Delhi District Court
Da vs Sanjay Gupta & Others on 19 March, 2010
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IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 297/05
DA Versus Sanjay Gupta & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 297/05 b. The date of the commission of the offence : 4.6.05 c. The name of the Complainant, if any : F.I. Gian Chand. d. The name of the accused and his parentage : (4) Rajesh Kumar Sharma S/o Sh.
Jhabarmal, M/s Guruji Enterprises Pvt. Ltd., 212, H.S.I.D.C. Kundli, Sonepat, Haryana.
(5) M/s Guruji Enterprises Pvt.
Ltd., 212, H.S.I.D.C. Kundli, Sonepat, Haryana Regd. Office-149 Cotton Street Kolkatta.
e. The offence complained of or proved : u/s 2 (ia)(j) & Section 2 (ix) (j) of PFA Act and also in violation of Rule 29 of PFA Rules punishable U/s 16 read with Section 7 of the PFA Act.
f. The plea of the accused : Pleaded not guilty
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g. The final order : Acquitted
h. Arguments heard on :19.03.2010
i. judgment announced on :19.03.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector Gian Chand against the above said accused persons, alongwith accused No.1 Sanjay Gupta S/o Sh. V.P. Gupta; accused No.2 Anil Kumar Aggarwal S/o Sh. Ram Dhan Dass Aggarwal & accused No.3 Prashant Kumar Moda S/o Late Sh. Behari Lal Moda ( all have been discharged by the Ld. Predecessor of this court vide his order dated 30.07.08), for prosecution of the offence under section 7/16 of th Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 4.6.05 at about 6:00 p.m., Food Inspector, Gian Chand purchased a sample of ' Orange Crush', a food article for analysis from Sanjay Gupta (since discharged) S/o Sh. V.P. Gupta of M/s Aggarwal Departmental Store, 2/2, Roop Nagar, Delhi-07, where the said food article was found stored for sale and Sh. Sanjay Gupta was found conducting the business of the said food article at the time of sampling. The sample consisted of three original sealed bottles in three cartoons having identical label declaration on bottles & cartoons. The sample was taken under the the supervision/direction of Sh. R.K. Sharma SDM/LHA. The sample was taken as such in originally sealed condition. The Food Inspector divided the sample into three equal parts then and there by taking one such sealed cartoon in each part. Each sample 3 counterpart was separately packed, fastened and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample counterparts. Notice was given to the accused Sanjay Gupta and the price of the sample was also given to him vide vendor receipt dated 4.6.05. The Panchnama was too prepared. All the documents prepared by Food Inspector were signed by the accused Sanjay Gupta and the other witness Sh. J.P. Bhardwaj, F.A. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. J.P. Bhardwaj, F.A was joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 30.06.05 and opined that the Orange crush is not an standardized product under PFA Act. However it contains synthetic colouring matter which is not allowed as per Rule 29 of PFA Rules, 1955.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. Gian Chand, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(j) & Section 2 (ix) (j) of PFA Act and also violated Rule 29 of PFA Rules punishable U/s 16 read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and 4 pursuant thereto they had appeared before the court. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(j) & Section 2 (ix) (j) of PFA Act and also in violation of Rule 29 of PFA Rules punishable U/s 16 read with Section 7 of the PFA Act was framed against the accused No.4 & 5 separately on 27.3.09 to which they pleaded not guilty.
6. In support of its case, complainant examined PW-1 Sh. R.K. Sharma, Deputy Director & PW-2 F.I. Gian Chand.
7. Statements of accused No. 4 & 5 were recorded under Section 313 Cr.P.C on 22.12.09 wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent and preferred not to lead evidence in their defence.
8. As per Section 2 (ia)(j) of PFA Act, if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
9. As per Section 2 (ix)(j) of PFA Act, if it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder.
10 Rule 29 of PFA Rules provides use of permitted synthetic food colours in or upon any food other than those enumerated provided therein is prohibited.
511. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel for accused on the other hand, has vehemently argued that fruit squash also comes under the definition of fruit crush for which use of permitted synthetic colour is allowed as per Rule 29 of PFA Rules. Ld. Defence counsel further argued that as per item No. A.16.21 of Appendix 'B' of PFA Rules, 1955 wherein the definition of fruit crushes and squash is given, it is provided that the product can contain food additives as permitted in Appendix 'C' table IX and use of synthetic food colour as additives is permitted upto 200 ppm.
Report of the Public Analyst.
13. In the present case, report of the Public Analyst 30.06.05, the Orange crush is not an standardized product under PFA Act. However it contains synthetic colouring matter which is not allowed as per Rule 29 of PFA Rules, 1955. The report of the 6 Public Analyst unless it has been superseded by the report of the Director, CFL can be used as evidence of the facts stated therein.
14. PW-2 F.I. Gian Chand confirmed in his cross-examination that in Rule 29 (c), word 'fruit squash' is mentioned and permitted colours are allowed upto 200 ppm. He further deposed that fruit crush, fruit squash, fruit syrup and fruit sarbat are of the same category as per item No. A.16.21 of Appendix 'B' of PFA Rules, 1955 and volunteered gave a statement that at the time of sampling, fruit crush was not in this category and was incorporated on 21.9.05 in Appendix 'C' Table IX.
15. Reverting back to the facts of the present case, admittedly, the sample of orange crush was lifted by the Food Inspector Gian Chand on 4.6.05 and was analysed by the Public Analyst on 30.6.05 and sanction to prosecute the accused i.e Ex.PW2/F was granted by the Director, PFA on 5.12.05, and as per testimony of PW-1, the fruit crush was incorporated on 21.9.05 in the category of fruit squash as per item No. A.16.21 of Appendix 'B' of PFA Rules and in appendix 'C' Table IX, synthetic food colours are also permitted in fruit crush upto 200 ppm. Thus on the date when sanction was granted by the Director, PFA, there was amendment in PFA Rules and synthetic food colour upto 200 ppm was allowed in fruit crushes also. Therefore, I am of the considered opinion that the sanction granted by the Director, PFA to prosecute the accused persons after the amendment in the PFA Rules whereby fruit crush was also permitted to add food additives including synthetic food colours upto 200 ppm and in the present case, synthetic food colours , as per report of the Public Analyst, were upto only 69.61 ppm, was bad in law. Further the meaning of squashes, crushes and fruit syrups/fruit sarbats is one 7 and same as provided under in item No. A.16.21 of Appendix 'B' of PFA Rules, which also supports the plea of the accused that fruit squash and fruit crush are under the same category and if synthetic food colours were permitted in fruit squash as per Rule 29 of PFA Rules, it cannot be said that same were not permitted in fruit crush.
16. Therefore, I am of the considered opinion that after the amendment in the PFA Rules, whereby permitted colours were also allowed in fruit crush , the sanction granted by the Director, PFA, was bad in law as on the day of grant of sanction, the permitted synthetic colours were allowed by legislature in fruit squash upto 200 ppm and Public Analyst only found 69.61 ppm in the sample commodity. In result, complaint stands dismissed and accused No. 4 & 5 stand acquitted. Bail bond of accused No.4 stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 19.03.2010 ACMM-II/NEW DELHI.