PFA – HC MP @ Jabalpur – Keshav Wadhwani Vs State – Adulterated Wheat Flour – sending reference sample to CFL case –

               HIGH COURT OF MADHYA PRADESH
                PRINCIPAL SEAT AT JABALPUR

               SINGLE BENCH : RAJEEV KUMAR DUBEY, J

                      M.Cr.C.No.19425/2016
                         Keshav Wadhwani
                              Vs.
                 The State of Madhya Pradesh & Others

                        =================
For the applicant         :    Shri Shobhitaditya, advocate.


For the respondent        :    Shri BP.Pandey, Government Advocate.
                 ==================================

                              ORDER

Reserved on 09/01/2018 Passed on 16/01/2018 This petition has been filed under Section 482 of the Cr.P.C. for quashment of the proceedings of Criminal Case No.8607/2011 pending before Special Magistrate/Judicial Magistrate, I Class, Bhopal.

Brief facts of the case which are relevant for just disposal of this petition are that on 11/05/2011 respondent / Food Inspector inspected the premises of Pind Baluchi Restaurant situated at 3rd Floor, D.B. Mall, Arera Hills, Bhopal and took the sample of wheat flour (Atta) from respondent No.2 Saurabh Bharadwaj, the then Manager of the Restaurant and sent it for analysis to Public Analyst. Report of Public Analyst was received on 25/06/2011, according to which that wheat flour (Atta) was found to be adulterated. It was also found that the wheat flour (Atta) was bought by respondent No.2 from M/s Amit Agency and applicant was proprietor of that agency. So Food Inspector filed complaint against the applicant and other co-accused persons after getting written consent from Dy. Director Food and Drugs administration Bhopal. On that complaint learned trial Court took the cognizance against the applicant and other co-accused persons for the offence punishable under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ((hereinafter referred to as the ‘Act’) and issued warrant against them for securing their presence and fixed the case on 28/11/2011 for appearance of applicants and other co-accused. Applicant appeared before the trial Court on that date and on 18/01/2012 applicant filed an application under section 13(2) of the Act for sending second part of the sample of wheat flour (Atta) to Central Food Laboratory for analysis. Learned trial Court allowed that application and sent the second part of the sample to Central Food Laboratory for analysis, who gave report mentioning therein that the sample could not be analyzed as it had decomposed, therefore, the third part of the sample be sent for analysis. On that, learned trial Court ordered to send the third part of the sample for analysis and case is pending at that stage.

Learned counsel for the applicant submitted that the respondent No.1 took sample on 11/05/2011 and the report of Public Analysis of that sample was received on 16/06/2011. While respondent no.1 filed complaint against the applicant on 07/10/2011 after five months of taking sample. Applicant appeared before the trial Court on 28/11/2011 and applied for analysis of second part of wheat flour (Atta) under Section 13(2) of the Act on 18/01/12. Learned trial Court allowed that application vide order dated 26/03/2012 and directed the Dy. Director, Food & Drug Administration Bhopal to produce second part of the sample, but the Dy. Director did not produce the second part of the sample inspite of several reminders and finally the second part of that sample was produced before the learned trial Court on 10/08/2016 i.e. after 53 months of the collection of that sample, while the provision of Section 13(2-A) of the Act specifies that the second part of sample should be produced within a period of five days from the requisition by the learned trial Court. Since, the Dy. Director, Food & Drug Administration Bhopal did not produce the sample before trial Court within stipulated time due to which the second part of the sample could not be sent for analysis to the Central Food Laboratory up to 10/08/2016 and it decomposed, the applicant has been deprived of his right to get the second part of the sample analyzed from the Central Food Testing Laboratory. So proceeding of criminal case No.8607/2011 be quashed. He further submitted that the Director of Central Food Laboratory was requested to forward third part of the sample along with revalidated demand draft of the applicant without any authority. Learned trial Court without appreciating the fact wrongly ordered to send the third part of sample to the Central Food Laboratory. Hence this order of the trial Court be also quashed. In this regard learned counsel placed reliance on a judgment of Hon’ble Apex Court in the case of Girishbhai Dahyabhai Shah Vs. C.C. Jani & Another, (2009) 15 SCC 64 and two judgments of this Court passed in the case of Suresh Narayanan & Others Vs. State of M.P., 2003(3)MPLJ 60 and in the case of Suresh Narain Vs. Food Inspector & Another, 2003(2)MPLJ 120.

Learned counsel for the State opposed the prayer and submitted that the third part of the sample is yet to be analyzed by the Central Food Laboratory without which it can not be said that the accused has been denied of his right to get the second part of the sample analyzed by the Central Food Testing Laboratory. The applicant deliberately filled this petition with intent to prolong the case and also got stay, due to which the proceedings of the case in the Trial Court has been stopped. so only on the ground of delay in producing second part of sample the proceedings of the Criminal Case No.8607/2011 cannot be quashed.

This Court has gone through the record and arguments advanced by the learned counsel for the parties.

Although, it appears from the record that the applicant appeared before the trial Court on 18/11/2011 and on 18/01/2012 filed an application for reanalysis of second part of the alleged sample by Central Food Laboratory and learned trial Court allowed the application vide order dated 26/03/2012, but the second part of the sample was produced before the trial Court by the Authority on 10/08/2016 i.e. after 53 months and the sample got decomposed as is mentioned in the CFL report, but it also appears from the record that the trial Court directed to send the third part of sample for analysis, so without the third part of the sample being analyzed it can not be said that the sample would not have remained fit for analysis by the time the accused filed application under section 13 (2) of the Act.

The facts of the cases cited by the learned counsel for the applicant do not match with the present case. In the case of Girishbhai Dahyabhai Shah (supra) notice of Section of 13(2) of the Act was served on the applicant after 15 months of taking the sample. In the case of Suresh Narain and others (supra) also prosecution filed complaint before the trial Court after 19 months from the date of taking the sample and delay is also not explained and on that ground this Court after appreciating all the evidence quashed the proceedings after finding that the sample of milk got deteriorated within six months and in third case Suresh Narain (supra) the remaining part of the sample (II & III) were found to be decomposed while in this case third part of sample is yet to be analysed. So the aforesaid judgments do not help the applicant much.

Apex court in the case of Charanjilal v. State of Punjab, reported in (1984) 1 SCC 329 = AIR 1984 SC 80 held, the word “damaged” in the collocation of the words “lost or damaged” appearing in the proviso to sub-section (2-C) of Section 13 in relation to the part of the sample sent by the court to the Director of the Central Food Laboratory must, in the context, mean “damaged due to any cause, including decomposition”. The part of the sample sent by the court to the Director of the Central Food Laboratory under the proviso to sub-section (2-C) of Section 13 may be either damaged due to the container not being properly sealed or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word “damaged” in the collocation of the words “lost or damaged” occurring in sub-section (2) of Section 11 and in the proviso to sub-section (2-C) of Section 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis.

This court also in the case of Munnalal Vs State of M.P., 2001 FAJ 164 relying on the above mentioned judgement of the Apex Court held that the Court has power under proviso to S. 13(2-C) of the Prevention of Food Adulteration Act, 1954 to send third part of sample of milk, if any, for analysis, if the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged. The word ‘damaged’ used in the proviso aforesaid would include decomposition. So contention of learned counsel of the applicant that trial court wrongly ordered to send the third part of sample to the Central Food Laboratory does not appear to be correct.

The question whether right of the accused has been denied or he has been deprived of his defence is not a matter of presumption or assumption and there must be material to show that the sample would not have remained fit for analysis by the time the accused is served in the case and to show that decomposition is traceable to lapse of time occurring on account of latches of the prosecution, either in filing complaint or otherwise and not due to other reasons. While in this case the third part of the sample could not be sent to the CFL so far due to applicant’s fault. So, it can not be said that the sample would not have remained fit for analysis by the time the accused filed application under section 13 (2) of the Act and to show that decomposition is traceable due to lapse of time occurring on account of latches of the prosecution either in filing complaint or otherwise and not due to other reasons.

Accordingly, petition has no merit and is hereby dismissed.

(Rajeev Kumar Dubey)

JUDGE 

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Man found guilty of mixing colour in Jalebi after 22 years

SHAHJAHANPUR:
A shopkeeper was sentenced to one-year imprisonment on Tuesday after he was found guilty of mixing synthetic colour in jalebi 22 years ago.
Food security team had taken samples of jalebi from his shop in Lakhimpur Kheri on December 26, 1995. He was found him guilty of mixing synthetic colour in the sweet which were not suitable for human consumption. The court of additional judicial magistrate in Mohammadi also imposed a fine of Rs 3,000 on the shopkeeper. His imprisonment will be extended by another 15 days, if he failed to pay the fine.
District food safety officer, Amar Singh Verma, said, “The samples of jalebi were taken in 1995 from the shop of Ram Gopal in Mohammdi. After the samples had failed in lab test in Lucknow, a case was registered against him in June 1996 in the court of judicial magistrate of Mohammdi. He was booked under section 16 of Prevention of Food Adulteration Act.”
The court has directed Mohammdi police to arrest the accused and send him to district jail. However, Mohammadi police station is yet to receive a copy of the court order.
Station officer of Mohammdi police station, D K Singh, said, “I have heard about the judgment but I am yet to receive a copy of the court order, directing us to arrest the accused.

PFA – HC Bombay – CA – Ruchi Soya Industries et al Vs State – Mustard Oil – Not standard

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                                     

          CRIMINAL APPLICATION NO.2019 OF 2006


1)    Ashutosh Bhailal Rao
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai - 400 021.

2)    P.S.Santhanakrishnan
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai 400 021.

3)    Kailash Mahadeo Shahra
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai 400 021.

4)    Dinesh Mahadeo Shahra
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai 400 021.

5)    P.D.Nagar
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai 400 021.


6)    Shrikrishna Pralhad Joshi
      Director of M/s.Ruchi Soya
      Industries Ltd., having office
      at 408, Tulsiani Chambers,
      Nariman Point, Mumbai 400 021.                   ..Applicants

                       VERSUS

.     The State of Maharashtra
      at the instance of Rajaram
      Vaman Joshi, Food Inspector,
      Food and Drug Administration,
      M.S.Station Road, Dhule.                         ..Respondent

                                 ...
               Advocate for Applicants : Mr.K.H.Parekh
                APP for Respondent     : Mr.K.S.Patil
                                 ...


                       CORAM :  PRAKASH D.NAIK, J.

                                                  DATE : 11.12.2017 JUDGMENT:-

1) This is an application under Section 482 of the Code of Criminal Procedure seeking quashing and setting aside the prosecution initiated by the respondent against the applicants. The criminal proceedings, which are sought to be challenged are pending in the Court of Judicial Magistrate First Class at Navapur, Dist.Nandurbar. The process was issued by the Court for offences under (3) Cri.Appln.2019 of 2006 Sections 7(i) r/w Section 2(ia) (a), 2(ia) (m) punishable under Sections 16 and 17 of the Prevention of Food Adulteration Act, 1954 (For the sake of brevity, hereinafter referred as ‘the Act’).

2) The applicants are the Directors of the company M/s.Ruchi Soya Industries Ltd. The said company is engaged in the business of manufacturing of edible oils. The company is duly registered under the Companies Act.

3) The brief facts as alleged in the complaint are as follows:-

(a) The complaint was filed by the Food Inspector, Food and Drug Administration, Dhule. The applicants are impleaded as accused Nos.5 to 10 in the complaint being Directors of M/s.Ruchi Soyal Industries Ltd.

The accused No.1 and 2 are Partners of M/s.Mahaveer Sons, Navapur. Accused No.3 is M/s.Mahaveer Sons situated at Navapur, Dist.Nandurbar. Accused No.4 is proprietor of M/s.Shri Balaji Agency having its (4) Cri.Appln.2019 of 2006 office at Jyoti Commercial Complex, Nandurbar. Accused No.11 is a Firm namely M/s.Ruchi Soya Industries Limited and accused Nos.12, 13 and 14 are nominees of accused No.11. Accused No.15 is a Firm having office at Sri Ganganagar, Rajasthan.

(b) Accused No.1, who is the partner of M/s.Mahaveer Sons was present at the time of sampling as a vendor. Accused No.3 is a Firm dealing with food articles. Accused Nos.1 and 2 are the partners of accused No.3. Accused No.4 is a Firm, who had supplied Mustard Oil (Mandap Brand) to the Firm of Accused No.3. Accused No.4 has purchased the said Mustard Oil (Mandap Brand) from accused No.11 vide Invoice dated 19.6.2004 and accused No.13 is a Firm, who has marketed said Mustard Oil (Mandap Brand) and accused No.12 is the nominee of accused No.13. Accused No.15 is the manufacturing Firm, who had manufactured and supplied Mustard Oil (Mandap Brand) to the Firm of accused No.11 vide Invoice dated 16.5.2004. Accused (5) Cri.Appln.2019 of 2006 No.14 is the nominee of accused No.15.

(c) On 16.9.2004, the complainant along with independent witness and the Assistant Commissioner visited the shop premises of M/s.Mahaveer Sons, Light Bazar, Navapur, Dist.Nandurbar. Accused No.1 was present in the premises as a vendor and partner, who is managing the business of Firm and selling food article namely pure Mustard Oil (Mandap Brand) Ruchis in 500ml pack bottle. There was stock of 12 bottles of Mustard Oil, which was having label as manufactured by Ruchi Soya Industries Ltd., and marketed by Ruchi Soya Industrial Ltd. Food Inspector, Mr.Joshi disclosed his identity and intention of drawing the samples for testing and analysis to accused No.1. Mr.Joshi demanded and purchased three packs and sealed bottles of 500ml Mustard Oil (Mandap Brand) for testing and analysis from accused No.1. The sample of food article was also drawn. A notice in the Form VI was given to(6) Cri.Appln.2019 of 2006 accused No.1 intimating that samples are drawn for testing and analysis. It is signed by accused No.1, Pancha and Food Inspector. Notice under Section 14-Awas also served on accused No.1 to disclose the source of product.

(d) The sealed bottles of Mustard Oil were taken for analysis. After completing the requisite procedure, the Panchnama was prepared at the spot, which is signed by the complainant, Pancha and accused No.1.

(e) On 17.9.2004, one part of the sample was forwarded alongwith Memorandum in Form VII in a sealed packet to the Public Analyst, State Public Health Laboratory, Pune, by registered Post. The complainant also forwarded separately the copy of Form VII and specimen impression of seal used to seal the sample to the Public Analyst on 17.9.2004. The complainant sent remaining two sealed parts of the sample alongwith two copies of Memorandum in Form VII (7) Cri.Appln.2019 of 2006 in a sealed packet to the Local (Health) Authority and Assistant Commissioner, Food and Drug Administration (FDA), Dhule, by hand delivery along with forwarding letter. The complainant also sent two copies of specimen impression of seal used to seal the sample in the sealed packet alongwith forwarding letter to the Local (Health) Authority and Assistant Commissioner, FDA, Dhule.

(f) On 31.12.2004, the complainant received the Public Analyst’s report of Mustard oil from State Public Health Laboratory, Pune through Local (Health) Authority. The Public Analyst opined that the sample does not conform to the standards of Mustard oil as per the Prevention of Food Adulteration Rules.

(g) The accused No.1 informed the office by letter dated 28.1.2005 that the Mustard oil is purchased by them the Firm of accused No.4 i.e. M/s.Shri Balaji Agency having its office at Jyoti Commercial Complex, (8) Cri.Appln.2019 of 2006 Nandurbar, vide Invoice dated 30.8.2004. Hence, the notice u/s 11(i)(a) was sent to the Firm of accused No.4 on 1.2.2005. The complainant collected the information of Firm of vendor from Licensing Authority and also from Assistant Commissioner, FDA, Dhule, and also collected information of other concerned Firms.

(h) The complainant submitted all relevant documents to Local (Health) Authority and Assistant Commissioner, FDA, Dhule, for forwarding the same to Joint Commissioner (Nashik Division), FDA, Nashik, for obtaining consent u/s 20 of the Act to prosecute the accused. The documents were forwarded on 15.12.2005. On 27.3.2006, the complainant received the consent order dated 23.3.2006 from the Joint Commissioner, FDA, Nashik, for launching prosecution against the accused.

(i) The Mustard oil is a food article within the (9) Cri.Appln.2019 of 2006 meaning of Section 2(v) of the Act. The accused Nos.1 to 3 sold the adulterated food article from shop to the complainant on 16.9.2004 and thereby accused have committed the offences u/s 7(i) r/w 2(ia)(a), and 2(ia)(m) punishable u/s 16 and 17 of the Act. The accused Nos.4 to 11 were charged for the same offences for supplying and distributing adulterated Mustard oil to the Firm of accused No.3. Accused Nos.12 to 15 were charged for the offences for manufacturing, selling, distributing and marketing of the adulterated Mustard oil. The complaint was filed on 21.4.2006.

4) The learned Magistrate issued the process for the aforesaid offences against the accused. The applicants were original accused Nos.5 to 10 have invoked inherent powers of this Court to assail the said prosecution initiated by the respondent.


5)    The learned counsel for the applicants submits that 

the learned Magistrate has committed an error in issuing the process and taking cognizance of the complaint. It is submitted that the applicants were impleaded as accused being Directors of M/s.Ruchi Soya Industries. It is submitted that there is no mention of applicants or their status in the entire complaint, except mentioning in the cause title of the complaint. There is no allegation of any overt act against the applicants. There are no requisite averments or evidence that the applicants are Incharge and responsible for the business of the Company. In the absence of any averments or evidence in that regard, no vicarious liability can be fastened against the applicants in accordance with Section 17 of the Act. It is further submitted that the Company has nominated the nominees for their registered Office and their Factory, who are also impleaded as accused nos.12 to 15 in the complaint. In the circumstances, the prosecution of the applicants was not warranted. It is further submitted that there is gross violation of Section 13(2) of the said Act. On receipt ( 11 ) Cri.Appln.2019 of 2006 of the report of Public Analyst to the effect that food article is adulterated, the Local (Health) Authority after the institution of prosecution shall forward a copy of report of analysis to the accused persons informing such persons that if they desire, they can make an application to the Court within a period of 10 days from the receipt of report for forwarding the samples to Central Food Laboratory for reanalysis. The sample was drawn on 16.9.2004 and was analysed on 20.11.2004 and the complaint was filed on 21.4.2006. It is further submitted that the shelf life of the Mustard oil in question was 12 months from the date of packing, which is apparent from the recital of label. The date of packing is April 2004. The best before date is 12 months from packing. Thus, the shelf life of the product was upto April 2005. However, the complaint was filed in April 2006 i.e. after almost 12 months after expiry of shelf life. Thus, in view of delay in filing the complaint, the right granted to the accused vide Section 13(2) of the Act stands nullified. It is therefore, submitted ( 12 ) Cri.Appln.2019 of 2006 that the prosecution of the applicants for the said offences is not tenable in law and the same deserves to be quashed and set aside.

6) The learned counsel placed reliance on the decision of the Supreme Court in the case of Pepsico India Holdings Private Limited Vs. Food Inspector and Another [(2011) 1 Supreme Court Cases 176] and another decision of this Court dated 3.8.2017 delivered in Criminal Application Nos.5503 of 2004 and 5505 of 2004 in the case of Bharat Puri and others Vs. The State of Maharashtra and Another.

7) Learned APP opposed the reliefs. It is submitted that the submissions advanced by the applicants cannot be considered at this stage.

8) On perusal of the documents, I find that there is merit in the submissions advanced by the learned Advocate for the applicants. It would be an abuse of process of ( 13 ) Cri.Appln.2019 of 2006 law to continue such prosecution against the applicants. The applicants are impleaded in the complaint as accused Nos.5 to 10 apparently being Directors of M/s.Ruchi Soya Industries Ltd., Mankeshwar Warehousing Co., 44/2,3,4 Uruli Devachi, Tal.Haveli, Dist.Pune. The title of the complaint provides the designations of the applicants. Apart from that, there is averment in the complaint with regards to the vicarious liability of the applicants. It is no where mentioned that the applicants are Incharge and responsible for the said Company, which is also impleaded as accused No.11 in the complaint. The prosecution has invoked Section 17 of the Act. However, to substantiate the vicarious liability embodied vide Section 17 of the Act, neither there is averment in the complaint nor there is any material to fasten the liability of the applicants. The proceedings are therefore not tenable in law against the applicants.

9) It is further noted that the valuable right granted to the accused to challenge the report of Public Analyst ( 14 ) Cri.Appln.2019 of 2006 in accordance with Section 13(2) of the Act, has been nullified and on that ground also, the proceedings are deserves to be quashed and set aside. It can be seen that the sample was drawn on 16.9.2004. The report of Public Analyst was received as stated in the complaint on 31.12.2004. In the said report, it was opined that the sample does not conform to the standards of Mustard oil as per the Prevention of Food Adulteration Rules. The complainant, however, submitted the documents to the Local (Health) Authority and Assistant Commissioner, FDA, Dhule, for forwarding the same to the Joint Commissioner, FDA, Nashik Division, Nashik, for obtaining necessary consent u/s 20 on 15.12.2005. The consent was thereafter received on 27.3.2006 and the complaint was filed on 21.4.2006. There was no prompt action on the part of the authorities to initiate the prosecution against the accused. The Mustard oil has shelf life of 12 months from the date of packing, which was clear from the recital of label. The date of packing was in April 2004, and therefore, the product was best for use before 12 ( 15 ) Cri.Appln.2019 of 2006 months from the date of packing. Considering the aforesaid aspect, the shelf life of the product was upto April 2005. However, the complaint was filed after 12 months i.e. after the expiry of shelf life. Hence, in view of delay in filing the complaint, the accused has lost the right to re-analysis the sample in accordance with Section 13(2) of the Act. The complaint was filed after the expiry of the shelf life and therefore, the question of forwarding the sample for re-analysis does not arise. The violation of the right u/s 13(2) of the Act vitiates the prosecution.

10) In the case of Pepsico India Holdings Private Limited (supra), the Supreme Court has considered the aforesaid aspect and it was held that the Directors can be prosecuted on account of vicarious liability provided that there is material to show that they are responsible to the Company for its day-to-day business. It was also observed that it is mandatory to the Central Government to prescribe Laboratories u/s 23(1-A) for testing food ( 16 ) Cri.Appln.2019 of 2006 samples/adulterants and to prescribe methods of analysis.

11) In the decision of this Court in the case of Bharat Puri and Others (supra) reference was made to the several decisions and it was observed that in the complaint against the Company and it’s Directors, the complainant has to indicate in the complaint whether the Directors are Incharge or responsible to the Company for day-to-day management or whether they are responsible to the Company for conduct of its business.

12) In the present case, the complaint was absolutely silent about vicarious liability of the applicants. For both the reasons stated herein above, the proceedings will have to be quashed and set aside and this is a fit case to exercise inherent powers u/s 482 of Code of Criminal Procedure to do so. Hence, I pass the following Order:-

                                     
                                     ORDER

(I) Criminal Application No.2019 of 2006 is allowed.

(II) The impugned proceedings in Regular Criminal Case No.37 of 2006 pending in the Court of Judicial Magistrate First Class, Navapur, Dist.Nandurbar are quashed and set aside. (III) Rule is made absolute.

(IV) Application stands disposed of.

[PRAKASH D.NAIK, J.]

FSSA -HC MP Indore Bench – Priyanka Vs State of MP – Substandard Soyabean Oil case

             HIGH COURT OF MADHYA PRADESH,
                  BENCH AT INDORE
                    Cr.R. No.2901/2017
             (Priyank Goyal V/s. State of M.P.)
                Indore, Dt.21.12.2017
        Shri Vinayak Bhalchandani, learned counsel for the petitioner.

        Smt. Mamta Shandilya, leaned Govt. Advocate for the respondent/State.

With consent of the parties heard finally.

Being aggrieved by the judgment and order dated 12.09.2017 passed by the Food Safety Appellate Tribunal, District Dhar in Criminal Appeal No.42/2017, whereby the learned Tribunal maintained the conviction of the appellant under Section 51 read with Section 26(1)(2)(ii) of Food Safety and Standards Act, 2006 (for short “FSSA”) and reduced the fine imposed by adjudicating officer from Rs.2,00,000/- to Rs.1,00,000/-, the petitioner has filed the present petition.

2. According to the facts of the case, on 30.01.2015 at about 11:30 a.m. Food Inspector took sample of 2 liters Soya bean oil from 180 liters oil kept loose in a drum for retail sale at the grocery shop of the petitioner after following due process. The sample was found sub-standard by the State Food Laboratory, Bhopal. Report of the state lab was confirmed by the Food laboratories, Mysore. After obtaining sanction, complaint was filed before the Adjudicating Officer.

3. Learned Adjudicating Officer charged the appellant for HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.R. No.2901/2017 (Priyank Goyal V/s. State of M.P.) the offence under Section 51 read with Section 26(1)(2)(ii) of Food Safety and Standards Act, 2006. The petitioner admitted the charge. Adjudicating Officer imposed penalty of Rs.2,00,000/-. The order was challenged before the Food Safety Appellate Tribunal. After considering the admission of the appellant and all the facts and circumstances of the case, learned Tribunal maintained the conviction of the appellant but reduced the fine of Rs.2,00,000/- to Rs.1,00,000/-. Against the order of the Tribunal the petitioner has come before this court.

4. The petitioner has preferred the present petition on the grounds that the order of the learned Appellate Tribunal is contrary to the law and facts. The learned Tribunal has not appreciated the evidence in right perspective and it has not followed the principle of natural justice. This was not proved by the prosecution that the sample was sent to the Public Analyst, Bhopal as per rules. The procedure prescribed by law has not been followed while taking sample or sending it for analysis. Any adulteration or existence of any harmful substance was not found in the sample. The petitioner is a retail seller of oil. He purchased the oil from whole seller after taking all precautions. The learned Tribunal has committed error in not extending benefit of Section 80 of the FSSA, 2006. Learned Tribunal has not considered general principles of punishment mentioned in Section 49 of the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.R. No.2901/2017 (Priyank Goyal V/s. State of M.P.)FSSA. The petitioner comes under the category of small trader under Section 50 of the Act, therefore, he cannot be punished for the fine of more than Rs.25,000/-. On these grounds, the petitioner has prayed for quashment of the order passed by the learned Tribunal.

5. The prosecution has opposed the prayer of the petitioner and specifically pointed out that the sample was found sub-standard by the State as well as the Central food laboratory and the petitioner has admitted his guilt, therefore, he cannot challenge merits of the case at this stage. Learned public prosecutor has prayed for dismissal of the petition.

6. It is contended by the learned counsel for the petitioner that the petitioner runs a small grocery shop in a small town of Dhamtari having population of only 2000. His annual turnover is only Rs.4,00,000/-, which is much less than Rs.12,00,000/, the limit determined for a small businessman for registration under the new Act, 2006. The Appellate Tribunal itself has estimated his total profit from the sale to the tune of Rs.12,480/- per month. He is not found guilty for selling of any food article, which is adulterated or harmful to the human health but held guilty for selling of sub-standard Soya bean oil.

7. Keeping in view all these facts and the general provisions relating to penalty mentioned in Section 49 of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr.R. No.2901/2017 (Priyank Goyal V/s. State of M.P.) FSSA, 2006, In view of the fact that the petitioner is a small trader, who runs business in a small town having population not more than 2,000, nothing is there to show possibility of repetition of the offence, the petitioner is a retailer and has purchased the oil from wholesaler, the penalty imposed by the learned Appellate Tribunal appears to be disproportionate to the offence found proved against the appellant. Looking to the facts and circumstances of the case, It appears that imposition of fine of Rs. 50,000/- would serve the ends of justice, therefore, after due consideration, while confirming the conviction of the petitioner under Section 51 read with Section 26(1)(2)(ii) of Food Safety and Standards Act, 2006 the sentence imposed by the learned Appellate Tribunal is reduced to Rs.50,000/-. With the aforesaid modification, the petition stands allowed and disposed off.

8. In view of the order IA No.20001/2017 rendered infructuous and dismissed as rendered infructuous.

(Virender Singh) Judge 

Fast food joints selling Chicken that are high on drugs and genetically treated : PIL

PFA – ACMM New Delhi – Food Inspector Vs Narendrakumar – Mustard Oil case – Dec -12-2017

                  IN THE COURT OF SAMAR VISHAL,
      Additional Chief Metropolitan Magistrate - II (New Delhi),
                  Patiala House Courts, New Delhi

CC No. 39467/2016

Date of Institution        :         01.11.2006
Date of reserving judgment :         12.12.2017
Date of pronouncement      :         12.12.2017


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. Narender Kumar
     s/o Sh. Daulat Ram
     Lala General Store
     Bank Colony Road
     Plot no. 98 Mandoli
     Delhi-93


A-2) Sh. Gauri Shanker Goel
     M/s Haryana Oil traders
     Shamshan Gali Vill. Prahladpur
     Delhi-110039
     [Since PO]                            ... Accused persons.



JUDGEMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that CC No. 39467/2016 , DA vs Narender Kumar etc. the accused persons have violated the provisions of the PFA Act and Rules.

2. As per the complaint, on 29.12.05 at about 6.00 pm, Food Inspector (herein after referred as FI) Ms Usha Kiran alongwith Field Assistant (herein after referred as FA) Sh Manohar Lal under the supervision of Local Health Authority (LHA)/SDM Sh. Dayanand visited the premises of M/s Lala General Store, Bank Colony Road Plot no. 98 Mandoli Delhi-93, where the accused No. 1 Sh. Narender Kumar was found conducting the above mentioned shop, having stored various food articles including Mustard Oil of Nandi Brand for sale for human consumption, which was lying in sealed tin of 15 litre capacity, bearing label declaration. The FI disclosed his identity and expressed his intention to purchase a sample of Cow’s milk from the vendor to which he agreed. Thereafter FI purchased 750 grams of Mustard Oil, from the accused. The sample was taken after mixing the contents of the tin by shaking the tin and thereafter sample was taken in a clean and dry plastic jug and again mixed in all directions with the help of a clean and dry stainless steel spoon. The Food Inspector divided the sample commodity into three equal parts then and there by putting into three clean and dry bottles. Each sample bottle was separately packed, fastened up and sealed according to PEA Act and Rules. The vendor’s signature was obtained on the LHA slip and wrapper of the sample bottles. Notice was given to accused No. 1 Narender Kumar and the price of sample was also given to him vide Vendor’s receipt dated 29.12.05. Panchnama was prepared at the CC No. 39467/2016 DA vs Narender Kumar etc. spot. All the documents prepared by the FI, were signed by the FI herself, and also by vendor/accused No.1 Sh. Narender Kumar and the witness Sh. Manohar Lal FA. Before starting sample proceedings efforts were made to join public witnesses but when none came forward. Accordingly Sh. Manohar Lal FA was joined as a witness. The tin after emptying the contents was taken into possession.

3. One counter part of the sample bearing LHA code No. 53/LHA/11775 was sent to Public Analyst, Delhi in intact condition and two counter parts were deposited with LHA in intact condition. Public Analyst analysed the sample and found that the sample does not conform to standards because B R and Saponification value exceeds the prescribed maximum limit of 60.5 and 177 respectively and BTT is less than the prescribed minimum limit if 23 Deg C. It also contains admixture of Rice Bran Oil.

4. It is further the case of the complainant that accused No. 1 Narender Kumar was the Vendor-cum-Proprietor of Lala General Store, Bank Colony Road Plot no. 98 Mandoli Delhi-93 at the time of sampling and as such he is in-charge and responsible to day to day conduct of business of the said shop. The Mustard Oil in question was supplied to the accused No. 1 by M/s Haryana Oil traders Shamshan Gali Vill. Prahaladpur Delhi-39 and accused No. 2 Gauri Shanker Goel was the Proprietor of the Manufacturing Company as on the date of sampling and he is liable for prosecution.

5. Thereafter, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the Court on 01.11.2006 alleging violation of Section 2(ia) (a) (b)

(c) and (m) and Section 2(ix) (b) (e) (f) (g) (k) of PFA Act and Rule 37 and Rule 44 (e) of PFA Rules 1955 punishable under section 16 of the PFA Act 1954 against the accused persons.

6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 01.11.2006. The accused persons appeared before the Court and exercised their option of analysing the counter part through CFL under section 13 (2) of the PFA Act. Based on the CFL report as well as evidence led in pre charge evidence, charges was framed against the accused No. 1 on 03.11.2009 for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Section 2(ia)

(a) and (m) of PFA Act, to which accused person pleaded not guilty and claimed trial.

7. At the trial, the prosecution examined three witness in support of its case. PW-1 Ms. Usha Kiran, PW-3 Sh Manohar Lal FA were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh Daya Nand. All these witnesses deposed about the proceedings conducted by them on 29.12.2005, corroborated each other in material particulars and narrated the steps undertaken by them during the sample proceedings, including Mustard Oil, expressing intention to CC No. 39467/2016 DA vs Narender Kumar etc. purchase sample for analysis, lifting the sample of Mustard Oil, dividing it in three parts and obtaining signatures of vendor and witness. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice in Form VI Ex.PW1/B, Panchnama Ex. PW-1/C and Raid Report Ex.PW1/D, deposition of one counterpart vide PA’s receipt Ex.PW1/E, deposition of remaining two counterparts vide LHA receipt Ex.PW1/F, receipt of PA Report Ex.PW1/G. During the investigation PW-1 sent letter Ex.PW1/H to STO ward No. 74 and received its reply at portion X to X. PW-1 also sent letter Ex.PW1/H1 to DHO-MCD and received its reply at portion X to X stating that no Health Licence has been issued to Lala General Store. She also sent letter Ex.PW1/H2 to vendor and received two replies Ex.PW1/H3 and Ex.PW1/H4. PW-1 also sent letter Ex.PW1/I to M/s Haryana Oil Traders and received its reply Ex.PW1/I-1 wherein the said firm denied the sale of sample commodity to accused no. 1. PW-1 also sent letter Ex.PW1/J to STO Ward No. 63 and received its reply on the back portion from X to X. PW-1 also sent letter Ex.PW1/J-1 to DHO-MCD and received its reply at portion X to X stating that no Health Licence has been issued to M/s Haryana Oil Traders. PW-1 also sent to letter Ex.PW1/K to Officer In- charge Department of Excise and Taxation and received its reply Ex.PW1/K1. Thereafter, PW-1 put the entire file before SDM/LHA who forwarded the same to the then Director PFA for obtaining his Consent and after obtaining the Consent for prosecution Ex.PW1/L of accused persons the present complaint Ex.PW1/M was filed before the Court. Thereafter PW-1 sent intimation letter Ex.PW1/N to the accused persons through postal registration CC No. 39467/2016  DA vs Narender Kumar etc. receipt Ex.PW1/O. These witnesses were duly cross-examined by Ld. Defence Counsel.

8. Statement of the accused No.1 under section 313 CrPC was recorded on 04.05.2017 wherein he denied the allegations and pleaded innocence. Thereafter, the accused choses not to lead defence evidence and vide order dated 11.08.2017 defence evidence was closed and the matter was fixed for final argument.

9. I have heard arguments on behalf of state and defence and perused the records of the case.

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

11. It is to be understood that the present is a case of adulteration on the ground that the test for rancidity was found positive which has to be negative in the CFL Report. Further the BR reading was 62 which has to be not more than 60.5, the saponification value was 186.37 which has to be not more than 177 and the acid value was 12.17 which has to be not more than 6.

12. In the present case, there is a report of Public Analyst and thereafter a report of CFL. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the CC No. 39467/2016  DA vs Narender Kumar etc. report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

14. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other CC No. 39467/2016  DA vs Narender Kumar etc. purposes it is superseded.”

15. The whole case of prosecution is now based on the CFL report.

The CFL report has been assailed by the defence on the ground that the sample was analysed by CFL after expiry of the product in question i.e. mustard oil and the defence has relied upon of Hon’ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors 1999 (2) FAC399 to argue that the mustered oil was packed in September 2005 and it was best before six months from the date of packing. The sample was analysed by the CFL from 21.12.2006 to 22.12.2006 i.e. after a period of 10 months of the expiry of the product and therefore its analysis by CFL has no value.

16. I have gone through the judgement citied by the defence. In this case, the sample in question was of an insecticide. The manufacturing date of insecticides was March 1994 and its expiry date was February 1995. By the time the accused was summoned to appear in the Court on April 06, 1995. they had lost their right of getting the samples to be analysed from Central Insecticide Laboratory. The Hon’ble Court held that by the time, the respondents were asked to appear before the Court, the expiry date of insecticide was already over and sending of sample to the Central Insecticide Laboratory at that stage would be of no consequence. In the words of Hon’ble Court :-

“Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other CC No. 39467/2016 DA vs Narender Kumar etc. mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940;Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.

It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence.”

17. Now in the present case, the sample of mustard oil was lifted on 29.12.2005. Form VI prepared on the spot shows that the date of CC No. 39467/2016  DA vs Narender Kumar etc. packing of mustard oil was September 2005 and it was best before six months from the date of packing. The sample was analysed in CFL in December 2006 and therefore it is clear that the sample was analysed by the CFL after the period of its expiry and therefore convicting the accused on the basis of analysis of such a sample, will not be proper. Therefore, placing reliance upon the aforesaid judgement of Hon’ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors, Hindustan Liver Ltd Vs State of Punjab2011 (1) FAC 192, a benefit of doubt is given to the accused regarding the adulteration of the sample, which is the subject matter of the present case.

18. In view of the aforesaid discussion the accused are acquitted from the charges in the present case.

Announced in the open court
this 12th day of December 2017
                                                SAMAR VISHAL
                                            ACMM-II (New Delhi), PHC


Simple imprisonment and fine for violating food regulations

Panaji (Goa):
The Judicial Magistrate First Class (JMFC) has sentenced a food business operator to undergo simple imprisonment up to the rising of the court and slapped a fine of Rs 3000 for selling dry snack despite being declared as unsafe food product. 
The order was passed based on a report of the Directorate of Food & Drugs Administration at Bambolim Chandas Vaishnav, Proprietor of M/s Balaji Farsan in Valpoi for manufacturing and selling food article ‘Mix Shev.’ The accused indulged in the violation although the food product was declared as ‘Unsafe’ due to the presence of non- permitted colour and had also exceeded the maximum prescribed limit. Senior Food Safety Officer Rajiv Korde had collected the food sample to test in the department’s laboratory, and the report had ascertained the violation. 
The JMFC accordingly pronounced the sentence wherein if the accused fails to pay the fine, in default he will to undergo simple imprisonment for one month for this offence punishable under Section 59(i) of The Food Safety & Standards Act, 2006.