Delhi District Court
(2) Vijay Kumar Sharma vs The State( Delhi Administration ) on 21 August, 2009
1
IN THE COURT OF SHRI S.K.SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
NEW DELHI
Criminal Appeal No. 12/2003
(1) Anuj Kumar
son of Sh Shish Ram
R/o 629, Bhim Gali
Malkaganj, Delhi
(2) Vijay Kumar Sharma
M/s Mahesh Supari
7576, Punjab Exchange
Katra Bariyan, Delhi ........... Appellants
Versus
The State( Delhi Administration ) ..........Respondent
Criminal Appeal No. 13/2003
(1) Anuj Kumar
son of Sh Shish Ram
R/o 629, Bhim Gali
Malkaganj, Delhi
(2) Vijay Kumar Sharma
M/s Mahesh Supari
7576, Punjab Exchange
Katra Bariyan, Delhi ........... Appellants
Versus
2
The State( Delhi Administration ) ..........Respondent
Date of Institution 02.05.2003
Date when arguments
were heard 07.08.09
Date of Judgment 21.8.09
JUDGMENT
By this common judgment I shall decided two joint appeals against the joint judgment dated 21.3.03 passed by learned Metropolitan Magistrate, New Delhi as learned trial court had also decided two cases by common judgment in which common question of facts and law are involved.
The learned trial court convicted the appellants under section 2(ia)
(a) (f) (h) and Rule 47 and 32 punishable under Section 16(1) (1A) read with section 7 of Prevention of Food Adulteration Act ( in short PFA Act ).
By subsequent order passed on sentence on 31.03.03 each in trial court case No. 101/94 and 140/94 the appellant Anuj Kumar was sentenced to undergo simple imprisonment for a period of six months and to deposit a sum of Rs 1000/ . In default of payment of fine appellant Anuj Kumar was directed to undergo simple imprisonment for two months. Appellant Vijay Kumar Sharma is sentenced to undergo Rigorous Imprisonment for a period of one year and to deposit a sum of Rs 3000/ as 3 fine. In default of payment of fine appellant Vijay Kumar Sharma to undergo simple imprisonment for three months. The sentence in both cases were directed to run concurrently. Aggrieved by the said impugned judgment and order on sentence of the learned Metropolitan Magistrate the appellants have preferred these two appeals in the said two cases. BRIEF FACTS The case of the prosecution, in brief, is that on 3.9.93 at about 4.30 pm Food Inspector Sh D P Singh purchased a sample of scented supari, a food article in complaint case No. 101/94 filed before learned trial court ( Criminal Appeal No. 12/03 of this court ). At about 5.30 pm Food Inspector Shyam Lal purchased a sample of roasted supari in case no. 140/94( Criminal Appeal No. 13/03 of Criminal Appeal of this court ) of learned trial court. Samples were purchased from appellant Anuj Kumar at M/s Sugandhit Supari, Appu Ghar where the said food articles were found stored for sale for human consumption.
In the Criminal Appeal No. 12/03( Criminal Complaint Case No. 101/94) sample of scented supari was taken from an open polythene bag having no label declaration after proper mixing with the help of dry and clean spoon.
In Criminal Appeal no. 13/2003 ( Criminal Complaint Case No. 140/94) six polythene packets containing 100 gms of roasted supari in 4 each polythene packet were taken bearing identical label declaration. Thereafter so purchased samples were divided into three equal parts and each part was separately packed, fastened, marked and sealed according to the Act. One counter part of both samples in both the cases were sent to Public Analyst in intact condition for analysis and the Public Analyst found both the samples in both the cases to be adulterated and not conforming to the standards. Thereafter matter was investigated and appellant Vijay Kumar Sharma Proprietor of M/s Mahesh Supari,7576 Punjab Exchange Katra Baniyan Delhi was found to be proprietor of M/s Sugandhit Supari. The site for the stall in question was allotted to appellant Vijay Kumar Sharma by M/s Venus Enterprises, Pragati Maidan, New Delhi. Appellant Anuj Kumar was the vendor of the samples in question. After completion of investigation consent for prosecution of appellants were obtained from the then Director PFA.
CHARGE AND PLEA OF APPELLANTS Charges in trial court file No. 101/94 (Criminal Appeal No. 12/2003), under section 7 (V)read with Section 16 (I) (a) (II) of PFA Act was framed against the appellant Vijay Kumar Sharma by learned trial court vide order dated 06/04/98 to which appellant pleaded not guilty and claimed trial.
Charges in trial court file No. 101/94(Criminal Appeal No. 12/2003), 5 under section 7 (V)read with Section 16 (I) (a) (II) of PFA Act was framed against the appellant Anuj Kumar by learned trial court vide order dated 06/04/98 to which appellant Anuj Kumar pleaded not guilty and claimed trial.
Charges in trial court File No. 140/94 ( Criminal Appeal No. 13/2003), under section 16 (I) (1a) read with section 7 of PFA Act was framed against the appellant Vijay Kumar Sharma by learned trial court vide order dated 18/08/98 to which appellant pleaded not guilty and claimed trial.
Charges in trial court file No. 140/94( Criminal Appeal No. 13/2003), under section 16 (I) (1a) read with section 7 of PFA Act was framed against the appellant Anuj Kumar by learned trial court vide order dated 18/08/98 to which appellant pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case the prosecution has examined four witnesses in all in trial court file No. 101/94( Criminal Appeal No. 12/2003) PW1 Sh. S. K. Gupta, Food Inspector, PW2 Sh. D.P. Singh, Food Inspector, PW3 Sh Dr G C Raha, Local Health Authority and PW4 Food Inspector Sh Shyam Lal. Thereafter it closed its evidence.
In support of its case the prosecution has examined four witnesses in all in trial court file no. 140/94( Criminal Appeal No. 13/2003) PW1 Sh. G C Raha,Local Health Authority, PW2 Sh Shyam Lal, Food 6 Inspector, PW3 Sh Sanjeev Gupta, Food Inspector, PW4 Sh D P Singh, Food Inspector tendered by Senior Public Prosecutor for cross examination and was cross examined on behalf of appellant. Thereafter it closed its evidence.
PLEA AND DEFENCE OF THE APPELLANT In Criminal Appeal No. 12/2003, in statement under section 313 Cr. P.C. the appellant Anuj Kumar has denied the prosecution case in toto. He has stated that it is a false case against him and he is innocent. He stated that he was present at M/s Sugandhit Supari Stall and exposing supari only. It was not for sale. Sale was not permitted as per agreement with concerned authority. He further stated that no efforts was made to join public. He further stated that owner of stall was one Mahesh. He further stated that consent without application of mind even after amendment in standard permitting use of saccharin. He further stated that in the year 1991 , Government had published draft permitted saccharin in supari upto 8000 PPM.
In Criminal Appeal No. 12/2003, in his statement under Section 313 CrPC appellant Vijay Kumar Sharma has denied the prosecution case in toto. He has stated that it is a false case against him and he is innocent. He further stated that he has no connection with stall in question. 7
In Criminal Appeal No. 13/2003, in their statement under Section 313 CrPC jointly appellant Anuj Kumar and Vijay Kumar Sharma have denied the prosecution case in toto. They stated that it is a false case against them and they are innocent. They further stated that supari was meant for display only and it was not for sale. Sale was not permitted as per agreement with concerned authority. They further stated that no efforts were made to join independent witnesses. They further stated that actual owner of the stall was one Mahesh Kumar. Further stated that consent is without application of mind.
ARGUMENTS AND FINDINGS I have heard the learned counsels for appellants, learned Special Public Prosecutor for respondent and have gone through the trial court record, written arguments/supplementary arguments filed on behalf of the appellants and their replies by respondent and relevant provisions of law, carefully.
The contention of learned counsel for appellant no.1 in supplementary argument is that the appellant no.1 was only a servant of appellant no.2 and was employed as attendant on the stall of Appu Ghar in the name of Sugandhit Supari whose Proprietor was appellant no.2. Therefore, he was selling the goods of appellant no.2 and had no intention or knowledge that the supari in question was adulterated in violation of 8 Rule 47, so he is entitled to be acquitted. His contention is opposed by learned Special Public Prosecutor for respondent/State.
I am unable to accept the contention on behalf of the appellant no.1 made in the supplementary arguments as it is no excuse in prosecution of offences pertaining to sale of any adulterated or misbranded article of food that the alleged that vendor was ignorant of nature and quality of food sold by him. This legal position emerges from section 19(1) of the PFA Act. Therefore, merely because the appellant no.1 was employee of appellant no.2 does not exonerate him though it may be mitigating factor on question of sentence. The contention on behalf of both appellants are that quantity of saccharin in supari upto 2000 PPM was permitted as on the day of commission of the offence. It was after commission of the alleged offences permissible limit of saccharin was increased to 4000 PPM vide GSR No. 695 (E) dated 9/11/93 and made effective on the same day. The quantity of saccharin in the supari was enhanced upto 4000 PPM as it was not harmful to the health upto that extent. Reliance is placed upon the authority Krishan Gopal Sharma Vs Govt of NCT of Delhi 1996 Vol.1 FAC 258 (SC) In Sri Krishan Gopal Sharma and another Vs Government of NCT of Delhi 1996 (1) PFA Cases page 258, the Hon'ble Supreme Court made following observations with regard to permissible limit of 'saccharin' in 'pan masala' and 'mouth freshner' 9 " In our view, at the relevant time, saccharin content in Pan Masala and Mouth Freshner to the extent of 2000 and 2450 ppm as found by the Analyst was not permissible under the Prevention of Food Adulteration Rules. We have indicated that such Rule was valid and operative at the relevant time. Hence, there had been violation of the Food Adulteration Act and the Rules framed thereunder in selling Pan Masala and Mouth Freshner with saccharin content to the extent of 2000 and 2450 ppm. Hence, the complaints made by the Health Department of Delhi Administration and initiation of criminal cases against the accused cannot be held to be without justification. It cannot also be contended that on the face of the complaint, no offence was prima facie committed. Hence, the impugned decision of the High Court in dismissing the applications under Section 482 CrPC cannot be held to be unjustified"
It was further observed as follows:
" In the Constitution Bench decision in Tejani's case (supra) it has been indicated that in order to prevent unmerited leniency in the matter of awarding sentence for an offence under the Prevention of Food Adulteration Act, the legislature by amendment has incorporated the provision of minimum sentence. But it has also been indicated that the court, for adequete and special reasons, may bring down the minimum 10 sentence. The Constitution Bench has also observed that all violations of provisions of the Act and Rules need not be treated alike because " there are violations and violations". In the special facts of these cases, if appears to us that a deterrent punishment of imprisonment is not called for and imposition of fine will meet the ends of justice. The criminal cases were initiated on the basis of samples taken in 1987. The accused appellants have already faced the ordeal of criminal trials for a number of years. In the aforesaid circumstances, further agony of criminal trials need not be prolonged. Conclusion of the criminal cases will also save time and expenditure of the respondent.
In that view of the matter, we direct for quashing the criminal cases in question on payment of costs of Rs 7500/ in each of these appeals as in our view, on conviction of the appellants in the criminal cases initiated against them, such fine would have meet the end of justice. The appeals are accordingly disposed of"
Our Hon'ble High Court relying upon the Krishan Gopal's case (supra) in C.M. No. 4592/95 and CW No. 2741/95 decided on 11.10.1996 true copy of which is filed by learned counsel for appellants Hon'ble High Court has quashed the proceedings against the petitioner/accused in that case, of violation of Rule 47 with regard to food article contained saccharin in contravention of Rule 45 had quashed the proceedings before learned 11 trial court subject to petitioner paying cost of Rs 7500/ within the period of six weeks from the date of order of Division Bench of our Hon'ble High Court.
On the strength of above authorities, it is argued that the appellant was not selling any harmful substance and the quantity of saccharin found in the supari by Public Analyst was not harmful upto 4000 PPM though technically it was an offence as on the day of taking sample.
Learned Special Public Prosecutor has strongly objected to these arguments and has contended that it is the day of offence which matters and subsequent Government Notification enhancing the limit of saccharin in the supari cannot have retrospective effects and learned trial court correctly decided two cases and the order of learned trial court should be confirmed.
In the light of Krishan Gopal Sharma's case (supra) since as on the day of taking of the sample by the Food Inspector from the appellants the quantity of saccharin being in excess limit to the standard prescribed, subsequent enhancement of the limit of saccharin in the supari by Notification relied upon by the learned counsel for the appellants does not exonerated appellants but this fact in itself is very strong mitigating factor which led Hon'ble Supreme Court in some what similar circumstances to quash the proceedings against the appellant in Krishan Gopal Sharma's 12 case(supra) by imposing cost of Rs 7500/ and thereafter the Division Bench of our Hon'ble High Court in Gagan Chand Kothari and others in C.M. No. 4562/95 and CW No. 2741/95 copy of which is filed by learned counsel for appellant by imposing same cost of Rs 7500/ upon the petitioner/accused persons quashed the criminal prosecution on account of sale of adulterated food article, therefore, judicial interpretion and the decision taken by Hon'ble Supreme Court in Krishan Gopal Sharma's case ( supra) and by Division Bench of our Hon'ble High Court in Gagan Chand Kothari's case should be followed in the two appeals also which also have similar facts and circumstances. As regards the label declaration under Rule 32 is concerned, the purpose of PFA Act is to save the general public from adulterated food articles to prevent the masses from consumption of injurious and substandard food articles, keeping in view the health and well being of the citizens of this country.
What is to be understood is the seriousness and vigour of the offence is attracted when the food article, itself, to be consumed is adulterated to undermine the health and well being of the general public. The display of the particular of the food article in the label is a formality and should not be visited with deterrent punishment particularly when the sample of food article is found to conform to prescribed standard, though covered by subsequent notification, therefore, label declaration is only a 13 technical offence with no harmful effect on the general public in the light of subsequent notification upping the limit of saccharin to 4000 PPM in supari.
There is also arguments raised on behalf of the appellants that supari in question was displayed and not for sale and section 7 is not attracted and appellants are entitled to be acquitted. This argument is liable to be rejected for the simple reason that subari in question was sold to the Food Inspector against receipt of price which is clear from the documents prepared at the spot by the Food Inspector i.e Ext. PW2/A, Ext. PW1/A and Ext PW2/B in Criminal Appeal No. 13/03 and Ex PW1/B, Ex PW1/A. Therefore, it can not be said that supari in question was only for the purpose of display and not of sale.
RESULT OF APPEAL:
In view of the law laid down by Hon'ble Supreme Court in Krishan Gopal Sharma's case (supra) followed by Division Bench of our Hon'ble High Court in Gagan Chand Kothari's case in order that decision in these two appeals should fall in line, the orders on sentence passed by learned Metropolitan Magistrate by impugned judgment in both the cases are set aside subject to deposit cost of Rs 7500/ each by each appellant in each of the two cases within six weeks from today with the learned trial court. In case of non deposit of cost of Rs 7500/ by the appellants, the same be recovered as fine by the learned Metropolitan 14 Magistrate as provided under Section 421 IPC by issuance of Warrant of Attachment in the manner indicated in the said provision of law. The trial court record be returned along with the copy of this judgment. A true copy ofc this joint judgment be placed in the file of Criminal Appeal No. 13/93 which is also decided by this joint judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 21.08.2009 (S. K. SARVARIA) Additional Sessions Judge01/South New Delhi 15