic colours viz. Tartrazine & Sunset Yellow FC have been given, use of which is permissible upto 100 PPM in Thermally Processed Fruit Beverages / Fruit Drink / ready to serve Beverages.
20. The main contention of the Ld. SPP is that in Rule 29 the name of sample commodity i.e. Fruit Juice has not been mentioned where the list of food articles in which synthetic colours, as given in Rule 28 are allowed, hence, the accused persons are liable to be convicted.
Rule 29 of PFA Rules reads as under:
"29. Use of permitted synthetic food colours prohibited Use of CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 13 of 16 permitted synthetic food colours in or upon any food other than those enumerated below is prohibited:
(a).............
(b)...........
(c) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(d) Nonalcoholic carbonated and noncarbonated readytoserve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit drinks, synthetic soft drink concentrates;
(e)..........
(f)................".
21. From the perusal of Rule 29 it is crystal clear that use of the permitted synthetic colours are not prohibited in Ready to Serve Fruit Beverages, Fruit Drinks or Thermally Processed Food Beverages. My aforesaid view do find support from the definition of Fruit Beverage and Fruit Drinks given in A.16.05 of Appendix B and the definition of Thermal Processed Fruit Juice and Fruit Drinks given in A.16.10 of Appendix B of CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 14 of 16 PFA Rules 1955.
Appendix A.16.05 reads as under:
"A.16.05 Fruit Beverage or Fruit Drink means any beverage or drink which is purported to be prepared from fruit juice and water or carbonated water, any containing sugar, dextrose, invert sugar or liquid glucose either singly or in combination and with or without
(a) water, peeloil, fruit essences and flavours.
(b) citric acid, ascorbic acid.
(c) permitted preservatives and colour ........................"
Appendix A.16.10 reads as under:
"A.16.10 THEREMALLY PROCESSED FRUIT BEVERAGES / FRUIT DRINK / READY TO SERVE FRUIT BEVERAGES (CANNED, BOTTLED, FLEXIBLE PACK AND / OR ASPETICALLY PACKED) means an unfermented but fermentable product which is prepared from juice or Pulp / Puree or concentrated juice or pulp of sound mature fruit, by blending with nutritive sweeteners and water or milk and processed by heat, in an appropriate manner, before or after being sealed in a container, so as to prevent spoilage.
22. In the authorities relied upon by the counsel for accused persons, similar issues were involved as there was no standard provided in the PFA Rules for Pineapple Crush, Mango Crush. The Hon'ble High of Delhi after considering the facts and above mentioned definitions in the CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 15 of 16 PFA Rules held that the use of tartrazine and sunset yellow in manufacturing of fruit squash, fruit syrup etc. and non alcoholic fruit drink etc is permissible therefore it cannot be said that there is violation of the provisions of PFA Act or the PFA Rules framed thereunder.
23. Moreover, in the present case the Public Analyst has found the Total Dye Contents 57.82 PPM which is less than maximum permissible limit of 100 PPM, hence, no case or offence is made out against the accused persons in the present case.
24. In view of aforesaid discussions, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the benefit of the same is liable to be given to the accused persons. Hence, accused no. 8 & 9 are acquitted of the charges leveled against them.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 12th December, 2013 ACMMII/ PHC/ New Delhi
CC No. 2/01
DA Vs. Sudarshan Kumar & Ors. Page 16 of 16
CC No. 2/01
DA Vs. Sudershan Kumar
12.12.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 to 7 have already been discharged vide order dated 24.09.2001.
Accused no. 9 (representing accused no. 8 as well) is present with Counsel.
Vide my separate Judgment of even date dictated and announced in the open court, both accused persons stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused no. 9 is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished B/B & S/B in the sum of Rs. 20,000/ . The same are accepted. File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/12.12.2013 CC No. 2/01 DA Vs. Sudarshan Kumar & Ors. Page 17 of 16