Delhi District Court
Complainant vs . on 11 November, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW DELHI
In the matter of :
CC No. : 51216/16
Food Safety Officer
Department of Food Safety
Govt of NCT of Delhi
A-20 Lawrence Road
Industrial Area, Delhi-110035
....Complainant
Vs.
Lekhraj
S/o Late Sh. Sisram Saini
M/s Rewari Misthan Bhandar
24/9, Viyas Marg, Shakti Nagar
Delhi-110007
Also At:-
R/o 24/27, Shakti Nagar
Delhi-110007
.... FBO-cum-Proprietor
JUDGMENT
(a) Serial number of the case : 51216/16
(b) Date of commission of the offence : 24.10.2013
(c) Name of the complainant (if, any) : Saurabh Sharma,
Food Safety Officer
(d) Name of the accused person(s), : Lekhraj
and their parentage and residence S/o Late Sh. Sisram Saini
M/s Rewari Misthan
Bhandar
24/9, Viyas Marg, Shakti
Nagar Delhi-110007
Also At:-
R/o 24/27, Shakti Nagar
Delhi-110007
CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 1 of 12
(e) Offences complained of : Section 26/59 of Food
Safety and Standards Act,
2006
(f) Plea of the accused : Not guilty
(g) Date of final arguments : 27.10.2021
(h) Date of Decision : 11.11.2021
(i) Decision : Accused convicted
BRIEF STATEMENT OF REASONS FOR SUCH DECISION
1. This is a complaint under Section 26/59 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act') to the effect that on 24.10.2013 at about 06:30 PM, the complainant Saurabh Sharma, Food Safety Officer (hereinafter referred to as 'FSO') had taken, by purchasing, a sample of "Boondi Laddu" (an article of food) for analysis from Sh. Lekhraj i.e. Food Business Operator-Cum-Manager (hereinafter referred to as 'FBO') of M/s Rewari Misthan Bhandar, 24/9, Viyas Marg, Shakti Nagar, Delhi-110007, where the said food article was stored for sale for human consumption at the time of taking sample. The "Boondi Laddu" was available in open tray having no label declaration and after disclosing his identity, FSO showed his intention of taking the sample of abovesaid food article for analysis. At about 06:30 pm, FSO purchased the sample of "Boondi Laddu" weighing 2 kgs from open tray bearing no label declaration and price of Rs.280/- was paid through cash to FBO vide receipt dated 24.10.2013.
2. The sample was taken under the directions of Designated Officer of District North (DO) after breaking it into smallest possible pieces CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 2 of 12 with the help of a clean and dry spoon in a clean and dry tray and mixed properly with same spoon. The sample was thereafter, divided in four equal parts, put into four clean and dry glass bottles and 40 drops of Formalin were added in each sample bottle with the help of clean dry chopper while gently shaking the bottles. Each counterpart containing the sample was separately packed, fastenened and sealed according to FSS Rules and Regultions. DO slip bearing the code number, signature and official stamp of DO was affixed on each sample counter part. A label was also pasted on each of the four sample counterparts and the FBO had signed all the four labels affixed on each of the four sample counterparts. FSO completed the remaining formalities and notice in Form VA was prepared and copy of the same was given to FBO/accused. Panchnama was also prepared. One counter part of the sample bearing Code no. 01/DO-12/4170 in intact condition in a sealed packet along with copy of memo in Form-VI in a sealed packet along with copy of another memo in Form VI under sealed cover were sent to food analyst on 25.10.2013. The remaining two counterparts of the sample along with two copies of memo in Form VI in a separate sealed packet were deposited with the Designated Officer Sh. Suniti Kumar Gupta on 25.10.2013.
3. The sample was analyzed by food analyst and vide his report no. FSS/1217/2013 dated 05.11.2013, food analyst opined that the sample is unsafe because total dye content of the synthetic colour used exceeded the prescribed maximum limit of 100 ppm. The Designated Officer sent copy of the report of food analyst to FBO Sh. Lekhraj on 06.11.2013 and gave him an opportunity to file an appeal against the report of food analyst under CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 3 of 12 Section 46(4) of FSS Act, by sending one part of sample to Referral Food Laboratory (hereinafter referred to as 'RFL'). The FBO preferred an appeal against the report of Food Analyst and one counterpart of the sample was sent to RFL for analysis on 11.12.2013. The Director of RFL, Mysore vide certificate no. 474F/FSSA/2013 dated 08.01.2014 reported that the sample was unsafe as defined under Section 3(1)(zz)(viii) of FSS Act. It is the case of complainant that accused was the Food Business Operator-Cum- Proprietor of M/s Rewari Misthan Bhandar, 24/9, Viyas Marg, Shakti Nagar, Delhi-110007 at the time of taking the sample and as such he was incharge of the same and responsible for day to day conduct of its business. After the conclusion of the investigation and obtaining the consent under Section 42(4) of FSS Act, present complaint had been filed.
4. As the complaint was filed in writing by the public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 30.04.2014. Accused Lekhraj appeared before the court on 26.08.2014 and was admitted to bail. He was thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') on 20.01.2017 for offences punishable under Section 26(2)(i) r/w Section 3(i)(vii) & (viii) of FSS Act and Section 59 (i) of FSS Act, to which he pleaded not guilty and claimed trial.
5. At the trial, prosecution examined three witnesses in support of its case. PW1 is Saurabh Sharma, FSO who deposed on the lines of the complaint and exhibited the following documents i.e. FBO receipt Ex.PW1/A, Form VA Ex. PW1/B, Panchnama Ex. PW 1/C, Raid report Ex.
CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 4 of 12 PW 1/D, sample sent to Food Analyst vide receipt Ex. PW 1/E, receipt of sample to the DO Ex. PW 1/F, Food analyst report Ex. PW 1/G, letter sent to FBO Ex. PW 1H, Form VIII filled by FBO Ex. PW 1/H-1, one counterpart sent to Director, RFL, Mysore Ex. PW 1/H-2, copy of postal receipts Ex. PW 1/H-3, RFL report received through DO vide Ex. PW 1/I, letter sent to VAT officer Ex. PW 1/J, sanction letter Ex. PW 1/K and the present complaint is Ex. PW 1/L.
6. PW-2 is Sh. Pratap Raj, Retd. Field Assistant, who was part of the team that had visited the spot for sample proceedings, while, PW3 Sh. Suniti Kumar Gupta, Retd. Designated Officer directed PW1 and PW2 to conduct general raid in North District Model Town, Kingsway Camp, Delhi. Both the aforesaid witnesses deposed on the similar lines of PW1 and corroborated his version. All these witnesses were cross examined on behalf of accused. PE thereafater, got closed. Accused was then examined under Section 313 Cr.P.C. on 08.01.2020 and he did not prefer to lead any defence evidence.
7. Case then culminated into final arguments. Both the Ld. Special Prosecutor for the Department/Complainant as well as Ld. Counsel for accused addressed oral arguments. Ld. Counsel for accused strenuously argued that the present complaint suffers from serious flaw in as much as the report of RFL is based on the test conducted as per JFT manual which is neither recognized by FSS Act nor by any authorities. He also pointed out that the sample was not representative as there is variation between the report of public analyst and that of RFL as regards the presence of color. It CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 5 of 12 is further argued that spoons and bottles in which the sample food article was collected were not clean and dry. It is further argued that the sanction accorded under section 42 of FSS Act is bad in law as Sh. Sohan Singh Kanwat was not competent to grant sanction. Ld. Counsel for accused drew support from following Judgments:-
(i) State V. Subhash Chand, Delhi High Court 2012 (2) GCC 1052;
(ii) Girraj Prasade Vs State of Punjab, Punjab and Haryana High Court dated 17.05.1993;
(iii) Maya Ram Vs State of Punjab, Punjab and Haryana High Court dated 15.07.1983;
(iv) Om Prakash Vs State of Haryana, Punjab and Haryana High Court dated 04.09.1991;
(v) National Delhi Development Board, Anand v. State of Haryana, Punjab and Haryana High Court dated 22.07.1997;
(vi) State of Gujarat and Others v. Yogesh Kumar, GHC 2007 (2) SCC 176;
(vii) Rajesh Kumar Subhash Bhai v. State of Gujarat, 2014 (2) FAC 449.
8. On the other hand, Ld. SPP for the complainant argued that the technique employed by RFL is an internationally recognized method for testing based on paper chromatography and therefore the report cannot be assailed on this ground. Ld. SPP for the complainant further argued that the grounds raised by Ld. Counsel for accused regarding nature of test conducted by RFL is without any consequence as despite opportunity being granted to him, he failed to call Director, RFL and cross-examine him and that he cannot question the report, which is admissible under Section 293 Cr.P.C. on the basis of presumptions. Ld. SPP further argued that once the CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 6 of 12 report of RFL is received, no credence can be accorded to the report of public analyst in view of mandatory provision of Section 13 of FSS Act.
9. I have heard the rival submissions on behalf of both the parties and carefully perused the record.
10. It is to be understood that the notice framed against the accused persons was for violation of Section 26 (2)(i) r/w Section 3(1)(zz),
(vii) & (viii) of FSS Act, 2006 and Regulation No. 3.1.2(1) r/w 3.1.2(6) of FSS Regulations, 2011, punishable under Section 59 (i) of FSS Act, 2006 which read as under:
Section 26 deals with Responsibilities of the food business operator - (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe;
Section 3(1)(zz) defines "unsafe food" which means an article of food whose nature, substance or quality is so affected as to render it injurious to health; (v) by addition of a substance directly or as an ingredient which is not permitted; (vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof;
Regulation No. 3.1.2(1) provides that unauthorized addition of colouring matter prohibited-The addition of colouring matter to any article of food except as specifically permitted by these regulations is prohibited;
Regulation No. 3.1.2(6) deals with Use of permitted synthetic food colours prohibited-Use of permitted synthetic food colours CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 7 of 12 in or upon any food other than those enumerated below is prohibited :-
(i) Ice-cream, milk lollies, frozen desserts, flavoured milk yoghurt, ice-cream mix powder;
(ii) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dalmoth, mongia, phululab, sago papad, dal biji only);
(iii) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit crushes, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(iv) Non-alcoholic carbonated and non-carbonated ready to serve synthetic beverages including synthetic syrups, sherbats, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(v) Custard powder;
(vi) Jelly crystal and ice-candy;
(vii) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only under label declaration as provided in regulation 2.4.5(35) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
Section 59 deals with Punishment for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees;
11. The incriminating material on the basis of which the sample of "Boondi Laddu" had been failed by the Food Analyst and later on RFL, is that as per the reports, the sample was unsafe as excessive artifical food colouring matter was found in the sampled food article which is not permissible as per rules.
12. In so far as visiting of the shop of FBO by FSO and consequent lifting of sample of "Boondi Laddu" is concerned, there is no CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 8 of 12 challenge on behalf of accused that the sample of "Boondi Laddu" was not lifted as per the rules and regulations prescribed under the FSS Act. Testimony of PW-1 Sh. Saurabh Sharma vividly describes the manner in which sample article of "Boondi Laddu" was collected from the shop of accused/FBO. His testimony is on the similar lines as the complaint Ex. PW1/L and there is no serious rebuttal on various exhibits pertaining to sample collection proceedings.
13. The defence has not been able to rebut or bring any credible evidence on record to show that the spoons or the bottles in which the sampled food article was collected, were not clean and dry, as has been suggested by them during the cross-examination of the witnesses. Further, merely stating so during the cross-examination of witnesses without adducing evidence on record to corroborate the said suggestions is not enough to rebut the evidence brought forth by the complainant, which per se is admissible as per law.
14. Second contention raised on behalf of accused is that there is vast variation between the report of Food Analyst Ex. PW1/G and that of RFL Ex. PW-1/I. As per the report of public analyst the sample article was found containing colors i.e. tartrazine and sunset yellow FCF to the tune of 144.96 ppm as against maximum prescribed limit of 100 ppm. While as per the report of RFL the sample article was found containing same colours to the tune of118.1 ppm. It is thus argued by Ld. Cousnel for accsued that one of the sample was bound to be not representative. This argument of Ld. Counsel appears to be compelling, however, the controversy in this regard CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 9 of 12 has been put to rest by the judgment of Hon'ble Supreme Court in case titled as Delhi Administration v. Vidya Gupta, Criminal Appeal No. 625 of 2018, Date of Decision 24 April, 2018 the following paras of which are worth reproducing :
"... 11. Once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context the proviso to sub-section (5) of Section 13 can also be looked at which deals with the evidentiary value of such certificate. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of section 4 of the Evidence Act. Thus the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.
12. The finding of the High Court that the variation between the two reports was 0.76% and therefore more than 0.3% as permitted in Ram Singh's case (supra) is completely unsustainable and liable to be set aside. The reliance placed by the High Court on the decisions in Kanshi Nath v. State and State v. Mahender Kumar and Ors which hold that if in the comparison of the reports of the PA and the Director vast variations are found, then the samples are not representative, is improper. Those decisions do not lay down good law..."
15. In light of the principle expounded in the above-mentioned judgment, there is no doubt that once FBO/accused preferred an appeal against the report of public analyst, the report filed by RFL will obliterate and supersede the report of public analyst. Whatever are the variations in the report of RFL Ex. PW 1/I from that of public analyst Ex. PW1/G, the former will have precedence over the later. Thus, this contention of Ld. Counsel for accused that the sample of food article was not representative CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 10 of 12 does not pass any muster.
16. Another leg of argument of Ld. Counsel for accused is that the sanction accorded by the Commissioner was bad in law as he was not being assigned the powers of Commissioner by the Government of Delhi. However, nothing substantial is brought on record by the accused in support of this contention. The sanction letter dated 21.02.2014 Ex. PW 1/K has been duly proved by PW-1 and nothing material is adduced on behalf of accused that Sh. Sohan Singh Kanawat, then Food Safety Commissioner was not competent to grant the sanction. Thus, this argument of Ld. Counsel for accused lacks merit.
17. Coming to the last argument made by Ld. Counsel for acused that GFT, Manual used for analysis by RFL is not recognized by FSS Act or by any authority under the Act. It is pertinent to note that the said argument has never been raised on behalf of accused during entire trial except at the stage of final arguments. It is no longer res-integra that report of chemical experts are admissible in evidence without formal proof under Section 293 Cr.P.C. and further if accused wished to seek clarification or question the said report, he should have called the chemical expert/Director RFL in Court and cross-examine him on the said aspect. However, despite opportunity being available, accused failed to exercise the same, as such he cannot question the report on assumptions or presumptions.
18. In Richpal v. State (Delhi Administration), 1988 (2) DLT 422 and Mohd. Hussain v. State (Delhi), 1989 (1) FAC 206, it was held by CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 11 of 12 Hon'ble Delhi High Court that:-
"... the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect..."
19. It has been thus, conclusively proved that the sampled food article of ' "Boondi Laddu" contained added artificial colouring matter to the tune of 118.1 ppm, which is beyond maximum prescribed limit of 100 ppm and is unsafe for human consumption. In view of the aforesaid facts and evidences brought on record, it is seen that the prosecution has been able to establish its case beyond reasonable doubt that the accused was selling a food article which was unsafe for human consumption.
20. The accused Lekhraj is therefore, convicted for the violation of provisions of Section 26(2)(i) r/w Section 3(1)(zz)(vii)(viii) of FSS Act 2006 r/w Regulation No. 3.1.2(6)(ii) of FSS (Food Product Standards and Food Additions) Regulations, 2011, punishable u/s/ 59(i) of FSS Act, 2006.
21. Be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN COURT DATED: 11.11.2021 (AKASH JAIN) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CC No:- 51216/16 Food Safety Officer v. Lekh Raj Page No. 12 of 12