Gujarat Cooperative Milk Marketing Federation Ltd v. State of NCT Delhi

2. SH.

AJAY SHARMA M/S CP WHOLESALE INDIA PRIVATE LIMITED (OWNER OF UNIT LOTS WHOLESALE SOLUTIONS) STATION BOX, NETAJI SUBHASH PLACE METRO STATION, PITAMPURA, NEW DELHI -110034.....Petitioners Through: Counsel for Petitioners (appearance not given)

VERSUS

1. STATE GOVT.OF NCT OF DELHI

2. THE FOOD SAFETY OFFICER DEPARTMENT OF FOOD SAFETY, GOVT. OF N CT OF DELHI

3. M/S GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD. 2411, D-BLOCK, INSTITUTIONAL AREA, JANAKPURI, NEW DELHI-110058

4. SH.

VIPUL KAPOOR S/O SH. V.K. KAPOOR M/S BHAGWATI STORE, SHOP NO. G-1, PLOT NO.2, MANISH TWIN PLAZA-2, SECTOR-11, DWARKA

5. SH.

VIJAY KUMAR KAPOOR S/O SH.

KASHMIRI LAL KAPOOR M/S BHAGWATI STORE, SHOP NO. G-1, PLOT NO.2, MANISH TWIN PIA ZA-2, SECTOR-11, DWARKA

6. SH.

PAWAN KUMAR AGGARWAL S/O SH. K.L. AGGARWAL, M/S VIRGO AGENCIES, 12/7, CHHOTI SUBZI MANDI, JANAKPURI

7. BANASKANTHA DISTRICT CO-OPERATIVE MILK PRODUCERS’ UNION LTD.

INSTITUTIONAL AREA, J AINPUR EXTENSION, MATI, KANPUR DE HAT.....Respondents Through: Mr. Yasir Rauf Ansari, ASC (Crl.) for the State with Mr. Alok Sahrma, Advocate. Mr. R.K. Bhaskar, Department of Food Safety for GNCTD. Mr. Abhishek Singh, Mr. J. Amal Anand, Mr. Elvin Joshy, Mr. K. V. Vibu Prasad and Mr. Utkarsh Sahu, Advocates for R[3] to R[7] CORAM: HON'BLE MS.

JUSTICE NEENA BANSAL KRISHNA

JUDGMENT

NEENA BANSAL KRISHNA, J.

1. Petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) has been filed on behalf of the Petitioners seeking quashing of the Summoning Order dated 18.01.2021 passed in Complaint Case No. 7396/2020 which was filed under Sections 26/59 of Food Safety and Standards Act, 2006 (hereinafter referred to as the “FSS Act”) by the Respondent No. 2, Food Safety Officer.

2. Briefly stated, on 07.03.2019, Mr. R.K. Bhaskar, the then Food Safety Officer (FSO) along with Sh. Bal Mukund, FSO and Sh. Satish Kumar Gaur, Field Assistant, on the directions of Sh. B.P. Saroha, Designated Officer (DO), South West, had purchased 04 cartons of Ghee, each measuring one litre, on payment of Rs.1,756/- vide receipt dated 07.03.2019, from M/s Bhagwati Store, Shop No. G-1, Plot No.2, Manish Twin Plaza-2, Sector-11, Dwarka of which Sh. Vipul Kapoor was in-charge and responsible for day-to-day conduct of the business. Sh. Vijay Kumar Kapoor S/o Sh. Kashmiri Lal Kapoor was Proprietor of M/s Bhagwati Store and also in-charge and responsible for day-to-day conduct of its business.

3. In accordance with the Rules, the one tetra pack bearing Sample NO. 643/1030/13/2019 in intact condition was sealed and along with the copy of Memo of Form-VI, and another copy of Memo in Form-VI under sealed cover, was sent on 08.03.2019 to the Food Analyst, Delhi.

4. The other two counterparts of the sample along with the two copies of Form-VI, were deposited with Sh. B.P. Saroha, Designated Officer, Delhi in intact condition on the same day, under intimation that one counterpart sample has already been sent to Food Analyst for analysis.

5. As the Food Business Operator did not request to send the fourth counterpart of the sample for analysis from an NABL Accredited Laboratory under Rule 2.4.[5] of Food Safety and Standards Rules, 2011 (hereinafter referred to as the “FSS Rules”), the fourth counterpart along with Form-VI, was also deposited with the Designated Officer in intact condition.

6. The sample was analyzed by Food Analyst, who gave his Report No. FSS/318/2019 dated 20.03.2019 wherein he stated “The sample is unsafe because it has added vegetable oil in place of ghee, which is inferior and cheaper substance and contravenes the clause number (IV), (V) & (XI) of the Section 3 (i) (zz) of The Food Safety & Standards Act, 2006. The sample is also substandard because Butyro refractometer reading at 40 deg. C. exceeds the prescribed maximum limit of 43.0 Reichert value is less than the prescribed minimum limit of 28.0 Further the sample is an admixture of ghee and vegetable oil, which is prohibited & Restricted for sale as per Regulation No. 2.1.1.[3] of The Food Safety & Standards (Prohibition & Restriction on Sales) Regulation 2011”.

7. Sh. B.P. Saroha sent a copy of Food Analyst Report to Food Business Operator and other parties concerned on 29.03.2019, for giving an opportunity to file an Appeal against the Report under Section 46(4) and for sending one part of the sample to the Referral Laboratory, if so desired.

8. The manufacturer M/s Banas Dairy, 40, Acres Bulkland Industrial Area, Jainpur Extn., Mati Kanpur Dehat, UP, on receiving the intimation letter, along with the Food Analyst Report, preferred an Appeal against the Report under Rule 2.4.[6] (1) of the FSS Rules before Sh. B.P. Saroha on 25.04.2019. Accordingly, one counterpart sample was sent to Referral Food Laboratory, Kolkata, W.B.

9. Director, Central Food Laboratory, Kolkata vide Certificate No. G.14- 14/D.O/2019-319 dated 02.07.2019 opined as under: “The sample does not conform to the standards laid down under Regulation No 2.1.[8] of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 as it shows B.R. Reading at 40°C more than the prescribed limit and 'Reichert Meissl Value and Polenske value' less than the prescribed limit. The parameters tested and found nonconforming revealing it as a spurious non-dairy product. Further, it contravenes regulation no. 2.4.5(4)* of FSS (Packaging & Labelling) Regulations, 2011 for misleading label declaration. Hence, the sample is sub-standard, unsafe and misbranded under section 3 (i) (zx), 3 (i) (zz) (v) & 3 (i) (zf) (A-i) respectively of FSS act, 2006”.

10. It is stated in the Complaint that the sampled article of Ghee was supplied by M/s Virgo Agencies, which is a Proprietorship Concern and Sh. Vijay Kumar Kapoor S/o Kashmiri Lal Kapoor is its Proprietor and looks after the day-to-day business and was in-charge and responsible for its business.

11. M/s Virgo Agencies was supplied the sample Ghee by M/s CP Wholesale India Private Limited (owner of unit Lots Wholesale Solutions), Netaji Subhash Place Metro Station, Pitampura, New Delhi and had appointed Sh. Ajay Sharma as its nominee under FSS Act/Rules/Regulations on 07.03.2019 on the date when the sample was taken for its Unit Lots Wholesale Solutions. Sh. Ajay Sharma also looks after its day-to-day business and as such is in-charge and responsible for the conduct of its business.

12. M/s CP Wholesale India Private Limited vide its letter dated 06.03.2020 disclosed in writing that “Company has always procured the product from the Supplier i.e. Gujarat Co-Operative Milk Marketing Federation Limited only. Accordingly, between 05-12-2018 and 07-03-2019, the product was procured from Supplier only and not from any other source”.

13. Part investigation was carried out by Sh. R.K. Bhaskar, the then Food Safety Officer and thereafter, by Ms. Kapil Malik, FSO after 18.10.2019. From the investigation carried out, it was established that the aforesaid mentioned persons were responsible for day-to-day business and are the incharge and responsible for the conduct of business.

14. It was further submitted that the Prosecution could not be launched within one year period as FBOs/concerned persons did not respond in time and due to Nationwide lockdown declared in view of Corona Pandemic. The Food Safety Officer requested the Commissioner, Department of Food Safety, Govt. of NCT of Delhi to extend time to launch prosecution against the Accused persons under Section 77 of the FSS Act, which was granted.

15. On conclusion of the investigation, the file along with the documents was sent by the Designated Officer to Commissioner (Food Safety), Department of Food Safety, Govt. of NCT of Delhi, who accorded consent under Section 42(4) of FSS Act for prosecution of Accused in exercise of powers vested in him under Section 30(2)(e) of the FSS Act and directed the Complainant to be instituted.

16. The Complaint was accordingly filed against the Accused persons for violation of Section 26(1), Section 26(2)(ii) read with Section 3(1)(zx) of FSS Act and for violation of Regulation No. 2.1.[8] of Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011 (hereinafter referred to as the “FSS Regulation”).

17. The Ld. ACMM, New Delhi, took cognizance of the aforesaid offences on the Complaint and summoned the 09 Accused persons vide Order dated 18.01.2021.

18. Aggrieved, Gujarat Co-Operative Milk Marketing Federation Limited (GCMMFL) along with its Nominee Sh. Vikas Guleria; Banaskantha District Co-operative Milk Producers‟ Union Ltd. and its Nominee Sh. Amrish Dwivedi/Petitioner No.4, filed CRL.M.C. 1426/2021 to challenge the Summoning Order.

19. Likewise, W.P.(CRL) No. 1515/2022 has been filed by M/s CP Wholesale India Private Limited through its representative Ms. Aayushi Agarwal and Sh. Ajay Agarwal, owner of unit Lots Wholesale Solutions to challenge the Summoning Order dated 18.01.2021.

20. The primary ground taken essentially in both the Petitions are that the Ld. Trial Court without appreciating the documentary which have been deliberately concealed by the Complainants, has issued process against the Petitioners in a mechanical manner even though no offence is made out against them.

21. It has been explained that GCMMFL is a Cooperative Society registered under Gujarat Cooperative Societies Act, 1961, having Delhi branch in Janakpuri, New Delhi. It is the largest Apex Cooperative organization engaged in marketing of milk and dairy products under the brand name Amul. Petitioner No. 2 Sh. Vikas Guleria is the employee, who has been appointed as the Nominee of GCMMFL. Petitioner No. 3 Banaskantha District Co-operative Milk Producers‟ Union Ltd., (Banaskantha) is the District Cooperative Union, which is a member and is operating under GCMMFL and is one of the manufacturers of milk and its related products, under the brand name Amul. Petitioner No. 4 is its Nominee.

22. It is submitted that GCMMFL was informed about the Food Analyst Report dated 20.03.2019 by the Respondent vide letter dated 29.03.2019. Petitioners, on enquiry in regard to the seized product in question, was shocked to learn that the said product was not manufactured by the Petitioner No. 3, Banaskantha and marketed by Petitioner No. 1 GCMMFL. In fact, it was a counterfeit product, which has been sold by M/s Virgo Agencies (an erstwhile delivery agent of Petitioner No. 1) to M/s Bhagwati Store from where the product had been lifted by the FSSO.

23. Immediately thereafter, Petitioner No. 1 filed a Complaint dated 13.05.2019 against M/s Virgo Agencies for committing offence under Sections 416/419/420/468/469/471/473 IPC and Section 104 of Trademarks Act, 1999 in the Police Station Hari Nagar. A request was made to the concerned Police authorities to take immediate action and investigate to the matter to ascertain who all were involved in the process of counterfeiting the said products.

24. The copy of the Complaint dated 13.05.2019 against M/s Virgo Agencies, was sent to FSO apprising him that M/s Virgo Agencies through its Sole Proprietor Sh. Pawan Kumar Aggarwal, had been appointed as its authorized Delivery Agent, wholesale dealer in the year 2010. However, on account of the complaints against M/s Virgo Agencies from the market regarding overcharging, delay and no supply, its services were terminated on 20.05.2018 by the Petitioner No. 1/GCMMFL. It was also informed that M/s Virgo Agencies was illegally dealing in the supply of adulterated and counterfeit Product of Petitioner No. 1, GCMMFL.

25. Thereafter, Petitioner No. 1, GCMMFL received a letter dated 08.07.2019 from the FSO seeking various details including details of the sale made to M/s CP Wholesale India Pvt. Ltd. vide Bill No. 2006024944 dated 02.01.2019. Petitioner No. 1 wrote his Reply through letter dated 18.07.2019 and informed that products of the Batch Nos. BAM3041, BKM3481, BKM3482, BAN35, and BAN3531 were only sold by the North Delhi Branch of Petitioner No.1 to M/s CP Wholesale India Pvt. Ltd. It was also stated that the products of Batch No. BKM3392 (the batch of which the sample was lifted) were not sold to M/s Virgo Agencies.

26. Subsequently, the FSO wrote a letter dated 14.08.2019 addressed to GCMMFL and M/s CP Wholesale India Pvt. Ltd. directing them to furnish all the bills with respect to Batch No. BKM3392. The Petitioner No. 1, GCMMFL gave its reply dated 30.08.2019 with a detailed accounts of distribution of the entire Batch No. BKM3392 for „Amul’ ghee product (being 402 cartons having 12 products in each carton) along with the supporting Invoices. From the details furnished, it is, evident that Batch No. BKM3392 was sold to the 9 distributors as mentioned in the Letter and not to M/s C P Wholesale India Pvt. Ltd. Further, it was submitted in the reply that the product in question which was seized from M/s Bhagwati Store was a counterfeit product for which a Complaint dated 13.05.2019 has already been made by Petitioner No.1, GCMMFL.

27. It is submitted that Food Safety Officer (FSO) while instituting the Impugned Complaint has not only completely ignored the facts detailed in the Letter, but has also concealed the reply. There is no material whatsoever to remotely corroborate or link the supply of Batch No. BKM3392 by Petitioner No.1, GCMMFL in any manner as set out in the Impugned Complaint.

28. Despite having received the reply dated 31.08.2019 FSO sent another Letter dated 12.12.2019 reiterating about the purchase of the goods by M/s Bhagwati Stores which had been supplied by M/s C P Wholesale India Pvt. Ltd. The contents of the Letter were again refuted vide Reply dated 31.12.2019.

29. The Petitioner No.2 was served the Letter dated 09.07.2020 and email dated 09.07.2020 stating that he being the nominee is liable for the offences in regard to the sample of ghee lifted from M/s Bhagwati Store on 07.03.2019 by FSO. The FSO sought confirmation of the name of the nominee of Petitioner No.1, GCFMML, a copy of the Form IX (Form of Nomination) and a signed copy of photo identification and residential proof. The Petitioner No.2 replied on 10.07.2020 and provided the details and the documents sought therein.

30. It is asserted that the FSO despite having been provided with all the Letters, Replies and the Documents, has proceeded to prosecute the Petitioners in an arbitrary manner and has filed the present Complaint Case on which cognizance has been taken by Ld. ACMM vide impugned Order dated 18.01.2021.

31. The grounds of challenge are that the seized products bearing the mark „AMUL Pure Ghee‟, which was seized by the FSO from M/s Bhagwati Store was counterfeit goods and were not supplied by the Petitioners. Furthermore, the 11 invoices from 05.12.2018 to 07.03.2019 on which reliance has been placed by Food Safety Officer, vide which the alleged product was supplied by M/s C P Wholesale India Pvt. Ltd. do not reflect the Batch Number and there is no material on record to even remotely suggest that the seized products had been manufactured by Petitioner No.3, Banaskantha or marketed by Petitioner No.1, GCFMML.

32. The Petitioners have claimed that M/s Bhagwati Store in connivance with M/s Virgo Agencies, have been dealing with counterfeited harmful products of various Companies including that of the Petitioner. No investigations have been conducted to ascertain if the seized products were indeed counterfeit. Notice dated 09.03.2020 issued by Ministry of Health and Family Welfare, Government of India directing the Food Safety Administration to be vigilant about the illegal act of counterfeiting has been completely disregarded.

33. It is asserted that Petitioner No.1, GCMMFL is the most reputed brand and has placed various quality checks at each stage of procurement and production to ensure that the products are not adulterated and strictly comply and confirm to the standards laid down in the Food Safety and Standards Authority of India (FSSAI), 2006. Any trace of vegetable oil is on account of product being counterfeited. The documents placed by the FSO have been ignored while issuing summons to the Petitioners. No enquiry has been made from FSO to satisfy that the prosecution launched qua seized goods were genuine products and not counterfeit products.

34. Furthermore, the Complaint is barred under Section 77 of Food Safety and Standards Authority of India (FSSAI), 2006 as it has been filed beyond a period of one year from the date of commission of offence. The product was lifted on 07.03.2019 and the Complaint ought to have been filed on or before 07.03.2020. The Complaint, however, has been filed on 05.09.2020. The Summoning Order is, therefore, liable to be set aside and the Complaint be quashed.

35. The Status Report has been filed on behalf of the Respondent Department of Food Safety, NCT of Delhi, wherein it is submitted that the sample of food article Ghee was taken on 07.03.2019. The Food Analyst vide his Report dated 20.03.2019 had reported that the sample is unsafe because it has added vegetable Oil in place of ghee which is inferior and cheaper substance and contravenes Clause IV, V and XI and Section 3(1)(zz) of the Food Safety and Standards Act, 2006. The sample is also substandard because Butyro Refractometer reading at 40 Deg. C. exceeds the prescribed maximum limit of 43.0 Reichart value which is less than the prescribed minimum limit of 28.0. The sample is an admixture of ghee and vegetable oil which is prohibited and restricted for sale as per Regulation No.2.1.1.[3] of the Food Safety & Standards (Prohibition & Restriction on Sales) Regulation 2011.

36. The Report was sent by the then designated Officer to FPOs giving them an opportunity to file an Appeal and to send a counter-part sample to Central Referral Food Lab under Section 46(4) FSSAI, 2006.

37. The manufacturer M/s Banas Dairy, Kanpur, Uttar Pradesh has preferred an Appeal against the Report of the Food Analyst under Rule 2.4.[6] of Food Safety & Standards Act, 2006 and Rules 2011 and accordingly, one counterpart sample was sent to Referral Food Laboratory, Kolkata, West Bengal. This act of filing an Appeal is admission on the part of the manufacturer that the sample Article belonged to the manufacturer. It being satisfied that the sample had been supplied by it, got the product retested and at that stage it did not complain about the product being counterfeit.

38. The Director, Central Food Laboratory, Kolkata in its Certificate dated 01.07.2019 opined that “The sample does not confirm to the standards laid down under Regulation 2.1.[8] of Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011 as it shows „B.R. Reading at 40º C more than the prescribed limit and „Reichert Meissl Value and Polenske value‟ less than the prescribed limit.

39. The parameters tested and found non-conforming, revealed it as a spurious non-dairy product. Further, it contravenes regulation no.2.4.5(4)̽ of FSS (Packaging & Labelling) Regulations, 2011 for misleading label declaration.” Hence, the sample was found to be sub-standard, unsafe and misbranded.

40. Furthermore, M/s CP Wholesale India Private Limited in its Letter dated 02.07.2019 has admitted that it had sold the product vide Invoice dated 07.01.2019 each 1 Kg to M/s Virgo Agencies. It also admitted that between 05.12.2018 to 07.03.2019 the product had been procured from Supplier only and from no other source either in cash or otherwise. The Sample article was manufactured, packed and supplied by M/s Banaskantha District C-operative Milk Producer‟s Union Limited, Kanpur, U.P to Petitioner No.1 M/s Gujarat Co-operative Milk Marketing Federation Ltd. as disclosed by it in its Letters dated 16.03.2020 and 10.07.2020.

41. On investigations, it was found that all the respondents named in the Complaint and Amrish Diwedi, nominee of Bans Dairy were altogether responsible for day-to-day conduct of business and were responsible for violating the FSA and Regulations therein. The consent of Department of Prosecution was taken and thereafter, the Complaint has been filed. There is no infirmity in the Summoning Order dated 18.01.2021 and the present Petitions are liable to be dismissed. Submissions heard and record perused.

42. The quashing of the Petition has been sought essentially on the ground that the product that was seized by the Food Inspector was not supplied or not manufactured by the Petitioners. In order to corroborate that these are counterfeit products, reliance has been placed on the Invoices vide which the products of the Batch No. BKM3392 had been supplied to the nine Distributors. However, it is a matter of evidence and it is for the Petitioners not only to prove that that the food product had not been supplied by them to M/s Bhagwati Store, who in turn had obtained it from M/s Virgo Agencies and Supplier. At this stage of summoning the documents which are relied upon by the Petitioner, cannot be considered to be of such a quality or such public documents which per se can be considered for quashing of the Impugned Complaint. These are private documents which are required to be proved during the evidence. Therefore, there is no ground made up for quashing of the present Petition.

43. The second ground for quashing is that these are counterfeit products. However, to corroborate these assertions, the Petitioners have not only relied on Invoices to establish that the goods of the Batch in question, were not supplied by them to M/s Virgo Agencies, but are also relying on the Test Reports by which they had counter-checked the genuineness of the Products of this Batch. However, these are the documents and the facts which need to be established by the Petitioners in the Evidence.

44. A plea has been taken on behalf of the Petitioners that the Impugned Complaint, is barred by limitation. The samples admittedly were lifted M/s Bhagwati Store on 07.03.2019 which implies that the Complaint could have been filed in the Court till 07.03.2020. In this context it would be pertinent to refer to Section 77 FSS Act which provides for time limit for prosecution. It reads as under:

45. This Section, therefore, empowers the Commissioner of Food Safety for the reasons to be recorded in writing to approve prosecution within an extended period of upto three years. The perusal of Sanction Order dated 31.08.2020 shows that the Food Commissioner had duly noted that the prosecution could not be launched within one year period as FBO‟s/concerned persons did not respond in time and due to nationwide lockdown declared in view of COVID Pandemic. On the request of Food Safety Officer, the Commissioner, Department of Food Safety, Govt. of NCT of Delhi, therefore, extended the time to launch prosecution under Section 77 FSS Act which was granted by the Commissioner. The Complaint thereafter, has been filed in the Court on 03.09.2020.

46. In the light of Section 77 FSS Act the time period of launching the prosecution was extended by Commissioner, Food Safety Act and, therefore, it cannot be said that the Complaint is barred by limitation. This argument on behalf of the Petitioners is also without merit. Conclusion

47. It is, therefore, concluded that there is no ground for quashing of the Complaint or setting aside the Summoning Order dated 18.01.2021.

48. The Petitions are accordingly dismissed and stands disposed of along with the pending Application(s).

JUDGE AUGUST 11, 2025 N/VA