Delhi District Court
Da vs . Raghunandan Sharma Etc. Page 1 Of 66 on 24 August, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 223/04
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
1. Raghunandan Sharma s/o Chote Lal Sharma
M/s New Shiv Store,
F8, Bawana Road, Samaipur,
Delhi110042.
.......Vendor/ Proprietor
2. Shiv Avtar Jindal s/o Gopal Jindal
M/s Hari Ram Sri Gopal
Plot No. 3, Mohan Nagar Sonipat
Haryana
........ Proprietor of supplier firm
Serial number of the case : 223/04
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DA Vs. Raghunandan Sharma etc. Page 1 of 66
Date of the commission of the offence : 23.12.2003
Date of filing of the complaint : 27.10.2004
Name of the Complainant : Sh. Suniti Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (j) & (m) of PFA Act
1954 and Section 2 (ix) (k) of PFA
Act r/w Rule 32 (f) of PFA Rules
1955, which is punishable u/s 16
(1A) of the PFA Act r/w section 7
of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Accused no. 1 convicted
Accused no. 2 acquitted
Arguments heard on : 24.08.2015
Judgment announced on : 24.08.2015
Brief facts of the case
1. In brief the case of the prosecution is that on 23.12.2003 at about 06.00
p.m..Food Inspector Suniti Kumar Gupta and Field Assistant Sh. Satish Kumar Gaur
under the supervision and directions of SDM / LHA Sh. G.P. Singh visited the
premises of M/s New Shiv Store, F8, Bawana Road, Samaypur, Delhi, where accused
no. 1 Raghunandan Sharma who was the vendorcumproprietor was found present
conducting the business of food articles in the said shop including Mirch Powder 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, the
Food Inspector collected / purchased the sample of Mirch Powder.
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2. During the course of investigation it was revealed by vendor/accused no.
1 Raghunandan Sharma that sampled commodity was supplied to him by M/s Shri
Hari Shri Gopal of which accused no. 2 Shiv Avtar Jindal is the proprietor.
3. 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 coloured with unpermitted oil soluble synthetic colouring matter.
Further the sample was also found misbranded as the month of packing was not given
and accordingly after obtaining the necessary Sanction / Consent under Section 20 of
the Act the present complaint was filed for violation of provisions of Section 2 (ia) (j) &
(m) of PFA Act 1954 and Section 2 (ix) (k) of PFA Act and also violated Rule 32 (f) of
PFA Rules, 1955, punishable U/s 16(1A) r/w section 7 of the PFA Act.
4. After the complaint was filed, the accused persons were summoned vide
orders dated 27.10.2004.
5. In pre charge evidence, the prosecution examined one witness i.e. Sh.
Suniti Kumar Gupta, Food Inspector as PW1 and pre charge evidence was closed
vide order dated 27.03.2010.
6. Charge for violation of provision of Section 2 (ia) (j) & (m) of PFA Act
1954 and Section 2 (ix) (k) of PFA Act r/w Rule 32 (f) of PFA Rules 1955, which is
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punishable u/s 16 (1A) of the PFA Act r/w section 7 of the PFA Act was framed
against the accused persons vide orders dated 22.04.2010 to which accused persons
pleaded not guilty and claimed trial.
7. In the post charge evidence the prosecution examined three witness i.e.
Sh. Suniti Kumar Gupta, Food Inspector as PW1, Sh. G. P. Singh, the then SDM/LHA
as PW2 and Sh. Satish Kumar Gaur, Field Assistant as PW3 and PE was closed vide
orders dated 02.04.2012.
8. Statement of accused no. 1 U/s 313 Cr. P.C. was recorded on
08.11.2012 and statement of accused no. 2 was recorded on 07.05.2013 wherein both
the accused persons claimed themselves to be innocent. Accused no. 1 examined one
witness i.e. Field Assistant Pratap Raj as DW1 in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
9. PW1 Food Inspector Suniti Kumar Gupta deposed that on 23.12.2003
he along with Satish Kumar Gaur, FA and other staff under the supervision and
direction of SDM/LHA Sh. G.P. Singh visited the premises of M/s New Shiv Store,
F8, Bawana Road, Samaypur, Delhi where accused Raghunandan Sharma was
found conducting the business of the said shop including Mirch Powder, in sealed
packets of 1 kg each having identical label declaration, a food article for sale for
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human consumption. He deposed that he disclosed his identity and intention for
purchasing the sample of Mirch Powder ready for sale in the form of sealed polythene
packets having identical label declaration for analysis to which accused agreed. He
deposed that before taking the sample he tried his best to procure some public
witnesses by requesting some neighbouring shopkeepers, customers and passersby
etc. to join the sample proceedings but as none agreed for the same on his request FA
Saitsh Kumar Gaur agreed and joined as witness. He deposed that at about 06.00
p.m. he purchased 3 x 1 Kg sealed packets of Mirch Powder bearing identical label
declaration on payment of Rs. 135/ vide vendor's receipt Ex. PW1/A. He deposed
that vendor also issued a cash memo Ex. PW1/A1. He deposed that then he divided
the sample into three equal parts by putting one originally sealed packet in one
counterpart and each counterpart containing the sample of mirch powder was
separately packed, fastened, marked and sealed according to PFA Act and rules. He
deposed that LHA slips bearing his code number and signature were affixed on each
counterpart. He deposed that then the vendor signatures and thumb impression were
obtained on LHA slip on each counterparts of the sample in such a manner that a
portion of his signature were on the wrapper as well as on the LHA slips. He deposed
that then notice in Form VI Ex. PW1/B was prepared at the spot and copy of it was
given to the accused as per his endorsement at portion A to A bearing his signature at
point A. He deposed that Panchnama Ex. PW1/C was prepared. He deposed that
raid report under Rule 9 (e) Ex. PW1/C1 was also prepared at the spot. He deposed
that all these documents Ex. PW1/A to Ex. PW1/C were read over and explained to
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the accused in Hindi and after understanding the same he signed and put his thumb
impression at point A, witness signed at point B and he signed at point C respectively.
He deposed that one counterpart of the sample in intact condition was deposited with
the PA on 24.12.2003 i.e. next working day vide receipt Ex. PW1/D and a memo VII in
a sealed packet separately. He deposed that all the copies of memo in Form VII bear
the seal impression with which sample were sealed. He deposed that two
counterparts of the sample along with two copies of Memo of Form VII in a sealed
packet were deposited in intact condition with the LHA on 24.12.2003 i.e. next working
day vide receipt Ex. PW1/E bearing his signatures at point A with the intimation that
one counterpart of the sample has already been deposited in intact condition with the
PA. He deposed that all the copies of memo of Form VII bore the same seal
impression with which the sample in question was sealed. He deposed that PA report
Ex. PW1/F was received according to which the sample was found adulterated as well
as misbranded as mentioned therein at portion X. He deposed that during
investigation he sent a letter Ex. PW1/G to STO Ward no. 63 and as per its reply at
portion A no such firm was found registered with the Sales Tax. He deposed that he
also sent a letter Ex PW1/H to DHO, MCD but no reply was received. He deposed
that he also sent a letter Ex. PW1/I to vendor and received reply Ex. PW1/J along with
photocopy of MCD renewal receipt Mark X. He deposed that he also sent two letters
Ex. PW1/K and K1 to Shri Hari Ram Shri Gopal, supplier of the sample commodity but
no reply was received. He deposed that he also sent two letters Ex. PW1/L and L1 to
DHO, Sonepat, Haryana one through LHA but no reply was received. He deposed
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that he also sent two letters Ex. PW1/M and M1 to Deputy Excise and Taxation
Commissioner, Sonepat Haryana and received reply Ex. PW1/M2 according to which
Shiv Avtar is the proprietor of M/s Shri Hari Ram Shri Gopal, the supplier firmcum
manufacturer of the sample commodity. He deposed that during investigation he also
visited Sonepat, Haryana the address of the firm and on that address the firm was
found closed. He deposed that then on completion of the investigation the complete
case file along with all statutory documents were sent through LHA/SDM to then
Director PFA Sh. V.K. Singh who after going through the case file applied his mind and
gave his consent for prosecution vide Ex. PW1/N bearing his signatures at point A.
He deposed that he filed the complaint Ex. PW1/O bearing his signatures at point A in
the court. He deposed that intimation letters Ex. PW1/P was sent with the copy of PA
report by registered post to accused persons through SDM/LHA as mentioned therein
which were not received back undelivered. Photocopy of postal registration receipt is
Ex. PW1/Q.
10. During his cross examination conducted by Ld. Counsel for accused no.
1 he stated that the intimation letter along with PA report was sent through registered
post to both the accused which were not received back undelivered. He stated that
there were eleven packets of Mirch powder having identical label declaration. He
stated that there was no apparent leakage or tampering in the sample packets. He
stated that the label of the sample packets was reproduced in the notice in Form VI.
He stated that vendor did not inform the source of purchase at the time of sampling.
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He voluntarily stated that the vendor informed the source of purchase during
investigation. He stated that during investigation he was satisfied that the sample
commodity was supplied by the accused no. 2 to vendor. He admitted that intimation
letters were sent to both the accused along with PA reports through registered post.
He voluntarily stated that same was not received back undelivered. He admitted that
he had not personally delivered these letters to accused persons.
11. During his cross examination conducted by Ld. Counsel for accused no.
2 he stated that no purchase bill was given by the vendor at the spot. He stated that
sample commodity was not supplied in his presence. He stated that there was label
as well as declaration of the vendor during investigation that he purchased the sample
commodity from accused no. 2 so he was satisfied that accused no. 2 was the supplier
and manufacturer of the sample commodity. He stated that he only once visited the
firm of accused no. 2 at Sonepat and same was found closed on that day. He
voluntarily stated that he came to know that after lifting the sample the firm stopped
functioning. He stated that he did not record the statement of any person to this
effect. He denied the suggestion that accused no. 2 was not the manufacturer of
Mirch Powder. He stated that the vendor did not hand over any purchase bill at the
spot or during investigation. He admitted that accused no. 2 never supplied the
sample commodity to the vendor in his presence. He stated that he does not
remember the date and time of his visit to Sonepat in connection with the investigation
of this case. He stated that accused was not available at his factory in Sonepat when
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he visited the same and the factory was found closed. He stated that he did not visit
the residence of the accused as till that time he was not having his residential address.
He stated that he enquired about the residential address of the accused from the
Chowkidar of the factory but he did not disclose the same. He denied the suggestion
that there was no factory of the accused in Sonepat or there was no Chowkidar at the
factory. He denied the suggestion that he never visited Sonepat. He denied the
suggestion that he was deposing falsely in collusion with vendor. He denied the
suggestion that accused no. 2 has nothing to do with the sample commodity.
12. PW2 the then SDM/LHA Sh. G. P. Singh and PW3 Field Assistant Sh.
Satish Kumar Gaur have deposed on the same lines as deposed by PW1 in his
examination in chief.
13. This so far is the prosecution evidence in the matter. Accused no. 1 led
the defence evidence as under:
14. DW1 FA Pratap Raj produced two counterparts of the sample commodity
which were deposited with LHA by the FI having sealed with the Seal of SK and
having sample No. 62/1040/55/03 and LHA No. 62/LHA/7556, dated 23.12.2003. The
packet was opened and it contained two sealed packets having same Seal and same
LHA No. One of the packet was opened and as per the label declaration among other
details it mentions "Date of Pkg: March 2003, TM Registered No. 892237, Best Before:
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Six Months from the Date of Pkg., Manufactured by : Shri Hari Ram Shri Gopal, Plot
No. 3, Mohan Nagar, Sonipat131001 (Hry.).
15. This so far is the evidence in the matter.
16. 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.
17. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Suniti Kumar Gupta coupled with the report of the
PA dated 19.01.2004 that accused/vendor Raghunandan Sharma was indeed found
selling Mirch Powder which was not conforming to the standards as it contained
unpermitted oil soluble synthetic colouring matter.
18. The star / the material witness of the prosecution i.e. Food Inspector
Suniti Kumar Gupta categorically proved the sample proceedings dated 23.12.2003 as
were conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution and which bears the
signature of the accused as well, the admissions made by accused no. 1 during his
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examination under Section 313 Cr. P.C, specifically question no. 1 and 2 and as were
recorded before the Ld. Predecessor of this Court on 08.11.2012 which are admissible
in evidence against the accused persons 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 (2) 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 doubt remains that the
sample of Mirch Powder was indeed collected by the Food Inspector for analysis from
M/s New Shiv Store of which the accused Raghunandan Sharma was the vendor at
the time of lifting of the sample.
19. During the course of arguments, Ld. defence counsels appearing for both
the accused persons argued that the prosecution miserably failed to bring home the
guilt against them. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
20. At the outset it was also argued that no public witness was joined by the
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FI during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused are 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 and hence no
reliance can be placed on the alleged sample proceedings.
21. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 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. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in 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,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
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Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
22. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
23. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
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the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
24. In State 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........... 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.".
25. 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."
26. It is writ large from the deposition of PW1, PW2 and PW3 that FI Suniti
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Kumar Gupta 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. 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 admitted/unambiguously proved. Furthermore, I find no reasons why
the Food Inspector or the SDM would falsely implicate the accused persons or depose
falsely against them. There is nothing on record to suggest that the FI, the SDM were
inimical to the accused persons or had any grudge or enmity to falsely implicate them.
Violation of Rule 14 and 22A
27. It was also 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 as per Rule 14 the sample of food for the purpose of analysis should be
taken in clean and dry bottles or jars or in other suitable containers which shall be
closed sufficiently tied to prevent leakage, evaporation or in case of dry substance,
entrance of moisture and shall be carefully sealed. It was argued that in the case at
hand the FI did not adopt the above prescribed procedure i.e. did not put the sample in
any bottle, jar or container and merely took/lifted 3 packets randomly and put one
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packet as such in three different pullandas to make them three counterparts. It was
argued that this was the wrong procedure and hence the entire sample proceedings
are bad in law.
28. However, I find no merits in the contentions raised by the Ld. Defence
Counsel.
29. I find nothing wrong in the sample proceedings or the manner in which
the sample was lifted by the Food Inspector. It stands unambiguously established in
view of the deposition of the prosecution witnesses who corroborated each other that
when they reached the shop of the accused they found Mirch Powder lying in sealed
packets. The packets were having identical label declaration. The packets being
sealed the FI took 3 such sealed packets and converted them into three counterparts
by putting 1 packet as such in three counterparts/pullanda and then sealed the
pullandas. I find nothing wrong in the said procedure.
30. As far as the defence arguments that the packets were not put into any
bottle or Jar or suitable container and therefore there was violation of Rule 14 is
concerned it is absolutely meritless. The purpose/rationale behind Rule 14 is that the
commodity of which the sample was lifted should be sufficiently secured till its
analysis. The aim of Rule 14 is that the sample should be lifted in a manner wherein
after the lifting of the sample till its analysis the sample remains in the same condition
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as it was lifted that is to say that the sample does not get adulterated or deteriorated or
decomposed for reasons beyond the control of the vendor from whom the sample was
lifted or which can be attributable to the wrong sampling by the Food Inspector. The
purpose is to secure the sample in exactly the same condition in which it was lifted.
The rule makes it amply clear that no particular or specific container is needed to store
the sample commodity. The use of words "other suitable container" which are
supplemented with the words " which shall be closed sufficiently to prevent leakage,
evaporation........ entrance of moisture and shall be carefully sealed" leaves no doubt
whatsoever that the sample can be stored in box, container or any other mode wherein
it can be safely secured to prevent its leakage, adulteration or deterioration. In the
case at hand the sample was lying in sealed packets and it was again put into a
sealed pullanda by the Food Inspector and it remained in such condition till its analysis
by the PA as is reflected in report Ex. PW1/F wherein the PA reported as " Mirch
Powder sample in original sealed packet".
31. It was also one of the arguments that there was violation of Rule 22A of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that though the FI allegedly lifted/purchased 3 X 1 Kg of sealed packets of
Mirch Powder however there was complete violation of Rule 22A and the report of the
Public Analyst would reveal that the sample commodity did not belong to the same lot.
It was argued that as per the report of the Public Analyst the month of packaging was
not given on the counterpart of the sample so sent to her for analysis whereas as per
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notice in Form VI i.e. Ex. PW1/B and deposition of DW1 it stands proved that the date
of packaging was duly mentioned as March 2003. The Ld. Counsel argued that
therefore not only there was a complete violation of Rule 22A but also as Mirch
Powder packets were of different lot a representative sample was not taken by the FI.
32. I have gone through Rule 22A, perused notice in Form VI i.e. Ex. PW1/B
and the PA's report i.e. Ex. PW1/F and I find no violation of Rule 22A in the case at
hand.
Rule 22A reads as under:
"Contents of one or more similar sealed containers having identical
labels to constitute the quantity of a food sample - Where food is sold or stocked
for sale or for distribution in sealed containers having identical label declaration, the
contents of one or more of such containers as may be required to satisfy the quantity
prescribed in Rule 22 shall be treated to be a part of the sample."
33. The import of Rule 22A is that when the food is sold in a sealed
containers bearing identical label declaration the sealed container as such must be
sent to the Public Analyst for analysis of the contents and it is only when they are sent
in that condition that the containers shall be treated as the part of the sample.
34. In the case at hand in view of the consistent testimony of the prosecution
witnesses which remained unchallenged it stands duly established that the packets
were of the same lot as they were having identical label declaration. Not even a single
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suggestion was given to any of the prosecution witnesses that the packets were not of
the same lot or that the label declaration appearing on them was different. Hence it is
not now open to agitate that the packets were of different lot. Furthermore, it is to be
seen that when the sample was purchased by the Food Inspector he prepared Ex.
PW1/B i.e. Notice in Form VI wherein it is reflected as " Mirch Powder taken as 3
originally sealed packets having the following identical label declaration". This notice in
Form VI bears the signatures of the vendor/accused no. 1 as well. The accused no.
1/vendor did not make any endorsement at that time i.e. when the Notice in Form VI
was prepared that the Mirch Powder was not of same lot. Therefore, I find no reasons
to disbelieve the testimony of the Food Inspector or the story of the prosecution as
such that the Mirch Powder was not of same lot. Therefore the entire sample
proceedings were done by the Food Inspector strictly as per the rules prescribed for
lifting of the sample. Nonetheless it is well established that Rule 22A is not mandatory
but directory as held in State of Punjab Vs. Devender Kumar and ors. 1983 AIR
545 and Food Inspector, Tellichery Vs. T.M. Abooty 1990 (1) EFR 267.
35. As far as the defence argument that a representative sample was not
taken I find no merits in the same. As discussed above the packets of Mirch Powder
were of the same lot. Nonetheless in State of Kerela Vs. Alassery Mohd. 1978 (1)
FAC 145, the Full Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative sample..........We are not
impressed by this argument at all. Representative sample has got a different
CC No. 223/04
DA Vs. Raghunandan Sharma etc. Page 19 of 66
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. 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. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
36. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 135/ to the
accused no. 1/vendor towards the purchase of sample commodity. In this regard
vendor's receipt Ex. PW1/A as well as cash memo Ex. PW1/A1 was executed which
bears the signature of accused at point A. The testimony of the Food Inspector has
gone unrebutted on this material particular. The testimony of the other prosecution
witnesses which is on the same lines has also remained unchallenged. Hence sale to
FI stands proved. The Hon. Apex Court in The food Inspector, Calicut Corporation
vs. C. Gopalan & another 19481997 FAC (SC) 73 observed as "........when there is
a sale to the Food Inspector under the Act of an article of food, which is found to be
adulterated, the accused will be guilty of an offence punishable under Section 16 (1)
(a) (i) read with Section 7 of the Act. In MCD Vs. Shri Ail Das & Anr. 1975 FAC
223, Division Bench of the Hon'ble High Court of Delhi held as "As was laid down
by a Full Bench of this Court in Madan Lal Vs. State 1972 F.A.C. 481.........it must
be held that if the respondents in the two appeals were dealers in toned milk as such,
they would be guilty of an offence under the Act notwithstanding the fact that they did CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 20 of 66 not agree to sell the toned milk to the Food Inspector or to accept its price from him." 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. 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).
37. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:
"I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter, the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter." Further reliance be placed upon the law laid down in The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 and Dhian Chand Vs. State of Haryana, 1999 (1) FAC 272.CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 21 of 66
38. I find no reasons to disbelieve the testimony of the Food Inspector or to doubt the sample proceedings. 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, 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"
39. 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)".
40. 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 party alleging CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 22 of 66 it may prove it.
41. 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.].
42. 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.
43. 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.".CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 23 of 66
44. 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."
PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.
45. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to either of the accused persons and accordingly the accused persons could not exercise their right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused persons as their right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and State Vs. Subhash Chand 2012 (II) JCC 1004.
46. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 27.10.2004 and the next date of hearing before the court was 02.03.2005. However in between the dates of hearing i.e. on 08.11.2004 accused no. 1 appeared before the Ld. Predecessor of this CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 24 of 66 court as he had moved an application for bail. It is reflected in proceedings dated 08.11.2004 as under: "File has been taken up on an application moved by A1 for bail. Considered. A1 is admitted to the court bail upon furnishing bail bond in the sum of Rs. 15,000/ with one surety of the like amount. Bail bond is moved and accepted. A1 has submitted that he shall not be moving an application u/s 13 (2) PFA Act. Matter now be listed for the date already fixed i.e. 2.3.05 for appearance of accused no. 2.
47. Thereafter on 02.03.2015 accused no. 2 remained absent despite service of process and NBWs were issued against him for the next date of hearing i.e. 03.08.2005. NBWs were issued afresh for 09.01.2006, 23.05.2006 and 21.02.2007. However on 06.06.2007 accused no. 2 appeared in the court and he was released on bail. On that day accused no. 2 did not move any application u/s 13 (2) PFA Act.
48. Therefore in the case at hand the accused persons voluntarily did not exercise their right u/s 13 (2) PFA Act as they did not move any application on 08.11.2004 or anytime before or after it. Accused no. 1 voluntarily and for reasons best known to him did not exercise the right available to him u/s 13 (2) as is reflected in proceedings dated 08.11.2004. As far as accused no. 2 is concerned he also did not move any application and the reasons for the same is writ large from the record/trial and that is the disowning of the sampled product/ denying sale of sampled product to accused no. 1 by accused no. 2. Once they themselves did not exercise CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 25 of 66 the right u/s 13(2) PFA Act they cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.
49. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".
50. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."
51. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 26 of 66
52. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no sample was sent to Director, CFL, the petitioner can make no grievance.
53. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.
54. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director."
55. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under:
".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right."
56. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 27 of 66 given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........
57. Therefore denial of statutory right to them was because of their own volition.
58. As far as the service of the intimation letter and the PA report to the accused persons is concerned firstly as discussed above the accused persons voluntarily did not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon them or not looses much of its significance as nothing stopped them from moving the application on the first day of their appearance i.e. 08.11.2004 and 02.03.2005 subject to the provision of Section 13 which mandates the filing of application within 10 days of the receipt of the copy of the report. Secondly, PW1 FI Suniti Kumar Gupta as well as PW2 SDM/LHA Sh. G.P. Singh categorically deposed that the intimation letter along with PA's report was sent to the accused persons by registered post vide Ex. PW1/P and Q. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to the accused persons by registered post. Their testimony thus remained unchallenged and I have no reasons no disbelieve them or to agree to the defence contentions that no CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 28 of 66 report was received by the accused persons. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:
"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise does not assume importance".
59. Thirdly, section 114 of the Evidence Act and the presumption which Section 114 raises has been discussed above. Clause (f) of Section 114 reads as under:
"That the common course of business had been followed in particular cases"
60. It is now well settled that sending by post, means sending by post to the addressees proper address. Where a notice has to be served through post, all that a sender can do to comply with the provisions is to post the prepaid registered letter containing addressees correct address. Once he does this and the letter is delivered to the post office, he has no control over it. In that event, under Section 27 of the General Clauses Act, the letter shall be presumed to have been delivered to the addressee. There is no obligation upon the sender to prove the service of notice upon the addressee if he send the notice by registered post, properly addressed. Where a letter is sent under certificate of posting a presumption arises under Section 114 of the CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 29 of 66 Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P. Rama Reddy, 2003(3) Andh. LT 120 (AP)]
61. Once the evidence discloses that the letter was addressed at a proper address by registered post then unless it is rebutted or the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post it is presumed that there is a proper service. If the addressee either can not be met or refused to take delivery there appears to be no reason why the letter should not be considered as properly served upon the addressee ( State Vs. Bhag Chand Sadhu Mal, 1999 (3) Guj. LR 2220.)
62. In the absence of anything indicating that such letters were not posted or concocted the presumption under Section 114 (f) comes into play (Vandavasi Kartikaya Vs. S. Kamalanna, A 1994 AP 102).
63. A bare denial with no reliable evidence is not sufficient to rebut the presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial without reliable evidence, without further rebuttal, the presumption continues [Fazal Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].
64. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the prosecution did not prove any postal acknowledgment signed by the accused to prove CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 30 of 66 about the service of copy of the report of the Public Analyst which had been sent by registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300 the court held as under:
"In the present case the petitioner in his examination under section 313 Cr. P.C has merely denied to have received the copy of the report of the Public Anlayst. However, no evidence has been adduced on behalf of the accused persons to rebut the presumption available under the General Clauses Act as well as Section 114 of the Evidence Act. As observed by the Division Bench of this Court, when it is proved that registered letter has been posted after being duly stamped in the address of a person, a presumption arises that such letter must have been served on the addressee. The evidence adduced on behalf of the prosecution to the effect that the report of the Public Analyst had been posted by registered post as per the postal receipt has not been successfully challenged by the petitioner in any manner in cross examination. The mere denial of the accused in his statement under Section 313, Code of Criminal Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act.".
65. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it was held "admittedly there is presumption in law that a communication sent by post on the correct address of the addressee is presumed to have been received by him if it is not received back by the sender."
66. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 31 of 66 have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act.".
67. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon the sender or the postman to arrange that notice to be served upon the addressee. If a letter is posted prepaid and registered with a acknowledgment due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the letter is delivered to the addressee.".
68. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sender as unserved.".
69. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held that prosecution is not required to prove that the applicant has acknowledged the copy of the Public Analyst's Report.
70. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act."CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 32 of 66
71. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that where extract of the relevant entries in the register maintained in the office also indicated that the notice under section 13(2) of the Act alongwith the report of the Public Analyst was sent to the applicant by registered post on the address available on record and it is not the contention that the accused / addressee / vendor did not reside at the address on which the notice was sent then "The mere fact, that A/D receipt was not filed or received back, was not sufficient to rebut or dislodge the presumption of service of notice sent by registered post in absence of any evidence to the contrary.". Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex Court has held "the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. This principle was propounded keeping in view the provisions of section 27 of the General Clauses Act."
72. In the case at hand in view of categorical deposition of the Food Inspector and the SDM/LHA coupled with Ex. PW1/P and Q, entry no. 1421 and 1422 as discussed above a presumption tenable in the eyes of law can be drawn that the PA's report along with intimation letter was duly delivered upon/received by the accused persons. The address appearing on Ex. PW1/P and Q is the same address on which summons were issued by the court for appearance of the accused persons for 02.03.2005. However as discussed above the accused no. 1 appeared in between CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 33 of 66 the dates i.e. on 08.11.2004 which itself proves that the intimation letter along with PA's report was duly served upon him. The intimation letter Ex. PW1/P dated 01.11.2004 was sent to the accused persons vide registered post vide Ex. PW1/Q i.e. it was dispatched after 3 days of the launching of the prosecution in the court and it was only on account of the service of the intimation letters that the accused no. 1 had moved the bail application on 08.11.2004 i.e. within the stipulated period of 10 days as there was no other way he could have come to know about the launching of the prosecution. Moreover during his examination u/s 313 Cr.P.C. one question about the delivery/receiving of the intimation letter along with PA's report accused no. 1 stated /admitted that he had received one letter however he does not remember exactly what it was. I have no doubts that it was nothing but the PA's report and intimation letter.
73. As far as accused no. 2 is concerned he remained absent despite service of process, issuance of NBWs and he did not file his appearance before 06.06.2007 by which date the mandatory/ stipulated period of 10 days expired and that is why no application was moved. It is also to be seen that the summons issued to the accused persons were duly served upon them and therefore I find no reasons why the intimation letter along with the PA's report posted on the same address would not be received by them. The address appearing on Ex. PW1/P and Q are the same addresses as appearing in the complaint as well as on the summons. It is not the defence case that the addresses are incorrect.
CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 34 of 66 Delay
74. The Ld. Defence counsels also argued that the prosecution was launched after more than 10 months since the lifting of the sample and this caused serious prejudice to the accused persons. It was argued that after such a long period/gap of more than 10 months the sample would not have remained fit for analysis by the Director and hence no purpose would have been served by moving the application u/s 13 (2) and therefore delay in launching the prosecution defeated the valuable right of accused persons more so when the product had already crossed its shelf life period. It was argued that it stands proved from the deposition of DW1 i.e. FA Pratap Raj that as per the label declaration appearing on the package the date of packaging was March 2003 and the Best Before period was 6 months from the said date i.e. till September 2003 whereas the prosecution was launched in October 2004 and therefore the product could not have remained fit for analysis at that time. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However, I differ with the Ld. defence counsels. No doubt the sample was collected on 23.12.2003 and the prosecution was launched after more than 10 months however this delay by itself cannot lead to any presumption that the sample would have decomposed/ deteriorated by the time the complaint was filed in the court i.e on 27.10.2004 and thus automatically the accused's right would have been prejudiced. Firstly, it being the sample of Mirch Powder I have CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 35 of 66 no reasons to assume or presume that merely on account of lapse of 10 months from the date of lifting of the sample till the filing of the complaint the sample would have decomposed or deteriorated or rendered unfit for analysis by that time. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample of Mirch Powder would have deteriorated due to lapse of 10 months. Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 . Secondly, the accused persons should have moved application u/s 13 (2)/should have exercised the right therein and only if the Director had opined that sample was decomposed they would have been entitled to the benefit or could have claimed prejudice. Reliance may be placed upon Ajit Prasad's case (supra) as well as MCD Vs. Ghisa Ram 19481997 FAC (SC) 265 and Babu Lal Hargovind Das Vs. State of Gujarat 19481997 FAC (SC) 1083. They did not exercise their right for reasons best known to them.
75. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 10 months the sample of Mirch Powder would have decomposed/rendered unfit for analysis despite addition of formalin. Mirch Powder is not a substance/food article which would deteriorate/decompose solely due to lapse of time
76. In Babu Lal Hargovind Das Vs. State of Gujarat, 19481997 FAC (SC) 1084, the Hon. Apex Court observed at para 6 as under:
CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 36 of 66
"There is also in our view to justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi vs. Ghisa Ram 1967 (2) S.C.R. 116 :
19481997 FAC (SC) 93 has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative..................No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory".
77. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
78. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 37 of 66 Director of CFL". In these circumstances the report of the PA was accepted in maintaining the conviction.
79. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
".....mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.
80. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........
.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 38 of 66
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed.".".
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186, the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 39 of 66 Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 40 of 66
It was further observed in para 76 as under:
"In Dalchand 1982 (2) FAC 29, the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 41 of 66
81. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
82. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
83. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 42 of 66 was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
84. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
85. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
86. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 43 of 66 that elapsed between the taking of the sample and its examination by the Public Analyst.".
87. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, it was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."
88. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 44 of 66 the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
89. 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 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".
90. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 45 of 66 certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".
91. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 46 of 66
92. In Krishan Lal v. MCD 1984 (2) FAC 89 the hon. High Court of Delhi after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director."
93. Hence the accused persons should have moved the application for sending counterpart of the sample to the Director and only if the Director had reported that the sample had decomposed or deteriorated that the accused persons would have been entitled to acquittal on account of prejudice being caused to them. Without moving the application they cannot claim any prejudice. Furthermore it ought to be remembered that as per the label declaration the date of packaging was March 2003 and the Best Before was 6 months from date of packaging and the sample was lifted in December 2003 i.e. after 3 months of the so declared shelf life. The accused himself was selling the food product after the expiry of the so called shelf life however when it comes to reasons behind not exercising the right u/s 13 (2) of PFA Act he (accused no. 1) seeks/ raises a plea of delay which if allowed would tantamount to giving him CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 47 of 66 the benefit of his own wrongs.
Prosecution is bad in law
94. It was also one of the argument of Ld. Defence counsel that the prosecution itself was bad in law. It was argued that the prosecution was launched on 27.10.2004 on the basis of the Public Analyst's report dated 19.01.2004. It was argued that as per the Public Analyst's report she used Chromatography method to analyze the sample/ detect the presence of artificial colour if any in the sampled product. Relying upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal), the Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because though Section 23 (which empowers the Central Government to make rules to carry out the provisions of the Act) was amended w.e.f. 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of Section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used however the methods of analysis to be adopted were specified for the first time only w.e.f. 25.03.2008 after clause 9 was inserted in Rule 4. It was argued that therefore any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or for that matter CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 48 of 66 the Director, CFL could adopt for analysis of the sampled product.
95. However I do not agree with the contentions of Ld. Defence counsel. I have perused the provisions of the Prevention of Food Adulteration Act 1954 as well as Food Adulteration Rules 1955.
96. As per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the government Central or State by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL the report is final/holds good for all purposes/ remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43. In the case at hand PA vide her report Ex PW/1/F found admixture of orange and pink synthetic oil soluble colouring matter in the sample of the Mirch Powder which is not permitted/ in violation of Rule 23, 28 and 29 as well as standards of Mirch Powder. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F. CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 49 of 66 41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 19.01.2004 she was a duly/ validly appointed Public Analyst.
97. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same read as:
The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A subcommittee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Subcommittee and approved by CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 50 of 66 Central Committee for Food Standards are published for the guidance of all concerned."
98. The Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee i.e. Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
99. Therefore on the day of analysis of the sample in question the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample.
100. As far as Pepsico's case (supra) is concerned the judgment cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgment relied upon by the Ld. Defence counsel read as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 51 of 66 convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
101. It is to be seen that in that case as observed in para 34 even the laboratories where the tests were to be performed were not specified. But as is the case herein the analysis was done by CFL, Pune which was a specified/ designated laboratory to analyze the sample as per Rule 3 r/w section 13 of the Act. Moreover in Pepsico's case it was held that the percentage of Carbofuran detected in the sample was within the tolerance limits prescribed for sweetened carbonated water. CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 52 of 66
102. Regarding the pick and choose method as discussed above the Central Committee for Food Standards, constituted by the Central Government as per Section 3 of the PFA Act to give effect to the scheme and purpose of the Act, considered this aspect and directed and specified the methods to be adopted uniformally for analysis of the food product to remove the anomaly which may occur due to use of different methods by different experts in respect of the same food product. These adopted methods were used prior to their being specifically notified in Rule 4 (9) which came into force w.e.f. 2008 and which had led to the adulterators being prosecuted and punished even by the Hon'ble Apex Court in numerous rulings upto the year 2008 also.
Paper Chromatography Test
103. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the PA she used 6.4.3 ICMR Manual method i.e. Paper Chromatography method. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. was the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 53 of 66 High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. 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 (Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ), 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.".".
19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."
104. The judgment passed by the Hon'ble High Court of Delhi in Ashwani Kumar's case (supra) was challenged vide SLP no. 5014/2013 however the SLP was dismissed by Hon'ble Apex court vide orders dated 11.07.2014. CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 54 of 66 Name and percentage of colour
105. It was further argued that in the report of the PA the name and the percentage of colour has not been mentioned hence it cannot be concluded as to what was the nature and exact quantity of the colour detected to make it adulterated. However, I do not agree with the above contentions of Ld. Defence counsel. The standard of chillies/ Mirch powder i.e. Kutti Mirch is given at A.05.05.01 wherein it is specifically mentioned "the powder shall be dry, free from dirt, extraneous colouring matter.........". Furthermore it is crystal clear from a combined reading of Rule 23, 28 and 29 that Mirch Powder/kutti mirch is not one of the food article wherein colours could be added. The PA categorically reported that the sample contained "admixture of orange and pink synthetic oil soluble colouring matter". As discussed above the report of the PA was never challenged i.e. to say she was not called/summoned for cross examination to contradict her claims. Hence the report of the PA attained finality. Use of the words "unpermitted" and "synthetic" itself is ample proof of the fact that pink and orange colour detected by the PA were not natural colour of Mirch Powder and they were artificial/ synthetic/added colours. No doubt the PA did not give the chemical names however she reported that they were non permitted synthetic colours which itself implies that the colours were alien/not natural colours to/of Lal mirch/chillies. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court held " if in the report he (PA) had stated that the sample of laddoos purchased by the CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 55 of 66 Food Inspector was coloured with unpermitted colour it would mean that the accused had not used any of the colours permitted under the Rules".
106. Moreover if the accused persons doubted the PA's report than nothing stopped the accused persons from summoning the PA for cross examination to rebut/contradict her report or to exercise their right u/s 13 (2) for analysis by the Director. Having not done so the Ld. Defence counsel/accused persons cannot now legitimately claim that the report was incorrect or that the colours detected were natural and not unpermitted oil soluble synthetic colours. Once they does not exercise the right they cannot complain.
107. As far as unpermitted synthetic colours detected in the sample is concerned in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976, 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 CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 56 of 66 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 Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 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) ".
108. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:
" Under Rule 2 (i) (j) the patisa in the preparation of which a non permissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... 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.".
109. As far as percentage is concerned once no colour could be added the CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 57 of 66 percentage looses significance. The 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 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. Injurious to health
110. It was also argued by Ld. Defence counsel that the prosecution could not prove that the presence of colours rendered the Mirch Powder injurious to health and accordingly there is nothing on record to suggest that the the customers were prejudiced on account of presence of colours. However the said contentions of Ld. Defence counsels are devoid of merits.
CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 58 of 66
111. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"
(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder."
112. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 59 of 66
113. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court observed at para 3 as under:
"Section 2 of the Act defines 'adulterated' that if the articles sold by a vendor is not of the nature, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated. If the quality or variety of the articles fall below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, is also adulterated. It would, therefore, be clear that the word 'adulterated' was used widely. If the food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof"
114. 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.".
115. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:
"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. As pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 60 of 66 not render it injurious to health".
116. 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.
117. 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.
Whether accused no. 1 is entitled to benefit of the warranty?
118. In the case at hand as discussed above lifting of sample from accused no. 1 Raghunandan Sharma vendor cum proprietor of M/s New Shiv Store stands proved. However, it was claimed by accused no. 1 that he is entitled to the benefit of warranty as envisaged under the Act as accused no. 1 was merely a vendorcum proprietor of M/s New Shiv Store i.e. a retailer and not the manufacturer of the sampled commodity. It was argued that the sampled commodity was procured for sale by accused no. 1 from M/s Shri Hari Shri Gopal of which Shiv Avtar Jindal i.e. accused no. 2 is its proprietor. It was argued that at the time when the sample was lifted by the CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 61 of 66 FI it was stored/sold to the FI in the same condition i.e. sealed packets as was procured by accused no. 1 from accused no. 2 and therefore accused no. 1 cannot be held liable for any adulteration in the sample more so when the Food Inspector and the other prosecution witnesses deposed that they were satisfied that the sample commodity was manufactured by accused no. 2.
119. The plea/defence of warranty as claimed by accused no. 1 was strongly opposed by accused no. 2. Counsel Sh. M.L. Narang appearing for accused no. 2 vehemently argued that the accused could not prove that he had purchased the sampled commodity from accused no. 2 or that sampled product was manufactured by accused no. 2 and therefore no question of giving him the benefit of warranty arises. It was further argued that the accused could not prove any bill/invoice etc. on record through which he had allegedly purchased the sampled commodity from accused no. 2 therefore no question of fixing the liability of accused no. 2 arises.
120. After giving my thoughtful considerations to the submissions made at bar, I am of the opinion that accused no. 1 is not entitled to the benefit of warranty.
121. 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 CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 62 of 66 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.
122. 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 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.
123. 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 CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 63 of 66 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
124. In the case at hand, accused no. 1 miserably failed to prove on record any bill to substantiate his claim that he had purchased/procured the commodity from accused no. 2. In the absence of any bill, invoice receipt, etc. no benefit of warranty can be extended to the accused no. 1. The plea of warranty rested on bald submission only. Though accused no. 1 relied upon the label declaration appearing on the package to claim the benefit of warranty as it is reflected on the package manufactured by: M/s Shri Hari Ram Shri Gopal, Plot no. 3, Mohan Nagar, Sonepat i.e. the manufacturer's name is the same as the name of firm of accused no. 2 however merely on the strength/basis of the declaration appearing on the said package no liability can be fastened upon accused no. 2. It cannot be ignored that there are various spurious products being sold in the market after putting up false labels/declarations showing them to have been manufactured by a particular manufacturer/firm/company. There ought to have been some positive/concrete evidence on record to connect the sample commodity with accused no. 2. It could not be proved on record that the product was indeed manufactured by accused no. 2. As CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 64 of 66 discussed above sale by accused no. 2 to him could not be proved by accused no. 1 as there is no bill, invoice etc. on record. There is no documentary or oral evidence to even remotely connect accused no. 2 with the sampled commodity. As far as the statement of the Food Inspector that he was satisfied that the sample commodity was manufactured by accused no. 2 is concerned same does not help the cause of accused no. 1. I fail to understand what material the Food Inspector relied upon to arrive at the said conclusion. The satisfaction as claimed by him is not based on any concrete evidence/proof and has no basis at all more so when even the alleged factory/unit where the Mirch Powder was being manufactured was found closed/not operating when the Food Inspector visited the same. He did not bother to collect any documentary evidence or record statement of any witness to connect accused no. 2 with the sampled product.
125. Though charge for violation of provisions of Rule 32 (f) r/w section 2 (ix)
(k) was also framed against the accused persons as the PA had reported that the date of packaging was not mentioned on the label declaration however prosecution miserably failed to prove the same/make out a case for violation of Rule 32 (f). Reason is that when the sample was lifted the Food Inspector had reproduced label declaration on notice in Form VI which was the foremost document prepared at the spot wherein the date of packaging has been duly mentioned as March 2003. It stands established that packets were of the same lot. Furthermore when the remaining two counterparts were produced in the court and one of them was opened even that CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 65 of 66 packet/counterpart contained the date of packaging as March 2003. Hence it appears that the report of the PA regarding not mentioning date of packaging on the label declaration and violation of Rule 32 (f) thereupon was a result of oversight/inadvertence by the Public Analyst or may be the date got erased as usually the dates are put in on the packets with an ink/stamped later on which can get erased/deleted for numerous reasons. The accused in light of Notice in Form VI as well as deposition of DW1 deserves the benefit of doubt regarding violation of Rule 32
(f).
126. Accordingly in view of my above discussion accused no. 2 is acquitted of the charges in the present case. Accused no. 1 is convicted for violation of provisions of Section 2 (ia) (j) & (m) of PFA Act 1954 , punishable U/s 16(1A) r/w section 7 of the PFA Act.
127. Let accused no. 1 be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 24th August 2015 ACMMII/ New Delhi CC No. 223/04 DA Vs. Raghunandan Sharma etc. Page 66 of 66