Delhi District Court
Food Inspector vs . 1. Kishore Kumar on 15 February, 2011
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
PATIALA HOUSE COURTS, NEWDELHI
C.C. No. 64/98
Food Inspector Vs. 1. Kishore Kumar
Department of PFA S/o Shri Kali Charan
Govt. of NCT of Delhi M/s Kali Charan Brij Mohan
A-20, Lawrence Road Shop No. 4615, Deputy Ganj
Indl. Area, Delhi - 35 Bahadurgar Road, Delhi - 06
R/o: 4614, Deputy Ganj, Bahaurgarh
Road, New Delhi - 06
2. Brij Mohan
M/s Kali Charan Brij Mohan
Shop No. 4615, Deputy Ganj
Bahadurgar Road, Delhi - 06
3. Shri Kali Charan
M/s Kali Charan Brij Mohan
Shop No. 4615, Deputy Ganj
Bahadurgar Road, Delhi - 06
(Proceedings abated V/o 08.12.04)
4. M/s Kali Charan Brij Mohan
Shop No. 4615, Deputy Ganj
Bahadurgar Road, Delhi - 06
JUDGMENT
Serial number of the case : 64/98 Date of the commission of the offence : 06.08.1998 Date of filing of the complaint : 21.08.1998 Name of the Complainant, if any : Shri D.P. Singh, Food Inspector CC No. 64/98 FI Vs. Kishore Kumar etc. ::2:: Offence complained of or proved : S. 2(ia) (a) (b) (c) (h) (i), punishable U/s 16 (1A) r/w S. 7 of the PFA Act. Plea of the accused : Pleaded not guilty Final order : Convicted Arguments heard on : 29.01.2011 & 15.02.2011 Judgment announced on : 15.02.2011 Brief Statement of reasons for such decision
1. The present complaint was filed on 21.08.1998 by the Delhi Administration through FI Sh. Dharam Pal Singh against the afore named accused. It is averred in the complaint that on 06.08.1998 at about 5:00 PM, FI Sh. Dharam Pal Singh purchased a sample of mustard oil (ready for sale), a food article for analysis from Sh. Kishore Kumar, S/o Sh. Kali Charan of M/s Kali Charan Brij Mohan, Shop No. 4615, Deputy Ganj, Bahadurgarh Road, New Delhi - 06, where the said food article was found stored for sale and aforenamed accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 375 gms of Mustard Oil, which was taken from an open Tin, having no label or declaration. The sample was taken after proper mixing of the Mustard Oil with the help of a clean and dry measure. The FI divided the sample into three equal parts then and there by putting them in three separate clean and dry bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and the wrapper of the sample packet. Notice was given to accused and price paid vide vendor's receipt dated 06.08.1998. Panchnama was also prepared at the spot. All these documents were signed by said Kishore CC No. 64/98 FI Vs. Kishore Kumar etc. ::3::
Kumar; the vendor and the other witness namely Sh. O.P.S. Ahlawat, FI, as no public witness had come forward for the purpose despite efforts.
2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two counterparts were deposited with the LHA in intact condition. The PA analysed and found the sample to be adulterated being non-conforming to the standards prescribed under PFA Act and Rules.
3. It was further revealed that M/s Kali Charan Brij Mohan was a Partnership firm and accused Kishore Kumar, accused Brij Mohan and accused Kali Charan were the Partners of the said firm and they were the persons In-Charge and responsible for day today conduct of the business of the firm. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed.
4. The accused was summoned vide order dated 21.08.1998. The accused appeared and exercised the option U/s 13(2) of the Act and consequently the sample counterpart as per choice of the accused was sent for analysis to the CFL vide order dated 23.01.2003. The Director CFL gave his report dated 05.11.1998 and opined that "The sample was adulterated".
5. Pre-Charge evidence stood closed vide order dated 20.01.2009.
CC No. 64/98FI Vs. Kishore Kumar etc. ::4::
Thereafter, Charge for the violation of the Provisions of Section 2(ia) (a) (b)
(c) (h) (i), punishable U/s 16 (1A) of PFA Act, r/w S. 7 of the PFA Act 1954 was framed to which the accused persons pleaded not guilty and claimed trial.
6. Three witnesses namely Sh. D.P. Singh, FI (PW-1), Sh. O.P.S. Ahlawat, FI (PW-2) & Sh. R.K. Ahuja; the then SDM/LHA (PW-3) were examined on behalf of the complainant and the PE stood closed vide order dated 21.11.2009.
7. Statement of the accused U/s 313 Cr. P.C was recorded as on 17.02.2010 wherein the accused opted for leading defence evidence and hence, the matter was listed for DE. One defence witness namely Shri S.N. Mahendru was examined. DE stood closed vide order dated 15.07.2010.
9. File Perused. Counsels heard.
10. The proceedings pertaining to the present complaint case were initiated on the basis of the Report of the PA dated 11.08.1998. The said report has been exhibited and proved as Ex. PW 1/F. It reveals that the sample of the Mustard Oil was found not conforming to the standards laid down under Item No. A.17.06 of Appendix B of the PFA Rules, 1955 because of the fact that the sample showed the presence of argemone oil.
CC No. 64/98FI Vs. Kishore Kumar etc. ::5::
11. During the course of proceedings, the accused no. 1 namely Shri Kishore Kumar exercised the right and option U/s 13 (2) of the Act of 1954. Consequently, the selected counterpart was sent to and analysed by the Director CFL vide Report dated 05.11.1998. The said Certificate reveals that the second counterpart of the sample in question was also found 'positive' for argemone oil. Thus, both the Reports are in consonance with each other as far as the presence of adulterant 'argemone oil' in the sample commodity is / was concerned. Moreover, the Report of the Director CFL is not only per se admissible; by virtue of the provision U/s 13 (3) of the Act of 1954 r/w S. 4 of the Indian Evidence Act, 1872 the same is also the conclusive proof of the contents and outcome thereof. Thus, it is clear that the sample commodity was adulterated with argemone oil.
12. Further, the complainant - witnesses have deposed in such a fashion so as to cover each and every minute detail of whatever is asserted by way of the complaint. The PW-1 FI Shri D.P. Singh has inter alia deposed about the factum of visit of the Raiding Party at the given place / premises on the day and time specified in the complaint. His testimony also covers within itself the detailed narration of the facts regarding the compliance of requisite procedural formalities including the introduction, the intention to purchase the sample of the commodity in question, the proper mixing / homogenization, the equal division, the sealing etc. etc. He has well deposed so as to prove the Notice Ex. PW 1/B, price of the sample commodity vide Ex. PW 1/A, Panchnama vide Ex.
CC No. 64/98FI Vs. Kishore Kumar etc. ::6::
PW 1/C and the rest of the requisite formalities vide Ex. PW 1/D onwards. The depositions made by the rest of the two witnesses are more or less on the same pattern and do corroborate the deposition of PW-1.
13. As far as the cross examination of the witnesses is concerned, certain aspects have not at all been touched upon, although all these facts do well appear in the examinations-in-chief of the prosecution - witnesses. It has nowhere been disputed that the sample in question had been lifted by the constituted Raiding Party from the given premises as on the date and time asserted by the prosecution. The proper mixing / homogenization of the entire commodity prior to lifting the sample therefrom; is also an un- disputed fact. The denial is also absent w.r.t. the presence of the vendor / accused no. 1, the loose selling of the Mustard Oil etc. etc.
14. However, certain objections have been raised such as that the alleged contamination took place due to the defective procedure of the sampling. This objection appears in the form of a suggestion put to the PW-2 during his cross examination conducted as on 21.11.2009, however, in the entire material on record including the cross examination of the witness in question, it has nowhere been elaborated or clarified as to how and why the sampling procedure was to be deemed a defective one. It gains even more importance when neither the homogenization is in question nor the question of sample bottles etc. being dry and clean was at all raised.
CC No. 64/98FI Vs. Kishore Kumar etc. ::7::
15. It is further agitated by the defence side that it was only the accused no. 1, who was found present and conducting the business there at the given premises and that the rest of the two Partners were not there and thus, were not liable in any manner. Out of these two accused persons, the proceedings as against the accused no. 3 have already abated; he having been died during the course of the proceedings. As a matter of fact the Partnership Firm arrayed as accused no. 4 was having 3 Partners i.e. accused nos. 1 to 3 at the time of commission of the offence. Ld. Defence Counsel relied upon the Case Law titled as Shyam Sunder & Ors. Vs. State of Haryana 1990 (2) S.C. (PFA Cases pg 120). In the said Criminal Appeal No. 524 / 89, the Hon'ble Apex Court had allowed the said appeal while setting aside the conviction and sentence of appellant's no. 1, 2 & 4 and the conviction and sentence of appellant no. 3 was upheld and maintained. The crux of the said decision is that:-
' the nature of the liability of a Partner as such was entirely different in civil and criminal context and further that there was no vicarious liability in Criminal Law unless the statute takes that also within its fold '. It has been held therein that since S. 10 of the Essential Commodities Act does not provide for such liability and hence, it does not make all the Partners liable for the offence whether they do business or not.
16. In the given context; and after a careful perusal of the afore cited CC No. 64/98 FI Vs. Kishore Kumar etc. ::8::
Judgment with utmost regard, the undersigned is of the considered view that the same is not applicable to the facts and circumstances of the present case. The nature of the liability imposed under the PFA Act (by virtue of Ss 16 & 17 of the Act) and that of the Essential Commodities Act do defer from each other. It has well been summarised herein above that as per S. 10 of the Essential Commodities Act (as held by the Hon'ble Apex Court vide afore cited Judgment) one Partner was not vicariously liable for the act or omission of another Partner as it was not so provided in the said Act. However, the Act of 1954 does provide otherwise. The very language of S. 17 in itself is reflective of the same. The relevant portion thereof, is being quoted hereunder:-
S. 17 Offences by Companies - (1) Where an offence under this Act has been committed by a company
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(a) (i) the person, if any, who has been nominated under Sub-Section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or
(ii) where no person has been so nominated, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the CC No. 64/98 FI Vs. Kishore Kumar etc. ::9::
business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that ............................................................... (2) any Company may............................................. Explanation - ............................................................... (3) the person nominated....................................... (4) notwithstanding anything contained in the foregoing sub-sections.............................................. Explanation - for the purposes of this section -
(a) "Company" means any body corporate and includes a firm of other association of individuals;
(b) .............................................................................
(c) .............................................................................
17. By virtue of S. 17 of the Act of 1954, a 'Partnership Firm' is equated with a 'Company' and the same has very well been reflected in the 'Explanation' appended to the said Section. It is clear that even the Partners and the Partnership Firm itself; were / was at liberty to nominate either of the Partners or anybody else to be a "Nominee" within the meaning of S. 17 (2) of the Act of 1954 and in the absence thereof, the Partners were liable to face the consequences. Moreover, the only Panel Provision i.e. S. 16 of the Act of 1954 further makes it clear that the person who can be punished for committing offence is not only the person, CC No. 64/98 FI Vs. Kishore Kumar etc. ::10::
who actually sells the adulterated articles, but also the person on whose behalf adulterated articles are sold. The Judgment cited as Municipal Board, Lucknow Vs. Shyam Bihari A.I.R. 1960, 117 (at pg 118) is a direct authority on this aspect. It provides that the section (i.e. S. 16 of the Act of 1954) encompasses both the owner and the salesman / vendor within its ambit liable for punishment. In the given context, each working Partner is in the dual capacity of being the Principal as well as the Agent. Further more, as far back as in the year 1956 in re - Hari Khemu Gawali Vs. Deputy Commissioner of Police Bombay A.I.R. 1956 S.C. 556, the Hon'ble Apex Court had held that it was not safe to pronounce on the provisions of one Act with reference to decisions dealing with other Acts, which may not be in pari-materia. The objects and purpose behind the present enactment i.e. the Act of 1954 and that of the Essential Commodities Act are entirely different.
18. This defence point stands defeated even on the factual aspects as well. It has nowhere been disputed that the accused persons were the Partners of the Firm i.e. accused no. 4. It has further been asserted and proved vide Ex. PW 1/G that the said Firm was a registered firm having 3 Partners and all the 3 Partners were working Partners. There is no cross examination on this aspect at all. The testimony of PW-1 and PW-3 further make the position clear. In the cross examination of PW-1, the suggestion put to the witness was only with respect to the alleged absence of the accused no. 3 at the relevant time meaning thereby that the presence of the rest of the two accused persons was thus, deemed to have been CC No. 64/98 FI Vs. Kishore Kumar etc. ::11::
admitted during the sample proceedings. Cross examination of PW-3 conducted as on 20.01.2009 also establishes the presence of all the Partners during the sample proceedings.
19. The afore findings are clear enough to conclude that not only the article in question was adulterated, but also that the Partners as well as the Firm; were liable for the same.
20. Now, the material on record requires to be appreciated in a different context. Though, it has been proved that the given food article was found adulterated, it is yet to be ascertained if the commodity in question had become or had been rendered so as to be injurious to health or was likely to cause death or grevious hurt.
21. The complaint in its Para 2 does contain a stipulation to the effect that the presence of argemone oil (in Mustard Oil) is injurious to health & also likely to cause death. During the cross examination of PW-3 Shri R.K. Ahuja, LHA, it has again been asserted on the dotted lines. Even the defence witness i.e. DW-1 Shri S.N. Mahendru has admitted during his cross examination that as per document Ex. DW 1/A (i.e. the very document relied upon in defence) it is very much reflected that such contaminated food article had led to several out breaks of epidemic dropsy and to possible Glaucoma of the eyes. It is also worth mentioning that in the book titled as Handbook of Food Analysis, authored by none other than the DW-1 himself, it has been made clear that ' earlier it was not CC No. 64/98 FI Vs. Kishore Kumar etc. ::12::
known that argemone oil is the cause of epidemic dropsy. Only during 1937 - 38, it became known that argemone oil present in the Mustard Oil provided certain toxic substances, which caused the epidemic dropsy '. The present proceedings pertain to the sample of Mustard Oil lifted in the year 1998 i.e. the very year, in which the epidemic dropsy had erupted at such a large scale so as to cause havoc and the known cause thereof was / is un-doubtedly the consumption of Mustard Oil adulterated with argemone oil. Even prior thereto and in the year 1983, the situation had become worse for the very reasons.
22. However, on the basis of the material under consideration and as is being discussed, it can only be concluded that such adulterated Mustard Oil was injurious to health and the material on record is found to be insufficient so as to construe that it was dangerous to life. The prosecution has failed to lead any such evidence so as to establish beyond doubt that the commodity in question was adulterated to such an extent. The Reports i.e. PA's Report as well as CFL Certificate, are also silent on this aspect as the presence of adulterant is not quantified therein.
23. Thus, it is clear that prosecution has successfully proved its case to the effect that the Mustard Oil was adulterated with argemone oil, it was injurious to health and that the accused persons facing trial were liable for the same. On the other hand, the accused have failed to put forth any plausible defence so as to raise a reasonable doubt against the CC No. 64/98 FI Vs. Kishore Kumar etc. ::13::
prosecution story. The accused persons are thus liable to be held guilty for the offences alleged against them. Ordered accordingly.
23. Be put up on 25.03.2011, for arguments on sentence.
Announced in the Raghubir Singh
open court on 15th February, 2011 ACMM-II/New Delhi
CC No. 64/98
FI Vs. Kishore Kumar etc.
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II, PATIALA HOUSE COURTS, NEWDELHI C.C. No. 64/98 Food Inspector Vs. 1. Kishore Kumar Department of PFA S/o Shri Kali Charan Govt. of NCT of Delhi M/s Kali Charan Brij Mohan A-20, Lawrence Road Shop No. 4615, Deputy Ganj Indl. Area, Delhi - 35 Bahadurgar Road, Delhi - 06 R/o: 4614, Deputy Ganj, Bahaurgarh Road, New Delhi - 06
2. Brij Mohan M/s Kali Charan Brij Mohan Shop No. 4615, Deputy Ganj Bahadurgar Road, Delhi - 06
3. Shri Kali Charan M/s Kali Charan Brij Mohan Shop No. 4615, Deputy Ganj Bahadurgar Road, Delhi - 06 (Proceedings abated V/o 08.12.04)
4. M/s Kali Charan Brij Mohan Shop No. 4615, Deputy Ganj Bahadurgar Road, Delhi - 06 ORDER ON SENTENCE Present: Shri Masood Ahmad, Ld. SPP for the Complainant.
Convicts in person with Shri M.K. Gupta, Advocate.
CC No. 64/98FI Vs. Kishore Kumar etc. ::15::
Heard on the point of sentence. Ld. Counsel for convicts has prayed for taking a lenient view on the ground that the accused persons / convicts are not previous convicts. Further it is stated that the percentage of argemone oil was not given by the Experts. Further, the convicts are not the manufacturers, but are the Retail Shopkeepers having no other source of income. Convict Kishore Kumar is married; his wife is a housewife; having 4 issues (2 males & 2 females); 3 of them are married and are dependent upon him. He also has 2 grandchildren and one of his son is yet un-married.
Convict Brij Mohan is of 48 year of age; is married, his wife is a housewife; he has 3 issues (2 male & 1 female) and that all his children are married. He does have 4 grandchildren. He is the only bread earner for his entire family. His married daughters do pay frequent visits to their parental home and their expenses are borne by him only.
It is further argued on behalf of the convicts that though, in legal sense the Company and the Firm are one and the same thing under the Act, yet, in practical they do differ from each other in so far as the financial implications are concerned. The Company is in a position to shift the burden on its shareholders whereas, in case of a Partnership Firm, it is the Partners only, who are to incur all the expenses including the fine etc. which may be imposed upon a Firm; being an accused.
On the other hand, Ld. SPP for the complainant has argued that the offence proved against the accused is very serious in nature and such like adulterations result into serious consequences and are a cause of concern for the entire society. The offences under the PFA Act are economic CC No. 64/98 FI Vs. Kishore Kumar etc. ::16::
offences and should be dealt with suitably and that no one should be allowed to dupe the innocent mases and to make money by selling such adulterated articles.
In the present context, the accused / convicts have already been held guilty of selling adulterated article, having an adulterant therein, which was un-disputedly injurious to health.
Taking into consideration the submissions as summarised herein above as well as the fact that the accused / convicts are facing trial for the last about 13 years and even their father expired during the course of the proceedings, the convicts no. 1 & 2 are hereby sentenced to undergo R.I. for 1 year each and to pay fine in the sum of Rs. 10,000/- each (Rupees Ten Thousand Only each) and in default thereof to undergo 15 days S.I. for each defaulter. Fine paid. The convict no. 4 i.e. the Partnership Firm is hereby imposed fine in the sum of Rs. 5,000/-
(Rupees Five Thousand Only). Fine Paid.
At this stage, at the request of the convicts, they are admitted to bail (U/s 437 A Cr. P.C.) on furnishing Bail Bonds and Surety Bonds in the sum of Rs. 20,000/- each (Rupees Twenty Thousand only) with one surety each in the like amount. Bail Bonds furnished. Accepted.
Copies of the judgment as well as order on sentence supplied to the convicts free of cost; against receipt.
File be consigned to Record Room.
Announced in the open Court Raghubir Singh
on 29th March, 2011 ACMM-II/ New Delhi
CC No. 64/98
FI Vs. Kishore Kumar etc.