Delhi District Court
Fso vs . Om Prakash on 14 January, 2020
IN THE COURT OF SHRI NAVJEET BUDHIRAJA,
Additional Chief Metropolitan Magistrate - 01
Patiala House Courts, New Delhi
CC No. 13550/18
Date of Institution : 12.03.2018
Date of reserving judgement : 08.01.2020
Date of pronouncement : 14.01.2020
In re:
Food Safety Officer,
Government of NCT of Delhi,
Department of Food Safety,
8th Floor, Mayur Bhawan,
Connaught Place, New Delhi-110001. ... Complainant
Versus
Sh. Om Prakash S/o Sh. Ram Gopal Goyal
M/s Ram Gopal Nitin Kumar,
448, Anaj Mandi, Bara Bazar, Shahadra,
Delhi-110032.
R/o H. No. 300, Bara Thakur Dwara, Shahadra
Delhi-110032. ..... Accused
JUDGMENT
1. This Judgment broaches the complaint filed under section 26/59 of the Food Safety and Standard Act, 2006 (herein after referred to as FSS Act), alleging that the accused has violated the provisions of the FSS Act and Rules.
2. Tersely putting the case as per complaint, on 26.12.2017 at about 2.00 p.m, FSO Rajendra Kumar Bhaskar alongwith Field Assistant Sh Subedar Mishra visited M/s Ram Gopal Nitin CC No. 13550/18 Page No. 1/7 FSO Vs. Om Prakash Kumar, 448, Anaj Mandi, Bara Bazar, Shahadra, Delhi-110032 where accused Om Prakash FBO-cum-Proprietor of M/s Ram Gopal Nitin Kumar was found conducting the business of food article "Saunf Whole" and where the said food article was found stored for sale. The sample consisted of 2 Kg of "Saunf Whole"
(ready for sale) for human consumption having no label declaration. The sample was taken under the supervision/direction of DO Dr. P.M. Kothekar. FSO divided the sample of the article of food into four equal parts after mixing with the help of a clean and dry jhaba in all possible directions. Price of Rs.520/- was credited to the FBO by cheque by the department vide FBO receipt. The sampled article was divided equally in four parts by putting the sample equally in four clean and dry glass bottles. Each counter part containing the sample was separately packed. fastened and sealed according to the FSS Act, Rules & Regulations. The FBO's signatures were obtained on the DO slip and wrapper of the sample counterpart containing the sample. Notice in Form VA was given to accused Om Prakash. Panchnama too was prepared at the spot. At the time of sampling FBO/accused did not opt to send one counter-part of the sample to any accredited laboratory for testing, but accused/FBO did not opt for the sample and therefore one counterpart sample was sent to Food Analyst, Delhi and the remaining three counterparts were deposited with DO. All the documents prepared by FSO were signed by accused Om Prakash and by the other witness Shri Subedar Mishra, FA. Before taking the sample efforts were made to get the public witnesses to join the proceedings but none came forward, as such Shri Subedar Mishra, FA was joined as witness.CC No. 13550/18 Page No. 2/7
FSO Vs. Om Prakash
3. Food Analyst analysed the sample and found the sample to be unsafe. The report of Public Analyst is as follows:
"The sample was unsafe because it was not free from rodent contamination."
4. A copy of the report was forwarded to FBO/accused Om Prakash by the DO on 08.01.2018 for affording him an opportunity to file an appeal against the report of the Food Analyst U/s 46(4) of the FSS Act, 2006 for sending one part of the sample to the Referral Lab., if so desired by FBO. However, the FBO/accused Om Prakash did not prefer any appeal against the report of Food Analyst.
5. It was revealed during investigation that accused was the FBO-
cum-Proprietor of M/s Ram Gopal Nitin Kumar,448, Anaj Mandi, Bara Bazar, Shahadra, Delhi-110032 at the time of taking the sample and he looked after its day to day business of his shop and as such he was in charge of and responsible for the conduct of its business and in view of aforesaid facts, the accused has violated the provisions of section 26(2)(i) of FSS Act, 2006 r/w Section 3(1)(zz)(ii) of FSS Act, 2006 punishable U/s 59(i) of FSS Act, 2006.
6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 12.03.2018. Based on the report of the Food Analyst, Notice was framed against the accused for violation of section 26(2)(i) of FSSA Act r/w Section CC No. 13550/18 Page No. 3/7 FSO Vs. Om Prakash 3(1)(xz) and 3(1)(zz)(v) of FSSA Act and Regulation no. 2.4.6.11 of FSS (Food Products Standards and Food Additives) punishable U/s 59(i) of FSS Act, 2006, to which the accused pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witnesses to assemble its case i.e. PW1 FSO Sh. R.K. Bhaskar, PW2 DO Dr. P.M. Kotekar and PW3 FA Sh. Subedar Mishra. PW-1 and PW-3 were part of the team that had visited the spot for sample proceedings under the supervision of DO Dr. P.M. Kotekar. These witnesses narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting of 2 kg Saunf Whole from an open steel container having no label declaration, dividing the sample equally in four counterparts by putting each sample into clean and dry glass bottles, each counterpart was packed, fastened, marked and sealed and obtaining signatures of FBO and witnesses. They also proved the necessary documents including the FBO's receipt Ex.PW-1/A, Notice in Form-VA Ex. PW-1/B, Panchnama Ex.PW-1/C. Raid Report Ex.PW1/D was prepared, Statement of FBO/accused Ex.PW1/D-1. On the next day of sample proceedings, one counter-part of the sample alongwith a copy of memo in Form VI in an intact condition in a sealed packed and another copy of Memo in Form VI in a separate sealed cover were deposited with Food Analyst vide receipt Ex.PW1/E. FBO did not request the fourth counterpart of sample to be sent for analysis under Rule 2.4.5 of FSS Rules, 2011, the same was also deposited with DO vide receipt Ex.PW1/F. The report of Food Analyst is Ex.PW1/G and the CC No. 13550/18 Page No. 4/7 FSO Vs. Om Prakash intimation letter sent to FBO/accused giving him an opportunity to file appeal U/s 46(4) of FSS Act, 2006 is Ex.PW1/H. Copy of the dispatch register dated 08.01.2018 alongwith the postal receipts Ex.PW1/H-1. He sent letter to VAT Officer Ward No. 62 Ex.PW1/I. He sent letter to Vendor Ex.PW1/J. Reply to same same Ex.PW1/J1. After completion of investigation, he submitted the report to DO Dr. P.M. Kotekar for grant of sanction of Commissioner Food Safety. He received the sanction of Sh. S.N. Mishra, Commissioner of Food Safety Ex.PW1/K and filed the complaint Ex.PW1/L. During their cross-examination, PW1 stated that he cannot say whether the meaning of Rodent contamination is either Rodent hair or Rodent excreta. He admitted that he had seen the sample commodity with naked eyes. He stated that he cannot say whether there was any Rodent Excreta or Rodent Hair in the Saunf Whole. He denied that the sample was not lifted by him.
8. Statement of the accused under section 313 Criminal Procedure Code3, 1973 (Cr.P.C) was recorded on 06.12.2019 wherein he refuted the allegations and pleaded innocence. He stated that he made no adulteration and a false complaint has been filed against him. The accused chose not to lead any defence evidence in this case. Accordingly, the Defence Evidence was closed and the matter was listed for final arguments.
9. I have heard Ld. SPP for state and Ld. Counsel for accused person. Ld. SPP for the State has canvassed that complainant witnesses have been able to prove the case against the accused and it is crystal clear from the report of Food Analyst that one CC No. 13550/18 Page No. 5/7 FSO Vs. Om Prakash rodent excreta was found in the sample of Saunf. On the contrary, Ld. Counsel for the accused has inveighed against the complainant's case on the ground that the Food Analyst report merely mentions that the sample was unsafe but it has no where being stated that the sample was unfit for human consumption. Ld. Counsel for the accused has placed reliance upon the judgments of superior courts in following cases :-
(i) Municipal Corporation of Delhi Vs. Kacheroo Mal, Criminal Appeal No. 174 of 1971 decided on 29.09.1975 Supreme Court.
(ii) Nagar Swastha Adhikari Vs. Dalip, Criminal Appeal Nos. 153 and 154 of 1972 decided on 30.01.1975, Allahabad High Court.
(iii) Delhi Administration Vs Sat Sarup Sharma, Criminal Appeal No. 869 of 1985, decided on 25th November, 1993.
10. The genesis of the complaint against the accused is that the accused was found selling "Saunf Whole" which was unsafe as when upon purchase of the sample vide credit note Ex.PW1/4, the sample was seized and sent to Department of Food Safety vide acknowledgement Ex.PW1/F, upon analysis, vide report Ex.PW1/9, one rodent excreta was found in whole sample. It is, however, significant to note that the report of Food Analyst depicts that on certain quality characteristics the sample was tested by using DGHS Manual, whereas for the quality characteristic at serial No. 10 i.e rodent hair and excreta, sample was tested by physical examination only and the result which has been mentioned as that the sample was containing one rodent excreta.
11. It is limpid that no scientific method has been employed for testing the sample which could conclusively report that the CC No. 13550/18 Page No. 6/7 FSO Vs. Om Prakash sample contained one rodent excreta. It is unfathomable as to how Food Analyst concluded by merely physical examination that the excreta found was that of rodent only. Furthermore, the report Ex.PW1/9 is bereft of the details as to the size of the excreta, the colour etc. Besides this, PW1 Sh. R.K. Bhaskar, FSO also appeared waffled. Whether the meaning of rodent hair or rodent excreta. PW1 though avowed having seen the sample with naked eyes but he could not say whether the sample contained any rodent hair or rodent excreta.
12. Furthermore, the judgments relied upon by Ld. Counsel for the accused also accord further teeth to the defence of the accused that report of the Food Analyst Ex.PW1/9 is silent on the aspect whether the sample was unfit for human consumption or not.
13. Having regard to the discussion above, the case of the complainant does not stand proved against the accused. Consequently, the accused is acquitted for alleged violation of section 26(2)(i) of FSSA Act r/w Section 3(1)(xz) and 3(1)(zz)(v) of FSSA Act and Regulation no. 2.4.6.11 of FSS (Food Products Standards and Food Additives) punishable U/s 59(i) of FSS Act, 2006.
14. Ordered accordingly.
Announced in the open court on 14.01.2020 (NAVJEET BUDHIRAJA) ACMM-01, PATIALA HOUSE COURT, NEW DELHI CC No. 13550/18 Page No. 7/7 FSO Vs. Om Prakash