IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CA No. 8513/16
Charan Das S/o Late Sh. Shri Ram M/s Aggaral Sweet India, 139-140, Yamuna Vihar Road, North Ghonda, Delhi-110053. R/o C-5/9, Yamuna Vihar, Delhi-110053. ….Appellant
Food Inspector Department of PFA Govt. Of NCT of Delhi A-20 Lawrence Road Industrial Area, Delhi-110035. …. Respondent
Date of receiving of Appeal : 22.04.2016 Date of arguments : 07.11.2016 Date of judgment : 28.11.2016
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of Charan Das against the judgment dated 28.03.2014 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 Aggarwal Sweet India, at 139-140, Yamuna Vihar, North Ghonda, Delhi-110053. On 19.01.2009 at about 5.00 p.m. Food Inspector Sh. Ranjeet Singh visited the said place and purchased 750 grams of “Vegetable Chutney” (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. A. K. Sharma. The said Vegetable Chutney 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 with synthetic colouring matter viz. Tartrazine and Brilliant Blue FCF”
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 24.04.2009 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 that the above sample contains synthetic food colour i.e. Tartrazine, Brilliant Blue FCF & hence contravenes Rule 29 of PFA Rules 1955 as per tests performed.
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 28.03.2014 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.
(ii) Non-compliance of Rule 14 of PFA Rules i.e. the bottles, spoon etc., were not made clean and dried at the spot by the food inspector or any other official
(iii) There is variation in PA and CFL reports and thus benefit goes in favour of appellant.
(iv) It is argued that the colour up to 100 PPM is allowed in vegetable chutney as per appendix C of PFA Rules, 1995 (argued orally).
(v) 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 18 to 23 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 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 spoon, 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 24 to 39 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 vegetable chutney was taken. The witnesses had deposed that the same was taken from open container with the help of clean and dry spoon 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 49 to 76 of the judgment. I do not want to differ from the reasoning given by the trial court and thus the same is upheld.
12 It is further argued that as per the PFA Rules, 1995, the colour is allowed up to 100 PPM as per appendix C. On the other hand, it is stated by Ld. SPP for State that the same is allowed only for dry vegetable chutney mix.
It is further argued that nowhere on record, it is proved that what was the “state of matter (liquid or solid)” of the vegetable chutney of which the sample was taken and sent for analysis.
As far as these arguments are concerned, it is the admitted fact/law that as per Appendix C, PFA Rules, 1995, the colour up to 100 PPM is permissible for soup powder, fruit powder, vegetable powder, instant fruit/vegetable chutney mixed (dry), culinary powder, seasoning mixed powder.
I have gone through the record and the testimony of PWs. As per the record/testimony of witnesses, there is the mentioning of vegetable chutney. The “state of matter” of the said chutney is not mentioned in the entire record. The said chutney was taken out from the container by the help of spoon. Now a spoon can lift a semi solid/liquid chutney as well as dry chutney.
In these circumstances, from the record, there are two plausible inferences can be deduced i.e. a sample collected could be either dry vegetable chutney or semi solid/liquid vegetable chutney. In dry vegetable chutney colour up to 100 PPM is allowed. No percentage of colour is given in both the reports.
In these circumstances, as per Hon. Supreme Court when from the facts on record, two plausible inferences can be deduced, the one favouring the accused is to be accepted.
So, the inference that the chutney was dry vegetable chutney in which 100 PPM of permissible colour are allowed, is to be accepted.
Since no percentage of colour is mentioned in the report, so it cannot be inferred that it was beyond permissible limit.
In these circumstances on account of my aforesaid reasoning the benefit of doubt goes in favour of accused as prosecution failed to prove its case beyond reasonable doubt.
13 So, in these circumstances, the judgment and order on sentence of the trial court is reversed.
14 Accused Charan Das is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
15 Bail Bond u/sec.437A Cr.P.C. already furnished. Accepted for six months.
16 TCR be sent back with copy of the order.
17 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 28.11.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi , CA No. 8513/16 Charan Das Vs. State 28.11.2016 Present: Sh. R. D. Goel counsel with appellant.
Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment announced and dictated in open court, appeal filed by appellant/accused is allowed. Accused/appellant Charan Das is acquitted. of the charges u/sec.16(1A) read with sec.7 of PFA Act.
Bail Bond u/sec.437A Cr.P.C. already furnished. Accepted for six months.
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 28.11.2016