IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CA No. 8429/16
Shammi Gupta S/o Sh. Raj Prakash Gupta M/s Modarn Dairy 114-A, Jawahar Nagar, Delhi- 110007 R/o 13/24, Shakti Nagar, Delhi-110007. ….Appellant
Vs. State (Delhi Admin.) Food Safety Department A-20 Lawrence Road Industrial Area, Delhi. …. Respondent Date of receiving of Appeal : 04.07.2016
Date of arguments : 19.10.2016 Date of judgment : 19.10.2016
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Shammi Gupta against the judgment dated 01.04.2014 and order on sentence dated 02.02.2014 passed by Sh. Gaurav Rao, the then Ld. ACMM-II, Patiala House Court, New Delhi.
The brief facts of the case as per record and from trial court record are that accused is running an establishment namely M/s Modern Dairy, at Shop No. 114A, Jawahar Nagar, Delhi- 110007. On 05.06.2009 at about 10.00 p.m. Food Inspector Sh. Dharambir Singh visited the said place and purchased 600 grams of “Ghee” (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. Nityanand. The said Ghee was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because “The sample does not conform to standard RM Value is less than the prescribed limit of 28 (27.13).
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 16.09.2009 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act and get the sample analyzed by CFL. The CFL gave opinion “I am of the opinion that, the above sample does not conform to the standards of “Ghee” as per PFA Rules 1955 as per tests performed(B.R. Reading is 43.6 and RM Value is 26.76)”.
4 Charge was framed against accused u/sec.2(ia) (a)(m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1a)
5 After trial, vide judgment dated 01.04.2014 accused was convicted for offence u/sec.16(1a) of PFA Act and vide order on sentence dated 02.02.2014 was directed to undergo simple imprisonment for a period of 1 year and fine of Rs.10,000/- and in default of payment of fine SI of 60 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e. independent witnesses were not joined.
(ii) Non-compliance of Rule 14 of PFA Rules i.e. the spoon, mug, bottles were not made clean and dried at the spot by the food inspector or any other official.
(iii) Sampling was bad as Ghee was not heated prior to sampling.
(iv) After coming into Food Safety & Standards Act, the punishment is to be granted under the said Act (argued orally).
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued by counsel for appellant that no public witness was present in the proceedings nor efforts were made to join any public witnesses. As far as this argument is concerned, the same argument was raised before the Ld. Trial Court. The same was dealt by the trial court from para 19 to 24 of the judgment. As far as opinion/finding of the trial court regarding this argument is concerned, I do not find any infirmity in those findings and the same are upheld and the arguments regarding this fact does not find any force and thus rejected.
10 It is further argued that compliance u/sec.14 PFA Rules was not proved on record by the prosecution. It is stated that witnesses are deposing differently with respect to the cleanliness of spoon, mug, bottles etc. It is further stated that it was the duty of the prosecution to prove these facts. These arguments were also addressed before the trial court. The relevant part of the judgment dealing with these arguments are from para 25 to 41 of the judgment. I have gone through the record and submissions forwarded. As far as these witnesses are concerned, they have specifically stated that as to how the Ghee was taken from the open steel drum. The witnesses had deposed that the same was taken from open steel drum, after mixing it with the help of clean and dry karchi (spoon) after thoroughly mixing it and then put in clean and dry bottles. So, there is no material on record which shows that the “implements” were unclean. There is no discrepancy in the testimony of the witnesses regarding these facts. So, I do not find force in the arguments of Ld. counsel for appellant that there is non-compliance of Rule 14 PFA Rules, 1955. Hence, those arguments are rejected and the opinion given by trial court in this regard is upheld.
11 It is further stated that the Ghee was not heated so that there should be uniformity in its state of matter i.e. it should have been in entire liquid state. Due to this reason there is small discrepancy in the readings. Part of this arguments is dealt by the court from para 42 to 51 of the judgment. The reasoning given by the trial court regarding the same does not required any interference.
However, the argument that the Ghee was not heated before taking sample, the same is not tenable as the sample was taken in the month of June, in Delhi. During that time there is hot summer season and the Ghee remain in liquid state.
So, in these circumstances, I do not find any ground for change/modification of Trial Court’s judgment, on merits. So, the finding of the trial court with respect to the conviction of accused u/sec.2(ia) (a) & (m) of PFA Act 1954 read with Sec.16(1a) of PFA Act, is upheld.
12 It is submitted by Ld. counsel for appellant that on the date of judgment/order on sentence, the PFA Act, 1954 was repealed. It is further stated that the court should have passed the order on sentence as per the quantum/punishment mentioned in Food and Safety Standards Act, 2006 (hereinafter called FSSA). For this purpose, Ld. counsel for appellant had relied on Judgment i.e. Nemi Chand Vs. State of Rajasthan (Crl. Appeals No. 214 and 215 of 2016, vide order dated 10.03.2016, as corrected vide order dated 17.03.2016, as reported in 2016 (1) FAC 203) of Hon. Supreme Court and earlier judgment T Barai Vs. Henry, 1983 (1) SCC 177.
13 On the other hand, it is argued by Ld. SPP for State that the sentencing cannot be done in new Act since the definition of many offences are changed in the new Act including this particular offence of which accused is charged. Definition of major offences like “adulteration” and “misbranding” have been changed. Now FSSA have definition “substandard food”, “food containing extraneous matter”, “unsafe food” and “misbranded food”. Due to this reason, the ingredients have changed and thus there is no way in which the old offences could be related to new offences.
14 As far as the objection of Ld. SPP for State is concerned, in the present case, the offence was that the article/food i.e. Ghee was found having deviations from standards i.e. RM Value 26.76 (not less then 28) and the BR Reading is 43.6 (between 40 & 43). This was termed as adulteration in view of Sec.2(ia) of PFA Act and thus consequently punishable u/sec.16(1a) of PFA Act. The charge was framed with these facts. There was no charge in which it is stated that the said colour was injurious to health. Had it been the case, the charge should have been u/sec.16(1A) (ii) of PFA Act.
15 Now in the FSSA, such adulteration is termed as “substandard” in terms of Sec.3(zx) of FSSA Act punishable u/sec.51 of FSSA.
So, if we go through both these provisions of law, a particular offence with a particular fact is mentioned with some other name but with same ingredients in the new FSSA Act.
16 Hence, it is held that it is the ingredients which constitute an offence, determines that whether it is the same offence but with new name or an altogether different offence. Here the offence I.e Ghee having slight deviations from standards i.e. RM Value 26.76 (not less then 28) and the BR Reading is 43.6 (between 40 & 43) which was punishable u/sec.16(1a) PFA Act is similar to the offence u/sec.51 of FSSA Act.
17 As far as the application of Nemi Chand judgment (supra) is concerned, the same is based on the old judgment i.e. T. Barai (supra) of Hon. Supreme Court. The relevant portion of the T. Barai judgment is as follows:-
(Para 25) – It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown [(1958) 120 ER 909, 912: 32 LTOS 146 : 7 WR 80] Lord Campbell put the matter thus:
“It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute; see also Smith v. Benabo [(1937) 1 All ER 523: (1937) 1 KB 518: 156 LT 194] .
In Regina v. Youle [(1861) 158 ER 311, 315-16: 4 LT 299: 9 WR 637] , Martin, B. said in the oft-quoted passage:
“If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act.”
The rule is however subject to the limitation contained in Article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different.
Moreover this particular aspect is stated as a illustration in the same judgment in para 23 which is as follows:-
To illustrate, if Parliament were to reenact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life instead of the present sentence of death or imprisonment for life, then it cannot be that the courts would still award a sentence of death even in pending cases.
So, in these circumstances, it can be safely said that while considering on the point of sentence, the quantum of sentence in new Act i.e. FSSA is to be considered.
18 Now according to my aforesaid reasoning the offence i.e. Ghee having deviations from standards i.e. RM Value 26.76 (not less then 28) and the BR Reading is 43.6 (between 40 & 43), earlier punishable u/sec.16(1a) of PFA Act is to be considered as an offence u/sec.51 of FSSA Act for the purposes of awarding punishment. The maximum punishment u/sec.51 FSSA Act is penalty which may extend to Rs. 5 lakhs.
19 It is submitted by Ld. counsel for appellant that appellant is a small time shopkeeper. He has suffered the long pendency of trial and a respectable person of society and has family. So, lenient view be taken.
20 Opposed by Ld. SPP for State on the ground that the long duration of trial cannot be a ground for leniency.
21 I have gone through the rival contentions on this aspect.
22 After going through the entire arguments in this regard, it is directed that accused/appellant Shammi Gupta is directed to pay fine of Rs.35,000/- (Rupees Thirty Five Thousand only) with the Trial Court. In default of payment of fine, he is directed to undergo SI of 15 days.
23 Fine be deposited within 7 working days.
24 Fine already deposited with the trial court be adjusted.
25 Bail Bond u/sec.437A Cr.P.C. already furnished.
26 TCR be sent back with copy of the order.
27 Copy of order be given dasti. 28 File of appeal be consigned to Record Room. ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 19.10.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi CA No. 8429/16 Shammi Gupta Vs. State 19.10.2016 Present: Sh. R. D. Goel counsel with appellant. Sh. A. K. Mishra Ld. SPP for State. Arguments on appeal heard. Put up for order today itself. (Rakesh Pandit) ASJ-01/PHC/New Delhi District 19.10.2016 At 3.00 p.m. Present: Sh. R. D. Goel counsel with appellant. Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment the appeal filed by the appellant is disposed off. Accused/appellant Shammi Gupta is directed to pay fine of Rs.35,000/- (Rupees Thirty Five Thousand only) with the Trial Court. In default of payment of fine, he is directed to undergo SI of 15 days.
Fine be deposited within 7 working days.
Fine already deposited with the trial court be adjusted.
Compliance report be sent by trial court to this court.
Bail Bond u/sec.437A Cr.P.C. already furnished.
TCR be sent back with copy of the order.
Copy of order be given dasti.
File of appeal be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 19.10.2016