Delhi District Court
Complainant vs Sh. Chandra Bhushan Jha on 25 June, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW DELHI
In the matter of :
CC No. :- 42917/16
Food Safety Officer
Department of Food Safety
Govt of NCT of Delhi
A-20 Lawrence Road Industrial Area
Delhi-110035
.... Complainant
Versus
1. Sh. Chandra Bhushan Jha
S/o Sh. Ram Jha
M/s Himalya Hospitality Pvt. Ltd.
Chelmsford Club 1, Raisina Road
New Delhi-110001
R/o F-68, Katwaria Sarai
New Delhi-110017 .... FBO-cum-Sr. Executive
2. Sh. D. S. Rana
S/o Sh. G. S. Rana
M/s Himalya Hospitality Pvt. Ltd.
Chelmsford Club 1, Raisina Road
New Delhi-110001
R/o 243, Bank Enclave
Laxmi Nagar, New Delhi-110017 .... Director of accused no. 3
3. M/s Himalya Hospitality Pvt. Ltd.
Chelmsford Club 1, Raisina Road
New Delhi-110001
Registered Office at:-
A-161, Gauri Shankar Bhawan
CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 1 of 16
Vikas Marg, Delhi-110092 .... Company
4. Sh. Ravijot Singh
S/o Sh. Jasbir Singh
Grocery & Ration Supplier
G-7, Shradhanand Market
Khari Baoli, Delhi-110006
R/o 9330, Azad Market, Library Road
Delhi-110006
.... Proprietor-cum-Supplier
of accused no. 3
JUDGMENT
(a) Serial number of the case : 42917/2016
(b) Date of commission of the offence : 03.09.2014
(c) Name of the complainant (if, any) : Ranjeet Singh
Food Safety Officer
(d) Name of the accused person(s), : 1. Sh. Chandra Bhsuhan Jha S/o Sh. Ram Jha M/s Himalya Hospitality Pvt. Ltd. Chelmsford Club 1, Raisina Road, New Delhi-110001 R/o F-68, Katwaria Sarai New Delhi-110017.
2. Sh. D. S. Rana S/o Sh. G. S. Rana M/s Himalya Hospitality Pvt. Ltd. Chelmsford Club 1, Raisina Road, New Delhi-110001 R/o 243, Bank Enclave Laxmi Nagar, New Delhi-11001
3. M/s Himalya Hospitality Pvt. Ltd.
Chelmsford Club 1, CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 2 of 16 Raisina Road New Delhi-110001 Registered Office at:-
A-161, Gauri Shankar Bhawan, Vikas Marg, Delhi-110092
4. Sh. Ravijot Singh S/o Sh. Jasbir Singh Grocery & Ration Supplier G-7, Shradhanand Market Khari Baoli, Delhi-
110006 R/o 9330, Azad Market, Library Road, Delhi-
110006
(e) Offences complained of : Section 26/59 of Food
Safety and Standards Act,
2006
(f) Plea of the accused : Not guilty
(g) Date of final arguments : Concluded on 10.06.2022
(h) Date of Decision : 25.06.2022
(i) Decision : All accused persons stand
convicted for the offence
under Section 26(2)(ii) r/w
Section 3(zx) r/w Section
51 of FSSA 2006.
BRIEF STATEMENT OF REASONS FOR SUCH DECISION
1. This is a complaint under Section 26/59 of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act'). Brief facts as enumerated in the complaint are that on 03.09.2014 at about 05:30 PM, the complainant Ranjeet Singh, Food Safety Officer (hereinafter referred to as 'FSO') along with FA Sh. S. Mishra visited the premises of M/s Himalya CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 3 of 16 Hospitality Pvt. Ltd. at Chelmsford Club, Raisina Road where the accused was found conducting the business of various food articles which were lying stored exposed for sale for human consumption. The FSO disclosed his identity to Sh. Chandra Bhushan Jha i.e. Food Business Operator-Cum- Sr. Executive (hereinafter referred to as 'FBO') of M/s Himalya Hospitality Pvt. Ltd. and expressed his intention to purchase a sample of Kaju pieces from the vendor, which was available in open polythene bag having no label declaration, to which he agreed. FSO showed his intention of taking the sample of abovesaid food article for analysis. 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 also offered to the accused but he refused to accept the same, saying that the Kaju are not meant for sale.
2. The sample was taken under the directions of Designated Officer after breaking it into smallest possible pieces with the help of a clean and dry big spoon in a clean and dry tray and mixed properly with same spoon. The sample was thereafter, divided in four equal parts, put into four clean and dry glass bottles. Thereafter, each counterpart containing the sample was separately, marked, fastened up and sealed according to the Food Safety Act/Rule and Regulations and designated officer slip bearing. Labels were also pasted on each of the four sample counterpart and the FBO has also signed all the four labels affixed on each of the four sample counterpart. A notice in Form VA was prepared and copy of the same was given to FBO/accused. Panchnama was also prepared. One counter part of CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 4 of 16 the sample bearing Code no. 09/DO-19/5304 in intact condition in a sealed packet along with copy of memo in Form-VI in a sealed cover packet along with copy of another memo in Form VI under sealed cover were sent to food analyst on 04.09.2014. 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 Designated Officer Sh. N. N. Sharma on 04.09.2014.
3. The sample was analyzed by food analyst and vide his report no. FSS/786/2014 dated 10.09.2014, food analyst opined that the sample is unsafe because it is fungus contaminated and it was also sub-standard because damaged/discoloured units exceed the prescribed maximum limit of 2.0%. The Designated Officer sent copy of the report of food analyst to FBO Sh. Chandra Bhushan Jha and to the company M/s Himalya Hospitality Pvt. Ltd. on 18.09.2014 and gave them 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 (hereinafter referred to as 'RFL'), Mysore. The FBO preferred an appeal against the report of Food Analyst and one counterpart of the sample was sent to RFL, Mysore for analysis. The Director of RFL, vide certificate no. 203F/FSSA/2014 dated 28.10.2014 reported that the sample was unsafe as defined under Section 3(1)(zz)(ix) of FSS Act.
4. Thereafter, the present complaint was filed against the accused persons namely Sh. Chandra Bhushan Jha, Sh. D. S. Rana director of M/s Himalya Hospitality Pvt. Ltd. , accused Ravijot Singh (supplier of the M/s Himalya Hospitality Pvt. Ltd.). The FSO on conclusion of CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 5 of 16 investigation, also obtained consent under Section 42(4) of FSS Act, for filing the present complaint.
5. As the complaint was filed in writing by the public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 22.04.2015. Accused persons appeared before the court on 04.08.2015 and were admitted to bail on 29.09.2015. They were thereafter, served with notice under Section 251 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C') on 06.04.2016 for offences punishable under Section 26(2)(i)(ii) r/w Section 3(1)(zx) of FSS Act, to which they pleaded not guilty and claimed trial.
COMPLAINANT EVIDENCE
6. At the trial, the complainant department i.e. the prosecution examined three witnesses in support of its case. PW-1 is Ranjeet Singh, FSO who deposed on the lines of the complaint and exhibited the following documents i.e.
1. Ex. PW1/A : order of the Commissioner on whose directions raid was conducted;
2. Ex. PW1/A-1 : FBO receipt;
3. Ex. PW1/B : Form VA;
4. Ex. PW1/C : Panchnama;
5. Ex. PW1/D : Raid Report;
6. Ex. PW1/E : Sample sent to Food Analyst on 04.09.2014;
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7. Ex. PW1/F : Receipt of sending the sample to the DO;
8. Ex. PW1/G : Food Analyst Report;
9. Ex. PW1/H : Letter through which the opportunity was given to the accused to prefer an appeal against the Food Analyst report;
10. Ex. PW1/I : Result of Referral Food Laboratory;
11. Ex. PW1/J, Ex. PW1/K-1 : Letters sent to FBO Chandra Bhushan Jha, Ex. PW1/K-2 Ravijot Singh and two reminders to Ravijot;
12. Ex. PW1/L : Reply received from FBO;
13. Mark-A : Copy of Form 32
14. Mark B : Copy of NDMC Licence
15. Mark-C : Copy of VAT registration
16. Mark-D : Copy of details of bills dated 15.01.2015
17. Mark-D-1 to Mark-D4 : Copies of bills dated 30.08.2014, 11.08.2014, 22.07.2014 and 28.05.2014;
18. Ex. PW1/M : Reply received from supplier Ravijot Singh;
19. Ex. PW1/M-1 : Identity proof i.e. DL of supplier Ravijot Singh;
20. Ex. PW1/N : Letter sent to Manager Cheimsford Club;
21. Ex. PW1/N-1 : Reply received from Manager Cheimsford Club;
22. Ex. PW 1/O : Sanction received from Commissioner, Food Safety;
23. Ex. PW 1/P : Present complaint.
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7. PW-1 was duly cross-examined by all accused persons. During cross-examination PW-1 stated that he did not see any insects in the sample at that time. He also stated that the sample bottles were sealed airtight. He also stated that no preservatives were added in the sample bottles. PW-1 further on cross-examination by Counsel for accused no. 4 admitted that there was no label declaration on the plastic bag from which sample was sought.
8. PW-2 Sh. Subedar Mishra, Field Assistant, who was part of the team that had visited the spot for sample proceedings and PW-3 Sh. Virender Singh then posted as Designated Officer, Food Safety Department were also examined. Both the aforesaid witnesses deposed on similar lines as PW-1 and corroborated his version. PW-2 was cross examined on behalf of all the accused. He also deposed that he did not see any living or dead insects in the food article through naked eye. PW-3 was not cross- examined despite giving opportunity. Complainant's evidence was then closed.
9. Accused persons were thereafter, examined under Section 281 r/w Section 313 Cr.P.C. on 10.12.2019. The accused no. 1 to 3 thereafter lead defence evidence.
DEFENCE EVIDENCE
10. Accused no. 1 to 3 examined Smt. Mohini Srivastva Ex. Food Analyst as DW-1. She deposed that if in any sample, fungus is detected at CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 8 of 16 the initial stage by the Expert, it will become heavily fungus infected after lapse of time. She further deposed that in case of Kaju if living insects are found after 50 days it indicates that they have suitable condition for their development and sufficient air to breath. She admitted that breeding continues if the sample is not air tight. She further deposed that if Kaju is broken in small possible pieces it is considered to be damaged. She also deposed that when any food is kept in a closed compartment rancidity develops due to presence of insects and odour. She also deposed that with the lapse of time and with insect infestation, discoloration takes place. DW- 1 was also cross-examined by Ld. SPP for the complainant.
11. Accused Sh. Chander Bhushan examined himself as DW-2 and deposed that at the time of lifting of the sample of Kaju he was posted as Senior Executive Human Resources and filed on record photocopy of his appointment letter i.e. Ex. DW 2/1. He also placed on record the original receiving challan of sample commodity dated 30.08.2014 having the stamp of accused no. 4 Ravi Jyot Singh vide Ex. DW 2/2. He further relied on the original purchase bill dated 30.08.2014 in favour of Himalaya Hospitality Pvt. Ltd. vide Ex. DW2/3. DW-2 was also duly cross-examined by Ld. SPP for the complainant.
12. Also, statement of accused no. 4 Ravi Jot Singh was recorded under Section 294 Cr.P.C. on 22.12.2021 wherein he admitted that Ex. DW 2/2 is in his handwriting and that Ex. DW 2/3 bears his signatures. He further deposed that he was made to write and sign the abovesaid exhibits by accused no. 1 to 3 after registration of the present case, under pressure as CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 9 of 16 he was supposed to get arrears of Rs. 2,00,000/- from accused no. 1 to 3. He also stated that the stamp affixed on Ex. DW 2/2 in his name was also made by accused no. 1 to 3. He admitted that he had supplied 'four piece Kaju' to accused no. 1 to 3 during the relevant period, but also stated that accused no. 1 to 3 used to take supplies from various vendors.
13. 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. Written submissions were also placed on record on behalf of accused no. 1 to accused no. 3.
ARGUMENTS
14. 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 Counsels argued that report of RFL shall be read over the report of F.A.
15. On the other hand, Ld. Defence Counsels for all the accused persons have also submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. It has been argued by Ld. Defence counsel that the sample were not representative in nature as apart from discoloured units, the acidity of extracted fact and test for rancidity could be CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 10 of 16 found as per the RFL report which were not detected in the FA report.
16. It is argued by Ld. Counsel for accused no. 4 that the raid report Ex. PW 1/D does not mention that name of accused no. 4 at column no. 15 as the same was not disclosed by accused no. 1 and hence no notice under Section 46(4) was given to the accused. It is also argued by Ld. Counsel that the food sample was received by the RFL for testing on 20.10.2014, more than a month after it was seized and since the sample procedure was not followed and neither any preservative added hence, it was infected with insects. It was also argued by the Ld. Counsel that the Kaju sample was seized from an open polythene bag with no label declaration. It is also argued that accused no. 4 was not the exclusive supplier of Kaju. Counsel for accused has also drawn attention of this Court to contradictions in the Bill No. 215 and 198 relied by accused no. 1 to accused no. 3 and statement of accused no. 4 dated 22.12.2021 under Section 294 Cr.P.C.
17. It was jointly argued by Ld. Counsel for all accused persons that neither the bottles were fumicated nor any preservatives was added in the bottles to prevent the growth of insects and prosecution has examined two witnesses and both the witnesses admitted that they did not see any insects of lifting the sample. It is further argued that at the time of lifting of the sample there was no insects moreover second counter part of the sample remained in the custody of Local Health Authority and was analysed after 2 months which resulted in subsequent grown of insects and standard of Kaju Tukra is inbalanced and adulteration took place. It is further argued CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 11 of 16 that there is no evidence to show that these insects were present at the time of lifting of the sample. It is further argued that presence of living insects in the sample bottle indicates that sample were not air tight. It is further argued that if any food quantity is kept in close compartment and there are insects it will develop musty order and rancidity due to the presence of insects with lapse of time which results in discoloration.
18. Ld. Counsels for accused persons relied upon the following judgments:-
I. Jagdish Chandra v. State of U.P., in Criminal Appeal No. 119 of 1980, decided on 07.08.1980;
II. State (Delhi Administration) v. Janta Shudh Masala Store & Ors., 2008(1) JCC 586;
III. Food Insepctor v. Tek Chand Bhalla, in CC No. 27/03 of Delhi District Courts, decided on 18.07.2014; IV. Khacheroo Mal v. The State, in Criminal Revision Appeal No. 120 of 1970 decided on 24.12.1970;
V. Prem Chand v. State of Haryana, in Criminal Appeal No. 2255 of 2010 of Hon'ble Superme Court of India; VI. Andhra Pradesh Grain & Seed Merchant's v. Union of India & Anr., in Writ Petitions Nos. 468/468/489 and 490 of 1969 of Hon'ble Superme Court of India, decided on 31.03.1970;
VII. Ghansham Dass v. The State of Haryana, in Criminal Revision No. 1200 of 1980 decided on 17.05.1983 of Hon'ble Punjab and Haryana High Court;
CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 12 of 16 VIII. State v. Anil Kumar Sodhi & Anr., 2009 (2) JCC 904; IX. Municipal Corporation of Delhi v. Shri Ramji Dass & Anr., in Crl. Appeal No. 228 of 1975, decided on 22.04.1983 of Hon'ble Delhi High Court;
X. Food Inspector/Food Safety Officer through Govt. of NCT of Delhi v. Ram Sahai Kataria & Ors., 2014 (4) FAC 283 of Hon'ble Delhi High Court;
XI. Nagar Mahapalika, Lucknow v. Mushir Ahmad, in Cr. A. No. 825/1972 decided on 03.10.1977 of Hon'ble allahabad High Court;
XII. Shyam Sunder Bhartia & Ors. v. State Through Food Inspector Govt. of NCT of Delhi, in Crl.M.C. 461/2008 & Crl. M. A. No. 1753/2008 decided on 22.01.2009 of Hon'ble Delhi High Court;
XIII. State (Delhi Admn.) v. Inderjit Singh & Anr., in Criminal Appeal No. 58 of 1986 decided on 23.02.2005 of Hon'ble Delhi High Court;
XIV. Municipal Corporation of Delhi v. Ved Prakash, in Criminal Revision No. 137 of 1978 decided on 19.12.1978 of Hon'ble Delhi High Court;
19. 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.
20. It is to be seen that the notice framed against the accused is for CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 13 of 16 violation of section 26(2)(1) of FSSA r/w Section 3(1)(zz)(ix) FSSA of the FSSA. Thus, the prosecution has to establish that Kaju sample seized was unsafe for human consumption on account of being infected or infested with insects and hence punishable under Section 59 of the Act.
21. The food article in the present case is Kaju Broken. As per the report of FA dated 10.09.2014 no insects or Rodent Hair or Synthetic colour matter was found and the acidity of the extracted fat expressed as olecic acid was also 0.63% and within permissible limit. As per the report the sample was found unsafe because of presence of fungal spores and was found to be sub-standard because the sample contained 10.81% of discoloured units.
22. As per the RFL report dated 28.10.2014 the food sample was found unsafe as the same was heavily insect infested and live insects were found and due to presence of musty odour and rancidity. It was also found that the acidity of extracted fact as oleic Acid was 6.02% and the entire sample was found damaged. The sample was also adulterated as discoloured units were found to be 100 percent. It has been vehemently argued by Ld. Counsel for accused persons that prosecution witnesses have deposed that they did not notice any insects at the time of taking sample. It is further argued that the prosecution witnesses have also admitted that no preservative was added to the sample. It is also an admitted fact that the sample was taken in the month of September, which is a rainy season in Delhi.
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23. The defence witness who was a former food analyst had also deposed that the growth of living insects is only possible after 50 days if the sample is not air tight. She further deposed that due to presence of insects the alcoholic acidity increases and musty odour develops. DW-1 also stated that rancidity also develops due to presence of insects and with lapse of time and due to insect infestation discoloration takes place.
24. In the present case the sample was seized on 03.09.2014. It was first sent to food analyst on 04.09.2014 when no insects were found. Thereafter, It was received at RFL, Mysore on 20.10.2014, i.e. more than a month later. There is no evidence that the sample were not tampered within the intervening period or that they were airtight. The RFL report Ex. PW 1/T simple mentions the condition of seal as 'intact and unbroken'.
25. In view of the above discussion the benefit of doubt accrues in favour of the accused and hence the Court is of the opinion that the food sample can only be said to be sub-standard on account of having damaged and discoloured units but not unsafe.
26. Also moving next to the contention of the Counsel for accused no. 4 that accused no. 1 and 2 have falsely impleaded the accused. Ld. Counsel for accused has argued that on account of contradiction between Mark-D i.e. summary of Bill sent to accused no. 4 by accused no. 3 and Mark-D-1 i.e. bill no. 215 issued by accused no. 4 as well as Ex. PW 1/D where name of accused no. 4 has not been disclosed, it is manifest that accused no. 4 was named as an afterthought by accused no. 1 and accused CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 15 of 16 no. 2. The Court having perused the record, as well as Ex. DW 2/2 and Ex. DW 2/3 is not convicted with the submission as no evidence has been led by accused no. 4 to support his arguments.
27. Thus, in view of the aforesaid facts and discussions, this Court is of the opinion that all accused persons i.e. accused no. 1 Chandra Bhsuhan Jha s/o Sh. Ram Jha, accused no. 2 D. S. Rana S/o Sh. G. S. Rana, accused no. 3 M/s Himalya Hospitality Pvt. Ltd. (represented by accused no. 1) and accused no. 4 Ravijot Singh s/o Sh. Jasbir Singh are hereby convicted for the violation of provisions of Section 26(2)(ii) r/w Section 3(zx) r/w Section 51 of FSSA 2006.
28. Be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN COURT DATED: 25.06.2022 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI This judgment contains Sixteen pages and each page is signed by me.
(NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CC No:- 42917/2016 DA (FSO) v. Chandra Bhushan Jha Etc. Page No. 16 of 16