Delhi District Court
I. Prem Chand vs . State Of Haryana 2020 (1) Fac 229 ... on 10 October, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW DELHI
In the matter of :
CC No. :- 1136/21
Food Safety Officer
Department of Food Safety
Govt of NCT of Delhi
8th Floor, Mayur Bhawan,
Connaught Place, New Delhi .... Complainant
Versus
Ms. Kshma Goel
W/o Sh. Sunil Kumar Goel,
M/s Delhi Food Bazar,
Shop No. 3/8, DDA Market,
Nand Nagri, Shahdara,
New Delhi-110093
R/o B-186, Gali No. 7,
Hardev Puri, Delhi - 110093 .... FBO-cum-Proprietor
JUDGMENT
(a) Serial number of the case : 1136/21
(b) Date of commission of the offence : 10.09.2020
(c) Name of the complainant (if, any) : Ms. Suvidha, Food Safety
Officer
(d) Name of the accused person(s), : Ms. Kshma Goel
W/o Sh. Sunil Kumar Goel,
M/s Delhi Food Bazar,
Shop No. 3/8, DDA Market,
Nand Nagri, Shahdara,
Digitally signed
by NABEELA
NABEELA WALI
WALI Date: 2022.10.10
17:26:38 +0530
CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 1 of 11
New Delhi-110093
R/o B-186, Gali No. 7,
Hardev Puri, Delhi - 110093
(e) Offences complained of : Section 26/59 and Section
63 of Food Safety and
Standards Act, 2006
(f) Plea of the accused : Not guilty
(g) Date of final arguments : Concluded on 30.09.2022
(h) Date of Decision : 10.10.2022
(i) Decision : Convicted
BRIEF STATEMENT OF REASONS FOR SUCH DECISION
1. This is a complaint under Section 26/59 and Section 63 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act'). Brief facts as enumerated in the complaint are that on 10.09.2020 at about 04:30 PM, the complainant Ms. Suvidha, Food Safety Officer (hereinafter referred to as 'FSO') along with FA Sh. Sandeep Rajput visited the premises of M/s Delhi Food Bazar at Shop No. 3/8, DDA Market, Nand Nagri Shahdara, Delhi-110093, where the accused was found conducting the business of various food articles including "Badam Giri". The FSO expressed her intention to purchase a sample of Badam Giri for analysis from the vendor, to which she agreed. The sample of approx 1 kg of Badam Giri was taken from an open create bearing no lable declaration and Rs. 800/- was paid for the sample vide FBO receipt dated 10.09.2020.
2. The sample was analyzed by food analyst and vide his report no. FSS/1116/2020 dated 23.09.2020, food analyst opined that the sample is unsafe due to presence of two living and two dead insects. The Designated Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.10.10 17:26:54 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 2 of 11 Officer sent a copy of the report of Food Analyst to the FBO on 05.10.2020 and gave them an opportunity to file an appeal against the report of food analyst under Section 46(4) of FSS Act, by sending one part of sample to Referral Food Laboratory (hereinafter referred to as 'RFL'), Mysore but the FBO did not prefer any appeal against the report of the Food Analyst.
4. The FSO on conclusion of investigation, obtained consent under Section 42(4) of FSS Act, for filing the present complaint. Thereafter, the present complaint was filed against the accused namely Ms. Kshma Goel W/o Sh. Sunil Kumar Goel.
5. 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 08.09.2021. Accused appeared before the court and was admitted to bail. She was thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') on 06.06.2022 for offences punishable under Section 59(i) and 63 of FSS Act, to which she pleaded not guilty and claimed trial.
COMPLAINANT'S EVIDENCE
6. At the trial, the complainant department i.e. the prosecution examined four witnesses in support of its case.
7. Sh. A.K. Singh, Designated Officer was examined as PW-1. He proved the sanction of the Commissioner for launching the prosecution Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.10.10 17:27:07 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 3 of 11 against the accused Kshma Goel which is Ex.PW1/A and identified her signatures on Ex.PW1/A. PW-1 was cross-examined by Ld. Counsel for the accused.
8. Sh. S.P. Singh, Designated Officer was examined as PW-2. PW-2 deposed that after taking the sample, the FSO deposited 3 counterparts along with Form VI in a sealed packet with him and one part was sent to the Food Analyst for examination. PW-2 proved that receipt of the sample which is Ex.PW-2/A and identified his signature at Point A. He also proved the raid report which is Ex.PW2/B and identified his signatures at Point A. The witness was duly cross-examined by Ld. Counsel for the accused.
9. Ms. Suvidha, FSO who deposed as PW-3. PW-3 stated that after taking the sample, the sample of food article was divided into four equal parts and each counterpart containing the sample was separately marked, fastened up and sealed according to the Food Safety Act/Rule and Regulations. As per PW-3, Labels were also pasted on sample counterpart and the FBO signed all the four labels affixed on each of the four sample counterpart. PW-3 also deposed that Panchanama as well as notice in Form VA was prepared and copy of the same was given to FBO/accused. As per PW-3, one counter part of the sample bearing Code no. 11/DO-25/16304 in intact condition in a sealed packet along with copy of memo in Form-VI in a sealed cover packet along with copy of another memo in Form VI under sealed cover were sent to food analyst on 11.09.2020. The remaining counterparts of the sample along with copies of memo in Form VI in a Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.10.10 17:27:19 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 4 of 11 separate sealed packet were deposited with the Designated Officer Sh. Sompal Singh on 11.09.2020 The witness exhibited the following documents i.e.
1. Ex. PW3/A : FBO Receipt;
2. Ex. PW3/B : Notice in Form VA
3. Ex. PW3/C : Panchnama;
4. Ex. PW3/D : Letter through which the opportunity was given to the accused to prefer an appeal against the Food Analyst report;
5. Ex. PW3/E : Letter dt. 21.01.2021
6. Ex. PW3/E1 : Reply to the letter dt. 21.01.2021
7. Ex. PW3/F : Letter of FSO dt. 10.08.2021
8. Ex. PW3/F1 & : Reply to the letter dt. 10.08.2021 along Ex. PW3/F2 with documents
9. Ex. PW3/G : complaint
10.Ex.PW2/A : DO Receipt
10. PW-3 was duly cross-examined by Ld. Counsel for the accused. During cross-examination PW-3 stated that she did not see any insects in the sample at the spot. PW-3 further deposed that she had requested shop keepers to join proceedings but none had agreed.
11. Sh. Sandeep Rajput, Field Assistant was examined as PW-4. He deposed on the lines of PW-3 and identified his signatures at Point C on Ex.PW3/A, Ex.PW3/B and Ex.PW3/C and at point B on Ex.PW2/B. PW-4 was duly cross-examined wherein he stated that he did not see any live or Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.10.10 17:27:30 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 5 of 11 dead insect in the sample commodity at the time of lifting the sample.
12. Complainant's evidence was then closed and accused was thereafter, examined under Section 281 r/w Section 313 Cr.P.C. Wherein she admitted the visit of FSO as well as the sample proceedings conducted at the spot. She however stated that no efforts were made by the FSO to join any public witness. She also stated that the product was neat and clean at the time of lifting the sample. The accused however did not lead defence evidence and matter was listed for further arguments.
13. 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. Written submissions were also placed on record on behalf of accused.
ARGUMENTS
14. It was argued by Ld. SPP that the complainant has been able to establish its case against the accused beyond reasonable doubt and that the accused have not been able to rebut the findings of the report of Food Analyst. It was further argued that all the witnesses have supported the case of prosecution and no major contradiction can be seen in their testimony.
15. On the other hand, Ld. Defence Counsel for the accused has also submitted that as deposed by PW-3 and PW-4 no live insects were found at the time of lifting the sample. He furthers argued that the sample was lying in the laboratory after being received on 11.09.2020 and was Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.10.10 17:27:41 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 6 of 11 analysed on 23.09.2020 and that the insects developed in the laboratory during this period. He further argued that since the sample was lifted in the month of September the insects subsequently developed due to heat, moisture and darkness. It was thus prayed by Ld. Counsel for the accused that accused be acquitted in the present case.
16. Ld. Counsel for accused relied upon the following judgments:-
I. Prem Chand Vs. State of Haryana 2020 (1) FAC 229 Supreme Court of India.
II. A.P. Goel & Anr. Vs. The State (Delhi Admn.) 2001 (1) FAC 168 Delhi High Court.
III. Ram Sarup Vs. State of Haryana 1992(1) FAC PB & HR High Court.
IV. MCD Vs. Ram Lal 1975 FAC 297 Delhi High Court. V. State of Haryana through GFI Vs. Papinder Kumar 2012(1) FAC 40 PB & HR High Court.
VI. Sohan Lal Vs. MCD & Anr. 1975 FAC 137 Delhi High Court.
FINDINGS
17. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
18. It is to be understood that the notice framed against the Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.10.10 17:27:51 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 7 of 11 accused persons was for violation of Section 26 (1) r/w Section 3(1)(zz)(ix) of FSS Act, 2006 punishable under Section 59 and violation of Section 31(1) punishable under Section 63 of FSS Act, 2006 which are 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; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof;
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;
Section 31 deals with Licensing and registration of food business. (7) If the articles of food are manufactured, stored, sold or exhibited for sale at different premises situated in more than one area, separate applications shall be made and separate licence shall be issued in respect of such premises not falling within the same area.
Section 63 deals with Punishment for carrying out a business without licence. If any person or food business Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.10.10 17:28:01 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 8 of 11 operator (except the persons exempted from licensing under sub-section (2) of section 31 of this Act), himself or by any person on his behalf who is required to obtain licence, manufacturers, sells, stores or distributes or imports any article of food without licence, shall be punishable with imprisonment for a term which may extend to six months and also with a fine which may extend to five lakh rupees.
19. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
20. It is to be seen that the notice framed against the accused is for violation of section 26(1) of FSSA r/w Section 3(1)(zz)(ix) of the FSSA, as well as for violation of Section 31(1) of the Act. Thus, the prosecution has to establish that the sample seized was unsafe for human consumption on account of being infected or infested with insects and hence punishable under Section 59 of the Act. The prosecution is also required to prove that the food business operator was carrying on the business without any license as required under Section 31 of the Act.
21. As per the case of the complainant, the incriminating material on the basis of which the sample of "Badam Giri" has failed the examination done by the Food Analyst, is the report Ex.PW2/C as per which, the sample was unsafe due to presence of live and dead insects in the sampled food article which is not permissible as per rules.
Digitally signed by NABEELA NABEELA WALI
WALI Date:
2022.10.10
17:28:14 +0530
CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 9 of 11
22. In the present case, both PW-3 and PW-4 have clearly deposed that after lifting the sample, the same was divided into four counterparts and put into four clean and dry plastic jars, which were then sealed as per rules Ex.PW3/B and Ex.PW3/C also mentions the same and bears the signatures of accused at point A. The report of the Food Analyst also mentions that on receiving the sample on 11.09.2020 the seals were intact and identical. As per record the sample was sent for analysis the very next day i.e. on 11.09.2020. Nothing has been brought on record to show that the sample was in any way tampered before analysis. In view of the said fact there is nothing on record to doubt the report of the Food Analyst. The arguments of the Ld. Counsel that both witnesses have deposed that they did not see any live or dead insect at the time of lifting the sample was does not hold much significance as the examination by an expert holds larger value then mere observation of other persons through naked eyes.
23. Furthermore, the accused has also failed to show valid licence on 10.09.2020 as required under the Act. The copy of the licence which is Mark-1 (colly) provided by the accused has been issued on 04.02.2021 i.e. after the date of commission of the offence and is also not in the name of the store i.e. M/s Delhi Food Bazar where the accused was found conducting the business of sale of food articles. Section 31(7) requires that if the article of food is sold at different premises separate applications shall be made for the licence.
24. It has been thus, conclusively proved that the sampled food article of "Badam Giri" contained live and dead insects which is unsafe for Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.10.10 17:28:27 +0530 CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 10 of 11 human consumption, and that the accused did not have a valid licence as required under the Act, on the date of commission of the offence. 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 persons were selling a food article which was unsafe for human consumption and without having valid licence.
25. The accused persons namely Kshma Goel W/o Sh. Sunil Kumar Goel is therefore, convicted for the violation of provisions of Section 26(1)r/w Section 3(1)(zz)(ix) of FSS Act 2006 punishable u/s 59 of the Act and for violation of Section 31 of the FSS Act, 2006 punishable under Section 63 of FSS Act, 2006.
26. Be heard separately on the point of sentence.
Digitally signed by NABEELA NABEELA WALI
ANNOUNCED IN THE OPEN COURT WALI Date:
2022.10.10
DATED: 10 October, 2022 17:28:38 +0530
(NABEELA WALI)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
This judgment contains eleven pages and each page is signed by me.
Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.10.10 17:28:45 +0530 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CC No:- 1136/2021 FSO v. Kshma Goel. Page No. 11 of 11