Delhi District Court
Da vs Akash Yadav & Ors on 9 July, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II
Patiala House Courts, New Delhi
CC No. 40578/2016
Date of Institution : 29.08.2006
Date of reserving judgement : 06.07.2018
Date of pronouncement : 09.07.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Akash Yadav
S/o Sh Kishan Kumar Yadav
M/s Rama Kishana Agency,
221 Govind Khand Infront of Oxford School
Vishwakarma Nagar, Jhilmil Colony
New Delhi-110095
R/o S.G. Pocket, 15 A, Dilshad Garden,
Delhi - 92
[Proceeding abated vide order dated 06.04.2016]
A-2) Sh. Jasveer Singh
S/o Sh. Lashkar Singh
M/s Rama Kishana Agency,
221 Govind Khand Infront of Oxford School
Vishwakarma Nagar, Jhilmil Colony
New Delhi-110095
R/o D-77, Jhilmil Colony, Delhi-95
[Proceeding abated vide order dated 13.02.2017]
CC No. 40578/2016 Page No. 1/10
DA vs Akash Yadav & ors
A-3) Sh. Saad F. Siddiqui
S/o Sh. Faizal-Ul-Haque Siddiqui
M/s Desert Spring India,
108, Taimoor Nagar, New Friends Colony,
New Delhi-65
R/o Abul Mali Street,
PO. Deoband, Sharanpur, U.P.
A-4) Sh Parwez K.Siddiqui
S/o Sh. Iqbal Karim Siddiqui
M/s Desert Spring India,
108, Taimoor Nagar, New Friends Colony,
New Delhi-65
R/o A-3/5, MIG Flats, Sarai Khalil,
Sadar Bazar Delhi-6
A-5) M/s Desert Spring India,
108, Taimoor Nagar,
New Friends Colony, New Delhi-65
A-6) Sh. Mahendra Kumar Mittal
S/o late Sh. D.D. Mittal
M/s Essaam Jointings Pvt. Ltd
8th KM, Stone, Delhi Meerut Road, Morta,
Ghaziabad (U.P)
R/o R-26/A, Raj Kunj, Raj Nagar.
Ghaziabad (U.P)
A-7) M/s Essaam Jointings Pvt. Ltd
8th KM, Stone, Delhi Meerut Road, Morta,
Ghaziabad (U.P) ..... Accused person
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFA Act), alleging that the accused have violated the provisions of the PFA Act and Rules.
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2. As per the complaint, on 10.03.2005 at about 5.30 pm, the Food Inspectors (herein after referred to as FI) Dr. Pramod Kothekar and Field Assistant (herein after referred to as FA) Sh Jagdish Prasad under the supervision of Local Health Authority (herein after referred to as LHA)/SDM Sh S.P. Bhardwaj visited the premises of M/s Rama Krishna Agency, 221, Govind Khand Infront of Oxford School, Vishwa Karma Nagar, Jhilmil Colony, New Delhi - 110095, where the accused No. 1 Akash Yadav was found conducting the business of various food articles, including "Packed Drinking Water" was found stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of "Packed Drinking Water" from the vendor for analysis. The sample consisted of 3x1 litre sealed plastic bottles of Packed Drinking Water bearing identical label declaration. The sample was taken under the supervision / direction of Sh S.P. Bhardwaj SDM/LHA. The Food Inspector divided the sample then and there into three equal parts, each counterpart containing 3x1 litre of packets Drinking water. Each bottle containing the sample was separately, fastened, marked and sealed according to PFA Act & Rules. The vendor's signature were obtained on the LHA slip and the wrapper of the sample counter parts. Notice was given to the accused No. 1 Akash Yadav and price of the sample was also given to him vide vendor receipt dated 10.03.2005. Panchanama was prepared at the spot. All the documents prepared by FI were signed by the accused No. 1 Akash Yadav and the other witness Sh Jagdish Prasad F.A. Before taking sample proceeding efforts were made to join public witnesses but none came forward, as such Sh Jagdish Prasad, CC No. 40578/2016 Page No. 3/10 DA vs Akash Yadav & ors FA was joined as witness.
3. One counter-part of the sample bearing LHA code No. 23/LHA/12070 was also sent to Public Analyst, Delhi in intact condition and two counter-parts were deposited with the LHA in intact condition. Public Analyst analysed the sample and found the same is misbranded. The report of the Public Analyst is as follows:
"The sample is misbranded because it gives date of mfg as Mar 200 which is vague. Best before declared 3 month from date of pkg but date of pkg not mentioned on label which is misleading statement. However packaged drinking water conforms to standard."
4. It is the case of the complainant that accused No. 1 Sh. Akash Yadav was the Vendor-cum-Salesman/Supervisor of M/s Rama Krishna Agency, 221 Govind Khand Infront of Oxford School Vishwakarma Nagar, Jhilmil Colony New Delhi-110095 at the time of sampling and as such he is incharge of and responsible for day to day conduct of the business of the said shop. M/s Rama Kishana Agency is a proprietorship concern in the name of accused No. 2 Jasveer Singh as such he is incharge of and responsible for day to day conduct of the business of the said shop. The sampled food article i.e. packaged drinking water has been purchased by M/s Rama Kishana Agency from Accused No. 5 M/s Desert Spring India,108, Taimoor Nagar, New Friends Colony, New Delhi-65. Accused No. 5 M/s Desert Spring India is also marketer of sampled article. Accused No. 5 M/s Desert Spring India is partnership firm having two partners i.e. accused CC No. 40578/2016 Page No. 4/10 DA vs Akash Yadav & ors No. 3 Sh. Saad F. Siddiqui and accused No. 4 Sh. Parwez K. Siddiqui as such both partners are incharge of and responsible for day to day conduct of the business of the said firm. Being partnership firm M/s Desert Spring India is also liable.
5. The sampled article i.e packaged drinking water has been purchased by accused No. 5 M/s Desert Spring India from accused No. 7 M/s Essaam Jointings Pvt. Ltd, Works at 8th KM, Stone, Delhi Meerut Road, Morta, Ghaziabad (UP) and Office at R-26/A, Raj Kunj, Raj Nagar, Ghaziabad (U.P). Accused No.7 M/s Essaam Jointings Pvt. Ltd is also manufacturer of said sampled article. The said company has appointed accused No 6 Mahendra Kumar Mittal as a nominee u/s 17(2) of PFA Act 1954 and as such he is inchage of and responsible for the day to day conduct of the business of the said company. Being company M/s Essaam Jointings Pvt. Ltd is also liable
6. Thereafter on 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 29.08.2006 alleging violation of Section 2(ix) (g) & (k) of the PFA Act, 1954, and the provision of Rule 32(f) and Rule 37 of PFA Rules 1955, as punishable section 7/16(1)(a) of PFA Act by the accused person.
7. 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 29.08.2006. Based on the report of the PA, notice was framed against all accused for commission of the offence punishable under section 7/16(1) (a) PFA Act being CC No. 40578/2016 Page No. 5/10 DA vs Akash Yadav & ors violation of Section 2(ix) (g) & (k) of the PFA Act, 1954 and Rule 32(f) and Rule 37 of PFA Rules 1955, to which accused pleaded not guilty and claimed trial. During the trial, the accused No. 1 and accused 2 were expired and proceedings qua them were were abated.
8. At the trial, the prosecution examined three witness in support of its case i.e. PW-1 FI Sh P.M. Kothekar, PW-2 SDM/LHA Sh S.P. Bhardwaj and PW-3 FA Sh Jagdish Prasad. PW-1 and PW-3 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh S.P. Bhardwaj. These witness narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 3x1 "Packed Drinking Water" bearing label declaration, dividing the sample into three equal parts by putting three original sealed bottle of the sample in three counterparts and each counterpart was packed, fastened, marked and sealed and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, cash memo issued by vendor Ex.PW1/A-1, Notice Ex. PW-1/B, Notice under section 14 A Ex.PW1/B1, Panchnama Ex. PW-1/C. The accused no. 1also made statement Ex.PW1/C1 alongwith copy of bill Mark 1/1. Thereafter, on the next working day i.e. 11.03.2005, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA vide receipt Ex. PW-1/E. PA Report Ex.PW1/F was received through LHA, which revealed that the CC No. 40578/2016 Page No. 6/10 DA vs Akash Yadav & ors sample was misbranded and giving misleading declaration and accordingly on the directions of SDM/LHA, PW-1 started the investigation. During investigation, PW-1 sent letters Ex. PW 1/G, Ex. PW-1/G-1 and Ex. PW-1/G-4 to accused/vendor Akash Yadav. FI Ranjeet Singh also sent letters Ex. PW-1/G-2, Ex. PW- 1/G-3 to vendor/accused when PW-1 FI P.M. Kothekar was on leave. I sent letter dated 01.09.2005 Ex. PW-1/H to Jasveer Singh. PW-1 FI P.M. Kothekar also sent a letter Ex.PW-1/H to Sales Tax Officer, Ward No. 83 and received reply in the same from portion X to X. During the course of investigation, one letter Ex.PW-1/I was received from Desert Spring through its partner Saad F. Siddiqui alongwith the copy of invoice bill Mark 1/2. Another letter Ex. PW-1/I-1 was received from Desert Spring through its authorized signatory alongwith copy of invoice bill Mark 1/3 which was issued by Manufacturing Unit i.e. Essaam Jointings Pvt. Ltd. A letter Ex. PW-1/J was also sent to Sales Tax Officer, Ward no. 94 through FI Ranjeet Singh regarding constitution of Dessert Spring. PW-1 FI P.M. Kothekar also sent letters Ex.PW-1/K, Ex.PW-1/K-1 and PW-1/K-2 to Desert Spring through registered post. The letters Ex. PW-1/K-3, Ex.PW-1/K-4 and Ex. PW-1/K-5 were also sent to M/s Desert Spring through FI Ranjeet Singh. During course of investigation, PW-1 FI P.M. Kothekar received letter Ex.PW-1/L from VATO Ward no. 99. PW- 1 FI P.M. Kothekar also received reply Ex. PW-1/M from Jasveer Singh alongwith document Mark 1/5 & 1/6. PW-1 FI P.M. Kothekar also sent letter to Essaam Jointings Pvt. Ltd. Ex. PW-1/N. In response to said letter PW-1 FI P.M. Kothekar received reply Ex.PW-1/N-1 alongwith document Mark 1/7 1/8 and Mark 1/10. PW-1 FI P.M. Kothekar also sent letter to Chief Medical Officer CC No. 40578/2016 Page No. 7/10 DA vs Akash Yadav & ors Ex. PW-1/O. Thereafter, PW-1 FI P.M. Kothekar put up the entire case file before the concerned SDM/LHA, who forwarded the same to the then Director PFA for obtaining his Consent and the then Director PFA Shri K.S.Wahi granted his Consent for prosecution of accused persons after applying his mind vide Ex.PW1/P. Then, PW-1 FI P.M. Kothekar filed the complaint before this Court vide Ex. PW 1/Q, Then Intimation letters Ex.PW1/R alongwith copies of PA's Report were sent to the accused persons through registered post Ex. PW 1/S which were not received back undelivered. All the witnesses were duly cross examined by the Ld Defence Counsel.
9. Statement of the accused under section 313 CrPC were recorded on 20.12.2017 wherein the accused denied the allegations and pleaded innocence. The accused have not led any defence evidence and the matter was fixed for final arguments.
10. In a criminal trial, the burden is on the complainant / prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by leading cogent and trustworthy evidence. However, if the accused has any defence, then the burden to prove that defence lies upon the accused.
11.The present case is for misbranding of a food article. As per prosecution the sample was misbranded because the date of manufacturing was vague and date of packaging was not written on the water bottle.
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12. Regarding the allegations of misbranding, the defence has relied upon the judgment of Hon'ble High Court of Delhi in S.S. Gokul Krishanan & Others vs State 2009(1) FAC 132 to argue that there was a policy of the complainant department of 1985 numbered as Policy No F6(228)/85/ENF/PFA wherein a decision was taken to give a written warning to the offenders with regard to any deficiency in respect of Rule 32 of the PFA Act. Although this policy was withdrawn by order No. 5/07 dated 14.09.2007 but since this case was filed August 2006, the accused are covered by aforesaid policy. Although, no such policy has been placed or proved on record by other side and this policy was further withdrawn as per the aforesaid judgment on the ground that Section 20 of the PFA Act does not confer any such power on the consenting authority to issue such warning to the vendors found violating Rule 32 of the PFA Act.
13. Be that as it may, PFA Act or Rules does not provide any such warning but since the benefit of this policy has been given in the case of S.S. Gokul Krishnan (referred above), I feel myself bound by the ratio of that case. Therefore as far as offence of misbranding is concerned, since, it is not the case of the prosecution that the accused were given earlier a warning and despite that they continued with the offence, the accused are given the benefit of this policy and therefore they shall not be liable for violation of Rule 32 and 37 of PFA Rules. The judgment of Gokul Krishnan (supra) has also been followed in the judgment of M/s Bunge India Pvt Ltd & Others vs State & Another Crl.MC CC No. 40578/2016 Page No. 9/10 DA vs Akash Yadav & ors 439/2008 dated 20.01.2011 and recently in in Hello Minerals Water PVT LTD & Ors vs State CRL.MC.224/2016 dated 10.01.2018.
14. On the basis of aforesaid discussions, all the accused (except accused 1 and 2 against whom the proceedings have already been abated) are acquitted from this case .
Announced in the open court this 09th day of July 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 40578/2016 Page No. 10/10 DA vs Akash Yadav & ors