Da vs . Kiran Chand Aggarwal Page 1 Of 53 on 13 August, 2014

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Delhi District Court

Da vs . Kiran Chand Aggarwal Page 1 Of 53 on 13 August, 2014

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

C.C. No. 238/02

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

Kiran Chand Aggarwal
S/o Sh. Hari Chand
M/s M.H. Burfiwala
460461, Chandni Chowk,
Delhi6.
........ VendorcumProprietor

Serial number of the case : 238/02
Date of the commission of the offence : 07.11.2001
Date of filing of the complaint : 02.12.2002
Name of the Complainant : Sh. Virender Singh, Food
Inspector

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Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954 and Rule 28, 29 and
30 of PFA Rules, 1955, punishable
U/s 16(1A) r/w section 7 of the
PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 13.08.2014
Judgment announced on : 13.08.2014

Brief facts of the case

1. In brief the case of the prosecution is that on 07.11.2001 at about 07.30

p.m., Food Inspector Sanjeev Kumar Gupta and Food Inspector Sh. Arun Kumar

Gupta, under the supervision and directions of SDM / LHA Sh. Arun Mishra visited

M/s M.H. Barfiwala, 460461, Chandni Chowk, Delhi6 where accused Kiran Chand

Aggarwal who was the vendorcumproprietor was found present conducting the

business of various sweet articles including Boondi laddoo for sale for human

consumption and in compliance of the provisions of the Prevention of Food

Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955

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

the sample of Boondi laddoo.

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

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

because the total Dye content of the synthetic colour i.e. Tartrazine and Sunset yellow

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fcf used exceeded the prescribed maximum limit of 100 ppm 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) (a) (b) (j) & (m) of PFA

Act 1954 and Rule 30 r/w Rule 28 and 29 of PFA Rules, 1955 punishable U/s 16 (1A)

r/w Section 7 of the Act.

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

dated 02.12.2002. The accused after filing his appearance moved an application under

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

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

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

orders dated 23.01.2003. The Director, CFL after analysing the sample opined vide its

Certificate dated 24.02.2003 that "sample bearing no. 75/SG/2001 contravenes Rule

30 of PFA Rules 1955". The director so opined as total dye content was found at 261.9

ppm as against the maximum limit of 100 ppm.

4. In pre charge evidence, the prosecution examined one witness i.e. Food

Inspector Sanjeev Kumar Gupta and pre charge evidence was closed vide order dated

20.07.2009.

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

Act 1954 and Rule 30 r/w Rule 28 and 29 of PFA Rules 1955, punishable U/s 16 (1A)

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r/w section 7 of the Act was framed against the accused vide order dated 06.11.2009

to which accused pleaded not guilty and claimed trial.

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

witnesses including Food Inspector Sanjeev Kumar Gupta as PW1, Sh. FI Virender

Singh as PW2, the then SDM/LHA Sh. Arun Mishra as PW3 and FI Arun Kumar as

PW4 and PE was closed vide order dated 23.09.2013.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 17.12.2003

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

accused failed to examine any witness in his defence.

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

8. PW1 Food Inspector Sanjeev Kumar Gupta deposed that on 07.11.2001

he alongwith SDM Sh. Arun Mishra and FI Sh. Arun Kumar Gupta and other staff of

PFA visited M/s M.H. Burfliwala, 460461, Chandni Chowk, Delhi where they found

Kiran Chand Aggarwal conducting and looking after business of said shop at the time

of sampling. He deposed that they disclosed their identity and intention to take sample

of Boondi laddoo as selected and decided by Sh. Arun Mishra, LHA/SDM. He

deposed that before taking the sample he tried to join public witnesses by requesting

customers and passersby and nearby shopkeepers but none agreed then he

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requested FI Arun Kumar Gupta to join as a witness in the sample proceedings to

which he agreed. He deposed that at about 07.30 p.m. he purchased 1500 gms of

Boondi laddoo after payment of Rs. 90/. He deposed that the so purchased sample of

Boondi ladoo was broken into small pieces in a clean and dry steel tray with the help

of clean and dry steel spoon and divided equally into three clean and dry glass bottles.

He deposed that 40 drops of formalin were added in each sample bottles and bottles

were marked, fastened and sealed as per PFA Rules after affixing the paper slip of

LHA bearing his code number and signatures. He deposed that signatures of accused

Kiran Chand Aggarwal were obtained on all three sample bottles in such a manner as

to looks partly on wrapper and partly on paper slip. He deposed that notice in Form VI

was prepared and copy of same was delivered to the vendor under his

acknowledgment. He deposed that panchnama was also prepared at the spot. He

deposed that all the these documents vendor's receipt, notice and panchnama were

read over and explained to the accused in Hindi. He deposed that on the next date i.e.

08.11.2001 one counterpart of the sample with a copy of memo VII in a sealed packet

and another copy of memo VII under cover delivered in the office of the Public Analyst.

He deposed that all the memo VII prepared were having specimen impression of his

seal with which he had sealed the sample bottles at the time of sampling. He deposed

that on 08.11.2001 the remaining two counterparts of sample with two copies of Memo

VII in a sealed packet were delivered in the office of LHA under intimation that one

counterpart sample was already delivered in food laboratory by him. He deposed that

after receipt of public analyst report investigation was carried out and he found that

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Kiran Chand Aggarwal was vendor cum proprietor of the shop. He deposed that reply

from sales tax office was also obtained in this regard stating that no such shop is

registered in sales tax department. He deposed that file was submitted to LHA and

then to Legal Cell. He deposed that Food Inspector Virender Singh filed the complaint

in the court. Consent was granted by Sh. K.S. Wahi, the then Director PFA. He

deposed that intimation letter was sent to the vendor by Sh. G.R. Meena vide Ex.

PW1/A. He deposed that postal receipt is Ex. PW1/B, having relevant entry at Sl. No.

28 and 29. He proved the copy of Public Analyst report as Ex. PW1/C, vendor receipt

as Ex. PW1/D, Notice in form VI as Ex. PW1/E, Panchnama as Ex. PW1/F, Public

Analyst Report as Ex. PW1/G, LHA receipt as Ex. PW1/H, Sales Tax reply as Ex.

PW1/I, Public Analyst report as Ex. PW1/J.

9. During his cross examination he stated that there were approximately 34

Kg of Laddoos lying in an open tray available in the shop of the accused for the

purpose of sale. He stated that the required quantity i.e. 1.5 Kg of laddoos were

weighed by the vendor, by putting the same in a clean and dry transparent polythene

bag with the help of his hands. He stated that he did not suggest the vendor to clean

his hands. He denied the suggestion that vendor's hands were not clean and dry or

that some yellow colour was sticking with his hands. He stated that after weighing the

sample commodity he broke the same into smallest possible pieces with the help of a

clean and dry Steel spoon in a clean and dry steel tray. He stated that thereafter it was

put equally into three sample bottles with the help of the above mentioning spoon. He

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stated that sample bottles and spoon were not made clean and dry at the spot as they

were already clean and dry. He denied the suggestion that sample bottles, spoon and

tray were not clean and dry or that some yellow colour was already sticking with them.

He stated that the two counterparts of the sample were deposited with the SDM/LHA

on 08.11.2001 vide LHA receipt Ex. PW1/H and thereafter the SDM/LHA handed over

the same to Storekeeper/Head Clerk Sh. Net Ram as per the then existence

procedure. He denied the suggestion that the SDM/LHA handed over the two

counterparts to one Sh. Ramashish for keeping the same in safe custody. He denied

the suggestion that two counterparts were not kept in the safe custody of the

SDM/LHA or that the same were tampered with till they were sent to the Hon. Court.

He denied the suggestion that the variation between PA and CFL reports, if any,

indicates the fact that a representative sample was not taken in this case. He denied

the suggestion that he intentionally did not join any public witness in this case. He

admitted that he had not mentioned in the documents Ex. PW1/D, Ex. PW1/E and Ex.

PW1/F that he had made efforts to join public witnesses in the sample proceedings.

10. PW2 FI Virender Singh, PW3 the then SDM/LHA Sh. Arun Mishra, and

PW4 FI Sh. Arun Kumar Gupta have deposed on the same lines as deposed by PW 1

in his examination in chief.

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

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12. 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.

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

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

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector Sanjeev Gupta coupled with the report of the

Director, CFL dated 24.02.2003 that accused Kiran Chand Aggarwal was indeed

found selling Boondi Laddoo which was adulterated as it was containing synthetic food

colours namely Sunset yellow FCF, Tartrazine and Carmoisine much above the

maximum prescribed limit of 100 ppm.

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

Sanjeev Gupta categorically proved the sample proceedings dated 07.11.2001 as

were conducted in the presence of SDM/LHA. From the deposition of the prosecution

witnesses who duly corroborated each other, documents Ex. PW1/D to F i.e. Vendor's

receipt, Notice Form VI and panchnama as proved by prosecution and the admissions

made by the accused during his examination under Section 313 Cr. P.C, specifically

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question no. 1 and 2 as recorded before the Ld. Predecessor of this Court on

17.12.2013 which are admissible in evidence against the accused in view of sub

clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas Vs.

Food Inspector, Kochi 2008 (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 Boondi Laddoo was indeed collected by the Food

Inspector for analysis from M/s M.H. Burfiwala of which the accused is the proprietor

cum vendor.

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

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

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

loopholes /contradictions.

Public witness

17. At the outset it was argued that no public witness was joined by the FI

during the alleged sample proceedings which is in violation of section 10 (7) and

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therefore the accused is entitled to be acquitted on this ground alone. It was argued

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

person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

18. 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.

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

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Vs. Narayanasamy 1997 (2) FAC 203.

19. 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.".

20. 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
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

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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.

State
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... 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.".

22. 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."

23. It is writ large from the deposition of PW1, PW3 and PW4 that FI Sanjeev

Kumar Gupta made sincere efforts to join the public persons in the sample

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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 or depose falsely

against him. There is nothing on record to suggest that the FI, the SDM were inimical

to the accused or had any grudge or enmity to falsely implicate him.

Rule 14

24. 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 at the time when the sample was collected, the Food Inspector failed to

clean the sample bottles, tray, pan balance, polythene bag, as well as the instrument

i.e. spoon with which the sample was mixed and poured in the bottles. It was argued

that the colour was already sticking to the spoon, polythene bag, tray and the sample

bottles and it was this colour which was detected by the Director. It was argued that

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

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

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the law laid down in State of Gujarat Vs. Anil Champak Lal Shah 2007 (II) FAC 130

and State of Maharashtra Vs. Raj Karan 19481997 FAC 918.

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

counsel.

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

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

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

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

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

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

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

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

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

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

clean and dry appliances. Reliance may be placed upon Varghese Vs. Food

Inspector, 1989(2) FAC 236.

27. I have perused the deposition of the Food Inspector i.e. Sanjeev Kumar

Gupta who was examined as PW1. The Food Inspector deposed as under:

" The so purchased sample of Bundi laddo was broken into small pieces

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on a clean and dry steel tray with the help of clean and dry steel spoon and divided
equally into three clean and dry glass bottles".

28. During his cross examination he stated as under:

"....... The required quantity i.e. 1.5 Kg of Laddoos were weighed by the
vendor, by putting the same in a clean and dry transparent polythene bag with the
help of his hands..........It is wrong to suggest that vendor's hands were not clean and
dry or that some yellow color was sticking with his hands. After weighing the sample
commodity, I broke the same into smallest possible pieces with the help of a clean and
dry Steel Spoon in a clean and dry Steel Tray........Sample Bottles and Spoon were
not made clean and dry at the spot as they were already clean and dry. It is wrong to
suggest that sample bottles, spoon and tray were not clean and dry or that some
yellow color was already sticking with them".

29. Similarly PW3 the then SDM/LHA Sh. Arun Mishra deposed as under:

".....Before taking the sample, the Boondi Laddoos were broken into
pieces with the help of a clean and dry steel spoon in a clean and dry steel tray and
were mixed thoroughly. The so purchased quantity of the sample commodity was
divided into three equal parts by putting it in three clean and dry glass bottles and 40
drops of formalin were added in each sample bottle".

30. During his cross examination he stated as under:

"......It is wrong to suggest that some yellow colour was already lying in the
sample bottles, when they were used in sample proceedings. It is wrong to suggest
that the tray, wherein the Laddoos were put for weighing, was not clean and dry"

31. PW4 FI Arun Kumar deposed as under:

".......The so purchased quantity of the sample commodity was broken
into small pieces with the help of a clean and dry spoon in another clean and dry tray

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and the broken pieces were mixed together with the help of same spoon by rotating it
in all possible directions. Then it was equally put into three clean and dry sample
glass bottles".

32. During his cross examination he stated as under:

"......The Laddoos were weighed by putting them in another clean and
dry tray.......The bottles were not made clean and dry at the spot as they were already
clean and dry. It is incorrect to suggest that sample bottles were not clean and dry or
that some colour was already sticking with these sample bottles.......It is incorrect to
suggest that the sample was not taken in proper manner or that a representative
sample was not taken in this case".

33. Hence the prosecution witnesses consistently deposed regarding the

spoon, tray, polythene bag, as well as the sample bottles being clean and dry. They

categorically denied that some colour was already sticking to the above instruments

or the bottles. From their deposition/statement no doubt remains that the sample

proceedings were conducted in a proper manner and that the sample bottles as well

as the spoon and the tray were clean and dry. I have no reasons to disbelieve them.

As discussed above I find no reasons why the FI or the SDM would falsely implicate

the accused that is to say why they would use contaminated or colored instruments or

bottles for sampling. The defence has failed to prove any motive which could be

assigned to the above officials for falsely implicating the accused. Moreover nothing

on record has been proved to the contrary i.e. the defence has not proved that the

Food Inspector did not comply with the provisions of the Rule 14. Just because the

defence is challenging the sampling process conducted by the Food Inspector /

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asserting that Rule 14 was violated is not sufficient to either disbelieve or throw away /

outrightly reject the testimony of the Food Inspector. 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"

34. 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)".

35. 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

it may prove it.

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36. 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
.].

37. 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.

38. 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.".

39. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:

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"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

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

"there is no provision or requirement of law that the bottles must be sterilized at the

time of taking of the sample in the presence of the witnesses.". Similarly was held in

P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

41. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has

been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

42. As far as the submissions of the Ld. Defence counsel that the requisite

quantity of laddoos were put in the polythene bag for the purpose of weighing by the

vendor with his hands which he should not have done and instead should have used

some clean and dry instrument suffice would be to say that I find no infirmity in the

same as the Food Inspector categorically denied the suggestion that hands of the

vendor were not clean or dry or that some yellow colour was sticking to them.

Moreover there was no occasion for the vendor's hands to be coloured and if indeed

they were coloured or some yellow colour was sticking to them the vendor being

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 19 of 53
aware that the sample was being lifted for analysis by the Food Inspector should have

insisted upon the Food Inspector that he will first clean his hands and then give the

sample to the food Inspector. His not having done so/no such suggestion was given

during the cross examination to the Food Inspector itself proves that defence was

taking a false plea of the hands being coloured. Furthermore it is to be seen that three

synthetic colours namely Tartrazine, Sunset Yellow FCF and Carmoisine were

detected in the sample of boondi laddoo so collected by the FI. It does not appear to a

prudent mind that the vendor's hands would be coloured at the time of sampling with

all the three colours and that he would give the sample of boondi laddoo to the FI with

such coloured/dirty hands knowing fully well that the laddoos were being lifted for

analysis.

Discrepancies

43. It was argued by Ld. Defence counsel that there is a major discrepancy

in the deposition of PW1 and PW4 qua the sample proceedings. It was argued that

though the FI during his cross examination stated that the laddoos were weighed by

the vendor by putting them in polythene bag with his hands. On the other hand, PW4

claimed that as far as he remembers the laddoos were weighed by putting them in

another tray by FI Sanjeev Kumar (PW1) with the help of a spoon. The Ld. Defence

counsel argued that this discrepancy itself proves that the prosecution witnesses were

deposing falsely and sample proceedings were bad and there was violation of Rule 14.

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 20 of 53
Reliance was placed on the law laid down in AIR 2001 SC 3976 and 2012 (1) FAC

384.

44. No doubt the Ld. Defence counsel pointed out the above discrepancy in

the deposition of PW1 and PW4 however the discrepancy as pointed out by Ld.

Defence counsel is too trivial in nature to be given any weightage. The discrepancy

as above is natural and bound to occur on account of passage of time and lapse of

memory. Human memories are apt to blur with passage of time. The sample was lifted

in the year 2001 and the deposition/cross examination of witnesses were recorded in

the year 2012 and 2013 i.e. after a gap of around 1112 years. After such a long time

period a person cannot be expected to give a parrot like version or depose with

mathematical precision. Only a tutored witness can depose so. Error due to lapse of

time/lapse of memory have to be given due weightage/ due allowance.

45. By and large a witness cannot be expected to possess a photographic

memory and to recall the minute details of an incident. It is not as if a video tape is

replayed on the mental screen. By and large people cannot accurately recall a

conversation and reproduce the very words used by them or heard by them. They can

only recall the main purport of the conversation. It is unrealistic to expect a witness to

be a human tape recorder. Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid succession or in a short

time span. A witness is liable to get confused, or mixed up when interrogated later on.

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 21 of 53
A witness, though wholly truthful, is liable to be overawed by the court atmosphere and

the piercing cross examination made by counsel and out of nervousness mix up facts,

get confused regarding sequence of events, or fill up details from imagination on the

spur of the moment. The subconscious mind of the witness sometimes so operates

on account of the fear of looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is

a sort of a psychological defence mechanism activated on the spur of the moment.

Reliance may be placed upon the observations made by the Hon'ble Apex Court in

case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.

Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State

of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972

SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .

46. The law is well settled that discrepancies which do not go to the root of

the matter and shake the basic version of the witnesses cannot be annexed with un

due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable

evidence. One cannot come across a witness whose evidence does not contain some

exaggeration or embellishments. Sometimes there could even be a deliberate attempt

to offer embellishment and sometime in their overanxiety they may give slightly exag

gerated account. Court can sift the chaff from corn and find out truth from the testimo

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 22 of 53
ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this

element is satisfied they ought to inspire confidence in mind of the court.

47. Moreover, officials like Food Inspector and the SDM/LHA are involved in

collecting samples/witnessing sample proceedings almost daily and sometimes more

than one sample is collected in a day. During their stint as Food Inspector and

SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the

facts being mixed up due to passage of time. Same has to be given due allowance. In

case at hand the discrepancy as above does not effect the prosecution story at all nor

does it render it unreliable or untrustworthy.

Homogenization / Mixing of Sample.

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

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

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

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

Analyst and Director, CFL. In fact it was argued that different sample of boondi

laddoos were put in different bottles and that is why the reports are not only varying

but divergent. For example the Public Analyst had reported that the sample contained

pista pieces whereas the Director, CFL did not report so. Similarly, the PA found the

total colour/dye content to be 297.5 ppm, on the other hand the Director found the total

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 23 of 53
colour/dye content at 261.9 ppm. Furthermore the PA did not detect any synthetic

colour Carmoisine in the sample as was detected by the Director. It was argued that

these variations proves that the sample were not representative. Reliance was

placed upon Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Ratan

Malhotra 2012 (2) FAC 2012.

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

Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food

Inspector and the other complainant witnesses as discussed above that the sample

was taken after proper homogenization/mixing. The witnesses categorically proved

that the boondi laddoos were broken/cut into smallest possible pieces with the help of

a spoon and then properly mixed in a tray with the help of same spoon and thereafter

the sample was lifted. Once the laddoos were cut with the spoon and properly mixed it

was sufficient to make them homogenized. Secondly, it is to be seen that there is no

requirement under the Act or the Rules appended therein to homogenize or make the

sample representative before lifting the same.

50. Thirdly, there was no requirement of mixing or making the sample i.e.

the boondi laddoo homogenized as such in view of the law laid down in Dhian Chand

Vs. State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 24 of 53
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."

51. 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 ..........
are not
We
impressed by this argument at all . Representative sample has got a different
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

CC No. 238/02
DA Vs. Kiran Chand Aggarwal Page 25 of 53
be punished under section 16 (1) (a) (i) of the Act.

52. In the case at hand sale to Food Inspector stands proved. The Food

Inspector categorically proved that he had made a payment of Rs. 90/ to the

accused/vendor towards the purchase of sample commodity. In this regard vendor's

receipt Ex. PW1/D 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 SDM/LHA as well as the other FI which is on the same lines have 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 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 CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 26 of 53 322, 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).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".

53. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 27 of 53 food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

It was further observed:

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

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

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

"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 28 of 53 be done when the sale is made to the Food Inspector also."

56. 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."

57. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy boondi laddoo etc. the vendor does not give the said food article after cutting and mixing the same with the help of spoon/knife or any other instrument in the vessel/tray in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. If he will do so no customer will buy boondi laddoo from him. He merely takes out the food article with the help of a spoon or any other instrument or may be with his hands and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/boondi laddoo homogenized should arise or else CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 29 of 53 the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI.

Variations.

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

59. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 30 of 53 limit of 8.00% whereas on analysis the Director found the same to be 9.72%.

60. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.

61. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"

62. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:

"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 31 of 53 surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".

63. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.

64. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:

".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.

9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."

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

"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 32 of 53 support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."

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

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

It was further observed in para 3 as under:

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

67. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 33 of 53 decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:

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

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

68. In the above case while discussing the word 'supersede' which means to CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 34 of 53 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.

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

"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".

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

"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 35 of 53 tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".

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

"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".

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

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

In para 15 it has been further observed as under:

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

CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 36 of 53

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

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

74. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:

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

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

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

CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 37 of 53

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

"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".

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

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

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

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

"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 38 of 53 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".

80. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:

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

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

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

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

"12. When the statue says that certificate shall supersede the report it CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 39 of 53 means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

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

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

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

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

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories.

CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 40 of 53

It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

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

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

85. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 41 of 53 Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.

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

"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.

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

88. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 42 of 53 not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

89. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 43 of 53 Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211. In the case at hand when the counterparts of the samples were produced in the court they were shown to the accused who was satisfied that the samples i.e. their package and sealing and his signatures as were obtained on the LHA slips, on the sample bottles so sealed that is to say that they were the same samples which were lifted from him. Hence no question of tampering of the samples or samples being different can be raised now.

90. Furthermore as far as variations in the quantity of colour detected by the two experts is concerned I find merits in the submissions of Ld. SPP who pointed that the colour is added in food article like boondi laddoo at the time of its manufacturing. At that time mixing unless done by machine or by any mechanical process the colour cannot be uniformly mixed in food articles and there will always be a case where in CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 44 of 53 some portion of the final product the quantity may be more as compared to the other portion or piece. Ld. SPP pointed out that the mixing of the colour is done by the laborers with the hands and they cannot ever mix it evenly/ uniformly.

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

Whether the sample remained in the custody of the SDM/LHA and whether the CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 45 of 53 same was tampered with or not?

92. It was also one of the argument of Ld. Defence counsel that in the case at hand no reliance can be placed upon the report of the PA or the Director as it is a matter of record that after the samples were lifted by the FI the two counterparts of the sample did not remain in the custody of the SDM/LHA as per the provisions of the Act and in fact they remained in the custody of a Clerk namely Ram Ashish and therefore the samples being tampered with cannot be ruled out. However I find no merit in the contention of Ld. Defence counsel. Firstly, as discussed above the outcome of the trial is to be decided only on the basis of the report of the Director, CFL as the report of the PA stands annulled/obliterated. Nonetheless the sample as per records was lifted on 07.11.2001 and it was deposited with the PA on 08.11.2001 i.e. the next working day. Hence there was no undue delay and this itself rules out any tampering. Furthermore the PA categorically reported that the samples were properly sealed and seal was intact and unbroken. Secondly, it stands proved from the deposition of Food Inspector coupled with documents Ex. PW1/G and H that the samples were handed over to the SDM/LHA for safe custody on 08.11.2001 i.e. the next day itself. Ex. PW1/H is the receipt of the sample at the office of the SDM/LHA and it bears the signatures of SDM/LHA at point A and that of Food Inspector at point B. So the samples were handed over to the SDM/LHA against a valid receiving. The SDM/LHA categorically stated during his cross examination that after receipt of the samples they were handed over to the Store Keeper of the department for keeping them in safe CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 46 of 53 custody. I find nothing wrong in the same. Thirdly, when the two counterparts of the sample as deposited with the SDM/LHA were produced in the court in pursuant to application u/s 13 (2) moved by the accused on 23.01.2003 the Ld. Predecessor of this court recorded the satisfaction of the accused to the effect that there was no tampering on the seal appearing on the sample bottles and they were properly packed, fastened, marked and sealed. It was only upon his satisfaction and as per his choice that one counterpart of the sample was sent to the Director, CFL for analysis. This itself negates the arguments of Ld. Defence counsel that the sample were tampered with. Fourthly, after the samples were produced in the court they were sealed again under the seal of the court and sent to the Director, CFL for analysis and the report of Director, CFL makes it amply clear that the sample was received at his office in sealed/intact condition. Hence there was no tampering whatsoever in the samples so lifted and accordingly no prejudice caused to the accused. Injurious to health.

93. It was further argued by the Ld. defence counsel that there is nothing on record to show that mere excess of the synthetic colours i.e. Tartrazine, Sunset Yellow FCF and Carmoisine would make the boondi laddoo injurious to health. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 47 of 53

94. However I differ with the contentions of the Ld. Defence counsel in view of the law laid down in Jai Narain Vs. MCD 19481997 FAC (SC) 415. The Hon'ble Apex Court observed as under:

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

95. 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 not render it injurious to health".

96. 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 CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 48 of 53 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."

97. 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.".

98. 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".

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

CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 49 of 53

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".

100. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

101. 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.

102. In the case at hand synthetic food colours or a mixture there of could be added to boondi laddoo only to the extent of 100 ppm. Boondi laddoo falls under the category of sweets. As per Rule 29 (b) r/w Rule 30 synthetic food colours as per Rule 28 could be added only to the extent of 100 ppm. However as is evident from the CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 50 of 53 report of the Director the total quantity of the total colour content was found at 261.9 ppm which is almost two and half times the permitted limit. This makes boondi laddoo adulterated.

Report on old Proforma

103. It was also argued by Ld. Defence coounsel that report of Director cannot be relied upon as the same is on old proforma. It is argued that the proforma/Form II on which the report is to be furnished by the Director was amended w.e.f. 29.01.2003 still the Director gave his report on the old proforma and hence no reliance can be placed on the same. Reliance was placed on Administrator, Silliguri Municipality Vs. Hira Lal Goala 1974 FAC 44. However I do not agree with the averments of Ld. Defence counsel. No doubt the Director's report dated 24.02.2003 is on old proforma however the same is merely an irregularity and not illegality so as to completely wash off the report of the Director. It is merely a technical error which has not caused any prejudice whatsoever to the accused. Moreover, I agree with the contentions of the Ld. Defence counsel that the amendment came only a month back i.e. the report is of 24.02.2003 and amendment came on 29.01.2003 and may be the amended proforma was not ready/printed or not available with the Director at such a short notice/time being. As far as the case law relied on by the Ld. Defence counsel is concerned same is not applicable to the facts of the present case as in that case the Court was not satisfied regarding the seals on the sample remaining intact till the time of analysis. CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 51 of 53 Paper Chromatography Test.

104. It was further argued that the usual method used for analysis 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. The report of the Director CFL being on old proforma the mode of test is not mentioned/has not been mentioned by him as it is only under the amended proforma that the test method has to be mentioned. Nonetheless nothing stopped the accused/Ld. Defence counsel to summon the Director to challenge his report/contradict his report as per the test methods applied by him. Furthermore, Paper Chromatography is just one of the method in the DGHS manual. Nonetheless 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. ws 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 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 CC No. 238/02 DA Vs. Kiran Chand Aggarwal Page 52 of 53 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."

105. In view of my above discussion, as the total dye/colour quantity/content in the sample of Boondi laddoo so collected was found at 261.9 ppm which was in excess of the maximum prescribed limit which is 100 ppm as per Rule 30, the accused stands convicted under Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954.

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

Announced in the open Court                                     (Gaurav Rao)
on 13th August 2014                                         ACMMII/ New Delhi




CC No.  238/02
DA  Vs.  Kiran Chand Aggarwal                                                    Page 53 of 53

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