PFA – Delhi Dt.Court – Food Inspector Vs Bachchu Singh – Misbranded Packaged Drinking Water – Feb-02-2017

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

CC No. 280/02
Unique Case ID No.

Date of Institution:           20.12.2002
Date of reserving judgement:   10.02.2017
Date of pronouncement:         14.02.2017

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) Sh. Bachhu Singh
S/o. Sh. Bisheswar Parsad
[PROCLAIMED OFFENDER]

A-2) M/s. Gemini Foods & Beverages Pvt. Ltd.,
18/14, WEA Karol Bagh,
New Delhi-110005

A-3) Sh. Shrawan Kumar Sethi
S/o. Sh. K. C. Sethi
R/o. C-752, Sector-C, Mahanagar,
Lucknow, U.P.

A-4) Sh. Sandeep Kapur
S/o. Sh. S. L. Kapur
R/o. C-1/23, Pandara Park,
New Delhi-110005




CC No. 280/02                                             Page 1 of 33
 A-5) Sh. Vinay Kumar Virmani
S/o. Sh. D. N. Vermani
R/o. C-752, Sector-C, Mahanagar,
Lucknow, U.P.                                ... Accused persons


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), wherein it is alleged that the accused persons had sold misbranded food in violation of Section 2(ix)(e) and (g) of PFA Act and also Section 2(ix)(k) of PFA Act read with Rules 32(e), (f) and (i) and Rule 49(28 and 29) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act.

2. As per the complaint, on 09.07.2001, the food officials including Food Inspector (FI) Shyam Lal and FI D. V. Singh under the supervision of Local Health Authority (LHA)/SDM Sh. S. K. Nagpal reached at the premises of accused no. 2 Company at 18/14, WEA Karol Bagh, New Delhi-05, where the accused no. 1 Bachhu Singh (since declared PO) in the capacity of its vendor was found conducting the business and having found stored cartons of Packaged Drinking Water / Mineral Water. The said cartons containing 24 sealed glasses of 250 ml each were having identical label declaration. The food officials lifted sample of three such cartons meant for sale for human consumption. It was divided into three parts as per procedure prescribed under the PFA Act and Rules and separately packed and sealed. Necessary documents were prepared at the spot including the vendor’s receipt, Notice in Form-VI and panchnama. On the next working day, one counterpart of the sample was deposited with the Public Analyst (PA) and remaining two counterparts were deposited with the SDM/LHA. Vide report dated 27.07.2001, the PA reported that the food article was conforming to the standards, yet the sample was found misbranded because there were misleading declaration regarding its nature [the product was mentioned to be “Packaged Drinking Water” on the outer cover but the original glasses inside declared the same as “Mineral Water”], that there was violation of Rules 32(e), (f) and (i) on the original glasses [as there was no declaration of batch number, date of packing and best before date], and also that there was violation of Rule 32(f) on the outer cover [as the declaration of date of packing was found by the PA to be illegible]. Based on the report of PA, investigation was carried out by the Food Inspector as per the instructions of the SDM/LHA. It was found that the vendor company accused no. 2 had three Directors (accused no. 3, 4 and 5 herein) and that the company had not appointed any nominee under section 17 of PFA Act. Claiming that all the directors were therefore in charge of or responsible for the conduct of the business of the company as such, there were implicated in the present case. Hence, after obtaining due sanction of the Director, PFA, the present complaint came to be filed against all the accused persons for violation of the section 2(ix)(e) and (g) of PFA Act as well as for violation of Rules 32(e), (f) and (i) of PFA Rules read with Rule 49(28 and 29) of PFA Rules (which amounts to violation of Section 2(ix)(k) of PFA Act, though not mentioned specifically in the complaint), as punishable under Section 7/16(1)(a) of PFA Act.

3. Since the complaint was filed by a public servant in writing, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 20.12.2002.

4. Accused no. 1 remained unserved and his presence could not be secured despite issuing coercive measures. He was subsequently declared proclaimed offender vide order dated 30.10.2007.

5. Based on the report of PA, notices of accusation under section 251 CrPC were framed against accused no. 2 to 5 vide order dated 29.07.2008 for commission of the offence under Section 7/16(1) of PFA Act being in violation of Rule 32(e), (f) and (i) of PFA Rules [though Section 2(ix)(k) which was violated on this count was not specifically mentioned] and also for giving misleading declaration [though Section 2(ix)(g) which was violated was not mentioned specifically in the notice], to which they pleaded not guilty and claimed trial.

6. It is important to note that the notices were not framed for violation of Section 2(ix)(e) for making some false claim on the label, or violation of Rule 49(28 and 29) for manufacturing or selling Packaged Drinking Water or Mineral Water without BIS certification mark, despite the fact that the complaint was filed alleging violation of these provisions as well. Record shows that when the matter was at the stage of final arguments, on 06.09.2012, the prosecution moved an application seeking amendment in the notice. The said application was however dismissed by the court vide order dated 27.06.2013. As such, the court is proceedings only under the provisions for which notices had been framed.

7. At the trial, the prosecution examined four witnesses in support of its case. PW-1 Sh. S. K. Nagpal, (LHA), PW-3 FI Shyam Lal and PW-4 FI D. V. Singh were the part of the team that had visited the premises of accused no. 2 and lifted the sample of Packaged Drinking Water / Mineral Water from the vendor accused no. 1 (since PO). These witnesses deposed about the sample proceedings conducted by them on 09.07.2001 and narrated the steps undertaken by them, including disclosing their identity, lifting three cartons of Packaged Drinking Water / Mineral Water each containing 24 glasses of 250 ml each in sealed condition, dividing the same in three counterparts by considering each carton as one counterpart and separately packing them. A sum of Rs. 111/- was paid to the vendor as price of the sample vide vendor’s receipt Ex. PW-1/A. Notice in Form- VI Ex. PW-1/B and Panchnama Ex. PW-1/C were prepared at the spot. On the next working day, one counterpart was deposited with the PA vide receipt Ex. PW-1/D and remaining two counterparts were deposited with SDM/LHA vide receipt Ex. PW-1/E. PA report Ex. PW-1/G was received opining the sample to be misbranded as aforesaid. Further investigation was carried out by FI PW-3 during which he sent letter Ex. PW-3/A to the vendor and received reply Ex. PW-3/B along with documents Mark-Z1 to Mark-Z5. FI sent letters Ex. PW-3/C and Ex. PW-3/D to the ZHO and STO respectively but no reply was received. He sent letter Ex. PW-3/E to the Registrar of Companies (ROC) but it was not replied. After completion of investigation, consent for prosecution Ex. PW-1/H was taken from the Director PFA, after which the complaint Ex. PW-1/I was filed by the subsequent FI Gian Chand, PW-2 herein. Thereafter, intimation letter Ex. PW-1/J was sent to the accused persons through post.

8. These witnesses were duly cross-examined by ld. Counsel for accused no. 2 to 5. PW-1 and PW-3 accepted that till the year 2006, there was a policy of the department to issue warning in first case of violation of Rule 32 of PFA Rules. They also accepted that the accused no. 3 to 5 have been prosecuted being the Directors of the accused no. 2 company. PW-2 also accepted about existence of such a policy. PW-3 stated that the date of manufacture was legible to him which he noted on Form-VI, though the PA in her report mentioned the same to be illegible. PW-3 informed that no reply was received from the Directors of accused no. 2 separately and denied that accused no. 4 and 5 were not its Directors. PW- 1, PW-3 and PW-4 accepted that the outer cover of the carton did mention the date of manufacturing, best before date and batch number, as reproduced on the Form-VI.

9. Statements of the accused no. 3, 4 and 5 were recorded under section 313 CrPC on 06.12.2010 and that of accused no. 2 (through its AR Sh. A. K. Saxena) was recorded on 19.10.2013, wherein they denied the allegations and pleaded inocence. Accused no. 2 Company stated that it did not receive any warning from PFA Department, that accused no. 4 and 5 had already resigned from the company on 26.03.2001 and 11.02.1998 respectively and that accused no. 3 was not looking after its day to day affairs. Accused no. 3 stated that he was not present at the time of sampling, that he was not looking after the day to day affairs of the company and that he did not receive any warning from the PFA Department. Accused no. 4 expressed his ignorance about the offence stating that he had already resigned from the company on 26.03.2001. Accused no. 5 also expressed his ignorance and stated that he had already resigned from the company on 09.02.1998 which was accepted by the Board of Directors on 11.02.1998. Only the accused no. 1 and 2 chose to lead evidence in defence.

10. Accused no. 1 and 2 summoned the record from the ROC. DW-1 Sh. R. K. Saini brought the record from ROC and proved the Annual Report of the accused no. 2 company Ex. DW-1/A and Form-32 dated 30.03.2001 Ex. DW-1/B. He was not cross-examined by the prosecution.

11. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to prove its case against the accused persons beyond reasonable doubt, as all the witnesses have supported its case and there is no contradiction in their testimony. It is submitted that the accused persons have failed to rebut the findings as given by the PA. It is further submitted that the policy on which the defence is relying, only pertained to the first time violation of Rule 32 only and was not applicable to any prosecution launched for any other violation along with Rule 32.

12. On the other hand, Ld. Defence Counsel has submitted that the prosecution case fails on technical grounds. Ld. Counsel submits that on the day of sampling, accused no. 4 and 5 had already resigned from the company and were no more its Directors. It is submitted that no specific role has been attributed to any of the Directors including accused no. 4, in the absence of which he cannot be implicated. It is then submitted that there was a policy of the department not to prosecute the first time violators of Rule 32 of PFA Act and only to issue a warning in writing but admittedly, no such warning was issued in the present case. It is also submitted that Rule 32(e) has already been declared ultra vires of the Constitution by the Hon’ble Supreme Court of India in the judgement titled as Dwarka Nath v. MCD [1972 FAC 1 (SC)] and that no prosecution can lie under this provision against the accused. Lastly, it is submitted that all the declarations were there on the outer packet / carton of the food article, as admitted by the witnesses.

13. I have heard the arguments advanced by Ld. SPP for the Complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.

14. It is to be understood that the present is a case of misbranding with respect to violation of packaging and labelling rules as provided under the PFA Rules. The quality of the product in question was found to be as per the prescribed standards and there is no violation of any rules pertaining to quality, substance and nature of the product. There is no allegation of any kind of adulteration in the food article on any of the parameters provided under section 2(ia) of the PFA Act. Precisely for this reason, even the defence has not challenged the correctness of PA report in as much as it is in their favour because it reported the product to be conforming to the standards as to the nature, substance or quality of the food article [though the defence has questioned the opinion given by the PA].

15. In the present case, none of the accused persons has questioned the spot sample proceedings conducted by the food officials, as deposed by the PW-1, PW-3 and PW-4. It is not their case that sample proceedings were not conducted as deposed or were conducted in any improper manner. They have never raised a defence that the commodity in question as lifted by the food officials did not belong to the accused no. 2 Company or that it was a duplicate or spurious product. It is nowhere their defence that the food article was not stored / exposed / offered or in possession for sale for human consumption or was lying there for some other purpose or for personal use. It is not their stand that the article sold by them was not being sold in the same condition by the vendors as was purchased from them. It is therefore an admitted position that the Packaged Drinking Water / Mineral Water, the sample of which was lifted from the accused no. 2 through accused no. 1, had been manufactured / packed by accused no. 2 Company. It has never disowned the product, nor has claimed that the product was not covered in the wide definition of “sale” as per section 2(xiii) of PFA Act.

16. It is also not the case of the defence that the PFA Rules are not applicable to the product in question. It is now a settled position that “Packaged Drinking Water” and “Mineral Water” are both covered within the definition of ‘food’ as defined in section 2(v) of PFA Act. Though such definition excludes drugs and water, yet “Mineral Water” and “Packaged Drinking Water” for sale are not excluded and they fall in Item no. A.32 and A.33 of Appendix-B of PFA Rules respectively, which were in force on the day of sampling. Specific detailed standards have been laid down with respect to these food articles under the heads “Mineral Water” and “Packaged Drinking Water (Other than Mineral Water)”. A bare perusal of these standards would show that there are different parameters prescribed for both the said food articles and they can therefore be safely said to be different commodities.

17. PW-3 FI deposed that the contents of the label had been reproduced by him on the Notice of Form-VI prepared at the spot which is Ex. PW- 1/B. This fact has not been disputed by the defence. It is nowhere the stand of the accused persons that the FI had incorrectly mentioned or incompletely mentioned the contents of the label on this form. No such allegation has been levelled at any stage of the trial including the prosecution evidence, statements of the accused persons or defence evidence.

18. A perusal of Form-VI would show that the outer cover / carton mentioned the nature / name of the product as “Packaged Drinking Water / Mineral Water”, the name and address of the manufacturer (accused no. 2 company herein), the quantity (250 ml x 24 glasses), batch number (028), date of manufacturing (28 June 2001), best before date (28 Nov. 2001) and the brand (FiTT). And the sealed glasses inside the carton were bearing the declaration of the name / nature of the product as “FiTT Mineral Water (FiTT for the fit)”, the MRP as Rs. 3.00 (Incl. of all taxes), its quality as “Sterilized (5 times)” and quantity as “250 ml when packed”. It is nowhere the stand of the accused persons that some other declarations were also there on the outer carton or the inner sealed glasses which were not reproduced by the FI, deliberately or intentionally. No attempt has been made by the accused persons to summon the labels from the office of the PA or the other counterparts from the office of the LHA to compare the same with Form-VI, in case they had any such defence.

19. In such a scenario, it would be convenient to note the relevant portions of the following statutory provisions (PFA Act and PFA Rules):

Section 16. Penalties- (1) Subject to the provisions of sub-section (1-A), if any person-

(a) whether by himself or any other person on his behalf, … sells . . . any article of food-

(i) which is adulterated within the meaning of sub- clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section . . .

Section 2. Definitions-

(ix) ‘misbranded’- an article of food shall be deemed to be misbranded-

(f) if false claims are made for it upon the label or otherwise;

(g) if the package containing it, or the label on the packet bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;

(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;

(x) “package” means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing other which an article of food is placed or packed.

Rule 32. Every prepackaged food to carry a label-

(b) Labelling of prepackaged foods.- Every package of food shall carry the following information on the label: (1) The name of the food.- . . .

(2) List of ingredients.- . . .

(e) Lot / Code / Batch Identification.- A Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution., shall be given on the label.

(f) Date of manufacture or packing.- The date, month and year in which the commodity is manufactured, packed or pre- packed shall be given on the label: …

(i) The month and year in capital letters up to which the product is best for consumption, in the following manner, namely:

Rule 2: Definitions.-

(t) “prepackaged” means packaged or made up in advance in a container, ready for offer to the consumer.

20. In view of these provisions, the court has now to see if the food article in question would be covered under these definitions.

21. To begin with, it can be said that the plastic glasses as in the present case would definitely fall within the meaning of “package” as per section 2(x) of PFA Act. As per this definition, even a wrapper or ‘other thing’ in which an article of food is placed or packed is included. Since the food article in question was placed and packed in the plastic container and duly sealed and safely packed, the final packet would definitely be a ‘package’ under the Act.

22. Further, the said package can be conveniently be called as a prepackaged product within the meaning of Rule 2(t) of the PFA Rules. When an article is packaged or made up in advance and is ready to offer to the consumer, it would be a prepackaged product. It is clear and rather an admitted position that the food article in question had been made up in advance and was ready to be offered to the consumer. The plastic glass is a ‘container’ in which such a commodity is contained and packed. There is nothing for the court to conclude that such plastic glasses cannot be called as ‘container’ for any purpose whatsoever. It is not that the food article was further to be put in some other container, in case the plastic glasses are not to be treated as containers. Again, there is nothing to show that the food article was not yet ready for offer to the consumer. It is nowhere the case of the accused persons that the food article was yet to be processed further or was yet to be labelled further before being offered to the consumer. It is nowhere the stand of the accused persons that there were some blank columns on the label of the glasses which were yet to be filled by them or the vendor before being actually offered to the consumer for sale. It would be seen that the several label declarations were there even on the plastic glasses including the individual price of each such glass. Each glass mentioned the brand and name of the food article. If the individual glasses were not pre-packaged food articles,then there was no question of the manufacturer mentioning such details thereupon including the MRP of the individual glass. Therefore, the food article in the sealed glasses can be said to be a prepackaged article.

23. Once it is so established that the food article was a prepackaged food, there is no reason why the Packing and Labelling standards, as prescribed in Part-VII of the PFA Rules, including Rule 32, would not apply to it. Rule 32 mandates all the prepackaged food articles to carry specific informations and declarations on their labels in the specific language, mode and manner. When these rules are to apply to all prepackaged food, there is no reason why such rules shall not apply to the prepackaged food article in question.

24. It is not disputed by the accused persons that the individual sealed plastic glasses were not having the batch number, date of packing and the best before date, as observed by the PA, though it is an admitted position that such declarations were there on the outer carton.

25. At this stage, it is to be understood that the original outer carton was not a single packing of 6 litre, but the said carton / hard paper packet was having 24 small plastic glasses of 250 ml each sealed with aluminium foil. It is therefore clear that the said outer packet was not intended for direct sale to a single consumer but was to be sold to an intermediary who would have sold the individual small glasses to the consumers. This can also be ascertained from the fact that the individual price was mentioned on each such glass and not the aggregate price of 24 glasses on the outer carton.

26. As per the Explanation VI to Rule 32 of PFA Rules, “Wholesale Package means a package containing (a) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for direct sale to a single customer ; or (b) ….”

27. Going by the said definition, it is clear that the outer hard paper packet / carton in the present case would fall in this definition. Admittedly, it was carrying 24 retail sealed packages / glasses and was not intended for direct sale to a single customer. It was intended to be sold to any intermediary (a shopkeeper or supplier or distributor) for further sale, distribution or delivery. Even as per the ‘Note’ to the Explanation VI, such “package” shall be construed as a package containing pre-packed commodity of food articles. Therefore, it is clear that the small sealed glasses of 250 ml each were pre-packaged containers which were together put in a bigger Wholesale packet of 24 such containers.

28. Having noted this, it is important to note the Proviso to Rule 32(i) of the PFA Rules which states that “in case of Wholesale packages the particulars under Clauses (b), (f), (g), (h) and this clause need not be specified”.

29. It is therefore clear that Rule 32(b) would not be applicable to such Wholesale packages, except when such packages fall within the purview of the other Provisos of that rule. The food article in question is not a part of the remaining Provisos and therefore, it can be inferred that the Wholesale packages of Drinking Water or Mineral Water would not be required to mention the name of the food, list of ingredients, date of manufacturing and best before date, in terms of the exemption given by the proviso to Rule 32(i).

30. Thus, if the PA stated that there was violation of Rule 32(f) on the outer cover, that would not amount to an offence in view of the above proviso. In any case, the date of manufacture, even if not legible to the PA, cannot be reason to convict the accused persons as it was very much legible to the FI who also reproduced it on Form Ex. PW-1/B, as confirmed by him in his statement as PW-3.

31. On the same premises, it cannot be said that there was some misleading or deceptive declaration on the food article so as to make out violation of Section 2(ix)(g) of PFA Act. Such an opinion was given by the PA on the ground that the outer packet mentioned the nature of water as “Packaged Drinking Water” but the inner glasses mentioned the same as “Mineral Water”. There is no dispute that the inner glasses were bearing the correct nature of product, as the PA also reported that “Mineral Water as declared on glasses conforms to standard”. But the outer packet / carton did not mention only the words “Packaged Drinking Water” as stated by the PA, but it mentioned the words “Packaged Drinking Water / Mineral Water” as mentioned by the FI on Ex. PW-1/B. It might therefore be possible that the manufacturer had chosen to use the same outer packet / carton for packing both the commodities, while specifying the correct name on the inner retail packets/glasses. However, when the Proviso to Rule 32(i) gives an option to the manufacturer not to mention the name of the food or the list of ingredients at all on the outer Wholesale packet, to my mind, use of the words “Packaged Drinking Water / Mineral Water” by the manufacturer on the Wholesale packet would not amount to giving a misleading or deceptive declaration, particularly when the nature / name of product was correctly and sufficiently mentioned on the inner individual retail packets. From this angle, no violation of Section 2(ix)(g)would be made out.

32. But as far as the inner glasses are concerned, it is clear that there was a violation of Rule 32(f) and (i) of PFA Rules. It has never been denied by the accused persons that there was no date of packing and the best before date mentioned on the individual glasses. In the absence thereof, the consumer would not be able to make out as to how old the packing of the product is and by what date the product is suitable to be consumed. It cannot be said that mentioning of such dates on the outer packet / carton would be sufficient compliance of these rules. When the inner glasses were intended to be sold individually (as they were priced individually as well), no customer could be expected to go by the outer coverings. As per Rule 32(a)(2) of PFA Rules, label in pre-packaged foods shall be applied in such a manner that they will not become separated from the container. Since the outer packet could be separated from the inner glasses, the declarations on the carton cannot be applied to the inner glasses as well and they were supposed to be labelledindividually. Therefore, there is clear violation of Rule 32(f) and (i) in the present case.

33. As far as Rule 32(e) is concerned, the defence has relied upon the judgement titled as Dwarka Nath v. MCD (supra) wherein the Hon’ble Supreme Court of India had struck down the said provision being beyond the rule making power under section 23(1) of the PFA Act. I have gone through the said judgement as well as the applicable rules. However, in my considered view, this judgement would not apply to the present case.

34. In the said judgement, the decisive factors as observed by the Hon’ble Court can be noticed as under:

(a) There was no definition of the expression “batch number” or “code number” in the Act or in the Rules. No affidavit had been filed on behalf of respondent to show whether any technical meaning in the trade was given to these expressions and the matter was based only on the evidence of the Food Inspector.

(b) No notification issued by the Central Government had been brought to the notice of the Hon’ble court with respect to the food article in question showing the applicability of Section 23(1)(c) of PFA Act.

(c) As per Rule 32(e) [as it is existed at that time (the said judgement was passed on 23.04.1971)], “batch number or code number”, had to be mentioned in Hindi or English or numericals or alphabets or in combination, on every label.

35. In view of this factual position, the Hon’ble Supreme Court held that:

(a) There was nothing in clauses (c), (f) and (g) of section 23(1) of PFA Act which would give power to the Central Government to frame rules requiring the batch number or code number to be given on the labels, particularly there was no notification brought to the notice of the Hon’ble Court under clause (c).

(b) Clause (d) of section 23 (1) would also not be applicable as there was no rational or remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.

(c) As there is no definition of the expression “batch number” or “code number” either in the Act or the Rules, and it was admitted that even where batch or code number was to be given, there was no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food had to be utilised, used or consumed, merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. Hence, Rule 32(e) was held to be beyond the rule-making power even under section 25(1)(d) of the Act.

36. Ld. Defence Counsel has also pointed out that relying upon the said judgement of Dwarka Nath v. MCD, Hon‘ble High Court of Delhi has also upheld the acquittal of an accused in Criminal LP no. 17/2009 filed against the judgement dated 24.01.2009 of the Ld. ASJ-01 (South), Patiala House Courts, New Delhi in Criminal Appeal no. 34/08. It is submitted that against the said judgement of the Hon’ble High Court of Delhi, the State went in appeal before the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/11] and vide order dated 27.08.2015, the Hon’ble Supreme Court reiterated that since Rule 32(e) of PFA Act had already been declared ultra vires of the constitution, no case could lie in the matter.

19. A careful study of the position would however, negate the stand taken by the Ld. Defence Counsel. It is to be noted that there has been a lot of difference in the language of Rule 32(e) as it existed at the time when the judgement of Dwarka Nath v. MCD was passed and that as it existed on the day when the sample was lifted and as it existed till the PFA Act was repealed and substituted by new Food Safety and Standards Act, 2006.

20. It is to be noted that after 1971, when the judgement of Dwarka Nath v. MCD was passed holding Rule 32(e) as ultra vires of the Constitution, the said rule was amended. This Rule 32 was last amended in 2006 and clauses (d), (e), (f), (g) and (h) of Rule 32 were substituted by G.S.R. 491(E) dated 21.08.2006 (w.e.f 20.02.2008) as corrected by G.S.R. 518(E) dated 31.07.2007.

37. At the time of Dwarka Nath v. MCD judgement, Rule 32(e) read as: “a batch number or code number either in Hindi or English numericals or alphabets or in combination”.

38. Rule 32(e) as it is existed prior to the G.S.R. 491(E) read as: “a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words “Batch No.”, or “Batch, or Lot No.”, or “Lot” or any distinguishing prefix.”

39. Rule 32(e) as it stood last read as: “Lot/Code/Batch Identification- A Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label”.

40. An apparent distinction, which can be seen in the language of Rule 32(e) as it existed earlier and its existed at the time of sampling, is that the purpose of giving batch number / code number / lot number has been specified, that is to identify the food article by any identification mark so as to enable it to be traced in the manufacturing and distribution process. Such meaning / purpose was earlier missing from the language of Rule 32(e).

41. Therefore, in view of the present language of Rule 32(e), it cannot be said that there is no definition of these expressions in the Act or in the Rules so as to reveal their purpose, as observed by the Hon’ble Supreme Court of India in Dwarka Nath v. MCD decided in 1971. The purpose of mentioning such batch number / code number/ lot number has now been made clear by the legislature.

23. It cannot be said now that a purchaser would not have any concern with the batch number or code number or lot number on the label artificially given by the manufacturer / packer. It is to be understood that if such a separate number is given to various lots of products prepared, it would be possible to trace the manufacturer/supplier/dealer and to fix their liability for selling adulterated or misbranded food. Under PFA Act, not only the seller but distributors / supplier and manufacturers are also liable for prosecution. Therefore, unless it is established that any particular product lifted from the vendor was purchased from a particular supplier/ distributor, it shall not be possible to apprehend any such person and fix his responsibility. In the absence of any such mark of identification, it would be very easy for any distributor/supplier to deny/disown the lifted incriminating food product to be the one sold by him through a particular invoice.

42. It is necessary to be noticed that as per section 14 of PFA Act, every manufacturer or distributor or dealer as to sell an article of food by giving a warranty in writing in the prescribed form. As per section 19(2) of PFA Act, a vendor can seek the benefit of warranty if he is able to prove that he had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Rule 12-A of PFA Rules provide that every manufacturer, distributor or dealer selling the article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form VI-A. Therefore, to get warranty under section 19(2) of PFA Act, every such vendor or supplier has to establish that he was having a written warranty conforming to Rule 12-A and Form VI-A as prescribed. This Form VI-A specifically provides a column of Batch number or Code number to be mentioned with respect to the product sold. This becomes necessary so as to identify the product as lifted by the food officials. If a vendor has been purchasing a particular food article from the distributor/supplier continuously in routine course for a long time, it is only through the batch number or code number mentioned on the article that it could be established as to by what bill/invoice the said product was purchased. In the absence of any such batch number or code number having been mentioned on the bills and the products, it would be impossible for the food officials to identify if the product lifted for sampling is the same product as was sold to the vendor vide any particular bill or any bill prior thereto or any bill of some other supplier.

43. The position would get all the more complicated if there are various distributors / suppliers and multiple vendors involved. The manufacturer might be supplying its product to various distributors who might supply them to multiple whole-sellers who in turn would supply the article to various vendors/retailers. In such position, if the bills/invoices do not mention batch / code / lot number, it cannot be ascertained with certainty as to from which supplier/distributor a particular product was purchased which was found to be adulterated or misbranded. Any such supplier/distributor can deny his liability merely by taking a stand that the product sold by him through a particular bill was not the one as lifted by the food officials. And in the absence of any such batch/lot/code number on the product itself, there remains no scope for its being mentioned on any bill / invoice, making it impossible to track the chain of distribution. There have been many instances where the distributors/suppliers have been given the benefit and acquitted of the charges of selling misbranded / adulterated food on the ground that the material was not sufficient to establish that the food article lifted from the vendor was a part of the same batch/lot as was sold by them through a particular bill/invoice. It is therefore essential that the manufacturer/packer gives a batch number / lot number / code number to his products so as to identify the same in the distribution process.

44. At this stage, it is also to be seen that the Hon’ble Supreme Court of India had held Rule 32(e) as it existed at that time, ultra vires. Thus, upon passing of the said judgement, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language at its exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. There is force in the stand of Ld. SPP for the complainant that Rule 32(e) which had been declared ultra vires, has now been completely changed and the modified Rule 32(e) as it existed when the sample was lifted has never been declared unconstitutional by any court of law. The said provision inserted / substituted by G.S.R. 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.

45. In view of this position, judgement in Dwarka Nath v. MCD would not help the accused persons. For that matter, even the order dated 27.08.2015 passed by the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/2011] would not be applicable, because that order also pertained to a sample lifted on 23.08.1993 (copy of the pleadings to this effect have been shown to the court by the Ld. SPP). Since Rule 32(e) stood amended and substituted, the said Rule would be applicable to the present case where the sample was lifted on 09.07.2001. The said rule has not been declared unconstitutional or ultra virus and is therefore binding.

46. Therefore, it is clear that there was a violation of Rule 32(e) of PFA Rules as well because there was no batch number mentioned on the individual inner packets/glasses.

47. No explanation has been given as to why no batch number or date of manufacturing or best before date had been given by the accused no. 2 manufacturer despite the fact that other declarations like the name of the product, quantity, MRP etc. had been mentioned on all the individual inner glasses. Therefore, there is clear violation of Rules 32(e), (f) and (i) in the present case, which makes out violation of section 2(ix)(k) of PFA Act, as punishable under section 7/16(1)(a) of PFA Act.

48. As far as the policy no. F6(228)/85/ENF/PFA dated 23.09.1985 is concerned, it provided that in case of misbranding under Rule 32 of PFA Rules, only a written warning was to be issued for the first offence and the prosecution had to be instituted only upon a subsequent offence. This policy was however subsequently withdrawn vide office order no. 5/07 dated 14.09.2007. The policy has been relied upon by the Hon’ble high Court in various cases where this policy was in existence at the relevant time, like in the judgement titled as S. S. Gokul Krishnan v. State[2009(1) FAC 132], which was followed in Hindustan Unilever Ltd. v. State [2011(1) FAC 183], Jaykal Exports v. NCT of Delhi [(2011)122 DRJ 432], Pepsi Food Pvt. Ltd. v. State [(2012)194 DLT 468] and Gupta Tea Traders v. State [2012(2) FAC 415]. However, a careful perusal of this policy no. F6(228)/85/ENF/PFA dated 23.09.1985 would show that it was to apply only to those cases where the prosecution was to be launched for violation of only Rule 32. It was specifically and expressly mentioned in the policy itself that this benefit will not be given to those cases where there is some violation in addition to Rule 32 as well. Thus, where the prosecution has been launched for violation of various provisions including Rule 32, this policy would not help the accused. For that matter, even on those cases where the prosecution has been launched under various provisions but the complainant is not able to prove the other violations except Rule 32, or the court frames charges only under Rule 32 or the subsequent CFL report negates the other violations, even then this policy would not help the accused, as it applies only till the stage of launching of prosecution. Therefore, the accused persons cannot seek benefit of such policy in this case, because the prosecution here had been launched not only for violation of Rule 32, but also for Section 2(ix)(e) and (g) of PFA Act and also Rule 49(28 and 29) of PFA Rules, irrespective of the fact if notices were framed under these provisions, or if the prosecution failed prove these violations, or if the court drops these provisions, or if the accused persons are acquitted or convicted. When the prosecution was not for Rule 32 only, the policy would not apply.

49. But as far as accused no. 3, 4 and 5 are concerned, it is an admitted position that they were not the vendors from whom the food article was lifted nor they were present at the time of sampling. In case of a company, its directors, officers or other employees can be held vicariously liable only with the aid of section 17 of PFA Act (which is pari materia to section 141 NI Act). However, it is well settled that any and every director, officer or employee of a company cannot be held liable just because he happens to be a director of the said company. All such persons cannot be held to be responsible for every act of the company just because of the reason that they hold a particular post. The burden would be upon the complainant only to aver and prove by leading positive evidence to show that such a director was in charge of or responsible for the day to day affairs of the accused company so as to hold him vicariously liable. In the absence of such a role specifically attributed to them, any or every director of a company cannot be held liable. It is also well settled that the complainant has to explain by bringing on record the necessary facts that how and in what manner such person can be held liable and a bald averment that he was so responsible for the conduct of affairs of the company, would not serve the purpose.

50. While dealing with section 141 NI Act in the case of a company, the Hon’ble Supreme Court of India in SMS Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89] has laid down that it is necessary for the complainant to specifically aver in the complaint that at the time when the offence was committed, the person accused was in charge of or responsible for the conduct of business of the company. Without this averment being made, requirements of section 141 NI Act would not be satisfied. All the directors in a company (or other officers or employees) cannot be deemed to be in charge of or responsible for the conduct of business of the company. With the exception of a Managing Director or the signatory of the cheque, to implicate any other person as vicariously liable, there has to be specific averment and proof of his role.

51. The Hon’ble Supreme Court of India subsequently in the case titled as National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [167 (2010) DLT 143] held that vicarious liability on the part of a person must be pleaded and proved and not inferred. The said liability does not arrive merely on the basis of designation or office which a person holds in a company and a bald cursory statement in a complaint that a director made an accused was in charge of or responsible to the company for the conduct of its affairs, without anything more as to his role, would not be sufficient.

52. The said position would be applicable in case of PFA Act as well. Reliance can be safely placed on the judgements titled as Raghav Gupta v. Food Inspector [Crl. MC No. 1488/2011, Delhi High Court, dated 30.01.2012] and Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(1983) 1 SCC 1] that pertain to PFA Act only. It has been laid down that that mere averment, that an accused being director or partner would ‘as such’ be liable for the acts of the company/firm, would not be sufficient.

53. Relying upon the law so laid down, it becomes clear that every director of a company cannot be held liable for the affairs of the company just because of his being a director ‘as such’. There can be any number of directors of a company but any and all of them cannot be held vicariously liable for the offence committed by the company. There has to be specific averment in the complaint attributing a specific role to any such director made as an accused so as to proceed against him. Such averment has to be supported by adequate proof of allegations. In the absence of such averment and proof, no liability can be attributed to a director of a company, as there is no rule of law that makes every such director responsible for the affairs of the company for all its acts.

54. In the present case, it is seen that the complaint is totally silent as to the specific role and involvement of the accused no. 3, 4 and 5 in the offence in question, except making a bald averment that they were the directors of accused no. 2 company. Even the PW-1 and PW-3 duringtheir cross-examination admitted that they had been implicated as they were seen as directors in the Memorandum and Articles of Association of the company Mark-Z5. Thus, the fact remains that there is no material to show the involvement these accused persons. They were not the vendors at the spot and no documents had been signed by them. There is nothing to show that they were involved in purchase, storage, sale or distribution of the food article. No account books, bill books, or other documents were seized which could attribute any role to these accused persons. No document had been collected and placed on record to show if these accused persons had ever participated in any of the day to day activities of the company. There is nothing to show if any bills were signed by them or any orders were placed by them or if they had sold any article to any customer or purchased any article from supplier or had maintained accounts or had discharged any other routine liability of the company. No reply was received from the company disclosing who al were its directors in charge of or responsible to it for its affairs. Even otherwise, the FI did not obtain the record of directors that existed on the day of sampling from the ROC who was the most competent authority to inform so. Merely because the FI did not get a reply from the ROC in response to his one letter, there was no occasion for him not to issue any reminder or to attempt contacting ROC again and to simply implicate all the directors as per the Memorandum and Articles of Association. It is pertinent to note that the documents produced by DW-1 from ROC have never been disputed by the prosecution. These documents show that accused no. 4 and 5 had already resigned before the day of sampling. Therefore, no proceedings can lie against them and vicarious liability cannot be fastened upon them under section 17 of PFA Act. Accused no. 3, 4 and 5 are therefore entitled to be given benefit of doubt.

55. All the PWs have deposed about the sample proceedings and have narrated the steps undertaken by them in detail and in corroboration to each other. No contradiction at all can be seen in their testimony that could go to the root of the matter so as to disbelieve them. All deposed about compliance of rules while lifting the sample. No question or suggestion was put to them regarding non-compliance of any mandatory rule. All the witnesses deposed that attempt was made to join public persons as witnesses but none had joined. There is nothing to disbelieve them or to shake their credibility. There is nothing in cross-examination which may help the accused.

56. 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 persons. 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.

57. No other stand has been taken by the accused persons at the trial or in arguments.

58. 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. 2 Company beyond the shadow of reasonable doubt. It has been proved that the accused no. 2 Company (through its vendor) had sold misbranded food in violation of Rule 32(e), (f) and (i) of PFA Rules and thus section 2(ix)(k), and has committed the offence punishable under section 7/16(1)(a) of PFA Act. But in the absence of sufficient material, accused no. 3, 4 and 5 are given the benefit of doubt.

59. Having said so, the accused no. 2 Company is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 3, 4 and 5 are acquitted of the charges. Their bail bonds shall remain in force for the next six months in terms of section 437-A,CrPC.

60. Let the matter be listed for arguments on sentence qua the convicted accused no. 2 Company. Accused no. 1 continues to be a proclaimed offender.

Announced in the open court this 14th day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC

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