IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CA No. 8432/16
Kapil Dev S/o Sh. Jagdev M/s Kapil Dev Dal Wala 53/9-A, Tokri Walan, Azad Market, Delhi-110006. R/o L-39, R, Tokri Wala, Nawab Ganj, Delhi-6. ….Appellant
The State (Delhi Administration) PFA Department, -20, Lawrence Road, Industrial Area, Delhi. …. Respondent
Date of receiving of Appeal : 04.04.2014
Date of arguments : 18.11.2016
Date of judgment : 18.11.2016
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Kapil Dev against the judgment dated 29.03.2014 and order on sentence dated 31.03.2014 passed by Sh. Gaurav Rao, then Ld. ACMM-II, Patiala House Court, New Delhi.
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 Kapil Dev Dal Wala, At 53/9-A, Tokri Walan, Azad Market, Delhi-110006. On 21.06.2004 at about 5.00 p.m. Food Inspector Sh. N. N. Sharma visited the said place and purchased 1500 grams of “Dal Masoor Dhuli” (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. Dharam Pal. The said Dal Masoor Dhuli 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 is adulterated because it is coloured with synthetic colouring matter viz sunset yellow FCF.
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 24.09.2004 with the court. Accused was summoned. He has not exercised his right u/sec.13(2) PFA Act to get the sample analyzed from CFL.
4 Charge was framed against accused u/sec.2(ia) (b) (j)& (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.
5 After trial, vide judgment dated 29.03.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 31.03.2014 was directed to undergo simple imprisonment for a period of 18 months 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 (argued orally).
(ii) There is non-compliance u/sec.13(2) PFA Act.
(iii) Appellant is protected in view of Sec.19(2) PFA as he had established that he purchased the sample commodity from some other person and sold the same in the same condition.
(iv) Benefit be given to the appellant under Food & Safety Standards Act (hereinafter called FSSA).
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 22 to 27 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 argued that percentage of the colour is not mentioned in the PA report. This leg of arguments was also done before the trial court and are being dealt by it in para 28 to 32. I do not find any other opinion than that given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
11 It is further stated that the report of PA was not served upon the accused and due to that reason he could not take the steps on time and due to that reason the sample could not be examined as there was delay on the part of the prosecution in filing the complaint and thus defeated the valuable right of accused provided u/sec.13(2) of PFA Act. As far as this argument is concerned, the same was also done in trial court. The same was dealt by the trial court from para 53 to 98 of judgment. So, I do not find to differ from the reasoning given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
12 It is further stated that accused was able to prove on record that he purchased the goods from M/s Gupta Food Corporation vide bill Mark D1 and Mark D2 and due to that reason benefit be given to the accused u/sec.19(2) PFA Act. As far as these leg of arguments are concerned, the same were done before the trial court. The same was dealt by the trial court from para 117 to 122 of judgment. So, I do not find to differ from the reasoning given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court 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) (b) (j) & (m) of PFA Act 1954 read with Sec.16(1A) of PFA Act, is upheld.
13 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.
14 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.
15 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. Dal Masoor Dhuli was found as being coloured with synthetic colour “Yellow FCF”. This was violation of Rule 29 of PFA Rules and thus termed as adulteration in view of Sec.2(ia)(j) 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.
16 Now in the FSSA, such adulteration is termed as “unsafe food” in terms of Sec.3(zz) (vii) of FSSA Act punishable u/sec.59(i) 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.
17 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 of adding colour in the food article which was punishable u/sec.16(1A) PFA Act is similar to the offence u/sec.59(i) of FSSA Act.
18 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:
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.
19 Now according to my aforesaid reasoning the offence of adding colour in food articles i.e. Dal Masoor Dhuli, earlier punishable u/sec.16(1A) of PFA Act is to be considered as an offence u/sec.59(i) of FSSA Act for the purposes of awarding punishment. The maximum punishment u/sec.59(i) FSSA Act is imprisonment for a term which may extend to six months and also with fine which may extend to Rs.1 lac.
20 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.
21 Opposed by Ld. SPP for State on the ground that the long duration of trial cannot be a ground for leniency.
22 I have gone through the rival contentions on this aspect.
23 After going through the entire arguments in this regard, it is directed that accused/appellant Kapil Dev 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. In default of payment of fine, he is directed to undergo SI of 15 days.
24 Fine be deposited within 30 working days.
25 Fine already deposited with the trial court be adjusted.
26 Bail Bond u/sec.437A Cr.P.C. be furnished within 7 working days.
27 TCR be sent back with copy of the order.
28 Copy of order be given dasti. 29 File of appeal be consigned to Record Room. ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 18.11.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi Present: Sh. R. D. Goel counsel with appellant. Sh. A. K. Mishra Ld. SPP for State. Arguments on appeal heard.
Bail Bond u/sec.437A Cr.P.C. be furnished within 7 working days.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 18.11.2016 At 3.00 a.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 Kapil Dev 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. In default of payment of fine, he is directed to undergo SI of 15 days.
Fine be deposited within 30 working days.
Fine already deposited with the trial court be adjusted.
Compliance report be sent by trial court to this court.
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 18.11.2016