Delhi District Court
Shiv Kumar Gupta vs . Food Inspector on 24 January, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04,
PATIALA HOUSE COURTS,
NEW DELHI
IN THE MATTER OF:
Shiv Kumar Gupta Vs. Food Inspector
Criminal Appeal No. 146/2017
CNR No. DLND01-008331-2017
Shiv Kumar Gupta
S/o Sh. Dayaram Gupta
M/s Gupta Store,
Plot No. 501, Phirni Road, Near Industrial Area,
Sarwan Park, Mundka, Delhi-110041
R/o E-74, Krishna Vihar,
Near Rathi Market,
Bawana, Delhi-110039 ...Appellant
Versus
Food Inspector
Department of PFA,
Govt. of N.C.T. of Delhi,
A-20, Lawrence Road,Industrial Area,
New Delhi-110035 ...Respondent
Date of Institution : 01.07.2017
Date of decision : 24.01.2023
JUDGMENT (ORAL)
1. Vide this order, I propose to dispose of the present Criminal Appeal filed against the judgment of conviction dated Cr Appeal No. 146/2017 Page 1 of 14 16.05.2017 and order on point of sentence dated 17.05.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi. Brief facts:
2. The facts in brief, were that on 19.07.2003, at about 05:30 PM, Food Inspector Sh. Hukam Singh alongwith FA Sh.
Om Prakash and other officials of PFA Department under supervision of SDM/LHA Sh. Ram Kumar Aggarwal visited M/s Gupta Sales, Plot No. 501, Phirni Road Near Industrial Area, Sarwan Park, Mundka, New Delhi-110041 where the appellant was found selling sealed plastic bottle of mustard oil. Sample of the mustard oil of 3 X 285 grams (315 ml) was purchased having identical label declaration.
3. As per complaint, sample was sent to Public Analyst who found the sample to be adulterated because it was found coloured with unpermitted synthetic colouring matter, it was found to be an admixture of Rice Bran Oil, the BR reading and iodine values were found to be less than the prescribed minimum limits, the BTT value was found to be not within limit, and saponification value and unsaponification matter were found to be exceeding the prescribed maximum limits. Accordingly, Sanction/Consent under Section 20 of the Act was obtained and the complaint was filed for violation of Section 2 (ia) (a), (b), (c),
(h), (j) and (l) of PFA Act read with Rules 23, 28 and 29 of PFA Rules as well as violation of Section 2 (ix) (k) read with Rule 37- D of PFA Rules, punishable under Section 7/16 (1A) of PFA Act.
4. The appellant was summoned vide order dated 06.12.2003. An application under Section 13(2) of the Act was filed by the appellant. The second counter part of the sample, as selected by the appellant in the Court, was sent to Central Food Cr Appeal No. 146/2017 Page 2 of 14 Laboratory for analysis vide order dated 23.01.2004. The Director CFL after analyzing the sample gave his report vide certificate dated 23.02.2004 opining the sample of Mustard Oil to be not conforming to the standards because the BR reading, iodine value and BTT result were found to be less than the prescribed minimum limits, the saponification value was found to be in excess of the prescribed maximum limits, and synthetic yellow oil soluble colour was found present in the sample as per the PFA Rules 1955. The report describes the method of test used as DGHS Manual method.
5. A charge was framed against the accused on 26.10.2009 for commission of offence punishable under Section 7/16(1A) of PFA Act, being violation Section 2(ia)(a), (b), (j) and
(m) of PFA Act read with Rules 23, 28 & 29 of PFA Rules, to which he pleaded not guilty and claimed trial.
6. The prosecution examined 3 witnesses namely, PW1 FI Sh. Hukam Singh, PW2 FA Sh. Om Prakash and PW3 SDM/LHA Sh. Ram Kumar Aggarwal.
7. The statement of the accused was recorded u/s 313 Cr.P.C. on 23.08.2013 in which he claimed his innocence.
8. The Ld. ACMM on the basis of the evidence concluded that from the report of Director, CFL, it was established that there was extraneous synthetic colour present in the sample of mustard oil and thus convicted the appellant.
9. The Ld. Counsel for the appellant has argued that mustard oil has its own colour. As per the guidelines of DGHS, Government of India, all the colours should have been identified by the analyst to rule out the possibility of presence of only synthetic colours. Counsel has argued that it has been wrongly Cr Appeal No. 146/2017 Page 3 of 14 concluded that the sample was adulterated.
10. It has been contended that the sample in the present case was taken in the year 2003 and the laboratories and the method of testing had not been notified until the year 2008 and therefore, no credence could be attached to the report of the PA as well as the CFL. It was thus, argued that the conviction and the sentence was liable to be set aside.
11. Ld. SPP for the Department has argued that it has been held in a catena of judgments that once the food item is analyzed by Director, CFL it takes precedence. Therefore, the report of Public Analyst cannot be referred for any purpose as it becomes non-existent. It was further argued that the sample of mustard oil was found to be containing synthetic oil soluble colours, which is prohibited under the Rules and therefore, the appellant has been rightly convicted and sentenced. It submitted that the present appeal is liable to be dismissed.
12. I have heard the arguments and have perused the record. My observations are as under:
13. The first ground on which the conviction has been assailed is that mustard oil has its own natural colours and the report of Public Analyst as well as of Director, CFL is not conclusive to say that the colour detected was the natural colour or the synthetic colour.
14. "Mustard" has its own inherent natural colour. The Chromatography Test can only detect the presence of colour and not whether it is inherent or added one. In order to distinguish between the two, further tests are required to be performed.
15. The credibility of Chromatography Test was considered in the case of "Maya Ram v. State of Punjab, 1987 Cr Appeal No. 146/2017 Page 4 of 14 (II) FAC 320 (P & H)", wherein it was observed as under:
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that rule 28 permits use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who Cr Appeal No. 146/2017 Page 5 of 14 are non-experts." In State v. Subhash Chand 2012 (2) FAC 1052 (DHC) a reference was made to Balmukand Singh v. State of Punjab 2008 Crl. L.J. 1084 where it was held that paper chromatogram test is no sufficient to conclude whether permitted or unpermitted coal tar dye has been used. The expert has to examine carefully the colouring matter by applying various tests for excluding the use of permitted colours, before reading the conclusion to detect the unpermitted coal.
16. It has been explained in a book written by S.N. Mahendroo and published by TATA Macgra-Hill Publishing Ltd. on the subject of "Food Safety A Techno-Legal Analysis", that all varieties of mustard seed contain natural colour pigment of their own. These colour pigments are also oil soluble. When the mustard seeds are treated with a solvent to detect the presence of added colour, then the natural colour pigments present in the seed also get leached out in the solvent and when subjected to TLC test, it shows the presence of colour. In order to find out whether the colour is inherent or synthetic or added, it is compared with the known colours and thereafter, to distinguish between the natural colour or added colour, solvent is sprinkled over a filter paper or the chromatograph itself is kept I an oven. The natural colours have tendency to disappear within 3 or 4 days while synthetic colours last longer. However, the natural colour pigments i.e. carotenoids of mustard seeds do not disappear in the oven for a long time and are sometimes mistaken to be those of synthetic colour. Further Mustard seeds contains upon 162 micro carotenoide pigments which are oil soluble in nature.
Cr Appeal No. 146/2017 Page 6 of 1417. As per expert Sh. S.N. Mahindru, under the Manual of Method of analysis of foods issued by the DGHS, Government of India, all the colours should be identified by the Analyst. Some synthetic colours are oil soluble, some are water soluble and some are both. After a colour is detected, the Public Analyst has to identify whether it is a natural colour or a synthetic colour and give its chemical name. This part of his testimony was not challenged nor probed.
18. In the present case, as per the report of Public Analyst, the sample was found to be adulterated because it is coloured with unpermitted synthetic colouring matter and has an admixture of Rice Bran Oil, the BR reading and iodine values were found to be less than the prescribed minimum limits, the BTT value was found to be not within limit, and saponification value and unsaponification matter were found to be exceeding the prescribed maximum limits of 177 and 1.2% respectively. The presence of oil soluble synthetic colouring matter was done with 28.142 AOAC test. The report of Director, CFL also concluded that the sample contained "synthetic yellow oil soluble colour" and the method of test used has been stated to be as per DGHS manual.
19. From the evidence on record, it is evident that DGHS manual test was applied for determining the presence of colour disclosed in the report of Director, CFL while the PA used 28.142 AOAC test for determining the presence of synthetic soluble colour. If different tests are used, of course, it would affect the outcome of the case. This difference assumes Cr Appeal No. 146/2017 Page 7 of 14 significance as the sample was tested before 25.03.2008, but I would revert to this point a little later.
20. Considering that 'Mustard' has its own natural colour, the possibility of the natural colour being reported as the synthetic added colour cannot be ruled out, in the absence of clear evidence in regard to the tests having been used by the Director, CFL or by the Public Analyst. Since there is no conclusive finding in this regard, the benefit has to be extended to the appellant.
21. Up front, I may point out that the conviction by the Trial Court is based on clause 2 (ia) (a) (j) (m) defining the word adulterated. However, the perusal of the CFL report reveals that the CFL concluded that one synthetic yellow oil soluble colour was detected in the sample and that Saponification value was more than the maximum value prescribed and Iodine value was less than the minimum value prescribed. The turbidity temperature was also found to be lower than the minimum of 23 degree celcius and therefore, the CFL concluded that " I am of the opinion that that the sample No. 92/LHA/4563 does not conform to the standards of the Mustard oil as per the PFA Rules 1955."
22. However, the PA report which was considered for making the complaint and formed the basis of the cognizance had indicated that the sample was found mixed with rice brand oil. It seems this finding of the PA was not confirmed by the CFL. Therefore, as far as clause (ia) (a) is concerned, the charge ought not to have been framed for the same as firstly, one cannot say that it was not mustard oil which was being sold or that it was a Cr Appeal No. 146/2017 Page 8 of 14 mixture of 2 oils and therefore, articles sold was not of the nature, substance, quality which it purports or is represented to be. It was, in fact, mustard oil. Therefore, charge ought to have been framed only under clause (j) (m) of 2 (ia). Therefore, on that count itself, the order of conviction is bad to that extent.
Certified Laboratories and Methods:
23. The next argument that has been addressed on behalf of the Appellant is based on Section 23(ia) (ee) and (hh) of PFA Act. It has been argued that the Laboratories where the samples of food for adulteration are to be analyzed, has not been defined within the meaning of these Sections. Therefore, the Report of the Public Analyst cannot be looked into.
24. For this it would be relevant to refer to the provisions of Section 23(1A)(ee) and (hh) which read as follows:
"23(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
............................ (ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this act;
.......................
(hh) defining the methods of analysis."
25. The said provisions were incorporated in the Prevention of Food Adulteration Act, 1954 with effect from Cr Appeal No. 146/2017 Page 9 of 14 01.04.1976 only through Act 34 of 1976.
26. Through notification dated 25.03.2008 of the Ministry of Health and Family Welfare published in the Gazette of India (Extraordinary), in exercise of the powers conferred by Section 23 of the 1954 Act, the Central Government has incorporated Rule 4(9) in the Prevention of Food Adulteration Rules, 1955, through Prevention of Food Adulteration (Second Amendment) Rules, 2008.
27. The present Rule 4(9) reads as follows:-
"The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analysing the samples food articles. However, in case the method for analysing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Person's/JACOB/IUPAC/FoodChemicalsCodex/B IS/Woodmen/Winton-Winton/Joslyn shall be adopted. Further, in case of non-availabiltiy of method of analysis in these manuals, the method prescribed in other standard published literature of publication shall be adopted."
28. It has to be noted that the said notification has come into force only on 25.03.2008.
29. These aspects were considered by the Apex Court in the case of Pepsico India Holdings Pvt. Ltd. vs. Food Inspector & Anr. (2011) 1 SCC (Cri) 8. In the said case, the point raised for consideration was whether in the absence of any prescribed and validated method of analysis u/s 23 (1a) (hh) of the Act, could a prosecution be launched against the appellants based on the reports submitted by the Public Analyst using the method of the Director General of Health Services (DGHS). This point was Cr Appeal No. 146/2017 Page 10 of 14 answered in the judgment wherein it was observed that these Sections were not enabling provisions but were mandatory and could be resolved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelled out. It was further noted that in the absence of such discriminated laboratories and specified tests, it can lead to a pick and choose method to suit the prosecution, which cannot be permitted. The non-formulation of Rules under these provisions of the Act is, therefore, fatal for the prosecution. In the Pepsico case (Supra), it was further noted that once there is no information in regard to discriminated reports of the validated methods of analysis, the exercise of sending the second sample to Central Food Laboratory for analysis would be an exercise in futility.
30. This judgment of the Apex Court was followed by the Kerala High Court in the case of R. Gopalakrishnan Vs. Food Inspector in Criminal Revision Petition No.671/2002 decided on 17.07.2013. It was observed that the observations made in the Pepsico case were not limited to the food article i.e. the sample of pepsi that was the subject matter in the said appeal, but it laid down the general preposition of law to be followed in all the cases. Special Leave Petition against the said judgment was preferred in Supreme Court of India, vide Criminal Appeal No. 2476 of 2014, but the same was dismissed.
31. In a recent judgment of M/s Nestle India Ltd. Vs. the Food Safety and Standards Authority of India and Ors. 2015 (2) FAC 56 the Bombay High Court has again followed the Pepsico case (supra) to observe that in the absence of designated laboratories and validated methods of analysis, the reports of the Cr Appeal No. 146/2017 Page 11 of 14 Public Analyst and the Director, CFL, cannot be relied upon.
32. Reliance is also placed upon the decision of the Hon'ble Kerala High Court in Mohanan P. & Others Vs. State of Kerala and Another, Crl. Rev. P.No. 66 of 2011, decided on 25th November, 2021 where the earlier decision in R. Gopalakrishnan (supra) has again been followed.
33. Be that as it may. I have also gone through some of the decisions of Ms. Neena Krishna Bansal, ASJ (as her lordship then was) which have also been placed before me during arguments in several cases, where a similar view had been taken, several years back. It has been put to the Department whether these decisions have been challenged by the Department. Ld. SPP for the Department, on instructions, fairly stated that the said orders have not been challenged by the Department. Therefore, the Department has, in my view, accepted the aforesaid proposition of law laid down by Ms. Neena Krishna Bansal in the said judgments.
34. In Dhian Singh Vs. Municipal Board Saharanpur, AIR 1970 SC 318, the Hon'ble Supreme Court was of the view that the report of the PA need not contain the mode or particular of analysis nor the test applied. This decision was rendered before the amendment in the statute, whereby the Parliament decided to incorporate the two sub clauses (ee) and (hh) to Section 23 (1A). The intention of the legislature seemed to be that to obviate any discrepancies in the reports solely on count of the laboratory to which articles were sent or the different test methods adopted by different labs, the said provisions were Cr Appeal No. 146/2017 Page 12 of 14 incorporated. Therefore, what was not significant prior to 1976, became relevant and important. The decision in Dhian Singh (Supra), most respectfully, would cease to be the applicable law on the aspect in view of the specific legislative mandate introduced by way of amendment. Any subsequent decision, for a case instituted on a sample taken after the amendment of 1976, which fails to note the statutory amendment and follows the aforesaid decision in Dhian Singh (Supra), can be treated as a decision rendered sub silentio.
35. In the present case, as well, the samples were examined by the Public Analyst on 04.08.2003 and by CFL on 23.01.2004. On the said dates, there were no rules framed notifying the laboratories or validating the methods of analysis, which had to be followed. Also, till then there existed no notified laboratory. Perhaps, this is the reason why the PA's report adopted 28.142 AOAC test and CFL adopted DGHS Manual methods, either ways both were not valid methods of analysis. Since no notification existed till the said date, the report of the Public Analyst as well as the report of the CFL cannot be considered to conclude that the sample collected was adulterated.
36. It needs to be emphasized that while on one hand, adulterated food has rampant ramification as it can cause injury and harm to public at large and in order to prevent such adulteration of food, stringent punishments have been prescribed under the Act, but at the same time stringent procedures have also been laid down for determining if the food was adulterated. Since the punishments are severe, it is incumbent upon the prosecution to abide with the procedures meticulously. In case the proper procedure had not been followed, it would not be safe Cr Appeal No. 146/2017 Page 13 of 14 to rely on the report to hold the accused guilty.
37. In the absence of valid method of examination, it would not be safe to rely on any of the report to conclude that the sample was adulterated.
38. The benefit of the same has to be extended to the appellant. The conviction and sentence is set aside. Appellant is acquitted. Bail bond cancelled. Surety bond discharged. Bail bond u/s 437-A Cr.P.C. be furnished.
39. The present criminal appeal is disposed off accordingly.
40. The present appeal is disposed of accordingly.
41. TCR be sent back with the copy of this order.
42. Appeal File be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 24.01.2023 ASJ-04/NDD/PHC/ND
Cr Appeal No. 146/2017 Page 14 of 14