Delhi District Court
Vinod Kumar Gupta vs The State on 17 November, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CA No. 8411/16
Vinod Kumar Gupta
S/o Late Sh. Ganga Ram
M/s Gupta Store,
A-84, Sewak Park,
Uttam Nagar, New Delhi-110059. ....Appellant
Vs.
The State
(Govt. Of NCT of Delhi)
Deptt. Of Prevention of Food Adulteration,
A-20, Lawrence Road, Industrial Area,
Delhi-110035. .... Respondent
Date of receiving of Appeal : 05.07.2014
Date of arguments : 24.08.2016
Date of judgment : 17.11.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.P.C. filed on behalf of convict Vinod Kumar Gupta against the judgment dated 03.06.2014 and order on sentence dated 05.06.2014 passed by Sh. Gaurav Rao, then Ld. ACMM-II, Patiala House Court, New Delhi.
CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 1 of 11 22 The brief facts of the case as per record and from trial court record are that accused is running an establishment namely M/s Gupta Store at A-94, Sewak Park, Uttam Nagar, New Delhi-
59. On 24.08.2002 at about 5.00 p.m. Food Inspector Sh. Humak Singh visited the said place and purchased 750 grams of "Dal Arhar" from accused. FI was accompanied with SDM/LHA Sh. Vijay Khanna. The said Arhar Dal was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine."
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 28.01.2003 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act to get the sample analyzed by CFL. CFL reported "I am of the opinion that the above sample does not conform to standards of (Dal) Arhar as per PFA Rules, 1955 (Synthetic colour Tartrazine detected)."
4 Charge was framed against accused u/sec.2(ia) (a) (j)
(m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act. It was amended on 03.06.2014.
CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 2 of 11 35 After trial, vide judgment dated 03.06.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 05.06.2014, accused was directed to undergo simple imprisonment for a period of 18 months and fine of Rs.10,000/- and in default of payment of fine SI of 60 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e. independent witnesses were not joined.
(ii) Non-compliance of Rule 14 of PFA Rules i.e. the bottles, jhaba, polythene were not made clean and dried at the spot by the food inspector or any other official.
(iii) Appellant is protected in view of Sec.19(2) PFA as he had established that he purchased the sample commodity from some other person and sold the same in the same condition.
(iv) Benefit be given to the appellant under Food & Safety Standards Act (hereinafter called FSSA).
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued by counsel for appellant that no public witness was present in the proceedings nor efforts were made to CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 3 of 11 4 join any public witnesses. As far as this argument is concerned, the same argument was raised before the Ld. Trial Court. The same was dealt by the trial court from para 23 to 29 of the judgment. As far as opinion/finding of the trial court regarding this argument is concerned, I do not find any infirmity in those findings and the same are upheld and the arguments regarding this fact does not find any force and thus rejected.
10 It is further argued that compliance u/sec.14 PFA Rules was not proved on record by the prosecution. It is stated that witnesses are deposing differently with respect to the cleanliness of jhaba etc. It is further stated that it was the duty of the prosecution to prove these facts. These arguments were also addressed before the trial court. The relevant part of the judgment dealing with these arguments are from para 30 to 47 of the judgment. From the perusal of the record, it appears that prosecution was able to state that the bottles, jhaba, the polythene used for weighing the sample commodity was clean. There is no other fact on record. So, in these circumstances, the prosecution was able to prove that compliance u/sec.14 of PFA Act was properly done and the relevant portion of the judgment is thus upheld.
11 It is further argued that accused had purchased the sample commodity from M/s Mathua Dass Daulat Ram, 4048, CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 4 of 11 5 Naya Bazar, Delhi vide bill no. 59512 dated 31.07.2002 Mark A. It is stated that on account of Sec.19(2) PFA Act, accused is protected against prosecution as he had established that the commodity was purchased from some other person and sold in the same condition. This leg of arguments were dealt by the trial court from para 104 to 109 of judgment.
12 On the other hand, it is argued by Ld. APP for State that the star witness cited by the defence i.e. DW1 could not prove that bill as the same was not executed by him. It is further stated that due to this reason Mark A i.e. Bill is not a proved document. It is further stated that there is no evidence on record that the lot from which the sample was taken, was purchased by accused from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi 13 From the perusal of testimony of DW1, he had deposed that he is the agent through whom accused had purchased the goods from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi through Bill Mark A. He had further stated that the bill was issued by Aishi Lal, one of the partners of that firm. So, this witness had proved the bill as he identified the signatures of the executant of the bill. Moreover, the bill is proved by DW2 in terms of Sales of Goods Act by brining the original on record by which he had purchased the said commodity. So, it can be said that Mark A is a proved document.
CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 5 of 11 614 Let us examine the scheme of PFA and the scheme of warranty as mentioned in Sec.19(2) of PFA Act. As per Sec.19(2) PFA Act, if the vendor remain able to prove that he has purchased the sample commodity, on bill, from a supplier and sold it in the same condition as bought from supplier, he is exempted from prosecution. However, then the prosecution/culpability get passed to the supplier. So, there is a unique situation in which the sword is hanging on supplier i.e. there is conflict of interest. So, if supplier admits the bill by which the adulterated commodity is sold to the vendor, then he exposes himself for criminal liability. In normal parlance he will avoid to do the same.
15 Now in this present case, it has to be seen that the accused is coming forward with a bill. According to him he has purchased the Dal, on the basis of this bill marked A from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi. So, the transaction is governed by Sales of Goods Act and the bill is sufficient to show the sale. Its proof is not dependent upon the maker of the instrument/document. Hence according to Sales of Goods Act, Mark A is a proved document and can be read in evidence.
16 As per DW2 he has purchased the sample commodity from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi. DW1 has also affirmed the same. DW1 had deposed "I have seen CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 6 of 11 7 the Bill Mark A and the goods mentioned in this Bill were purchased by accused Vinod Kumar Gupta whose shop was Gupta Store through me from the shop of Mathua Dass Daulat Ram. Vide this Bill 8 bags of Dal Arhar (total 4.5 QW) were purchased by the accused vide bill Mark A, dated 31.07.2002. This Bill was issued by one Aishi Lal, who used to be a partner of this firm. There is positive assertion in the statement of DW1. There is no suggestion to DW1 that the same was not purchased from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi. So, in these circumstances, it can be concluded that DW2/accused had purchased the sample commodity from M/s M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi on the basis of Mark A. 17 It is argued that the sample commodity was taken from an open gunny bag and was not stored in its original condition and thus benefit u/sec.19(2) PFA Act cannot be extended to accused.
18 As far as Sec.19(2) PFA Act is concerned, the same is as follows:-
"19(2)-A Vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded articles of food if he proves:-
(a) that he purchased the article of food-
(i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 7 of 11 8
(iii) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it."
So, Sec. 19(2) PFA Act is exception to the general rule. However the onus is upon the accused to make out its case in Sec.19(2) PFA Act. So, he has to prove that he has bought the sample commodity from a supplier and second the said commodity was stored in the same condition as that bought from the supplier.
19 Now whether the mere opening of the stitched sack/container and taking out the commodity alters its condition and takes the case out of the purview of Sec.19(2) of PFA Act, is dealt by Superior Courts.
20 In A. P. Grain and Sweets Merchant Association Vs. Union of India, WP NO. 468/69, DOD 31.03.1970 in para 13, it is laid down:-
"The argument of counsel for petitioners that the provision that a retail seller who opens a container of a branded article of food loses even the limited protection under section 19(2) is without substance. Clause (b) of subj-section (2) of section 19 does not prove nor does it imply, that if the container of a branded article is opened, the article of food ceases to be in the same state in which the vendor purchased it. If the article of foods is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub-section (2) of section 19 merely because he opened the container. If the vendor has obtained the article CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 8 of 11 9 from a licensed manufacture, distributor or from a manufacture, distributor or dealer, he is protected, provided he has properly stored the article and sells it in the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded."
So, accordingly, the retailer can sell the article by opening the container/bag but with condition that he should have stored the article in the same condition as it was purchased from supplier.
21 Now as per DW2 he has stated "I made no adulteration in Dal Arhar and I sold the same to Food Inspector in the same condition in which I had purchased it from M/s Mathua Dass Daulat Ram, 4048, Naya Bazar, Delhi". The only cross- examination is conducted on the line that the gunny bags were opened and are not stitched ones and due to that reason there is change of condition of commodity. There is no cross-examination on this aspect as to that the Dal was not in the same condition as bought or there was any change of condition. Now there may be a change in the condition of the bag i.e. from stitched ones to open ones but there is no cross-examination to the fact that there is any change in the condition of the sample commodity. So this fact is proved that vendor sold the Dal in same condition.
22 As far as the status of vendor and supplier, the same is CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 9 of 11 10 defined in the law laid down by Superior Courts.
"In Aboo Vs. FI, 2003 (1) FAC 81 and FI Vs. M. H. Shoukathali, 1989 (1) FAC 261, Hon. High Court of Kerala had stated "But the question whether by opening its package the "state" of the food article would be disturbed or changed. S. 19(2) is primarily intended to give protection to the retail dealers. If a retailer is not permitted to sell the article in retail after he purchases it from a wholesale dealer it would affect the trading system of retail business. One of the usual modes of retail business is to buy articles in bulk and sell them in smaller quantities. The Legislature would never have intended that the retailer would be permitted to avail the defence envisaged in S.19(2) only if he sells the food article in the same package or container without opening them. There cannot be a hard and fast rule that every article is liable to change its state when it is disinterred from its container. Coriander is certainly not that type of article which undergoes transformation through disinterment from its package. No cereals or other edible grains would lose its state, in normal conditions, by its exposure from the packages."
So, in these circumstances, accused is able to prove that he has purchased the commodity/sample commodity from the supplier. He sold the commodity in the same condition as when bought from the supplier and has not done any adulteration.
23 So, in these circumstances, accused is able to prove that he is exempted by the provisions of warranty as mentioned in Sec.19(2) PFA Act.
24 So, the judgment and order on sentence of the trial court is set aside.
CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 10 of 11 1125 Accused Vinod Kumar Gupta is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
26 Bail Bond u/sec.437A Cr.P.C. furnished. Accepted for six months.
27 TCR be sent back with copy of the order.
28 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 17.11.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 11 of 11 12 CA No.8411/16 Vinod Kumar Gupta Vs. State 17.11.2016 Present: Sh. R. K. Sharma counsel with appellant.
Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment the appeal filed by the appellant is allowed. Accused Vinod Kumar Gupta is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
TCR be sent back with copy of the order.
Bail Bond u/sec.437A Cr.P.C. already furnished and accepted for six months.
File of appeal be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 17.11.2016 CA No. 8411/16 Vinod Kumar Gupta Vs. State Page 12 of 11