Delhi District Court
Cc No. 5010/17 Fso vs . Surjit Singh And Ors on 15 May, 2020
IN THE COURT OF SHRI NAVJEET BUDHIRAJA,
Additional Chief Metropolitan Magistrate - I
Patiala House Courts, New Delhi
Case No. 5010/17
Date of Institution: 03.08.2017
Date of pronouncement: 15.05.2020
In re:
Food Safety Officer,
Government of NCT of Delhi,
Department of Food Safety,
8th Floor, Mayur Bhawan Connaught Place,
New Delhi-110001.
... Complainant
Versus
Sh. Surjit Singh S/o Late Sh. Mohinder Singh
M/s Amar Jyoti Restaurant,
186, Sarojini Nagar Market,
New Delhi - 110023
Sh. Tejender Singh S/o Late Sh. Mohinder Singh
M/s Amar Jyoti Restaurant,
186, Sarojini Nagar Market,
New Delhi - 110023
M/s Amar Jyoti Restaurant,
186, Sarojini Nagar Market,
New Delhi - 110023 ... Accused
CC No. 5010/17 FSO Vs. Surjit Singh and Ors
Page 1 of 9
JUDGMENT:
1. This judgement adverts to the complaint filed under section 26/59 of Food Safety and Standards Act, 2006 (FSS Act), alleging that the accused persons have violated the provisions of the FSS Act and Rules.
2. Pithily putting the complaint, on 11.08.2016 at about 3.45 p.m, the food officials consisting of Food Safety Officer (in short FSO) Sh. Ram Pratap Singh along with Field Assistant (in short FAs) Sh. Ashok Kumar reached at the premises of M/s Amar Jyoti Restaurant, 186, Sarojini Nagar Market New Delhi-110023, where the accused Surjit Singh, the Food Business Operator cum partner (FBO) was found conducting the business of said firm dealing in various food items including "Prepared Chicken Curry" for sale for human consumption. FSO disclosed his identity to accused and purchased a sample of "Prepared Chicken Curry" an article of food for analysis from accused. Before taking the sample efforts were made to get the public witness to join the sample proceedings but none came forward, then Sh. Ashok Kumar, FAs joined as a witness of sample proceedings. The sample consisted of 2 Kg of Prepared Chicken Curry which was taken after proper mixing by a clean and dry Karchhi. FSO divided the sample then and there into four equal parts by taking one originally sealed dry bottles as one counterpart. Each bottle containing the sample was separately marked, fastened CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 2 of 9 up and sealed accordingly to the Food Safety Act/Rules & Regulations. The FBOs signatures were obtained on all the four counterparts of the sample in such a manner so as to appear partly on the DO slip bearing signatures and code number of Designated Officer and partly on the wrapper of the sample plastic jar containing the sample.
3. Notice in Form VA was given to accused and a credit note dated 11.08.2016 for Rs 806 was issued to the FBO as a price of the sample at the time of sampling. Panchnama too was prepared at the spot. All the documents prepared by the FSO were signed by the FBO/accused as well as Sh. S.K. Gaur, FA and FSO.
4. At the time of sampling, the FBO did not make any request to the FSO regarding one sample counterpart to be sent to NABL Accredited Laboratory for testing under Rule 2.4.5 of the FSS Rules, 2011. Thereafter, one counterpart of the sample was sent to the Food Analyst (FA) in intact condition and the other three counterparts were deposited with Designated Officer (in short DO). Vide report dated 23.08.2016, the Food Analyst found the sample to be unsafe because it was coloured with unpermitted oil soluble synthetic colouring matter. The Designated Officer concerned sent a copy of the FA report to the FBO on 02.09.2016 for giving him an opportunity to file an appeal against the report of the Food Analyst under section 46(4) for sending one part of the sample to the CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 3 of 9 Referral Food Laboratory, if so desired by him. On appeal, one counterpart of the sample was sent by Designated Officer to Referral Food Laboratory. The Director, Referral Food Laboratory, Ghaziabad vide certificate no. 702/Oct/16-ND dated 17.10.2016 reported that on the basis of the tests performed above, the sample of Prepared Chicken Curry contravene to the requirements laid down under Regulation No. 2.12 of Food Safety and Standards (Food Products Standards and Food Additive) Regulation, 2011, as the sample showed presence of foreign substance i.e one hair.
5. It was revealed by the accused/FBO that he was the FBO- cum-Partner of M/s. Amar Jyoti Restaurant and looks after the day to day business of the firm and as such he is in charge of and responsible for the conduct of its business. Further Sh. Tejinder Singh is also the partner who is also responsible for the conduct of the business of the Firm.
6. Upon receipt of report, the DO ordered investigation which was carried out by FSO. After completion of investigation, sanction under section 30(2)(e) of the FSS Act was obtained from the Commissioner, Department of FSS Act, 2006. The complaint was then filed in the court on 03.08.2017 alleging violation of section 26(2) (i) and section 27(1) of the FSS Act, 2006 r/w section 3(1) (zz)
(x) (xi) punishable U/s 59(i) of the FSS Act, 2006.
CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 4 of 9
7. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 03.08.2017.
8. On the basis of the Report of RFL, notice was served upon the accused persons separately for commission of violation of provisions as noted above to which they pleaded not guilty and stated to have a defence.
9. During the trial, the complainant examined three witnesses i.e PW-1 Director RFL Sh. G.P Sharma, PW2 Retd DO Sh. Virender Singh and PW3 Retd FSO Sh. Ram Pratap Singh. All these witnesses deposed on the lines of the complaint. All the three witnesses were cross-examined on behalf of the accused. Complainant's evidence stood closed vide order dated 05.02.2020.
10. Statement of the accused under section 281 Criminal Procedure Code, 1973 (Cr.P.C) was recorded on 03.03.2020 wherein incriminating circumstances appearing in the evidence were posed to them. They pleaded that there is no inculpatory evidence against them. They did not lead any evidence in their defence. Thereafter, both the parties addressed their respective arguments.
CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 5 of 9
11. Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the Director, RFL report as per which the sample is unsafe and does not conform to the general provisions of a Food Article under FSS Act and Rules and it was found containing foreign element.
12. On the other hand, Ld. Defence Counsel by alluding to various Judgments of Superior Courts canvassed that no case is made out against the accused in view of contradiction between the report of FA and RFL. He also submitted written submissions in support thereof.
13. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have endowed careful consideration to the material available on record.
14. It is to be understood that the notice framed against the accused is for violation of Section 26(2)(i) of FSS Act r/w Section 3(1) (zz) (x) and (xi) of FSS Act and Regulation 2.12 to the FSS (Food Products Standards and Food Additives) Regulations, 2011 punishable u/s. 59 of FSS Act. The prosecution has to establish that the purchaser had demanded a food article of a specific nature, CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 6 of 9 substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be.
15. Section 59 (i) of FSS Act 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 and article of food for human consumption which is unsafe shall be punishable - 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.
16. The sampled food article Chicken Curry was not a standardized food article and would be thus a prepared food article under FSS Act, 2006 and Rules 2011. Both the reports of FA and Director, RFL show that the samples had been tested as prepared food article only.
17. As regards the aspect of visiting M/s Amar Jyoti Restaurant by FSO PW3 and FAs on the given date and purchase and sampling of Chicken Curry and further testing of the same, there is no challenge on behalf of accused persons. The controversy has narrowed down to whether the food sample Chicken Curry can be said to be unsafe as opined by report of RFL Ex. PW1/A. To fortify CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 7 of 9 the case on this aspect, prosecution has examined PW 1 Sh. G.P Sharma, Director RFLwho deposed that on 20.06.2016 he was posted at RFL Ghaziabad as Director. On that day sample food article was received which was analyzed between the period from 21.09.2016 to 13.10.2016 and report was prepared Ex. PW1/A. The sample was opined to be unsafe because of presence of hair. Though his testimony has gone un-rebutted, nonetheless, Court is duty bound to see whether the report Ex PW1/A is worth according any credence. Considering the report in totality, this Court is of the view that merely observing that the sample contained one hair is not sufficient to advance the cause of prosecution. The report is bereft of description of the hair, whether the same was Human hair or animal hair, the size and other details pertaining to hair. It can be descried from the report that on physical inspection, the sample was found containing the hair. Thus, it cannot be the case that details of the said foreign element could not have been given. The details qua the hair could have emboldened the report so as to make it credible.
18. Moving further, it is pertinent to point out that form VA Ex. PW3/B which contains the details of food does not say that the sample article was containing any hair. As per the deposition of PW 3 when sample article was lifted, FSO must have an opportunity to have a glance at it physically but no such presence of hair was CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 8 of 9 noted in the form. On this aspect, upon questioning by Ld. Counsel for the accused during cross examination, PW 3 had in fact stated that he physically observed the sample commodity with naked eye at the time of sampling. Furthermore, the report of FA Ex PW2/C also does not demonstrate the presence of any hair. Though it is trite that report of RFL is to be accorded primacy over the report of FA, nevertheless, in the factual context of the case it can be taken note of.
19. Thus, on the touchstone of above discussion and considering the arguments advanced by Ld. Counsel for the Accused persons, I hold that the complaint of the prosecution suffers from infirmity and report of RFL Ex. PW1/A does not inspire confidence so as to conclude that sample food article "Prepared Chicken Curry" was found to be unsafe, thus benefit of doubt goes in favor of the accused persons. Consequently, they stand acquitted of the charges served upon them by way of notice under section 251 Cr.PC.
Announced on 15.05.2020 (NAVJEET BUDHIRAJA) ACMM-I (New Delhi), PHC CC No. 5010/17 FSO Vs. Surjit Singh and Ors Page 9 of 9