WP.(Crl.).No.1511/2009 Page 1 of 47 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP.(Crl.).No.1511/2009 % Reserved on: 8th February, 2010 Date of Decision: 19th February, 2010 # YOGENDER SINGH & ORS. ..... Petitioners ! Through: Mr. Kamal Sawhney, Adv. versus $ STATE & ANOTHER ..... Respondents ^ Through: Mr. Akshay Bipin, ASC * CORAM: HON'BLE MR. JUSTICE V.K.JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : V.K. JAIN, J. 1. This is a writ petition under Articles 226 & 227 of the Constitution of India for quashing the FIR registered against the petitioners under Section 7 of the Essential Commodities Act, 1955. 2. On 25th of April, 2008, on receipt of complaint regarding supply of sub-standard/inferior quality of food articles to Fair Price Shops from Food Corporation of India Godown, Maya WP.(Crl.).No.1511/2009 Page 2 of 47 Puri, the officials of Food & Supplies Department of Government of NCT of Delhi carried out an inspection of those godowns. Wheat loaded in two trucks positioned in FCI Godown, which had been released for delivery to PDS outlets, appeared to be of inferior quality. Samples were, therefore drawn from both the truck and were sealed. The officials of Delhi State Civil Supplies Corporation, which is the agency that collects foodgrains from FCI godowns and transports it to Fair Price Shops all over Delhi, also drew samples from Unit Nos.4 & 10 of FCI godowns. All the samples were sealed. Though petitioner No.1 Yogender Singh, who was the Depot Manager of FCI Godown, Mayapuri, claimed that the wheat lying in Unit No.10-B and in open area in front of Unit No.4 were dumped stocks, not meant for issue for public distribution, he could not produce any document in support of his claim. The samples were duly sealed with seal of CFS and sent to PFA Laboratory for testing. As per the Test Report, none of the samples confirmed to the standard norms as extraneous matters, including mineral and damaged grains exceeded prescribed maximum limit, and further samples were also found to be insect-infested and fungus- WP.(Crl.).No.1511/2009 Page 3 of 47 infested. The case of the prosecution is that petitioner No.1 Yogender Singh was the Depot Manager and Quality Controller of FCI Godown, Mayapuri. The petitioner No.2, Ramesh Chander Chopra is stated to be the Manager(Quality Control) of Unit No.10 & 10B at Mayapur, whereas the petitioner No.3, Fakir Chand is stated to the Manager(Quality Control) of Unit No.4 of the aforesaid Godown. The chargesheet against the petitioners has already been filed during the pendency of thee proceedings. The petitioners are seeking quashing of criminal proceedings instituted against them primarily on the following grounds: (i) The specimen seal impressions were not sent to the Public analyst, as required by Rule 18 of the Prevention of Food Adulteration Rules, 1955, hereinafter called the ‗Rules‘ and, therefore, the Public Analyst could not compare the seals on the polythene bags in which the samples were kept with the specimen impressions; (ii) The polythene bags used for keeping the samples were not appropriate container and consequently there was violation of Rule 14 of the Rules; WP.(Crl.).No.1511/2009 Page 4 of 47 (iii) The chargesheet having being filed on 11th November, 2009, the right of the petitioner to get the second sample sent to the Central Food Laboratory, in terms of Section 13(2) of the Prevention of Food Adulteration Act, 1954, hereinafter called the ‗Act‘, was defeated since the wheat taken as sample had become unfit for consumption by that time and, therefore, it did not remain possible for the petitioners to show that the wheat at the time of taking samples, was not adulterated. Applicability of PFA Act and Rules: 3. The first question which comes up for consideration in this case is as to whether the safeguards provided in Prevention of Food Adulteration Act and the Rules framed thereunder and the rights conferred by the Act on a person accused of having committed an offence punishable under that Act are available to a person who is accused of having committed an offence punishable under Section of the Essential Commodities Act. 4. The object behind making adulteration of food and foodstuff punishable with imprisonment was to prevent WP.(Crl.).No.1511/2009 Page 5 of 47 danger to human life and health by sale of unwholesome articles of food. The basic aim was to ensure purity in the articles of food meant for sale to others. The object behind enactment of the Essential Commodities Act on the other hand was to regulate the production, supply and distribution of specified commodities which were considered to be essential to the citizens. In spite of difference in the objectives sought to be achieved by these Acts, it will be difficult to say that regulation and control of production, supply and distribution of essential commodities would not include control on the quality of the food articles which are supplied to the consumers through the channels of Public Distribution System. It is, therefore, very much open to the Government, to pass Orders which would ensure that the food articles, including wheat, which are supplied to the beneficiaries of the system are wholesome and of good quality and are not likely to cause any danger to their life and health. It is with a view to ensure the quality of the food products which are supplied to the consumers that clause 6(4) of Public Distribution System(Control) Order, 2001, hereinafter called the ‗Order‘, issued in exercise of the powers conferred WP.(Crl.).No.1511/2009 Page 6 of 47 upon the Central Government under Section 3 of the Essential Commodities Act, provides that the Authority or the person who is engaged in the distribution and handling of essential commodities under the Public Distribution System shall not willfully indulge in substitution or adulteration or diversion or theft of stocks from Central Godown to Fair Price Shop premises or at the premises of Fair Price Shop. The expressions ‗diversion‘ and ‗substitution‘ have been defined in the explanation below Clause 6.(4) of the Order. The expression ‗adulteration‘ has, however, has not been defined either under the Order or under Essential Commodities Act. Hence, in order to find out whether any essential commodity supplied under Public Distribution System is adulterated or not, one will necessarily have to go by the definition given to the term ‗adulteration‘ in the PFA Act. Presumably, the rule making Authority also intended the same when it chose not to define the expression ‗adulteration‘ in the Order. 5. The Order does not prescribe the manner in which sample has to be taken for the purpose of ascertaining whether the food article in question is adulterated or not. The Order does not prescribe, what types of containers are to WP.(Crl.).No.1511/2009 Page 7 of 47 be used for the purpose of keeping the sample. It does not prescribe the method of sending the sample to the laboratory. Neither the Essential Commodities Act nor the Order issued thereunder confers any right such as the right given to an accused under Section 13.(2) of the PFA Act. Thus, neither the Essential Commodities Act nor the Order alleged to have been contravened by the petitioners prescribes either the machinery or the procedure for determining whether the essential commodity suspected to be adulterated was, in fact, adulterated, or not. On the other hand, the PFA Act and the Rules prescribe a comprehensive procedure for such matters, including the method of taking samples, sending the samples to the laboratory and analysis of that sample by the laboratory, besides conferring of statutory right upon the accused to get the second sample analysed by Central Food Laboratory. In the absence of the Essential Commodities Act and the Order issued thereunder providing any procedure in respect of such matter and at the same time also not excluding the procedure prescribed and the safeguards and the right conferred under the PFA Act and the Rules, it would be difficult to say that the procedure prescribed in the PFA WP.(Crl.).No.1511/2009 Page 8 of 47 Act and the Rules, and the rights and safeguards provided in the Act and the Rules are not available to a person who is accused of having violated the provisions of the Essential Commodities Act by contravening Clause 6.(4) of the Order which prohibits adulteration of any article which is supplied to the consumer through Public Distribution System. 6. If the procedure prescribed under the Act and the Rules are not adopted and the safeguards and the rights which are available to a person accused of an offence punishable under the Act, are not made available to a person who is accused of adulteration of food articles supplied through the Public Distribution System, not only would it be discriminatory to those who are prosecuted under the Essential Commodities Act, vis-à-vis, those who are prosecuted under the PFA Act, despite nature of the offence committed by them being the same and the offence under both the Acts being punishable with mandatory imprisonment, it will also give an arbitrary power to the Prosecuting Agency to prosecute one person under the provisions of the Act and the other person, who is similarly situated, having committed the same offence, under the provisions of the Essential Commodities Act. The WP.(Crl.).No.1511/2009 Page 9 of 47 inevitable result would then be that a person who is prosecuted under the provision of the PFA Act will be entitled to all the rights and safeguards provided under the Act and Rules made thereunder, whereas no such benefits would be available to a person who is prosecuted under the provisions of the Essential Commodities Act despite both of them having committed the same offence, i.e., distribution, supply, etc. of an adulterated food articles. The procedure bereft of the safeguards and rights made available under the Act and the Rules made thereunder would in that case be violative of Article 14 of the Constitution of India being discriminatory in nature as the persons who are similarly situated would be governed by different procedure and the rights and benefits which are available to one set of persons will not be available to the other set of persons, despite the offence committed by them being essentially the same. 7. In ―Municipal Corporation of Delhi Vs. Shiv Shanker‖, 1971 (1) SCC 442, the issue before the Hon‘ble Supreme Court was whether the respondent who had been granted a licence for selling vinegar under the provisions of Fruit Products Order, 1955, made by the Central Government WP.(Crl.).No.1511/2009 Page 10 of 47 under Section 3 of the Essential Commodities Act, could be prosecuted under the PFA Act for selling adulterated vinegar. The contention before the Hon‘ble Apex Court was that the Fruit Products Order, 1955 had the effect of repealing the provisions of the Act, in so far as the sealing of vinegar was concerned. Repelling the contention of respondent, the Hon‘ble Supreme Court, inter alia, observed: ―The provisions of the Adulteration Act and of the Fruit Order to which one attention was drawn seem to be supplementary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any provisions of the Adulteration Act or the Rules made thereunder so as to compel the Court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters. The former do not render compliance with the latter impossible, nor does compliance with the former necessarily and automatically involve violation of the latter. Indeed, our attention was not drawn to any provisions of the Adulteration Act and Rules, compliance with which would result in breach of any mandate, whether affirmative or negative, of the Fruit Order. We are, therefore, unable to find any cogent or convincing reason for holding that the Parliament intended by enacting the Essential Commodities Act or WP.(Crl.).No.1511/2009 Page 11 of 47 the Fruit Order to impliedly repeal the provisions of the Adulteration Act and the Rules in respect of the vinegar in dispute. Both the statutes can function with full vigour side by side in their own parallel channels. Even if they happen to some extent to overlap, Section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. This section lays down that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished under either the same offence. If, therefore, the provisions of the Adulteration Act and those of Fruit Order happen to constitute offences covering the same acts or omissions then it would be open to the prosecuting authorities to punish the offender under either of them subject to the only condition that a guilty person should not be punished twice over.‖ 8. The Hon‘ble Supreme Court was of the view that the Scheme of the Act and the Rules can without difficulty fit into the Scheme of Fruit Products Order issued under the Essential Commodities Act. In the present case also, no provision of the Essential Commodities Act or the Order would be violated if the procedure prescribed in the Act and the Rules made thereunder are adopted and the safeguards and the rights provided to an accused under the PFA Act are made available to a person who is prosecuted under the WP.(Crl.).No.1511/2009 Page 12 of 47 provisions of the Essential Commodities Act, for adulteration of an articles which is sold through the Public Distribution System. Therefore, there is no escape from the conclusion that not only the procedure prescribed in the Act and the Rules made thereunder for the purpose of taking samples, including the containers to be used for keeping samples, packing and sealing of samples, sending of seal impression to the Public Analyst and comparison of those impressions by him with the impressions on the samples, but the right granted to the accused under Section 13.(2) of the Act to apply to the Court to get the sample of food article analysed by the Central Food Laboratory would also necessarily be applicable and available in a prosecution of this nature. In this regard, I may also refer to the decision of Madras High Court in ―S.Arunachalam & Others Vs. State‖, 1993 (2) PFAC 139 (Madras), and the decision of the Hon‘ble Supreme Court in ―State of Madhya Pradesh Vs. Swaropchandra‖, (1996) 11 SCC 175. In the case of S.Arunachalam(supra), the petitioner was alleged to have contravened Clause 11 of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977 read with Section 7(1)(a)(ii) of Essential WP.(Crl.).No.1511/2009 Page 13 of 47 Commodities Act by selling adulterated gingili oil and coconut oil. The petitioner filed an application under Sections 10,11 and 13(2) of the PFA Act read with Section 7(3)(b) of the of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977, for forwarding second sample to the Central Food Laboratory for analysis. The Special Court rejected his application on the ground that Section 13(2) of the Act was not applicable as Section 7(3)(b) of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977 made only the provisions of Section 10 & 11 of the Act applicable to such provisions. After noticing that the very object of obtaining three samples indicated that the legislature had preserved the right of the accused to have one of the samples analysed by Central Food Laboratory, the High Court held that if the right to have the second sample analysed from Central Food Laboratory was denied to the petitioner, the very object behind taking three samples would be defeated. While allowing the petition, the High Court, inter alia, observed as under: ―In other words, proper sampling and the report of the Public Analyst constitute the basic foundation for initiating prosecution, WP.(Crl.).No.1511/2009 Page 14 of 47 be it under the Act or the Order. If there is a denial of the right conferred under Section 13(2) of the Act, it will be difficult, if not impossible, to sustain the prosecution. There cannot be a better example of prejudice to the case of the accused, if his request forwarding a second sample to the Central Food Laboratory, is not acceded to, though mandated by law. The right given to the accused is not only for his satisfaction and proper defence, but to serve a clinching purpose as well, which may benefit even the prosecution, since the certificate of probably a greater expert is accepted by the Court as conclusive. Provisions of Food Adulteration Act have vested such a right for getting the second sample analysed, not only to benefit the prosecution but to benefit the accused as well. If as held by the learned Special Judge, the accused has no right to have yet another sample forwarded to the Central Food Laboratory, there was no need to have obtained three samples. 9. It is true that as far as the Order alleged to have been contravened by the petitioners is concerned, it does not make any provision of the PFA Act applicable to prosecution for contravention of the Order, whereas in the case before the Madras High Court, the Order did make the provisions of Section 10 & 11 of the PFA Act specifically applicable but, that, to my mind, would be of no consequence when a person is accused of adulteration of food article. What is important WP.(Crl.).No.1511/2009 Page 15 of 47 is that in the absence of either Essential Commodities Act or the Order issued thereunder excluding the applicability of the provisions of the PFA Act and the Rules framed thereunder, the procedure prescribed therein needs to be applied and the safeguards and rights provided to an accused under the Act need to be extended to a person who is prosecuted under the Essential Commodities Act for adulteration of a food article. In fact, even if the Orders issued under the Essential Commodities Act were to prescribe a procedure which was less favourable to an accused as per the procedure prescribed under the Act and the Rules framed thereunder and/or it were to exclude thesafeguards and rights which are made available to an accused under the Act, the Order itself would incur the risk of being struck down as discriminatory and violative of Article 14 of the Constitution of India by meting out different treatment to those who are similarly situated. 10. In the case of Swaropchandra(supra) one truck carrying timber was seized under the M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969, and the truck was confiscated since its value was not paid. The power of seizure was challenged in the High Court, which held that since the Act WP.(Crl.).No.1511/2009 Page 16 of 47 did not provide power of confiscation of the truck, it was not permissible for the Vigilance Forest Officer to impound the truck. On behalf of the State it was contended before the Hon‘ble Supreme Court that since Section 52 of the Forest Act as amended by State Amendment Act 9 of 1965 gave power for confiscation of the vehicle used for transportation of various produce, there was no necessity to expressly provide for such a power in M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. The respondent, on the other hand, contended that since the Act specified detailed procedure and it also identified the Special Forest Produce which could be confiscated, the legislature by necessary implication did not intend confiscation of the vehicle etc. used for transportation of forest produce. It was further contended that no express power having been given by the legislature to the officer to confiscate the vehicle used for transportation of the specified forest produce, the High Court was right in directing release of the vehicle. Accepting the contention made on behalf of the State, the Hon‘ble Supreme Court, inter alia, held as under: ―In our view, the High Court was clearly in WP.(Crl.).No.1511/2009 Page 17 of 47 error in reaching the conclusion that there is no such provision under the Act. It is seen that the Act occupies the field in respect of the specified matters enumerated thereunder. In view of the fact that the Forest Act, as amended under the State Amendment Act 9 of 1965 has already occupied the field for confiscation of the vehicles etc., it is not necessary, again to provide the same procedure under the Act.‖ 11. In the present case also since the legislature had already prescribed a detailed procedure in the Act and the Rules made thereunder as regards the manner of taking samples, their packing and sealing, sending them for analysis, as also regarding carrying out of analysis by the Public Analysist, the Government, while issuing the Order did not feel any necessity of prescribing a separate procedure for these purposes. Similarly, since the right to get the second sample analysed from Central Food Laboratory had already been conferred under Section 13.(2) of the Act, there was no need for the Central Government to specifically confer such a right upon a person who is prosecuted for contravention of the Order. Had the intention of the Government been otherwise, it would have expressly excluded the provisions of the Act and/or Rules while issuing the Order. WP.(Crl.).No.1511/2009 Page 18 of 47 Contravention of Rule 14 12. Rule 14 of the PFA Rules which prescribes the manner of sending sample for analysis reads as under: “Manner of sending sample for analysis – Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.‖ 13. Rule 16 of the rules which prescribes the manner of packing and sealing samples, to the extent it is relevant, reads as under: ―16. Manner of packing and sealing the samples: - all samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely: - (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit;‖ 14. Admittedly, the officers who took samples from the truck as well as from the godowns of FCI used polythene bags for the purpose of keeping the wheat drawn as sample. As noted by the Public Analyst, all the polythene bags were loose when received by him. The contention of the petitioner is that polythene bag was not a suitable container envisaged in WP.(Crl.).No.1511/2009 Page 19 of 47 Rule 14 and the provisions of Rule 14 being mandatory, the prosecution is liable to be quashed on this ground alone. In support of his contention, the learned counsel for the petitioners has referred to the decision of a Full Bench of Punjab & Haryana High Court in ―State of Punjab Vs. Raman Kumar‖, 1998 Crl.L.J. 737, and the decision of the Gujarat High Court in ―State of Gujarat Vs. (2008) 1 PFAC 397 (Gujarat). 15. In the case of Raman Kumar(supra), sample of red chilly powder was taken in a wrapper of strong thick paper. The issue before the Full Bench of the High Court was as to whether a polythene containers or a wrapper of strong thick paper were covered under the definition of ‗other suitable container‘, given in Rule 14 of the Rules. The High Court, after examining the Scheme of the Rules held that container or a wrapper of strong thick paper dos not confirm to definition of container given in Rule 14. During the course of judgment, the High Court, inter alia, observed