False allegation under PFA Act
Parvez
(Querist) 28 September 2010
This query is : Resolved
This is a case of failure of “Swiss Aqua” brand mineral water bottle sample(No.5538/ASR) taken by Chief Health Inspector of Northern Railway from pantry car of 2926 Up Paschim Express on 15Jun97 from Mr. Gulab Premanna ,Bill Issuer of Pantry car no.94192(CPT62).
As per the sample report of mineral water bottle “The sample was not found contaminated however was found not having properly labeled and therefore it was taken as “misbranded” (Batch/lot/code no of the product were not given).
In this case, Mr. Gulab Premanna, bill issuer and Mr. Shabbir Shaikh, CCTRI Dinning Car, Mumbai Central have been made first and second party while the firm M/s natural Food Products, Borivali (W) Mumbai (Supplier of Swiss Aqua brand mineral water) has been made third party.
The case has been filed in the court of Judicial magistrate, First class at Amritsar and since then hearing has been going on at a regular interval.
Unfortunately, the two staff of Western Railway, Mr. Shabbir Shaikh CCTRI/Dining Car & Gulab H Premana ,Bill Issuer have been implicated in the prosecution in case no.55/99 in the court of JMIC-Amritsar. It is pointed out that Mr. Shabbir Shaikh-CCTRI has been made party in the case being in charge of Dining Car at Mumbai Central though not traveling in the pantry car.
The two of the Western railway Staff have been implicated for none of their fault.Hon’ble Court had issued a Warrant against the employees.
Strictly speaking the case should have been registered against the manufacturer/s Natural Food Products, Borivali, Mumbai and Railway staff could have been witnesses, if required. The staffs so charged have undergone mental, physical and financial agony. The contract was discontinued in 1997-98 itself whereas the case was registered after 2 years.
As per section 186 of Indian Railways Act, 1989 “No Suit, Prosecution or other legal proceeding shall lie against the Central Government, any administration, a railway servant or any other person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules or orders made there-under. This was completely ignored by the Hon’ble Court and warrants were issued.
Neither Mr. Shabbir Shaikh CCTRI/Dining Car nor Gulab H Premana ,Bill Issuer was guilty as Food and water is directly supplied in the sealed boxes from the store in the Train and there is no way that these staff can have a Quality Control.
Tenders are allotted to the contractors at a higher level by the Railway Administrative authority and staff is supposed to use the material supplied by the contractor which the staff did in a good faith. It is a Contractor/Supplier responsibility to ensure that material supplied is as per the terms and condition set by the Railway.
It is also pointed out that no sanction of Western railway was taken or proper advice was given by Northern Railway at any stage to prosecute the staff.
My Father (Mr. Shabbir Shaikh) has already retired in Apr10 and suffering from Hypertension and Diabetes. It is very inconvenient for him to travel all the way from Mumbai to Amritsar on all dates for which he is not at all responsible.
I have been given to understand that the trial is near completion.I wanted to check say God forbid if my father has been convicted by the court how can I proceed with the following:
What's the process to challenge the decission in Session Court?
If he is sentenced for imprisonment then how much time will it take to bail him out?
Is it possible to take a anticipatory bail?
Any other legal process by which I can avoid his arrest?
Your Truly,
Parvez
R.Ramachandran
(Expert) 28 September 2010
Dear Parvez,
I understand your position.
It is not the manufacturer alone, but in terms of Section 16 (1), any person, who manufactures for sale, or stores, sells or distributes any article of food ...
which is adulterated (misbranding is deemed to be adulterated)is liable.
Can you say that while the bulk of the water bottles contained the branding - i.e. batch number etc., only one or two did not bear it since the plastic label had fallen off etc., due to handling.
Parvez
(Querist) 28 September 2010
Dear Ramachandran,
Many Thanks for quick revert.We have considered few strong point while preaparing our defense.
1)Sample was not sealed pack as per the rule and there is possiblity that batch no has got erased/sample was manipulated.
2)Prosecution was filed after shelf life of the sample of the water and mandatory right of accused is lost due to lack of institution of proceeding in the prescribed time.
3)My Father was not holding the duty of store manager and his responsiblity is only of rostering the staff and other administrative activities.Goods are taken from the store and supplied in the train.
Inspite of all the above strong point for defense I am little worried about wha stand that the Judge take after considering all the above point.Logically and morally I don't foresee that I father will be punished however just incase if the verdict goes against my father then i wanted to know if there is any way that I can avoid his arrest through anticipatory bail/bail post judgement before the case is challenged in the session court.
I have also attached copy of defense that we have filed in the honourable court.
