PFA – Delhi Dt.Court – Manojkumar Vs Food Inspector – Mirchi Powder case – Oct 24-2016

IN THE COURT OF SH. RAKESH PANDIT,

ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI

CA No. 8482/16

Manoj Kumar Goel S/o Sh. Lakhmi Chand 4572/15, Darya Ganj, Delhi-110002. R/o 3004, Kucha Mai Dass, Bazar Sita Ram, Delhi-110006. ….Appellant

Vs.

Food Inspector Department of PFA Govt. Of NCT of Delhi A-20 Lawrence Road Industrial Area, Delhi-110035. ….

Respondent Date of receiving of Appeal : 04.09.2014 Date of arguments : 24.10.2016 Date of judgment : 24.10.2016

JUDGMENT

1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Manoj Kumar Goel against the judgment dated 19.08.2014 and order on sentence dated 26.08.2014 passed by Sh. Gaurav Rao, then Ld. ACMM-II, Patiala House           

2 The brief facts of the case as per record and from trial court record are that accused is running an establishment namely M/s Aggarwal Store, at 4572/15, Daryaganj, Delhi-110002. On 31.03.2009 at about 4.30 p.m. Food Inspector Sh. Shyam Lal visited the said place and purchased 750 grams of “Mirch Powder” (ready for sale) from the accused from open plastic bag. FI was accompanied with SDM/LHA Sh. N. K. Sharma. The said Mirch Powder 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 because Total Ash and Ash insoluble in dilute HCL exceed the prescribed maximum limit of 8.0% & 1.3% respectively. Further the sample is also coloured with un-permitted oil soluble synthetic colouring matter.”

3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 06.01.2010 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act and get the sample analyzed by CFL. CFL reported that “I am of the opinion that, the above sample does not conform to the standards of chillies (mirch powder) as per PFA Rules, 1955,   as per test performed (Non Volatile Ether Extract on dry basis was found 11.37% against stands not less than 12%).”

Further the accused was found selling Mirch Power in loose conditions which is against the Rule 49 of PFA Rules.

4 Charge was framed against accused u/sec.2(ia) (a) (m)& violation of Rule 49 of PFA Rules read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.

5 After trial, vide judgment dated 19.08.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 26.08.2014 was directed to undergo simple imprisonment for a period of 1 years and fine of Rs.10,000/- and in default of payment of fine SI of 30 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 bottles, jhaba were not made clean and dried at the spot by the food inspector or any other official.

(iii) There is variation in PA report and CFL Report.

(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 16 to 22 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 jhaba, 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 23 to 40 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 Mirch Power was taken. The witnesses had deposed that the same was taken from open plastic bag, after mixing it with the help of clean and dry jhaba 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 there is variation in the report of PA and CFL and due to that reason benefit goes in favour of the accused. This line of argument was done before the trial court and was dealt from para 50 to 82 of the judgment. I do not want to differ from the reasoning given by the trial court and thus the same is upheld.

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.

Further the judgment/findings with respect to the violation of Rule 49 of PFA Rules is also 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. in Mirch Powder Non Volatile Ether Extract on dry  basis was found 11.37% against standard not less than 12% thus termed as adulteration in view of Sec.2(ia)(a) & (m) of PFA Act and thus consequently punishable u/sec.16(1) 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(1-A) (ii) of PFA Act.

15 Now in the FSSA, such adulteration is termed as “sub- standard food” 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 that in Mirchi Power non-volatile Ether Extract on dry basis was found 11.37% against standard not less than 12% 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:-

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             Manoj Kumar Goel  Vs.  State            9 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 that in Mirchi Power Non Volatile Ether Extract on dry basis was found 11.37% against standard not less than 12% which was punishable u/sec.16(1A) PFA Act is similar to the offence u/sec.51 of FSSA Act for the purposes of awarding punishment. The maximum punishment u/sec.51 FSSA Act is fine/penalty which may extend to Rs.5 lacs.

19 It is submitted by Ld. counsel for appellant that appellant is a small 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 Manoj Kumar Goel is directed to undergo imprisonment till rising of the court and directed to pay fine of Rs.35,000/- (Rupees Thirty Five Thousand only) with the Trial Court, for the offence of adulteration. In default of payment of fine, he is directed to undergo SI of 15 days.

As far as the offence violation of Rule 49 of PFA Rules punishable u/sec.16 of PFA Act is concerned, accused/appellant is directed to undergo imprisonment till rising of the court and fine of Rs.5,000/- (Rupees Five Thousand only) to be deposited with trial court.

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. 24.10.2016                            ASJ-01/New Delhi District
                                              Patiala House Courts/New Delhi




                             Manoj Kumar Goel  Vs.  State           
                                           11

                           CA No. 8482/16
                           Manoj Kumar Goel Vs. DA

24.10.2016

Present:     Sh. R. D. Goel counsel with appellant.
             Sh. A. K. Mishra Ld. SPP for State.

             Arguments heard.

             Put up for order today itself.

                                                  (Rakesh Pandit)
                                           ASJ-01/PHC/New Delhi District
                                                    24.10.2016
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 Manoj Kumar Goel is directed to undergo imprisonment till rising of the court and directed to pay fine of Rs.35,000/- (Rupees Thirty Five Thousand only) with the Trial Court, for the offence of adulteration. In default of payment of fine, he is directed to undergo SI of 15 days.

As far as the offence violation of Rule 49 of PFA Rules punishable u/sec.16 of PFA Act is concerned, accused/appellant is directed to undergo imprisonment till rising of the court and fine of Rs.5,000/- (Rupees Five Thousand only) to be deposited with trial court.

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 24.10.2016                

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