Da vs . Ramesh Kumar Page 1 Of 50 on 5 March, 2014

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Delhi District Court

Da vs . Ramesh Kumar Page 1 Of 50 on 5 March, 2014

IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI

C.C. No. 89/2000

COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954

Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant

Versus

Sh. Ramesh Kumar
S/o Sh. Diwan Chand
M/s Ramesh Provision Store,
2365/2, Gali Mandir, Shadipur,
Delhi.
........ VendorcumProprietor

Serial number of the case : 89/2000
Date of the commission of the offence : 14.05.1999
Date of filing of the complaint : 01/05/00
Name of the Complainant : Ms. Usha Kiran, Food Inspector

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Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954 and Rule 23, 28, 29 & 44
AAA of PFA Rules, 1955,
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 05/03/14
Judgment announced on : 05/03/14

Brief facts of the case

1. In brief the case of the prosecution is that on 14.05.1999 at about 05.45

p.m, Food Inspectors Ms. Usha Kiran and Sh. Suniti Kumar Gupta under the

supervision and directions of SDM / LHA Neeraj Bharti visited M/s Ramesh Provision

Store, 2365/2, Gali Mandir, Shadipur, Delhi, where accused Ramesh Kumar was

found present conducting the business of various food articles including Dal masoor

Dhuli, for sale for human consumption and in compliance of the provisions of the

Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration

Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected /

purchased the sample of Dal masoor Dhuli.

2. It is further the prosecution's case that the sample was sent to Public

Analyst for analysis and as per the report of Public Analyst the sample was adulterated

because it was found "coloured with synthetic colour matter viz. sunset yellow fcf"

and accordingly after obtaining the necessary Sanction / Consent under Section 20 of

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the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a)

(j) and (m) of PFA Act 1954 and r/w Rule 23 and 28 of PFA Rules 1955, punishable

U/s 16 (1A) r/w Section 7 of the Act.

3. After the complaint was filed, the accused was summoned vide orders

dated 01.05.2000. The accused after filing his appearance moved an application under

Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from

Central Food Laboratory and consequent thereto second counterpart of the sample as

per the choice of the accused was sent to Director, CFL (Calcutta) for its analysis vide

orders dated 17.04.2000. The Director, CFL after analysing the sample opined vide its

Certificate dated 20.06.2000 that "The sample of Dal Masoor Dhuli is adulterated".

The Director so opined as sunset yellow and unpermitted orange shade synthetic dye

was present and sample also tested positive for mineral oil though it should have been

absent.

4. In pre charge evidence, the prosecution examined two witnesses i.e. the

the then FI Suniti Kumar Gupta as PW1 and FI Usha Kiran as PW2 and pre charge

evidence was closed vide order dated 07.02.2007.

5. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act

1954 punishable U/s 16 (1) r/w section 7 of the Act was framed against the accused

vide order dated 24.10.2007 to which accused pleaded not guilty and claimed trial.

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6. Thereafter, in post charge evidence the prosecution examined three

witnesses including the Food Inspector Suniti Kumar Gupta as PW1, Food Inspector

Usha Kiran as PW2 and the then SDM Sh. Neeraj Bharti as PW3 and PE was closed

vide order dated 22.08.2012.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 16.11.2012

wherein the accused claimed himself to be innocent. Despite opportunity given

accused failed to examine any witness in his defence.

8. Today during the course of arguments Ld. defence counsel fairly

conceded that merely on account of typographical error/oversight the section was

mentioned as 16 (1) and not 16 (1A) by the Ld. Predecessor of this court in the charge

as framed on 24.10.2007. Also Rule 44 AAA was not specifically mentioned though it

was mentioned in the charge that the sample tested positive for mineral oil. Ld.

counsel has submitted that he has no objection if the said mistake/error is rectified.

A brief scrutiny of the evidence recorded in the matter is as under:

9. PW1 Suniti Kumar Gupta deposed that on 14.05.1999 he accompanied

FI Usha Kiran under the supervision of Sh. Neeraj Bharti, SDM/LHA and visited M/s

Ramesh Provision Store 2365/2, Gali Mandir, Shadipur, Delhi where accused Ramesh

Kumar was found conducting the business of the store after having stored Dal Masoor

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Dhuli, a food article use for human consumption. He deposed that dal in question was

contained in an open gunny bag with no label declaration. He deposed that after

disclosing his identity to the accused FI intended to purchase a sample of dal for

analysis to which the accused also agreed. He deposed that FI made efforts to join

some public witnesses in the proceedings by requesting some passersby, neighboring

shopkeepers and customers but none came forward and on the request of FI he joined

the proceedings. He deposed that at about 05.45 p.m. FI purchased approximately

600 grams of Dal Masoor Dhuli from the accused on payment of Rs. 18/ to him vide

receipt Ex. PW1/A. He deposed that the Dal was purchased after the same was

properly mixed up with the help of a clean and dry Jhaba in all possible directions in

the said open gunny bag and FI divided the sample into 3 equal parts by putting the

same in 3 separate clean and dry bottles and each bottle was separately packed,

fastened, marked and sealed as per law. He deposed that LHA slips bearing his code

number and signature were pasted on each bottle and thereafter accused signed the

same in a manner that his signature appeared on slips as well as on wrappers. He

deposed that FI prepared notice Ex. PW1/B and panchnama Ex. PW1/C. He deposed

that a copy of the notice was also received by the accused. He deposed that all the

aforesaid documents were read over and explained to the accused in Hindi thereafter

accused signed at point A, FI signed at point B and he signed at point C separately.

10. During his cross examination he stated that accused was running a retail

shop. He denied the suggestion that accused informed at the spot that he purchased

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the Dal Masoor Dhuli from M/s Chuni Lal Suraj Bhan of Naya Bazar, Delhi. He stated

that no written notice was issued to the vendor to disclose the source of purchase but

he was verbally inquired about the same and he could not disclose the source of

purchase to the FI. He stated that in his career he must have joined sample

proceedings of Dal either as main Food Inspector or attesting witness more than 100

cases but today he does not remember in any case where the vendor informed the

source of purchase. He stated that he does not recollect any case in which after

informing at the time of sampling that vendor was not in possession of bill and later on

bill was produced before the court. He denied the suggestion that as a matter of

practice they do not implead the supplier as an accused. He stated that it was not

mentioned in any document prepared at the spot that on their inquiry vendor did not

disclose the source of purchase. He denied the suggestion that sample got

contaminated due to defective procedure adopted by the FI.

11. PW2 Food Inspector Ms. Usha Kiran deposed on the same lines as

deposed by PW1 in his examination in chief. In addition she deposed that one

counterpart of the sample in intact condition was deposited with the PA vide PA receipt

Ex. PW2/A on 17.05.1999. She deposed that all the copies of Memo of Form VII were

marked with the impression of seal which was used to seal the sample counterparts.

She deposed that the remaining two counterparts of sample in intact condition along

with two copies of Memo of Form VII in a sealed packet were deposited with the LHA

on 17.05.1999 vide Ex. PW2/B with intimation that one counterpart of the sample in

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intact condition has already been deposited with PA. All the copies of memo of Form

VII were marked with the impression of seal which was used to seal the sample

counterpart. She deposed that on receipt of the PA report Ex. PW2/C according to

which sample does not conform to the standards because it was coloured with the

artificial colouring matter sunset yellow fcf as mentioned therein at portion X. She

further deposed that she further investigated the matter and sent a letter Ex. PW2/D to

STO Ward no. 102 and reply received at portion A according to which Ramesh Kumar

is the proprietor of the said firm. She deposed that she sent a letter to DHO, MCD

Karol Bagh Zone and reply Ex. PW2/E was received. She deposed that the reply of

Chunni Lal Suraj Bhan Ex. PW2/F was given to her letter in which he denied of having

sold any open dal to vendor, her letter to vendor is Ex. PW2/G and his reply is Ex.

PW2/H along with photocopy of a bill Mark A and the other reply of the vendor is Ex.

PW2/J She deposed that after completion of investigation, the complete case file along

with all the statutory documents were sent to the Director Sh. Ashok Bakshi through

LHA who after going through the entire case file applied his mind and gave the

sanction for prosecution vide Ex. PW2/K against accused who was found to be the

vendor cum proprietor of the said firm. She deposed that complaint Ex. PW2/L was

filed in the court by her. She deposed that intimation letter Ex. PW2/M along with the

PA report was sent to accused by registered post through LHA which was not received

back undelivered. The postal registration receipt is Ex. PW2/N.

12. During her cross examination she stated that no written notice was given

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to the accused to disclose the source of purchase at the spot. She voluntarily stated

that he was verbally inquired but could not disclose the source of purchase. She

stated that during investigation she also sent a letter to vendor to disclose the source

of purchase and he gave reply that he purchased the sample commodity from Chuni

Lal Suraj Bhan, 4060B, Naya Bazar, Delhi and also sent the photocopy of Bill Mark A.

She admitted that Ex. DW1/A is the original of Mark A. She denied the suggestion that

he had also sent a copy of receipt no 84422 dated 8.09.1999 from Chuni Lal Suraj

Bhan for Rs. 18,057.05 paise in respect of payment and the same is mark B. She

stated that during investigation she went to M/s Chuni Lal Suraj Bhan and they gave

reply Ex. PW2/F but took the stand that they do not sell Dal in loose condition. She

stated that they did not specifically deny the bill Ex. DW1/A and as such she did not

recommend the prosecution. She stated that there was about 1520 Kg of Dal Masoor

Dhuli. She stated that accused did not sell the Dal Masoor Dhuli to any customer in

her presence. She stated that 600 gms of Dal Masoor Dhuli was taken after weighing

after putting in an envelope. She denied the suggestion that there was no space in the

shop and after taking the sample they went into the official vehicle and completed the

sample proceedings in absence of accused. She stated that she cannot say that if

mineral oil is found in Dal Masoor Dhuli by one Analyst then every Analyst will find the

same. She admitted that if one Analyst finds colour in Dal Masoor Dhuli every Analyst

examine the commodity will find the same. She stated that she cannot say that if it is

scientifically explainable that one Analyst finds one colour in the sample while the

other finds two colours in another counterparts. She denied the suggestion that a

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representative sample was not taken. She denied the suggestion that paper envelope

in which Dal was put was not clean. She denied the suggestion that sample got

contaminated due to defective sampling. She denied the suggestion that she

deliberately avoided to prosecute the supplier.

13. PW3 the then SDM/LHA Sh. Neeraj Bharti deposed on the same lines as

deposed by PW1 and PW2 in their examination in chief.

14. This so far is the prosecution evidence in the matter.

15. I have heard the arguments advanced at bar by the Ld. defence counsel

as also the Ld. SPP for complainant. I have also carefully gone through the evidence

recorded in the matter and perused the documents placed on record by the

prosecution in this case.

16. After hearing the rival contentions raised at bar as well as on careful

scrutiny of the material on record, I am of the considered opinion that the prosecution

has successfully brought home the guilt against the accused.

17. It stands unambiguously proved from the deposition of the prosecution

witnesses especially Food Inspector Usha Kiran coupled with the report of the CFL

dated 20.06.2000 that accused Ramesh Kumar was indeed found selling Dal Masoor

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(dhuli) which was adulterated on account of containing synthetic colour viz. Sunset

yellow FCF as well as non permitted Orange shade synthetic dye and mineral oil

through it should have been free from the same.

18. The star / the material witness of the prosecution i.e. Food Inspector

Usha Kiran categorically proved that on 14.05.1999 she along with Food Inspector

Suniti Kumar Gupta and SDM / LHA Neeraj Bharti visited the premises of accused

Ramesh Kumar who was found present conducting the business of various food

articles including Dal masoor Dhulii, for sale for human consumption and in

compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the

Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act &

Rules) she collected / purchased the sample of Dal masoor Dhuli. She proved the

sample proceedings vide Ex. PW 1/A to Ex. PW 1/C. She further proved the deposit

of the sample with the Public Analyst and deposit of the counterparts of the sample

with the Local Health Authority vide Ex. PW2/B and C. She further proved that the Dal

masoor Dhuli on analysis by the public analyst vide his report Ex. PW2/C was found

adulterated as it was containing synthetic colour sunset yellow FCF. The Sanction /

Consent for prosecution was proved as Ex. PW2/K and the complaint was proved as

Ex. PW2/L.

19. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. PW1 Food Inspector Suniti Kumar Gupta and

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PW3 Sh. Neeraj Bharti, the then SDM/LHA.

20. Furthermore the fact that the sample was collected/lifted by the Food

Inspector on 14.05.1999 as well as that the accused was the vendor was not disputed

during the trial and was also admitted by the accused during his examination under

Section 313 Cr. P.C as recorded before the Ld. Predecessor of this Court on

23.06.2011. From the answers given by the accused to question no. 1 & 2 which are

admissible in evidence against the accused in view of sub clause (4) of Section 313

Cr. P.C as well as the law laid down in Benny Thomas Vs. Food Inspector, Kochi

2008 (1) FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal)

842, Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh.

Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V.

Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam

2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC

258, State of H.P. V. Wazir Chand AIR 1978 SC 315 no dispute remains that the

sample of Dal masoor Dali (dhuli) was indeed collected by the Food Inspector for

analysis from vendor/accused Ramesh Kumar. In addition to the admissions the

statement of the accused/vendor Ex. PW2/J on record which is in his own handwriting

and Ex. PW1/B i.e. Form VI and Ex. PW1/A i.e. Vendor's receipt which bears the

signature of accused Ramesh further proves that accused was the vendor at the time

of sale of the sample Dal to the Food Inspector.

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21. During the course of arguments, Ld. defence counsel appearing for

accused argued that the prosecution miserably failed to bring home the guilt against

the accused. It was argued that the prosecution story suffers from various loopholes /

contradictions.

Public witness

22. At the outset it was argued that no public witness was joined by the Food

Inspector (FI) during the alleged sample proceedings which is in violation of section 10

(7) and therefore the accused is entitled to be acquitted on this ground alone. It was

argued that the FI despite the mandate of section 10 (7) did not deliberately join any

public person i.e. customers, neighbourers etc. in the sample proceedings. However I

do not agree with the contentions raised by the Ld. Defence counsel. The Hon'ble

Apex Court in Shriram Labhaya Vs. MCD
, decided on 26.02.1974
has categorically

held that testimony of the Food Inspector alone, if believed, is sufficient to convict the

accused and there is no requirement of independent corroboration by public persons

unless the testimony suffers from fatal inconsistencies. Similarly in Babu Lal Vs.

State, AIR 1971, SC 1277 It has been held that there is no rule of law that a conviction

can not be based on the sole testimony of Food Inspector. Reliance may also be

placed upon Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs.

State of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs.

Pyare Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,

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Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.

Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State

Vs. Narayanasamy 1997 (2) FAC 203.

State
23. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

24. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy

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course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

25. The two prosecution witnesses apart from the Food Inspector i.e.

SDM/LHA and FI Suniti Kumar Gupta duly corroborated the testimony of the Food

Inspector on material particulars. They unanimously deposed that the Food Inspector

tried to associate public persons i.e. the passersby, shopkeepers, neighborers but

none agreed. Hence it is writ large from the deposition of PW1, PW2 and PW3 that FI

Usha Kiran made sincere efforts to join the public persons in the sample proceedings

but none agreed. I have no reason to disbelieve them. It is very hard these days to get

association of public witnesses in criminal investigation/implementation of

administrative powers/enforcement of law seeking to curb anti social evils. Normally,

nobody from public is prepared to suffer any inconvenience for the sake of society. I

find no reasons why the Food Inspector or the SDM would falsely implicate the

accused or depose falsely against him. Absence of public witness in this case is not

fatal to the prosecution as the prosecution story inspires confidence and lifting of the

sample stands unambiguously proved.

Rule 14

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26. It was one of the arguments that there was violation of Rule 14 of the

Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued

that at the time when the sample was collected, the Food Inspector failed to clean the

bottles as well as the instrument i.e. jhaba with which the sample was poured in the

bottles. It was argued that the colour was already sticking to the jhaba when the Dal

was taken out from the gunny bag for sampling. It was argued that even the paper

envelope in which the Dal was weighed was contaminated with colour. It was argued

that Rule 14 of the Act is mandatory and not directory and in case there is no strict

adherence to Rule 14, benefit has to be given to the accused. Reliance was placed on

the law laid down in Sri Ram Swaroop Vs. State 1978 (1) FAC 76, State of

Maharashtra Vs. Bhaskar Rajeshwari, Koyakutty Vs. FI 2001 (1) RCR 340,

Jagdish Chand Vs. State 1980 (II) FAC 323 and M. Mohammad vs. State 1978 (1)

FAC 114.

27. However I differ with the contentions as raised by the Ld. defence

counsel.

28. I have heard the Ld. defence counsel, gone through Rule 14 and the

case laws relied upon by the Ld. defence counsel and perused the deposition of the

Food Inspector and other complainant witnesses. After going through the material

available on record and the law cited by the Ld. defence counsel, I am of the opinion

that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at

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the time when the Food Inspector collects the sample, he shall ensure that not only the

container is clean but it is also dried. Furthermore the container/bottles should be

such so as to prevent any leakage, evaporation and in case of dry substance entrance

of moisture. The container should be sealed carefully to avoid the above. While

sampling the various types of articles of food, the Food Inspector should make use of

clean and dry appliances. He should use clean and dry spoon or other instruments

for sampling and avoid using his own hands to make the same. Furthermore he

should sample the article in hygienic conditions. Reliance may be placed upon

Varghese Vs. Food Inspector, 1989(2) FAC 236.

29. I have perused the deposition of the Food Inspector i.e. Usha Kiran who

was examined as PW2. The Food Inspector deposed as under:

"The sample was properly mixed with the help of a clean and dry Jhaba
by rotating in all possible directions i.e. Clockwise, anticlockwise, upward and
downward thoroughly several times. Then and there I divided the sample counter
parts equally in three equal sample parts by putting them in three clean and dry glass
bottles........."

30. During her crossexamination she stated as under:

" It is wrong to suggest that paper envelope in which Dal was put was not
clean. It is wrong to suggest that sample got contaminated due to defective sampling.

31. Similarly PW1 Suniti Kumar Gupta deposed as under:

" The dal was purchased after the same was properly mixed up with the
help of a clean and dry Jhaba in all possible directions in the said open gunny bag. FI
divided the sample into 3 equal parts by putting the same in 3 separate clean and dry

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bottles......."

32. During his cross examination he stated as under:

"It is wrong to suggest that sample got contaminated due to defective
procedure adopted by the FI."

33. PW3 the then SDM/LHA Neeraj Bharti deposed as under:

"Before taking the sample Dal Masoor Dhuli was properly mixed with the
help of a clean and dry JHABA by rotating it in all possible directions in the gunny bag
itself. The so purchased quantity of sample commodity was divided into three equal
parts by putting it into three clean and dry sample glass bottles"

34. Hence the prosecution witnesses consistently deposed regarding the

jhaba as well as the sample bottles being clean and dry. I have no reasons to

disbelieve them. Nothing on record has been proved to the contrary i.e. the defence

has not proved that the Food Inspector did not comply with the provisions of the Rule

14. Just because the defence is challenging the sampling process conducted by the

Food Inspector / asserting that Rule 14 was violated is not sufficient to either

disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I find

no reasons why the Food Inspector would depose falsely or falsely implicate the

accused, there being no previous enmity against him. I have also gone through

Section 114 (e) of the Indian Evidence Act.

Section 114 reads as under:

" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,

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human conduct and public and private business, in their relation to facts of
the particular case."

Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"

35. The above provisions and the legislation is based upon the maxim

"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly

and regularly done. This presumption chiefly applied to official acts. It means that an

official act is proved to have been done, it would be presumed to have been regularly

done. The presumption under Section 114 (e) could only be nullified by clear and

cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)

Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.

Assessar, 5 OLJ 179)".

36. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757

(Guh.) it was observed that irregularity is not to be presumed but a partly alleging

it may prove it. It was observed that, "The Local (Health) Authority is a public official.

The act of the Local (Health) Authority in despatching a copy of its report of analysis of

a food article with necessary intimation or information is an official act. When the act

has been shown to have been performed, it is open to the court in its discretion to

draw the presumption that the act has been performed regularly. If there is acceptable

evidence to show that the Local (Health Authority) has forwarded the document, by

virtue of illustration (e) to section 114, the court may presume that it was forwarded

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regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,

1954 and Rule 9A of the Rules."

37. In the face of clear statement of the Food Inspector that he has taken the

proceedings of taking sample and sealing according to Rules, a presumption can be

drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,

1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,

Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1

and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].

38. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with

Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper

approach to proceed with doubt or disbelief unless there is something to excite

suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi

(2002) 5 FAC 234.

39. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it

was observed as under:

"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

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40. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

41. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:

"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

42. Apart from the bald suggestion that the bottles as well as the jhaba were

not clean or dry the defence has been unable to prove that the sample proceedings

were indeed bad or conducted in violation of Rule 14. Thus, there is no force in the

averments made by the Ld. defence counsel.

Homogenization / Mixing of Sample.

43. It was also one of the arguments of the Ld. defence counsel that the

sample was not properly mixed / homogenized at the time when it was lifted and

accordingly the sample which were sent to PA and Director, CFL were not

"representative" and this is the reason why there is variations in the report of Public

Analyst and Director, CFL. It was further argued that there was variations in the report

of the Public Analyst for example the Public Analyst found the extraneous matter at

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0.18% and the edible grains at 0.16%, on the other hand, the Director found the same

to be Nil. Similarly the PA only found Sunset yellow FCF colour in the sample

whereas the Director also found Orange shade synthetic dye in addition to Sunset

Yellow. Similarly the moisture was found by the PA at 9.54% but the Director found

the same to be 12.8%. Also no test for mineral oil was done by the PA whereas the

Director found the sample to be positive for mineral oil. It was argued that this

variation in the report regarding the colours detected and the limits/percentage of

moisture being more than 0.3% which is the permissible limit proves that the sample

were not representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2)

FAC 219 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.

44. However, I find no merits in the contention of the Ld. defence counsel.

45. Firstly the Food Inspector and the other complainant witnesses

categorically stated that the sample was taken after mixing the Dal masoor Dhuli

properly by rotating it in all possible directions several times. I have no reasons to

disbelieve the Food Inspector or the other complainant witnesses in this regard.

Moreover, there was no requirement of mixing or making the sample i.e. the Dal

homogenized as such in view of the law laid down in Dhian Chand Vs. State of

Haryana, 1999 (1) FAC 272. It was laid down in the above said case as under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make

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DA Vs. Ramesh Kumar Page 21 of 50
any difference whether the sample was taken from the upper layer or from the bottom
or it was taken from the side. Food Inspector has stated that the sample was taken
after the entire chilly powder had been mixed in the tin. In State of Haryana Vs.
Hukam Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly
mixing is of common knowledge so far as milk is concerned as the upper layer of the
milk usually contains more of cream and this principle cannot be extended to the
cases of adulterated Atta. In
1992(1) FAC 283
(supra) it was observed that there is

no requirement either of the provisions of the Prevention of Food Adulteration Act or
the rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."

46. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Hon.

Apex Court observed as under:

"If the food sold to the food inspector is proved to be adulterated, it is

immaterial whether the sample purchased by him is a representative sample or not of

the entire stock in possession of the person".

47. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982

(2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.

CC No. 89/2000
DA Vs. Ramesh Kumar Page 22 of 50
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).

48. It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
usual mode of supply to the customer when he comes to purchase. If there is
normally a practice of stirring and mixing when the food stuff concerned is sold to

customers from time to time representative sample would be that which is taken after
such stirring and mixing. If on the other hand the usual mode of sale is to take portions
by portions without any such stirring or mixing there can be no complaint that the
sample sold is not a representative sample. Ice cream is a commodity which is not
expected to lose its shape and form when the sale is effected. Ice cream when
liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream
then. It is too unreasonable therefore to expect that a representative sample of Ice
cream could be taken by the Food Inspector only by stirring the entire mass of ice
cream available for sale and taking the sample thereafter. Hence there is no
justification to apply any rule of representative sampling.

49. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984

(1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of

Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food
Inspector and not necessarily a government officer, is entitled to purchase an article of

CC No. 89/2000
DA Vs. Ramesh Kumar Page 23 of 50
food from a vendor and send it for analysis provided he follows the procedure
mentioned in Section 12 of the Act. If a private person purchases a portion of ice
cream from the respondent under Section 12 of the Act and causes the sample to be

analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

50. It was further observed:

"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."

51. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

52. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:

"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire CC No. 89/2000 DA Vs. Ramesh Kumar Page 24 of 50 quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."

53. In the case at hand not only from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the Dal was properly mixed at the time of sampling but in view of the above discussion, I am of the opinion that it being the case of Dal masoor Dhuli it was not required to homogenize the Dal masoor. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal the vendor does not give the Dal after mixing the Dal with the help of Jhaba in the gunny bag/bag in which he has stored the dal in his shop. He does not first rotate the Dal in all possible directions several times and then sell the Dal to the customer. He merely takes out the Dal with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the Dal to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI.

Variations.

CC No. 89/2000 DA Vs. Ramesh Kumar Page 25 of 50

54. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation of more than 0.3% in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

55. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."

56. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:

"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the CC No. 89/2000 DA Vs. Ramesh Kumar Page 26 of 50 sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"

It was further observed in para 3 as under:

"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".

57. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:

"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the CC No. 89/2000 DA Vs. Ramesh Kumar Page 27 of 50 tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory.".

58. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.

59. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:

"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be CC No. 89/2000 DA Vs. Ramesh Kumar Page 28 of 50 convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".

60. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:

"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".

61. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:

"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they CC No. 89/2000 DA Vs. Ramesh Kumar Page 29 of 50 have to be strictly complied with.".

62. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:

"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".

In para 15 it has been further observed as under:

"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".

63. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:

"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."

64. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit CC No. 89/2000 DA Vs. Ramesh Kumar Page 30 of 50 for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".

It was further held in para 11 to 14 as under:

"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".

65. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:

"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."

66. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:

"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the CC No. 89/2000 DA Vs. Ramesh Kumar Page 31 of 50 Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".

67. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".

68. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.

69. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:

"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".

70. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) CC No. 89/2000 DA Vs. Ramesh Kumar Page 32 of 50 FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:

"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".

71. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:

"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".

72. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:

"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be CC No. 89/2000 DA Vs. Ramesh Kumar Page 33 of 50 looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."

14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".

73. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director.

CC No. 89/2000 DA Vs. Ramesh Kumar Page 34 of 50

The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

74. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:

"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.

75. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded.

76. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:

"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date CC No. 89/2000 DA Vs. Ramesh Kumar Page 35 of 50 on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.

77. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.

78. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed in para 53 above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

CC No. 89/2000 DA Vs. Ramesh Kumar Page 36 of 50

79. Moreover I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being CC No. 89/2000 DA Vs. Ramesh Kumar Page 37 of 50 representative arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

80. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

81. Nonetheless, if the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ CC No. 89/2000 DA Vs. Ramesh Kumar Page 38 of 50 decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:

"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

Use of colour.

82. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 Sunset yellow FCF though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of Sunset Yellow FCF or the Orange shade dye would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

83. However, I differ with the contentions raised by the Ld. defence counsel CC No. 89/2000 DA Vs. Ramesh Kumar Page 39 of 50 in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

84. In the case at hand the Director found the sample to be adulterated as it CC No. 89/2000 DA Vs. Ramesh Kumar Page 40 of 50 contain sunset yellow colour as well as non permitted Orange shade synthetic dye whereas the sample ought to have been free from any colouring substance or dye as Dal Masoor is not one of the food articles appearing in Rule 29 wherein synthetic colours listed in Rule 28 could be added. The dal ought to have been free from any synthetic colour or dye.

Injurious to health.

85. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

86. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised CC No. 89/2000 DA Vs. Ramesh Kumar Page 41 of 50 by law has been used for mixing.".

87. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

88. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

89. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 the Hon'ble Apex Court observed as under:

"Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".

90. The Dal Masoor is not one of the food articles appearing in Rule 29 of PFA Rules 1955 wherein certain synthetic colours as mentioned in Rule 28 could be added hence the mere presence of the colour to Dal Masoor amounts to adulteration. Moreover the dal could not have been coated with the mineral oil as per Rule 44 AAA Appendix B A.18.06.05.

CC No. 89/2000 DA Vs. Ramesh Kumar Page 42 of 50 Paper Chromatography Test.

91. It was also argued that the PA or the Director did not specify the tests used by them to test/ analyze the sample and hence their report cannot be accepted. However I find no merits in the contentions of Ld. Defence counsel. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404, where it was held as under:

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act."

Percentage of colour

92. It was also argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Khusi Ram Vs. State 1984 (2) FAC 256, and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23, 28 and 29 it becomes amply clear CC No. 89/2000 DA Vs. Ramesh Kumar Page 43 of 50 that no colour could be added to the Dal Masoor as Dal Masoor does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA or the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

Warranty.

93. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor CC No. 89/2000 DA Vs. Ramesh Kumar Page 44 of 50 had purchased the article from M/s Chuni Lal Surajbhan vide Bill Ex. DW1/A and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued that the vendor / accused had purchased the article from the above manufacturer / dealer vide Ex. DW1/A and the said fact was also made known to the Food Inspector and thus the accused deserves the benefit of warranty.

94. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.

95. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may CC No. 89/2000 DA Vs. Ramesh Kumar Page 45 of 50 be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.

96. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:

"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."

97. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 CC No. 89/2000 DA Vs. Ramesh Kumar Page 46 of 50

98. In the case at hand, no doubt the accused placed on record bill Ex. DW1/A purportedly issued by M/s Chuni Lal Suraj Bhan however the said bill does not come to the rescue of the accused for numerous reasons. Firstly, the bill i.e. Ex. DW1/A was not proved as per the rules of evidence. The executor of the bill was never examined by the accused. The bill does not bear the signatures of the accused and it is not clear as to whose signatures appear on the bill. Its genuineness/ authenticity is doubtful. The accused ought to have either examined or produced the executor of the bill/ the proprietor/owner of M/s Chuni Lal Suraj Bhan in the Court in his defence. For reasons best known to him he did not do so. Neither he lead any defence evidence nor did he prove the bill as per the rules of evidence. Secondly, even if the bill is assumed to be genuine still complainant/prosecution witness i.e. FI Usha Kiran i.e. PW2 categorically stated that she had investigated the matter qua Ex. DW1/A by examining/recording statement of Chuni Lal Suraj Bhan, proprietor of the firm who issued the bill in question. The statement is on record as Ex. PW2/F. In the said statement the proprietor had categorically stated that the commodity in question/ the Dal was not sold in loose condition to the accused. PW2 accordingly closed her investigation qua M/s Chuni Lal Suraj Bhan as she was of the opinion that the moment the Dal was sold loose/ from an open gunny bag the warranty expired. Once this statement of the Food Inspector came on record it was all the more incumbent upon the accused to lead defence evidence, examine Chuni Lal Suraj Bhan and prove that the submissions made by Chuni Lal Suraj Bhan and the Food Inspector were incorrect and that he was still entitled for the warranty which he did not do. Thirdly, admittedly CC No. 89/2000 DA Vs. Ramesh Kumar Page 47 of 50 the dal was sold to the Food Inspector from an open gunny bag i.e. in loose condition therefore he is not entitled to the warranty. No doubt the accused placed reliance upon the judgment of the Hon. Apex court titled as Andhra Pradesh Grains and Seeds Merchants etc. Vs. Union of India, 1972 FAC 379 however the said judgment does not come to the rescue of the accused in view of law discussed above. In fact it is elaborately discussed in the judgment relied upon by the accused that to avail the warranty the vendor is obliged to prove that he properly stored the articles and sold it in the same state as he purchased. The Apex Court observed in para 13 as under:

"He is protected (vendor), provided he has properly stored the articles and sells it in the same state as he purchased the articles........."

99. In the case at hand the Food Inspector categorically stated that she had taken out the sample from open gunny bag and it is also proved by the Food Inspector that the alleged supplier/ manufacturer i.e. Chunu Lal Suraj Bhan had sold the food article in stitched condition/stitched bag. It is not disputed by the defence that the sample was lifted from an open bag. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana CC No. 89/2000 DA Vs. Ramesh Kumar Page 48 of 50 shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is reliable and not the manufacturer/supplier who no longer has control over the articles so sold.

100. In view of my above discussion, as colour Sunset Yellow FCF and Orange shade synthetic dye was found by the Director in the sample of Dal masoor Dhuli which was also coated with mineral oil which is not permitted under / is in violation of Rule 23 r/w Rule 28 and 29 and 44 AAA of PFA Rules 1955, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 r/w Rule 23, 28, CC No. 89/2000 DA Vs. Ramesh Kumar Page 49 of 50 29 and 44 AAA of PFA Rules 1955.

101. Let the accused be heard separately on point of sentence.

          Announced in the open Court                              (Gaurav Rao)
          on 5th March, 2014                                   ACMMII/ New Delhi




      CC No. 89/2000
      DA  Vs.  Ramesh Kumar                                                         Page 50 of 50

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