Delhi District Court
Da vs Piyush Chawla on 6 November, 2019
IN THE COURT OF MS. GURMOHINA KAUR,
Additional Chief Metropolitan Magistrate - 01 (New Delhi),
Patiala House Courts, New Delhi
Case No. 47032/16
Date of Institution : 27.05.2015
Date of reserving judgment: 31.10.2019
Date of pronouncement: 06.11.2019
In re:
Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
8th Floor, Mayur Bhawan, Connaught Place,
New Delhi-110001 ... Complainant
Versus
Sh. Piyush Chawla S/o. Sh. Jagdish Chawla
M/s Chawla Trading,
Shop No. 162, Gali Masjid Tewer Khan,
Naya Bans, Delhi-110006.
R/o:- K-14, New Govind Pura, Chander Nagar,
Delhi-110051. ... Accused
JUDGMENT:
1. The present is a complaint filed under section 26/59 of the FSS Act, 2006 alleging that the accused Piyush Chawla has violated the provisions of the FSS Act and Rules. The accused Piyush Chawla S/o. Sh. Jagdish Chawla, M/s Chawla Trading, Shop No. 162, Gali Masjid Tewer Khan, Naya Bans, Delhi-110006 is stated to be the Food Business Operator-cum-proprietor of M/s Chawla Trading, CC No. 47032/16 Page No. 1/10 DA vs Piyush Chawla Shop No. 162, Gali Masjid Tewer Khan, Naya Bans, Delhi-110006 from where the food article, that is, 'Kachri' was lifted for sampling.
2. As per the complaint, on 16.07.2014, the food officials consisting of FSO Sh. Ashok Kumar Singh and FSO Sh. Satish Gupta under the supervision of DO Sh. Pawan Bhatnagar reached along with their staff at the premises of M/s Chawla Trading, Shop No. 162, Gali Masjid Tewer Khan, Naya Bans, Delhi-110006, where the accused was found having stored/meant 'Kachri' for sale for human consumption. The FSO disclosed his identity and expressed his intention to purchase a sample of Kachri from the vendor lying in an open Polythene packet bearing no label or declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the FSS Act and Rules. The sample consisted of approx 2 kg of Kachri (ready for sale). The sample taken from an open polythene packet bearing no label and declaration on it, after properly mixing with the help of dry jhaba by rotating in all possible direction I.e clockwise, anti-clockwise, up and down several times and the price of sample of Rs.112/- only was paid to the accused/FBO vide receipt dated 16.07.2014. The sample was divided into four counterparts then and there by putting into four clean and dry glass bottles. Each counterpart containing sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VA, Panchnama, etc. Thereafter, one counterpart of the sample was sent to the Food Analyst in intact condition and the other three counterparts were deposited with DO as at the time of sampling FBO/accused Piyush Chawla did not make any request to the Food Safety Officer to send CC No. 47032/16 Page No. 2/10 DA vs Piyush Chawla one counterpart sample to Accredited Laboratory for testing under section 47 (1)(c)(iii) of FSS Act, 2006 r/w Rule 2.4.5 of FSS Rules, 2011.
3. The Food Analyst vide its report dated 23.07.2014 opined that the sample was unsafe because it was coloured with synthetic colouring matter viz Tartrazine. The DO, Sh. Pawan Bhatnagar sent the report of the Food Analyst to the Food Business Operator/accused Piyush Chawla on 25.07.2014 for giving him an opportunity to file an appeal against the Food Analyst U/s. 46 (4) of FSS Act, 2006 for sending one part of the sample to Referral Food Laboratory if so desired and the FBO/accused did not turn up for filing appeal against the report of Food Analyst.
4. It was further revealed during investigation that the accused/FBO Piyush Chawla was the vendor-cum-proprietor of M/s Chawla Trading, Shop No. 162, Gali Masjid Tewer Khan, Naya Bans, Delhi- 110006 at the time of taking the sample and looks after day to day business and as such he was in charge of and responsible for the conduct of its business. During the course of investigation, accused/FBO sent a bill dated 30.04.2014 alongwith letter dated 10.10.2014 disclosing the source of purchase of sample commodity from M/s Sun Foods, Dabua Colony, Chungi No. 17, Nawada Road, Faridabad (Haryana) but the said supplier vide his reply dated 31.12.2014 denied the sale of the sample commodity to the FBO.
5. After completion of investigation, consent under section 42(4) of the FSS Act was obtained from the Commissioner, Department of CC No. 47032/16 Page No. 3/10 DA vs Piyush Chawla Food Safety, Govt. of Delhi. The complaint was then filed in the court alleging violation of section c.
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 27.05.2015. On the basis of report of Food Analyst, prima facie notice for the violation of provisions of Section 26(1) & 26(2)(i) of FSS Act, 2006 r/w Section 3(1)(zz) (v)
(vii) & (viii) of FSS Act, 2006 and Regulation No. 3.1.2(1) and (6) of Food Safety and Standards (Food Products standards and Food Additives) Regulations, 2011, punishable u/s. 59(i) of the FSS Act, 2006, were framed against the accused to which he pleaded not guilty and claimed trial.
7. At the trial, prosecution examined five witnesses in support of its case. PW-1 FSO Ashok Kumar Singh, PW2 DO Sh. Pawan Bhatnagar, PW1 Sh. O.P.S. Ahlawat, PW3 FSO Sh. Satish Kumar Gupta, PW4 Sh. Madan Lal Chawla. PW1, PW2 and PW3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 16.07.2014 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 2 kg Kachri lying in an open polythene packet bearing no label or declaration, properly mixing with the help of a dry and clean jhaba by rotating in all possible directions, clockwise and anti clockwise several times. 2 Kg Kachri was dividing equally into four counterparts by putting them into 4 clean and dry glass bottles and CC No. 47032/16 Page No. 4/10 DA vs Piyush Chawla same were separately packed, fastened, marked and sealed and obtaining signatures of FBO/accused and witnesses. They also proved the necessary documents including the FBO receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex. PW-1/C, the copy of election card of accused/FBO Ex.PW1/D, Raid Report Ex. PW-1/E. The counterpart sample deposited with Food Analyst vide receipt Ex.PW- 1/F and the four counterpart deposited with DO is Ex.PW-1/G as accused did not request to send another counterpart sample for analysis. Food Analyst report Ex. PW-1/H wherein it was stated that the sample was unsafe, was received and investigation was started. Letter sent by DO giving accused/FBO opportunity to file appeal u/s. 46(4) of FSS Act is Ex.PW1/I. The copy of the track report and postal receipt showing dispatch of letter to the accused/FBO at his shops is at serial No. 1 and 2. The copies of the same are Ex.PW1/J to Ex.PW1/J4. During the course of investigation, PW1 sent the letters Ex.PW1/K and Ex.PW1/L dated 04.09.14 and 29.09.14 respectively to the accused regarding the constitution of the shop i.e Proprietor/partner, nominee etc. and reply to the same are Ex.PW1/M and Ex.PW1/N alongwith the photocopy of bill bearing no. 640 dated 30.04.2014 of Sun Food. PW1 also received another letter dated 13.10.2014 Ex.PW1/O. Letter sent to VAT department is Ex.PW1/P and its reply Ex.PW1/Q. Letter sent to Sun Food to verify bill Mark 3/1 is Ex.PW1/R. Letter to Sales Tax Department regarding constitution of Sun Food is Ex.PW1/U. Letter written to DO Food Department, Faridabad is Ex.PW1/V. Letter from Shamsher Singh Ex.PW1/Z2. After completion of investigation, sanction Ex. PW- 1/Z5 was taken from the Commissioner, Food Safety and the complaint Ex. PW-1/Z6 was filed in the court. These witnesses were CC No. 47032/16 Page No. 5/10 DA vs Piyush Chawla duly cross-examined by Ld. Defence Counsel wherein PW1 stated during his cross-examination that he could not say if the real name of article in question was Papad Kachri. He also added that he could not say if the article in question was prepared from SAGO and admitted that he had received the photocopy of the bill through courier and original of the bill Ex.PW1/D1. PW2 admitted during his cross- examination that department had received a representation from the accused alongwith the bill. PW O.P.S Ahlawat stated that he could not say whether there was any article in the name of Kachari. PW3 stated that he was not aware that the Kachari Papad was standardized as per the PFA Act.
8. Statement of the accused under section 313 CrPC was recorded on 11.07.2019 wherein he denied the allegations and pleaded innocence. He added that the sample commodity was prepared with SAGO and he was not the manufacturer. He stated that he had filed the original bill and was compelled to right the endorsement on the dictation of the Food Officer.
9. The accused opted to lead defence evidence. He examined himself as DW1 U/s 315 CrPC wherein he stated that he was not the manufacturer and had purchased the sample commodity from Sun Food whose proprietor was Shamsher Singh. He added that on asking the manufacturer regarding the ingredients who told him that it was prepared from SAGO Refined Oil, colour and salt. During his cross- examination, he had stated that the endorsement Ex.PW1/B from point X to X was in his own handwriting but added that the same was written at the instance of the FSO. He admitted that as per form VA, CC No. 47032/16 Page No. 6/10 DA vs Piyush Chawla the sample commodity taken by FSO was Kachri and further admitted that Ex.PW1/D1 which is the bill mentions the name as Papad Kachri but added that it was also known as Papad Kachari Sago. Thereafter, DE was closed and matter was listed for final arguments.
10. Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings of the Food Analyst. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
11. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses.
12. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
13. It is to be understood that the notice framed against the accused is for violation of provisions of Section 26(1) & 26(2)(i) of FSS Act, 2006 r/w Section 3(1)(zz) (v) (vii) & (viii) of FSS Act, 2006 and Regulation No. 3.1.2(1) and (6) of Food Safety and Standards (Food Products standards and Food Additives) Regulations, 2011, punishable u/s. 59(i) of the FSS Act, 2006,which are as under :
Section 26(2)(i) of FSS Act deals with Responsibilities of the CC No. 47032/16 Page No. 7/10 DA vs Piyush Chawla food business operator - (1) Every food business operator shall ensure that the article of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the business under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe; or..... Section 3 (1) (zz) (v) (vii) (viii) deals with "unsafe food" means an article of food whose nature, substance or quality is so affected as to render it injuriously to health................. by addition of a substance directly or as an ingredient which is not permitted; or by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or by the presence of any colouring matter or preservatives other than that specified in respect thereof.
Regulation No. 3.1.2 (1) and (6) of FSS (Food Products Standards and Food Additives) Regulation 2011 deals with use of permitted synthetic food colours and prescribes their limit of synthetic food colour which have been prohibited.
Section 59 (i) of FSS Act deals with Punishment for unsafe food - it states that any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports and article of food for human consumption which is unsafe shall be punishable - where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six CC No. 47032/16 Page No. 8/10 DA vs Piyush Chawla months and also with fine which may extend to one lakh rupees.
14. The incriminating material on the basis of which the sample of Kachri has been failed by the Food Analyst, is that as per the report, the sample was unsafe as synthetic food colouring matter Tartrazine was found in the sampled food article.
15. The defence taken by the accused is that he had purchased the sample commodity from Sun Foods and has placed on record Ex.PW1/D1 to corroborate his defence that he had purchased the sample commodity from them. However, it is pertinent to mention that the sample commodity was lifted on 16.07.2014 whereas the date of bill Ex.PW1/D1 is 30.04.2014. Further, it requires mentioning that the name of the sample commodity in bill Ex.PW1/D1 is Papad Kachri and the sample commodity as stated in the complaint Ex.PW1/Z6, Form VA Ex.PW1/B, report of the Food Analyst Ex.PW1/H have been stated as Kachri. The discrepancy in the name of the sample commodity has not been sufficiently been explained by the accused in the present case. Furthermore, he has later put questions during his defence that one of the ingredients of the sample commodity was SAGO, however, nothing has come on record to suggest that the sample commodity comprised of SAGO as an essential ingredient. Furthermore, the accused has not been able to explain that why did he not disclose the ingredient in Ex.PW1/B from point X to X when the same has been so mentioned in his handwriting. The record shows that the accused was present at all times during sample proceedings and has even signed Ex.PW1/B where the name of sample commodity is mentioned as Kachri.
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16. The accused person has not disputed the report of the Food Analyst at any stage during trial. Even the Food Analyst report does not mention about the SAGO being an essential ingredient where the synthetic colour Tartrazine was allowed to be present in permissible limits. Admittedly, Tartrazine was found in the sample commodity when the prescribed standards state that no synthetic colour should be present. Furthermore, the Ld. Defence counsel has questioned the sanction during his arguments but it is pertinent to mention that no question was put during the cross-examination of witnesses regarding the sanctity and the validation of the sanction in the present case.
17. The complainant has proved its case against the accused beyond reasonable doubt that the sampled food article was unsafe because it was coloured with synthetic colouring matter viz Tartrazine. Accordingly, accused Piyush Chawla is hereby convicted for the violation of provisions of Section 26(1) & 26(2)(i) of FSS Act, 2006 r/w Section 3(1)(zz) (v) (vii) & (viii) of FSS Act, 2006 and Regulation No. 3.1.2(1) and (6) of Food Safety and Standards (Food Products standards and Food Additives) Regulations, 2011, punishable u/s. 59(i) of the FSS Act, 2006
18. Ordered accordingly.
Announced in the open court on 06.11.2019 (Gurmohina Kaur) ACMM-01(New Delhi), PHC Judge Code: DL0427 CC No. 47032/16 Page No. 10/10 DA vs Piyush Chawla