IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 211/05 Unique Case ID No. 02403R0706932005 Date of Institution: 30.09.2005 Date of reserving judgement: 30.06.2016 Date of pronouncement: 03.08.2016 In re: Delhi Administration / Food Inspector Department of [ACT], Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 Complainant versus Smt. [ENTITY] W/o. Sh. [ENTITY] R/o. A-7, Milap Nagar, Uttam Nagar, Delhi-110059 Accused JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 ([ACT]), alleging that the accused has violated the provisions of the [ACT] and Rules. The accused is stated to be the proprietor of M/s. Gupta Industries, where one Sh. [ENTITY] was the vendor, from where the food article, that is, 'Mustard Oil' was lifted for sampling.
2. As per the complaint, on 05.03.2005, the food officials consisting of Food Inspector (FI) [ENTITY] and Field Assistant (FA) [ENTITY] under the supervision of Local Health Authority (LHA)/SDM Sh. [ENTITY] reached along with their staff at the premises of M/s. Gupta Indusrties at A-7, Milap Nagar, New Delhi-110059, where the vendor Sh. [ENTITY] was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'Mustard Oil' from the said vendor, to which he agreed. The sample was then lifted as per procedure prescribed under the [ACT] and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 31.03.2005, the PA found the sample to be misbranded being in violation of [SECTION] of [ACT]. However, the Mustard Oil was found conforming to the standards. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. The investigation revealed that the vendor Sh. [ENTITY] was the first offender of [SECTION] and therefore, as per the policy of the department existing at that time, no prosecution was launched against him and only a warning was issued to him. It was also found that accused [ENTITY] was the sole proprietor of M/s. Gupta Industries to whom a previous warning had also been given for violation of [SECTION] by the LHA vide file no. SW/SDM/LHA/538/2003/[ACT] dated 21.09.2004. Since she was not the first offender for violation of [SECTION], she was not protected by the departmental policy. After completion of investigation, sanction under [SECTION] of the [ACT] was thus obtained from the Director [ACT]. The present complaint was filed in the court on 30.05.2009 against accused [ENTITY] alleging violation of [SECTION] as punishable under [SECTION]) of [ACT] for violation of [SECTION] (e), (f) and
(i) of [ACT].
3. 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 30.09.2005.
4. Based on the PA report, notice of accusation under [SECTION] [ACT] was framed against the accused vide order dated 08.08.2006 for commission of the offence under [SECTION]) of [ACT] being in violation of [SECTION] of [ACT], to which she pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined three witnesses in support of its case. PW-1 FI [ENTITY], PW-2 [ENTITY] and PW-3 Sh. [ENTITY] (the SDM / LHA) were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the steps undertaken by them for lifting the sample and also proved the necessary documents including the vendor's receipt Ex. PW-1/A, notice in Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, PA receipt Ex. PW-1/D and LHA receipt Ex. PW-1/E. PA report Ex. PW-1/F was received which opined the sample to be misbranded on the ground that the label was without declaration of batch number, date of manufacturing / packing and the best before date. Based on the report, investigation was carried out by PW-1 who wrote letter Ex. PW-1/G to the STO. It transpired that M/s. Gupta Industries was the proprietorship concern of accused [ENTITY] who had been given earlier warning Ex. PW-1/H. After completion of investigation, consent Ex. PW-1/I was obtained from the then Director, [ACT] and thereafter, complaint Ex. PW-1/J was filed in the court. Intimation letter Ex. PW-1/K along with copy of PA report were sent to the accused through post. During cross-examination, the witnesses denied that the accused was a household lady or that her husband used to run the business or that the samples were not taken properly or that no previous warning was issued to her or that the Mustard Oil was not for retail sale or that the sample was not ready for sale. They however accepted that accused was not present at the spot at the time of sampling.
6. Subsequent to filing of an application under [SECTION] [ACT], the prosecution examined FSO Sh. [ENTITY] who produced the office file containing the warning letter Ex. PW-1/H issued previously to the accused [ENTITY] vide dispatch register Ex. PW-4/A. During cross- examination, he stated that he had sent the letter through registered post.
7. Statement of the accused under [SECTION] [ACT] was recorded on 01.08.2013 and subsequently on 24.02.2015 wherein she expressed her ignorance about the sampling proceedings, stating that she was not present at the spot. She questioned the PA Report and stated that a distinguished parafix (sic: prefix) number "TF No. 002" was given on the bottles. She however did not lead any evidence in defence.
8. In these circumstances, Ld. SPP for the complainant has argued that the prosecution has been able to prove its case beyond reasonable doubt against the accused as she has not been able to rebut the findings of the PA report. It is submitted that even the accused has not denied the factum of misbranding, though has claimed that she had not received previous warning. Ld. SPP has argued that the stand of the accused fails because the previous warning and also the factum of its being sent to the accused have been duly established through PW-4.
9. On the other hand, ld. Defence counsel has argued that the prosecution has not been able to establish guilt of the accused. It is contented that the sample was not lifted properly. It is then submitted that the material on record is not sufficient to establish that any previous warning was ever issued or served upon the accused so as to deny her the benefit of departmental policy wherein a warning was only to be issued for first violation of [SECTION] instead of launching prosecution.
10. I have heard the arguments as advanced by both the sides and have carefully perused the material available on record.
11. It is pertinent to note that the present is a case of misbranding and not adulteration as defined in [ACT]. To establish a case of misbranding, no chemical analysis of the product is required as it is a matter of physical examination of the contents of the label on the package of the food. However, whenever a sample is lifted by the FI, the same is sent to the PA to ascertain if the same conforms to the requirements of [ACT] and Rules. When the product is with the PA, it is required to be chemically analysed to determine if its composition is as per the standards prescribed under the rules and also physical analysis to determine if the sample is conforming to all other standards prescribed under [ACT] including labelling and packaging. Since the product in this case was found to be conforming to standards on all the parameters prescribed under the [ACT] rules upon chemical analysis, technically speaking, the court need not go into the PA report to ascertain if the product was misbranded or not. Misbranding can be established only by going through the label declarations without being influenced by the opinion given by the PA. Since no chemical analysis is required to ascertain misbranding, there would no purpose to send the sample to any other laboratory including the Central Food Laboratory (CFL) under [SECTION] of [ACT]. Any further analysis would not have made any difference in the contents of the label on the product, though the CFL opinion would have relevance with respect to the chemical analysis of the product, in which case the CFL result would have been final and conclusive in terms of [SECTION] of [ACT].
12. In the present case, PW1 deposed that the intimation letter had been sent to the accused through post. Apparently, no postal receipt in original has been produced on record, though it is to be seen that this fact has not been denied by the accused. It is nowhere the stand of the accused that no intimation letter was received by her or that her right to send the other counterpart of the sample under [SECTION] of [ACT] stood frustrated in any manner. No such suggestion was given to any PW during cross examination at the trial to this effect nor any such stand was taken even by the accused in her statement under [SECTION] [ACT]. Even otherwise, such right would have become relevant had it been a case of adulteration in the food article. Any amount of delay in filing the complaint or even non service of intimation letter would not have frustrated the right of the accused under [SECTION] of [ACT] as there would have been no changes in the contents of the label which did not require any chemical analysis to be done by any scientific analyst.
13. The contents on the label on the food products had been reproduced by the FI on Form-VI Ex. PW-1/B. The said document was prepared at the spot and it bears the signatures of the vendor [ENTITY]. It is nowhere the case of the accused that all the relevent contents were not reproduced on this document by the FI or that the contents were incompletely or wrongly reproduced by him. It is not the stand of the accused that some other important or relevant contents were also there on the label which the FI failed to mention in Ex. PW-1/B. No such stand has been taken by the accused at any stage of the trial including the examination of the witnesses or her statement under [SECTION] [ACT].
14. The PA had termed the sample as misbranded on three counts viz. batch number, date of manufacturing / packing and best before date. The court shall consider them individually.
15. The contention of the accused is that the marking "T.F. no.002" was the batch number. In this regard, it is seen that as per [SECTION], as it existed on the date of sampling prior to amendment in 2006, "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" had to be mentioned on the label. By such a standard, the words "T.F. No.002" as mentioned on the label cannot be conclusively said not to be a batch number or lot number or code number. Though the accused has failed to explain as to what did she mean by "T.F. No." as appearing on the product, but it was for the prosecution to exclude the possibility of this prefix to be called as a distinctive batch number or lot number or code number so as to prosecute the accused. In the absence of any other material, such a prefix certainly can be called as "any distinguishing prefix" as appearing in [SECTION] as it existed at that time. There is no evidence and explanation from the side of the prosecution to the effect that the number "002" as preceded by a distinguishing prefix "T.F. No." was not the batch number or code number or lot number. On this point, the benefit should be given to the accused.
16. The accused then claims that the manufacturing date has been mentioned as "Feb 2005" on the label of the product. Again, Form-VI Ex. PW-1/B clearly shows that the manufacturing date had been given on the label as "Mfd- Feb 2005". As per [SECTION], as it existed at the relevant time before amendment, "the month and year in which the commodity is manufactured or pre-packed" was to be mentioned. In such a case, when the date of manufacturing has been clearing mentioned, it is not understood as to how the sample of product was opined to be misbranded by the PA for want of the date of manufacturing. The date of manufacturing was mentioned on the label and therefore, no violation of [SECTION] would be made out.
17. However, it is apparent that the best before date has not been mentioned on the label of the food article in question. Neither any such date can be seen on Ex. PW-1/B nor it is the stand of the accused that such a date was there on the label. As per [SECTION], as it existed at that time, specific language had been prescribed to mention the best before date which had to be in capital letters only. As already stated, it is nowhere the case of the accused that best before date had been mentioned on the label but not reproduced by the FI on Ex. PW-1/B. On this point, the product is clearly in violation of [SECTION] and qualifies to be called as misbranded food article as defined in [SECTION] of [ACT].
18. On this, the stand of the accused is that there was a policy of the department to issue a warning for first time violation and that no such warning was issued to her previously. There is no dispute and rather an admitted position that there was policy of the department not to prosecute the first time violation of [SECTION] and to give only a warning to the offender. In the judgment titled as [PRECEDENT], it has been held that such policy bearing no.F6(228)/85/ENF./[ACT] dated 23.09.1985 was in operation and during this period and no prosecution could have been launched against a first time violator of [SECTION]. This 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 in operation. The present case was also covered under that policy as it pertained to violation of [SECTION] only. Precisely for this reason, even the FI in his complaint has stated that no prosecution was launched against the vendor [ENTITY] and he was only given a warning. In such a case, the questions now to be decided is if the accused was the proprietor of the said business concern and if previous warning had been issued to her.
19. The FI has relied upon the letter Ex. PW-1/G issued by him to the Sales Tax Officer, Ward No. 61 seeking information if the establishment M/s. Gupta Industries was registered in the ward and if so, the name of its proprietor / partners. To this, the Sales Tax Officer reported that the accused Smt. [ENTITY], W/o. Sh. [ENTITY] was the proprietor of M/s. Gupta Industries with effect from 27.07.1985. A perusal of the said reply would show that the handwriting of the concerned officer is not very clear and the court is not able to make out if Smt. [ENTITY] was mentioned to be 'partner' or 'proprietor' of M/s. Gupta Industries.
However, this fact can be well ascertained because had she been a partner, the concerned officer would have also given the details of other partners as well. PW-1 also stated that the investigation had revealed her to be the proprietor of the said business concern. For that matter, it is nowhere the stand of the accused that she was a partner and not the proprietor of the establishment. Rather her stand has been that she was a household lady and not looking after the business or that her husband used to run the business.
20. By taking such as stand, the accused has not specifically and categorically denied her being the proprietor of the business concern M/s. Gupta Industries. Irrespective of the fact if the business was being looked after by her husband or by vendor [ENTITY], she cannot escape from the fact that the business concern was in her name and also registered with the STO in her capacity as a proprietor. It is not a case of partnership or a company where a partner or a Director may be a sleeping partner or a sleeping Director who may not be responsible to look after the affairs of the firm / company. A proprietorship concern is not a separate legal entity distinct from its proprietor. A proprietor might have employed or taken services or any other person to look after the business but the prime responsibility in the eyes of law would be that of the proprietor only to ensure compliance of the rules. From such angle, the accused being the proprietor was responsible for any violation of [ACT]. She cannot escape from her liability as such proprietor just on the pretext that she was only a household lady and was not looking after the business. This is particularly when the PW-1 deposed that both the accused and her husband used to run the business but the accused was the proprietor, and further that he had seen her working in the company (sic). The suggestions given to PWs by the accused on this point have been categorically denied and no evidence has been brought on record by her to show that she had no role to play. No documents or business accounts have been shown by the accused in her defence to establish that all the day to day workings were managed by some person other than her. [SECTION] of [ACT] provides punishment of selling misbranded product by any person "himself or by any other person on his behalf". Therefore, in the absence of any material to the contrary and in view of the evidence of PWs, it can be said that the accused was the proprietor of the said business concern who was selling the product through any other person on her behalf.
21. To establish the factum of issuance of warning earlier, the prosecution has relied upon the testimony of PW-4. He produced the record Ex. PW-1/H and Ex. PW-4/A, in original, to show that the warning letter had been dispatched to the accused Smt. [ENTITY] through registered post.
22. Ex. PW-4/A clearly shows that complete address of the accused had been mentioned as "Mrs. [ENTITY], W/o. Sh. [ENTITY], R/o. A-7, Milap Nagar, Uttam Nagar, New Delhi - 59" clearly and visibly. This document bears the stamp of the concerned post office which shows that the letter was sent on 22.09.2004. On its basis, it is established that such a warning letter had been sent to the accused. There is no force in the stand of the accused that no AD card had come back bearing her signatures or that the concerned official who had actually deposited the letter with the post office has not been examined. There is a presumption under [SECTION] of the [ACT] with respect to common course of natural events, human conduct and public business. It is not required from the prosecution to have examined all the persons through whom the letter might have passed to establish that the letter had been sent. PW-4 produced the original office file maintained in ordinary course of office business and there is nothing for the court to disbelieve the same. Nothing contrary to rebut the said presumption has been brought on record by the defence. It is therefore clear that the warning letter had been dispatched to the accused.
23. Once it is so established, the presumption under [SECTION] of the [ACT] would come in operation in favour of the prosecution. It is nowhere the case of the accused that the letter had been sent at an incorrect address or that she was staying at some other address or that some other person was staying at the said address. Her address at which the letter was so sent is the same at which the present complaint was filed and upon which she was served with the courts summons. Therefore, when the letter was sent to the accused through registered post at her correct and proper address, it is presumed to be served in ordinary course. The burden would now be on the accused to establish that the letter was not served upon her despite being sent at correct address. However, no such material has been brought on record except by giving bald suggestions. No attempt was made by her to call and examine the records of the postal authorities to ascertain as to if the letter remained unserved or if it was served on someone else if not the accused. In the absence of any material to the contrary, it can be safely said that the accused has not been able to rebut the said presumption of due service of the previous warning letter.
24. The judgement relied upon by the accused titled as Gapi Ram v. State of Haryana [1987 (1) [ACT] cases 153] would not be applicable to the present case as it is clear that the letter was sent to the accused at her complete and correct address. Ex. PW-4/A mentions full address of the accused with her name and it cannot be said that the evidence does not establish that the letter was sent at the correct address of the accused so as to apply the cited judgement.
25. The accused has also cited judgement titled as [PRECEDENT] to claim that no service can be said to have taken place in the absence of the AD card. Well, there is nothing to show if any AD card was attached to the registered envelope sent to the accused. There is nothing in this judgement to rule out the application of [SECTION] of the [ACT]. To draw presumption under the said [SECTION], there is no requirement of sending the letter only through Registered Post Acknowledgement Due. The presumption would arise even if a letter is sent through registered post without any AD card. Further, the judgement was an appeal against acquittal where there were several other grounds on the basis of which the accused was acquitted and it cannot be said that without AD card having returned, there can be no proof of service. No benefit can be drawn by the accused even through this judgement.
26. No other ground has been raised by the accused at the trial or argued at the time of final arguments.
27. In view of this discussion, the court is of the view that the prosecution has been able to establish its case beyond reasonable doubt against the accused to the effect that she was selling through the vendor a misbranded food article in violation of [SECTION] of [ACT] read with [SECTION] of [ACT], as punishable under [SECTION]) of [ACT].
28. Having said so, the accused is held guilty and is convicted for the offence punishable under [SECTION] of [ACT].
29. The matter be listed for arguments on sentence.
Announced in the open court this 03nd day of August 2016 [ENTITY]