Delhi District Court
Da vs Manik Chand Etc. on 2 February, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 149/93
DA Versus Manik Chand Etc.
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 149/93
b. The date of the commission of the offence :18.12.92
c. The name of the Complainant, if any : LHA M.R. Grover,
d. The name of the accused and his parentage : (1) Manik Chand, M/s
Modern Bazar Deptt.
Store Pvt Ltd, 49,
Basant Lok
Community Shopping
Centre, Vasant Vihar,
New Delhi
(5) R.T. Sharma S/o
Sh. P.L. Sharma, M/s
Nilgiri Cheese, Canal
Colony, Ferozpur.
e. The offence complained of or proved :u/s 2 (ia) (a) (m)
punishable under
Section 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 : 11.01.2010
i. judgment announced on : 02.02.2010
Brief statement of the reasons for such decision-
21. The present complaint is filed by the Delhi Administration through Local Health Authority Sh. M.R. Grover, against the above said accused persons alongwith accused No.2 M/s Modern Bazar Deptt. Store Pvt Ltd, 49, Basant Lok Community Shopping Centre, Vasant Vihar, New Delhi ( exparte) ; accused No. 3 Vishwant Kumar, M/s Modern Bazar Deptt. Store Pvt Ltd, 49, Basant Lok Community Shopping Centre, Vasant Vihar, New Delhi ( since expired and proceedings against him were abated ); accused No. 4 P. Rajan, M/s Nilgiri Cheese, Canal Colony, Ferozpur ( who was declared Proclaimed Offender by the Ld. Predecessor of this court vide order dated 13.5.98 ) & accused No. 6 H.S. Bedi, M/s Nilgiri Cheese, Canal Colony, Ferozpur ( since discharged by the Ld. Predecessor of this court vide order dated 27.10.98 ), 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 18.12.92 at about 2:00 p.m., Food Inspector, Surender Kumar Sharma purchased a sample of Processed Cheese (Pepper), a food article for analysis from Manik Chand at M/s Modern Bazar Deptt. Store Pvt Ltd, 49, Basant Lok Community Shopping Centre, Vasant Vihar, New Delhi. The food article consisted of 3 originally sealed polythene packets containing 200 gms of Proceeded Cheese each, having an identical label declaration. The food article in question was found stored at the abvoe mentioned store/ shop for the purpose of sale and Sh. Manik Chand was found conducting the business of the store/shop. Each sealed polythene packet containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the paper slip and the wrapper of the sample 3 counterparts. Notice was given to the accused Manik Chand and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents were prepared by Sh. Surender Kumar Sharma , Food Inspector and were signed by the accused Manik Chand and the other witness Sh. Virender Singh , Food Inspector. 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 M.R. Grover. 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 06.01.93 and found that the sample does not conform to standard because Moisture exceeds the prescribed maximum limit of 47% and milk fat of dry matter is less than the prescribed minimum limit of 40%.
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. M.R. Grover, Local (Health ) Authority to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(a)(m) 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 persons and pursuant thereto they had appeared before the court. Notice under Section 251 Cr.P.C for contravention of provisions of Section 2 (ia) (a)
(m) punishable under Section 16 (1) read with section 7 of the PFA Act 4 was framed against the accused persons separately on 27.10.98 to which they pleaded not guilty.
6. In support of its case, complainant examined PW-1 Sh. M.R. Grover, LHA ; PW-2 F.I. S.K. Sharma ; PW-3 F.I Virender Singh ; PW-3 Sh. Bhupinder Singh ; PW-4 Sh. H.M. Grover & PW-5 Mrs. Mohini Srivastava, P.A.
7. Statements of accused persons were recorded under Section 313 Cr.P.C on 28.05.09 wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent and preferred to lead evidence in their defence and examined Sh. Pawan Kumar as DW-1.
8. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
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 5 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, 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. Counsel for accused No.1 argued that there was no standard of ' Chadder Cheese' at the time of sampling and Public Analyst wrongly analysed the sample while applying the standard of hard cheese. Ld. Defence counsel for accused No.5, on the other hand, has vehemently argued that accused No.5 was only Accountant in the firm M/s Nilgiri Cheese and he was not Proprietor of the firm.
Whether the standard of hard cheese could have been applied on Chaddar Cheese .
12. The main contention of the Ld. Defence counsel was that at the time of sampling, there was no standard of Chaddar Cheese and Pubic Analyst wrongly applied the standard of Hard Cheese on the sample commodity for which no standards were provided at the relevant time. PW-5 Mrs. Mohini Srivastava, Public Analyst , who analysed the sample, confirmed in her cross-examination that in the year 1992, there was no standard of Chaddar Cheese and the same was considered under the category of Hard Cheese. Thus the testimony of Smt. Mohini Srivastava, Public Analyst also shows that there was no standard of Chaddar Cheese at the time of sampling which were provided by the legislature in its wisdom in the year 2005. It is 6 also admitted fact that the standard of Chaddar Cheese have been provided in the item No. A.11.02.03 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).
13. In an authority reported as MCD VS. Ram Kishan ( Supra), 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. ''
14. In an another authority reported as Pale Ram Vs. State (Supra) 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 admittedly no standard has been laid down.''
15. In view of the fact that there was no standard of Chaddar Cheese at 7 the time of sampling, which came in force w.e.f 7.3.06, I am of the considered opinion that the standard of hard cheese was wrongly applied upon the sample of Chaddar Cheese by Public Analyst for which no standards were prevailing at the relevant time.
Whether the accused No.5 was Proprietor of M/s Nilgiri Cheese.
16. The main contention of the Ld. Counsel for accused No.5 was that the accused No. 5 was not the proprietor of M/s Nilgiri Cheese, Canal Colony, Ferozpur, Punjab but it was Sh. H.S. Bedi , who has been discharged by the Ld. Predecessor of this court. Ld. Defence counsel argued that accused R.T. Sharma was only Accountant of M/s Nilgiri Cheese and further argued that in a proprietorship firm, there cannot be two proprietors. PW-1 Sh. M.R. Grover, LHA under whose supervision the sample was lifted, confirmed in his cross-examination that he knew the difference between the proprietor of the firm and partner of the firm. He further confirmed that proprietor means the sole owner of the firm. To a specific question, PW-1 deposed that as per document mark 'C', Sh. H.S. Bedi was shown as Proprietor and further confirmed that Sh. H.S. Bedi was prosecuted on the basis of the information supplied by the vendor. To a specific question as put by the Ld. Defence counsel, PW-1 confirmed that till the date of filing of complaint, they could not ascertain as to who was the real proprietor of the firm. This admission of PW-1 is fatal for the case of the complainant. PW-4 H.M. Grover, Reader of Excise and Taxation Officer, Ferozpur, Punjab brought the summoned record pertaining to M/s Nilgiri Cheese, confirmed in his cross-examination that he had heard of Sh. Har Pal Bedi known as owner of M/s Nilgiri Cheese, Canal Colony, and was a prominent man, which also creates a doubt that Sh. R.T. Sharma was proprietor of M/s Nilgiri Cheese.
817.In view of above reasons and findings, I am of the considered opinion that complainant has failed to prove that Sh. R.T. Sharma, Accused No.5 was proprietor of M/s Nilgiri Cheese or was incharge and responsible for day to day affairs of M/s Nilgiri Cheese and Public Analyst wrongly applied the standard of Hard Cheese on Chaddar Cheese for which no standard was provided at the relevant time. In result, accused No. 1 & 5 stand acquitted of the charge. Their bail bonds cancelled. Sureties discharged. File be consigned to the record room and shall be revived as and when accused No.4 becomes traceable.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 02.02.2010 ACMM-II/NEW DELHI.