PFA – Delhi District Court – Food Inspector Vs Tej Singh – PDW labelling defects case – March 23-2017

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

CC No. 114/08
Unique Case ID No. 02403R0925842008

Date of Institution:           21.07.2008
Date of reserving judgement:   08.03.2017
Date of pronouncement:         21.03.2017

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

            versus

Sh. Tej Singh
S/o. Late Sh. Lal Singh
R/o. 668, Bhola Nath Gali,
Ghonda, Delhi-110053                              … Accused

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 had sold misbranded food in violation of Section 2 (ix)(k) of PFA Act read with Rules 32(e), 32(f), 32(i) and 49(28) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act.

CC No. 114/08 Page 1 of 21

2. As per the complaint, on 14.05.2008, the food officials including Food Inspector (FI) Ranjeet Singh and Field Assistant (FA) Rakesh Kumar under the supervision of Local Health Authority (LHA)/SDM Sh. A. K., Sharma reached at the premises of M/s. Shiv Traders at B-995/1, Tej Ram Gali, North Ghonda, Delhi-110053, where the accused in the capacity of its vendor was found having stored “packaged drinking water” ready for sale for human consumption, lying in sealed plastic pouches of 250 ml each, bearing identical label declaration. The food officials lifted the sample the said food article consisting of 48 such sealed packets of packaged drinking 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 and he disclosed that the food article had been packed by him. One counterpart of the sample was deposited with the Public Analyst (PA) and remaining two counterparts were deposited with SDM/LHA. Vide report dated 03.06.2008, 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 49(28) of PFA Rules, because there was no batch number declared as per Rule 32(e), no date of packing/manufacturing as per Rule 32(f), the best before date was not as per Rule 32(i), and there was no BIS Mark as per Rule 49(28) 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. It was found that the accused was the proprietor of business concern who had packed the food article. Thus, after obtaining due sanction of the Director, PFA, the CC No. 114/08 Page 2 of 21 present complaint came to be filed against the accused for violation of the section 2(ix)(k) read with Rules 32(e), 32(f), 32(i) and 49(28) of PFA Rules, as punishable under Section 7/16(1)(a) of PFA Act for selling/manufacturing 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 was summoned vide order dated 21.07.2008. Based on the report of PA, notice of accusation under section 251 CrPC was framed against the accused vide order dated 06.08.2009 against the accused for commission of offence under Section 7/16(1)(a) of PFA Act, to which he pleaded not guilty and claimed trial.

4. At the trial, the prosecution examined three witnesses in support of its case. PW-1 Sh. A. K. Sharma (SDM/LHA), PW-2 FI Ranjeet Singh and PW-3 FA Rakesh Kumar were part of the team that had visited the premises of accused and lifted the sample of packaged drinking water lying in sealed plastic pouches of 250 ml each. These witnesses deposed about the sample proceedings conducted by them on 14.05.2008 and narrated the steps undertaken by them, including disclosing their identity, lifting 48 sealed plastic pouches of 250 ml each, dividing the same in three counterparts by putting 16 sealed packets as one counterpart in a clean and dry plastic jar and separately packing them. A sum of Rs. 48/- 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, Panchnama Ex. PW-1/C and raid report Ex. PW-1/C1 were prepared at the spot. Accused furnished his statement CC No. 114/08 Page 3 of 21 Ex. PW-1/D. On the next working day, one counterpart was deposited with the PA vide receipt Ex. PW-1/F and remaining two counterparts were deposited with SDM/LHA vide receipt Ex. PW-1/E. PA report Ex. PW- 1/G was received opining the sample to be misbranded. Further investigation was carried out during which letters Ex. PW-2/A and Ex. PW-2/B were sent by the FI to the vendor and STO. After completion of investigation, consent for prosecution Ex. PW-1/H was taken from the Director, PFA, after which the complaint Ex. PW-1/I was filed. Intimation letter Ex. PW-1/J was sent to the accused along with copy of PA report vide postal receipt Ex. PW-1/K. The witnesses were duly cross examined by the ld. Counsel for the accused, but only to a very limited extent as to the policy of the department that required a written warning to be issued to the offenders in case of first violation of Rule 32 of PFA Rules. The witnesses affirmed the existence of such policy that existed earlier.

5. Statement of the accused was recorded under section 313 CrPC on 21.04.2012 wherein he denied the allegations and pleaded innocence. He stated that no sample was lifted from him prior to the sample in question. He further stated that he had applied for the ISI mark but it was refused on the ground that there was no provision for issuing ISI mark for drinking water. He did not lead any evidence in defence despite opportunity.

6. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to prove its case against the accused beyond reasonable doubt, as all the witnesses have supported its case and CC No. 114/08 Page 4 of 21 there is no contradiction in their testimony. It is submitted that the accused has failed to rebut the findings as given by the PA.

7. On the other hand, Ld. Defence Counsel for the accused has contended that there was a policy of the department where a first time violator of Rule 32 should be given a warning in writing instead of launching prosecution. Ld. Counsel submits that though the policy stood withdrawn yet such withdrawal of policy was not as per law and the benefit of policy should be given to the accused as well.

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

9. In a criminal trial, the burden is on the 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.

10. In the present case, there is no dispute as to the steps undertaken by PWs in lifting the sample. All the PWs, who were a part of the team that had lifted the sample, have deposed in corroboration of each other. No material contradiction can be seen in their testimony that could go to the root of the matter so as to disbelieve them. All deposed about steps undertaken by them during sample proceedings. All deposed about compliance of rules while lifting the sample. No question was put to them CC No. 114/08 Page 5 of 21 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.

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

12. The accused has also not questioned the analytical values of the PA report Ex. PW-1/G on the basis of which the prosecution has been launched. It is nowhere the stand of the accused that the said report is CC No. 114/08 Page 6 of 21 wrong or any incorrect method had been applied by the PA, primarily because the said report is in his favour in as much as the sample was found conforming to the prescribed standards as to its nature, quality and substance.

13. 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.

14. 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 CC No. 114/08 Page 7 of 21 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.

15. 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.

16. 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 CC No. 114/08 Page 8 of 21 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.

17. 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.

18. 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 or even if the accused has not exercised his right under section 13(2) of PFA Act to get the sample analysed from the Central Food Laboratory, 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 CC No. 114/08 Page 9 of 21 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.

19. Moving ahead, there is no dispute to the position that the sealed plastic pouches as lifted from the spot were ‘prepackaged’ food on which the Rule 32 or 49 are applicable that deals with labelling. The sealed plastic pouches lifted from the premises of the accused fall within the definition of ‘prepackaged’ as defined in Rule 2(t) of PFA Rules as any packaged or made up in advance in a container, ready for offer to the consumer. ‘Package’ is also defined in section 2(x) of PFA Act to mean a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed. They were of specific and pre-determined quantity of 250 ml each in which the water was packed. They were duly sealed and not merely closed so as to make it impossible to untie or open them without breaking open the seal thereof. 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 pouch is a ‘container’ in which such a commodity is contained and packed. There is nothing for the court to conclude that such plastic pouch cannot be called as ‘container’ for any purpose whatsoever. Going by the literal meaning and interpretation, since these plastic pouches 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 CC No. 114/08 Page 10 of 21 plastic pouches are not to be treated as containers. The fact that there were all other label declarations on the pouches like name of packer, net contents, MRP of individual pouches, etc. would show that the individual pouches were meant for retail sale.

20. It is then not disputed that the accused was the manufacturer/packer of the food article. He made endorsement to this extent on Ex. PW-1/B at the time of sampling. It is not his case that such an endorsement was not made by him or was made under threat/pressure/force/duress. No such stand was taken at the trial or put to any PW or taken in his statement under section 313 CrPC. Even the label had a declaration that the food article was “Packed by Shiv Traders, Delhi” (it is seen that the complete address of the packer/manufacturer was not given on the label, in violation of Rule 32(c), but as there is no prosecution under this provision, the court is not going into it). It is nowhere his stand that he was not the manufacturer/packer or that some other person / firm / company was the manufacturer / packer.

21. This brings the court to determine if there was a violation of Rules 32(e), 32(f), 32(i) and 49(28) of PFA Rules. As per rule 32(e), a Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution., shall be given on the label. As per Rule 32(f), the date, month and year in which the commodity is manufactured, packed or pre- packed, shall be given on the label. As per Rule 32(i), the month and year in capital letters upto which the product is best for consumption, has to be CC No. 114/08 Page 11 of 21 mentioned in the prescribed manner. As per Rule 49(28), no person shall manufacture, sell or exhibit for sale packaged drinking water except under Bureau of Indian Standards Certification Mark.

22. In the case in hand, the label declarations had been reproduced by the FI on Form VI Ex. PW-1/B. The said document bears the signatures of the accused. It is nowhere the stand of the accused that the label declarations as reproduced by the FI were incomplete or incorrect. It is not his case that some more declarations were there which were omitted to be mentioned by the FI on the said document, whether deliberately or negligently.

23. Perusal of these label declarations would show that the name of the product (packaged drinking water) had been mentioned thereupon, the name of the packer (Shiv Traders, Delhi) had been mentioned, MRP (2.00) has been mentioned, and net contents (250 ml when packed) had been mentioned. It would also be seen that a column “Batch Number” had been mentioned on the label but no such batch number had been given. Similarly, a column has been given as “Best Before One Month” but it has not been specified if the said one month was to be calculated from the date of packaging or manufacturing, or date of sale, or date of opening of the pouch. At the same time, it is seen that no date of manufacturing / packaging at all has been mentioned on the label. In such a position, even the best before date becomes irrelevant in the absence of any date of manufacturing / packaging. Similarly, there is no ISI mark on the label.

CC No. 114/08 Page 12 of 21

24. In view of this position, it is clear that there has been a clear violation of Rules 32(e), 32(f) and 32(d) of the PFA Act.

25. As far as this Rule 32(e) is concerned, Ld. Defence Counsel has relied upon the judgement titled as Dwarka Nath v. MCD [1972 FAC 1 (SC)], where the Hon’ble Supreme Court of India struck down the said provision being beyond the rule making power under section 23(1) of the PFA Act. I have gone through the said judgement as well as the applicable rules. However, in my considered view, this judgement would not apply to the present case.

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

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

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

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

CC No. 114/08 Page 13 of 21

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

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

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

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

CC No. 114/08 Page 14 of 21

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

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

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

CC No. 114/08 Page 15 of 21

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

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

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

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

CC No. 114/08 Page 16 of 21

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

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

37. It is necessary to be noticed that as per section 14 of PFA Act, every manufacturer or distributor or dealer as to sell an article of food by giving a warranty in writing in the prescribed form. As per section 19(2) of PFA Act, a vendor can seek the benefit of warranty if he is able to prove that he CC No. 114/08 Page 17 of 21 had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Rule 12-A of PFA Rules provide that every manufacturer, distributor or dealer selling the article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form-VI-A. Therefore, to get warranty under section 19(2) of PFA Act, every such vendor or supplier has to establish that he was having a written warranty conforming to Rule 12-A and Form VI-A as prescribed. This becomes necessary so as to identify the product as lifted by the food officials. If a vendor has been purchasing a particular food article from the distributor/supplier continuously in routine course for a long time, it is only through the batch number or code number mentioned on the article that it could be established as to by what bill/invoice the said product was purchased. In the absence of any such batch number or code number having been mentioned on the bills and the products, it would be ordinarily difficult for the food officials to identify if the product lifted for sampling is the same product as was sold to the vendor vide any particular bill or any bill prior thereto or any bill of some other supplier.

38. At this stage, it is also to be seen that the Hon’ble Supreme Court of India had held Rule 32(e) as it existed at that time, ultra vires. Thus, upon passing of the said judgement, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language at its exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. There is force in the stand of Ld.

CC No. 114/08 Page 18 of 21

SPP for the complainant that Rule 32(e) which had been declared ultra vires, has now been completely changed and the modified Rule 32(e) as it existed when the sample was lifted has never been declared unconstitutional by any court of law. The said provision inserted / substituted by G.S.R. 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.

39. In view of this position, judgement in Dwarka Nath v. MCD would not help the accused. For that matter, even the order dated 27.08.2015 passed by the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/2011] would not be applicable, because that order also pertained to a sample lifted on 23.08.1993 (copy of the pleadings to this effect has been shown by the Ld. SPP). Since Rule 32(e) stood amended and substituted in 2006 /2007, the said Rule would be applicable to the present case where the sample was lifted on 14.05.2008. The said rule has not been declared unconstitutional or ultra virus and is therefore binding.

40. Similarly, the accused has not disputed the fact that there was no ISI certification mark on the label. At the trial, PW-3 in his cross examination accepted that the accused had told the FI that he had applied for obtaining the ISI mark but in his statement under section 313 CrPC, accused informed that his application had been rejected on the ground that there was no provision for issuing the ISI mark for packaged drinking water. However, no such order of rejection has been placed or prove d on record. It is unlikely that the application was rejected on such a ground, primarily CC No. 114/08 Page 19 of 21 in view of existence of Rule 49(28) of the PFA Act which necessarily required that the ISI mark to be obtained before sale of packaged drinking water. Such a stand, as taken in his statement under section 313 CrPC, has remained bald averment without any evidentiary proof. Thus, in the absence of ISI mark, there is violation of Rule 49(24) of PFA Rules.

41. Now coming to the policy of the department to issue a warning for first time violation. There is no dispute and rather an admitted position 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 above cited judgement 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 on account of such policy that already stood withdrawn. There is no merit in the stand of the accused that no warning was issued to him for first time violation of that the withdrawal of policy was not proper.

42. There is no force in the stand of the accused that the product was otherwise as per standards. In all cases of misbranding under section 2(ix), the product is always as per standards. If the product is not as per standards, it would fall under the definition of adulteration, as per section CC No. 114/08 Page 20 of 21 2(ia) of PFA Act. But to establish misbranding, it is not necessary that the product is also to be in violation of standards. Both are separate offences and punishable separately.

43. 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 beyond the shadow of reasonable doubt. It has been proved that the accused had manufactured and sold for sale a misbranded food in violation of section 2(ix)(k) of PFA Act read with Rules 32(e), 32(f), 32(i) and 49(28) of PFA Rules, and has committed the offence punishable under section 7/16(1)(a) of PFA Act.

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

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

Announced in the open court this 21st day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL-0355

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