PFA – Delhi District Court – Food Inspector Vs Rajendra Gupta – Misbranded Dal Arhar case –

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

CC No. 51/08
Unique Case ID No. 02403R0295022008

Date of Institution:              23.04.2008
Date of reserving judgement:      28.01.2017
Date of pronouncement:            15.02.2017

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. Rajinder Gupta
S/o. Sh. H. R. Gupta
R/o. C-10/36, Sector-15, Rohini
Delhi-110085

A-2) Sh. Sulekh Kumar Aggarwal
S/o. Late Sh. Moti Lal Aggarwal
R/o. BH-734, East Shalimar Bagh,
Delhi-110088                                        ... 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)(k) of PFA Act read with Rules 32(c), 32(e), 32(f), 32(i) and 36(2)(a) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act.

2. As per the complaint, on 16.01.2008, the food officials including Food Inspector (FI) Raj Pal Singh and Field Assistant (FA) J. S. Bisht under the supervision of Local Health Authority (LHA)/SDM Sh. B. S. Thakur reached at the premises of M/s. Anand Grocery Store at 101, Mega Bazar, Shop No. 6, U&V, DDA Market, Shalimar Bagh, Delhi-110088, where the accused no. 1 in the capacity of its vendor was found conducting the business of various food articles, including ‘Dal Arhar’, which was found stored for sale for human consumption, lying in sealed packets of 500 gms. each bearing identical label declaration. The food officials lifted the sample the said food article consisting of three such sealed packets of Dal Arhar ready for sale. 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 and panchanama. Price of the sample was paid to the vendor. One counterpart of the sample was deposited with the Public Analyst (PA) and remaining two counterparts were deposited with SDM/LHA. Vide report dated 07.02.2008, the PA reported that the article was conforming to the standards, yet the sample was found misbranded being in violation of Rules 32(e), 32(f), 32(i) and partial violation of Rule 32(c) as well as violation of Rule 36(2)(a) of PFA Rules, because there was no declaration batch number, date of packing and best before date, and also that the address of the manufacturer was incomplete and the size of label was only 3.5% of the size of the packet. 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 accused no. 2 was the proprietor of the business concern where the accused no. 1 the vendor at the relevant time. Hence, after obtaining due sanction of the Director, PFA, the present complaint came to be filed against both the accused persons for violation of the Section 2(ix)(k) read with Rules 32(c), 32(e), 32(f), 32(i) and 36(2)(a) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act for selling a misbranded food.

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 23.04.2008. Based on the report of PA, notice of accusation under section 251 CrPC was framed vide order dated 03.12.2009 against both the accused persons for commission of offence under Section 7/16(1)(a) of PFA Act, to which they pleaded not guilty and claimed trial.

4. At the trial, the prosecution examined four witnesses in support of its case. PW-1 Sh. B. S. Thakur (SDM/LHA), PW-2 FI Raj Pal Singh and PW-4 FA J. S. Bisht were part of the team that had visited the premises in question where accused no. 1 was the vendor and lifted the sample of Dal Arhar lying in sealed packets of 500 gms each. These witnesses deposed about the sample proceedings conducted by them on 11.01.2008 and narrated the steps undertaken by them, including disclosing their identity, lifting of three sealed packets of 500 gms each, dividing the same in three counterparts by putting two sealed packets as one counterpart and separately packing them. A sum of Rs. 70.50/- 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/E and remaining two counterparts were deposited with SDM/LHA vide receipt Ex. PW-1/D. PA report Ex. PW-1/F was received opining the sample to be misbranded. Investigation was then marked to PW-3 FI Gian Chand, during which letter Ex. PW-3/A was sent to the vendor which was not replied. A letter Ex. PW-3/B was sent to the VAT Office and in its reply Ex. PW-3/C, it was informed that accused no. 2 was the proprietor of the business concern. After completion of investigation, consent for prosecution Ex. PW-1/G was taken from the Director, PFA, after which the complaint Ex. PW-1/H was filed and intimation letter Ex. PW-1/I was sent to the accused persons vide postal receipts Ex. PW-1/J.

5. These witnesses were duly cross examined by the respective Ld. Defence Counsel for the accused persons. PWs denied that the sample packets were not in sealed condition or that they were tied with rubber bands or that the FI had prepared the packets after removing the rubber bands, or that the intimation letters were never served upon the accused persons.

6. Statements of the accused persons were recorded under Section 313 CrPC on 04.01.2012 wherein they denied the allegations and pleaded innocence. Accused no. 1 accepted the proceedings dated 16.01.2008 but stated that the packets were not in sealed condition and had been only tied with a rubber band, that the FI had removed the rubber bands and sealed them with the help of a candle, and that the date of packing was very much there, though accepted that batch number and best before dates were not there. On the other hand, accused no. 2 denied the sample proceedings for want of knowledge, yet accepted that he was the proprietor of the business concern. They however chose not to lead any evidence in defence.

7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to prove its case against both the accused persons beyond reasonable doubt, as all the witnesses have supported its case and there is no condition in their testimony. It is submitted that the accused persons have failed to rebut the findings as given by the PA and also to prove their stand that the packets were not sealed.

8. On the other hand, Ld. Defence Counsel for the accused persons (initially the accused persons were represented by different Ld. Counsel but at later stage, same Ld. Counsel represented both of them) has submitted that the prosecution case fails on technical grounds. Ld. Counsel has argued that the FI had no authority to launch prosecution. It is asserted that the PA report is faulty as the opinion should have been as to the size of the ‘principal display panel’ and not the size of ‘label’, which are two different things. It is argued that there was policy of the department bearing no.F6(228)/85/ENF./PFA dated 23.09.1985 according to which no prosecution could have been launched against a first time violator of Rule 32 without first giving a warning in writing. He has relied upon the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132] in this regard. It is finally submitted that the product in question was not sealed and was only closed with the help of a rubber band and the procedure adopted by the FI lifting the sample was thus not proper.

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

10. In a criminal trial, the burden is on the complainant / prosecution to establish its case against the accused beyond reasonable doubt. This burden cannot be shifted to the accused and has to be necessarily discharged by the prosecution itself by leading cogent and trustworthy evidence.

11. To begin with, it is seen that the accused persons have not seriously disputed the factum of lifting of sample from the vendor accused no. 1 on 16.01.2008. It is not their case that no such proceedings took place or that no such food article was exposed / stored / meant for sale for human consumption. 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. It is not disputed that the food officials had lifted three packets of 500 gms each of food article bearing identical label declaration. All the PWs, who were a part of the team that had lifted the sample, have deposed in corroboration of 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. They all deposed about steps undertaken by them during sample proceedings. 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.

12. 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.

13. It is then not in dispute that the accused no. 2 was the proprietor of the business concern where the accused no. 1 was the vendor. No stand has been taken by accused no. 1 that he was not the vendor or that some other person was the vendor. Similarly, accused no. 2 never took stand that he was not the proprietor or that some other person was the proprietor. The accused no.2 in his statement recorded under section 313 CrPC accepted that he was the proprietor. The FI also received reply from VAT Office Ex. PW-3/C informing that the accused no. 2 was the proprietor.

14. The accused persons have also not questioned the PA report Ex. PW-1/F on the basis of which the prosecution has been launched against them. It is nowhere the stand of the accused persons that the said report is wrong or any incorrect method had been applied by the PA, primarily because the said report is in their favour in as much as the sample was found conforming to the prescribed standards as to its nature, quality and substance.

15. It is also seen that the accused persons have not questioned the observation of the PA that the sample was without declaration of batch number, date of packing, best before date or that the address of manufacturer was incomplete. It is nowhere the stand of the accused persons that the said observations were wrong or that the other details had been mentioned on the label (though accused no. 1 in his statement under section 313 CrPC for the first time claimed that the date of packing had been mentioned on the label). It is however submitted that in the absence of such details, no consumer was misled. It is also submitted that the PA report tells about size of label to be 3.5% of the size of the packet, but the Rule 36(2)(a) talks of size of ‘principal display panel’ which was never measured by the PA.

16. The FI had reproduced the contents of the label on Form VI Ex. PW-1/B which was duly signed by the vendor /accused no. 1 and it can be seen that only declarations on the label were “Anand Grocery Store” (without giving complete address of the manufacturer/packer), “Dt. 12” (not showing it was date, and if so, it was incomplete and without showing if it was date of packing or best before date), “Net weight 500 gm”, “Item

10) Arhar Dal SMA-50″, and “MRP: 23.50”. There were no declaration as to the complete address of the manufacturer as per Rule 32(c), Batch number as per Rule 32(e), or Date of Packing as per Rule 32(f), or best before date as per Rule 32(i). It is nowhere the stand of the accused persons that the FI had incorrectly or incompletely mentioned the label declarations on Ex. PW-1/B or had deliberately omitted to mention the list of ingredients thereupon. No attempt was made by the accused persons to call for the original label from the office of the PA or the other counterparts from the office of LHA, when this option was also available, in case they were to take stand that more declarations were there. Even at the trial during cross-examination of witnesses, the accused persons never claimed that any such details were there on the label or that the PA report was wrong on this point. It was only in his statement under Section 313 CrPC that the accused no. 1 for the first time claimed that the date of packing had been mentioned on the packet. But there is no evidence to this effect except such a bald averment. In the absence of any evidence to this effect, such an explanation given during statement under Section 313 CrPC cannot be treated as proof of any fact. Thus, there is apparent violation of Rules 32(c), (e), (f) and (i) of the PFA Rules that require the complete address of the manufacturer, batch number, date of packing and best before date to be there on the label.

17. As far as Rule 36(2)(a) is concerned, the case of the complainant is based on the report of the PA who opined the sample to in violation of Rule 36(2)(a) of PFA Rules as the label was found to be only 3.5% of the size of the packet instead of required 40%.

18. Rule 36 reads as:

“Principal display panel, its area, size and letters, etc. – (1) Principal display panel means that part of a label which is intended or is likely to be displayed, presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity of food contained in the package.

The area of the principal display panel shall not be less than-

(a) in the case of a rectangular container, forty percent of the product of height and width of the panel of such container having the largest area;

(b) in case of cylindrical or nearly cylindrical, round or nearly round, oval or nearly oval container, twenty percent of the product of the height and average circumference of such container; or

(c) in the case of a container of any other shape, twenty percent of the total surface area of the container except where there is label, securely affixed to the container, such label shall give a surface area of not less than ten percent of the total surface area of the container.”

19. As per this provision, in case of a rectangular container (as in this case, which fact has never been disputed), the area of the ‘Principal display panel’, shall not be less than forty per cent of the product of height and width of the panel of such container having the largest area. As per the PA report, the size of the ‘label’ was 3.5% of the size of the packet. Since it was a rectangular packet, it size would mean the ‘height and width of the panel of such container having the largest area’ as per the language of Rule 36. No other interpretation is possible. Ld. Defence Counsel has failed to explain what else would be called as ‘height and width of the panel of such container having the largest area’ in case of the packet in question, if not the size of the packet itself. Further, in case of any doubts or clarifications, the accused persons had an option to apply and examine the PA herself under Section 293 CrPC whose report is otherwise admissible in evidence without formal proof. She would have been the best witness to clarify anything or to remove any doubt. At the same time, it is to be understood that the PA report Ex. PW-1/F is only a final report required to be given as per PFA Rules. It does not disclose all the details, analytical values, figures, calculations, etc. and such record is maintained separately in the PA office which could have always be summoned by the defence if needed. But when no such attempt was made by the accused persons at the trial, they cannot now choose to question the report on the ground that the same is incomplete or a result of misinterpretation.

20. For that matter, the accused persons have also not questioned the findings of the PA report with respect to size of label viz-a-viz size of the packet. It is not their case that the percentage of the size of the label was more than that of the packet. It is not their case that there was some miscalculation on the part of the PA. Their only stand is that the PA should have measured the “principal display panel” and not the “label”.

21. The said expressions, namely, ‘Principal Display Panel’ and ‘label’ have been defined in Rules 2(u) and (q) of the PFA Rules respectively, which are reproduced as under:

“Rule 2(q) – label means a display of written, graphic, perforated, stamped, tag, brand, mark, pictorial or other descriptive matter, printed, stenciled, marked, embossed or impressed on, or attached to, a container, cover, lid or crown of any food package.”

“Rule 2(u) – principal display panel means that part of a label which is intended or is likely to be displayed, and presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity contained in the package.”

22. It is clear from the aforesaid definitions that while ‘label’ is any pictorial, graphical, descriptive matter that is contained on the food package, ‘principal display panel’ is only that part of the label that is intended to be displayed or likely to be examined by the customer. It is also clear that ‘principal display panel’ is a part of the ‘label’. It follows that principal display panel cannot in case be bigger in size than the label itself. Thus, if Rule 36(2)(a) of the PFA Rules prescribes that the size of the ‘principal display panel’ shall not be less than 40%, then it necessarily means that the size of the ‘label’ also has to be more than 40%. And if the label itself is less than 40% of the size of the packet, then the principal display panel would obviously be lesser than the said size of the label and it cannot be more than 40% even if entire 100% of the label is taken as principal display panel.

23. In the case at hand, the PA report mentions that “the size of the label is only 3.5% of the size of the packet”. It thereby implies that the size of the ‘principal display panel’ was equal to or even less than 3.5%. Resultantly, if the size of the ‘principal display panel’ was even less than 3.5%, the violation of the Rule 36(2)(a) of the PFA Rules would be clearly established. Thus, there is no merit in the contention raised by Ld. Defence Counsel that the PA report speaks about the measurement of the label and not principal display panel. It is clear that the product was misbranded within the meaning of section 2(ix)(k) of the PFA Act even on this count.

24. Ld. Defence counsel has then questioned the delay in signing the PA report. The sample in this case was chemically analysed by the PA from 18.01.2008 to 23.01.2008 but the report was signed by her on 07.02.2008. Well, such a delay would have gained relevance had it been a case of adulteration, that too if such a delay had remained unexplained. The present is a case of misbranding only for which no such delay would be relevant, primarily because even the report of PA would be insignificant to ascertain whether the product was misbranded or not. The judgements relied upon the Ld. Defence counsel titled as Delhi Administration v. Amar Chand[2012 (3) JCC 1930] and Food Inspector v. Harikesh Gupta [2014(2) FAC 282] pertained to the chemical analysis when the article was found adulterated. These judgements did not pertain to misbranding of the product simplicitor, for which, in my considered view, PA report has no bearing. Irrespective of the contents or alleged irregularities or inconsistencies in the PA report, misbranding of an article can still be ascertained by the court merely on the basis of the label declaration as reproduced on Form-VI by the FI. Therefore, no benefit can be granted to the accused persons on this count, particularly when no attempt was made by them to apply and cross examine the PA under section 293 CrPC to explain the said delay when her report is admissible in evidence without formal proof. When the accused persons have failed to exercise the option as available to them, they cannot claim that the delay in signing the report has not been explained.

25. The judgements relied upon by the accused persons titled as A. K. Roy v. State of Punjab [1986(3) PFA Cases 66] and Surinder Singh v. State of Punjab [1987(1) PFA Cases 324] would also not help them. These judgements primarily dealt with the notification issued by the Food (Health) Authority in the State of Punjab under the PFA (Punjab) Rules, 1958. Under Rule 3 of those Rules, the State Government was competent to delegate its power to authorize a person to institute prosecution for an offence. In accordance with that rule, the State Government issued notification dated 10.10.1968 delegating its powers to initiate prosecution to the Food (Health) Authority. Again in accordance with the said notification, the Food (Health) Authority issued another notification dated 07.09.1972 and further delegated the power to launch prosecution to the Food Inspector, Faridkot. In such a position, the Hon’ble Court held that the notification dated 07.09.1972 was ultra vires in so far as the Food (Health) Authority purported to delegate his powers to institute prosecution to the FI. But in the present case, no such policy or notification is in question that might have been issued by the State Government or by the Director (PFA) or the LHA. As per Rule 3(ii) of the Delhi Prevention of Food Adulteration Rules, 2002, the Food (Health) Authority is having the powers to grant consent for instituting prosecution of an offence under section 20 of PFA Act. The Director (PFA), in exercise of such powers, accorded the consent Ex. PW-1/J and directed the LHA/SDM to institute / get instituted the prosecution by the FI of jurisdiction. Therefore, specific orders are there in the consent for getting the prosecution instituted through the concerned FI. The defence has not sought to get the things explained at the trial or to produce any other general or special order issued by the State Government. Even in the above precedent, the Hon’ble Supreme Court was pleased to observe that “There would be no problem if the State government were to issue a notification under section 20(1) of the Act conferring authority on the Food Inspector, Faridkot under section 20 (1) to launch prosecutions for an offence under the Act as is the practice in the other States”. No attempt has been made by the accused persons to bring evidence on record on this point and to establish if any such notification has or has not been issued in the State of Delhi. There is no material to show existence of any notification in Delhi on the lines of notification as issued by the State of Punjab under its PFA (Punjab) Rules. Under the Delhi Rules as aforesaid, the Director (PFA) is authorized to grant consent and is not required to institute prosecution himself so as to delegate any such authority.

Therefore, there is no material on record to conclude that the FI in this case was not competent to institute the prosecution.

26. The accused persons then contend that the packets were not sealed packets and were only closed packets on which the labelling standards would not apply. Ld. Counsel thus submits that the sample proceedings were not proper because the FI could not have lifted the closed packets without opening them and was required to open them, transfer their contents in one container, mix them and then divide them in three counterparts.

27. Again, there is no evidence to this effect. Except putting bald suggestions to the witnesses, which they have vehemently denied, there is no evidence in the form of testimony of the any witness who could depose that the packets were not sealed packets and only closed ones. No such witness has stepped into the witness box and faced the test of cross- examination. In the absence of any evidence, such a stand has remained unsubstantiated and mere bald averment.

28. Even otherwise, technically, to establish the offence of misbranding, analysis of food article by the PA would not be required. Public Analyst is a chemical expert who is primarily required to chemically analyse a sample of food article lifted by the FI to determine its analytical values and then to give opinion as to if the food article was adulterated or if it was not conforming to the prescribed standards. Such chemical and scientific analysis is required to ascertain the ingredients and chemical composition of the food article. As far as the offence of misbranding is concerned, it pertains to label declarations on the package of the food article and no chemical analysis of the product is ordinarily required to establish if the article is misbranded or not. There might be situations where it is necessary to ascertain the chemical composition of the product to ascertain if the ingredients of the product are in conformity with the label declarations on the product. But in other cases where the label declarations themselves are not as per the prescribed rules, no chemical analysis of the product would be necessary to establish whether the product is misbranded or not.

29. Whenever a sample is lifted by the FI, as per the procedure established under the PFA Act and Rules, the same is required to be divided into three parts and then, one counterpart is to be sent to PA for analysis and the remaining two counterparts are to be deposited with the LHA. The PA is required to chemically analyse the sample and then give opinion not only on the point of adulteration but also as to misbranding. Even if a sample is misbranded on the face of it, it is still required to be sent to the PA for chemical analysis, so as to ascertain if it is in compliance or violation of the rules, including those pertaining to prescribed standards as to its nature, substance and quality as well as those pertaining to labelling and packaging standards.

30. However, in cases where the product conforms to the standards and there is no adulteration therein, and the ingredients of the product are also as per the label declaration, the chemical analysis and composition of the product need not be gone into to ascertain if the product is otherwise misbranded. For that, the court (or any other person for that matter) is only required to have a bare look at the label declarations on the product and then determine if such declarations are as per the rules. Irrespective of opinion of the PA as to misbranding on the basis of label declarations simplicitor, the court is not bound by any such opinion, primarily because the same is not based on any chemical tests or analytical values arrived at after scientific analysis.

31. If the court is only required to peruse the label declarations appearing on the package of a food article and not to go into the chemical analysis or composition of the same, any irregularity in the sample proceedings or in the chemical analysis by the PA, which has no effect on the label declarations, would not give any benefit to the accused. To establish misbranding simplicitor, any opinion of a chemical expert is neither required nor relevant, though in every case where a sample is lifted by the FI, it is necessary to send it to PA for chemical analysis to ascertain if it is in conformity of PFA Act and Rules.

32. Similarly, if a sample is sent to the Central Food Laboratory (CFL) upon the accused exercising his right under section 13(2) of PFA Act, only the analytical values therein would be final and conclusive in terms of section 13(3) and 13(5) of PFA Act and not the observations as to the labelling standards. If the label declarations are independent of chemical analysis by the PA or CFL, the analytical findings given by them need not be looked into to determine the offence of misbranding. The court is required to arrive at its decision to find out if the sample is misbranded or not, by carefully perusing by contents of the label on the package of the food article, without being influenced by the analytical values arrived by the PA or CFL after chemical analysis.

33. It follows that even if there is some irregularity in the procedure adopted for lifting the sample or in the tests performed by the chemical analysts, that would not be a reason to conclude that the sample was not misbranded. Any irregularity in lifting of the sample or its analysis might be relevant and have material bearing on the opinion of the chemical experts as far as the analytical details are concerned, on the basis of which the experts may opine if sample is adulterated or substandard, but when the issue is not with respect to any adulteration and only of non- compliance of packaging and labelling rules independent of such chemical analysis, the court need not even look into the opinion given by the PA or CFL in their reports, unless of course the irregularity or illegality goes to the root of the matter.

34. Section 2(x) of PFA Act provides that a “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 2(t) of PFA Rules states that a “prepackaged” means packaged or made up in advance in a container, ready for offer to the consumer. Now, even if the packets in question are accepted to be closed with rubber bands, they would also be covered under the Act.

35. The polythene / plastic packets 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 packet and duly closed and safely packed by putting rubber bands (as contended by the accused persons, though there is no evidence to this effect), the final packet would definitely be a ‘package’ under the Act.

36. Further, the said package can be conveniently be calling 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 packet is a ‘container’ in which such a commodity is contained and packed. There is nothing for the court to conclude that such plastic packet cannot be called as ‘container’ for any purpose whatsoever. Going by the literal meaning and interpretation, since these plastic packets contained the food article, they can be said to be ‘containers’. It is not that the food article was further to be put in some other container, in case the plastic packets 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 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 that some columns on the label were yet to be filled by them before being actually offered to the consumer for sale. Rather the label shows that the price of individual packets was mentioned on the labels. If the packets were not so made up on advance, there was no reason why they mentioned prices of individual packet on them. The witnesses on record have categorically deposed that the food article was lying at the spot for sale of human consumption, and thus, were ready for sale. Therefore, the food article can be said to be a prepackaged article.

37. 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.

38. The purpose of giving information on the labels of such prepackaged food is not far from understanding. In case of open or loose commodity being sold, the purchaser / consumer has an opportunity to physically touch and verify the contents of the food article. But when the said food article has been prepackaged, that is, made up in advance, the consumer gets no opportunity to actually touch and verify the contents of the food articles to ascertain its nature, substance or quality. Therefore, the vendor/seller/supplier/manufacturer/dealer has to give completeinformation as to the standards and contents of the food article as per the PFA Rules.

39. Now the question is, if closing the packet by rubber bands, as contended by the defence, would be covered under the definition of ‘sealed container’ or not. Had it been so, closing the packet in such manner would certainly not mean sealing of the packet. Sealing is much strict a term than closing of a packet. A sealed packet cannot be opened without breaking the seal but a closed packet can always be opened and then again closed by various means.

40. But the fact is that there is nothing to show that only a sealed packet would fall under the term “prepackaged” for the labelling and packaging rules to apply. There is nothing in the definitions of ‘package’ and ‘prepackaged’ by which the court may reach at such a conclusion. There is nothing in the Act or Rules to infer that only sealed packets would be called as prepackaged food. The term “sealed” has nowhere been used in the definition of “package” in the PFA Act or “prepackaged” in the PFA Rules. It follows that if the food packet falls in the definition of “prepackaged” food, whether sealed or closed, the labelling standards would apply to it.

41. The situation might have been different if the food article is otherwise offered for sale to the consumer in loose condition and it is packed only after its actual purchase by a consumer only for the purpose of its being carried away. Therefore, if the commodity is being sold and has been offered for sale in loose condition (and not made up in advance, as per Rule 2(t) of PFA Rules) and purchased in such a condition, then mere fact that the purchased commodity is handed over to the consumer in a packet after closing or even sealing the container, such a packet would not fall within the meaning of prepackaged product. As a result, the labelling or packaging regulations would not be applicable to such a packet which is not made up in advance.

42. But in the present case, it is not so. It is nowhere the case of the accused persons that the dal was being sold in loose condition or that they used to pack/seal/close the same after being purchased by the consumer. No such suggestion was given to any PW nor any such defence was taken by the accused persons in their statements under section 313 CrPC. Therefore, if the accused persons had already packed the food article in advance and were offering the same for sale in such prepackaged condition, they were required to comply with the packaging and labelling rules, including Rule 32.

43. Ld. Defence Counsel has now placed reliance on Rule 22 of the PFA Rules and has argued that the sample was lifted in violation of this rule. As per the ‘Note’ to the said Rule 22 as inserted in 2005, food sealed in packaged condition (sealed container or package), shall be sent for analyses in its original condition, without opening the package as far as practicable, to constitute approximate quantity alongwith original label. It is contended by the Ld. Counsel that since the packets in question were only in closed condition and not in sealed condition, they could not have been lifted and sent for analysis in closed condition.

44. In this regard, it would be seen that Rule 22 of PFA Rules deals with “Quantity of sample to be sent to the Public Analyst”. This rule provides the minimum quantity of the lifted food article which is required to be sent the PA and CFL for analysis. Different quantities have been prescribed for different food articles. It was only in the year 2005 that the ‘Note’ was inserted to the Rule 22 which prescribes that in case of sealed containers and packages, the original sealed packet should be sent for analyses without opening it, to constitute approximate quantity along with original label.

45. It is to be understood that this rule does not deal with anything except the desired quantity required for analysis. As per Rule 22-B, notwithstanding anything in Rule 22, the quantity of the sample sent for analysis shall be considered as sufficient unless the PA or the Director (CFL) reports to the contrary. Thus, Rule 22 has to be read only in the perspective of sufficiency of the quantity to be sent for analysis.

46. As far as sealed packets are concerned, they are required to be sent in originally sealed package or container, as far as practicable. And where the packages are not sealed or in loose condition, the FI is required to homogenise the contents and then divide it in three parts. This is to ensure even distribution of the components and ingredients of the food article so as to make it representative. This is necessary because if not homogenised properly, one part may get some ingredient in excess of prescribed limit and the other part may be deficient of the said ingredient, and vice versa. In such position, when a sample is tested by the analyst, prejudice might be caused to the accused if the sample is not homogenised and made representative. The quality, substance and nature of the food article would certainly depend on such homogenisation, except in those cases where presence of some matter is absolutely prohibited (like prohibited colour, poison, diseased animal, etc) where homogenisation would be immaterial. But it is to be considered that such rule would be relevant only when the food article is to be analysed to ascertain if it is adulterated or not. Where the court is not dealing with the nature, quality or substance of any food article but only with the label declarations, Rule 22 would not at all be relevant. Irrespective of the fact if the desired quantity was sent by the FI to the PA or the food was properly homogenised, the fact remains that the label declarations would remain the same. Compliance or non-compliance of Rule 22 would have no bearing whatsoever on the contents of the label of the food package. Therefore, even if the food article is lifted in violation of Rule 22, an accused can still be prosecuted for the offence of misbranding based on violation of label declarations which are independent of the chemical analysis by the PA or CFL. If a seller has not mentioned the required contents on label of the product, he cannot claim that there was some irregularity in homogenisation of the contents. Such a violation would be independent of contents of the food article and would not depend even on the analytical values determined by the PA on which Rule 22 might have some effect. Thus, no benefit can be taken by the accused persons on this score.

47. Now coming to the policy of the department to issue a warning for first time violation, which Ld. Counsel has also put forth. There is no dispute that there was policy of the department not to prosecute the first time violation of Rule 32 and to give only a warning to the offender. In the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132], it has been held that such policy bearing no.F6(228)/85/ENF./PFA dated 23.09.1985 was in operation and during this period and no prosecution could have been launched against a first time violator of Rule

32. However, it is to be noted that that policy was later withdrawn vide office order no.5/07 dated 14.09.2007, as noted in the said judgement itself. It is therefore clear that on the day when the sample in question was lifted, the said policy was no more in operation. No benefit can be taken by the accused persons on account of such policy that already stood withdrawn. There is no merit in such stand.

48. No other stand has been taken by the defence at the trial or in arguments.

49. It has come on record that the accused no. 2 was the proprietor of the business concern where accused no. 1 was the vendor. As per Section 7 of PFA Act, no person shall “himself or by any person on his behalf” manufacture for sale or store, sell or distribute any adulterated food. Therefore, even if the accused no. 2 was not present at the spot or the accused no. 1 was not the proprietor of the business concern, that would not exonerate them from their liability. Being the vendor and the proprietor respectively, both of them were responsible for compliance of the rules.

50. 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 both the accused persons beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 and accused no. 2 had sold misbranded food in violation of section 2(ix)(k) of PFA Act read with Rules 32(c), (e), (f) and (i) as well as Rule 36(2)(a) of PFA Rules, and have committed the offence punishable under section 7/16(1)(a) of PFA Act.

51. Having said so, both the accused persons are held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.

52. Let the matter be listed for arguments on sentence.

Announced in the open court this 15th day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC

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