State v. Ashok Kumar

O R D E R %

24.08.2017 On 8.12.2015, the learned counsel for the respondent had submitted that the present appeal is covered by the judgment dated

18.8.2015 passed by the Coordinate Bench of this court in Crl. Appeal No.1416/2013 titled as State vs. Amar Singh. Learned APP submits that she has pursued the judgment dated

18.8.2015 passed by the Bench of Coordinate jurisdiction in Crl. Appeal No.1416/2013 and the facts of the present case are same as were involved in the said appeal. This case is totally covered by the said judgment. I have pursued the judgment and find that in the said case also, the Sate was aggrieved by the sentence awarded to the accused and had preferred the appeal. The said case was also for misbranding. The said case also related to Choco Pie, which was seized by a Food Inspector. No adulteration was found in the Choco Pie. In this case also, as per the report of the Public Analyst, no adulteration was found in the 'Choco Pie'. It was also the case of misbranding only. No health hazard was suffered by anybody. The respondent had pleaded guilty expecting a lesser sentence in the bargain. The learned Judge in paragraphs 19 to 28 has held as under:- "19. In the instant case which is a case of misbranding, no health hazard was either suffered and or would have been suffered as it was not a case of consumption of any harmful substance.

¶20The respondent was held guilty of the offence because the words "gelatin-animal origin" did not find any mention in the food article. A vegetarian sticker had been put which was indicative of the fact that it was a vegetarian product; the article was however non-vegetarian.

¶21The Food Safety and Standards Act, 2006 (hereinafter referred to as the "FSSA") was promulgated on

23.8.2006. In the preamble of the act, the objects of the Act have been defined as under: "An Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto." The word "hazard" has been defined under Section 2(u) of the FSSA; it reads as under:

(u) "hazard" means a biological, chemical or physical agent in or condition of, food with the potential to cause an adverse health effect; "Misbranded food" has been defined under Section 2(zf); it reads as under:

(zf) "misbranded food" means an article of food-

(A) If it is purported, or it represented to be, or is being –

(i)Offered or promoted for sale with false, misleading or deceptive claims either:

(a)Upon the label of the package, or

(b)Through advertisement, or

(ii) sold by a name which belongs to another article of food, or

(iii) offered or promoted for sale under the name of a fictitious individual or company as the manufacturer or producer of the article as borne on the package containing the article or the lable on such package; or" Clause (B) and (C) are not relevant as they relate to packaged articles; in this case the article of food which was purported to be misbranded is a 'Chocopie' which was sold in an unpackaged form. Section 89 of the Act contains overriding effect of this Act over all other food related laws and reads as under: "89. Overriding effect of this Act over all other food related laws. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." The Food Safety and Standards (Packaging and Labeling) Rules, 2011 have been promulgated and have come into effect with effect from 01.8.2011 in the exercise of powers conferred under Section 92(2) (k) read with Section 23 of the FSSA. Rule 2.2 clearly prescribes that vegetarian and non-vegetarian foods will bear a declaration to this effect made by a symbol and a colour code.

¶22The Apex court in Writ Petition (Civil) No.681 of 2004 Centre for Public Interest Litigation Vs. Union of India and Ors. had an occasion to examine the aforenoted legislation i.e. FSSA and in this context the prayer made in that petition for constitution of an Independent Expert/Technical Committee to evaluate the harmful effects of soft drinks on human health, particularly on the health of the children. The stand of the Union of India is that the FSS Act along with Rules and Regulations framed thereunder constitute a vigorous regulatory regime, which takes care of all the above mentioned situations. After examining the various aspects of the FSS Act in relation to its effect on soft drinks and its particular impact on children it was noted that a Food Authority has to be constituted by the Central Government under Section 4 of the FSS Act. The Food Authority in exercise of its power conferred under Section 92(2)(e) was intended to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food. The Apex Court had noted that adequate provisions in the FSS Act and the Rules and Regulations have been made and all requirements dealing with the labeling etc. have been detailed in Rules 32 to 44 of the PFA Rules, 1955. In this judgment the Court had noted the following observations which are relevant in the context of the instant case: "Considerable responsibility is cast on the Authorities as well as the other officers functioning is cast on the Authorities as well as the other officers functioning under the above mentioned Acts to achieve the desired results. Authorities are also obliged to maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business."

¶23A Bench of the Allahabad High Court while dealing with the case of misbranding in 2011(2) Crimes 250 M/s Pepsico India Holdings (Pvt) ltd. and Anothers Vs. State of U.P. and Others had noted that in view of the provisions of the FSS Act cases on adulteration of food/misbranding after coming into force of the provisions of FSS Act vide notification dated 29.7.2010, the authorities can take action only under the FSSA as it postulates an overriding effect over all other food related law including the PFA Act.

¶24In a case of misbranding the penalty is contained in Section 52 of the FSSA. It reads as under:

¶52Penalty for misbranded food. – (1) Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of foods for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees. (2) The Adjudicating Officer may issue a direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed."

¶25This Section provides a penalty for misbranded food and any person who by himself or by other person manufactures for sale, stores or sells, distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees.

¶26Noting the factual matrix of the instant case and the offence for which the appellant has been convicted which is for misbranding this Court is of the view that the sentence imposed upon the respondent which was in the discretion of the Court, on the plea of guilt having been recorded of the respondent is a sentence which calls for no interference. This Court also notes the dicta of the Apex Court in Jeetu @ Jitender wherein in a case of a plea bargaining where the plea of guilt has been accepted by the respondent and he had been sentenced to fine but later on the Court deciding to modify the sentence and sentencing him to jail, the Court was of the view that this is a violation of the right of the accused Article 21 of the Constitution as a promise/assurance had been given to him that he would be let off lightly.

¶27In this context the following observations of the Apex Court would be relevant and are noted herein as under: "It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. of course when we say this, we do not for a moment wish to suggest that the Court of appeal or revision should not interfere where a disproportionately low sentence is imposed on the accused as a result of plea-bargaining. But in such a case, it would not be reasonable, fair just to act on the plea of guilty for the purpose of enhancing the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him".

¶28The discretion exercised by the Trial Judge was reasoned, fair and in no manner arbitrary; it does not call for any interference. Appeal is without any merit. Dismissed." Accordingly, I do not find any justification to interfere with the sentence awarded by the trial court, in this appeal. For the same reasons, the appeal is dismissed.

A.K. PATHAK, J. AUGUST 24, 2017 'AA'

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 161/2014 STATE ..... Appellant Through: Ms. Meenakshi Dahiya, APP for the State. versus ASHOK KUMAR ..... Respondent Through: Mr. Abdhesh Chaudhary & Mr. Shantanu Majumdar, Advocates. CORAM: HON'BLE MR. JUSTICE A.K. PATHAK