Delhi District Court
Complainant vs . on 28 January, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT: NEW DELHI
In the matter of :
CC No. : 5280/19
Food Safety Officer
Department of Food Safety
Govt of NCT of Delhi
8th Floor, Mayur Bhawan
Connaught Place
New Delhi-110001
....Complainant
Vs.
1. Manoj Singh
S/o Sh. Pulam Singh
M/s-Nasha Cafe & Bar, 2512, 1st Floor
Hudson Line, Kingsway Camp, Model Town
North Delhi-110009
R/o 20, Mundrasera, Uttarkashi
Baldogi, Uttrakhand-249196
2. Manjeet Kumar
S/o Sh. Kartar Singh
M/s-Nasha Cafe & Bar, 2512, 1st Floor
Hudson Line, Kingsway Camp, Model Town
North Delhi-110009
R/o 762, Village and Post Silana, Kharkoda
District Sonipat, Haryana-131408
3. Raghbir Singh
S/o Sh. Gurcharan Singh
M/s-Nasha Cafe & Bar, 2512, 1st Floor
Hudson Line, Kingsway Camp, Model Town
North Delhi-110009
R/o 19/241, Block-19, Basti Sarai Rohilla
CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 1 of 14
North West Delhi-110035
4. M/s-Nasha Cafe & Bar, 2512, 1st Floor
Hudson Line, Kingsway Camp, Model Town
North Delhi-110009
....Accused Persons
JUDGMENT
(a) Serial number of the case : 5280/19
(b) Date of commission of the offence : 27.06.2018
(c) Name of the complainant (if, any) : Mohammad Zubair, Food Safety Officer
(d) Name of the accused person(s), :(1) Manoj Singh S/o Sh. Pulam and their parentage and residence Singh, R/o 20, Mundrasera, Uttarkashi, Baldogi, Uttarakhand-249196 (2) Manjeet Kumar S/o Sh. Kartar Singh, R/o 762 Village and Post Silana, Kharkoda, District Sonipal, Haryana-131408 (3) Raghbir Singh S/o Sh. Gurcharan Singh, R/o 19/241, Block-19, Basti Sarai Rohilla, North West Delhi-
110035 (4) M/s Nasha Cafe & Bar 2512, 1st Floor, Hudson Line, Kingsway Camp, Model Town, North Delhi-110009 [(e) Offences complained of : Section 59(i) of Food Safety and Standards Act, 2006
(f) Plea of the accused persons : Not guilty
(g) Date of final arguments : 08.01.2021
(h) Date of Decision : 28.01.2021
(i) Decision : All the accused convicted CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 2 of 14 BRIEF STATEMENT OF REASONS FOR SUCH DECISION
1. This is a complaint under Section 59 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act') to the effect that on 27.06.2018, the complainant Mohammad Zubair, Food Safety Officer (hereinafter referred as 'FSO') had taken, by purchasing, a sample of "Paneer Tikka" (an article of food) for analysis from Sh. Manoj Singh i.e. Food Business Operator-Cum-Manager (hereinafter referred to as 'FBO') of M/s Nasha Cafe & Bar, 2512, 1st Floor, Hudson Line, Kingsway Camp, Model Town, North Delhi-110009, where the said food article was stored for sale for human consumption at the time of taking sample. The "Paneer Tikka" was available in open tray having no label declaration and after disclosing his identity, FSO showed his intention of taking the sample of abovesaid food article for analysis. At about 02:40 pm, FSO purchased the sample of "Paneer Tikka" weighing 2 kgs from open tray bearing no label declaration and price of Rs.800/- was paid through credit note vide Food Business Operator receipt dated 27.06.2018. The sample was taken to another clean and dry steel tray with the help of a clean and dry steel spoon, cut into smaller pieces with the help of same spoon and mixed properly. The sample was thereafter, divided in four equal parts, put into four clean and dry glass bottles and 40 drops of Formalin were added in each sample bottle. FSO completed the remaining formalities and notice in Form VA was prepared and copy of the same was given to FBO Sh. Manoj Singh. Panchnama was also prepared. One counter part of the sample bearing Code no. 02/DO-23/11978 in intact condition along with copy of memo in Form-
CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 3 of 14 VI in a sealed packet along with copy of another memo in Form VI under sealed cover were sent to food analyst on 28.06.2018. The remaining two counterparts of the sample along with two copies of memo in Form VI in a separate sealed packet were deposited with the then Designated Officer Sh. Satish Kumar Gupta on 28.06.2018.
2. The sample was analyzed by food analyst and vide his report no. FSS/1077/2018 dated 09.07.2018, food analyst opined that the sample is unsafe because it was coloured with synthetic colouring matter viz. Tartrazine. The Designated Officer sent copy of the report of food analyst to FBO Sh. Manoj Singh and gave him an opportunity to file an appeal against the report of food analyst under Section 46(4) of FSS Act, by sending one part of sample to Referral Food Laboratory. However, the FBO did not appear before him to file the appeal against the report of Food Analyst. It is the case of complainant that accused No. 1 Manoj Singh was the Food Business Operator-Cum-Manager of accused no. 4 i.e. M/s Nasha Cafe & Bar at the time of taking the sample and as such he was incharge of the same and responsible for day to day conduct of its business. Accused no. 4. M/s. Nasha Cafe and Bar is a partnership firm which has two partners namely Manjeet Kumar (accused no. 2 herein) and Raghbir Singh (accused no. 3 herein) and both of them were also incharge and responsible for day to day conduct of the business of the said concern. After the conclusion of the investigation and obtaining the consent under Section 42(4) of FSS Act, present complaint had been filed.
3. As the complaint was filed in writing by a public servant, CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 4 of 14 recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 26.06.2019. Accused no. 1 (who also represents accused no. 4), accused no. 2 and 3 appeared before the court on 11.09.2019 and were admitted to bail. They were thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') for offences punishable under Section 26(1) & 26(2)(i) and Section 27(1) r/w Section 3(1)(zz)(v), (vii) & (viii) of FSS Act, Regulation number 3.1.2(1) r/w 3.1.2(6) of FSS Regulations, 2011 and Section 59 (i) of FSS Act, to which they pleaded not guilty and claimed trial.
4. At the trial, prosecution examined three witnesses in support of its case. PW1 is Mohd. Zubair, FSO who deposed on the lines of the complaint and exhibited the following documents i.e. FBO receipt Ex.PW1/A, Credit note receipt dated 10.04.2019 Ex.PW1/A-1, dispatch registry entry Ex.PW1/A-2 (OSR), tracking consignment Ex.PW1/A-3, cash memo receipt Ex.PW1/A-4, Form VA Ex. PW1/B, Panchnama Ex. PW 1/C, Raid report Ex. PW 1/D, sample sent to DO vide receipt Ex. PW 1/E, receipt of sample to the DO Ex. PW 1/F, Food analyst report Ex. PW 1/G, copy of dispatch register dated 17.07.2018 along with postal receipts Ex. PW 1/H-1 and Ex. PW 1/H-2 (OSR), Four letters sent to FBO Ex. PW 1/I (colly), reply Ex. PW 1/I-1, letters sent to VAT officer/GST Officer Ex. PW 1/J (colly), reply from VAT office Ex. PW 1/J-1, reply sent by Raghbir Singh in response of letter sent to him Ex. PW 1/K, letter sent to System Analyst Ex. PW 1/L, Sanction letter Ex PW 1/M and the present complaint as Ex. PW 1/N. CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 5 of 14
5. PW2 is Sh. Akashay Bhalla, FSO, who was part of the team that had visited the spot for sample proceedings, while, PW3 Sh. Satish Kumar Gupta, Designated Officer directed PW1 and PW2 to conduct general raid in North District Model Town, Kingsway Camp, Delhi. Both the aforesaid witnesses deposed on the similar lines of PW1 and corroborated his version. All these witnesses were cross examined on behalf of all the accused. Accused persons were thereafter, examined under Section 281 Cr.P.C. on 06.11.2020 and they did not prefer to lead any defence evidence.
6. Case then culminated into final arguments. Both the Ld. Special Prosecutor for the Department/Complainant as well as Ld. Counsel for accused persons addressed oral arguments. It was argued by Ld. SPP that the complainant has been able to establish its case against the accused persons beyond reasonable doubt and that the accused have not been able to rebut the findings of the report of Food Analyst. It was further argued that all the witnesses have supported the case of prosecution and no major contradiction can be seen in their testimony. On the other hand, Ld. Defence Counsel argued that spoon and the bottles in which the sample food article was collected were not clean and dry. He further argued that accused no. 2 and 3 were not present at the spot when sample was taken by the Food Inspector and they are implicated in the present case merely being the partners of accused no. 4 i.e. M/s Nasha Cafe and Bar. It is further argued that no substantive evidence is placed on record by the prosecution to show that accused no. 2 and 3 were responsible for day to day conduct of business of accused no. 4. In support of his arguments, Ld. Counsel for CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 6 of 14 accused relied upon the judgments of:-
(i) Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., Criminal Appeal No. 701 of 1980, Hon'ble Supreme Court of India;
(ii) Municipal Corporation of Delhi v. S. K. Jain & Ors., Criminal Appeal No. 413 of 1977, Hon'ble Delhi High Court;
(iii) Municipal Corporation of Delhi v. Des Raj & Anr., Criminal Appeal No. 337 of 1977, Hon'ble Delhi High Court;
7. It was also argued by Ld. Counsel for accused that sample of food item i.e. "paneer tikka", as taken for analysis in the present case, is a savoury in terms of Rule 3.1.2(6) of FSS Regulations, 2011 and as such, synthetic colour namely Tartrazine is permissible to be used in the said product. In support of his arguments, Ld. Counsel for accused persons relied upon the judgment of Pawan Kumar Parashar v. State (Food Inspector), 2009(1) FAC 341 Punjab and Haryana High Court.
8. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
9. It is to be understood that the notice framed against the accused persons was for violation of Section 26(1), 26 (2)(i) and Section 27(1) r/w Section 3(1)(zz)(v),(vii) & (viii) of FSS Act, 2006 and Regulation CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 7 of 14 No. 3.1.2(1) r/w 3.1.2(6) of FSS Regulations, 2011, punishable under Section 59 (i) of FSS Act, 2006 which read as under:
Section 26 deals with Responsibilities of the food business operator - (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe;
Section 27 deals with the Liability of the manufacturers, packers, wholesalers, distributors and sellers.- (1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.
Section 3(1)(zz) defines "unsafe food" which means an article of food whose nature, substance or quality is so affected as to render it injurious to health; (v) by addition of a substance directly or as an ingredient which is not permitted; (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; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof;
Regulation No. 3.1.2(1) provides that unauthorized addition of colouring matter prohibited-The addition of colouring matter to any article of food except as specifically permitted by these regulations is prohibited;
Regulation No. 3.1.2(6) deals with Use of permitted synthetic food colours prohibited-Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited :-
(i) Ice-cream, milk lollies, frozen desserts, flavoured milk yoghurt, ice-cream mix powder;
(ii) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dalmoth, mongia, phululab, sago papad, dal biji only);
CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 8 of 14
(iii) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit crushes, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(iv) Non-alcoholic carbonated and non-carbonated ready to serve synthetic beverages including synthetic syrups, sherbats, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(v) Custard powder;
(vi) Jelly crystal and ice-candy;
(vii) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only under label declaration as provided in regulation 2.4.5(35) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
Section 59 deals with Punishment for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees;
10. The incriminating material on the basis of which the sample of "Paneer Tikka" has been failed by the Food Analyst, is that as per the report, the sample was unsafe as synthetic food colouring matter was found in the sampled food article which is not permissible as per rules.
11. The defence has not been able to rebut or bring any credible evidence on record to show that the spoon or the bottles in which the sampled food article was collected, were not clean and dry, as has been suggested by them during the cross-examination of the witnesses. Further, merely stating so during the cross-examination of witnesses without adducing evidence on record to corroborate the said suggestions is not CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 9 of 14 enough to rebut the evidence brought forth by the complainant, which per se is admissible as per law.
12. With regards to second contention raised on behalf of accused persons that accused no. 2 and 3 were merely partners of accused no. 4 and as such, not liable to be prosecuted in the present case for being not present at the spot or for not being the incharge of day to day conduct of business of accused no. 4 at the time of alleged offence, Ld. Counsel for accused persons relied upon the judgment of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors. (supra), wherein it was held that in the absence of any clear averments of facts that the directors were really incharge of manufacturing and responsible for conduct of day to day business of company concerned, they cannot be presumed to be guilty for the offences merely because they were holding a particular office. Moreover, in cases of Municipal Corporation of Delhi v. S. K. Jain & Ors. (supra) and Municipal Corporation of Delhi v. Des Raj & Anr. (supra), it was held by Hon'ble Delhi High Court that the general rule of law is that a person cannot be convicted and punished for an offence vicariously. In order to fasten criminal liability upon a partner or a director under Prevention of Food Adulteration Act, the partner/director should be incharge of and responsible for conduct of business of firm/company at the time of commission of alleged offence i.e. sale of sample article. Mere statement of complainant that accused was incharge of conducting the business of partnership firm/company would not suffice.
13. In the present case, accused no. 2 and 3 were admittedly not present at the spot, when sample of food article was lifted by the FSO. CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 10 of 14 However, in response to letter written by FSO Mohd. Zubair dated 06.09.2018 Ex. PW 1/I, accused no. 3 admitted vide separate reply Ex. PW 1/I-1 that both him as well as accused no. 2 were equally responsible for day to day conduct of business of accused no. 4. Thus, the judgments relied upon by Ld. Counsel for accused persons would not be applicable to the facts of the present case. The contention of Ld. SPP for complainant also holds merit that the above defence has not been raised by Ld. Counsel for accused persons during entire trial and no suggestion was put to any prosecution witnesses by Ld. Counsel for accused persons regarding absence of accused no. 2 and 3 at the spot at the time of lifting of samples. Also, no suggestion has been put to any witness suggesting that the accused no. 2 and 3 were not incharge of day to day conduct of business of accused no. 4 at the time of commission of alleged offence. Ld. SPP for complainant relied upon the judgment of Hon'ble Supreme Court of India in Paulmeli & Anr. v. State of Tamil Nadu Tr. Insp. of Police; Criminal Appeal No. 1636 of 2011.
14. With respect to third contention of Ld. Counsel for accused persons that sample of food product "Paneer Tikka", lifted in the present case is a 'savoury' within in the meaning of Rule 3.1.2(6) of FSS Regulations, 2011 and as such, synthetic colour namely Tartrazine is permitted to be used in the said product, it is pertinent to refer to the relevant excerpt of judgment of Pawan Kumar Parashar (Supra), as relied upon by Ld. Counsel for accused persons, which is reproduced as under:-
"... 11. The reading of Rule 29 (b) of the Rules shows that it is not restricted in nature as is sought to be projected by the prosecution but only indicative of the food items in which the CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 11 of 14 permitted colour can be used. Dictionary meaning of Savoury is as under :
"(US Savory) adj. 1 (of food salty or spicy 2/VSU with nag.) or acceptable n. (P. Savouries) chiefly Brit a savoury snack."
12. Thus, it would be seen that once Shahi Peneer is a snack the use of permitted colour would thus be permissible even under Rule 29..."
15. Per contra, Ld. SPP for complainant relied upon the judgment of Prem Ballab and Anr. v. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976, wherein while dealing with a similar issue qua Prevention of Food Adulteration Rules, 1955, Hon'ble Apex Court held as under :
"... Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the Rules, shall be prohibited. The only artificial dyes, which were permitted to be used in food, were those set out in Rule 28, and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the arti- cles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dye. Even so, by reason of Rules 23 and 29, it could not be added to lin- seed oil. In the circumstances, the, linseed oil sold by the appel- lants contained artificial dye which was prohibited under the Rules...
...When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colourng matter, it would be "other than that prescribed in re- spect" of the article. Clause (j) of Section 2(i) is not merely in- tended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the ar- ticle contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 12 of 14 respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter. There is really no difference h3 principle between the two kinds of cases. Both are equally repehensible; in fact the latter may in conceivable cases be more serious than the former. Where no colouring mat- ter is permitted to be used in an article of food, what is pre- scribed in respect of the article is that no coIouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it would clearly involve violation of cl. (j) of section 2(i)..."
16. Rule 3.1.2(6) of FSS Regulation 2011, clearly provides that use of permitted synthetic colours in any food product is prohibited other than those enumerated in the rule. The food article in the case in hand i.e. "Paneer Tikka" is admittedly not one of the food articles as enumerated in the abovesaid rule and thus, pursuant to ratio of judgment of Prem Ballab and Anr. (supra) permitted synthetic colour i.e. Tartrazine could not be added to the said food article.
17. The items of 'savouries', where permissible synthetic food colour could be used are clearly provided in Rule 3.1.2.6(ii) i.e. dalmoth, mongia, phululab, sago papad, dal biji only. Since, language of statute is restrictive in nature, the food article in the present case i.e. "Paneer Tikka"
cannot be deemed to be included in the said category. I find support from judgment of Delhi Administration v. Suresh Kumar and Anr., in Crl.L.P 245/2012 of Hon'ble Delhi High Court. The relevant excerpt of judgment is reproduced as under:
"...But these permitted colour are only permitted for the food articles specified in Rule 29. The contention of learned counsel for appellant no. 1 is that the chatni comes in the food article savoury and by virtue of Rule 29(b) the appellants can not be held liable even if it is found Coaltar Dye was used in the chatni. He has relied CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 13 of 14 upon dictionary meaning of savoury. But this contention is not acceptable as items of savoury which are permissible are given in the bracket in the clause (b) of Rule 29 and chatni does not find mention in it. Therefore, the submissions of learned counsel for the appellants is liable to be rejected..."
18. Thus, contention of Ld. Counsel for accused persons that food article "Paneer Tikka" is covered within the definition of savoury, is without any merit. The complaint has therefore, proved its case against the accused persons beyond reasonable doubt that the sampled food article was unsafe. No defence has been led by accused persons to contradict the allegations of adulteration qua the sampled article.
19. Accordingly, accused persons namely Manoj Singh, Manjeet Kumar, Raghbir Singh and M/s Nasha Cafe & Bar are hereby convicted for the offence punishable under Section 59 (i) of FSS Act, 2006.
20. Ordered accordingly.
Announced through video conferencing on 28.01.2021 (AKASH JAIN) Additional Chief Metropolitan Magistrate-01 New Delhi District, Patiala House Courts New Delhi CC No:- 5280/19 Food Safety Officer v. Manoj Singh & Ors. Page No. 14 of 14