Delhi District Court
Da vs Viveka Nand Parikh on 14 December, 2023
IN THE COURT OF SH. ABHISHEK KUMAR,
ACMM-01, PATIALA HOUSE COURTS, NEW DELHI
CNR No. DLND02-002493-2014
JUDGMENT
1. S.No. of the Case : 28226/2016
2. Date of commission of offence : 20.10.2013
3. Name of the complainant : Food Safety Officer
Department of Food
Safety
Govt. of NCT of Delhi
8th Floor,
Mayur Bhawan,
Shankar Market,
Connaught Place,
New Delhi-110001
4. Name, parentage & address : (1) Vivekanand Parikh
(FBO-cum-Manager)
S/o Sh. Panna Lal Parikh
M/s. Bikaner Namkeen
Bhandar
382, Chandni Chowk,
Delhi-110006
R/o 1723, Chirakhana
Nai Sarak, Delhi-110006
(2) Kishan Kumar
(Partner)
S/o Late Sh. Jugal
Kishore
M/s. Bikaner Namkeen
Bhandar
382, Chandni Chowk,
Delhi-110006
R/o 1723, Chirakhana
Nai Sarak, Delhi-110006
(3) M/s. Bikaner
Namkeen Bhandar
(Firm)
382, Chandni Chowk,
Digitally signed
ABHISHEK by ABHISHEK
KUMAR
Ct Cases No.28226/2016 KUMAR Date: 2023.12.14
Page No.1 of 15
17:14:18 +0530
FSO Vs. Vivekanand Parikh & Ors.
Delhi-110006
5. Offences charged for : 26/59 of FSS Act, 2006
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 09.12.2023
8. The final order : All accused are acquitted
9. The date of judgment : 14.12.2023
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The present complaint has been filed by the Food Safety Department through a Food Safety Officer under Section 26/59 of the Food Safety & Standards Act, 2006 (hereinafter referred to as the 'Act') against the accused persons.
COMPLAINANT'S VERSION
2. It is asserted in the complaint that on October 20, 2013, the Food Safety Officer, herein referred to as 'FSO' Ashok Kumar Singh, accompanied by FSO Sh. Satish Kumar Gupta, conducted an inspection at the premises of M/s Bikaner Namkeen Bhandar, located at 382, Chandni Chowk, Delhi-110006. During this visit, it was observed that the accused/FBO, Sh. Vivekanand Parikh, son of Sh. Panna Lal Parikh, had on display and intended for sale for human consumption, a variety of food articles including 'Ras Madhuri' at his shop, which was lying in an open steel tray bearing no label or declaration.
3. Thereafter, Food Safety Officer Ashok Kumar Singh identified himself and obtained consent from the accused to collect a "Ras Madhuri" sample for analysis after inspecting the shop. The complainant initially tried to find public witnesses, but Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.12.14 17:14:27 +0530 Ct Cases No.28226/2016 Page No.2 of 15 FSO Vs. Vivekanand Parikh & Ors.
when unsuccessful, FSO Sh. Satish Kumar Gupta agreed to serve as a witness.
4. Further, at around 4:50 PM, the complainant, being the Food Safety Officer, procured a 2 kg sample of "Ras Madhuri" as a food article for analysis from Sh. Vivekanand Parikh, the Food Business Operator. The sample, priced at Rs.920/-, was purchased in cash and recorded with a receipt dated 20.10.2013, along with a retail invoice/cash memo numbered 315830, also dated 20.10.2013.
5. The sample, comprising approximately 2 kg of "Ras Madhuri" sweet, was obtained from the aforementioned steel tray. It was broken into the smallest possible pieces using a clean and dry spoon, then mixed thoroughly by rotating it in all directions. Subsequently, it was equally divided into four clean and dry glass bottles. Each sample bottle received 40 drops of formalin, applied using a clean and dry dropper, as per the orders and instructions of the then Designated Officer, Sh. Pawan Bhatnagar.
6. Then, Each sample counterpart was individually marked, securely fastened, and sealed in accordance with the Food Safety Act, Rules, and Regulations. A Designated Officer (DO) slip, bearing the code number, signature, and official stamp of the DO, was attached to each sample counterpart. Labels were also applied to each of the four sample counterparts, and the Food Business Operator (FBO) signed all four labels affixed to each of the sample counterparts. The FBO's signatures were obtained in Digitally signed by ABHISHEK ABHISHEK KUMAR Ct Cases No.28226/2016 KUMAR Date:
2023.12.14 Page No.3 of 15 FSO Vs. Vivekanand Parikh & Ors. 17:14:40 +0530 such a manner that they partially appeared on the Designated Officer slip and partly on the wrapper of the bottle containing the "Ras Madhuri" sample.
7. Consequently, a notice in Form VA was drafted, and it was signed by the Food Safety Officer, Ashok Kumar Singh, witnessed by FSO Sh. Satish Kumar Gupta, and also endorsed by the Food Business Operator, Sh. Vivekanand Parikh. A copy of this notice was provided to the Food Business Operator, and his acknowledgment of receipt was recorded on the notice. Furthermore, a Panchnama was also created on-site. All the documents prepared by the Food Safety Officer, i.e., the complainant, were diligently read over and explained to the Food Business Operator, Sh. Vivekanand Parikh, in Hindi, ensuring his understanding. Subsequently, Sh. Vivekanand Parikh, the Food Business Operator, signed all the documents, which included the witness, FSO Sh. Satish Kumar Gupta, and the complainant.
8. During sampling, the Food Business Operator did not request sending a sample to an accredited laboratory. One counterpart of the sample and a memo in Form VI were sent to the Food Analyst in Delhi, while the other two counterparts and memos in Form VI were given to the Designated Officer, Sh. Pawan Bhatnagar, on October 21, 2013. Since the FBO didn't request sending the fourth counterpart for NABL Accredited Laboratory analysis, it was also handed over to the Designated Officer on the same date. All Form VI memos bear the complainant's seal impression used to seal the sample Digitally signed by ABHISHEK counterparts. ABHISHEK KUMAR KUMAR Date:
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9. Thereafter, the Food Analyst's report dated October 28, 2013, found the sample to be unsafe due to excessive synthetic dye content, which exceeded the prescribed maximum limit of 100 ppm. Then, Letters, including the Food Analyst's report, were sent to the Food Business Operator, Sh. Vivekanand Parikh, and M/s Bikaner Namkeen Bhandar on October 31, 2013, offering them the opportunity to appeal the report and send a sample to the Referral Laboratory. When the initial letter was returned, the Food Safety Officer personally delivered it to Sh. Vivekanand Parikh on November 12, 2013. They chose not to appeal the Food Analyst's report.
10. Accordingly, the investigation of the case was carried out by the complainant, revealing that Sh. Vivekanand Parikh, the son of Sh. Panna Lal Parikh, served as the Food Business Operator and Manager of M/s Bikaner Namkeen Bhandar, located at 382, Chandni Chowk, Delhi-110006. He managed the daily operations and was responsible for the business's conduct. M/s Bikaner Namkeen Bhandar, a partnership firm with nine partners, had Sh. Kishan Kumar in charge of the day-to-day business operations, making him responsible for the shop's conduct. The firm, M/s Bikaner Namkeen Bhandar, also bears liability.
11. Thereafter, upon the completion of the investigation, including the examination of all relevant documents, the Food Analyst's report, and the Food Safety Officer's report, the Designated Officer, Sh. Pawan Bhatnagar, forwarded the case file Digitally signed by ABHISHEK ABHISHEK KUMAR Ct Cases No.28226/2016 KUMAR Date:
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to the Commissioner of Food Safety, Department of Food Safety, Government of NCT of Delhi. The Commissioner, under Section 30(2)(e) of the Food Safety and Standards Act 2006, provided the necessary sanction and the present complaint was filed in the court.
PROCEEDINGS BEFORE THE COURT
12. The instant complaint was filed before the court on March 21, 2014, and the summons were issued to the accused persons on April 16, 2014, after taking cognizance. Upon the appearance of the accused persons, all necessary documents related to the complaint were provided to them. Subsequently, arguments on the charges were heard, and a notice was served to all the accused persons under Section 251 of the CrPC on December 18, 2019, for violations of Section 59(i) of the FSS Act, 2006, in connection with Section 26(2)(ii) of the FSS Act, along with Section 3(1)(zz)(vii) of the FSS Act.
13. Following this, the complainant's evidence was recorded and concluded on August 23, 2022. The statements of the accused persons under Section 313 of the CrPC were recorded on August 31, 2022. The accused persons also presented their defense evidence, which was concluded on November 17, 2022. Afterward, final arguments were heard, and the matter was reserved for orders.
COMPLAINT'S EVIDENCE
14. To establish the case, the complainant has examined four witnesses, namely PW1 Sh. Pawan Bhatnagar (Retired Digitally signed by ABHISHEK ABHISHEK KUMAR Ct Cases No.28226/2016 KUMAR Date:
2023.12.14 Page No.6 of 15FSO Vs. Vivekanand Parikh & Ors. 17:15:27 +0530 Designated Officer), PW2 A.K Singh (Designated Officer), PW3 Satish Kumar Gupta (Designated Officer), and PW4 S.M. Bhardwaj (Food Analyst). A summary of their testimonies is outlined below.
15. PW-1 Sh. Pawan Bhatnagar, Retd. DO, has deposed that on October 20, 2013, being the designated officer, he has directed Food Safety Officer A.K. Singh to conduct a general raid at M/s Bikaner Namkin Bhandhar and also to collect food sample for analysis. Thereafter, sample of Rasmadhuri was taken by the FSO, who handed over to him, two sample counterparts and Form VI copies out of which, one copy was sent to the Food Analyst in sealed cover (Ex.PW1/A). Further, the FBO didn't request NABL analysis, the fourth counterpart and Form VI were deposited with me. The sample receipt is Ex. PW-1/B, with my signature at point A. 15.1 He also signed the Raid Report on October 21, 2013 (Ex. PW-1/C) and duly identified his signature at point C and received the Food Analyst report (Ex. PW-1/D). On October 31, 2013, he also sent an intimation letter and the Food Analyst report to the accused/FBO, Vivekanand Parik, allowing them to file an appeal against the report but the letter was returned (Ex. PW-1/E). He has again sent the intimation letter with the Food Analyst report through FSO Sh. A.K. Singh, which was duly received by the accused/FBO, who chose not to appeal (Ex. PW1/F).
15.2 After concluding the investigation, FSO submitted the report to him for the Commissioner of Food Safety Department's Digitally signed by ABHISHEK ABHISHEK KUMAR Ct Cases No.28226/2016 KUMAR Date:
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sanction. The Commissioner issued the sanction order (Ex.PW- 1/G). Then, he instructed FSO Sh. A.K. Singh to file the current complaint, which was subsequently filed (Ex.PW-1/H), bearing the signature of FSO Sh. A.K. Singh.
16. The prosecution has also examined PW-2 Sh. A.K. Singh, DO who was the then FSO and he has reiterated the contents of the complaint during his examination-in-chief and relied upon the documents i.e. FBO receipt Ex.PW2/A, Invoice slip Ex.PW2/B, notice in Form VA Ex.PW2/C, punchnama Ex.PW2/D, raid report already exhibited Ex.PW1/C, receipt with respect to FA report already Ex.PW1/A, receipt of the sample to DO already Ex.PW1/B, FA report Ex.PW1/D, letter of the accused to file appeal against FA report is Ex.PW1/E, letter of the DO to prefer appeal is Ex.PW1/F, letter sent to FBO Ex.PW2/E, reply with the copy of partnership deed is Ex.PW2/F, letters sent to VATO are Ex.PW2/G & Ex.PW2/H, endorsement of VAT Officer on the letter Ex.PW2/I and sanction already exhibited Ex.PW1/G as well as the complaint already Ex.PW1/H.
17. PW-3 Sh. Satish Kumar Gupta, DO, has deposed on the same lines as PW-2 and has also relied upon the same set of documents.
18. PW-4 Sh. S.M. Bhardwaj, Food Analyst has conducted the analysis of the food sample and stated that he prepared the detailed report which is Ex.PW1/D. He further deposed that as per the report, the total dye content of the synthetic colour used Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date:
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exceeds the prescribed maximum limit of 100 ppm and was unsafe.
DEFENCE EVIDENCE
19. The accused initally examined DW-1 Sh. Sohan Singh Kanawat, who is the retired Food Commissioner and he deposed with respect to the sanction issued by him and the order on the basis of which he was directed to look after charge of the Commissioner, Food Safety which is Ex.DW1/A.
20. DW-2 was the accused namely Kishan Kumar who proved the RTI and its reply filed by him which is Ex.DW2/A (OSR) and Ex.DW2/B. FINDINGS
21. The accused persons have firstly challenged the validity of the sanction Ex.PW1/G. It has been argued that Sh. S.S.Kanwat, who was appointed as Special Commissioner Food Safety was not competent to grant the sanction as per section 31 of the Act. The above mentioned official was also examined by the accused persons as DW1. During evidence, the witness admitted the position that he was a DANICS officer and was appointed as Special commissioner in the food safety department but he was directed to look after the charge of Commissioner as per order Ex.DW1/A.
22. Upon scrutiny of Ex.DW1/A, it is evident that Mr. Kanawat acted as Commissioner following the relieving of the then Commissioner, as per the directive, until further orders. The order, bearing the signature of the Special Secretary of the Health Digitally signed by ABHISHEK ABHISHEK KUMAR Ct Cases No.28226/2016 KUMAR Date:
Page No.9 of 152023.12.14 FSO Vs. Vivekanand Parikh & Ors. 17:16:57 +0530 & Family Welfare Department, was issued with prior approval of the competent authority. This establishes Mr. SS Kanawat's competence to act as Commissioner and, consequently, to grant sanction. Therefore, the contention that he lacked the authority to act as Commissioner and grant sanction is baseless and not sustainable in the current proceedings.
23. Further, acting in the capacity of Commissioner inherently entails the power to accord sanction. Hence, it is established that the sanction was appropriately granted by the Commissioner of Food Safety. The arguments presented by the accused on this matter are found to be not tenable. Furthermore, judgments such as Rajesh Kumar Subodh Bhai Shah v. State of Gujarat (2014 2 FAC 499) by the Hon'ble Gujarat High Court and Dharamvir v. State (Cr revision no. 156/1981) by the Honorable Allahabad High Court are not applicable to the specific facts and circumstances of the present case.
24. The second leg of the argument for the accused contends that the FSL report cannot be considered, as the accredited lab, though NABL accredited, did not have the scope to carry out quantitative assessment. It could only perform a qualitative assessment. The current report could only confirm the existence of synthetic color but was not accredited to assess its quantity. The counsel further emphasized the necessity for the Commissioner of Food Safety, as a quasi-judicial authority, to condone the delay in sending the sample to RFL, as the sample was fit for analysis. The counsel relied on the case of State of HP v. Siri Ram, 2006 (1) FAC 240, wherein the Hon'ble High Digitally signed by ABHISHEK ABHISHEK KUMAR Date: KUMAR 2023.12.14 Ct Cases No.28226/2016 17:17:17 Page No.10 of 15 +0530 FSO Vs. Vivekanand Parikh & Ors.
Court of Himachal Pradesh observed that the accused's right to have the sample analyzed from CFL was a fundamental right to defend themselves. The Court in that case stated that if an application under section 13(2) of the PFA Act is rejected after the statutory period has expired, the Court cannot proceed to convict the accused, thus denying a fundamental right.
25. However, Ld. SPP for the department submitted that test was conducted in conformity with DGHS Manual and there was no infirmity in the report. Further, the report clearly indicates total dye content of synthetic colour as 351.40 ppm which exceeds the prescribed maximum limit of 100 ppm. Further, the application for sending the sample to RFL should have been filed within 30 days and the application was filed after a 4 months gap. Also, there was no provision under the Act to condone the delay after a lapse of one month and thus, was not within the domain of the commissioner.
26. To address the aforementioned arguments, the report of the Public Analyst Ex.PW1/D and his testimony as PW4 are crucial. In the cross-examination, the counsel for the accused put the RTI queries (Ex.DW4/D-1(OSR)(colly)) to the witness. The pertinent questions posed to the witness by the accused are outlined below:
"Ques:-I put it to you that as per Scope of NABL accreditation at page no. 4 and 5 the lab at Lawrence road was not competent to conduct the quantitative test of synthetic colours in sweets, what you have to say?
Ans:- As per Section 43 the lab was NABL accredited as nowhere the scope is not mentioned in the Section 43 of FSS Act. Section 43 nowhere mentioned the scope of FSS Act.
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Ques:-1 put it to you that the scope of accreditation by NABL reflects that lab was not having proper equipment to determine the quantity of colour in the lab at the time, so NABL consider proper not to grant to use the scope of the quantity of the colour? The lab was not having facility to conduct quantitative analysis of the colour in sweets?
Ans:- The laboratory is following the DGHS manual of analysis of synthetic food colour in sweets which also mentions the quantitative analysis of colour in sweets.
Ques:-I put it to you that the lab in question was not having the scope of accreditation to conduct the quantitative analysis of the sample therefore the report issued by you is illegal with respect to quantity of the colour detected in the sample?
Ans:- The lab. Is fully competent and equipped to analysis the quantitative estimation of synthetic food colour in sweets at the time of analysis of the sample."
27. Upon analyzing the witness's testimony and relevant documents, it becomes evident that the witness provided evasive answers regarding the scope of accreditation, emphasizing the lab's competence for quantitative assessment of synthetic colour. The witness argued that Section 43 of the Act does not distinguish between qualitative and quantitative assessments.
28. In my opinion, Section 43 of the Act pertains to the department's notification of NABL-accredited labs. However, the lab in question, as indicated by Ex.DW4/D-1, had the scope of qualitative accreditation only. Therefore, it couldn't perform quantitative accreditation, casting doubt on the report's validity. This raises questions about the justifiability of rejecting the accused's representation to send the sample to RFL.
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29. The argument that there was no scope to send the sample to RFL as the limitation period is untenable. In such circumstances, the prudence demands that such applications should be considered by the Commissioner by making reference to the fitness of the sample. If found fit, it could have been sent to RFL for further assessment of the sample. The accused persons relied on a judgment related to the Food Adulteration Act, though replaced by the FSS Act, remains relevant. The spirit of the law and principles therein are applicable, emphasizing the accused's right to have the sample tested.
30. In this unique case, the accused's representation should have been considered per relevant judgments, and any reasonable grounds for delay should have been condoned. Sending the sample for analysis could have provided a clearer picture, serving as conclusive proof favouring either party. During cross- examination, PW1 stated the sample was fit for analysis at the time of the rejection, supporting the accused's argument.
31. Moreover, in this case, the counsel has contended that the report of the Food Analyst (FA) was not served upon accused no. 2, denying him the opportunity to file a representation for the analysis of the sample through RFL. The counsel relied on the judgment titled as State of Haryana v. Radhey Shyam (Crl. Appeal No.715DBA of 1982), wherein the Hon'ble Punjba & Haryana High Court observed that the copy of report of Public Analyst has to be sent to all the accused independently and separately. ABHISHEK Digitally signed by ABHISHEK KUMAR Date: KUMAR 2023.12.14 17:17:57 +0530 Ct Cases No.28226/2016 Page No.13 of 15 FSO Vs. Vivekanand Parikh & Ors.
32. Contrastingly, the Ld. Special Public Prosecutor (SPP) argues that the report was served upon the proprietorship concerned, serving as an intimation to all the partners. Thus, the argument put forth by accused no.2 is deemed unsustainable, according to the SPP.
33. In the present case, it has come on record that the copy was not supplied to accused no.3, thus the same is violative of its right to get the sample tested from the RFL and in the absence of the same, the prejudice caused to the accused cannot be denied. Further, the judgment relied upon by the accused in this context passed by the Hon'ble Apex Court in case titled as Rameshwar Dayal v. State of UP (Crl. Appeal No.231 of 1981) is relevant, wherein it was observed that getting the sample examined from the central laboratory was a very valuable right given to the accused. Thus, it was essential that the report of the FA was served upon the accused no.3 as well resulting into violation of his essential right of defence.
34. Lastly, the counsel for the accused persons has argued that accused no.3 could not have been impleaded as a party in the case as he was not the Incharge responsible for managing the proprietorship firm and as per the nomination form, accused no.1 was looking after the affairs of the business. The counsel has referred to the testimony of PW-2 A.K. Singh. He further argued that the nomination form which was filed as per the PFA Act, 1954 would have been valid U/s.98 of the FSS Act, 2006 and the accused no.3 could not have been prosecuted since the accused Digitally signed no.1 was the nominee. ABHISHEK KUMAR by ABHISHEK KUMAR Date:
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35. Per contra, the Ld. SPP argued that the previous form would have no applicability and it was required that the proprietorship firm should have filed the fresh form as per the new Act.
36. After hearing the counsels, I am of the view that the argument raised by the counsel for the accused is not tenable and it was required that the accused firm should have furnished fresh form as per the Act and in the absence of the same all the partners were liable to be prosecuted for the offence under the FSS Act. Accordingly, no infirmity is found with respect to the action of the department for prosecuting accused no.3.
CONCLUSION
37. On the basis of the entire discussion as held above, I am of the opinion that the prosecution has failed to establish the case against the accused persons beyond reasonable doubt. Accordingly, the accused persons are acquitted for the offences U/s.59(i) of FSS Act, 2006.
Announced in the open Court on 14th December 2023 This judgment contains fifteen pages and each page is signed by me.
Digitally signed ABHISHEK by ABHISHEK KUMAR KUMAR Date: 2023.12.14 17:18:18 +0530 ( Abhishek Kumar ) ACMM-01/PHC/New Delhi Ct Cases No.28226/2016 Page No.15 of 15 FSO Vs. Vivekanand Parikh & Ors.