Delhi District Court
Food Safety Officer vs Narender Kumar on 5 June, 2024
IN THE COURT OF SH. ABHISHEK KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
Cr Cases 6368/2021
Food Safety Officer Vs. Narender Kumar.
JUDGMENT
(a) Serial number of the case : 6368-2021
(b) Name of the complainant : Food Safety Officer,
Department of Food Safety,
Govt of NCT of Delhi.
(c) Name of the accused person : Sh Narender Kumar
S/o Sh Madan Lal Sharma
M/s Sharma General Store, D-
5, Main Road, Dayalpur,
Karawal Nagar, New Delhi-94
R/o F-2/6, Gali No. 2, F Block,
Dayalpur, Karawal Nagar,
Delhi-94.
(d) Offences charged of : U/s 59 (i) of FSS Act
(e) Plea of the accused : Pleaded not guilty
(f) Final Judgment : Accused stands acquitted.
(g) Date of institution of case : 24.08.2021
(h) Date of final arguments : 05.06.2024
(i) Date of Judgment : 05.06.2024
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BRIEF FACTS OF THE CASE
1. The present complaint has been filed by the Food Safety Department through Food Safety Officer under Section 26 of the Food Safety & Standards Act, 2006 (hereinafter referred to as the 'Act') against the accused for the violation of the provision under section 26 (1) & 26 (2) (ii) r/w section 3 (1) (zz) (ix) and r/w Regulation 2.4.4 of the Food Safety & Standards (Food Product & Additive) Regulations, 2011, punishable under section 59 (i) of the FSS Act, 2006.
2. After the filing of the complaint, the examination of the complainant was dispensed with as the complaint was filed in the official capacity being a public servant. Thereafter, cognizance of the offences was taken and summons were issued to the accused.
3. After the appearance of the accused, he was admitted to bail and copy of the complaint was supplied. Thereafter, notice was framed against the accused for the offence u/s 59 (i) of the FSS Act, 2006 to which the accused pleaded not guilty and claimed trial.
4. Thereafter, prosecution evidence was recorded. During the prosecution evidence, the prosecution has examined three witnesses. The testimony of the witnesses in short is mentioned herein after.
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5. PW-1 Ms Renu Sejwal, FSO has deposed that on 09/09/2020, she visited the shop in question along with FA Sandeep Rajput, where the accused was found conducting the business in the premises and having stored Besan for the same of human consumtion. Further, the Besan in the quantity of 2 KG (approx) was purchased as sample for analysis, which was taken out from an open plastic bag bearing label declaration. The FBO receipt in this regard is Ex.PW1/A and before taking the sample, it was properly mixed by rotating in all possible directions in the plastic bag itself with the help of a clean and dry jhaba, which was lying in the bag itself. Thereafter, the sample of 2 KG was taken after weighing on the pan balance machine.
5.1. Thereafter, the sample was divided into four counterparts by putting the samples in four clean and dried plastic jars and all the samples counterparts were separately packed, fastened, marked and sealed as per the rules with the DO slips and DO stamps bearing signatures on the counterparts from top to bottom where the accused signed on the slips and wrappers.
5.2. Thereafter, he prepared the notice in Form No. V A, which is Ex.PW1/B and FBO/accused signed on the same against acknowledgement. Then, panchnama which is Ex.PW1/C was prepared and all the documents were read over to the accused in Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 3 of 12 Hindi. Then, he prepared raid report, which is Ex.PW1/D and upon asking, accused denied to send one counterpart to NABL Laboratory.
5.3. Further, on next day, he sent one counterpart to the Food Analyst vide letter and receipt for the same is Ex.PW1/E and deposited the remaining counterparts with the DO. The receipt in this regard is Ex.PW1/F. Thereafter, report of the FA was received through DO, which is Ex.PW1/G. Thereafter, the DO sent the letter to the accused along with the sample report, which is Ex.PW1/H and the accused preferred the Appeal and one counterpart was sent to the Referral Laboratory, Ghaziabad and RFL found the sample to be unsafe.
5.4. Thereafter, DO directed him to investigate the case and he sent the letter Ex.PW1/I to the VAT Officer and also letter to the accused, which is Ex.PW1/J. Further, he received the reply from the FBO, which is Ex.PW1/J-1 along with the Registration Certificate Ex.PW1/J-2. After the conclusion of the investigation, he submitted the report to the DO and received the sanction from the Commissioner, which is Ex.PW1/K and upon instructions, filed the present complaint, which is Ex.PW1/L. The witness was duly cross- examined by the accused.
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6. PW-2 Shri R. K. Bhaskar is the designated officer and has deposed that upon the completion of the investigation, he submitted the file with the Commissioner Food Safety for obtaining sanction and the same was granted, which is already Ex.PW1/K. The witness was duly cross-examined by the accused.
7. PW-3 DO Bal Mukund has deposed that he has directed the FSO to conduct general raid in the North/East District and after the collection of the sample, two counterparts along with two copies of Form no. VI in intact condition in a sealed packet was deposited with him and another copy was sent to the Food Analyst. He has also deposed that he has signed the raid report and received the report of FA and upon the request of the accused, one counterpart was sent to RFL and the report in this regard was received, which is Ex.PW3/A. Also, he sought clarification from the RFL regarding the certificate of analysis, which is Mark A and received the corrigendum, which is Ex.PW3/B. The witness was duly cross-examined by the accused.
8. After the closure of the prosecution evidence, the statement of the accused was recorded and accused did not lead any defence evidence despite opportunity. Thereafter, final arguments were heard at length and matter was reserved for orders on the same day. Before proceeding ahead, it will be pertinent to refer to the provision of law involved in the present case.
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9. Section 59 of the Act provides for punishment for the manufacture, storage, sale, distribution and import of any article of food for human consumption, which is unsafe. The unsafe food has been defined u/s 3 (1) (zz) of the Act. There are various parameters mentioned under the said definition which makes the food unsafe and the categories for ready reference are mentioned as below:
(zz) ―unsafe food means an article of food whose nature, substance or quality is so affected as to render it injurious to health:--
(i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or
(ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or
(iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient which is not permitted; or
(vi) by the abstraction, wholly or in part, of any of its constituents; or
(vii) 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
(viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or
(ix) by the article having been infected or infested with worms, weevils, or insects; or
(x) by virtue of its being prepared, packed or kept under insanitary conditions; or
(xi) by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or
(xii) by virtue of containing pesticides and other contaminants in excess of quantities
10. Further, as per the regulation 2.4.4 of the Food and Standard (Food Products and Additives), Regulations 2011, provides that the Besan shall not contain any added colouring matter or any other foreign ingredient. Thus, in the present case, the product as per the report of RFL does not conforms to the standards of the regulation as Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 6 of 12 mentioned above, as presence of live and dead larvae and insects was seen, making it unsafe in violation of Section 3 (i) (zz) (ix).
11. Now coming to the case in hand, the defence counsel has primarily based his arguments on the fact that the food safety officer during his cross-examination has admitted that he has not seen any alive or dead insects with the naked eye at the spot during the procedure and has relied upon the judgment of Bombay High Court in case titled as State of Maharashtra vs Jetha Lal Devshi and Others (Crl. R. No. 75 and 76 of 1977) stating that the court in the said case has observed that the Food Inspector who has lifted the sample had not made any note regarding the presence of the insects, when the insects were visible to the Food Analyst upon physical examination and the same should have been visible to the Food Inspector also, which is not a case. He also stressed on the fact that no preservative was added to the samples and thus, the possibility that the insects infestation might have arisen at a later date cannot be ruled out as the anylyst has prepared the report after 13 days and the Food Analyst after a period of almost two months. He also argued that the manner in which the sample might have been stored is also not brought on record to highlight that there was no occasion for the insect infestation when no observation was made by the FSO on the date of the lifting of the sample qua the insects, which were later detected by the FA as well as Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 7 of 12 the RFL upon just physical examination without involving any method of analysis.
11.1 The counsel has also relied upon the judgment of Delhi High Court in case titled as A.P. Goel and Another vs State (Delhi Admn.) [2001 (1) FAC 168], stating that the prosecution has not brought on record any evidence to show that the sample was preserved in air tight bottle so as to preserve it and in the absence of the same, the possibility that the insect infestation might have resulted on account of improper storage, when the Food Safety Officer has not observed an insect at the time of the sampling. Therefore, the Hon'ble High Court upheld the order of discharge of the Magistrate.
12. On the other hand, Ld SPP has submitted that the department has proved the case beyond reasonable doubt and the sample in the present case was sent to the Food Analyst on the very next date and the physical examination stood completed on the next date itself but the report was prepared on a later date after examining the sample under various analysis methods, thus, ruling out the possibility that the insects would have developed during the examination of the sample. Ld SPP has also submitted that the FSO was not required to make any observation qua the insects as the same is the duty of the expert. Further, as per the regulations, there was no requirement to add any preservative except in the case of perishable items, which is not the Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 8 of 12 case. The Ld SPP has referred to the order of the Apex Court in case titled as Jagdish Prasad vs State of Delhi (AIR 1982 SC 57) & Municipal Corporation of Delhi vs Tek Chand Bhatia (1980 AIR 360) in support of his contentions.
13. After going through the record and the submissions of the parties, no material contradiction is found in the testimony of the witnesses with respect to the lifting of sample and subsequent proceedings conducted. However, it is to be considered whether the sample was stored in a air tight container as no preservative was added and also in the light of the statement of the Food safety Officer that no insects were seen at the the time of the lifting of the sample. After going through the testimony of witnesses, no evidence has come on record that samples were stored in a proper air tight container and the FSO has not given any reasoning in the entire complaint for not adding the preservative and whether it was required or not. Prosecution has also not placed on record any regulation to support the contention except the submission that the preservative are added in the perishable items which appears to be logical reasoning but considering the peculiar facts of this case, where the accused has been charged for selling the product which was infested with the insects, it further needs analysis as to why the Food safety Officer was not able to detect the insects at the time of lifting of the samples when the same was found by the Public Analyst on physical examination which means Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 9 of 12 assessing the sample with naked eye. It cannot be said that it was the duty of the Public Analyst to report the same as the Food Safety Officer is a trained personnel who is imparted training for collection of the samples and presence of the insects could have been easily ascertained by him which would have lent support to the case of the prosecution. The judgment relied upon by the Ld defence counsel is applicable to the facts of the present case also as the FSO has categorically made the statement that no insects were seen by him at the time of lifting of the sample. Therefore, it casts a doubt whether the insects were present in the sample on the date of sample proceedings by the FSO or it got infested with insects at a later date.
14. Though the report of the Food Analyst stood replaced by the Certificate of Director, RFL but for the limited purposes, it can be looked into. It is pertinent to note that the FA has mentioned the colour of the sample upon physical appearance but did not mention regarding the presence of the insects and after the examination of the sample after 13 days, he has observed that upon physical examination insects were found. Since, the insect infestation is possible at any stage of the proceedings if not properly stored and the presumption cannot be raised that the insects were in the sample since the beginning when no such thing was noticed by the FSO who went to the shop and collected the sample. The analysis of the samples were done by the RFL after a period of two months and thus, infestation of the insects in the sample Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 10 of 12 were found, which corroborates the version of the accused that there were no insects when the sample was lifted and due to the lack of the evidence to show that the sample was stored in a air tight container/jar and further stored under proper conditions, the possibility of the infestation arising at a later date cannot be ruled out. It is correct that the evidence has to been seen as a whole but upon the analysis of the evidence, nothing is found to establish that the insects were present in the sample from the date of its lifting. Also, the judgment relied upon by the Ld SPP is not applicable to the facts & circumstances of the present case.
15. In the present case, no infirmity was found with respect to the other parameters of sample of Besan except the insects found in the same, which as discussed above, might have occurred at a later date from the date of sampling as there was no observation from the FSO that insects were found on the date of the sampling and there is a doubt with respect to the proper storage of the sample of besan and the benefit of doubt, if any has to be given to the accused. Thus, it is hereby concluded that the prosecution has not been able to prove the case against the accused beyond reasonable doubt. Hence the accused is acquitted for the offfence 59 (i) of the FSS Act, 2006. Accused is directed to furnish bail bonds in the sum of Rs.10,000/- u/s 437A Cr.P.C.
Cr. Case 6368-2021 FSO vs Narender Kumar Page No. 11 of 12 Announced in the open Court on 5th June, 2024 This judgment contains twelve pages and each page is signed by me.
Digitally signed by
ABHISHEK ABHISHEK
KUMAR
KUMAR Date: 2024.06.07
17:54:04 +0530
(ABHISHEK KUMAR)
ACMM-01/NEW DELHI DISTRICT
PATIALA HOUSE COURTS/NEW DELHI
05.06.2024
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