Delhi High Court
Shri Praveen Chand And Ors. vs Food Safety Officer on 6 September, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 6thSeptember,2019
+ CRL.M.C. 4186/2011
1. SHRI PRAVEEN CHAND (Vendor-cum-store Manager)
2. SHRI DAMODAR MALL (Whole-time Director )
3. M/s FUTURE VALUE RETAIL LTD. (Vendor Company)
....Petitioners
Through: Mr.Sudhir K. Makkar, Senior
Advocate with Ms. Meenakshi Singh,
Ms. Saumya Gupta and Ms. Kaanan
Gupta, Advocates.
Versus
FOOD SAFETY OFFICER ....Respondent
Through: Mr. Mukesh Kumar, APP for
State.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I. S. MEHTA, J.
1. Instant Criminal petition under Section 482 of the Code of
Criminal Procedure has been preferred by the petitioners against the
summoning order dated 10.10.2011 passed by Raghubir Singh,
Additional Chief Metropolitan Magistrate-II, Patiala House Courts,
New Delhi in Complaint Case No. 192/11 titled as Food Safety
Officer v. Sh. Praveen Chand & Others.
[
2. Brief facts stated are that on 28.05.2011 at about 3:29 PM,
Food Inspector (FI) Bal Mukand purchased 3 Kg rice vide sample No.
93/1015/52/11, code no. 93/LHA/32437 from M/s KB's fair Price (A
unit of M/s Future Value Retail Ltd), Shop No. F-2226 Mansarover
Garden, New Delhi-110015. At the relevant point of time, the
petitioner No.1, Parveen Chand S/o Mangat Ram (vendor-cum-store
Manager) was found vending the article of food at the time of taking
the sample. The sample consisted of 3 Kg of rice (ready for sale)
taken from an open Aluminum Drum bearing no label declaration.
The sample was taken under the supervision/direction of Ms. Anju
Mangla, SDM/LHA. The sample was taken after proper mixing with
the help of clean and dry Jhaba by rotating it in all possible directions
several times. The Food Inspector divided the sample of food article
into three equal parts then and there by putting it into three clean and
dry glass bottles. Each glass bottle containing the sample was
separately packed, fastened and sealed according to the PFA Act,
1954 and Rule, 1955. He obtained signatures of vendor on LHA slip
and wrapper of the bottle containing sample and notice in Form VI
was given to Sh. Parveen Chand and Panchnama too was prepared at
the spot. All the documents prepared by the Food Inspector were
signed by Sh. Parveen Chand and by other witness Jagdish, FA was
joined as witness. One counter-part of sample bearing LHA Code
Number 93/LHA/32437 in intact condition along with the copy of
memo in form VII and another copy of memo in Form-VII under seal
and cover were sent separately to the Public Analyst, Delhi and two
counter-part of the sample along with two copies of memos in Form-
VII were deposited with SDM/LHA in intact condition dated
30.05.2011. All copies of Memo in Form VII bear the seal impression
with which sample parts were sealed. Public Analyst analyzed the
sample and found the sample to be adulterated as it contains six living
insect & one rodent excreta in whole sample and committed the
offence punishable under Section 16 (1A) of the PFA Act, 1954.
3. The Court below took the cognizance on 10.10.2011 and issued
summons against the present Petitioners i.e. Sh. Parveen Chand S/o
Sh. Mangat Ram who was the vendor-cum-store Manager of KB's
Fair Price which is a unit of M/s Future Value Retail Ltd. who look
after its day to day business and as such he is in-charge of and
responsible for the conduct of the business of the said unit of the
company, Mr. Damodar Mall S/o Sh. Shyam Sunder Mall whole time
director of M/s Future Value Retail Ltd., who look after the day to day
business of KB's Fair Price and as such he is in-charge of and
responsible for the conduct of the business of the said unit of the
company, and M/s Future Value Retail Ltd. being a company is also
liable for KB's Fair Price. The Company has its Registered Office at
Knowledge House, Shyam Nagar, Jogeshwari Vikhorli, Link Road,
Jogeshwari (E), Mumbai-400060.
4. Aggrieved from the order of Ld. ACMM the petitioners have
preferred the present petition.
5. Ld. Senior counsel for the petitioners has submitted that the
summoning order passed by the Court below is bad as petitioner No.3,
M/s Future Value Retail Ltd., has already appointed Madan Lal S/o
Mehar Lal as its nominee under Section 17(2) of PFA Act and
submitted paper of the nomination to PFA department on 21.05.2011.
6. Ld. Senior Counsel for the petitioners further submitted that in
response to letter dated 22.06.2011 of Food Safety Officer the
Petitioner No.3, M/s Future Retail Value Ltd., has already sent reply
to the Food Safety Officer on 26.07.2011 disclosing the name of
nominee of the Company i.e. Madan Lal S/o Mehar Chand alongwith
the list of the Directors of the said Company as on 22.05.2011.
Therefore, the summoning order is bad in law and same be set aside.
7. The reliance is placed by the petitioners on Pepsico India
Holdings Pvt. Ltd. v. Food Inspector and Ors., CRL.A. No. 836/2010
and Kishore Aggarwal and Ors., CRL.M.A. No. 7772/2011.
8. On the other hand, Ld. APP submits that local (health) authority
did not receive the nomination letter till 09.06.2011 and the sample
was taken on 28.05.2011 and Court below has rightly took cognizance
and present petition is devoid of merit and deserves dismissal.
9. From perusal of the record it shows, that, the complaint was
filed by Food Safety Officer of NCT of Delhi before the Ld. ACMM,
Ld. ACMM took the cognizance and issued summons against the
petitioner No.1 to 3. As per the complaint, Petitioner No.1, Sh.
Parveen Chand S/o Sh. Mangat Ram was the vendor-cum-Store
Manager of KB's Fair Price which is a unit of M/s Future Value
Retail Ltd. who looks after its day to day business and as such is in-
charge and responsible for the conduct of business of the said unit,
Petitioner No.2, Mr. Damodar Mall S/o Sh. Shyam Sunder Mall whole
time director of M/s Future Value Retail Ltd., who looks after the day
to day business of KB's Fair Price and as such is in-charge and
responsible for the conduct of the business, and Petitioner No.3, M/s
Future Value Retail Ltd., being a company, is also liable for KB's Fair
Price. The Company has its Registered Office at Knowledge House,
Shyam Nagar, Jogeshwari Vikhorli, Link Road, Jogeshwari (E),
Mumbai-400060.
10. The sample taken was on 28.05.2011 at 3:29 PM and the same
was sent to Public Analyst for analysis and was found to be
adulterated as per the Public Analyst report dated 17.06.2011.
11. The notice issued to Parveen Chand and KB's Fair Price was
replied. The said reply dated 22.06.2011 is reproduced as under:-
" To
Shri. Bal Mukund,
Food Inspector,
Dept. Of Prevention Food Adulteration
Govt. Of NCT Delhi.
A/20, Lawrence Road Indl. Area, Delhi-35
Subject: - Sample of rice lifted of 28.05.11
Dear Sir,
The company had appointed Shri Madan Lal S/o Mr. Mehar
Chand has the nominee U/S 17(2) PFA Act Submitted the papers of
the said nomination to the PFA Department on 21.05.2011.
(1) We have already provided the nominee.
(2) Same as above
(3) Not applicable
(4) Already provided Copy of Sales Tax Registration
(5) No licence has been obtained M.C.D
(6) List of Directors attached.
(7) Mr. Damodar Mall, Director will represent from company
side. (address attached)
Your Faithfully
Sd/-
Anand Attri
Date:-26.07.2011 (K.B. Fair Price)
A Unit of Future Value Retail Limited
-Page 2-
List of Directors as on 22/05/2011
Name
Mr. C.P. Toshniwal
Ms. Rajni Bakshi
Mr. Shailesh Haribhakati
Ms. Ranjana Kumar
Ms. Ashni Biyani
Mr. Vivek Biyani
Mr. Damodar Mall
For Future Value Retail Limited
Sd/-
Authorized Signatory.
-Page 3-
Address of Damodar Mall:
Damodar Mall
S/o Shayam Sunder Mall
2A, Regency Park, Eden Woods,
Thane (W), Mumbai-400601."
12. The said reply dated 26.07.2011 does not disclose official status
of nominee i.e. Madan Lal in the Company, indicating gaining of his
personal knowledge for attribution to his neglect.
13. The contention of the Ld. Senior Counsel on behalf of
petitioners that the petitioner No.3 has already sent nomination of
Madan Lal loses its significance in presence of the reply dated
26.07.2011 of the petitioners itself. The reply dated 26.07.2011
indicates Damodar Mall (petitioner No.2) will represent on behalf of
M/s Future Value Retail Limited (petitioner No.3). Petitioner No.1 is
the person who was physically present at the spot on 28.06.2011 at
3:29 PM in whose presence samples were taken.
14. So far, plea of the petitioners that company has already
nominated its nominee i.e. Madan Lal does not show his official status
indicating gaining of his personal knowledge for attribution to his
neglect. The Lower Court Record too does not show any document
indicating otherwise before filing of the present complaint by the
Food Safety Officer. However, if the Company had nominated Madan
Lal as its official nominee under Section 17(2) of PFA Act who is
responsible for day to day conduct of the said unit, it is a matter of
defense which could be available to the petitioner during the further
proceedings before Lower Court. The said documents were neither
available with the Food Safety Officer at the time of filing of the
complaint nor with the Lower Court while taking the cognizance
against the petitioners. As discussed above, the Court below on the
basis of available record has rightly took cognizance and issued
summons against the Petitioner Nos. 1, 2 and 3.
15. The reliance placed by petitioners on Pepsico India Holdings
(supra) and Kishore Aggarwal (supra) is of no help to them.
16. Consequently, the present petition is dismissed as impugned
order dated 10.10.2011 passed by the learned ACMM in Complaint
Case No. 192/11 does not warrant any interference by this Court to
invoke inherent powers under Section 482 Cr.P.C.
17. LCR be sent back with a copy of this judgment. Parties are
directed to appear before the concerned or successive Court on
09.10.2019. No orders as to cost.
I.S.MEHTA
(JUDGE)
SEPTEMBER 06, 2019
