PFA – Delhi District Court – False Label claim – Mineral Water – “Confirms to WHO standards” – Food Inspector Vs Viju Rao & Others – Feb 14-2017

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

CC No. 104/97
Unique Case ID No.

Date of Institution:           01.10.1997 [Oldest Case- 20 yr old]
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. Viju Rao
S/o. Sh. K. K. Rao
R/o. 8702, Vasant Kunj, New Delhi

A-2) M/s. Dolphin Mart Ltd.
S-35-A, Green Park Main Market,
New Delhi-110016

A-3) Sh. K. C. Kalra
[Since Expired]

A-4) M/s. Gemini Food and Beverages (P) Ltd.
C-751, Sector-C Mahanagar, Lucknow, UP

A-5) Sh. Sharwan Kumar Sethi
S/o. Late Sh. K. C. Sethi
R/o. C-752, Sector-C Mahanagar, Lucknow, UP




CC No. 104/97                                               Page 1 of 39
 A-6) Sh. Sandeep Kapoor
S/o. Sh. S. L. Kapoor
R/o. C-1/23, Pandara Park, New Delhi

A-7) Sh. Vinay Kumar Virmani
S/o. Sh. D. N. Virmani
R/o. C-752, Sector-C Mahanagar, Lucknow, UP          ... 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/stored/distributed/manufactured a misbranded food in violation of Section 2(ix)(e) and (g) of PFA Act, as punishable under Section 7/16(1)(a) of PFA Act.

2. As per the complaint, on 02.12.1996, the food officials including Food Inspector (FI) Bal Mukand and FI Rajesh Kumar under the supervision of the complainant Local Health Authority (LHA) Sh. S. K. Nanda reached at the premises of M/s. D-Mart (a unit of accused no. 2 M/s. Dolphin Mart Ltd.) at S-35-A, Green Park Main Market, New Delhi- 110016), where the accused no. 1 in the capacity of its vendor was found conducting the business of various food articles, including ‘Mineral Water’ of FiTT Brand, which were found stored for sale for human consumption, lying in sealed bottles of 1000 ml each bearing identical label declaration. The food officials lifted the sample the said food article consisting of three such sealed bottles of Mineral Water. 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 09.01.1997, the PA opined that “the manufacturer may be asked not to mention WHO’s name on the label”. Based on the report of PA, investigation was carried out by the Food Inspector as per the instructions of the SDM/LHA. At the time of sampling, the accused no. 1 vendor had disclosed that the commodity had been supplied to him by M/s. K. C. Enterprises against a bill no. 210 dated 16.09.1996, on the basis of which notice under section 14A was also issued to it. During investigation, it was found that the said M/s. K. C. Enterprises was the proprietorship concern of accused no. 3 (since expired) who was the distributor of FiTT Mineral Water. Accused no. 2 was found to be a registered company of which accused no. 1 was the whole-time director in-charge of and responsible to it for conduct of its business affairs. It was also found that the food article had been manufactured and packed by the accused no. 4 company and supplied by it to accused no. 3 distributor. As the said company had not appointed any nominee under section 17 of the PFA Act, its directors accused no. 5 to 7 were found to be in-charge of and responsible to it for conduct of its business affairs. It was concluded that no standards had been prescribed by the WHO and therefore, the declaration on the label of the product that the product “Confirms to WHO standards” was false and misleading. 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), as punishable under Section 7/16(1)(a) of PFA Act for selling/distributing/manufacturing 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 01.10.1997.

4. Record shows that upon appearance, accused no. 4 moved an application under section 13(2) PFA Act thereby exercising its right to get the second counterpart analysed by the Central Food Laboratory (CFL). However, the said application was not pressed and on 16.03.1998, the court dismissed the application as not pressed, when the Ld. Defence Counsel gave statement to this effect asserting that the right of the accused under section 13(2) stood frustrated due to late filing of the complaint.

5. In the meanwhile, accused no. 3 expired and proceedings against him stood abated. The accused no. 1 and 2 as well as accused no. 5 to 7 filed separate applications seeking their discharge. Vide order dated 09.12.1998, the said applications were dismissed and based on the material on record, notices of accusation under section 251 CrPC were framed against all the accused persons (except accused no. 3 who had expired) for commission of offence under section 7/16(1) of PFA Act, to which they pleaded not guilty and claimed trial.

6. At the trial, the prosecution examined two witnesses in support of its case. PW-1 FI Bal Mukand and PW-2 Sh. S. K. Nanda (LHA) were examined who were a part of the team that had visited the premises, along with FI Rajesh Kumar (since expired). They both deposed about reaching the premises of accused no. 2, finding the accused no. 1 vendor there and lifting the sample of Mineral Water lying in sealed bottles of 1000 ml each bearing identical label declarations. They deposed about the sample proceedings conducted by them on 02.12.1996 and narrated the steps undertaken by them, including disclosing their identity, expressing intntion to purchase sample for analysis, lifting of three sealed bottles of mineral water, dividing the same in three counterparts by putting one sealed bottle as one counterpart and separately packing them. A sum of Rs. 36/- 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. Based on the information given by the accused no. 1 and copy of bill Ex. PW-1/P3, notice under section 14A of PFA Act, Ex. PW-1/D1 was prepared addressed to business concern of accused no.

3. On the next working day, that is, 03.12.1998, one counterpart along with copy of Form-VII were deposited with the PA vide receipt Ex. PW- 1/E and remaining two counterparts were deposited with LHA vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received with the opinion as stated above. Further investigation was carried out during which various letters were written to the accused persons and various departments. Accused no. 1 vide his letter Ex. PW-1/K admitted himself to be the person responsible for the affairs of the accused no. 2 company. Accused no. 3 in his reply Ex. PW-1/H accepted that the food article had been supplied by him, and informing that it had been supplied to him by accused no. 4 vide bill no. 090 dated 09.09.1996 Ex. PW-1/J. The Sales Tax Office vide reply Ex. PW-1/O informed about the three directors of the accused no. 4 company. Accused no. 4 company, through accused no. 6 also gave reply dated 13.02.1997 Ex. PW-1/P4 disclosing the names of three directors and also stating that the said three directors had been looking after the affairs of the company. It admitted the accused no. 3 to be its distributor. The LHA also placed on record a letter No. P- 15013/1/95-PH (Food) dated 15.07.1997 written to the Director (PFA) by the Asstt. Director General (PFA) on behalf of the Directorate General of Health Services, Ex. PW-2/A, whereby it was informed that the “WHO does not have any standard for mineral water till date”. It also furnished copies of letters Mark-A and Mark-B written by the WHO Representative to India to the Additional Secretary(H), Ministry of Health and Family Welfare, Government of India, wherein request was made to stop the use of WHO name on the bottles of drinking water/mineral water, as the WHO did not endorse any commercial products. After completion of investigation, consent for prosecution Ex. PW-1/R was taken from the Director, PFA, after which the complaint Ex. PW-2/B was filed by PW-2 and intimation letter Ex. PW-2/C was sent to the accused persons vide postal receipts Ex. PW-2/D.

7. These witnesses were duly cross examined by the respective Ld. Defence Counsel for the accused no. 1 and 2 on the one hand and for accused no. 4 to 7 on the other hand. Qua accused no. 1 and 2, PW-1 during cross-examination accepted that the sample bottles were in originally sealed condition when lifted and the vendor also gave the bill of purchase Ex. PW-1/N. He accepted that the bill was also received from the distributor (accused no. 3 herein). However, PW-2 was never cross- examined on behalf of accused no. 1 and 2. Qua accused no. 4 to 7, PW-1 during his cross-examination deposed that he did not write any letter to the manufacturer after receiving the PA report directing him not to use WHO’s name as opined by the PA. He claimed to have visited the company a couple of times and found all the directors working there. He stated that he was not aware if there were standards of WHO for Drinking Water in the year 1984 or not, and stated that he was asked to inquire about the WHO standards if any, and that he came to know that there were no standards of WHO in respect of the Mineral Water, though he did not inquire about the WHO standards with respect to Drinking Water. He testified that he did not write any letter to the WHO. PW-2 during his cross-examination reiterated that no warning or letter was issued to the accused company for not using the name of WHO as per opinion of the PA. He was also not aware of the standards of WHO for Drinking Water, though stated that Mineral Water and Drinking Water had different standards.

8. Statements of the accused persons were recorded under section 313 CrPC on 04.03.2010 and 17.07.2010. The accused no. 1 (also representing accused no. 2 company) strangely claimed that he was not present at the time of sampling and that he had left the company long back. He also claimed in same breath that the water bottles were purchased against proper bills and were kept for sale without changing its contents in any manner and were sold in the same state as purchased. He stated that he was not looking after the day to day business of the company, that he never went to factory.

9. Statement of accused no. 4 Company was recorded through its AR Sh. Arvind Saxena who denied the sample proceedings and claimed that the PA report was wrong. He denied receiving of intimation letter from the complainant and took stand that the declaration of WHO on the product was related to ‘drinking water’ and not ‘mineral water’ and that the WHO guidelines in respect of ‘drinking water’ were in existence at the time of sampling. He also stated that none of the three directors were responsible for the day to day affairs of the business and that it was being looked after by its employees. Accused no. 5, 6 and 7 also denied any knowledge of the sample proceedings. They also claimed that they did not receive any intimation letter from the complainant and reiterated the version of accused no. 4 that the declaration of WHO on the product was related to ‘drinking water’ and not ‘mineral water’ and that the WHO guidelines in respect of ‘drinking water’ were in existence at the time of sampling. The accused persons chose to lead evidence in defence.

10. On behalf of accused no. 1 and 2, DW-1 Ms. Renu Jain was examined in defence who had been working as Corporate Manager with the accused no. 2 company since the year 1992. She stated that the accused no. 2 Company was a retail outlet and the food article had been purchased from accused no. 3 dealer / supplier vide bill Ex. DW-1/N dated 16.09.1996. She further stated that the food article was sold in the same condition as purchased. She was not cross-examined either by the complainant or on behalf of the accused no. 4 to 7 despite opportunity.

11. On behalf of accused no. 4 to 7, DW-2 Sh. R. K. Bansal was examined. He had retired as Director, Food Products Order, Ministry of Food Processing Industry and was also a member of Central Committee for Food Standards under PFA Act. He stated that the WHO had issued certain guidelines regarding Mineral Water through Codex Commission, to which India was one of the members. He claimed to be attending meetings of Codex Commission as Representative on behalf of the Government of India. He placed on record a copy of the Procedural Manual issued by Food and Agricultural Organization of the UN Mark D- 1, the internet-generated papers Mark-D-2 as downloaded from the website of Codex Commission and relevant extract of Bureau of Indian Standards (BIS) Commission Mark D-3. During cross-examination by the Ld. SPP, he stated that in the year 1996, there were no standards directly by WHO regarding Mineral Water, yet claimed that they were through the Codex Commission.

12. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to prove its case against all the accused persons beyond reasonable doubt, as both 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 food article complied with any WHO standards, asserting that there were no such standards prescribed by the WHO with respect to Mineral Water, which is a standardized food article under the PFA Act and Rules.

13. On the other hand, Ld. Defence Counsel for the accused no. 1 and 2 (vendors) and accused no. 4 to 7 (manufacturers) have submitted that the prosecution has failed to prove its case. On behalf of the vendors, it is submitted that they are protected under the concept of warranty under section 19(2) PFA Act as they had purchased the food article against a bill and had sold it in the same state as purchased. On behalf of the suppliers, it has been argued that the prosecution has failed to prove that there were no standards of WHO with respect to mineral water at the relevant time, asserting that the defence has proved that such standards were there by WHO through Codex Commission. It is then submitted that use of name of WHO on the label, even if improper, cannot be said to be a misleading or false or deceptive statement so as to make out violation of PFA Rules and consequently the offence of misbranding. It is pointed out that no such opinion was given by the PA in his report Ex. PW-1/G and the manufacturer was only directed to be asked not to mention WHO’s name on the label.

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

15. At the outset, it is to be understood that the present is a case of misbranding with respect to nature of label declarations as provided under the PFA Act. The quality of the product in question was found to be as per the prescribed standards and there was no violation of any rule 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.

16. The precise question to be decided by the court in the given scenario is, if by writing the words “Confirms to WHO standards” on the label of Mineral Water bottles, the accused persons have violated section 2(ix)(e) and (g) of the PFA Act. The relevant portion of section 2(ix) is:

2. Definitions.- In this Act unless the context otherwise requires, –

(ix) “misbranded”- an article of food shall be deemed to be misbranded:

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

(g) if the package containing it, or the label on the package 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 respective to its contents.

17. To begin with, it has not been disputed by any of the accused persons that sample in question was lifted from the premises of accused no. 2, where accused no. 1 was the vendor. It is nowhere the case of the accused no. 1 and 2 that the sample was not so lifted or that the sample was not lifted as per the PFA Rules. There is no allegation of non- compliance of any mandatory Rule and no infirmity in the sample proceedings has been pointed out. The FI had lifted the water bottles in their original sealed condition.

18. At the time of lifting of the sample, the FI had reproduced the contents of the label on Form-VI Ex. PW-1/B. It is to be understood none of the accused persons has alleged that the contents on the label were incorrect or incomplete in any material particular. It is nowhere their stand that the FI had wrongly mentioned the contents or mentioned the same incorrectly or omitted to mention some relevant details. The accused persons did not opt to call for the records including the labels of the food article from the office of PA or the counterparts from the office of the LHA to compare the same with the label declarations as reproduced by the FI on Form-VI, despite an opportunity available to them, in case they had any issues on that point. Therefore, it is safe to assume that the contents of the label as reproduced by the FI on Ex. PW-1/B were the correct label declarations as appearing on all the bottles.

19. A perusal of Ex. PW-1/B would show that the food article was being sold under the name “Mineral Water”. It was mentioned to be mineral water of FiTT brand, stated to be 100% Bacteria free. The other declarations included the batch number (10000/2), manufacturing date (9/96), expiry date (8/97), quantity (1000 ml), MRP (Rs. 12/-) and the particulars of the packer (accused no. 4 Company herein). It is therefore clear that the food article was being sold as Mineral Water and not any other kind of water.

20. This fact assumes importance because “Mineral Water” and “Packaged Drinking Water” are two different food articles which have separate standards prescribed under the PFA Act /Rules. “Mineral Water” and “Drinking Water” have been both recognized separately under the PFA Act. Though ‘food’ as defined in section 2(v) of PFA Act 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, thereby making these food articles as standardized food articles. 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. However, it is important to note that the standards of “Mineral Water” were added by GSR 870(E) dated 14.11.1994 which were substituted subsequently by GSR 759(E) dated 29.09.2000. But as far as standards for “Packaged Drinking Water (Other than Mineral Water)” are concerned, they were inserted by GSR 760(E) dated 29.09.2000 (w.e.f 29.03.2001) only. Thus, on the day of sampling, that is, 02.12.1996, there were standards of “Mineral Water” under the PFA Rules in Item No. A.32, though no standards for “Drinking Water” were there in the PFA Rules.

21. Such difference would assume all the more importance in view of the stand taken by the accused no. 4 to 7 (manufacturers) at the trial. Upon careful perusal of the entire record, it would be seen that from the very beginning, these accused persons took a stand that the food article in question was “drinking water” and that the declaration on the label that the food article confirmed to WHO standards, pertained to the standards of “drinking water”. Questions to this extent were put to PW-1 who expressed his ignorance as to if there were standards of WHO for “drinking water”, though stated that he had come to know that there were no standards of WHO with respect to “mineral water”. Similarly, under cross-examination, PW-2 expressed ignorance as to if any standards were there by WHO for “drinking water”, though rightly stated that “mineral water” and “drinking water” were having separate standards. He accepted that on the label of the sample bottles, it was mentioned “confirms to WHO standards” and it was not mentioned that the food article confirmed to WHO’s “mineral water” standards. Therefore, during the evidence of the two PWs examined by the prosecution, the stand of the accused persons was that the declaration “confirms to WHO standards” pertained to the standards of WHO as claimed to have been prescribed by it for “drinking water” and not for any other food article including “mineral water”.

22. Most importantly, even in their statements recorded under section 313 CrPC, the accused no. 4, 5, 6 and 7 clearly and categorically explained their stand that “the declaration of WHO was related to drinking water and not mineral water” and that “WHO guidelines in respect of drinking water (were in) existence at the time of sampling”.

23. Therefore, till the stage of recording of statements under section 313 CrPC, the defence of the accused persons was, that the declarations on the label on the food article pertained to “drinking water”, the standards of which had been prescribed by the WHO at that time. However, the Court does not find any merit in going into that contention, primarily because the food article was specifically mentioned on the label to be “Mineral Water” and it was being sold as “Mineral Water”. Irrespective of the fact that such Mineral Water is also a drinking water, that would not mean that some declaration thereupon could be given thereupon which exclusively could be attributed to drinking water and not mineral water. If the food article was being sold as “mineral water”, the declarations thereupon can obviously be said to be pertaining to mineral water only. There is nothing to show that the declaration, that the food article confirmed to the WHO standards, pertained to drinking water and not mineral water, as no such disclaimer was there on the label. Therefore, even going by the stand of the accused persons till this stage, it becomes rather an admitted position, that there were no standards of “mineral water” on the day of sampling prescribed by the WHO, though has been claimed that some standards of “drinking water” were there as prescribed by the WHO. Evidently, no suggestion was ever put to any PW to the effect that the WHO had standards for “mineral water” at the relevant time, or that the label declarations were correct that pertained to “mineral water” under which it was sold/marketed. No such stand was taken by the accused persons even in their statements under section 313 CrPC.

24. However, the entire defence taken by the accused persons till this stage stood modified when they chose to examine DW-2. Contradicting the previous defence of the accused persons, DW-2 now claimed that at the appropriate time, there were standards of “mineral water” prescribed by the WHO, though not directly and only through the Codex Commission. He now relied upon certain literature and claimed that the Codex Commission and BIS prescribed the standards of “mineral water”.

25. Well, no reason could be seen for such shift of the defence version by the accused persons. Strangely, no defence that the WHO had standards prescribed for mineral water, directly or through Codex Commission, had been raised during the prosecution evidence and no suggestions to this effect was to any of the witness so as to enable them to admit or deny or rebut or explain. No such stand had been taken by the accused persons even in their statements under section 313CrPC. Thus, from this angle, the evidence of DW-2 has rather contradicted their own version which was to the effect that the WHO had standards for “drinking water” at the relevant time.

26. In my considered view, the words “confirms to WHO standards” would amount to two declarations, (i) that there were WHO standards in existence with respect to “mineral water” at the relevant time, and (ii) that the food article in question confirmed to such standards.

27. On this point, the stand of t he accused persons is that the PA in his report Ex. PW-1/G did not give any opinion about commission of the offence of ‘misbranding’ nor opined that any part of the declaration was ‘false’ or ‘misleading’ or ‘deceptive’. The opinion of the PA was only to the effect that “the manufacturer may be asked not to mention WHO’s name on the label”. It is therefore contended that there is no material with the prosecution to claim that the food article was misbranded or any declaration thereupon was false or misleading or deceptive.

28. In this regard, technically speaking, 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 also not give any benefit to any 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. Even the converse would be equally true. If the PA has opined something to be misbranded but the label declarations show something else, then the court would not be bound by his opinion. Similarly, in some cases, PA cannot be expected to give his opinion as to misbranding of the product, for instance, giving of wrong address by the manufacturer, which would be essentially a subject matter of investigation by the FI.

33. 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. In the present case, it is not understood how the Ld. Defence Counsel claimed that delay in filing the complaint for misbranding frustrated the right of the accused persons under section 13(2) PFA Act, that he proceeded to give statement to this effect on 16.03.1998 and withdrew his application filed under this provision. Any amount of delay would not have made any effect on the labels on the product.

34. Be that as it may, 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.

35. Therefore, even if the PA did not give any specific opinion as to misbranding of the food article, the FI was not bound to go only by his opinion and the prosecution was not subject to such opinion only. The FI was required to make out his own conclusion on the basis of the PA report as well as label declarations and also by the findings arrived at during the course of investigation, particularly when the PA report did not even state that the product was free from any defect/irregularity. It cannot be said that the FI was governed and was strictly bound by the opinion given by the PA for all offences whatsoever and could not have travelled beyond such opinion. Though he would ordinarily go by the analytical values and findings given by the PA upon chemical analysis of food article, yet the findings of the PA may not be complete in all respects particularly with respect to package and labelling standards which might require further investigation. Like in already mentioned instance above, a manufacturer might have mentioned his incorrect or incomplete particulars on the label in violation of PFA Rules, but to ascertain that, the FI needs to visit the address during investigation and the PA would not be able to give any opinion as to correctness of such address at the time of analysis of food article and giving his report. Thus, it would not be correct to say that the FI cannot travel beyond what was stated by the PA in his report. Therefore in this case, merely because the PA did not give any specific opinion for misbranding, that would not come in the way of the FI in launching the prosecution by coming to his independent conclusion as to if there was misbranding or not.

36. The record of the case also shows that an application was filed by the prosecution to prove a supplementary opinion given by the PA Dr. Satya Prakash (dated 24.05.1997 where he clarified that in view of letter dated 15.07.1997 from the Director General of Health Services, the WHO did not have any standard for mineral water and therefore, claim of the firm that it conforms to WHO standards was misleading). However, the said application was dismissed by the Court vide order dated 17.09.2009, on the ground that the letter on the basis of which the PA had given supplementary opinion, has already been proved by the complainant / LHA Sh. S.K. Nanda as Ex. PW-2/A.

37. The said letter bearing No. P-15013/1/95-PH (Food), as issued by the Office of the Directorate General of Health Services (DGHS) dated 15.07.1997 was written to the Director, PFA by Mrs. Debi Mukherjee, Assistant Director General (PFA), wherein she brought the attention of the Director PFA to the letters of the Directorate and also to the letters written to the Ministry of Health and Family Welfare, Government of India by the WHO (Mark-A and Mark-B herein) showing the concern of the WHO when it came to its notice that certain manufacturers were using the name of WHO on the bottles of drinking water being marketed by them. It was informed by the WHO that it did not endorse any commercial product and the manufacturers were using the WHO’s name for their sales promotion. The ministry was therefore requested to stop the use of WHO’s name on such products. Additionally, it was specifically mentioned in that letter Ex. PW-2/A that “It may please be noted that the WHO does not have any standard for mineral water till date”.

38. Ld. Defence Counsel for accused no. 4 to 7 has argued that the letters Mark-A and Mark-B have not been proved on record, particularly because they are only photocopies and that none from the WHO has been examined to establish the genuineness of these documents. It is submitted even these documents would not suggest that the WHO did not have any standards prescribed for “mineral water” and that they only pertain to use/misuse of the name of WHO on the label of the products.

39. Though the contention of Ld. Counsel is acceptable to the extent that the letters Mark-A and Mark-B do not specifically provide if WHO had or had not the standards prescribed for “drinking water” or “mineral water”, yet such arguments would fall in dim light in view of the letter Ex. PW-2/A. This letter has been proved in original, as was received in person by the PW-2 Sh. S.K. Nanda (complainant LHA) through official channel from the Director PFA. Vide this letter, the DGHS categorically stated that the WHO did not have any standard for “mineral water”. Such a certification coming from none other than the DGHS, which has all authority at its command to state so being the supreme body to prescribe the standards and methods for food analysis, cannot be ignored or taken lightly. When the DGHS itself certified that the WHO did not have any standards for “mineral water”, there was sufficient reason for the complainant to proceed on its basis and to launch prosecution under the relevant provisions.

40. It is pertinent to note that no dispute has been raised by the defence as to the genuineness of this document Ex. PW-2/A and the correctness of the contents therein. If the accused persons were having any issues over the certification given vide this letter with respect to non-existence of WHO standards, they had the option available to summon and examine the author of the letter or even any other competent person from DGHS to establish that WHO in fact had standards for mineral water prescribed, contrary to what has been stated in the letter Ex. PW-2/A. But no such attempt was made by the accused persons in this regard and not even a suggestion was given to any PW, including the PW-2 complainant, that the WHO had standards for “mineral water” on the day of sampling.

41. Therefore, going by the letter Ex. PW-2/A, the court would have to hold that there were no standards prescribed by the WHO with respect to “mineral water”. And if it had some standards prescribed for “drinking water”, as stated by the accused persons during the cross-examination of PW-1 and PW-2 also in their statements recorded under section 313 CrPC (though there is no evidence even to that effect because DW-2 never deposed anything about such standards of “drinking water”), then such standards would have no bearing on the present case which essentially pertains to “mineral water” as declared on the label and not “packaged drinking water”.

42. The defence has tried to prove its stand by the version of DW-2, who stated that there were standards of “mineral water” under the PFA Act at the relevant time and opined that the WHO had issued certain guidelines regarding the quality etc. of “mineral water” though the Codex Commission. He placed reliance upon the copy of the Statutes/Procedural Manual of the Codex Alimentarius Commission issued by Food and Agricultural Organization of the United Nations (Mark-D1), internet generated papers (Mark-D2) downloaded from the website of Codex Commission, and reference to such standards by the Bureau of Indian Standards (BIS) in Mark-D3 stated to be Specification for Packaged Natural Mineral Water.

43. At the outset, the arguments of Ld. Defence counsel by which he questioned the genuineness of the documents Mark-A and Mark-B relied upon by the prosecution, would also hold equally good even for the documents Mark-D1, Mark-D2 and Mark-D3 as relied upon by the defence. Thus, in the manner in which it is argued that Mark-A and Mark- B have not been proved in the absence of their originals and the authors not having been examined on record, the argument would equally apply to even Mark-D2 and Mark-D3, the originals of which have not been produced nor the authors examined. The court cannot rely upon the internet-generated copy of some papers when such material is not supported by any certificate under section 65-B of the Indian Evidence Act. Again, no question could be asked as to the correctness or validity of these documents from DW-2 who was not having any personal knowledge as to the contents of these documents and merely relied on them as available.

44. In any case, I have perused these documents. Mark-D1 nowhere provides any reference to “mineral water” or “drinking water” and only deals with statute and rules of procedure of Codex Commission. Mark-D2 does deal with packaged natural mineral water offered for sale, but it does not specify as to when the provisions with respect to such natural mineral water were inserted. Though at the bottom of the papers, it is mentioned “Adopted 1981. Amendment 2001. Revisions 1997,2008”, yet it is not clear if such adoption, amendment and revision pertains to the standards of “natural mineral water” or the entire “Codex Standard 108-1981” as mentioned at the top of each paper. As none has been examined from Codex Commission by the accused persons, it cannot be said that the codex standards provided for “mineral water” even on the day of sampling. Similarly, even the BIS specifications for “packaged natural mineral water” as per Mark-D3 do not point to the WHO standards or any WHO prescribed guidelines, though in the “Foreword”, there is reference to Codex Commission. A perusal of the said “Foreword” would show that those standards were published in 1992 and subsequently revised only in 1998 to align with the “revised Codex standard for natural mineral water”. Therefore, it would also show that it was revised in 1998 to align with the “revised” Codex standard but it does not show when was the Codex Standard revised and if the standards were there on the day of sampling.

45. In any case, it was for the accused persons to have led sufficient evidence to show that WHO standards for “mineral water” were there as on the day of commission of offence, that is, in the year 1996. There is nothing to show that such standards were there in the year 1996, for which the product in question claimed to be confirming to. There is no force in the stand of the Ld. Counsel that it was for the prosecution to lead evidence to show that there were no standards of mineral water at the relevant time. The prosecution has already discharged its burden by proving the letter Ex. PW-2/A written by the DGHS. The burden would now shift upon to the accused persons to show the basis and mineral on which they claimed their product to be confirming to the WHO standards.

46. The entire burden cannot be put on the prosecution for all kinds of misleading or false statements. If any particular fact is in the personal knowledge of the accused persons, the burden would be on them only to prove those facts. For example, if a manufacturer mentions his product to be “Product of America”, then it would not be reasonable to ask the prosecution to contact all the manufacturers of America and to gather evidence that the product was not of America. In such a case, it would be within the personal knowledge of the accused as to how he claimed his product to be a product of America and to disclose the manufacturer in America who prepared the product. Similarly in the present case, when the accused persons claimed their product to be confirming to the WHO standards, it was a burden to be discharged by them to establish that the WHO had such standards for “mineral water” at the relevant time and also that their product was conforming to such standards, particularly when the prosecution has already proved the letter of the DGHS certifying that the WHO did not have any such standards.

47. But apparently, the accused persons have failed to do so. The evidence of DW-2 nowhere conclusively and satisfactorily shows that WHO had any standards prescribed for “mineral water” on the day of sampling. In any case, there is no evidence on record to show that the food article in question was in fact confirming to any such standards. The PA in this case could not have analysed the food article on the standards allegedly prescribed by WHO because according to him, the WHO did not have any such standards prescribed.

48. The accused persons have failed to show that their product was confirming to any such WHO’s standards as declared by them on the label. No test results or lab reports have been placed on record by the accused persons to show if any prior analysis had been ever conducted by them before packing the product, to show that the food article was in compliance of any standard ever prescribed by the WHO. Therefore, even if it is assumed (though there is no sufficient evidence to this effect) that the WHO had some standards of “mineral water” in addition to and beyond what was prescribed by the Indian standards, the accused persons were required to further prove that their product was confirming to such standards as declared on the label. But no such evidence has been led by the accused persons and therefore, there would be clear violation of the Rules. From this angle, there is no evidence that the product in question was confirming to the WHO standards, as declared.

49. By mentioning on the label that the food article confirmed to the WHO standards, it is clear that the manufacturers tried to give extra value to their product and to convey that their product was better than similar products available in the market that conform to the standards prescribed by the Indian authorities. Such a declaration would be sufficient to mislead any customer and would be certainly deceptive with respect to its contents. Any customer reading this statement would be compelled to assume that the quality or standard of the product was something recognized internationally and beyond what was prescribed by the Indian standards. WHO is an international organization under the United Nations and if the product is stated to be in conformity of the standards of WHO, there was definitely an impression in the mind of the customers that the product was of better quality than that available in the market otherwise even if they conform to all the prescribed standards. Such statements are made by the manufacturers to enhance their reputation, goodwill and sales and to commercially exploit the consumers. When there were no standards prescribed by the WHO and there is nothing to show that the food article in question was conforming to any such standards, it would be clear that the label declarations that the product was conforming to WHO standards, were false as well as misleading or deceptive. Therefore, this would amount to violation of section 2(ix)(e) as well as (g) of PFA Act.

50. Once this fact has been established, the court has to see who all are to be held liable for the offence.

51. Accused persons have not disputed the fact that the accused no. 1 and 2 had produced the food article from accused no. 3 who was the distributor of accused no. 4 and that the food article was manufactured / packed by or on behalf of accused no. 4 company. Accused no. 1 and 2 supplied the details of the supplier even at the time of sampling by making necessary endorsement on Ex. PW-1/B. It was informed that the food article had been purchased from M/s. K.C. Enterprises (proprietorship concern of accused no. 3 herein, since expired) vide bill no. 210 dated 16.09.1996. The accused no. 3 (since expired) in his reply dated 14.03.1997 Ex. PW-1/H categorically admitted and confirmed that the food article had been supplied by him, though claimed that it was procured from accused no. 4 manufacturer vide bill Ex. PW-1/J. For that matter, even the accused no. 4 company vide their reply Ex. PW-1/P6 has accepted that food article had been supplied by them to accused no. 3 vide separate bills, including the bill Ex. PW-1/J dated 09.09.1996,.

52. When these facts are so admitted, the court does not find any reason why the accused no. 1 herein in his statement under section 313 CrPC claimed that he was not present at the time of sampling and that he had no knowledge about the sample proceedings. It is not understood how he claimed to have left the company long back or that he was not looking after the day to day business of the company. This is particularly in view of the fact that all the documents prepared at the spot including the vendor receipt Ex. PW-1/A, Notice Ex. PW-1/B and Panchnama Ex. PW-1/C bear his signatures, and also that the reply Ex. PW-1/K was written by him in the capacity of Director of accused no. 2 and claiming that he was the whole time Director in charge of and responsible for the day to day conduct of its business. In the same capacity, he sent further reply Ex. PW-1/Q and Ex. PW-1/P-2 to the FI. With such clear material on record, the genuineness and correctness of which has not been disputed by any of the accused persons, there was no justification for the accused no. 1 to have simply denied the things and claim that he was not present at the spot at the time of sampling.

53. Be that as it may, as far as the accused no. 1 and 2 are concerned, there is no doubt that they were the vendors from whom the food article was taken. However, they have relied upon the invoice, copy of which is Ex. PW-1/N to show that it was purchased by them from accused no. 3. As per Section 14 of the PFA Act, no manufacturer or distributor or dealer in any article of food shall sell such article to any vendor unless he also gives warranty in writing in the prescribed form about the nature and quality of such article to the vendor. In 1996, a proviso was inserted to section 14, stating that a bill, cash memorandum or invoice in respect of sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under that section. Rule 12A was inserted in 1968 in PFA Rules which prescribed that every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in bill, cash memorandum or a label, a warranty in Form VI- A. A perusal of the Form VI-A would show necessary contents to be prescribed on the warranty including the date of sale, nature / quality / brand of food article, the batch number or code number, quantity and price, together with a certification that the food mentioned in the invoice is warranted to be of the nature and quality which it purports to be. If any vendor is having such a warranty in the prescribed formate, he can take a valid defence and seek benefit under section 19(2) of PFA Act, which provides that if a vendor proves that he had purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it, then he shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded food.

54. In the present case, the original bill no. 210 dated 16.09.1996, copy of which is Ex. PW-1/N, has not been produced on record. However, the fact is, that this document has never been questioned or disputed by any side. DW-1 who was the Corporate Manager of accused no. 2 company since 1992, categorically stated that the food article in question, the bottles of which were sold to the PFA Department and which is the subject matter of this case, was purchased through the bill Ex. PW-1/M (sic: PW-1/N) dated 16.09.1996 and were stored and sold in the same condition. It is important to note that this witness was not cross-examined on any point either by the Ld. SPP for the complainant or by the Ld. Counsel for accused no. 4 to 7. In view of this position, even if the original bill is not on record, the court can suitably place reliance on the same by holding that they had purchased the food article from the accused no. 3 through this bill. Neither the complainant nor the other accused persons have questioned this fact and have rather accepted the same. If the complainant / FI / Prosecution had any dispute regarding the genuineness of this bill, then there was no question of implicating even the accused no. 3. But when accused no. 3 has been implicated on the basis of this bill, it can be said that even the prosecution accepted that the food article had been supplied through this bill.

55. Though it is also clear that the bill Ex. PW-1/N does not specifically contain the warranty in the form and language as prescribed in Form-VIA, yet the cumulative effect of the contents of this bill together with the contents of the label declaration on the food article would be sufficient to infer that a warranty in writing had been given. It was mentioned on the bill that the delivery person must sign for the genuinenity (sic) of the product. In accordance with this, the delivery person (appearing to be one Pankaj Kalra) had signed the bill. The label declaration on the food article stated that it was 100% Bacteria free, that it was mineral water and that it complied to certain prescribed standards of mineral water, which would show that there was a warranty in writing given by the supplier / distributor. As far as the accused no. 1 and 2 are concerned, they are entitled to be given the benefit of warranty under section 19(2) PFA Act. They had purchased the food article against a bill / cash memorandum containing a written warranty and had supplied the same in the same state to the FI as purchased by them.

56. Now coming to the accused no. 5 to 7, who claim that they had no role to play in the affairs of accused no. 4 company and that they were not in charge of or responsible to the company for conduct of its business. Ld. Counsel has relied upon the judgements titled as Shyam Sunder Bhartiya v. State [2009(1) JCC 518], Bureau of Indian Standards v. Pepsico India Holdings P. Ltd. [2008(155) DLT 588], and A. R. Mehta v. Delhi Administration [29(1986) DLT 284] to impress that in order to implicate any Director of a company as an accused, mere bald averment that he was a Director as such, would not be sufficient and a specific role has to be attributed to him to impute vicarious liability upon him.

57. Well, the law with respect to such position is well settled and well recognized. Section 17 of PFA Act that deals with an offence committed by a company, is pari materia to Section 141 of the NI Act. The court is well aware of the law laid down by the authoritative pronouncements by the Hon’ble Supreme Court of India in SMS Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89] and National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [167 (2010) DLT 143], wherein it has been laid down that it is necessary for the complainant to specifically aver in the complaint that at the time when the offence was committed, that the person accused was in charge of or responsible for the conduct of business of the company, that all the directors in a company cannot be deemed to be in charge of or responsible for the conduct of business of the company, that vicarious liability on the part of a person must be pleaded and proved and not inferred, and that 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.

58. The said position remains the law of land and is also applicable in cases under 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.

59. Relying upon the law so laid down, it is 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’.

60. However, the present case falls on different footing. Though it is clear that in the complaint, no separate role has been attributed to the any of the accused no. 5, 6 and 7, yet the complaint has to be read as a whole including the documents collected during the course of investigation.

61. During investigation, in response to the letter of the FI, accused no. 4 company (through its Director accused no. 6 herein) had sent a reply dated 13.02.1997, which is Ex. PW-1/P-4 to the FI. The FI had posed several questions to the company, in response to which the accused no. 4 company gave specific replies. Vide this letter, the accused no. 4 company confirmed that accused no. 3 was its distributor since 13.02.1996, that it had three Directors (accused no. 5, 6 and 7 herein), that one Sh. R.K. Jaiswal, its Administrative Officer was its representative and that the company had been incorporated for manufacture and sale of mineral water in addition to other products vide certificate of incorporation dated 10.05.1996. Additionally, it categorically,unequivocally and clearly stated that the three Directors as stated by it were looking after the affairs of the company.

62. In such a position and in view of such an admission, it cannot be said that the material on record does not show that accused no. 5, 6 and 7 were in charge of or responsible to the accused no. 4 company for conduct of its business affairs. It is to be understood that as far as the FI is concerned, he could not be expected to be aware of the internal affairs, understandings and arrangements of the company and to know as to which particular Director was made in charge of or responsible to the company with respect to the manufacturing or sale of the food article governed under the PFA Act at any particular point of time. The company never appointed any nominee under Section 17 of the PFA Act, for which necessary intimation would have gone to the LHA. Therefore, in addition to the company, where no person had been nominated, every person who at the time of commission of offence was in charge of and responsible to the company for conduct of its business, shall be deemed to be guilty, as per section 17(1)(a) of PFA Act.

63. The FI was not having means to ascertain as to who was responsible to the affairs of the company at the relevant time as such internal matters and arrangements are not in public domain, and the only way for him was to seek reply from the company itself to disclose the necessary facts which were within the personal knowledge of its officials only. He accordingly sought reply from the company which was duly given to him vide letter Ex. PW-1/P4. The contents of this letter have not been disputed by the accused persons nor it is claimed that the reply was not so given or was given under duress or threat or pressure. Once the accused persons have themselves given a reply to the FI informing that all the three Directors were looking after the affairs of the company, it does not lie in their mouth to now claim that they were not so responsible or in charge.

64. Accused no. 5, 6 and 7 have not tried to take the defence as available to them under the Proviso to Section 17(1) of PFA Act by proving that the offence was committed without their knowledge or that they exercised all due diligence to prevent the commission of such offence.

65. Again, there is no merit in the arguments of Ld. Defence Counsel that the reply Ex. PW-1/P-4 is hit by Section 30 of the Indian Evidence Act. Section 30 of the Indian Evidence Act is entirely on a different footing which pertains to a confession made by a person against a co- accused. But the facts stated in reply Ex. PW-1/P-4 in no manner amount to a confession of an offence. Therefore, section 30 of the Evidence Act would not be applicable to such a reply given by accused no. 6 on behalf of accused no. 4 company which would be sufficient to implicate all the accused persons, particularly when no contrary material has been brought on record at any stage of the trial to show that these persons were not so responsible for the affairs of the accused no. 4 company. Therefore, they have to be held vicariously liable for the offence committed by the company.

66. 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.

67. 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. 4 to 7 beyond the shadow of reasonable doubt. It has been proved that the accused no. 4 to 7 had manufactured and sold a misbranded food in violation of section 2(ix)(e) and (g) of PFA Act and have committed the offence punishable under section 7/16(1)(a) of PFA Act. Accused no. 1 and 2 shall however be protected by warranty as per section 19(2) PFA Act.

68. Having said so, the accused no. 4 to 7 are held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 1 and 2 stand acquitted of the charges. Bail Bond of accused no. 1 shall however remain in force for the next six months in terms of section 437-A, CrPC.

69. Let the matter be listed for arguments on sentence qua convicted accused no. 4 to 7.

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

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