IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CA No. 8634/16
Kanhai Kumar Gupta S/o Sh. Hardev Shah M/s Gupta Store, E-223-224, Nehru Vihar, Delhi-110054. R/o Khasra No. 20/22/37N/31/2 Gali No. 08, Kaushik Enclave, Delhi-110084. ….Appellant
The State (DA) PFA Department …. Respondent
Date of receiving of Appeal : 01.02.2016 Date of arguments : 25.11.2016 Date of judgment : 25.11.2016
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Kanhai Kumar Gupta against the judgment dated 05.12.2015 and order on sentence dated 08.01.2016 passed by Ms. Priya Mahendra, 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 Gupta Store at C-223-224, Nehru Vihar, Delhi-54. On 23.11.2007 at about 5.00 p.m. Food Inspector Sh. Gyan Chand visited the said place and purchased 750 grams of “Lal Mirch Powder” (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. Yogesh Pratap. The said Lal 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 is adulterated because it contains ad mixture of turmeric power along with chilly powder.”
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 02.04.2008 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act for getting the sample analyzed from CFL. CFL reported that “I am of the opinion the above sample contains NVEE less than 12% and hence does not conform to the standards of Chillies and Capsicum (Lal Mirchi Powder) as per PFA Rules, 1955.”
4 Charge was framed against accused u/sec.2(ia) (a) (b)
(m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.
5 After trial, vide judgment dated 05.12.2015 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 08.01.2016 was directed to undergo simple imprisonment for a period of 6 months and fine of Rs.1,000/- and in default of payment of fine SI of 15 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) Prosecution failed to prove the case beyond reasonable doubt.
(ii) The judgment is passed on the basis of conjectures and surmises.
(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 by counsel for appellant that the case of the prosecution was not proved beyond reasonable doubt and the judgment is passed on conjectures and surmises. However during arguments Ld. counsel for appellant could not specify as how the case was not proved beyond reasonable doubt. I have also gone through the statements of PW1, PW2, PW3 and PW4. They have specifically stated the manner in which the sampling is done. I have also gone through the documents which were prepared at the time of sampling. They also appears to be in accordance with procedure. I have also gone through the CFL report which is conclusive regarding facts mentioned therein. According to it NVEE was found 11.03% (standard is not less than 12%). This particular parameter is with regard to the sharpness of taste in the chilly (teekhapan). I have also gone through the judgment delivered by Ld. Trial Court. The same appears to be in conformity with the record. So, there is nothing to suggest from record that the prosecution was not able to prove its case beyond reasonable doubt or the judgment was passed on surmises or conjectures. So, in these circumstances, the reasoning given by the court while giving judgment is correct and thus 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) (b) (m) of PFA Act 1954 read with Sec.16(1A) of PFA Act, is upheld.
10 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.
11 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.
12 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. Lal Mirch Powder was found having parameter NVEE as 11.03% (standard not less than 12%)”. This is 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 adulteration was injurious to health. Had it been the case, the charge should have been u/sec.16(1-A) (ii) of PFA Act.
13 Now in the FSSA, such adulteration is termed as “substandard food” in terms of Sec.3(zx) (vii) 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.
14 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. Lal Mirch Powder was found having parameter NVEE as 11.03% (standard not less than 12%) in the food article which was punishable u/sec.16(1A) PFA Act is similar to the offence u/sec.51 of FSSA Act.
15 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.
16 Now according to my aforesaid reasoning the offence i.e. Lal Mirch Powder was found having parameter NVEE as 11.03% (standard not less than 12%) 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/fine which may extend to Rs.5 lac.
17 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.
18 Opposed by Ld. SPP for State on the ground that the long duration of trial cannot be a ground for leniency.
19 I have gone through the rival contentions on this aspect.
20 After going through the entire arguments in this regard, accused/appellant Kanhai Kumar Gupta is directed to pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only) with the Trial Court. In default of payment of fine, he is directed to undergo SI of 15 days.
21 Fine be deposited within 30 working days.
22 Fine already deposited with the trial court be adjusted.
23 Bail Bond u/sec.437A Cr.P.C. already furnished and accepted for six months.
24 TCR be sent back with copy of the order. 25 Copy of order be given dasti. 26 File of appeal be consigned to Record Room. ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 25.11.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi CA No. 8634/16 Kanhai Kumar Gupta Vs. DA25.11.2016 Present: Sh. Santosh Kumar Shukla counsel with appellant. Sh. A. K. Mishra Ld. SPP for State. Final arguments heard.
Bail Bond u/sec.437A Cr.P.C. already furnished and accepted for six months.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 25.11.2016 At 3.00 p.m. Present: Sh. Santosh Kumar Shukla 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 Kanhai Kumar Gupta is directed to pay fine of Rs.25,000/- (Rupees Twenty 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 25.11.2016