Diwan Singh vs State Of Uttarakhand

Sharad Kumar Sharma, J

Before dealing with the controversy at hand, it is essential to deal with certain provisions, which would be required to be considered and interpreted for the purposes of judicially analysing the order of conviction, which is under challenge in the Revision for the purported commission of an offence under Section 59 of the Food Safety and Standards Act, 2006 (hereinafter to be called as "the Act").

First and foremost, this Court feels it essential to deal with the terminology of "food", as defined under the Act, on which the Act has been made applicable. The term "food" has been defined under sub Section (j) of Section 3 of the Act, which reads as under:-

(j) "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances: Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;

On a precise reading of the definition of a food, it means any substance, which is fit for human consumption after being processed, partially processed or unprocessed. There are three stages which are dealt with in the definition clause, which are the stages, which immediately as soon as it is undertaken, it makes the product fit for the human consumption. But, the said principle that whether the substance herein which is "wheat flour", obviously, allegation is levelled that the insects were found in it, when the same was recovered from the custody of the Manager of Hotel Monal, Rudraprayag, it may not be treated as to be a substance, which forthwith could have been consumed by human being without undergoing the process of cooking or baking of the wheat flour.

Furthermore, as accordance to the definition of "food", which has been referred under Section 3(j) of the Act, it would mean the food which was being supplied by the person, agency or Hotel directly for human consumption. Admittedly, in the case at hand, when the initial complaint was lodged for the commission of an offence under Section 59 of the Food Safety and Standards Act, 2006, it was registered as against the Manager of the Hotel Monal, as well as, against the present revisionist too, who is a retailer, his role was only that he had only supplied the packed bags of wheat flour to the Monal Hotel, which was required to be processed or semi-processed for converting it by various stages of the substance, so as to make it fit for human consumption.

In the case at hand, wheat flour normally would have been made consumable by human being only when it undergoes the process by the Hotel before it becomes fit for human consumption, whereas, here in the case, it has been supplied by the retailer/revisionist. Another defect, which has been pointed out by the learned counsel for the revisionist is that in the entire process of levelling allegations against the revisionist for the commission of offences, he has referred to the provisions contained under Section 27 of the Act, which deals with the fixation of the liability of the Manufacturer, packers, wholesalers, distributors and sellers.

"27. Liability of manufacturers, packers, wholesalers, distributors and sellers.-(1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.

(2) The wholesaler or distributor shall be liable under this Act for any article of food which is-

(a) supplied after the date of its expiry; or

(b) stored or supplied in violation of the safety instructions of the manufacturer; or

(c) unsafe or misbranded; or

(d) unidentifiable of manufacturer from whom the article of food have been received; or

(e) stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or

(f) received by him with knowledge of being unsafe.

(3) The seller shall be liable under this Act for any article of food which is-

(a) sold after the date of its expiry; or

(b) handled or kept in unhygienic conditions; or

(c) misbranded; or

(d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or

(e) received by him with knowledge of being unsafe."

The argument of the learned counsel for the revisionist, is confined from the viewpoint of sub clause (c) of sub Section (2) of Section 27 of the Act, which provides that the wholesalers or distributors shall be liable for the offence under the Act only when the food is unsafe food or misbranding of food, which is not the case at hand, if the revisionist, who is a retailer, who supplies the wheat flour would only be liable for any offence only when he has indulged in misbranding or when he by any of his intentional Act has consciously supplied the product which was unsafe for human consumption which is not the case at hand, because it is no one's case that the wheat flour supplied by the revisionist was not a packed bag, what was the date of supply of the bag by the revisionist, and the date when it was utilised by the Hotel, where and when it was supplied is not in dispute nor it has been questioned at any stage of the proceedings by the prosecution.

What is important here is that sample of the product in question is said to have been collected only on 17th August 2012, and thereafter, admittedly, it was sent to the Food Analyst, as defined under sub Section (n) of Section 3 of the Act. It means a Food Analyst, as defined under Section 3(i) under Section 45, who after the receipt of the sample has to submit his report in the light of the provisions contained under Section 42 of the Act. Particularly, a reference is made by the learned Senior Advocate to sub Section (2) of Section 42, which provides that the Food Analyst, after receiving the samples, has to submit a report, mentioning the methods of sampling and the Analyst has to submit its report within 14 days to the designated officer, with a copy to the Commissioner of Food Safety. Section 42 (2) of the Food Safety and Standards Act, 2006 reads as under:-

"(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety."

The argument of the learned counsel for the revisionist before this Court is that though the sample, which was collected on 17th August 2012, was sent on 18th August 2012, but record shows that its report was received only on 13th September 2012. Meaning thereby, this report does not commensurate to the provisions and intention as contained under sub Section (2) of Section 42 of the Act, and hence the proceedings drawn against the revisionist cannot be held to be commensurating to the provision as contained under sub Section (2) of Section 42 of the Act.

The learned counsel for the revisionist has argued the matter from another aspect that is as to the mode and manner, in which the samples and its analysis were required to be done. He submits that at the time when the sample was collected on 17th August 2012, from the premises of the Monal Hotel, where the wheat flour was supplied by the retailer/revisionist, at the time of taking of the sample, the mandatory process contemplated under Section 47 of the Act was not complied with because the samples were not collected in his presence, nor the same was sealed and sent to the analyst for its tests in the presence of the retailer/revisionist, who has only supplied the packed product to the Hotel.

The learned AGA submits that there may be a possibility that the product, i.e. wheat flour, which was supplied by the revisionist that might have contained the insect(s), which was ultimately in the report submitted has held out by the Food Analyst, as to be unsafe for the human consumption, which might have been found in the bag at the stage when it was supplied by the retailer; but, unfortunately in the entire proceedings which has been drawn, it had been no one's case that at what stage or date or time the wheat flour was supplied and on what date the wheat flour which was thus supplied by the revisionist was put to consumption, and if the wheat flour which was supplied by the revisionist, who was a retailer is stored or retained by the Hotel in its stock and its consumption takes place at a later stage and later on, if some insects were found in it, which was rendering the wheat flour to be unfit for the consumption of human being, in that situation, the revisionist cannot be held responsible for any food adulteration or he cannot be held responsible for supplying the food, which was unsafe for the human consumption, as he was not instrumental nor he was found in the evidence adduced also to be instrumental in supplying the product, which was unsafe for the human consumption after the same being got processed by the Monal hotel.

In the complaint, thus lodged on 1st May 2013, by the Food Safety Officer, he has levelled an allegation against Prem Singh Bhandari, who was the then Manager of the Monal Resort, village Tilani, Rudraprayag and M/s Sain Singh Diwan Singh Bisht, main Bazar, Rudraprayag i.e. the revisionist. In the complaint, if the same is scrutinized in precision, what is to be found is that no specific role in supplying of a contaminated food for the human consumption or any contribution being rendered by the revisionist in supplying the misbranded food has been made nor it makes any reference with regards to the role of the revisionist in supplying the packed product to be utilised by respondent No. 1 and the complainant was misbranded or was charged with any act of supplying wheat flour which was unfit for human consumption.

Thus, the report, which was submitted by the Food Safety Officer on 1st May 2013, even did not disclose that whether the mode and manner of collecting of the samples contemplated under Section 47 of the Act was ever complied with and the sample was collected in the presence of the revisionist or as per the process provided under the Act. Even a reference has been made by the learned counsel for the revisionist to the statement recorded by PW1 i.e. Revenue Sub Inspector on 10th April 2015, even if the statement recorded by the Revenue Sub Inspector is taken into consideration, at least, it does not make out any ground of commission of an offence under Section 59 of the Act by the revisionist.

Even the statement of the Patwari recorded as PW2 before the Court below, yet again has more or less reiterated the stand taken by the Revenue Sub Inspector in his examination-in-Chief he too has never raised any allegation or assigned any specific role to the revisionist in the commission of an offence under Section 59, by the revisionist. The learned counsel for the revisionist submits that under the given set of circumstances, as it has been referred above, out of the two co-accused persons against whom the complaint was lodged, the Manager, from whose custody the sample was collected, who had purchased the wheat flour from revisionist and has stocked it, he has been rather exonerated and discharged of the commission of an offence under Section 59. While on the other hand, the revisionist who was simply a retailer who had supplied packed bag of wheat flour to be utilised in the Monal hotel, has been held out to be responsible for the commission of an offence under Section 59 of the Act.

Consequently, the Court of Chief Judicial Magistrate, Rudraprayag by its order dated 31st July 2015, has held the present revisionist responsible for the commission of an offence under Section 59 and has imposed the rigorous imprisonment of 6 months and a fine of Rs. 1.00 lakh has been imposed on the revisionist.

Being aggrieved against the judgement of dated 13th July 2015, the revisionist has preferred Criminal Appeal No. 11 of 2015, Diwan Singh v. State of Uttarakhand and another. The learned Appellate Court too without considering the wider perspective of Section 27 and its implication and non compliance of the statutory and mandatory provisions contained under Section 47 of the Act, had proceeded to dismiss the Appeal and had affirmed the judgement as rendered by the learned trial Court vide its judgement dated 13th July 2015, against which the present revision has been preferred.

In view of the reasons, which has already been dealt herein above:-

1) That there was non compliance of Section 47 of the Act regarding collection of sample and procedure of analysis by Food Analyst;

2) That the revisionist cannot be said to be responsible for commission of an offence in view of the provisions contained under Section 27 of the Act;

3) The sample which was collected, it was not collected from the premises of the revisionist or in his presence from the premises of Hotel Monal;

4) The sample which was collected, it was collected at the place where it was to be consumed by the Hotel Monal after processing the same as provided under Section 3(j);

5) The product which was supplied by the revisionist admittedly was a packed product which was supplied by the revisionist;

6) In the entire trial or even at an appellate stage, nowhere it is the case of any of the parties or the complainant with regard to the date on which the product i.e. packed wheat flour bags was supplied and the date on which the product was put to consumption for the human being after its processing, and hence it cannot be said that the time gap involved between the date of supply and between the date of human consumption would not be fatal for the purposes of making a person responsible for the commission of offence under Section 59 of the Act;

7) That literally the sample which was collected and sent for examination to the Food Analyst, cannot and will not fall to be within the definition of Food as provided under Section 3(j) of the Act;

8) Lastly, the samples, which were collected on 17th August, 2012, it was mandatorily required that the report ought to have been submitted by the analyst after its examination with a period of 14 days in compliance of the provisions provided under sub Section (2) of Section 42 of the Act, which was not adhered to, hence, the revisionist, who was simply a retailer, who has supplied the packed product i.e. wheat flour to Hotel Monal, cannot be held responsible for the commission of an offence under Section 59 of the Act.

Consequently, the revision is allowed and the impugned orders of conviction dated 26.08.2015 rendered by the Sessions Judge, Rudraprayag in Criminal Appeal No. 11 of 2015, Diwan Singh v. State of Uttarakhand, dismissing the Appeal, against the judgement of conviction dated 13.07.2015 as rendered by the Chief Judicial Magistrate in Criminal Case No. 46 of 2013, State of Uttarakhand v. Diwan Singh, for the commission of offence under Section 59(1) of Food Safety and Standards Act, 2006 are set aside, and the revisionist is acquitted from the charges.