Delhi District Court
Food Inspector vs . 1. Shiv Kumar on 21 November, 2011
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
Food Inspector Vs. 1. Shiv Kumar
Department of PFA S/o Shri Ram Prasad Singh
Govt. of NCT of Delhi M/s Shiv Store
A20, Lawrence Road 117, Tulsi Ram Bhavan
Indl. Area, Delhi - 35 Najafgarh Road, Delhi
R/o: H. No. 148, Nimri Colony
Ashok Vihar, Delhi
J U D G M E N T
Serial number of the case : 02/05 Date of the commission of the offence : 11.10.2004 Date of filing of the complaint : 04.01.2005 Name of the Complainant, if any : Shri V.P.S. Chaudhary, F.I Offence complained of or proved : S. 2 (ia) (a) (j) of PFA Act 1954; punishable U/s 16 (1A)r/w S. 7 of PFA Act. Plea of the accused : Pleaded not guilty Final order : Convicted Arguments heard & concluded on : 19.11.2011 & 21.11.2011 Judgment announced on : 21.11.2011 CC No. 02/05 DA Vs. Shiv Kumar ::2::
Brief Statement of reasons for such decision
1. The present complaint was filed on 04.01.2005 by the Delhi Administration through FI Sh. V.P.S. Chaudhary against the afore named accused. It is averred in the complaint that on 11.10.2004 at about 1700 hours, FI Sh. V.P.S. Chaudhary purchased a sample of Dal Arhar, a food article for analysis from Sh. Shiv Kumar, S/o Sh. Ram Prasad Singh of M/s Shiv Store, 117, Tulsi Ram Bhavan, Najafgarh Road, Delhi, where the said food article was found stored for sale and afore named accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 1500 gms of Dal Arhar (ready for Sale), which was taken from an open container, bearing no label or declaration, under the supervision and direction of Sh. M.A. Ashraf, SDM / LHA, after properly mixing the same with the help of a clean and dry Jhaba by rotating it several times in all possible directions. The FI divided the sample into three equal parts then and there by putting it in three separate clean and dry bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to accused and price paid vide Vendor's Receipt dated 11.10.2004. Panchnama was also prepared at the spot. All these CC No. 02/05 DA Vs. Shiv Kumar ::3::
documents were signed by said Sh. Shiv Kumar; the vendor and the other witness namely Sh. Balwant Shah, FA, as no public witness had come forward for the purpose despite efforts.
2. The complaint further runs to the effect that one counterpart of the sample bearing LHA code No. 91/LHA/6675 was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA.
The PA analysed and opined that 'the sample was adulterated because it was colored with synthetic coloring matter viz. tartrazine'.
3. It was further revealed that accused Shiv Kumar was the Vendor cumProprietor of M/s Shiv Store (as above) and he was the InCharge and responsible for day to day conduct of the business of the said the Shop. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed.
4. The accused was summoned vide order dated 04.01.2005. On appearance, he did not exercise his Right & Option U/s 13 (2) of the Act of 1954.
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5. Charge for the violation of provision of S. 2 (ia) (a) (j) of the Act of 1954, punishable U/s 16 (1A) of the Act of 1954 was framed upon the accused vide order dated 25.08.2008, to which he pleaded not guilty and claimed trial.
6. Three witnesses namely Sh. V.P.S. Chaudhary; Food Inspector (PW1), Shri Balwant Shah: Field Assistant (PW2); & Sh. M.A. Ashraf: the then SDM/LHA (PW3); were examined on behalf of the complainant and the PE stood closed vide order dated 26.08.2010.
7. Statement of accused U/s 313 Cr. P.C was recorded as on 10.12.2010 wherein, he opted for leading defence evidence. However, no evidence in defence was led and DE stood closed vide order dated 29.04.2011.
8. File Perused. Counsels heard.
9. The present proceedings were initiated against the accused on the basis of PA Report dated 25.10.2004 Ex. PW 1/F. The same reveals that 'sample was adulterated as it was colored with synthetic coloring matter viz. tartrazine'. The accused on being served with the summons did not exercise the Right U/s 13 (2) of the Act of 1954.
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10. Now appreciating the testimonial aspect, all the three prosecution witnesses have deposed akin to the story line, reflected in the Complaint. Each and every minute detail, forming part of the Complaint has well been taken care of. PW1 FI Shri V.P.S. Chaudhary has proved the factum of visit and lifting the sample of the given food article from the premises in question as on the day and time, reflected in the Complaint. He has further deposed to the effect that identity and intention of lifting the sample was disclosed to the vendor by the Raiding Party. The price of the sample commodity stood paid to the vendor vide Receipt Ex. PW 1/A. Notice in Form VI stands proved vide Ex. PW 1/B and it has further been stated that the accused had made an endorsement thereupon at portion A to A, bearing his signature at point A. The said endorsement shows the receipt of the copy of Form VI by the vendor / accused. Panchnama stands proved vide Ex. PW 1/C. The witness has further stated that the documents Ex. PW 1/A to Ex. PW 1/C were read over and explained to the accused in Hindi and that his signatures were obtained thereupon, afterwards. Further, the requisite procedural formalities were duly adhered to and that after completion of the same, one counterpart out of the three counterparts; so prepared, was deposited with the PA on 12.10.2004 vide Ex. PW 1/D along with Memo in Form VII in separate sealed packet. The CC No. 02/05 DA Vs. Shiv Kumar ::6::
remaining two counterparts along with the two sets of Memo in Form VII were deposited with LHA on 12.10.2004 vide Receipt Ex. PW 1/E with the intimation that one counterpart in intact condition had already been deposited with the PA. The said witness has also proved the Report of the PA vide Ex. PW 1/F and has specifically stated that the PA found the sample adulterated because of being colored with synthetic coloring matter 'tartrazine'. The witness has further deposed that vide reply to the letter Ex. PW 1/G, sent by him, the shop of the accused was not found registered with the Sales Tax Department. Accused also furnished his Statement Ex. PW 1/H stating therein that 'he was the Sole Proprietor of Shiv Store', wherefrom, the sample of Dal Arhar was lifted. The requisite Sanction U/s 20 of the Act stands proved vide Ex. PW 1/K and the Intimation Letter etc. vide Ex. PW 1/K. The rest two witnesses i.e. PW2 FA Shri Balwant Shah and PW3 the then SDM/LHA, Shri M.A. Ashraf have also deposed touching on the afore stated lines. Their testimony thus, further corroborate that of the main FI.
11. The PA Report Ex. PW 1/F has not been superseded by any subsequent Report i.e. the Report of the Director CFL. Hence, the material is to be appreciated in the light of the PA Report itself. Looking into the said Report makes it clear that the analysis of the given sample CC No. 02/05 DA Vs. Shiv Kumar ::7::
counterpart was conducted without causing any sort of delay etc. The counterpart of the sample was sent to and received there in the PA's Lab on the very next day i.e. on 12.10.2004 and the analysis thereof was conducted w.e.f. 14.10.2004 upto 18.10.2004. This Report also makes clear that the seals etc. were intact on the sample counterpart and the counterpart was 'fit' for analysis in all respects. The Report is clear in its conclusion to the effect that the sample was adulterated because of being colored with synthetic coloring matter 'tartrazine'.
12. The fact that the sample proceedings had taken place as on the day, time and place by the constituted Raiding Party in the presence of the vendor / accused, has nowhere been disputed or denied. It is also an undisputed fact that the article in question i.e. Dal Arhar was lying there in the given premises; ready for sale and in an open container, bearing no label or declaration. However, the accused did raise certain objections / grounds of defence during the course of the trial i.e. crossexamination of the prosecution witnesses. The objections so raised are:
(i) No intimation of filing the Complaint was given to him.
(ii) The sample failed due to bad sampling.
(iii) The PA did not perform the proper test.
(iv) Tartrazine is a water soluble color and is
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DA Vs. Shiv Kumar
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permissible in sweets and confectionery
items.
(v) No public person was joined as a witness.
13. Now elaborating upon, in the context of the objections as above, the very first objection so raised was to the effect that the intimation regarding filing of the Complaint in the Court alongwith the copy of the PA Report was not given to the accused. During the course of evidence of PW1, conducted as on 30.07.2007, the accused through the Ld. Counsel also raised objections on exhibiting the Intimation Letter Ex. PW 1/M. However, perusal of the case file reveals that the accused had been summoned vide the very first order i.e. order dated 04.01.2005 for the next date given as 17.05.2005. But, the accused moved the Bail Application on 14.01.2005 itself i.e. within 10 days reckoned from the filing of the Complaint. The purpose of inserting the provision of 'Intimation' is to apprise the accused regarding the launch of the prosecution, so that he / she may exercise the Right U/s 13 (2) of the Act of 1954; at the earliest. In the given context, the accused had not only come to know about the filing of the Complaint but, had also appeared in the Court alongwith his Counsel without any loss of time and this way there was no scope of his being deprived of the Right U/s 13 (2) of the Act of 1954. Furthermore, during the course of S.A. U/s 313 Cr. P.C., recorded as on 10.12.2010, the accused in a way admitted, CC No. 02/05 DA Vs. Shiv Kumar ::9::
having received the Intimation Letter Ex. PW 1/M alongwith the copy of the PA Report, as is clear from the answer given to Question No. 12 thereof.
14. The next objection alleges the bad sampling. In defence, it was pleaded that some color was sticking with the JHABA, Sample Bottles and the Envelope (in which the sample commodity was weighed), used during the course of sample proceedings. However, this suggestion merely appears having been raised to increase the number of objections, as there is nothing on record to even prima facie substantiate the same. It has nowhere been explained as to wherefrom, the adulterant in question i.e. 'Tartrazine' happened to be there, so as to stick with the JHABA, being used by the vendor / accused himself in respect of the food articles including the Dal in question. The same is the position w.r.t. the sample bottles and the envelope, as the sample bottles were the bottles got issued from the Department and had not been used in any other prior sample proceedings or otherwise. The envelope used for weighing the food article was also a new & fresh envelope. Moreover, the vendor did not reflect any such objection on any of the documents, prepared during the course of sample proceedings or by way of making / lodging any sort of protest / report with any Authority; ever after.
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15. The next objection pertains to the method applied by the PA for analysing the article in question. It was contended that Chromatography Method was not the proper method to be applied to detect the presence of synthetic color. However, the ld. Defence Counsel failed to apprise as to how and why the method so applied be construed to be an improper method more particularly, when even the Legislature did not insert it in the Act as to what sort of method(s) was / were to be applied by an Expert, analysing a given food sample thereby, living it to the reasoned discretion of the concerned Expert. It is also worth mentioning that in case if, the accused was not satisfied with the Report given by the PA or with the procedural aspect i.e. the Method applied for the purpose, he was at liberty to exercise the option of getting the second sample counterpart analysed from a different Lab i.e. the Central Food Lab. The accused despite having the opportunity to do so did not exercise the Right U/s 13 (2) of the PFA Act.
16. The next objection does not at all amount to be a defence, what to say of a valid defence. It makes no difference whether the color in question was or was not water soluble when the application thereof (in respect of the given food artilce), is not permissible within the purview of the Act in general and PartVI of the PFA Rules in particular. The same CC No. 02/05 DA Vs. Shiv Kumar ::11::
analogy can also very well be applied in reply to the second aspect of the objection under consideration as it makes no difference by saying that such 'n' such color was permissible in respect of any other food article, particularly when the food article in question is not included in the 'List' Under Rule 29 of PFA Rules.
17. The next objection pertains to the assertion that the FI intentionally did not join any public person as witness to the sample proceedings.
Though as a matter of fact, it has well been narrated in the complaint itself and has also been well deposed that the FI had made efforts to join some public persons as witness, yet even if it is assumed that whatever is alleged is true, even in that eventuality, it was incumbent on the part of the defence to at least prima facie establish as to how nonjoining of an independent person as witness became fatal, so as to adversely affect his defence. The undersigned disagrees with the Ld. Defence Counsel on the point that mere nonjoinder of a public person was an omission causing prejudice to the accused. In the given facts and circumstances, this Court finds the testimony of the complainant witnesses in general and that of the FI in particular to be trustworthy; there being no reasons so as to disbelieve the same. Moreover, the testimony of FI need not be corroborated with that of an independent witness and there are number of CC No. 02/05 DA Vs. Shiv Kumar ::12::
Judgments on this aspect. One of them is being cited as State of U.P. Vs. Hanif A.I.R. 1992 S.C. 1121.
To come up on 30.11.2011, for arguments / order on quantum of sentence.
Announced in the (Raghubir Singh)
open court on 21 November, 2011
st
ACMMII/New Delhi
CC No. 02/05
DA Vs. Shiv Kumar
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII, PATIALA HOUSE COURTS, NEW DELHI Food Inspector Vs. . Shiv Kumar Department of PFA S/o Shri Ram Prasad Singh Govt. of NCT of Delhi M/s Shiv Store A20, Lawrence Road 117, Tulsi Ram Bhavan Indl. Area, Delhi - 35 Najafgarh Road, Delhi R/o: H. No. 148, Nimri Colony Ashok Vihar, Delhi ORDER ON SENTENCE Present: Shri Masood Ahmad, Ld. SPP for the Complainant.
Convict in person with Ld. Counsel.
Heard on the point of sentence. Ld. Counsel for convict has prayed for taking a lenient view on the ground that the accused is not a previous convict. It is also argued on behalf of the convict that he is the only earning member of his family; that his aged father is also dependent upon him; that he is a heart and diabetic patient and has also suffered one heart attack.
On the other hand, Ld. SPP has argued that the convict does not deserve any leniency as the offence committed by him has been CC No. 02/05 DA Vs. Shiv Kumar ::14::
proved beyond doubt and that such sort of adulteration is a menace to the society. It is also argued that the offences under the PFA Act are economic offences and should be dealt with suitably.
Taking into consideration the submissions as summarised herein above, the convict is hereby sentenced to undergo S.I. for 1 year and to pay fine in the sum of Rs. 10,000/ (Rupees Ten Thousand Only) and in default thereof convict shall further undergo S.I. for 10 days. Fine Paid.
At this stage, on request of the Ld. Counsel for the convict, he is admitted to bail on furnishing bail bond in the sum of Rs. 15,000/ (Rupees Fifteen Thousand Only) with one surety in the like amount until the expiry of the appeal period. Bail bond furnished. Accepted.
Copy of the judgment as well as order on sentence supplied to the convict free of cost; against receipt.
File be consigned to Record Room.
Announced in the open Court (Raghubir Singh) on 07 December, 2011 th ACMMII/ New Delhi CC No. 02/05 DA Vs. Shiv Kumar