PFA – Delhi District Court – Meethi Supari – Misbranded -M/s Kuber Grain & Spices Vs The State – Nov 24-2016

IN THE COURT OF SH. RAKESH PANDIT,

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

CA No. 8560/16 1

Vikas Vaisnav S/o Sh. Satya Prakash Vaisnav M/s Kuber Grain and Spices Pvt. Ltd. Plot No. 7, Sec-4, IIE SIDKUL Haridwar. 2 M/s Kuber Grain and Spices Pvt. Ltd. Plot no. 7, Sec-4, IIE SIDKUL Haridwar Through Sh. Vikas Vaisnav Being authorized representative ….Appellant

Vs.

The State (NCT of Delhi) …. Respondent

Date of receiving of Appeal : 17.05.2013 Date of arguments : 24.11.2016 Date of judgment : 24.11.2016

JUDGEMENT

1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Vikas Vaisnav against the judgment dated 22.04.2013 and order on sentence dated 27.04.2013 passed by Sh. Balwant Rai Bansal, 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 Rahul Store, A-31/7E, Main Road, Maujpur, Delhi-110053. On 25.04.2008 at about 5.00 p.m. Food Inspector Sh. Ranjeet Singh visited the said place and purchased 750 grams of “Meethi Supari” (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. A. K. Sharma. The said Meethi Supari 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 misbranded because declaration of statutory warning and artificial sweetener is not as per Rule-42 ZZZ (6) and 42 ZZZ (1).”

3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 25.11.2008 with the court. Accused was summoned. He has not exercised his right u/sec.13(2) PFA Act for getting the sample analyzed from CFL.

4 Charge was framed against accused u/sec.2(ix) (k) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act and also for violation of provisions of Rule 42 ZZZ (6) and 42 ZZZ (1).

5 After trial, vide judgment dated 22.04.2013 accused/appellant Vikas Vaisnav was convicted for offence  u/sec.16(1A) of PFA Act and vide order on sentence dated 27.04.2013 was directed to undergo simple imprisonment for a period of 6 months and fine of Rs.5,000/- and in default of payment of fine SI of 15 days.

Accused/appellant Kuber Grain and Spices Pvt. Ltd. was directed to pay fine of Rs.10,000/-.

6 In this appeal, the accused has assailed the judgment on the following grounds:-

(i) There was policy of the Govt. to issue warning for first violation and due to that reason this prosecution is not maintainable.

(ii) The alleged offence is only of technical nature as one word “is” is not mentioned but “may” was mentioned.

(iii) 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 that there was policy of the Govt. to issue warning for first violation and due to that reason this prosecution is not maintainable. As far as these arguments are concerned, the same were also address before the Ld. Trial Court and dealt by it in para 11 and 12 of the judgment. I have gone through that part of the judgment and hold that that part of judgment does not require interference and the same is upheld by this court also. So, the arguments of Ld. counsel for appellants in this regarding is hereby rejected.

10 It is further argued that the alleged offence is only of technical nature as one word “is” is not mentioned but “may” was mentioned. As far as these arguments are concerned, I think these are not maintainable since when a specific provision is given and it is directed that a particular way of caution is to be written, the same should be strictly applied. Hence, this argument is not tenable and thus rejected.

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(ix) (k) of PFA Act 1954 read with Sec.16(1a) of PFA Act and for violation of provisions of Rule 42 ZZZ (6) and 42 ZZZ (1), is upheld.

11 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.

12 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.

13 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. Meethi Supari was found “misbranded” as there was not proper warning in terms of PFA Act i.e. instead of using word “is” word “may” was used. This was termed as “misbranding” in view of Sec.2(ix) of PFA Act and thus      consequently punishable u/sec.16(1a) of PFA Act. The charge/notice was framed with these facts.

14 Now in the FSSA, such thing is termed as “misbranded food” in terms of Sec.3(zf) of FSSA Act punishable u/sec.52 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.

15 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. Meethi Supari was found “misbranded” as there was not proper warning in terms of PFA Act i.e. instead of using word “is” word “may” was used which was punishable u/sec.16(1a) PFA Act is similar to the offence u/sec.52 of FSSA Act.

16 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.

17 Now according to my aforesaid reasoning the offence i.e. Meethi Supari was found “misbranded” as there was not proper warning in terms of PFA Act i.e. instead of using word “is” word “may” was used earlier punishable u/sec.16(1a) of PFA Act is to be considered as an offence u/sec.52 of FSSA Act for the purposes of awarding punishment. The maximum punishment u/sec.52 FSSA Act is penalty which may extend to Rs. 3 lakhs.

18 It is submitted by Ld. counsel for appellants that appellants have suffered the long pendency of trial and a respectable persons of society and has family. So, lenient view be taken.

19 Opposed by Ld. SPP for State on the ground that the long duration of trial cannot be a ground for leniency.

20 I have gone through the rival contentions on this  aspect.

21 After going through the entire arguments in this regard, it is directed that accused/appellant no. 1 Vikas Vaisnav is directed to pay fine of Rs.10,000/- (Rupees Ten Thousand only) with the Trial Court. In default of payment of fine, he is directed to undergo SI of 15 days.

Accused/appellant no. 2 M/s Kuber Grain and Spices Pvt. Ltd. is directed to pay fine of Rs.10,000/- (Rupees Ten Thousand only) with the Trial Court.

22 Fine be deposited within 30 working days.

23 Fine already deposited with the trial court be adjusted.

24 Bail Bond u/sec.437A Cr.P.C. be furnished within 7 working days.

25 TCR be sent back with copy of the order.

26         Copy of order be given dasti.

27         File of appeal be consigned to Record Room.


ANNOUNCED In the open Court                       (RAKESH PANDIT)
today i.e. 24.11.2016                        ASJ-01/New Delhi District
                                          Patiala House Courts/New Delhi

                          CA No. 8560/16
                          Vikas Vaisnav & Ors. Vs. State
24.11.2016

Present:     Sh. M. L. Narang 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 24.11.2016 At 3.00 a.m. Present: Sh. M. L. Narang 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 Vikas Vaisnav is directed to undergo imprisonment till rising of the court and directed to pay fine of Rs.10,000/- (Rupees Ten Thousand only) with the Trial Court. In default of payment of fine, he is directed to undergo SI of 15 days.

Accused/appellant no. 2 M/s Kuber Grain and Spices Pvt. Ltd. is directed to pay fine of Rs.10,000/- (Rupees Ten Thousand only) with the Trial Court.

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 24.11.2016

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