Delhi District Court
State Of Punjab [1986(3) Pfa Cases 66] ... vs . State Of on 2 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 5/10
Unique Case ID No. 02403R0005502010
Date of Institution: 04.01.2010
Date of reserving judgement: 30.06.2016
Date of pronouncement: 02.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Sh. Anurag Batra
S/o. Late Sh. Yashpal Batra
R/o. House No. N-20, Kirti Nagar,
New Delhi-110015 ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused is stated to be the vendor-cum-proprietor of M/s. Kundan Lal & Sons, from where the food article, that is, 'Merman Milk Chocolate' was lifted for sampling.
CC No. 5/10 Page 1 of 162. As per the complaint, on 03.10.2008, the food officials consisting of Food Inspector (FI) Chander Bhan and Field Assistant (FA) J. S. Bisht under the supervision of Local Health Authority (LHA)/SDM Sh. Pradeep Baijal reached along with their staff at the premises of M/s. Kundan Lal & Sons at Shop No. 31, Narayan Market, Sadar Bazar, Delhi-06, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'Merman Milk Chocolate from the vendor, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 10.11.2008, the PA found the sample to be misbranded being in violation of Rule 32(c)(1) and Rule 32(i) of PFA Rules. However, the Milk Chocolate was found conforming to the standards. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After 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 04.01.2010 alleging violation of section 2(ix)(k) read with section 5(ii)/7 of PFA Act as punishable under Section 16(1)(a) of PFA Act and violation of Section 14-A as punishable under section 16(1C) of PFA Act.
CC No. 5/10 Page 2 of 163. 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 04.01.2000.
4. Based on the PA report, notice of accusation under Section 251 CrPC was framed against the accused vide order dated 06.04.2010 for commission of the offences under section 16(1)(a) and section 16 (1C) of PFA Act read with Section 5(ii)/7 of PFA Act being in violation of section 2(ix)(k) and section 14-A of PFA Act read with Rule 32(i) and Rule 32(c)
(i) and (iii) of PFA Rules, to which he pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined three witnesses in support of its case. PW-1 Sh. Pradeep Baijal was the SDM / LHA, PW-2 Sh. C. B. Boora was the FI and PW-3 Sh. J. S. Bisht was the FA who were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the steps undertaken by them in lifting the same and also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice in Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, Raid Report Ex. PW-1/D, PA receipt Ex. PW-2/A and LHA receipt Ex. PW-1/E. PA report Ex. PW-1/F was received which opined the sample to be misbranded on the ground that the label was without declaration of name and complete address of the manufacturer and the best before date. Based on the report, investigation was carried out by PW-2 who wrote various letters to the vendor seeking information. It transpired that the business concern M/s. Kundan Lal & Sons was the proprietorship concern of accused Anurag Batra after the death of his grandfather Sh. Kundan Lal CC No. 5/10 Page 3 of 16 and his father Sh. Yaspal Batra. Vide his letter Ex. PW-2/C4, the accused stated that the bill of purchase of the sample commodity was not traceable and that he was unable to produce the same. After completion of investigation, consent Ex. PW-2/D was obtained from the Director, PFA and thereafter, complaint Ex. PW-2/E was filed in the court by the FI. Intimation letter Ex. PW-2/F along with copy of PA report were sent to the accused through post by the LHA. During cross-examination, the witnesses accepted that there was a policy of the department to issue warning in case of first time violation of Rule 32 of PFA Rules, though it was informed that the said policy stood withdrawn in September 2007.
6. Statement of the accused under section 313 CrPC was recorded on 25.08.2012 wherein he accepted the sample proceedings conducted on 30.10.2008, though claimed that it was the manufacturer who was responsible for all misbranding. He did not lead any evidence in defence.
7. In these circumstances, Ld. SPP for the complainant has argued that the prosecution has been able to prove its case beyond reasonable doubt against the accused as he has not been able to rebut the findings of the PA report. It is submitted that even the accused has accepted the factum of misbranding, though has taken defences that it was the responsibility of the manufacturer and that he was covered by the departmental policy of issuing warning. Ld. SPP has argued that the stand of the accused fails on both the counts as a seller is also responsible for selling misbranded food and also that the policy was not in existence on the day of sampling having already been withdrawn.
CC No. 5/10 Page 4 of 168. On the other hand, Ld. Defence Counsel has argued that the accused was only a small retailer and not the manufacturer of the product who should be held primarily responsible to ensure labelling requirements. It is submitted that the PA report is doubtful having been signed after about one month from the day of analysis. It is then submitted that the 'shelf life' of the product had been mentioned on the label and it cannot be said that the best before date was not mentioned. It is finally submitted that the prosecution was bad in law as the power to file the complaint could not have been delegated by the Director, PFA in his consent letter.
9. I have heard the arguments as advanced by both the sides and have carefully perused the material available on record.
10. It is pertinent to note that the present is a case of misbranding and not adulteration as defined in the PFA Act. To establish a case of misbranding, no chemical analysis of the product is required as it is a matter of physical examination of the contents of the label on the package of the food. Chemical analysis in laboratories is required to determine adulteration of food, for which duly qualified PAs are appointed. However, whenever a sample is lifted by the FI, the same is sent to the PA to ascertain if the same conforms to the requirements of PFA Act and Rules. When the product is with the PA, it is required to be chemically analysed to determine if its composition is as per the standards prescribed under the rules and also its physical analysis to determine if the sample is conforming to all other standards prescribed under PFA Rules including CC No. 5/10 Page 5 of 16 the labelling and packaging rules. Since the product in this case was found to be conforming to standards on all the parameters prescribed under the PFA rules upon chemical analysis, technically speaking, the court need not go into the PA report to ascertain if the product was misbranded or not. Misbranding can be established only by going through the label declarations without being influenced by the opinion given by the PA. Since no chemical analysis is required to ascertain misbranding, there would no purpose to send the sample to any other laboratory including the Central Food Laboratory (CFL) under section 13(2) of PFA Act. Any further analysis would not have made any difference in the contents of the label on the product, though the CFL opinion would have some relevance with respect to the chemical analysis of the product, in which case the CFL certificate would have been final and conclusive in terms of section 13(3) and (5) of PFA Act.
11. In the present case, PW-2 deposed that the intimation letter had been sent to the accused through post. Though no postal receipt in original has been produced on record, yet it is to be seen that this fact has never been disputed by the accused. It is nowhere the stand of the accused that no intimation letter was received by him or that his right to send the other counterpart of the sample under section 13(2) of PFA Act stood frustrated in any manner. No such suggestion was given to this effect to any PW during cross-examination at the trial nor any such stand was taken by the accused even in his statement under section 313 CrPC. Even otherwise, such right would have been relevant had it been a case of adulteration in the food article when the chemical analysis by CFL would CC No. 5/10 Page 6 of 16 have material bearing on the case. But when the issue is not adulteration but only misbranding of the article, no chemical analysis of the product would make any difference. Any amount of delay in filing the complaint or even non-service of intimation letter would not have frustrated the right of the accused under section 13(2) of PFA Act as there would have been no change in the contents of the label. To ascertain misbranding, no chemical analysis of the product are required to be done by any scientific analyst.
12. The contents of the label on the food products had been reproduced by the FI on Form-VI Ex. PW-1/B. The said document was prepared at the spot and also bears the signatures of the accused. It is nowhere the case of the accused that all the contents were not reproduced on this document by the FI or that the contents were incompletely or wrongly reproduced by him. It is not the stand of the accused that some other contents were also there on the label which the FI failed to mention in Ex. PW-1/B. No such stand has been taken by the accused at any stage of the trail including the examination of the witnesses or his statement under section 313 CrPC.
13. A perusal of Ex. PW-1/B would reveal that the manufacturing date had been mentioned as 30.04.2008 and shelf life (written as 'self life') of the product was mentioned as "18 months" on the label of the product. Similarly, one "M.K. Marketing, Delhi" was mentioned to be the Importer of the food article, without giving any further details.
CC No. 5/10 Page 7 of 1614. Importantly, the accused has never disputed the contents mentioned on the said label and also the shortcomings therein. As per Rule 32(c)(i)/
(iii) of PFA Rules, it is required that the name and complete address of the manufacturer / importer are given on the label. Similarly, as per Rule 32(i), the month and year have to be mentioned in capital letters up to which the product is best for consumption in the specified manner, viz.
"BEST BEFORE.......MONTH AND YEAR", "BEST BEFORE...... MONTHS FROM PACKAGING", OR "BEST BEFORE......MONTHS FROM MANUFACTURE".
15. In the present case, there can be no doubt that the address of the importer / manufacturer has not been completely given on the product. No address of M.K. Marketing, stated to be the importer of the product, has been given except that it is in Delhi. For that matter, it is not even clear if the said product had been manufactured in India or had been imported from some other country, except that the product mentioned that it was "Made in China". No name of manufacturer in China or its address is there on the label. It is apparent that there is a clear violation of Rule 32(c) of PFA Rules on this count. Any person aggrieved by the product as to its quality, substance or nature would not be able to contact any person who had manufactured or packed or imported the product for want of such details of the manufacturer or importer and he would be incapacitated to take up his grievance with him.
16. As far as Rule 32(i) is concerned, though it is correct that the words "self life 18 months" (should be "shelf life") was mentioned after CC No. 5/10 Page 8 of 16 mentioning the manufacturing date, yet it is clear that the said labelling was not as per the specific language used in the rule. The words "Best Before" as required by the rules have not been mentioned, and there is no explanation for the same. If specific language is prescribed under the rules, such rules have to be complied with and it would not give the seller a reason to change the prescribed language on the ground that the meaning be conveyed is the same. If that is permitted, that would lead to chaos as every manufacturer would be then at liberty to use any language whatsoever and then pretend that the meaning conveyed was the same.
17. As a matter of fact, the meaning being conveyed through the label declaration in this case would still be incomplete even if the same is considered as a whole. The court is well aware of the precedent titled as Ram Babu Rastogi v. State [2012 (1) FAC 56 (Delhi High Court)], where it has been laid down that mere adding of the word "within" in the prescribed language would convey the same meaning as required under the rules. But the present case is factually different from the said precedent. It is not only the use of the word "self / shelf life" instead of "best before" date, but also omission of the words "packaging / manufacture" from which the shelf life had to be calculated, which is incriminating. The court is not required to view the things from angle of a well educated person but has to consider the same from the sight of an ordinary consumer who may not be well versed or literate enough to understand the implications of such technical words. Simply stating, from the language used, it is not clear if the shelf life had to be calculated from the date of manufacturing or the date of sale or the date of opening the CC No. 5/10 Page 9 of 16 package. There are many products the shelf life of which would start after the product is opened by the consumer, though the best before date is different. But when no such date has been mentioned from which the shelf life is to be calculated and no separate best before date has been mentioned, a consumer might be misled by any mischievous seller and made to believe that the shelf life would start after the opening of the product irrespective of the manufacturing date. From this angle, the product would be misbranded being in violation of PFA Rules.
18. Interestingly, even the accused has not seriously disputed the violation of PFA rules in his defence. It is nowhere his stand that the address of the manufacturer or importer was complete as mentioned on the label. At the same time, his stand that only the manufacturer was responsible for labelling, would not be a reason to exonerate him from selling misbranded food. A manufacturer, packer, distributor and seller operate in different fields and in their own spheres. A seller of misbranded food is equally liable as the manufacturer of the product. Section 7 makes both the seller and manufacturer liable for such misbranded food. The only escape from the clutches of law available to an accused is section 19(2) of PFA Act which provides that a vendor shall not be deemed to have committed the offence if he has purchased the commodity through a warranty in writing as per the prescribed format (Rule 12-A of PFA Rules read with Form VI-A) and had sold the same in the same state as was purchased by him. As per proviso to section 14 of PFA Act, a bill, cash memorandum or invoice in respect of sale of any article of food given by a manufacturer or distributor or dealer to the CC No. 5/10 Page 10 of 16 vendor shall be deemed to be a warranty. Therefore, unless the accused is covered by the said provisions of warranty, he would be equally liable for selling misbranded food. In the case at hand, no such benefit of warranty has been taken by the accused. And when there is no warranty, in writing and in prescribed format as per the rules, the accused cannot simply shift the entire blame on the manufacturer.
19. Taking this further, it is clear that in the absence of the complete details of the manufacturer or importer, no such person could be identified so as to put the blame to him. It would be an anomaly to say that the entire burden would be on the manufacturer who could never be identified for prosecution. Such an interpretation would rather defeat the provisions of the law.
20. Admittedly, no benefit of warranty has been claimed by the accused in the present case. The accused never furnished the details of the supplier or manufacturer of the commodity at the spot on the day of sampling. Vide letters dated 19.12.2008 Ex. PW-2/C, dated 11.02.2009 Ex. PW-2/C1 and dated 10.09.2009 Ex. PW-2/C2, the FI had requested the vendors to inform the details of the supplier from whom the product had been purchased and to furnish the bill thereof. However, vide his letter dated 25.03.2009 Ex. PW-2/C3, the accused herein did not reply on the point of the bill and vide his subsequent letter dated 03.11.2009 Ex. PW-2/C4, he stated that the bill was not traceable and that he was unable to produce the same. Thus, the accused has not only failed to claim the benefit of CC No. 5/10 Page 11 of 16 warranty but also failed to comply with the provisions of section 14-A which requires him to disclose the details of the supplier.
21. As per section 14-A, every vendor has to disclose to the FI if required by him, the name, address and other particulars of the person from whom he purchased the food article. Failure of the accused to give such details has resulted in violation of section 14A, as punishable under Section 16(1C) of PFA Act. By withholding such information, the accused has prevented the FI from prosecuting the supplier or manufacturer or importer of the food article which was found to be misbranded.
22. Moving ahead, it is clear and rather an admitted position that there was policy of the department not to prosecute the first time violation of Rule 32 and to give only a warning to the offender. In the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132], it has been held that such policy bearing no. F6(228)/85/ENF/PFA dated 23.09.1985 was in operation and during this period, no prosecution could have been launched against a first time violator of Rule 32. However, as clear from this precedent itself, the said policy was later withdrawn vide office order no. 5/07 dated 14.09.2007. This fact has never been denied by the defence.
23. The sample in this was lifted on 03.10.2008 and on that day, no such policy was in existence having already been withdrwan. Therefore, no benefit of that policy can be taken by the accused. Even otherwise, CC No. 5/10 Page 12 of 16 such a policy dealt with only those cases where there was violation of Rule 32 only and if there was violation of any other rule or section of PFA Act, including adulteration or misbranding under any other rule, the policy was no applicable. In the present case, there is violation of section 14-A in addition to Rule 32. Therefore, the stand of the accused has to fail even on this count and the matter would not be covered by this policy even if the policy had been in existence at that time.
24. Ld. Defence counsel has then questioned the delay in signing the PA report. The sample in this case was chemically analysed by the PA from 03.10.2008 to 15.10.2008 but the report was signed by her on 10.11.2008. Well, such a delay would have gained relevance had it been a case of adulteration, that too if such a delay had remained unexplained. The present is a case of misbranding only for which no such delay would be relevant, primarily because even the report of PA would be insignificant to ascertain whether the product was misbranded or not. The judgements relied upon the Ld. Defence counsel titled as Delhi Administration v. Amar Chand [2012 (3) JCC 1930] and Food Inspector v. Harikesh Gupta [2014(2) FAC 282] pertained to the chemical analysis when the article was found adulterated. There judgements did not pertain to misbranding of the product simplicitor, for which, in my considered view, PA report has no bearing. Irrespective of the contents or alleged irregularities or inconsistencies in the PA report, misbranding of an article can still be ascertained by the court merely on the basis of the label declaration as reproduced on Form-VI by the FI. Therefore, no benefit can be granted to the accused on this count, CC No. 5/10 Page 13 of 16 particularly when no attempt was made by him to apply and cross examine the PA under section 293 CrPC to explain the said delay when her report is admissible in evidence without formal proof. When the accused has failed to exercise the option as available to him, he cannot claim that the delay in signing the report has not been explained.
25. The judgments relied upon by the accused titled as A. K. Roy v. State of Punjab [1986(3) PFA Cases 66] and Surinder Singh vs. State of Punjab [1987(1) PFA Cases 324] would also not help the accused. These judgements primarily dealt with the notification issued by the Food (Health) Authority in the State of Punjab under the PFA (Punjab) Rules, 1958. Under Rule 3 of those Rules, the State Government was competent to delegate its power to authorize a person to institute prosecution for an offence. In accordance with that rule, the State Government issued notification dated 10.10.1968 delegating its powers to initiate prosecution to the Food (Health) Authority. Again in accordance with the said notification, the Food (Health) Authority issued another notification dated 07.09.1972 and further delegated the power to launch prosecution to the Food Inspector, Faridkot. In such a position, the Hon'ble Court held that the notification dated 07.09.1972 was ultra vires in so far as the Food (Health) Authority purported to delegate his powers to institute prosecution to the FI. But in the present case, no such policy or notification is in question that might have been issued by the State Government or by the Director (PFA) or the LHA. As per Rule 3(ii) of the Delhi Prevention of Food Adulteration Rules, 2002, the Food (Health) Authority is having the powers to grant consent for instituting prosecution CC No. 5/10 Page 14 of 16 of an offence under section 20 of PFA Act. The Director (PFA), in exercise of such powers, accorded the consent Ex. PW-2/D and directed the LHA/SDM to institute / get instituted the prosecution by the FI of jurisdiction. Therefore, specific orders are there in the consent for getting the prosecution instituted through the concerned FI. The defence has not sought to get the things explained at the trial or to produce any other general or special order issued by the State Government. Even in the above precedent, the Hon'ble Supreme Court was pleased to observe that "There would be no problem if the State government were to issue a notification under section 20(1) of the Act conferring authority on the Food Inspector, Faridkot under section 20 (1) to launch prosecutions for an offence under the Act as is the practice in the other States". No attempt has been made by the accused to bring evidence on record on this point and to establish if any such notification has or has not been issued in the State of Delhi. There is no material to show existence of any notification in Delhi in the lines of notification as issued by the State of Punjab under its PFA (Punjab) Rules. Under the Delhi Rules as aforesaid, the Director (PFA) is authorized to grant consent and is not required to institute prosecution himself so as to delegate any such authority. Therefore, there is no material on record to conclude that the FI in this case was not competent to institute the prosecution.
26. No other ground has been raised by the accused at the trial or argued at the time of final arguments.
CC No. 5/10 Page 15 of 1627. In view of this discussion, the court is of the view that the prosecution has been able to establish its case beyond reasonable doubt to the effect that the accused was selling a misbranded food article and had also failed to disclose the particulars of the supplier / importer to the FI as required. There is a violation of Rule 32(c)(i)/(iii) and Rule 32(i) of PFA Rules as well as Section 5(ii)/7 of PFA Act as punishable under Section 16(1)(a) of PFA Act. There is also violation of Section 14A of PFA Act as punishable under Section 16(1C) of PFA Act.
28. Having said so, the accused is held guilty and is convicted for the offence punishable under section 16(1)(a) of PFA Act and Section 16(1C) of PFA Act.
29. The matter be listed for arguments on sentence.
Announced in the open court this 02nd day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 5/10 Page 16 of 16