Delhi District Court
Da vs Om Prakash Totlani Etc. on 19 March, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 39228/2016
Date of Institution : 17.05.2004
Date of reserving judgement : 19.03.2018
Date of pronouncement : 19.03.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Om Prakash Totlani
S/o Sh Chija Mal
M/s Yamu's Panchayat,
92, NDMC Market,
Connaught Place,
New Delhi - 1.
R/o 204 A, Pocket A, Mayur Vihar,
Phase II, Delhi
A-2) M/s Yamu's Panchayat
92, NDMC Market,
Connaught Place,
New Delhi - 1
A-3) Ms. Anita Lalwani
W/o Sh Hari Lalwani
M/s Yamu's Panchayat
92, NDMC Market,
Connaught Place,
New Delhi - 1
R/o B-105, Sector 40, NOIDA.
CC No. 39228/2016 Page No. 1/14
DA vs Om Prakash Totlani etc.
A-4) Smt. Soma Jain
W/o Late Sh Jai Kumar Jain.
M/s Jain Provision Store,
Shop No. 83, Turkman Road,
New Delhi - 2
R/o 83, Turkman Road, New Delhi
[Proceedings abated vide order dated 05.02.2015]
A-5) M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
A-6) Sh. Shri Kishan Gupta
S/o Late Sh. Sooraj Mal
M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
[Proceedings abated vide order dated 03.09.2007]
A-7) Sh. Subhash Chand Gupta
S/o Late Sh. Sooraj Mal
M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
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DA vs Om Prakash Totlani etc.
A-8) Sh. Shobhit Gupta
S/o Sh. Subhash Chand
M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
A-9) Sh. Vipul Gupta
S/o Sh. Kishan
M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
A-10) Sh. Pooja Gupta
W/o Sh. Puesh Kumar Gupta,
M/s Surya Kiran Trading Corporation,
Regd. Office 4829/24, First Floor Prahlad Lane,
Ansari Road, Daryaganj, New Delhi-110002
(sales office situated at G -5/4, Sagar Complex,
LSC, New Rajdhani Enclave, Vikas Marg,
Delhi-92)
A-11) M/s Dharam Pal Satya Pal Ltd.
276 FIE, Patparganj, Delhi - 92
A-12) Sh. Anil Kumar
S/o Dharam Singh
M/s Dharam Pal Satya Pal Ltd.
276 FIE, Patparganj, Delhi - 92
A-13) M/s DS Foods Ltd, Corporate
Office A 85, Sector - 2, Noida - 201301 (UP)
Work at :- B-1, Sector 3, Noida - 201301 (UP)
Distt. Gautam Budh Nagar.
A-14) Sh Rajesh Gupta
S/o Sh M.K. Gupta
M/s DS Foods Ltd,
CC No. 39228/2016 Page No. 3/14
DA vs Om Prakash Totlani etc.
Corporate Office A 85, Sector - 2,
Noida - 201301 (UP)
(Work : B-1, Sector 3, Noida - 201301 (UP)
Distt. Gautam Budh Nagar) ..... Accused person.
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFA Act), alleging that the accused have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 25.6.2002 at about 6.00 P.M., Food Inspectors (herein after referred to as FI) Sh. S.K. Sharma & FI Sh Jeet Ram under the supervision of Local Health Authority (herein after referred to as LHA)/SDM Sh S.M. Haider visited the premises of M/s Yamu's Panchayat, 92, NDMC Market, Connaught Place, New Delhi-1, where the accused No. 1 Om Prakash Totlani was found conducting the business of food articles stored there for sale for human consumption including "Pass-Pass Mouth Fresheners", which was lying in sealed polypacks bearing identical label declaration. The FI disclosed his identity and expressed his intention to purchase a sample of Pass-Pass Mouth Fresheners from the vendor for analysis. The sample consisted of 6x135 gms originally sealed polypacks of Pass-Pass (Mouth Fresheners) taken as such, having label declaration. The sample was taken under the supervision / direction of SDM/LHA Sh. S.M. Haider. The sample was taken as such in originally sealed condition. The Food Inspector divided the sample commodity into three equal parts then and there.
CC No. 39228/2016 Page No. 4/14DA vs Om Prakash Totlani etc. Each sample counterpart was separately, fastened, marked and sealed according to PFA Act & Rules. The vendor's signature were obtained on the LHA slip and the wrapper of the counterparts. Notice was given to the accused No. 1 Om Prakash Totlani and the price of the sample was also given to him vide receipt dated 25.06.2002. Panchanama was prepared at the spot. All the documents prepared by F.I. Were signed by the accused No. 1 Om Prakash Totlani and other witness FI Sh Jeet Ram. Before starting sample proceeding efforts were made to join public witnesses but none came forward and FI Sh Jeet Ram was joined as witness.
3. One counter part of the sample was sent to Public Analyst, Delhi bearing LHA code No. SMH/LHA/001204 in intact condition and two counterparts were deposited with SDM/LHA in intact conditions. Public Analyst analysed the sample and found the sample to be misbranded. The report of the PA is as follows:-
"The sample is misbranded as the ingredient declared are misleading because saffron is absent which was declared as one of the ingredients in Pass Pass pouch."
4. It is further the case of the complainant that accused No.1 Om Prakash Totlani was the vendor-cum-proprietor of M/s Yamu's Panchayat, 92, NDMC Market, Connaught Place, New Delhi - 1, at the time of sampling. M/s Yamu's Panchayat is a partnership firm having three partners namely Sh. Hari Lalwani, Mrs Madhu Lalwani and accused No.3 Ms Anita Lalwani. Accused No.3 Ms. Anita Lalwani is the only working partner of accused No. 2 M/s Yamu's Panchayat. Being a partnership firm accused No.2 M/s CC No. 39228/2016 Page No. 5/14 DA vs Om Prakash Totlani etc. Yamu's Panchayat is also liable.
5. It is further stated that accused No.2 M/s Yamu's Panchayat purchased the sampled commodity from M/s Jain Provision Store, Shop No.83, Turkman Road. New Delhi-2. M/s Jain Provision Store is a proprietorship concern in the name of accused No.4 Smt. Soma Jain and she is incharge and responsible for the day to day conduct of business of the said shop. And further the sampled food article was purchased by M/s Jain Provision Store from accused No. 5 M/s Surya Kiran Trading Corporation. Regd. Office 4829/24, First Floor Prahlad Lane, Ansari Road, Daryaganj, New Delhi-10002 and sales office situated at G-5/4, Sagar Complex, LSC, New Rajdhani Enclave, Vikas Marg, Delhi-92. Accused No.5 M/s Surya Kiran Trading Corporation is a partnership concern having six partners i.e. accused No. 6 Shri Kishan Gupta, accused No.7 Subhash Chand Gupta, accused No. 8 Shobhit Supta, accused No.9 Vipul Gupta, accused No.10 Smt. Pooja Supta and Master Archit Gupta (minor). Since there is no nominee appointed by the firm all the partners except master Archit Gupta (minor) are liable. Being a partnership firm accused No. 5 M/s Surya Kiran Trading Corporation is also liable.
6. It is further stated that the sample commodity was purchased by accused No. 5 M/s Surya Kiran Trading Corporation from accused No. 11 M/s Dharam Pal Satya Pal Ltd. 276 FIE, Patparganj Delhi- 92 which is a consignee agent of D.S. Foods Ltd. Accused No. 11 Dharam Pal Satya Pal Ltd has appointed accused No.12 Anil Kumar as its nominee under the PFA Act as such nominee and Company are liable. Accused No.11 M/s Dharam Pal Satya Pal Ltd has purchased the sample commodity from accused No. 13 CC No. 39228/2016 Page No. 6/14 DA vs Om Prakash Totlani etc. M/s DS Foods Ltd., Corporate office: A-85, Sector-2, Noida- 201301 (UP), works at B-l, Sector-3, Noida-201301, District Gautam Budh Nagar. Accused No.13 M/s DS Foods Ltd. has appointed accused No.14 Rajesh Gupta as its nominee under the PF A Act and he is incharge and responsible for the day to day conduct of the said business. Being a company accused No.13 M/s D.S. Foods Ltd. is also liable.
7. Thereafter on completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 17.05.2004 alleging violation of section 2(ix) (e) (g) & (k) of PFA Act, as punishable section 7/16(1)(a) of PFA Act against the accused.
8. 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 17.05.2004. The accused thereafter exercised their option of analysing the counter part through CFL under section 13 (2) of the PFA Act. Based on the report of the CFL that vegetarian symbol was not displayed on the label notices were framed against the accused for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Rule 42 and 47 of PFA Rules to which accused pleaded not guilty and claimed trial. During the trial proceedings against the accused No. 4 & 6 were abated and proceedings qua accused No. 5 to 10 were quashed by the Hon'ble High Court of Delhi vide order dated 14.05.2009.
9. At the trial, the prosecution examined four witness in support of its CC No. 39228/2016 Page No. 7/14 DA vs Om Prakash Totlani etc. case i.e. PW-1 Sh S.K. Sharma, PW-2 FI Sh Bal Mukund, PW-3 SDM/LHA Sh S.M. Haidar and PW-4 FI Jeet Ram. PW-1 and PW-4 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh S.M. Haider. These witness 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 6x135 gms Pass Pass Mouth Freshener from the accused, bearing label declaration, dividing the sample commodity into three equal parts by putting into three equal part as such in original condition by putting two sealed polypackets of sample commodity in one counterpart, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex.PW-1/C. A notice u/s 14 A Ex.PCW1/D addressing to M/s Jain Provision Store was also prepared at the spot and was sent through registered post on the next day. Thereafter, the one counterpart of the sample was deposited in intact condition with PA on 26.06.2002 vide receipt Ex.PW1/E and remaining two counterpart of the sample was deposited with LHA vide receipt Ex.PW1/F. Thereafter, PA Report Ex.PW-1/G was received according to which sample was found misbranded as the ingredients declared are misleading as saffron is absent which was declared as one of the ingredient in the sample commodity. Thereafter PW-1 sent six letters Ex.PW1/H1 to H6 to vendor and received replies Ex.PCW1/H7 to H9 along with documents mark Z. He also sent letter Ex.PW1/H8 to STO Ward No. 07. PW-1 received letter Ex.PW1/H10 from M/s Yamu Panchayat stating CC No. 39228/2016 Page No. 8/14 DA vs Om Prakash Totlani etc. that Smt. Anita Lalwani is working as partner and responsible for day to affairs of the shop. Thereafter PW-1 sent six letters Ex.PWI1/I1 to I6 to M/s Jain Provisions and received reply Ex.PW1/I7 alongwith documents. PW-1 also sent letter Ex.PW1/I8 to STO Ward No. 7 and received reply. He also sent four letters Ex.PW1/J1 to J4 to M/s D.S. Foods and received reply Ex.PW1/J5 to J9. Thereafter, the matter was marked to PW-2 FI Bal Mukund, who during the investigation sent letters Ex. PW-2/A to Ex. PW-2/B to STO Ward No. 8 seeking the information on the constitution of M/s Surya Kiran Trading Corporation and received its reply at portion X on Ex. PW-2/B where name of the partners has been disclosed. PW-2 FI Bal Mukund collected the photocopy of Partnership Deed Ex. PW-2/C from the Office of STO Ward No. 8 duly attested by Assistant Sales Tax Office, Ward No. 8. PW-2 FI Bal Mukund also sent a letter Ex. PW-2/D to M/s Surya Kiran Trading Corporation seeking the information on the constitution of above mentioned firm and received its reply Ex. PW-2/E along with photocopy of documents Mark Y-1 to Mark Y-3. PW-2 also sent a letter to LHA PFA Department for seeking the information regarding the nomination of above mentioned firm and received its reply at portion X. PW-2 also received a letter Ex. PW-2/G from Dharmpal Satpal Ltd alongwith photocopy of the Bills Mark Y-4 and Y-5. PW-2 also sent a letter Ex. PW-2/H to M/s Dharmpal Satpal Ltd asking him to disclose as from where they have purchased the sample commodity and received its reply Ex. PW- 2/l alongwith photocopy of nomination in favour of Sh. Anil Kumar Mark Y-6. PW-2 FI Bal Mukund also sent a letter Ex. PW-2/J to LHA PFA Department for seeking information for knowing the name of nominee M/s Dharmpal Satpal and received its reply at CC No. 39228/2016 Page No. 9/14 DA vs Om Prakash Totlani etc. portion X stating that Sh. Anil Kumar was the nominee of the said firm alongwith photocopy of nomination form Mark Y-7 and photocopy of resolution Mark Y-8. Thereafter, PW-2 FI Bal Mukund handed over another letter Ex. PW-2/K to M/s Dharmpal Satpal. After completion of investigation the entire case file was put before the concerned SDM/LHA who forwarded the same to Sh. V.K. Singh the then Director of PFA for obtaining the sanction and the then Director PFA after going through the same gave his consent for prosecution Ex. PW-2/L. After getting sanction PW-2 FI Bal Mukund filed the complaint Ex. PW-2/M in the Court and then intimation letters Ex. PW-2/N alongwith copy of PA Reports were sent to accused persons through SDM/LHA Sh. l.D. Pandey through registered post vide postal registration receipt Ex. PW- 2/O which were not received back undelivered. The witnesses were duly cross examined by the Ld Defence Counsel.
10. Statement of the accused under section 313 Cr.P.C. were recorded on 12.01.2017 wherein the accused denied the allegations and pleaded innocence. The accused has not led any defence evidence and the matter was fixed for final arguments.
11. In a criminal case, the burden is only on the prosecution to prove its case against the accused beyond reasonable doubt by leading positive evidence. This burden cannot be shifted to the accused and it has to be necessary discharged by the prosecution itself.
12. The present case alleges misbranding on the label of Pass-Pass Mouth Fresheners and Rajni Supari pouches collected from the business concern of the accused no.1. The sample pouches have CC No. 39228/2016 Page No. 10/14 DA vs Om Prakash Totlani etc. been analysed twice, firstly by the PA and secondly, by the CFL.
13. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
14. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
15. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once CC No. 39228/2016 Page No. 11/14 DA vs Om Prakash Totlani etc. superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
16. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed as under:-
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would CC No. 39228/2016 Page No. 12/14 DA vs Om Prakash Totlani etc. be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
17. The defence has relied upon the judgment of Hon'ble High Court of Delhi in S.S. Gokul Krishanan & Others vs State 2009(1) FAC 132 to argue that there was a policy of the complainant department of 1985 numbered as Policy No F6(228)/85/ENF/PFA wherein a decision was taken to give a written warning to the offenders with regard to any deficiency in respect of Rule 32 of the PFA Act. Although this policy was withdrawn by order No. 5/07 dated 14.09.2007 but since this case was filed May 2004, the accused are covered by aforesaid policy. Although, no such policy has been placed or proved on record by other side and this policy was further withdrawn as per the aforesaid judgment on the ground that Section 20 of the PFA Act does not confer any such power on the consenting authority to issue such warning to the vendors found violating Rule 32 of the PFA Act.
18. Be that as it may, PFA Act or Rules does not provide any such warning but since the benefit of this policy has been given in the case of S.S. Gokul Krishnan (referred above), I feel myself bound by the ratio of that case. Therefore as far as misbranding is concerned, since, it is not the case of the prosecution that the accused were given earlier a warning and despite that they continued with the offence, the accused are given the benefit of this policy and therefore they shall not be liable for violation of Rule 42 and 47 of PFA Rules. The judgment of Gokul Krishnan (supra) has also been followed in the judgment of M/s Bunge India Pvt Ltd & Others vs State & Another Crl.MC 439/2008 CC No. 39228/2016 Page No. 13/14 DA vs Om Prakash Totlani etc. dated 20.01.2011 and recently in Hello Minerals Water PVT LTD & Ors vs State CRL.MC.224/2016 dated 10.01.2018.
19.On the basis of aforesaid discussions, the accused No. 1,2 3, 11,12,13 & 14 are acquitted from this case.
Announced in the open court this 19th day of March, 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 39228/2016 Page No. 14/14 DA vs Om Prakash Totlani etc.