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Delhi District Court

Bharat Arora S/O Sh. Rs Arora vs Delhi Administration on 30 November, 2011

        IN THE COURT OF SH.SURESH CHAND RAJAN
     ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
               (New Delhi & South East District)
            PATIALA HOUSE COURTS, NEW DELHI


Crl. Appeal no.19/10

1. Bharat Arora s/o Sh. RS Arora
2. M/s Har Narain Gokul Chand
3. Ajay Shankar Arora s/o Sh PS Arora
                                                            ....Appellants
Vs. 

Delhi Administration 
                                                         .....Respondents 
ORDER

The present appeal u/s 374 Cr.PC has been preferred for setting aside the Judgment dated 04.07.2000 passed by Sh Manoj Jain, Ld. MM in case FIR no. 284/89 thereby convicting the appellants u/s 16(1) r/w sec. 7 of PFA Act and thereafter sentencing the appellants vide order dated 6.7.2000; ordering to undergo SI for six months with fine of Rs.2000/­ each, in default SI for 15 days.

2. Briefly stated the facts for giving rise to this appeal are that on 19.12.1988 at 1 p.m, Food Inspector SK Nagpal purchased sample of murraba mixed fruit from accused Bharat Arora at M/s Har Narain Gokal Chand, B­3/1 Lawrence Road Indl. Area, Delhi where the same was stored for sale. Sample was taken from sealed tin having label declaration Bharat Arora etc Vs. Delhi Admn.

and it was purchased after proper mixing. Sample was divided in three equal parts and each part was put in separate clean and dry bottle and each bottle was separately packed and sealed. Statutory documents were prepared at the spot and when one counter part of the sample was sent to Pubic Analyst, he found the same not conforming to standards. He opined that nature of article purported to be murraba mixed fruit whereas it was found containing vegetables other than fruits. He also found permitted coal tar colours in the counter parts of the sample whereas there was no declaration to that effect upon the label. Necessary investigation s were accordingly carried out and accused no.2 is the firm in question i.e M/s Har Narain Gokal Chand and accused no.3 Ajay Shankar Arora is its nominee. Seven other accused were found to be partners of accused firm and also responsible for the conduct of business of the accused firm and accordingly after obtaining consent for prosecution from Director PFA, present complaint was filed against all the accused persons on 12.07.1989 before the Ld. Trial court. The accused persons were summoned and vide order dated 12.09.1995 passed by Sh Prithvi Raj,Ld. ASJ, no prosecution was found maintainable against accused no.4 to 10 and trial court was directed to commence proceedings qua accused three accused. All the three accused M/s Har Narain Gokal Chand, Bharat Arora and Ajay Shankar Arora were served with notice u/s 251 Cr.PC for contravening sec. 2(i­a) (a), 2 (ix) (g) (k) of PFA Act and Rule 24 and 32 of PFA rules punishable u/s 16(1) r/w sec.7 of PFA Act to which they pleaded not Bharat Arora etc Vs. Delhi Admn.

guilty and claimed trial. Thereafter prosecution led its evidence by examining complainant PW1 P.K.Jaiswal, PW2 S.K.Nagpal (Main Food Inspector), PW3 FI Virender Singh (attesting witness), Pw4 S.C.Anand (Sales tax official). Statement of accused/appellants u/s 313 Cr.PC were recorded in which they pleaded their innocence. The accused/appellants also examined DW1 Narender Kumar and DW2 R.K.Bansal in their defence. Thereafter, after hearing the arguments from the Ld. Counsels, Ld. MM has held all the accused guilty and convicted them u/s 16(1) r/w sec.7 of PFA Act for contravening Sec.2(i­a) 9a) and Sec.2 (ix) (e) & (k) PFA Act and Rule 32 of PFA Rules and vide order dated 06.07.2000 ordered them to undergo SI for a period of six months with fine of Rs. 2000/­ each, in default SI for 15 days. Rs.10,000/­fine was also imposed on convict firm by the Ld. MM. Feeling aggrieved by the said Judgment and order on sentence, the present appeal was preferred for setting aside the said order.

3. The present appeal was received by the court of Sessions on 03.08.2000 upon which notice was issued to respondent and trial court record was summoned. Thereafter the appeal was fixed for arguments. The appeal was received by this court on transfer on 11.10.2010. I have heard the arguments on this appeal from the Ld. Counsel for the appellant as well as Ld. Chief PP Sh. AK Padhi for respondent.

4. During the course of arguments, Ld. Counsel for the appellant Bharat Arora etc Vs. Delhi Admn.

has argued that the conviction and sentence of the appellant is contrary to law and Ld. Trial court has not appreciated that if a vegetable is processed, the end product ceases to be vegetable, the product becomes an entirely different item and the vegetable looses its identity. He relied upon a Judgment 2000 FAC 193, Edward Keventer Vs. Bihar State Agr. Market Board). Ld. Counsel has further contended that trial court has not appreciated that the sample in question is a propritory food and can be marketed under its proper name. Ld.counsel further argued that the Ld. Trial court has accepted the opinion of the food inspector as evidence that the sample commodity was kept for sale, quite against the proved facts that no sale takes place in the factory premises of the appellants from where the sample was lifted. Office order no. F­6(2193)/93 PFA dated 25.5.93 has not been considered where the respondent has stated its position regarding the sale of food articles from the open. Notification of Sales Tax Department of Delhi Administration has not been considered which distinguishes sale of achaar and murabba in sealed containers from when the sale is made from the open. It has further been argued that the entire evidence has been completely mis­appreciated without giving thought to the definition of fruit products order which processed vegetables from other fruit products. Ld. Trial court has failed to appreciated that the sampled commodity is used by bakers in their fruit cake and fruit bread by fixing the individual items on their top. It has been argued that the Ld. Trial court has not given due weightage to the defence Bharat Arora etc Vs. Delhi Admn.

and the Judgment of Hon'ble Supreme Court relied upon by the Ld. Trial court does not apply to the facts of the present case. It has been prayed that the order passed by the ld. Trial court may kindly be set aside and accused may be acquitted.

5. On the other hand, Ld. Chief Prosecutor for the Respondent/State PFA Deptt (Delhi Admn.) has argued that there is no requirement under the law that for the purpose of prosecution the sample articles should be injurious to health an the charge framed in this case is not for that. He has drawn the attention on section 7 of PFA Act and stated that no person on his behalf manufacture for sale, or store, sell or distribute any food article if adulterated or misbranded and accordingly in the present case manufactured in factory premises and sold the article to Food Inspector, is liable. So the sale from factory is complete and as accused is liable. He has argued that carrot(muli) 22% and ginger 12% are not fruits because a fruit is a raped seed bearing part of a woody tree derived from horticulture and the vegetable is the green and leaf like appearance cultivated seasonally with edible parts . Ld. Chief Prosecutor has further argued that once the mandatory three documents i.e. vendor receipt, Form VI and Panchnama are signed by the vendor then the sale of the product is complete and the vendor cannot reclaim that he has never sold the food article to the Food Inspector. It has been submitted that u/s 7 of PFA Act even storage, distribution and manufacturing are offences under PFA Act, Bharat Arora etc Vs. Delhi Admn.

not there is any requirement for any display of food article for sale. He has drawn the attention on the written arguments dated 8.3.2004 that the sample article was manufactured for sale and it has been stored there in the factory for onward transmission to its shop it Kharibowli for sale. It is never the case of the appellant that the food article sampled was not for sale. Ld. Chief Prosecutor has further argued that the Judgment and order passed by the Ld. Trial court is a legal order and it does not call for any interference by this court. Utmost care has been taken by the Ld. MM while passing the order. There is no infirmity in the order and it has been prayed that the appeal may kindly be dismissed.

6. In consideration of the arguments advanced by the Ld. Counsel for the appellant as well as Ld.Chief Prosecutor, I have also perused the trial court record and evidence adduced by the respondent. PW1 Dr. P.K.Jaiswal has visited the premises of M/s Har Narain Gokul Chand on 19.12.88 where Food Inspector SK Nagpal disclosed his identity and purchased 1500 gms mixed fruit murabba on payment of Rs.30/­ vide receipt Ex.PW1/A. The sample was taken out from the sealed tin after mixing the entire quantity of murabba. The samples were kept in three dry and clean bottles. Notice in form VI Ex.PW1/B was given to the accused. Label observation was also reproduced by Food Inspector. Panchnama is Ex.PW1/C. Empty tin was taken into possession vide memo Ex.PW1/C. Food Inspector prepared its report which is Ex.PW1/D. On 20.12.88, the Bharat Arora etc Vs. Delhi Admn.

sample was deposited to Public Analyst vide receipt Ex.PW1/E. The report of public analyst is Ex.PW1/F which was found adulterated. Documents were submitted to Director, PFA who accorded his consent Ex.PW1/G. He filed the complaint Ex.PW1/H against the accused persons. He sent intimation letter Ex.PW1/J to accused persons.

7. PW2 S.K.Nagpal has also deposed that he purchased murraba for Rs.30/­ vide receipt Ex.PW1/A from accused on 19.12.88. He prepared notice in form VI which is Ex.PW1/B. He divided the purchased quantity of murraba in three glass bottles and put paper slip bearing the signature and code number of LHA. Panchnama is Ex.PW1/C. He deposited the sample and copy of memo VII to Public analysit vide receipt Ex.PW2/A. After receipt of report investigation was conducted and Bharat Arora was found responsible for day to day conduct of the firm. Intimation letter and PA report was sent to him. He has further deposed that Bharat Arora, Ajay Shanker as well as firm M/s Har Narayan Gokal Chand through representative Bharat Arora have received the same at point A,B, B1 and C on Ex.PW1/K.

8. PW3 Food Inspector Virender Singh was accompanied FI S.K.Nagpal to the premises of Har Narayan Gokal Chand and he has also deposed about purchasing murraba of 1500 gms from the vendor for Rs. 30/­ vide receipt Ex.PW1/A. He has also deposed about the procedure Bharat Arora etc Vs. Delhi Admn.

carried out by PW2 at the premises.

9. PW4 S.C Anand from Sales Tax Tribunal and he has produced the record of M/s Har Narayan Gokal Chand and stated that it was having 10 partners.

10. I have also perused the defence evidence. DW1 Narender Kumar is the clerk of Harnarain Gokal Chand who has stated that there is no sale at the factory premises of lawrence road and only manufacturing is carried out at the factory. Dw2 R.K.Bansal is the Director, Fruit and Vegetable processing, Ministry of Food Processing Industries. He has been shown the P.A report Ex.PW1/F. He has deposed that murraba is a Hindi word and it is unspecified product and categorised under clause 2(d) (xv) . Photocopy of the extract is Ex.DW2/DX. Sale of this kind of murraba is permissible under the FPO order. No licence under PFA is required if manufacturer is licenced under FPO. I have also perused the cross examination of all the PWS and DWS. I have found some contradictions in their testimonies but those are of trivial nature which can be possible due to lapse of time. All the three PWS who had visited the premises of accused/appellant have given corroborative statements. I have also perused the Judgment passed by the Ld. Trial court and perused the documents available on file. All the statutory documents required under the Act i.e. vendor receipt Ex.PW1/A, notice form VI Ex.PW1/B and Bharat Arora etc Vs. Delhi Admn.

Panchnama Ex.PW1/C have been placed on record and duly proved on record. The report of the Public Analyst is Ex.PW1/F showing percentage of vegetables other than fruits 34% (carrot 22% and ginger 12%). It was opined in the report that the sample does not conforms to the standard and nature of article it purport to be (murabba mixed fruits) as it contains vegetables other than fruits (34%). Ex.PW4/A shows that Appellants are the partner of Ms/s Har Narain Gokal Chand. It is not disputed by the appellant that Food Inspector S.K.Nagpal did not visit the premises and did not purchase murraba from him on 19.12.1988 which clearly establish that PW2 alongwith PW1 and 3 had visited the premises of appellants and purchased murabba from there. The documents in this respect are duly proved on record. It is also not disputed by the appellants that the samples were not sent to Public Analyst or that the report of Public Analyst is not correct or procured one. Therefore, it is emphatically clear that samples were sent to Public Analyst who has given Ex.PW1/F. The report is also within time. On perusal of the Judgment passed by the Ld. Trial court, I am of the view that Ld. MM has discussed each and every aspect of the case and delivered a reasoned judgment. There is no need to interfere in the said judgment passed by the Ld. Trial court. The Judgment dated 04.07.2000 is maintained.

11. I have also perused the order on sentence dated 06.07.2000. The appellants were sentenced to SI for a period of six months and to pay fine Bharat Arora etc Vs. Delhi Admn.

of Rs.2000/­ each and appellant firm was fined Rs.10,000/­. The fine imposed had been duly deposited by the appellants on 06.07.2000 itself. The present case complaint Ex.PW1/H was filed 12.07.1989. Ld. MM has disposed of the case on 06.07.2000. Thereafter appeal was preferred on 03.08.2000. Therefore, trial of present case run for 21 years. In case law 2010(1) FAC 19 titled Karam Chand Vs. The State of Haryana it is stated in head note that :­ 'Prevention of Food Adulteration Act, 1954 - Sec.7/16(1) (a) (i) - offences under - Sample of milk found adulterated on chemical analysis - prosecution proved the case against the petitioner beyond reasonable doubt- conviction orders of the trial court maintained - petitioner suffered protracted trial for 23 years - released on probation for one year at Rs.10,000/- revision petition disposed with cost of Rs.20,000/- to be paid by the petitioner within 3 months.' In case Law 2010(1) FAC 1 titled Satish Vs. State of Haryana it is stated in head note that :-

'PFA Act, 1954 - Sec.7/16 - conviction under - reduction in sentence

- sample of milk taken - sent to laboratory for analysis - public analyst found the sample adulterated as sample not conformed to minimum standard prescribed - petitioner suffered protracted trial for 19 years - conviction order maintained and sentence of imprisonment converted to fine of Rs.10,000/- - revision petition disposed - held no reduction in sentence to the petitioner, if fine not deposited within one month. (Reference can also be made to case law 2010 (1) FAC 69, 2010(1) FAC 94).' In case Law 2010 (1) FAC 61 titled Sardara Ram Vs. State of Haryana it is stated in head note that :-

'Prevention of Food Adulteration Act, 1954 - Sec. 16(1) (c) - officence under - Food Inspector inspected the Kiryana shop of the petitioner and prepared notice for taking the sample of zeera - petitioner ran away from the shop - no appeal against petitioner conviction - suffered protracted trial for 21 years - remained in custody for one and a half month - conviction orders of the trial court maintained and sentence reduced to the period already Bharat Arora etc Vs. Delhi Admn.

undergone - fine amount enhanced to Rs.15,000/- held no reduction in sentence, if fine not deposited within 2 months.' In case titled Pardeep Kumar Vs. The State (UT) Chandigarh in criminal revision no.889/1986 decided on 27th April 1993 it was held that :-

'Speedy trial - essence of justice - inordinate delay in the disposal of the case itself caused sufficient agony to the petitioner - fit case where the petitioner should not be sent to jail at this stage and sentence awarded may be reduced - the sample was taken in the year 1984, i.e. more than 9 years back and the present revision petition is pending since 1986. Thus, the petitioner has faced this protracted litigation and has undergone sufficient mental harassment - fit case where no useful purpose would be served by sending the petitioner to jail at this stage for undergoing the remaining period of sentence of imprisonment. (Reference can also be made Braham Dass Vs. The State of Himachal, 1988(2) FAC 13.

12. In view of the above case laws, the accused/appellants have been facing trial for more than 20 years. In case Law Lajpat Rai Vs. State of Haryana, 2010(1) FAC 140: 2010 (1) RCR Criminal 311 the Hon'ble court had taken into consideration the judgment rendered by various Single Benches of the court and had come to the conclusion that the right of speedy trial vests in the accused and protracted trial can be construed as one of the mitigating circumstances. The present appellant Bharat Arora is around 58 years old and appellant Ajay Shankar Arora is around 72 years old now. They are not reported to be involved in any other case after this case. They both have faced protracted litigation for more than 20 years which itself has caused sufficient agony and mental harassment to them. Therefore, I do not find any useful purpose would be served in sending the appellant to jail at this point of time for undergoing simple Bharat Arora etc Vs. Delhi Admn.

imprisonment and I think that it is a fit case to convert the sentence while maintaining the conviction.

13. Since in the present case, appellants have also suffered a protracted trial for more than 20 years and have undergone sufficient mental agony and harassment, I find that the appellants are also entitled to the benefit of the consistent view taken by the Hon'ble High Courts. Therefore, sentence of the appellants is converted to fine and now both the Appellant no.1&3 are further sentenced to pay fine of Rs.8,000/­ each. Respondent no.2 firm was already fined Rs.10,000/­ which in my opinion is just and proper fine. Therefore, sentence of Appellant no.2 i.e.firm remained unchanged. In case, fine is not deposited within 10 days, the benefit of conversion in sentence of Appellant no.1&3 shall not accrue to the appellants. With these modification and observations made above, the appeal is disposed of. Trial court file be sent back with the copy of this order and appeal file be consigned to record room.

Announced in the Open Court on 30.11.2011.

(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court­New Delhi and South East District) NEW DELHI Bharat Arora etc Vs. Delhi Admn.