Delhi District Court
Da vs Radhey Shyam Etc. on 20 March, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 40937/2016
Date of Institution : 04.01.2005
Date of reserving judgement : 20.03.2018
Date of pronouncement : 20.03.2018
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. Radhey Shyam
S/o Sh Takan Dass,
M/s Kamal Juice Corner,
A-39, Kamla Nagar, Delhi
R/o H No. 6, Block No. 9,
Geeta Colony, Delhi
A-2) Sh. Nand Kishore
S/o Sh Takan Dass,
M/s Kamal Juice Corner,
A-39, Kamla Nagar, Delhi
R/o H No. 9/6, Geeta Colony,
Gandhi Nagar, Delhi
A-3) Sh. Shubh Karan
S/o Sh Ram Bali,
M/s Oberoi & Co.
7/13, Vijay Nagar, Delhi - 9
R/o 7/13, Vijay Nagar,
Delhi - 9 ...... Accused persons.
CC No. 40937/2016 Page No. 1/13
DA vs Radhey Shyam etc.
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.
2. As per the complaint, on 08.10.2004, Food Inspectors (herein after referred to as FI) Sh. Gian Chand and Field Assistant (herein after referred to as FA) Sh J.P. Bhardwaj under the supervision of Local Health Authority (herein after referred to as LHA)/SDM Sh S.L. Batra visited the premises of M/s Kamal Juice Corner, A-39, Kamla Nagar, Delhi, where the accused No. 1 Radhey Shyam was found conducting the business of above said shop, including "Sweetened Aerated Water", having identical label declaration. The FI disclosed his identity and expressed his intention to purchase a sample of Sweetened Aerated Water from the vendor for analysis. The sample consisted of 09 "kanchewali" bottles of 200 ml each of Sweetened Aerated Water having identical label declaration, batch number and date of mfg was taken as such in original sealed condition. The sample was taken under the supervision / direction of SDM/LHA Sh. S.L. Batra. The Food Inspector divided the sample commodity into three equal parts then and there by putting three bottles together. Each counterpart containing three sealed bottle of Sweetened Aerated Water 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 counterparts. Notice was given to the accused CC No. 40937/2016 Page No. 2/13 DA vs Radhey Shyam etc. No. 1 Radhey Shyam and the price of the sample was also given to him vide receipt dated 08.10.2004. Panchanama was prepared at the spot. All the documents prepared by F.I. Were signed by the accused No. 1 Radhey Shyam and other witness FA Sh J.P. Bhardwaj. Before starting sample proceeding efforts were made to join public witnesses but none came forward and FA Sh J.P. Bhardwaj was joined as witness.
3. One counter part of the sample was sent to Public Analyst, Delhi bearing LHA code No. 41/LHA/7043 in intact condition and two counterparts were deposited with SDM/LHA in intact conditions. Public Analyst analysed the sample and found the sample to be non-conforming to standard. The report of the PA is as follows:-
"The sample does not conform to standard because total plate count and yeast & Mould count exceed the prescribed limit of 50 per ml and 2 per ml respectively. Further the label does not declare the percentage of Sugar as required by the standards under PFA Act & Rules (A.01.01)"
4. It is further the case of the complainant that accused No.1 Radhey Shyam was the vendor of M/s Kamal Juice Corner, A-39, Kamla Nagar, Delhi at the time of sampling and accused No.2 Nand Kishore is the proprietor of the said shop and as such both the vendor and proprietor are incharge of and responsible to day conduct of the business of the said shop. It is further stated that the sample commodity was purchased from M/s Oberoi & Co. 7/13, Vijay Nagar, Delhi - 9. M/s Oberoi & Co. is the supplier- cum manufacturer of the sample commodity, which is a proprietorship concern and accused No. 3 Shubh Karan is the CC No. 40937/2016 Page No. 3/13 DA vs Radhey Shyam etc. proprietor and is responsible for day to day conduct of the business of M/s Oberoi & Co.
5. 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 04.01.2005 alleging violation of section 2(ia)(a)(m) and section 2(ix)(e)&(k) of PFA Act, and Rule 42 ZZ(1) & (12) of PFA Rules, 1955 as punishable section 7/16(1)(a) of PFA Act against the accused.
6. 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 04.01.2005. The accused thereafter did not exercised their option of analysing the counter part through CFL under section 13(2) of the PFA Act. Based on the report of the PA as well as evidence led in pre charge evidence, charges was framed against the accused for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Section 2(ia)(a) and (m) of PFA Act as it was not confirming to standards and Rule 42(ZZZ)(1)(12) of PFA Rules, 1955 as it was misbranded to which accused pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witness in support of its case i.e. PW-1 FI Sh Gian Chand, PW-2 SDM Sh S.L. Batra and PW-3 FA Sh J.P. Bhardwaj. PW-1 and PW-4 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh S.L. Batra. These witness narrated the steps undertaken by them during the sample proceedings, CC No. 40937/2016 Page No. 4/13 DA vs Radhey Shyam etc. including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 09 "kanchewali" bottles of 200 ml each of Sweetened Aerated Water having identical label declaration from the vendor, dividing the sample commodity into three equal parts by putting into three equal part by taking three sealed originally bottles in each counterpart, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex.PW-1/C. Accused also disclosed the source of purchse of sample commodity from M/s Oberoi & Co. 7/13, Vijay Nagar, Delhi 9 accordingly a notice u/s 14 A Ex.PW1/D was also prepared at the spot and was sent through registered post on the next day. Thereafter, the one counterpart of the sample was deposited in intact condition with PA on 11.10.2004 vide receipt Ex.PW1/E and remaining two counterpart of the sample was deposited with LHA vide receipt Ex.PW1/F. Thereafter, PA Report Ex.PW-1/F was received according to which sample does not conform to the standard and also misbranded. Thereafter PW-1 FI Gian Chand further investigated the case and sent letter as well as reminder Ex.PW1/G & G1 to the vendor and received reply Ex.PW1/G2 alongwith document Mark X1 to X5. PW-1 FI Gian Chand also sent letter Ex.PW1/H to STO Ward No. 68 and received reply at portion X. PW-1 FI Gian Chand also sent letter Ex.PW1/I to DHO, MCD but no reply was received. PW-1 FI Gian Chand also sent two letters and reminder Ex.PW1/J1 to J3 to M/s Oberoi and Co and received reply Ex.PW1/J4 alongwith documents. He also sent letter Ex.PW1/J5 to STO Ward No. 69, and received its reply stating CC No. 40937/2016 Page No. 5/13 DA vs Radhey Shyam etc. that no such firm was found registered with sales tax. PW-1 FI Gian Chand also sent letter Ex.PW1/J6 to DHO, MCD but no reply was received. A letter Ex.PW1/J7 was also sent to Dy Director F&VP through SDM/LHA and received reply Ex.PW1/J8. During investigation accused No. 3 also furnished his statement Ex.PW1/J9 and document mark Z1 to Z3. After completion of investigation, the entire case file was put before the concerned SDM/LHA who forwarded the same to the then Director of PFA for obtaining the sanction and the then Director PFA after going through the same gave his consent for prosecution Ex. PW-1/K. Thereafter the present complaint Ex.PW-1/L was filed in the Court and then intimation letters Ex.PW-1/M alongwith copy of PA Reports were sent to accused persons through through registered post vide postal registration receipt Ex. PW-1/N. The witnesses were duly cross examined by the Ld Defence Counsel.
8. Statement of the accused under section 313 Cr.P.C. were recorded on 04.01.2013 wherein the accused denied the allegations and pleaded innocence. The accused has not led any defence evidence and the matter was fixed for final arguments.
9. In a criminal case, the burden is only on the prosecution to prove its case against the accused beyond reasonable doubt by leading positive evidence. This burden cannot be shifted to the accused and it has to be necessary discharged by the prosecution itself.
10. The present case alleges adulteration in the sample of Sweetened Areated Water collected from the business concern of the accused. This sample of Sweetened Areated Water has been CC No. 40937/2016 Page No. 6/13 DA vs Radhey Shyam etc. analysed twice, firstly by the PA and secondly, by the CFL. Further there is allegation of misbranding.
11. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
12. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
13. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate CC No. 40937/2016 Page No. 7/13 DA vs Radhey Shyam etc. supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
14. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed as under:-
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise CC No. 40937/2016 Page No. 8/13 DA vs Radhey Shyam etc. undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
15. The whole case of prosecution is now based on the CFL report. The CFL report has been assailed by the defence on the ground that the sample was analysed by CFL after the expiry of the product in question i.e. Sweetened Aerated Water and the defence has relied upon the judgement of of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors 1999 (2) FAC399 to argue that the Sweetened Aerated Water was manufactured on 25/08/2004 and was best before three months from the date of manufacturing. The sample was sent after this period and therefore its analysis by CFL has no value.
16. I have gone through the judgement citied by the defence. In this case, the sample in question was of an insecticide. The manufacturing date of insecticides was March 1994 and its expiry date was February 1995. By the time the accused was summoned to appear in the Court on April 06, 1995. they had lost their right of getting the samples be analysed from Central Insecticide Laboratory. The Hon'ble Court held that by the time, the respondents were asked to appear before the Court, the expiry date of insecticide was already over and sending of sample to the Central Insecticide Laboratory at that stage would be of no consequence. In the words of Hon'ble Court :-
"Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other CC No. 40937/2016 Page No. 9/13 DA vs Radhey Shyam etc. mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal CC No. 40937/2016 Page No. 10/13 DA vs Radhey Shyam etc. v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence."
17. Now in the present case, the sample of Sweetened Aerated Water was lifted on 08.10.2004. Form VI prepared on the spot shows that the date of manufacturing of Sweetened Aerated Water was 25/08/2004 and it was mentioned on the packet that the same was CC No. 40937/2016 Page No. 11/13 DA vs Radhey Shyam etc. best before three months from the date of manufacturing. The sample was analysed in CFL in February 2005 and therefore it is clear that the sample was analysed after the period of its expiry and therefore convicting the accused on the basis of analysis of such a sample, will not be proper. Therefore, placing reliance upon the aforesaid judgement of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors, Hindustan Liver Ltd Vs State of Punjab 2011 (1) FAC 192, a benefit of doubt is given to the accused regarding the adulteration of the sample, which is the subject matter of the present case. Reliance may further be had upon the case titled as Food Inspector vs Banarsi Das & Ors 2014 (2) FAC 177 wherein the order of declining cognizance was uphold by Hon'ble High Court of Delhi when the complaint was filed after expiry period of the product more particularly when no preservative was added to the sample as per the prosecution evidence. Reliance may further be had on the judgement of Marico Ltd and others vs State of Delhi 2015 (1) FAC 40.
18. On the second issue 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 May 2004, the accused are covered by aforesaid policy. Although, no such policy has been placed or CC No. 40937/2016 Page No. 12/13 DA vs Radhey Shyam etc. 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.
19. 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 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 42 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 439/2008 dated 20.01.2011 and recently in Hello Minerals Water PVT LTD & ORS vs State CRL.MC.224/2016 dated 10.01.2018.
20. On the basis of aforesaid discussions, the accused are acquitted from this case.
Announced in the open court this 20th day of March, 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 40937/2016 Page No. 13/13 DA vs Radhey Shyam etc.