Delhi District Court
Da vs . Prit Pal Singh Page 1/12 on 15 January, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 153/04
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Prit Pal Singh S/o Sh. Uttam Singh
M/s Tea Center
Shop No. 4932, 6 Tooti Chowk,
Paharganj, New Delhi110055
R/o 650, 6Tooti Chowk, Paharganj
New Delhi.
...........Vendorcum
Proprietor.
Serial number of the case : 153/04/14
Date of the commission of the offence : 13/04/04
Date of filing of the complaint : 12/08/04
Name of the Complainant : Sh. M. K. Gupta, Food Inspector
Offence complained of or proved : Section 2 (ix) (k) of PFA Act, 1954
CC No. 153/04
DA Vs. Prit Pal Singh Page 1/12
r/w Rule 32 of PFA Rules, 1955
which is punishable u/s 16 (1) (a) of
PFA Act 1954 r/w Section 7 of the
PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 15.01.2016
Judgment announced on : 15.01.2016
Brief facts of the case
1.In brief the case of the prosecution is that on 13.04.2004 at about 05.00 p.m., Food Inspector M. K. Gupta and Field Assistant Sh. Nath Ram, under the supervision and directions of SDM/LHA Sh. Bishan Chandra visited the premises of M/s Uttam Tea Center, Shop No. 4932, 6 Tooti Chowk, Paharganj, New Delhi110055 where accused Prit Pal Singh who was the vendorcumproprietor was found present conducting the business of sale of various food articles including Lal Mirch Powder, for sale for human consumption and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected/ purchased the sample of Lal Mirch Powder.
2. During the course of investigation it was revealed that Sh. Prit Pal S/o Sh. Uttam Singh was the vendorcumproprietor of M/s Uttam Tea Center and the In charge of and responsible for the day to day conduct of the business of the said shop.
3. It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was misbranded because there is complete violation of Rule 32 (e) and (i). However, Mirch Powder CC No. 153/04 DA Vs. Prit Pal Singh Page 2/12 confirmed to standard. Accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ix)(k) of PFA Act 1954 and Rule 32 (e) and (i) of PFA Rules 1955 which is punishable under section 16 (1) (a) read with Sec. 7 of the PFA Act, 1954
4. After the complaint was filed, the accused was summoned vide order dated 12.08.2004.
5. Notice for violation of provision of Section 2 (ix) (k) of PFA Act, 1954 r/w Rule 32 of PFA Rules, 1955 which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act was framed against the accused vide order dated 24.07.2006 to which accused pleaded not guilty and claimed trial.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 20.07.2015 wherein the accused claimed himself to be innocent. Despite opportunity, accused did not lead any defence evidence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. N.K. Gupta deposed that on 13.04.2004, he alongwth Sh. Nathu Ram, FA and other staff under the supervision and direction of SDM/LHA, Sh. Bishan Chandra visited the M/s Uttam Tea Centre, Shop No. 4932, 6 Tooti Chowk, Paharganj, Delhi, where accused Pritpal Singh was found conducting the business of said shop including Lal Mirch Powder, a food article for human consumption for sale. He deposed that he disclosed his identity and intention for purchasing the sample of Lal Mirch Power ready for sale to which accused agreed. He deposed that before taking the sample he tried his best to procure some public witnesses by requesting some neighbourers, customers and passersby etc. to join the sample proceedings CC No. 153/04 DA Vs. Prit Pal Singh Page 3/12 but as none agreed for the same, on his request FA Nathu Ram agreed and joined as witness. He deposed that at about 5:30 pm, he purchased 3 sealed packets of 250 gms each of Lal Mirch Powder bearing label declaration, which were meant for sale on payment of Rs. 60/ vide vendor's receipt Ex.PW1/A. He deposed that he divided the sample into three equal parts by containing one sealed packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that Notice in Form VI Ex.PW1/B was prepared at the spot and the declaration of the label was reproduced in the Form VI and copy of it was given to the accused as per his endorsement at potion A to A bearing his signatures at point A. He deposed that Panchnama Ex.PW1/C was prepared. He deposed that all these documents Ex.PW1/A to Ex.PW1/C were read over and explained to the accused in Hindi and after understanding the same accused signed at point A and witness signed at Point B and then he signed at point C, respectively. He deposed that accused also furnished his statement Ex.PW1/D at the spot stating that he is responsible for day to day affairs of M/s Uttam Tea Centre and gave the photocopy of the MCD License Mark X. He deposed that one counterpart of the sample with a copy of Memo VII and other copy of Memo VII in a sealed cover separately was deposited on 15.04.2004 with the Public Analyst. He deposed that Copy of the receipt is Ex.PW1/E. He deposed that the two counterparts of the sample alongwith two copies of memo of Form VII in a sealed packet were deposited in intact condition with the LHA on 15.04.2004 vide receipt Ex.PW1/F bearing my signature at point A with the intimation that one counterpart with the PA. He deposed that all the copies of memo of Form VII bore the same seal impression with which the sample in question was sealed. He deposed that the PA report Ex.PW1/G was received according to which the sample was misbranded and the label was without declaration of batch number and word 'Best Before' as mentioned therein at portion X. CC No. 153/04 DA Vs. Prit Pal Singh Page 4/12
8. He deposed that during investigation, he sent a letter Ex.PW1/H to STO Ward No. 4 and as per its reply at portion A, no such firm was found registered with Sales Tax and vendor was found to be proprietor of M/s. Uttam Tea Centre. He deposed that then, on completion of investigation, the complete case file alongwith all statutory documents were sent through LHA/SDM to the then Director (PFA), Shri V.K. Singh who after going through the case file, applied his mind and gave his consent for prosecution Ex.PW1/I which bears his signatures at point A. He deposed that the complaint Ex.PW1/J was filed in the Court by him bears his signatures at point A. He deposed that earlier, FI Sh. V.P.S. Chaudhary had also taken the sample of 'Chillies Power' from the vendor on 09.08.1991 and a warning was issued to the vendor by the department, as also mentioned in Sanction Ex.PW1/I. He deposed that the intimation letter Ex.PW1/K bearing the signatures of SDM/LHA at point A was sent along with the copy of PA report by registered post as well as personally served upon the vendor vide acknowledgment at point A.
9. During his cross examination, he admitted that the sample packets neither packed nor sealed in his presence. He stated that there was a label on the sample packet but the same as not put in his presence. He stated that the size of the packet was about 45 x 45 inches. He stated that the packet was completely filled. He stated that the packet were originally sealed condition but no separate sealing material such as lakh was used. He denied the suggestion that sample packets were only closed and not sealed. He stated that without tempering, the sample packets could not be resealed. He stated that vendor disclosed in his statement Ex.PW1/D that the sample packets were of same lot. He denied the suggestion that the sample packets were of different lot. He denied the suggestion that the sample was taken in violation of Rule 14 and 22A of PFA Rules. He stated that Director PFA accorded CC No. 153/04 DA Vs. Prit Pal Singh Page 5/12 consent and authorised him to file the present complaint being concerned Food Inspector of subdivision, therefore, he instituted the complaint. He admitted that in the complaint in Para No. 5, it is mentioned that Director PFA has authorised to file the complaint but the word 'me' is not mentioned. He denied the suggestion that if the packer writes on the label, use within 9 months and best before 9 months conveys the same meaning. He stated that earlier, vendor was issued warning in respect of violation of Rule 32 (a)(e) & (f). He stated that PA Report was enclosed with the intimation letter wherein the violation was mentioned. He stated that in his presence, vendor did not sell any sample packets to any customers. He stated that he is not aware whether violation of batch number is held ultra virus by the Hon'ble Supreme Court.
He stated that earlier warning was issued by the earlier registered post but he has not brought the original. He denied the suggestion that no warning was issued earlier registered post but he has not brought the original. He denied the suggestion that no warning was issued earlier to the vendor or that he is deposing falsely. He stated that the contents of Lal Mirch Powder in the sample packets were visible. He denied the suggestion that he has have filed the present complaint case without the proper investigation.
10. PW3 Sh. Nathu Ram, Field Assistant and PW4 Sh. Bishan Chandra, the then SDM/LHA, deposed on the same lines as deposed by PW1 in his examination in chief.
11. The prosecution also examined PW2 and PW5 for proving the earlier warning dated 19.12.1991 issued to accused for violation of Rule 32 of PFA Rules. PW2 is Food Inspector V.P.S. Choudhary. In his evidence, he stated that he had also CC No. 153/04 DA Vs. Prit Pal Singh Page 6/12 lifted one sample of chillies powder from accused on 09.08.1991 and a warning for first violation of Rule 32 was issued to the accused in that case. In his cross examination, he stated that he does not remember the date when warning for first violation of Rule 32 was issued by the department. He denied the suggestion that no warning for violation of Rule 32 was issued to the vendor. He admitted that there was a policy of the Government to issue warning for violation of Rule 32 only. He further stated that in so many cases warning for first violation of Rule 32 was issued by the Department.
12. PW5 is Mrs. Rita Chawla, Health Clerk, Food Safety Department, Delhi. She brought the original office copy of warning letter dated 19.12.1991 as Ex.PW5/A. She deposed that record of sending the warning letter through registered post to the accused is not traceable, now, hence the original Postal Dak Register cannot be produced in the Court. She stated in her crossexamination that she cannot personally admit or deny that any warning letter was served or not upon the accused.
13. This so far is the evidence in the matter.
14. I have heard the arguments advanced at bar by Ld. Defence Counsel as also Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
15. Ld. Counsel for accused has pleaded for acquittal of accused. It is CC No. 153/04 DA Vs. Prit Pal Singh Page 7/12 argued by him that Food Department formulated a policy way back in the year 1985 vide policy No. F.6(228)/851/ENF/PFA Dated 29.09.1985. The said policy provides that in case of first violation of Rule 32 of PFA Rules 1955 (hereinafter referred to as PFA Rules), the defaulter must be given a written warning at the first instance drawing its attention to Rule 32 of PFA Rules, providing for particulars to the exhibited on sealed container or package. Only in the event of said offence being repeated even after giving written warning, the accused should be prosecuted. The sample confirmed to standards in the present case and it is a case of only misbranding for violation of Rule 32 of PFA Rules, by the accused and he was not given the benefit of written warning in terms of aforesaid policy without any plausible reason. It is argued on this count only, the accused is entitled to be acquitted. Further, it is argued that the prosecution of accused is not sustainable U/Sec. 32(e) of PFA Act, in view of the judgment titled as Dwarka Nath Vs. State AIR 1971 SC 1844. It is also argued that the prosecution has also not succeeded in proving violation of Rule 32 (i) of PFA Rules by the accused. Reliance is placed on judgment M/s. Pantaloon Retail (India) Ltd. and Others Vs. Govt. of NCT of Delhi, 2013 (1) FAC, 162 by Ld. Counsel for accused.
16. On the other hand, Ld. SPP for the complainant has argued that the accused is not entitled to the benefit of the aforesaid policy as he was not found for the first time violating Rule 32 of the PFA Rules. He was also earlier given the written warning in the year 1991 for violation of Rule 32 of the PFA Rules. Despite the same, he repeated the practice of misbranding and thus, liable to be convicted. Moreover, it is argued that there is a clear violation of Rule 32 (e) & (i) of the PFA Rules by the accused, in view of the report of Public Analyst.
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17. I have carefully considered the submissions and perused the record meticulously.
18. Ld. SPP for the complainant has not disputed that the policy bearing No. F.6 (228)/851/ENF/PFA Dated 29.09.1985 was in force at the time of lifting of sample i.e. on 13.04.2004 in the present case. The Hon'ble High Court of Delhi in judgment of S.S. Gokul Krishnan and Ors. Vs. State through Food Inspector (PFA) Government of NCT of Delhi, 2009 (1) FAC 132; accorded the benefit of the aforesaid policy to the accused who was found contravening Rule 32 (e) of PFA Rules for the first time and was deprived of the benefit of first warning ignoring the aforesaid policy. The said judgment of S.S. Gokul Krishnan (Supra) was thereafter followed by Hon'ble High Court of Delhi in M/s. Hindustan Unilever Vs. State (GNCT of Delhi) & Ors 2011 (1) FAC 183 and M/s. Gupta Tea Traders & Ors. Vs. State 2012 (2) FAC
415.
19. Here, it would be apposite to reproduce the relevant policy. It reads thus: "2. It would be noted from the perusal of the above Rule that an elaborate procedure has been prescribed for labelling sealed contents indicating therein the code number date of packing etc. However, it has been noticed that in quite a few cases contents of the sealed article of food was found conforming to the standard prescribed under the Rules, whereas the labelling done on the container or the packet was deficient in certain respect and was not in conformity with the provision contained in rule 32 of the PFA Rules, 1955. After detailed discussion on the subject, it was appreciated that in case the contents of the sealed packets or container conform to the standard laid down under the PFA Rules, deficiency with regard to Rule 32 which pertains to the particulars of the labelling on the container or packet, was only a technical offence, though it attracted Rule 32 and there was breach of this Rule in some respect in the course of packing the article of CC No. 153/04 DA Vs. Prit Pal Singh Page 9/12 food. In such cases there was unanimous view during the course of discussion that the party effected may be given a written warning drawing his attention to Rule 32 which provides for labelling particulars to be exhibited on the sampled Tin or the packet and in case the practice is repeated after a written warning to the party concerned, the party committing the offence second time should be prosecuted. However, this could not apply in case where the contents of the sealed packed or container are not conforming to the prescribed standard and hence are adulterated. In such cases, prosecution would be launched both for adulteration and for breach of Rules 32. After the Secretary (Medical), as the consenting Authority, has approved the above proposal all the pending cases would be disposed of accordingly."
20. The first time offender for violation of Rule 32 of PFA Rules, is entitled to benefit of said policy. Ld. Counsel for accused has stated that the accused is a first time defaulter and was not issued any prior warning giving the benefit of the said policy on any previous occasion. Ld. SPP for complainant has contended the contrary. The prosecution has examined PW2 and PW5 in order to prove the earlier written warning dated 19.12.1991 issued to accused for non compliance of Rule 32 of PFA Rules by the accused. On perusal of testimony of PW2, it is found that he simply stated in his evidence that he lifted sample of Chillies Powder from accused in the year 1991 and he was issued warning for first violation of Rule 32 of PFA Rules. He even failed to disclose the date of said warning. He did not prove any documentary evidence to corroborate his oral evidence. The evidence of PW5 reveals that PW5 only produced the original of letter bearing No. F.6(224)/91/PFA/Enf.4268 Dated 19.12.1991 (Ex.PW5/A) by virtue of which accused was warned for non compliance of labelling provisions under Rule 32 of PFA Rules. However, the prosecution has not placed any documentary/ oral evidence for proving dispatch of Ex.PW5/A to the accused or receipt of the same by the accused. No postal receipts, Regd. AD Card or postal Dak Register has been produced before the Court.
CC No. 153/04 DA Vs. Prit Pal Singh Page 10/12
21. The aforesaid policy provided for giving written warning to the first time offender for violation of labelling requirements so as to draw his attention to Rule 32 of PFA Rules. The mere issuance of the written warning does not serve any purpose unless the same is sent/ dispatched to the accused as per legally prescribed mode. The prosecution miserably failed to prove the dispatch of the written warning i.e. Ex.PW5/A to the accused and there is also no evidence on record that the same was received by the accused. The dispatch or receipt of Ex.PW5/A by accused is thus not proved on record. In view of the same, the purported earlier warning cannot be taken into account and the accused is entitled to written warning in the present case before launching of the prosecution against him for the offence of misbranding.
22. Moreover, the Hon'ble Supreme Court in judgment of Dwarka Nath (Supra) had already declared the Rule 32 (e) of PFA Rules requiring batch number or code number on label of container to be ultra virus the rule making power of Central Government and declared it to be invalid. The said judgment was recently followed by Hon'ble Supreme Court of India in NCT of Delhi Vs. Mohinder Singh Crl. Appeal No. 1470/2011 decided on 27.08.2015. So the accused was not obliged to mention the Batch Number or Code Number on label of container on account of the aforesaid judgment.
23. The Public Analyst vide her report dated 27.04.2004 also found that the sample is also misbranded because there is violation of Rule 32 (i) of PFA Rules. The notice in Form 'VI' bears reproduction of label declaration which reads as follows: LHA Code No. 13/LHA/7930 CC No. 153/04 DA Vs. Prit Pal Singh Page 11/12 Details of Food Lal Mirch Power (For Sale) Taken as three sealed polythene packets of 250 gms each bearing following identical label declaration :
A UTTAM's Contents : Lal Mirch Powder Net. Wt. 250 gm M.R.P. Rs. Rs. 20 (Incl. of all taxes) Packed 42004.
(use within 9 months) Uttam Tea Centre 4932 6 Tooti Chowk, Paharganj Phone 23584114 The relevant portion of Rule 32 (i) of PFA Rules are reproduced herein below :
32. Every prepackaged food to carry a label. xxxx xxxx xxxx xxxx
(i) The month and year in capital letters upto which the product is best for consumption, in the following manner, namely : "BEST BEFORE...... MONTHS AND YEAR"
OR "BEST BEFORE......MONTHS FROM PACKAGING" OR "BEST BEFORE......MONTHS FROM MANUFACTURE"
OR "BEST BEFORE UPTO MONTH AND YEAR......"
OR "BEST BEFORE WITHIN...... MONTHS FROM THE DATE OF PACKAGING / MANUFACTURE"
xxxx xxxx xxxx xxxx
24. On perusal of Form VI as reproduced above, it is found that sealed packet bears the month and year of packing and the expression "use within 9 months". It is sufficient to inform the consumer that the article of food is to be used within 9 months from the date of packing i.e. April, 2004. In a similar case of alleged misbranding, the Hon'ble High Court of Delhi in S.S. Gokul Krishnan (Supra) quashed the proceedings under Rule 32 (i) of PFA Rules. In the said case, the CC No. 153/04 DA Vs. Prit Pal Singh Page 12/12 declaration contained "Best Before 9 Months From Date of Packing" and date of packing was not given and only month and year of manufacturing was given. The Hon'ble High Court of Delhi observed as under : "19. In the instant case, declaration under Rule 32(i) is 'best before' 9 months from packing. Since the month and year of manufacture of the food article i.e. processed cheese is clearly disclosed on the packet, it cannot be said that the consumer would be mislead from the terms 'best before 9 months from packing'. The consumer, under these circumstances, would be clear in his mind to consider the best before from the date of manufacturing. The processed cheese conformed the standard on analysis.
20. Prime facie, therefore, it cannot be said that the sample was misbranded because misleading statement was given on the label with respect to best before date. The consumer is provided with sufficient information as required under the Act and Rule 32 to know about the genuineness of the product and also to enable him to make a decision whether to purchase the said food article or not. Even if, the words 'best before 9 months from manufacturing or packing' are not contained on the packet; instead the words best within 4 months are mentioned on the packet, it would not in any way mislead the consumer. Hence by no stretch of imagination the product could be termed as misbranded. There is no adulteration in the product. As per the information disclosed on the packet, it cannot be said that there is misbranding, only because the date of packaging has not been disclosed specially when the month and year of manufacturing is specifically disclosed.
25. In the present case also the month and year of packing is clearly displayed on sealed Lal Mirch Powder Packets alongwith expression "Use within 9 months". The words "Best Before" and "Use Within" convey the same meaning. The facts of the present case are squarely covered by the law as propounded in S.S. Gokul Krishnan judgment (Supra). So, the prosecution has not successfully proved the violation of Rule 32 (i) of the PFA Rules by accused.
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26. The judgment of K. Ranganatha Reddiar Vs. The State of Kerala, Crl. Appeal No. 141 of 1967 SC, relied upon by Ld. Counsel for accused is not applicable in the present case as it was dealing with language used on the cash memo. The judgment of Mahashian Di Hatti Pvt. Ltd. Vs. State (Delhi Administration), Cr. Revision No. 338 of 1980 DHC, relied upon by Ld. Counsel for accused, is also not germane as in the said case, Hon'ble High Court of Delhi dealt with the scope and applicability of clause 32 (g) of PFA Act.
27. In view of the aforesaid discussions, the accused Prit Pal Singh is acquitted for offence punishable U/Sec. 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act for violation of Section 2 (ix) (k) of PFA Act, 1954 read with Rule 32 of PFA Rules, 1955.
Announced in the open Court [PRIYA MAHENDRA] on 15.01.2016. ACMMII/ New Delhi CC No. 153/04 DA Vs. Prit Pal Singh Page 14/12