Delhi District Court
Delhi Administration / Food Inspector vs A-1) Balraj @ Baldev Raj on 22 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 22/00
Unique Case ID No. 02403R0013862000
Date of Institution: 31.01.2000
Date of reserving judgement: 08.07.2016
Date of pronouncement: 22.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Balraj @ Baldev Raj
S/o. Sh. Inderjeet
[PROCLAIMED OFFENDER]
A-2) M/s. Gopaljee G. K. Dairy & Milk Product (P) Ltd.
Pandav Nagar, Delhi
A-3) Sukhpal Singh
S/o. Sh. Roop Singh
R/o. 683, Baba Faridpuri,
West Patel Nagar,
New Delhi ... Accused persons
CC No. 22/00 Page 1 of 46
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor of M/s. Gopaljee G. K. Dairy & Milk Product (P) Ltd., of which the accused no. 3 is stated to be the Nominee, from whose Tanker No. HR-38-C-2878 the food article, that is, 'Standardized Milk' was lifted for sampling.
2. As per the complaint, on 26.06.1999, the food officials consisting of Food Inspector (FI) Jeet Ram and FI Gian Chand under the supervision of Local Health Authority (LHA)/SDM Sh. R. P. Meena reached at Khajuri Khas, Wazirabad Road, where they found a tanker no. HR-38-C-2878 that had stored for sale for human consumption the food article 'standardized milk'. The accused no. 1 was the driver of the said tanker and it was found that the milk was being carried for sale in Delhi. The sample of milk was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor who disclosed that the milk belonged to the accused no. 2 company. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 12.07.1999, the PA found the sample to be not conforming to the standards because 'milk solids not fat' was CC No. 22/00 Page 2 of 46 found to be 7.02% which was less than the prescribed minimum limit of 8.5%. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was revealed that the milk in the tanker belonged to the accused no. 2 company that was having two directors Sh. Pyare Mohan Dixit and Sh. Radhey Shyam Dixit. However, the said company had appointed the accused no. 3 as its Nominee under section 17 of PFA Act and as such, he was deemed to be in charge of and responsible to the company for its affairs. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 31.01.2000 against all the accused persons in the capacity of vendor, company and nominee respectively, alleging violation of section 2(ia)(a) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 31.01.2000. The accused no. 3 appeared (also representing accused no. 2 company) and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 14.06.2000, opining the sample to be adulterated because 'milk fat' was found to be 3.4% which was less than the prescribed minimum limit of 4.5% and also because 'milk solids not fat' was found to be 6.4% which was less than the prescribed minimum limit of 8.5%. It is CC No. 22/00 Page 3 of 46 to be noted that the presence of accused no. 1 could not be secured even through coercive measures and he was subsequently declared a Proclaimed Offender vide order dated 05.07.2005.
4. On the basis of CFL report, the matter was listed for pre-charge evidence, wherein the complainant examined PW-1 FI Jeet Ram. On the basis of his deposition, charges were framed against the accused no. 2 and 3 on 21.10.2009 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, the witness already examined in pre-charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 FI Gian Chand and PW-3 Sh. R. P. Meena (SDM/LHA) in post-charge stage.
5. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 26.06.1999 and narrated the steps undertaken by them during the sample proceedings, viz. their intercepting the tanker in question being driven by accused no. 1, disclosing their identity, expressing intention to purchase sample of milk for analysis, lifting the sample of 750 gms of milk out of the tanker bearing declaration of 'standardized milk', mixing the same with the help of a clean and dry plunger, dividing it in three equal parts and putting them in three clean and dry sample bottles, adding 20 drops of formalin as preservative in each bottle, separately sealing, packing and marking the samples, and obtaining CC No. 22/00 Page 4 of 46 signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. On the same day, that is, 26.06.1999, one counterpart of sample along with Memo as per Form- VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out by PW-1 who sent letter Ex. PW-1/G to accused no. 2 company whose identity had been disclosed by accused no. 1 vendor. It was replied on behalf of accused no. 2 vide letter Ex. PW-1/G1 informing that accused no. 1 was its driver and accused no. 3 was its Nominee. Thereafter, sanction Ex. PW-1/H was taken from the Director PFA and complaint Ex. PW-1/I was filed in the court. After this, intimation letter Ex. PW-1/J with copy of PA report was sent to the accused persons through registered post. All these witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the accused persons had been falsely implicated or that the samples were not representative or that the sampling method was not proper.
6. Statements of the accused no. 2 and 3 under section 313 CrPC were recorded on 30.10.2014 wherein they denied the allegations and pleaded innocence. They expressed ignorance about the proceedings dated 26.06.1999 on the ground that no one from the company was present at the spot at that time. They claimed that the reports of PA and CFL were wrong and unreliable asserting that the complaint had been filed at a CC No. 22/00 Page 5 of 46 belated stage and their right under section 13(2) of PFA Act stood frustrated. It was submitted that the shelf like of milk and milk products after adding formalin would be four months and as the present complaint was filed after six months, the product could not be correctly analysed by the CFL. They however did not lead any evidence in defence.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that they have not been able to rebut the findings in the CFL report dated 14.06.2000 which as per section 13(3) and (5) of PFA Act is final and conclusive, and which has confirmed the findings given by the PA. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended that the sample of milk had not been taken properly and the milk was not homogenized properly so as to make it representative. It is strongly submitted that the reports of CFL and PA are at variance which would show that the samples were not representative. It is submitted that there was delay of seven months in filing the complaint due to which the right of the accused persons under section 13(2) PFA Act stood frustrated. It is also pointed out that the said analysts have not mentioned the name of test method adopted by them in their reports and it cannot be ascertained if the CC No. 22/00 Page 6 of 46 methods adopted by them were sure or reliable tests. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused no. 2 and 3 and have carefully perused the material available on record.
10. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a) and (m) of the PFA Act. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
11. The commodity in the present case is 'standardized milk' as was declared even on the tanker which was carrying it. It is not the stand of the defence that the food product was not a standardized milk or was some other milk or that some other standards were to apply to the food article. Specific standards have been provided with respect to standardized milk in Appendix-B of PFA Rules. As per the prescribed standards, milk fat content should be minimum 4.5% and the content of milk solids not fat CC No. 22/00 Page 7 of 46 should be minimum 8.5%. There is no issue with respect to applicability of these standards.
12. The defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, milk fat was 4.7% and milk solids not fat were 7.02%, whereas according to the CFL report, milk fat was 3.4% and milk solids not fat were 6.4%. It is then contended that the sample of milk even after adding formalin would remain fit for analysis only for four months and thus, when the present complaint was filed after seven months of lifting the sample, the right of the accused persons under section 13(2) PFA Act stood frustrated as by that time, sample would have been rendered unfit for analysis.
13. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said variation in the fat and milk solids contents, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused persons.
14. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in CC No. 22/00 Page 8 of 46 State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
15. I have carefully gone through the said judgements based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
16. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
17. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard CC No. 22/00 Page 9 of 46 of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
18. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded 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."
19. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was CC No. 22/00 Page 10 of 46 observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
20. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
21. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
22. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is CC No. 22/00 Page 11 of 46 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 sub- sections (3) and (5) of Section 13 of the Act".
23. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 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 contra-indicated regarding the concerned ingredients of the sample as CC No. 22/00 Page 12 of 46 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 vis-a-vis two parts of the same 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.".
24. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk (as in the present case). The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of CC No. 22/00 Page 13 of 46 delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason. In Ghisa Ram's case (supra), the Director, CFL had reported that the sample had become highly decomposed and no analyses was possible. In that case, on the basis of evidence, the court found that sample of curd could not have survived for more that four months. At the same time, there was no rule laid down that in every case of frustration of such right, the vendor cannot be convicted on the basis of PA report and different considerations may arise. Similarly in Ram Mehar v. Delhi Administration (Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969), after the delay of none months, the sample was sent to CFL but the Director reported that the sample had become highly decomposed and its analyses was not possible. Further, in Municipal Corporation of Delhi v.
Om Prakash [Criminal Appeal N. 7-D/1966, Delhi High Court, dated 28.07.1969], the evidence had been led in that case to show that the difference between the two reports was mainly due to lapse of time.
(b) The consideration of time-lapse is relevant only for a limited purpose. "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after CC No. 22/00 Page 14 of 46 this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) "If prejudice is caused to the accused on account of the delay in the institution of proceedings, as when the sample is rendered unfit for analyses in the meanwhile, then the accused is entitled to the benefit of doubt... But in case no prejudice is caused to the accused he cannot be allowed to escape the consequences under the law for such anti-social act..."
(d) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
25. This judgment was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (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 CC No. 22/00 Page 15 of 46 Analyst loses all its value after supersession by the certificate of the Director".
26. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "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 dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
27. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL.
CC No. 22/00 Page 16 of 4628. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
29. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the CC No. 22/00 Page 17 of 46 argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
30. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
31. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
CC No. 22/00 Page 18 of 4632. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative.
33. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The CC No. 22/00 Page 19 of 46 comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
34. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any CC No. 22/00 Page 20 of 46 difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.
35. As mentioned earlier, this judgement has been relied several times by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
CC No. 22/00 Page 21 of 4636. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
37. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
38. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
CC No. 22/00 Page 22 of 4639. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
40. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
41. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.
CC No. 22/00 Page 23 of 4642. Upon this, the accused persons claim that the delay in filing the complaint had frustrated their right under section 13(2) PFA Act. It is contended that the sample of milk even after adding formalin would remain fit for analysis only for four months. The question is whether can the delay of seven months be called as an "unexplained delay" so as to automatically frustrate their right? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], that pertained to a milk product 'paneer' on the basis of which the Hon'ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis. This judgement was relied upon by the Hon'ble High Court in State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957]. It is also contended that the present complaint was filed after seven months of lifting the sample and by that time, the sample was rendered unfit for analysis.
43. It would be seen that in Chanan Lal's case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon'ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to CC No. 22/00 Page 24 of 46 paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his research that a sample of panir would remain fit only for one month when formalin was added and was kept in refrigerator. The Hon'ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held "On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month". The Hon'ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.
44. Well, again, a lot of issues are involved in the arguments advanced on this count.
45. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal's case to be considered as it is, in this case as well as in all cases of milk products like paneer and khoa. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross-examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future CC No. 22/00 Page 25 of 46 cases even without his examination or cross-examination. There can be other experts in the same field who might have different opinions based on their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal's case cannot be therefore accepted in all cases of milk and milk products blindly.
46. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 CriLJ. 1086], full bench of the Hon'ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal's case, which the defence wishes the court to rely straight away) as under:
"It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.CC No. 22/00 Page 26 of 46
It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds."
47. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after four decades without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.
48. Even otherwise, the judgement in Chanan Lal's case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon'ble Court in that judgement that prosecution should be filed with 17 days of lifting the sample, is now almost impossible to achieve. Rule 9(j) on which the Hon'ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.
49. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require a few days to CC No. 22/00 Page 27 of 46 analyse the sample (as in the present case), to prepare his/her report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. Also, a notice under section 13(2) can be only after filing of case/institution of prosecution. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. It may take more time if there are multiple accused persons. If served, the accused persons have 10 days time to file application to court. If filed and taken up on the same day, the court would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in 17 days as per the judgement in Chanan Lal's case. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the CC No. 22/00 Page 28 of 46 case would depend on its own set of facts and circumstances. The judgement in Chanan Lal's case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future pertaining to a sample of milk or paneer or khoa or any other milk product, delay of one month would have to result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.
50. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration in the any sample of milk or milk products, the moment one month lapses from the date of lifting the sample, and if any such case come to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.
51. At this stage, it is also necessary to observe that in Chanan Lal's case, the sample sent to CFL was reported to be decomposed and its contents leaking, rendering it unfit for analysis. Thus, the Hon'ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis (as in the present case), or those cases where the accused chooses not to send sample for analysis to CFL.
CC No. 22/00 Page 29 of 4652. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused persons. If the accused persons are able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to them or frustrated their rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused persons. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused persons, they would certainly be given benefit, but if the accused persons nowhere take stand at the trial that they were prejudiced and no question is asked from any witness asking for reason of delay, they cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated their right.
53. In the case at hand, no question was put to any PW seeking explanation as to why a time of seven months was taken in filing the complaint, so as to enable them to explain the circumstances. In such position, seven months period cannot be said to be "unexplained delay".
54. It is pertinent to note that in the above discussed precedent titled as MCD v. Bishan Sarup [supra], which is squarely applicable to the present case, full bench of the Hon'ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that there was no occasion for the trial court to have felt surprised or CC No. 22/00 Page 30 of 46 intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analysis to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (like in present case) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon'ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon'ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup's case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.
CC No. 22/00 Page 31 of 4655. Even in Chanan Lal's case, the Director CFL had reported that the sample was decomposed and leaking. The judgement would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of the accused to get the sample analysed from CFL. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions and presumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the reports of chemical analysts, as observed in Bishan Sarup's case, only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.
56. It is to be noted that the sample was analysed by the PA on 12.07.1999 and by the CFL on 14.06.2000. With such a time gap, some changes are bound to happen in the sample of milk. But that would not render all the proceedings null and void. If the accused persons claim that the sample failed at the CFL due to lapse of time, then the burden would CC No. 22/00 Page 32 of 46 be upon them to show as to in what proportion the incriminating component degrades on the basis of which the court may conclude that in every likelihood the sample must have been as per standards on the day when it was lifted. If a sample is substandard on the day of sampling, there is every likelihood that after lapse of some time, its values would go further down on the standards. But that would not negate the prosecution case. If the accused persons claim that the sample was conforming to the standards on the date of sampling and that its values deteriorated by the time it reached the CFL, then they are required to lead evidence to this effect. They have to establish the proportion or pace at which a particular component degrades with the passage of time on the basis of which the court may infer that the sample must have been as per standards on the day of sampling.
57. However, no such attempt has been made by the accused persons in this case. No attempt has been made by the accused persons to call and cross examine the PA or CFL analysts under section 293 CrPC seeking explanation or clarifications to this effect. Not only the PA or CFL analysts, but not even any other expert witness has been examined by the accused persons in this regard. Some variations are certainly expected due to time gap between the analysis by PA and CFL. But in the absence of any specific evidence, the court cannot hypothetical assume that the content of milk solids not fat must have been as per standards on the day of sampling. Despite such option being available, if the accused persons fail to exercise the same, they cannot then chose to question the reports on assumptions, presumptions and hypothesis, without according any CC No. 22/00 Page 33 of 46 opportunity to the examiners to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analysts any opportunity to explain any point on which the reports are silent. In such a case, there is no reason why the accused did not opt to cross-examine the PA and CFL and ask them about the method used by them to detect milk fat content, if they were genuinely aggrieved by contents of their reports. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the PA and CFL when this opportunity was available to them. Reliance can be placed on judgements titled as Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206], wherein it was observed that "the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
58. There is nothing for the court to disbelieve the PA and CFL reports wherein milk solids not fact had been detected in the food article less than the prescribed minimum limits. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused persons that the milk fat or milk solids not fat contents were not correctly detected. No suggestion to this effect was given to any witness during cross- examination.
CC No. 22/00 Page 34 of 4659. There is also no force in the defence stand that the PA or CFL have not mentioned the name of tests adopted or that some improper or unreliable method might have been used to analyse the milk fat content. It is to be noted that the office of the PA and CFL maintains all the details of the methods used, the analytical values, the calculations, etc on the basis of which the final reports are given. The final reports so given are in the formats as prescribed under the Rules (as the Rules existed at that time). No attempt was made by the accused persons to call for those records or question the PA or CFL as to the validity, details or intricacies of the test methodology adopted.
60. Further, there is also no merit in the contention that the milk in this case was not for sale so as to take it out of purview of PFA Act. It is contended by the defence that as the milk was being carried in a tanker, the FI was not competent to take a sample therefrom. However, there is no merit in such a stand. As per section 10 of PFA Act, a FI shall have powers to take samples of any article of food from any person selling such article and any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. As per the definition of "sale" under section 2(xiii) PFA Act, it includes sale of any article of food for analysis or having in possession for sale of any such article. Thus, the definition of "sale" is quite wide, which also expands the scope of section 10 of PFA Act. There is no rule of law which requires that the sample could be lifted only when it is actually being sold to any customer. If a food article is exposed or being transported for sale for CC No. 22/00 Page 35 of 46 human consumption, that would be covered under section 10 (1). When the accused no. 1 (since PO) in this case was carrying milk in a tanker meant for sale in Delhi, the said food article was definitely for sale and the FI was competent to lift sample therefrom.
61. It is to be noted that the accused no. 2 and 3 have nowhere disowned the tanker or its contents. It is not their case that the tanker did not belong to them or that the driver accused no. 1 was not their employee or that the milk therein was not theirs. They never claimed that the milk was meant for any purpose other than sale. Such large quantity of milk being transported would be most probably for sale only, unless the accused persons establish otherwise. But there is no defence on these lines at the trial or even in the reply Ex. PW-1/G1 given by the accused no. 2 company to the FI during investigation. Position would have been different if the said food was stored / exposed not for sale but for personal use or any purpose not covered in the definition of sale.
62. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments, particularly when at odd hours CC No. 22/00 Page 36 of 46 as in the present case (03.15 AM). But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross- examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 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. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
63. All the three witnesses in the present case have deposed about the compliance of the necessary rules including use of clean and dry implements / utensils. All the three witnesses categorically deposed in their testimony about use of clean and dry plunger. All the witnesses vehemently denied that the milk could not have been homogenised with the help of the plunger. Mere giving suggestions would not establish the existence of facts.
64. All the witnesses examined on record deposed in conformity to each other on material particulars. At the same time, it is to be understood that human memory is liable to fade and some minor contradictions / exaggerations / omissions / variations could creep in with the passage of time. Unless such contradictions / variations are material enough so as to CC No. 22/00 Page 37 of 46 go to the root of the matter, they should not be allowed to negate or nullify the entire testimony of the witnesses on all other counts.
65. In the present case, PW-1 and PW-3 both confirmed the fact that plunger was 7-8 or 6 feet long. All three PWs stated that the plunger was with the accused no. 1 only and there is no contrary evidence. PW-1 even gave approximate dimensions of the tanker when asked. Thus, there is no contradiction in the evidence of the witnesses which can be said to be material enough to give any benefit to the accused persons.
66. PWs deposed about homogenisation by using plunger. But Ld. Counsel submits that the correct method should have been to steer the milk mechanically by starting the motor after putting the exit pipe into the top hole of the tanker. Well, that might have been one method, but that cannot be said to be the only or best method. Nothing wrong is there in such procedure as the food officials as even a plunger would be sufficient to mix the milk thoroughly. Thus, there is nothing improper in the method adopted.
67. The defence lastly claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 31.01.2000 on the basis of the Public Analyst's report dated 12.07.1999. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no CC No. 22/00 Page 38 of 46 prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
68. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been CC No. 22/00 Page 39 of 46 booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
69. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she has been duly appointed and this fact was never disputed at the time of trial.
70. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food CC No. 22/00 Page 40 of 46 Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time, CFL Pune had been specified to be the laboratory for Delhi region.
71. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned CC No. 22/00 Page 41 of 46 and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
72. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
73. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a CC No. 22/00 Page 42 of 46 specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
74. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also CC No. 22/00 Page 43 of 46 erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
75. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is for violation of section 2(ia)(a) and (m) of the Act. The present case would be covered on the lines of a judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to standards of milk and and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.
CC No. 22/00 Page 44 of 4676. It has come on record that the tanker in question belonged to the accused no. 2 company. As per section 17 of PFA Act, since a nominee (accused no. 3) had been appointed by the said company, he would be liable for the offence committed by the company in addition to the company. As per Section 7 of PFA Act, no person shall "himself or by any person on his behalf" manufacture for sale or store, sell or distribute any adulterated food. Therefore, the accused no. 2 company would be liable for the offence and it cannot put the entire burden on the accused no. 1 vendor. Being the company and its nominee respectively, accused no. 2 and 3 are responsible for compliance of the rules.
77. No other stand taken has been taken by the defence hitting on merits of the case.
78. The case in hand would be covered under section 2(ia)(a) as the milk sold by the accused persons was not of the nature, substance or quality which it purported to be and under section 2(ia)(m) of PFA Act as the constituent of milk solids not fat was present in quantities less than the prescribed minimum limits.
79. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused nol 2 and 3 beyond the shadow of reasonable doubt. It has been proved that the accused no. 2 and 3 had sold through accused no. 1 (since PO) adulterated CC No. 22/00 Page 45 of 46 food in violation of section 2(ia)(a) and (m) of PFA Act and have committed the offence punishable under section 7/16(1)(a) of PFA Act.
80. Having said so, both the accused no. 2 and 3 are held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.
81. Let the matter be listed for arguments on sentence. Accused no. 1 continues to be a proclaimed offender.
Announced in the open court this 22nd day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 22/00 Page 46 of 46