Delhi District Court
Da vs Kamal Kumar & Ors on 30 July, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II
Patiala House Courts, New Delhi
CC No. 39844/2016
Date of Institution : 02.12.2003
Date of reserving judgement : 07.07.2018
Date of pronouncement : 30.07.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Kamal Kumar
S/o Late Sh Damodar Dass
M/s Kamal Store, D-1,
Main Road, Jhilmil, Delhi - 95
R/o D-1, Main Road,
Jhilmil, Delhi - 95
A-2) Sh Satya Parkash Gupta
M/s Maa Bhagwati Trading Co.,
27/94 A, Amar Ashram School,
Jwala Nagar, Shahdra,
Delhi - 32 .
R/o 27/94 A, Amar Ashram School,
Jwala Nagar, Shahdra,
Delhi - 32 .
A-3) Sh Sanjay Gauri
S/o Sh Rajinder Kumar
M/s Jyoti International,
368, Dhaka Ext, Indira Vikas Colony,
Delhi - 9
R/o B 358, Sudershan Park,
CC No. 39844/2016 Page No. 1/12
DA vs Kamal Kumar & ors
Delhi
A-4) Sh Hemant Kumar
S/o Sh Ashok Kumar Ghai
M/s Jyoti International,
368, Dhaka Ext, Indira Vikas Colony,
Delhi - 9
R/o 299, Hakikat Nagar,
Kingsway Camp, Delhi - 9
A-5) M/s Jyoti International,
368, Dhaka Ext, Indira Vikas Colony,
Delhi - 9. ..... Accused person
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFA Act), alleging that the accused have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 04.02.2002 at about 6.00 pm, the Food Inspector (herein after referred to as FI) Sh. S.B. Sharma and Sh. Ranjeet Singh under the supervision of Local Health Authority (herein after referred to as LHA)/SDM Sh. S.C. Tyagi visited the premises of M/s Kamal Store, D-1, Main Road, Jhilmil, Delhi - 95, where the accused No. 1 Kamal Kumar was found conducting the business of above said shop where various food articles including packed drinking water bottles bearing identical label declaration.
CC No. 39844/2016 Page No. 2/12DA vs Kamal Kumar & ors The Food Inspector disclosed his identity and expressed his intention to purchase a sample of "Packed Drinking Water" from the vendor for analysis. The sample consisted of 1 litre X 9 sealed plastic bottles of Packed Drinking Water bearing identical label declaration. The sample was taken under the supervision / direction of Sh S.C. Tyagi SDM/LHA. The sample was taken as such in originally sealed condition. The Food Inspector divided the sample then and there into three equal parts so that three sealed bottles constituted one counter part. Each bottle containing the sample was separately, fastened, marked and sealed according to PFA Act & Rules. The vendor's signature were obtained on the LHA slip and the wrapper of the sample counter parts. Notice was given to the accused No. 1 Kamal Kumar and price of the sample was also given to him vide vendor receipt dated 04.02.2002. Panchanama was prepared at the spot. All the documents prepared by FI were signed by the accused No. 1 Kamal Kumar and the other witness Sh S.P. Singh, F.I. Before taking sample proceeding efforts were made to join public witnesses but none came forward, as such Sh S.P. Singh, FI was joined as witness.
3. One counter-part of the sample was also sent to Public Analyst, Delhi bearing LHA Code number SCT/LHA/SDM/001030 in intact condition and two counter-parts were deposited with the LHA/SDM in intact condition. Public Analyst analysed the sample and found the same to be adulterated and misbranded. The report of the Public Analyst is as follows:-
"The sample is adulterated because it contains a large no. of yeast and mould count which should be absent and aerobial CC No. 39844/2016 Page No. 3/12 DA vs Kamal Kumar & ors microbial count exceeding the maximum prescribed limit. It is also misbranded, as there is violation of Rule 32 e,f and i. The sample is being sold without ISI certification(violation of Rule 49(28)."
4. It is the case of the complainant that accused No. 1 Sh. Kamal Kumar was the Vendor-cum-proprietor of M/s Kamal Store, D-1, Main Road, Jhilmil, Delhi - 95 (Delhi), at the time of sampling. The vendor has purchased sample commodity from M/s Maa Bhagwati Trading Co. 27/94 A, Amar Ashram School, Jwala Nagar, Shahdra, Delhi - 32. M/s Maa Bhagwati Trading Co. is a proprietorship concern in the name of Sh Satya Parkash Gupta as such he is incharge of and responsible for day to day conduct of the said shop. M/s Maa Bhagwati Trading Co has purchased the sample commodity from accused No. 5 M/s Jyoti International, 368, Dhaka Ext, Indira Vikas Colony, Delhi - 9 which is a partnership concern having two partners i.e. accused No. 3 Sanjay Gauri and accused No. 4 Hemant Kumar, as such both partners are incharge of and responsible for day to day conduct of the said business. Being a partnership firm M/s Jyoti International is also liable.
5. Thereafter on completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 02.12.2003 alleging violation of Section 2(ia)(b)(e)(l)(m) of the PFA Act, 1954, and the provision of Rule 32(e)(f)&(i) & Rule 49(28) of PFA Rules 1955, as punishable section 7/16(1)(a) of PFA Act by the accused person.
6. As the complaint was filed in writing by a public servant, recording CC No. 39844/2016 Page No. 4/12 DA vs Kamal Kumar & ors of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 02.12.2003. Based on the report of the PA, notice was framed against the accused for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Section 2(ia)(b)(e)(l)(m) of the PFA Act, 1954 and Rule 32(e)(f)&(i) & Rule 49(28) of PFA Rules 1955, to which accused pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined four witness in support of its case i.e. PW-1 SDM/LHA Sh S.C. Tyagi, PW-2 FI Sh Ranjeet Singh and PW-3 FI Sh S.B. Sharma and PW-4 FI S.P. Singh. PW- 3 and PW-4 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh S.C. Tyagi. These witness narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 9x1 liters of sealed plastic bottles of "Packed Drinking Water" bearing label declaration, dividing the sample into three equal parts by taking original sealed bottle as such in one counterpart and each counterparts containing the sample, fastened, marked and sealed and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex.PW-1/A, Notice in form VI Ex. PW-1/B, Panchnama Ex.PW-1/C, notice under section 14 A Ex.PW1/D and Raid Report Ex.PW1/C1. Thereafter, two counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E with the intimation that one counterpart of the same in intact condition has already been deposited with PA Ex.PW1/F. Thereafter PA Report CC No. 39844/2016 Page No. 5/12 DA vs Kamal Kumar & ors Ex.PW1/G was received according to which the sample was found adulterated as well as misbranded. During investigation, PW-2 FI Ranjit Singh sent a letter to vendor vide Ex. PW2/A and received reply vide Ex. PW2/B. PW-2 FI Ranjit Singh sent a letter Ex. PW2/C to STO, Ward No. 82 and received its reply stating that no such firm in the name of M/s Kamal Store was registered with Sales Tax. PW-2 FI Ranjit Singh sent a letter Ex. PW2/D to M/s Maa Bhagwati Trading Company and received its reply vide Ex. PW2/D stating that the said firm had purchased the sample commodity from Jyoti International. Along with reply, M/s Maa Bhagwati Trading Company also sent photocopy of bill of purchase mark Y and photocopy of Ration Card mark Z. FI also sent a letter Ex. PW2/B2 to STO, Ward No. 82 and received its reply stating that accused Satya Prakash Gupta was the proprietor of M/s Maa Bhagwati Trading Company. FI also sent a letter Ex. PW2/E to STO, Ward No. 72 and received its reply stating that that no such firm in the name of M/s Jyoti International was registered with Sales Tax. Accused Sanjay Gauri also furnished statement Ex. PW2/F to FI. Thereafter on completion of the investigation, the entire case file alongwith all the documents were sent through LHA/SDM to then Director PFA Sh K.S. Wahi, who after going through the case file, applied his mind and gave his consent for prosecution Ex.PW1/H. Thereafter, the present complaint Ex.PW1/I was filed before this Court. Then intimation letters Ex.PW1/J alongwith copies of PA's Report were sent to the accused persons through registered post Ex.PW1/K. All the witnesses were duly cross examined by the Ld Defence Counsel.
8. Statement of the accused under section 313 CrPC were recorded CC No. 39844/2016 Page No. 6/12 DA vs Kamal Kumar & ors on 27.10.2014 wherein the accused denied the allegations and pleaded innocence. Thereafter the matter was fixed for defence evidence.
9. In their defence, the accused No. 1 Kamal Kumar and accused No. 2 examined as DW-1 and DW-2. Accused Amit Chandok and Virender Monga examined themselves as DW-3 and DW-4. Thereafter, defence evidence was closed and the matter was fixed for final arguments.
10. In a criminal trial, the burden is on the complainant / prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by leading cogent and trustworthy evidence. However, if the accused has any defence, then the burden to prove that defence lies upon the accused.
11.The present case is for adulteration & misbranding of a food article i.e. Mineral Water Bottles. As per prosecution the sample was misbranded because there was a violation of Rule 32 (e)(f)(i) as well as Rule 49(28).
12. Regarding the allegations of misbranding, the defence has relied upon the judgment of Hon'ble High Court of Delhi in S.S. Gokul Krishanan & Others vs State 2009(1) FAC 132 to argue that there was a policy of the complainant department of 1985 numbered as Policy No F6(228)/85/ENF/PFA wherein a decision was taken to give a written warning to the offenders with regard to CC No. 39844/2016 Page No. 7/12 DA vs Kamal Kumar & ors any deficiency in respect of Rule 32 of the PFA Act. Although this policy was withdrawn by order No. 5/07 dated 14.09.2007 but since this case was filed December 2003, the accused are covered by aforesaid policy. Although, no such policy has been placed or proved on record by other side and this policy was further withdrawn as per the aforesaid judgment on the ground that Section 20 of the PFA Act does not confer any such power on the consenting authority to issue such warning to the vendors found violating Rule 32 of the PFA Act.
13. Be that as it may, PFA Act or Rules does not provide any such warning but since the benefit of this policy has been given in the case of S.S. Gokul Krishnan (referred above), I feel myself bound by the ratio of that case. Therefore as far as offence of misbranding is concerned, since, it is not the case of the prosecution that the accused were given earlier a warning and despite that they continued with the offence, the accused are given the benefit of this policy and therefore they shall not be liable for violation of Rule 32 and 37 of PFA Rules. The judgment of Gokul Krishnan (supra) has also been followed in the judgment of M/s Bunge India Pvt Ltd & Others vs State & Another Crl.MC 439/2008 dated 20.01.2011 and recently in in Hello Minerals Water PVT LTD & Ors vs State CRL.MC.224/2016 dated 10.01.2018.
14. Now coming to the issue of adulteration, the PA report has found the drinking water not as per standard because it contains a large number of yeast and mould count which should be absent and aerobial microbial count exceeding the maximum prescribed limit.
CC No. 39844/2016 Page No. 8/12DA vs Kamal Kumar & ors The aerobic microbial count was found as 82/ml at 37 Degree Celsius for 24 hours. The standard prescribed for packed drinking water is under A.33 of the Appendix B of PFA Rules. According to this Rule, the yeast and mould counts should be absent and the aerobic microbial count shall not exceed 100 per ml at 20oC to 22oC in 72 h on agar-agar or on agargelatin mixture, and 20 per ml at 37oC in 24 hour on agar-agar. In the present case, the aerobic microbial count was found to be 82/ml at 37oC for 24 hours. Therefore, the packaged water was definitely not as per the standard prescribed for it under article A.33 of PFA Rules.
15. The defence of accused no. 1 is that he has purchased the packaged water from accused no. 2. Accused No. 1 is the vendor from whom the food inspector had purchased the sample commodity i.e. packaged water. At the time of sampling, the accused No. 1 Kamal Kumar has told to the food inspector that he has purchased these water bottles from accused No. 2 Satya Parkash Gupta. This fact has been admitted by the witness PW-1 SDM Sh S.C. Tyagi and PW2 FI Ranjeet Singh that the accused has shown the bill Mark X at the spot. However, PW2 FI Ranjeet Singh stated in his cross examination that the accused No. 1 has shown only the photocopy of the bill Mark X and not the original. The original of bill Mark X is not on record nor is being produced by accused no. 1 despite the fact that he has examined himself as a defence witness. Therefore, the bill mark X is not proved as per law despite his admission that he purchased the water bottle from accused no. 2 in his letter Ex.PW2/B.
16. Although, the accused No. 1 is unable to prove any CC No. 39844/2016 Page No. 9/12 DA vs Kamal Kumar & ors bill/invoice/warranty under section 19(2) of PFA Act but there is an admission by accused No. 2 in his letter Ex.PW2/D1 that he purchased these water bottles from accused no. 5. regarding accused no.3 & 4, there is no evidence on record that they have sold these water bottles to accused no.2. the bill mark Y on which the accused no. 2 has relied is again a photostate copy and again is not admissible in evidence. Further, this bill also does not pertains to accused No. 2 and is therefore of no help to him. The accused no. 2 when examined himself as a defence witness deposed that the salesmen of different companies used to come to him for selling water bottles. He purchased water bottles from them against proper bill and then supply them to the dealers. The accused No. 2 has not placed on record any bill to prove that he purchased the water bottles from accused No. 3 to 5. On the contrary, he said that he purchased water bottles from the salesman.
17. Therefore, it would be no defence available to the accused no.1 and 2 to claim that they were not the manufacturer of the commodity in question or that they were only a retailer using the same or supplier. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of 'sale' under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which the accused no.1 and 2 can claim on this ground is under section 19(2) of PFA Act which would apply only if they are able to show that they had purchased the product against a warranty and CC No. 39844/2016 Page No. 10/12 DA vs Kamal Kumar & ors had been selling the product in the same manner as purchased by him.
18. Even if the documents relied upon by them are accepted, that would not come to their rescue. There is nothing to connect the lifted sample of water bottles to the water bottles allegedly purchased through these documents bill Mark X and mark Y.
19. Even otherwise, the bill produced by them do not qualify to give warranty to the accused under section 19(2) of the PFA Act. For that, specific language is to be used as per Rule 12-A and as per Form-VIA, PFA Rules. Reliance in this regard can be placed on M/s. Muralidhar Shyamlal v. State of Assam [1996(I) PFA Cases 86]. There is no batch number / code number or any other means to identify the water bottles sold to be the one lifted. Again, the bill/invoice should carry a warranty in the prescribed language. Without commenting on the correctness of the language and or legality of such claim of evasion of liability under the PFA Act, it is certain that the warranty as prescribed by Rule 12-A and Form VI- A of PFA Rules is not there on the bill.
20. Further, it is to be understood that the benefit of warranty under section 19(2) of PFA Act would be available only when there is a written warranty from the supplier/seller in addition to the fact that it has been sold in the same condition as was purchased. Both the conditions have to be fulfilled simultaneously. Thus, even the benefit of warranty cannot be extended to the accused in this case.
CC No. 39844/2016 Page No. 11/12DA vs Kamal Kumar & ors
21. The case in hand would be therefore covered under section 2(ia)
(a) of PFA Act as there is evidence to show that it was not of the nature, substance or quality which it is purported to be as per PFA Rules. Under section 2(ia)(m) a person is liable if the quality or purity of the article false below the prescribed standard but it is not injurious to health. It is not the case of the prosecution that the water in question was injurious to health.
22. On the basis of aforesaid discussion, the accused no. 1 and 2 are convicted for commission of offence under section 16(1(a) of the PFA Act and accused No. 3, 4 and 5 are acquitted.
23. Let the matter be listed for arguments on sentence on behalf of accused No. 1 & 2.
Announced in the open court this 30th day of July 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 39844/2016 Page No. 12/12 DA vs Kamal Kumar & ors