1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of convicts/appellants against the judgment dated 27.05.2014 and order on sentence dated 31.05.2014 passed by Sh. Gaurav Rao, 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 appellants no. 1 and 2 are running an establishment namely M/s Prince Store at Y-415, Janta Market, Nangloi, Delhi-110041. On 16.09.2006 at about 3.00 p.m. Food Inspector Sh. Arun Kumar visited the said place and purchased 1500 grams of “Dal Chana” from accused Dev Raj. FI was accompanied with SDM/LHA Sh. S. C. Bhardwaj. The said Dal Chana 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 not free from Khesari Dal and is insect infested”.
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 12.04.2007 with the court. During investigation, it was found that accused Ramesh Chand is the proprietor of the aforesaid establishment. So, both were impleaded. Accused was summoned. They have exercised their right u/sec.13(2) PFA Act and get the sample analyzed by CFL.
CFL reported “I am of the opinion that the above sample does not conform to the standards Dal Chana as per PFA Rule, 1955 as it contains Weevilled grains 3.58% (standard not more than 3% by count) and Uric acid content 140 PPM (standard not more than 100 mg/kg).”
4 Charge was framed against accused u/sec.2(ia) (a) (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1) of PFA Act.
5 After trial, vide judgment dated 27.05.2014 accused persons were convicted for offence u/sec.16(1) of PFA Act and vide order on sentence dated 31.05.2014, each of the accused was directed to undergo simple imprisonment for a period of 9 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.
(ii) There is variation in PA report and CFL Report which is more than 0.3% which suggests that the sample was not representative.
(iii) After coming into Food Safety & Standards Act, the punishment is to be granted under the said Act.
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 that the sample was not representative and due to that reasons there is huge difference in the result in the reports of PFA and CFL while conducting the same test on the same sample commodity. It is submitted by Ld. SPP for State that the samples were representative. This leg of arguments was also dealt by the counsel counsel for accused in the trial court and was dealt by the trial court from para 56 to 90 of the judgment. As far as the law laid down in that part of the judgment, the same is self explanatory. However, I do not find any error/mistake in the reasoning given in that part of judgment. So, that part of judgment is upheld and the arguments relied by appellants are hereby rejected.
10 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 18 to 24 of the judgment. As far as law discussed by the trial court is concerned, the same is self explanatory. However, as far as the application of law to the facts established in the court is concerned, that requires some more reasoning.
As far as the law regarding the presence of public witness under PFA Act is concerned, the relevant provision of Sec.10(7) of PFA Act which is as follows:-
“Sec.10 (7)-Where the food inspector takes any action under clause (a) of sub-section (1), sub- section (2), Sub-Section (4) or sub-section (6), he shall (call one or more person to be preset at the time when such action is taken and take his or their signatures).
Sec.10(7A)- Where any books of account or other documents are seized under sub-section (6), the food inspector shall within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies there f or extracts herefrom as certified by that person in such manner as may be prescribed have been taken.
Sec.10(7B)- When any adulterant is seized under sub-section (6), the burden of providing that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.”
So as per this section, the FI has to join independent witness on four proceedings. Firstly, proceedings done under Sec.10(1) PFA Act i.e. the proceedings relating to sampling. Secondly, proceedings u/sec.10 (2) PFA Act i.e. proceedings relating to entering in a establishment or inspecting that place/establishment where the food is manufactured or stored for sale or exhibited for sale. Thirdly, in terms of Sec.10 (4) PFA Act i.e. When he found any food adulterated or misbranded, he will seized that food. Fourthly, in terms of Sec.10(6) PFA Act i.e. when the FI found any adulterant, he will seized the same.
Now as per Hon. Superior Courts, this exercise u/sec.10(7) PFA Act by the FI is mandatory. He has to first look for independent witnesses before conducting aforesaid four proceedings and in case if any independent witness is not available, then any person of the raiding party can become the witness.
In the present case, PW2 LHA had deposed “No witness was called before entering into the shop and inspection.” Now entering into the shop and conducting inspection is one of the functions of FI in terms of Sec.10(2) PFA Act. As per Sec.10(7) PFA Act, he had to join witnesses for these two acts.
As per Hon. Supreme Court, this act of joining witnesses in terms of Sec.10(7) PFA Act is mandatory. This act was not done by the raiding party. In these circumstances, there is non-compliance of Sec.10(7) PFA Act. Accordingly, the benefit goes to the appellants.
So, in these circumstances, the trial court order is set aside.
11 Accused Dev Raj & Ramesh Chand are acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
12 Bail Bond u/sec.437A Cr.P.C. already furnished and accepted for six months.
13 TCR be sent back with copy of the order.
14 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 21.11.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi CA No.8608/16 Dev Raj & Ors. Vs. State 21.11.2016 Present: Sh.R. K. Sharma counsel with appellants.
Sh. A. K. Mishra Ld. SPP for State.
In this case the charge had been framed by this court, in trial court. On being asking, Ld. counsel for parties have no objection, if the appeal is decided by this court.
Even vide order dated 22.12.2015 in CA No. 57/15 titled “Mangey Ram Vs. State”, Ld. District & Session Judge, NDD/PHC had observed that framing of notice does not come in the way of disposal of the case on merits.
Further arguments on appeal heard.
Bail Bond u/sec.437A Cr.P.C. furnished and accepted for six months.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 01.06.2016 At 4.00 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 is allowed. Appellants Sh. Dev Raj and Sh. Ramesh Chand are acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
TCR be sent back with copy of the order.
File of appeal be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 21.11.2016