PFA – Delhi Court – Food Inspector Vs Anuj Mehra – Misbranded Gur / Jaggery case – Feb -3-2017

                 IN THE COURT OF SH. ASHU GARG,
        Addl. Chief Metropolitan Magistrate - II (New Delhi),
                  Patiala House Courts, New Delhi

CC No. 1971/09
Unique Case ID No. 02403R0354142009

Date of Institution:            29.10.2009
Date of reserving judgement:    20.01.2017
Date of pronouncement:          03.02.2017

In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                   ... Complainant

            versus

A-1) Anuj Mehra
S/o Sh. Arun Mehra
R/o H.NO. 1150, Chah Rahat,
Gali Gulian, Near Jamamasjid,
Dariba Kalan, Delhi-110006

A-2) M/s. Subhiksha Trading Services Ltd.
4717/21, Main Dayanand Road,
Darya Ganj, Delhi-110002
[EX-PARTE]

A-3) Suraj Srinavasan
S/o. Sh. Srinivasan
[PROCLAIMED OFFENDER]

A-4) V. Gopal
S/o Sh. G.Venukumaram
[PROCLAIMED OFFENDER]




CC No. 1971/09                                            Page 1 of 36
 A-5) M/s Long and Short Investment Pvt. Ltd.
76-17/1, 17/2, Sirsa Road,
Kundali, Sonepat, Haryana
[EX-PARTE]                                   ... Accused Persons


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 2 is the company from whose premises the food article, that is, Gur (Jaggery), was lifted for sampling. Accused no. 1 was the vendor at the premises of accused no. 2 from whom the sample was taken. Accused no.5 company (since ex-parte) is stated to the packer company that had supplied the food article to the accused no. 2. Accused no. 3 and 4 (since declared Proclaimed Offenders) are stated to be the directors of the accused no. 5 company.

2. As per the complaint, on 04.07.2008, food officials consisting of Food Inspector (FI) Shyam Lal and Field Assistant (FA) Siya Ram under the supervision of Local Health Authority (LHA)/SDM Sh. N.K. Sharma reached along with their staff at the premises of accused no. 2 at 4717/21, Main Dayanand Road, Darya Ganj, Delhi-110002 where accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Gur (ready for sale) from the vendor lying in sealed packets of 500 gm each bearing identical label declaration, to which he agreed. The sample of three such packets was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 29.07.2008, the PA found the sample to be not conforming to the standards because Sulphur Dioxide exceeded the prescribed maximum limit and also to be misbranded as the Best Before declaration was not as per the language of Rule 32(i) of PFA Rules. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. It was found that the food article had been packed by accused no. 5 company and accused no. 3 and 4 (since P.O.) were its two directors incharge of and responsible for day to day conduct of its business. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by FI on 29.10.2009 alleging violation of section 2(ia)(a) and (m) of PFA Act read with Rule 55 of PFA Rules and also violation of Section 2(ix)(k) of PFA Act read with Rule 32(i) of PFA Rules, as punishable section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 29.10.2009.

4. The presence of accused no. 3 and 4 could not be secured despite coercive measures and they were declared proclaimed offenders vide order dated 09.08.2010. Further, accused no. 2 and 5 companies did not participate at the trial and were proceeded against ex-parte vide orders dated 16.03.2010 and 22.12.2009 respectively. The trial was faced only by accused no. 1.

5. Accused no. 1 appeared but never filed any application under section 13(2) PFA Act to exercise his right in getting second counterpart of the sample analysed through the Central Food Laboratory (CFL).

6. On the basis of the complaint and PA report, notice under section 251 CrPC was framed against accused no. 1 on 13.10.2011 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act read with Rule 55 of PFA Rules for the offence of “adulteration”, and violation of section 2(ix)(k) of PFA Act read with Rule 32(i) of PFA Rules for the offence of “misbranding”, to which he pleaded not guilty and claimed trial.

7. At the trial, prosecution examined three witnesses in support of its case. PW-1 FI Shyam Lal, PW-2 Sh. N.K. Sharma and PW-3 FA Siya Ram were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 04.07.2008 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of Gur as lying in sealed packets bearing identical label declaration, dividing it into three parts by putting one sealed packet as one counterpart, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A and cash memo Ex. PW-1/A-1, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. Raid report Ex. PW- 1/D was prepared at the spot. On the next working day, that is 05.07.2008, one counterpart of sample along with Memo as per Form-VII were sent to Public Analyst (PA) for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-1. PW-1 issued letter Ex. PW-1/H to accused no. 5 company but no reply was received. The FI then obtained copy of a reply sent by accused no. 5 in some other case from FI R.P. Singh who was investigating that case. According to that reply Mark-X, accused no. 3 and 4 were the two directors of accused no. 5 company. It was also found that accused no. 1 vendor was the nominee of accused no. 2 company vide nomination form Mark X-1 and resolution Mark X-2. Thereafter, upon completion of investigation, sanction Ex. PW-1/I was taken from the Director PFA and complaint Ex. PW-1/J was filed in the court. After this, intimation letter Ex. PW-1/K (also Ex. PW-1/L1) along with copy of PA report was sent to the accused persons through postal receipts Ex. PW-1/L. The letter sent to accused no. 1 at his residence did not receive back undelivered but the letters sent to accused no. 2 to 5 and the one sent to accused no. 1 at his business address were received back undelivered vide Ex. PW-1/K-1 to Ex. PW-1/K-10. These witnesses were duly cross examined by Ld. Counsel for accused no. 1 wherein they denied that the accused had already resigned from accused no. 2 company or that the accused no. 2 company had already been closed or that intimation letter was not sent to accused no. 1 or that he had been falsely implicated.

8. Statement of the accused no. 1 under section 313 CrPC was recorded on 15.10.2016 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 04.07.2008, yet he claimed that he was not concerned with the PA report. He stated that the product was being sold in the same condition as received from the warehouse of accused no. 2 company that had procured the same from accused no. 5. He denied receiving the intimation letter. He further took stand that the company was not giving salaries to its employees, that the product in question was one of its self-created brands which was not being sold frequently, that the employees were under pressure to sell such product at the earliest, that the product in question had lost its shelf life but was still lying on the shelves and displayed for sale and that the staff and assistants were handling such stations. No defence evidence was however led by the accused no.1.

9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused no. 1 as well as the accused no. 2 and 5 companies (since ex-parte) on the ground that they have not been able to rebut the findings of the PA report dated 29.07.2008. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

10. On the other hand, Ld. Counsel for accused no. 1 has argued that no case is made out against him, primarily on the ground that he had already resigned from the accused no. 2 company prior to the day of lifting of sample and was acting for and on behalf of the said company while he was serving the three-months notice period. He submitted that accused no. 2 company had already been closed and in its absence, no criminal liability can be fastened on accused no. 1 who was only an employee. It is further argued that the intimation letter was never served upon accused no.1 and therefore, his right under section 13(2) PFA Act to get the counterpart analysed through CFL stood frustrated. It is also contended that the food article had been supplied by accused no. 5 company and the vendor would therefore be protected under warranty as per section 19(2) PFA Act.

11. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for accused no. 1 and have carefully perused the material available on record. Since accused no. 2 and 5 companies are ex-parte, no arguments have been advanced on their behalf by anyone.

12. Before proceeding with the merits of the case, it is to be understood that the present case involves two companies that have not participated at the trial.

13. The matter is governed by Section 17 of the PFA Act which is pari materia to the Section 141 of Negotiable Instruments Act. Section 17 lays down that in case of a company, any person incharge of and responsible to the company for the conduct of its business can also be held liable in addition to the company.

14. Section 17(1)(a)(i) of PFA Act lays down that where an offence has been committed by a company, if a person has been nominated by the company under section 17(2) of the Act to be incharge of and responsible to the company for the conduct of its business, then such person shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly, alongwith the company. But when no such person has been so nominated, then every person who at the time of offence was incharge of and responsible to the company for its affairs shall be deemed to be guilty of the offence [Section 17(1)(a)(ii) of PFA Act]. The said person can however defend himself if he is able to prove that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence [proviso to section 17(1)(a) of PFA Act].

15. Section 17(2) of PFA Act prescribes the mode and manner of appointment of a nominee. A company may authorise any of its directors or managers to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission of any offence by the company. It is required to give notice to the LHA in the prescribed form along with the consent of such person as a nominee.

16. Section 17(3) of PFA Act clarifies that such a nominee shall continue to be the person responsible unless: (i) further notice is received by the LHA from the company cancelling such nomination, or (ii) he ceases to be a director or manager of the company and in such case, the LHA is intimated, or (iii) he makes a request in writing to the LHA under intimation to the company to cancel the nomination.

17. Section 305 CrPC prescribes the procedure when a corporation is an accused. Section 305(2)CrPC states that when a corporation is one of the accused persons, it may appoint a representative for the purpose of inquiry or trial. Section 305(3) CrPC further provides when such a representative appears, any requirement that anything shall be done in the presence of the accused shall be construed as a requirement that that thing shall be done in the presence of the said representative. Therefore, a company has to participate at the trial only through a representative appointed by it under section 305(2) CrPC. Obviously, appointment of such a representative is the prerogative of the company. It may or may not appoint a representative to participate at the trial on its behalf. The question is what would be the consequences if no such representative is appointed by a company.

18. As per section 305(4) CrPC, where a representative of a corporation does not appear, the requirement in section 305(3) CrPC shall not apply. Thus, if no such representative is appointed by a company to appear on its behalf, the requirement that any act has to be done in the presence of the accused would not apply. Since a corporation is only a fictitious entity created by law, no coercive steps can be taken to secure its presence. The court cannot compel the company to appoint a representative on its behalf. Therefore, the only option is to proceed with the matter against the company in absentia. If a company chooses not to participate at the trial, the matter has to proceed against the company in its absence. If the matter finally results in conviction against the company, such a conviction would be binding on the company, though the said company being a juristic entity cannot be sentenced to imprisonment and only sentence of fine can be imposed and/or compensation awarded.

19. In the present case, no such representative was appointed by the accused no. 2 and 5 companies. Obviously, the responsibility and prerogative to appoint a representative was on the companies themselves and the court could not have directed them to necessarily appoint any person as its representative. Since such companies are only fictitious entities, no coercive measure could have been taken against them and the only course open to the court was to proceed against the companies in absentia / ex-parte. In the present case, the said companies have already been proceeded against ex-parte and therefore, they have to face the consequences accordingly.

20. Coming to the merits of the case, it is to be understood that the notice framed against the accused no. 1 is for violation of section 2(ia)(a) and (m) of the PFA Act for the offence of “adulteration” and for violation of Section 2(ix)(k) of PFA Act for the offence of “misbranding”. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. Section 2(ix)(k) makes it an offence if the food article is not labelled in accordance with the requirements of the Act or Rules.

21. The commodity in the present case is Gur /Jaggery which is a standardized food article falling in Item A.07.05 of Appendix-B of the PFA Rules. As per the standards laid down, the product may contain food additives permitted in Appendix-C of PFA Rules. Appendix-C enlists all the food additives allowed under PFA Rules along with their INS Numbers.

22. In the case at hand, the PA found the sample in question to be containing Sulphur Dioxide up to 140.31 ppm, which was an excess of the prescribed maximum limit of 70 ppm. Rule 55 of PFA Rules prescribes the maximum limit of Class-II preservatives which can be used in specific food articles or group of foods. Item no. 9 of the Table in Rule 55 provides that the maximum limit permissible for use of Sulphur Dioxide in Gur / Jaggery can be 70 ppm.

23. As far as PA report is concerned which is the basis of prosecution, it is to be understood that report of a chemical expert is admissible in evidence under section 293 CrPC without formal examination of such expert. It is to be noted that the contents and findings therein have not been disputed by the defence. It is nowhere the case of the accused that the PA was not competent to analyse the sample, or that some invalid method had been used by the PA to detect the sulphur dioxide content, or that the product was having sulphur dioxide within prescribed limits. It is nowhere the defence of the accused that the FI had adopted incorrect method of lifting the sample or that the PA had adopted an incorrect method of analysis or there was some other mistake in the report. The sample in this case was in sealed packets and was required to be lifted in packed condition only without opening the seals, as required by the ‘Note’ to Rule 22 of PFA Rules. No suggestion was given to any PW to this effect during the trial and no such stand was taken by the accused even in his statement under section 313 CrPC. No request was made by the accused to cross-examine the PA when this option was available, so as to question her on the testing methodology adopted. The report shows that the content of sulphur dioxide was double that the permissible limits.

24. The accused has also not exercised his right under section 13(2) PFA Act for getting the sample analysed through CFL. For this, the arguments are that PA report with intimation letter were never served upon him, and that delay in filing the complaint frustrated his right as shelf life of gur was over by that time and it would have been rendered unfit for analysis.

25. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2)of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.

26. It is to be noted that sample of gur in this case was lifted on 04.07.2008 and it was analysed by PA from 08.07.2008 to 18.07.2008. PA gave report dated 29.07.2008. The complaint was filed on 29.10.2009, that is, after about 15 months.

27. At the outset, there is no merit in the contention that the PA report was not received by the accused. PW-1 and PW-2 both deposed about sending the copy of PA report with intimation letter Ex. PW-1/K through registered post vide receipt Ex. PW-1/L. It is pertinent to note that the original intimation letter and the original postal receipts were produced on record during the testimony of PW-1 on 20.07.2016 and their copies compared with the original at that time. Apparently, the accused has never questioned the genuineness of these documents. Not even a single suggestion was given to the witnesses that the postal receipt Ex. PW-1/L was a forged or fabricated document or that it was sent at an incorrect address. Thus, accused cannot take benefit on this count. In all fairness, the complainant put it in record that all the letters sent to the accused no. 2 to 5, and the one sent to the accused no. 1 at his business address, were returned undelivered. But the letter sent to the accused no. 1 at his residential address did not so return. In view of the testimony of the PW-1 and PW-2, coupled with original postal receipts, it is established that the letter was sent to the accused no. 1 at his residential address. Even for other accused persons, the letters had been sent at the last known correct available addresses. If the accused persons had shifted from their address, without leaving any details of their whereabouts, they have to face consequences accordingly.

28. Once this fact is so established, section 27 of the General Clauses Act would come into play. It is not the case of the accused no. 1 that the said letter Ex. PW-1/K was sent at his incorrect address. No such stand has been taken by the accused at any stage of trial including prosecution evidence, statement of accused or even defence evidence. Even in his bail bond furnished in the court, the address given by the accused is the same at which the intimation letter had been sent. In such a position, when a letter had been sent through registered post at a correct and proper residential address of the accused, there would be a presumption of service under section 27 of the General Clauses Act in favour of the complainant. The burden would not upon be the complainant to show delivery of the letter and such burden would now shift upon the accused to show that the letter was not so delivered despite having been sent at a correct address through registered post. But the accused no. 1 has not led any evidence to this effect. No attempt was made by him to summon the records of postal department to show as to whom the letter was delivered or if it remained undelivered. There is no evidence to show that the letter was not delivered to the accused no. 1. Accused no. 1 has not claimed that he was not staying at that address or was staying at some other address or that it could not have been served upon him at the relevant time. It is not his claim that he was not available at the said address or had shifted from that address. Thus, accused no. 1 has failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 and PW-3 deposed that the registered letter was not received back undelivered, the burden would be upon the accused to prove anything to the contrary. By not leading any evidence to support his stand, the version of the accused remains unsubstantiated. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused no. 1 in due course. The accused cannot therefore opt to simply deny the things and claim that PA report was not received by him.

29. Similarly, the accused no. 2 and 5 companies have never participated at the trial and raised any defence. The intimation letters were sent to them at their last known addresses. But it was reported that the companies have left the addresses and closed the business. In such position, when no other address was available with the complainant, service at last known addresses would be sufficient compliance. The companies have not participated at the trial to assert that their right under section 13(2) got frustrated, or that they had informed about their whereabouts, or that the letters were deliberately not sent at correct addresses.

30. The accused no. 1 further claims that the delay in filing the complaint had frustrated his right under section 13(2) PFA Act. The question is whether can the delay of 15 months be called as an unexplained delay so as to automatically frustrate his right? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], on the basis of which the Hon’ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis.

31. It would be seen that in Chanan Lal’s case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon’ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his reasearch that a sample of panir would remain fit only for one month when formalin was added and was kept in refrigerator. The Hon’ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held “On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month”. The Hon’ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.

32. Well, a lot of issues are involved in the arguments advanced on this count.

33. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal’s case to be considered as it is, in this case as well. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross-examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future cases even without his examination or cross- examination. There can be other experts in the same field who might have different opinions based on their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal’s case cannot be therefore accepted in all cases of all the food articles blindly.

34. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 Cri.L.J. 1086], full bench of the Hon’ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal’s case, which the defence wishes wants the court to rely straight away) as under:

“It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.

It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds.”

35. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after four decades without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.

36. Even otherwise, the judgement in Chanan Lal’s case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon’ble Court in that judgement that prosecution should be filed with 17 days of lifting the sample, is now almost impossible to achieve. Rule 9(j) on which the Hon’ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.

37. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require at 4-10 days to analyse the sample (10 days in the present case), to prepare his/her report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in 17 days as per the judgement in Chanan Lal’s case. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the case would depend on its own set of facts and circumstances. The judgement in Chanan Lal’s case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future, some delay would have to result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.

38. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration, the moment some substantial period lapses from the date of lifting the sample, and if any such case come to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.

39. At this stage, it is also necessary to observe that in Chanan Lal’s case, the sample sent to CFL was reported to be decomposed and its contents leaking, rendering it unfit for analysis. Thus, the Hon’ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis, or those cases where the accused chooses not to send sample for analysis to CFL (as in the present case).

40. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or frustrated his rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.

41. In the case at hand, no question was put to any PW seeking explanation as to why a time of fifteen months was taken in filing the complaint, so as to enable them to explain the circumstances. Record shows that letters had been written to the accused persons and government departments to ascertain the constitution of the business concerns involved.

42. Even otherwise, some delay in filing the complaint would not automatically frustrate the right of the accused, particularly when the ‘adulteration’ is independent of such delay. If the incriminating ingredient is prone to natural changes, then certainly delay in filing the case would be taken into consideration. For instance, if the sample is failed on account of excess moisture or ash content, which might change and increase with lapse of time, the court may give benefit to an accused because effect of heat, light, temperature, air etc. cannot be ignored on such perishable food articles. But where a sample is failed on account to some ingredient the nature of which would not change with the passage of time, the accused in such a case cannot take this ground. For instance, the nature and content artificial synthetic colours or artificial sweeteners would not change with any passage of time and if a sample fails on these counts, the accused cannot refuse to exercise his right on the ground that there had been some delay in filing the complaint.

43. It is pertinent to note that in the landmark judgement titled as MCD v. Bishan Sarup [ILR1970 (1) Delhi 518], full bench of the Hon’ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that the there was no occasion for the trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analyses to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (a perishable article) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon’ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon’ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup’s case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.

44. Even in Chanan Lal’s case, the Director CFL had reported that the sample was decomposed and leaking. The judgement would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of the accused to get the sample analysed from CFL. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions and presumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the report of CFL despite its being final and conclusive, as observed in Bishan Sarup’s case, only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance, the offence would still be made out, irrespective of such chemical changes on account of delay. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

45. As a corollary, the accused cannot choose to forgo his right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused cannot claim that after lapse of any specific time period, his right would automatically stood frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analyses. It is only when the accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he can get benefit of the delay. In judgement titled as Britannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon’ble High Court was dealing with a matter of ‘Cheddar Cheese’ which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon’ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that ” There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed”. The Hon’ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, where the accused never applies under Section 13(2) of the Act, he cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused would have applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under section 13(2) of the Act would have been denied to him.

46. Thus, it is clear that the court would not assume that the right of the accused stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when he exercises his right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. But when the sample is not found unfit for analysis by the CFL, the court cannot then substitute its own view on the basis of any hypothesis or assumptions and conclude that the sample would have rendered unfit for analysis. However, it would still be open for the accused to establish at evidence that the changes/variations on account of delay had resulted in causing prejudice to him. Thus, the matter would depend on case to case basis.

47. In view of this proposition, the accused no. 1 in this case cannot claim that his right under section 13(2) PDFA stood automatically frustrated when the complaint was filed after fifteen months of lifting the sample so as to give him an option not to file application to send the sample for analysis to CFL. Such argument is liable to be rejected.

48. Moving ahead, it is not the stand of the accused that the food article was not for sale. As per the definition of “sale” under section 2(xiii) PFA Act, it includes sale of any article of food for analysis, an agreement to sell, an offer for sale, exposing for sale or having in possession for saleand even an attempt to sell. As per section 2(v)(a) of PFA Act, “food” includes any article used as food or drink for human consumption and includes any article which ordinarily enters into or is used in the composition or preparation of human food. It is not the case of accused that the gur/jaggery was not a food article or was not for sale.

49. For that matter, it is interesting to note that in his statement under section 313 CrPC, the accused accepted that the food article had been lying on the shelves and were displayed for sale, despite the fact that the product had lost its shelf life. He stated that the employees were under pressure to sell such products at the earliest. Well, such submissions coming out of the mouth of the accused himself leaves nothing to guess. The label declarations on the product as reproduced by the FI on Form-VI Ex. PW-1/B would show that the product was packed on 20.02.2008 and it was stated to be best before within three months from the date of packing. Thus, the best before date was 20.05.2008. Despite expiry of the best before date and even after lapse of shelf life (as stated by the accused), the product was being sold at the premises.

50. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon’ble Supreme Court in Shriram Labhaya v. MCD[1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.

51. Now coming to the defence of the accused no. 1. He claims that he had already resigned from the company prior to the date of sampling. He has placed on record his resignation letter Mark-D1 dated 24.05.2008 written to the Vice President (OPS) of the accused no. 2 company. It is seen that this letter has never been proved as per law. The original letter has never been proved on record. There is nothing to show of the addressee Sh. Ashok Gupta was working with the company or was competent to accept the resignation. There is no seal or stamp of the company on this letter. Despite that, even if the letter is accepted to be true, that would not given benefit to the accused no. 1. As per acknowledgement on this letter, the accused was to serve three months notice. Though the exact import of this has not been proved on record by the accused by placing his appointment letter, it appears that the accused was to serve for three more months or to pay salary in lieu of notice period. As the accused was very much present at the premises and working in the same capacity as he was working, it would be clear that he had sold the food article to the FI. The cash memo Ex. PW-1/A1 also bears his signatures. All other documents prepared at the spot bears his signatures as the vendor. On document Ex. PW-1/B, he made endorsement to the effect that he was working as Retail Outlet Manager. He never claimed at that time that he had already resigned from the company. It is not his case that he was compelled or made to make endorsement or put his signatures under threat or pressure or duress. No such stand had been taken at the entire trial. Thus, he cannot now claim that he had already resigned from the company. The fact that he was the vendor of the food article, has been established.

52. Again, there is no dispute to the fact that the accused no. 1 was the nominee of the accused no. 2 company as per section 17(2) of PFA Act. The accused never claimed that the nomination papers in his name as obtained by the FI were fake or forged. He never gave any suggestion to any witness to the effect that he had not been appointed by the accused no. 2 company as its nominee. Thus, as per section 17(2) of PFA Act, he had been authorised to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission of any offence by the company. The company had given notice to the LHA in the prescribed form along with the consent of accused no. 1 as its nominee.

53. There is nothing to show that accused no. 1 ever withdrew his nomination as per section 17(3) of PFA Act. No notice was given to the LHA from the company cancelling such nomination of accused no. 1, the LHA was never intimated that the accused no. 1 ceased to the manager, and no request was made by accused no. 1 t the LHA under intimation to the company to cancel the nomination. Thus, in the absence of any of the three requirements of section 17(3) of the PFA Act, the accused no. 1 cannot be given any benefit.

54. It is important to note that the accused no.1 has been implicated in the matter not only as a ‘nominee’ of the firm but as ‘vendor’ also, thus in dual capacity. The accused no. 1 had not only the vicarious liability being nominee of the firm, but also primary liability as the vendor of the food article. When he had performed an overt act by actually the one who sold (as per the definition of sale under the PFA Act) the food article, he had a responsibility in addition to and even independent of his vicarious liability as a nominee.

55. Further, there is no evidence to show that the accused no. 1 would be covered by the Proviso to section 17(1)(a) of the Act. Except his bald submissions in his statement under section 313CrPC that the assistants and staff were handling the stations, there is no material to show that the offence was committed without the knowledge of the accused no. 1 or that he had exercised all due diligence to prevent the commission of such offence. Submissions made under section 313CrPC are not evidence and cannot be termed as ‘proof’ of any fact. Rather his version in suchstatement would show that such articles were being sold under ‘pressure’ of the company.

56. The accused no. 1 then claims that he is covered by warranty under section 19(2) PFA Act. But again, this provision would apply only when a vendor is able to show that the product had been purchased through a warranty in writing. As per section 14, a bill/invoice/cash memorandum would be required for such a warranty. Not only thus, every such warranty has to be in prescribed form, as per Rule 12-A of PFA Rules read with Form-VIA. But in this case, no such bill was furnished to the FI by the accused. In the absence of the bill, the court cannot make a guess as to what were the contents of the bill and what was the language of the warranty. The stand of the accused that the FI never demanded the bill, would not come to his rescue. Nothing had stopped the accused no. 1 from claiming the benefit of warranty in the court. But no such bill was ever produced. For section 19(2) of the Act, the twin-requirements have to be satisfied simultaneously. Only fulfilling one condition that the commodity was sold in the same manner as was purchased from the supplier/manufacturer, would remain incomplete in the absence of other condition of a “written warranty”. Such a written warranty can be in the form of a bill or invoice or label or separately given. But it is important to note that such a written warranty has to be as per Rule 12-A of PFA Rules which provides that the same should be as per Form-VIA therein. Unless there is a written warranty, that too in the prescribed format giving all the necessary details so as to identify the product and supplier, the vendor cannot seek benefit. If an adulterated food article is purchased by a vendor without an invoice or through an incomplete invoice which does not satisfy the requirement of Rule 12A read with Form VIA, such a vendor cannot seek the benefit of warranty under Section 19 of PFA Act. If an accused has chosen to proceed with the transaction without a written warranty as required under the law, he/it did so at its own risk and consequences and had therefore lost the benefit under section 19(2) of PFA Act. Thus, in the present case, no benefit of warranty can be given to the accused no. 1 in the absence of any written warranty proved on record.

57. At the same time, the benefit of absence of bill cannot be given to the accused no. 5 company. This is because the said company is still the manufacturer/packer of the commodity, if not established to be the supplier to the accused no. 1 or 2. The label declarations on the product would show that the product had been packed by accused no. 5. Accused no. 5 never participated at the trial to deny this fact or to claim that the product was a spurious or duplicate product being sold under its name. Similarly, it is not its case that the Sulphur Dioxide content would exceed up to 100 percent after expiry of the best before date mentioned by it. The adulteration in the product is not on the sole account of its being sold after expiry of its best before date. Being manufacturer/packer of the product, the accused no. 5 would also be liable.

58. It is thus clear that there was violation of section 2(ia)(a) and (m) of the PFA Act read with Rule 55 of the PFA Rules. It has been established on record that the gur was not of the nature, substance or quality which it purported to be as per section 2(ia)(a). It is also established that quality or purity of gur was beyond the prescribed standard as per PFA Rules, as per section 2(ia)(m) of PFA Act. The gur having been stored/exposed for sale for human consumption lying in possession of accused no. 1 vendor and accused no. 2 company was adulterated within the meaning of section 2(ia)(a) and (m) of PFA Act. As it was manufactured/packed by the accused no. 5 company, it would be liable in such capacity.

59. However, the label of the product showed Date of Packing as 20.02.2008 and it was stated to be “best before within three months from the date of packing”. The PA found the declaration not as per language of Rule 32(i) of PFA Rules on account of addition of word “within” in the said declaration.

60. In the precedents titled as Ram Babu Rastogi v. State [2012 (1) FAC 56 (Delhi High Court)], the Hon’ble High Court of Delhi was dealing with a similar position and it was held that the objective of declaration on the label was that the purchaser should know at the time of purchase, as to whether the article, which is purchased was capable of being as used and till what time. The Hon’ble High Court observed that the actual label of the sample, that is “Best Before within 6 months from the date of packing” conveyed much more than what was required to be conveyed to the purchaser about the genuineness of the product. It was held that mere use of the word “within” as a surplusage would not bring the petitioners under the penal provisions of the Act, as by any means, the purchasers could not be said to have been deceived or misled as regards the character, quantity, quality, or date of manufacture and the limit of use of the product. It was held that merely by adding such a word, no customer could be said to have been misled or misdirected as there was no difference otherwise in the meaning conveyed. Therefore, the Hon’ble High Court of Delhi quashed the proceedings in that matter.

61. The case in hand stands on similar footing. The words “Best Before within three months from the date of packing” conveys the same meaning as the words “Best Before three months from the date of packaging” as required by the Rule 32(i). No customer would be misled or misdirected by use of the word “within” in the said declaration. Relying upon the above precedent, it can be said that there is no violation of Rule 32(i) of PFA Rules.

62. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 1, 2 and 5 beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 and 2 persons had stored/exposed for sale and accused no. 5 had manufactured/packed for sale, an adulterated food in violation of section 2(ia)(a) and (m) of PFA Act read with Rule 55 PFA Act, and have committed the offence punishable under section 7/16(1)(a) of PFA Act.

63. Thus, the accused no. 1, 2 and 5 are held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.

64. Let the matter be listed for arguments on sentence qua convicted accused no. 1 as well as accused no. 2 and 5 companies. Accused no. 3 and 4 continue to be proclaimed offenders.

Announced in the open court this 03rd day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s