Delhi District Court
Da vs . Kamil Etc. Page 1 Of 54 on 22 May, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 90/05
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Kamil s/o Sh. Shahabuddin
M/s Kamil Kiryana Store,
2166, Main Bazar, Turkman Gate,
Delhi06.
........ VendorcumProprietor
Serial number of the case : 90/05
Date of the commission of the offence : 05/04/04
Date of filing of the complaint : 25.04.2005
Name of the Complainant : Sh. Shyam Lal, Food Inspector
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DA Vs. Kamil etc. Page 1 of 54
Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954 and Rule 23 r/w Rule
28 & 29 of PFA Rules, 1955,
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 22.05.2014
Judgment announced on : 22.05.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 05.04.2004 at about 6:15
p.m, Food Inspector Shyam Lal and Field Assistant Siya Ram, under the supervision
and directions of SDM / LHA Sh. N.R. Sharma visited M/s Kamil Kiryana Store, 2166,
Main Bazar, Turkman Gate, Delhi06, where accused Kamil who was the vendorcum
proprietor was found present conducting the business of various food articles including
Dal Arhar, for sale for human consumption and in compliance of the provisions of the
Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration
Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected /
purchased the sample of Dal Arhar.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was adulterated
because it was found "coloured with synthetic colour matter viz. Tartrazine" and
accordingly after obtaining the necessary Sanction / Consent under Section 20 of the
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Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) (b) (j)
& (m) of PFA Act 1954 and, for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules
1955, punishable U/s 16 (1A) r/w Section 7 of the Act.
3. It is further the prosecution case that during investigation it was revealed
that Shahabuddin accused no. 2 was the licensee of the shop as per license issued
by MCD.
4. After the complaint was filed, the accused persons were summoned vide
orders dated 25.04.2005. Accused Shahabuddin expired during the course of trial
and proceedings against him were abated by Ld. Predecessor of this court vide orders
dated 24.02.2009.
5. In pre charge evidence, the prosecution examined one witness i.e. Food
Inspector Shyam Lal as PW1 and pre charge evidence was closed vide order dated
27.10.2009.
6. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954; provision of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16
(1A) r/w section 7 of the Act was framed against the accused vide order dated
08.01.2010 to which accused pleaded not guilty and claimed trial.
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7. Thereafter, in post charge evidence the prosecution examined three
witnesses including Food Inspector Shyam Lal as PW1, Field Assistant Siya Ram as
PW2 and the then SDM / LHA Sh. N.R. Sharma as PW3 and PE was closed vide
order dated 29.01.2013.
8. Statement of the accused U/s 313 Cr. P.C. was recorded on 10.04.2013
wherein the accused claimed himself to be innocent. Despite opportunity given the
accused did not lead any defence evidence.
A brief scrutiny of the evidence recorded in the matter is as under:
9. PW1 Food Inspector, Shyam Lal deposed that on 05.04.2004 he
alongwith FA Siya Ram and other officials of PFA Department, under supervision and
directions of SDM / LHA Sh. N.R. Sharma visited the premises of M/s Kamil Kiryana
Store, 2166, Main Bazar, Turkman Gate, Delhi where accused Kamil was found
conducting the business of food articles stored there for sale for human consumption
including Dal Arhar. He deposed that they disclosed their identity and intention for
purchasing the sample of Dal Arhar (ready for sale) lying in an open container having
no label declaration, for analysis to which the accused agreed. He further deposed
that before taking the sample he tried his best to procure some public witnesses by
requesting some neighborers, customers and passersby to join the sample
proceedings but as none agreed, on his request FA Siya Ram agreed and joined as
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witness. He further deposed that at about 06.15 p.m. he purchased 1500 gms of Dal
Arhar, taken from an open container having no label declaration after mixing the entire
quantity with the help of the dry and clean Jhaba by rotating it in all possible directions
several times on payment of Rs. 48/ vide vendor's receipt Ex. PW1/A. He deposed
that then he divided the so purchased sample into three equal parts by putting them in
three clean and dry glass bottles separately and then each sample bottle containing
the sample then separately packed, fastened, marked and sealed according to PFA
Act & Rules and the LHA slip bearing his code number and signature was affixed on
all the three counterparts of the bottle. Then the vendor signatures were obtained on
LHA slip in such a manner that a portion of his signature were on the wrapper as well
as on the LHA slips. He further deposed that Notice in Form VI was prepared vide Ex.
PW 1/B and a copy of the same was given to the accused as per his endorsement at
portion A to A as well as his signature at point A. He further deposed that then
Panchnama Ex. PW 1/C was prepared. He further deposed that all these documents
Ex. PW 1/A to Ex. PW 1/C were read over and explained to the accused in Hindi and
after understanding the same, accused signed at point A, witness at point B and he
himself signed the same at point C respectively.
10. He further deposed that one counterpart of the sample was deposited
with PA on 06.04.2004 vide receipt Ex. PW1/D in a sealed packet containing one copy
of memo in Form VII and another sealed envelope containing one copy of another
memo in Form VII separately. He further deposed that two counterparts of the sample
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alongwith two copies of Memo in Form VII in a sealed packet in intact condition were
deposited with LHA on 06.04.2004 vide receipt Ex. PW1/E with intimation that one
counterpart of the sample has already been deposited in intact condition with PA. He
further deposed that all the copies of Memo of Form VII bore the same seal impression
with which the sample in question was sealed. He further deposed that Public
Analyst's report Ex. PW 1/F was received according to which, the sample was found
adulterated as mentioned there in at portion X. He further deposed that during
investigation, he sent a letter Ex. PW 1/G to vendor but no reply was received. He
also sent a letter Ex. PW1/H to STO Ward No. 9 but no reply was received. He further
deposed that he sent a letter Ex. PW 1/I to Zone Health Officer, City Zone and reply
received at portion A, according to which Sh. Shahabuddin was the licensee of the
shop and also provided the photocopy of MCD license Mark X. He deposed that
during investigation accused was found vendor cum proprietor of the said shop. He
further deposed that on completion of investigation, the complete case file alongwith
all statutory documents were sent to Director (PFA) Sh. Deewan Chand through LHA,
who after going through the case file gave his Consent Ex. PW 1/J for launching
prosecution against the accused and accordingly he filed the complaint Ex. PW 1/K in
the court. He further deposed that intimation letter Ex. PW 1/L alongwith PA's report
was sent to accused by registered post by SDM / LHA which was not received back
undelivered.
11. During his cross examination he stated that container was made of iron.
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He stated that there was about 10 Kg of Dal Arhar in the container. He stated that the
capacity of the container was about 1820 Kg. He stated that the sample commodity
was mixed with the same Jhaba which was lying in the container after making it clean.
He stated that Jhaba was made clean at the spot by the markin cloth piece also used
for sealing the sample bottles. He stated that no other sample was lifted on that day.
He denied the suggestion that same markin cloth piece was used in another samples.
He stated that Dal was put into the polythene and then it was weighed by the vendor
and thereafter it was put into the bottles directly. He stated that bottles were already
dry and clean and the same were not made again dry and clean at the spot.
12. He further stated that he inquired about the source of purchase of the
sample commodity from the vendor but he could not disclose the same. He denied the
suggestion that vendor disclosed the source of purchase and tried to mention the
same on the documents but he was not allowed while saying that the sample was
lifted from an open gunny bag. He stated that there were separate jhabas in the
separate gunny bags of pulses. He stated that jhaba was lying in the container from
which the sample was lifted. He stated that Jhaba was made of iron. He stated that
after properly mixing the Dal Arhar, same was weighed on the pan scale after putting
on a brown envelope. He stated that bottles were already dry and clean and the same
were not made again dry and clean at the spot. He stated that he does not know
about the exact date when the bottles were issued to him by the department but it was
not more than 15 days prior to the sampling. He denied the suggestion that colour
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was sticking with the bottles before Dal was put. He admitted that vendor was running
a retail shop. He stated that he cannot comment that the colour is applied at
manufacturing level or at retailer level. He stated that he had not seen
manufacturing /processing Dal Arhar. He stated that he cannot comment that the
colour is applied on the Dal to look dal beautiful, pleasant to eyes and to fetch more
price. He stated that tartrazine is a water soluble colour and same is allowed in sweets
and confectionery upto 100 ppm but not in dal arhar. He stated that 1520 people
gathered at the spot. He stated that he cannot tell the names of those persons. He
admitted that he had not mentioned this fact on the documents Ex. PW1/A to C that he
tried to associate the public witnesses but they refused. He voluntarily stated that he
mentioned this fact in the report under rule 9 (e). He denied the suggestion that he
intentionally did not try to associate the public witnesses.
13. PW2 FA Siya Ram and PW3 N.R. Sharma the then SDM/LHA have
deposed on the same lines as deposed by PW 1 in his examination in chief.
14. This so far is the prosecution evidence in the matter.
15. I have heard the arguments advanced at bar by the Ld. defence counsel
as also the Ld. SPP for complainant. I have also carefully gone through the evidence
recorded in the matter and perused the documents placed on record by the
prosecution in this case.
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16. After hearing the rival contentions raised at bar as well as on careful
scrutiny of the material on record, I am of the considered opinion that the prosecution
has successfully brought home the guilt against the accused.
17. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Shyam Lal coupled with the report of the PA
dated 29.04.2004 that accused Kamil was indeed found selling Dal Arhar which was
adulterated on account of it containing synthetic colour viz. Tartrazine.
18. The star / the material witness of the prosecution i.e. Food Inspector
Shyam Lal categorically proved the sample proceedings dated 05.04.2004 as were
conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution and which bears the
signature of the accused as well, the admissions made by the accused during his
examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of this
Court on 10.04.2013 which are admissible in evidence against the accused in view of
sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas
Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh,
(SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal Pradesh,
(SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570,
State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad
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Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of
Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315 ,
leaves no doubt that the sample of Dal Arhar was indeed collected by the Food
Inspector for analysis from M/s Kamil Kiryana Store from accused Kamil.
19. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
20. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings and hence no
reliance can be placed on the alleged sample proceedings.
21. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
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is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
22. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
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present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
23. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
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State
24. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
25. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
26. It is writ large from the deposition of PW1, PW2 and PW3 that FI Shyam
Lal made sincere efforts to join the public persons in the sample proceedings but none
agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands admitted/ unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
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record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14
27. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles as well as the instrument i.e. jhaba with which the sample
was poured in the bottles. It was argued that the colour was already sticking to the
Jhaba, the sample bottles as well as polythene bag/envelope and it was this colour
which was detected by the PA. It was argued that the Jhaba was cleaned with the help
of a cloth to which colour was already sticking. It was argued that Rule 14 of the Act is
mandatory and not directory and in case there is no strict adherence to Rule 14,
benefit has to be given to the accused. Reliance was placed on the law laid down in
State of Gujarat Vs. Harumal Retumal and others 2008 FAJ 292 (Guj), Koyakutty
Vs. Food Inspector 2000 (2) FAC 238 and Shew Chander Mathur and anr Vs.
State of Assam and anr., 1991 (1) FAC 9.
28. However I differ with the contentions as raised by the Ld. defence
counsel.
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29. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to mix the same. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
30. I have perused the deposition of the Food Inspector i.e. Shyam Lal, who
was examined as PW1. The Food Inspector deposed as under:
" At about 06.15 p.m. I purchased 1500 gms of Dal Arhar, taken from a
open container having no label declaration after mixing the entire quantity with the
help of the dry and clean Jhaba by rotating it in all possible directions several times on
payment of Rs. 48/ vide vendor's receipt Ex. PW1/A. Then I divided the so
purchased sample into three equal parts by putting them in three clean and dry glass
bottles separately......."
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31. During his cross examination he stated as under:
"...... Jhaba was made clean at the spot by the markin cloth piece also
used for sealing the sample bottles.......Bottles were already dry and clean and the
same were not made again dry and clean at the spot"
32. Similarly PW3 the then SDM/LHA Sh. N.R. Sharma deposed as under:
" Before taking the sample, the sample commodity was properly mixed
with the help of a clean and dry JHABA by rotating it in the container itself in all
possible directions several times. Thereafter the required quantity was taken out and
was divided into three equal parts by putting it into three clean and dry glass bottles."
33. During his cross examination he stated as under:
".......It is wrong to suggest that some yellow colour was sticking with the
cloth.....The brown paper envelope was not made clean as it was already in clean
condition. The sample bottles were not made clean and dry as they were already in
clean and dry condition. It is wrong to suggest that some yellow colour was sticking
inside these bottles."
34. PW2 FA Siya Ram deposed as under:
" Before taking the sample, the Dal Arhar was properly mixed in the said
container with the help of clean and dry JHABA by rotating it in all possible directions.
The so purchased sample of dal arhar was divided then and there by FI into three
equal parts by putting them in three clean and dry glass bottles....................."
35. During his cross examination he stated as under:
" The jhaba was provided by the vendor in neat and clean condition. It is
wrong to suggest that some yellow colour was sticking with the cloth. It is wrong to
suggest that some yellow colour was sticking inside the bottles".
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36. Hence the prosecution witnesses consistently deposed regarding the
jhaba as well as the sample bottles and the polythene bag/envelope being clean and
dry. They categorically denied the suggestion that colour was sticking either with the
Jhaba or the bottles or the cloth used for making the jhaba clean and dry. I have no
reasons to disbelieve them as discussed above I find no reasons why the FI or the
SDM would falsely implicate the accused that is to say would use contaminated or
colored instruments or bottles for sampling. The defence has failed to prove any
motive which could be assigned to the above officials for falsely implicating the
accused. Moreover nothing on record has been proved to the contrary i.e. the
defence has not proved that the Food Inspector did not comply with the provisions of
the Rule 14. Just because the defence is challenging the sampling process conducted
by the Food Inspector / asserting that Rule 14 was violated is not sufficient to either
disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I have
also gone through Section 114 (e) of the Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
37. The above provisions and the legislation is based upon the maxim
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"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
38. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.
39. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,
1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,
Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].
40. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
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suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
41. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
42. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".
43. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
44. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has
been held as under:
"it is the question of fact in each case as to whether it has been proved that the
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bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."
Homogenization / Mixing of Sample.
45. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted which is
itself a violation of Rule 14.
46. However, I find no merits in the contention of the Ld. defence counsel.
Firstly there is no requirement of mixing the sample or making it homogenized either
under the Act or the Rules. Secondly, it is evident from the deposition of the
prosecution witnesses i.e. the Food Inspector and the other complainant witnesses as
discussed above that the sample was taken after mixing/rotating the Dal Arhar
properly in all possible directions several times. I have no reasons to disbelieve the
Food Inspector or the other complainant witnesses in this regard.
47. Thirdly, there was no requirement of mixing or making the sample i.e.
Dal Arhar homogenized as such in view of the law laid down in Dhian Chand Vs.
State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
CC No. 90/05
DA Vs. Kamil etc. Page 20 of 54
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."
48. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
CC No. 90/05
DA Vs. Kamil etc. Page 21 of 54
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
49. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 48/ to the
accused/vendor towards the purchase of sample commodity. In this regard vendor's
receipt Ex. PW1/A was executed which bears the signature of accused at point A. The
testimony of the Food Inspector has gone unrebutted on this material particular. The
testimony of the SDM/LHA as well as the FA which is on the same lines have also
remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The
food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC
(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of
an article of food, which is found to be adulterated, the accused will be guilty of an
offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD
Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court
of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis CC No. 90/05 DA Vs. Kamil etc. Page 22 of 54 is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".
50. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food CC No. 90/05 DA Vs. Kamil etc. Page 23 of 54 Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
51. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.
52. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:
"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire CC No. 90/05 DA Vs. Kamil etc. Page 24 of 54 quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."
53. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:
" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."
54. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be CC No. 90/05 DA Vs. Kamil etc. Page 25 of 54 defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Discrepancies
55. It was argued by Ld. Defence counsel that there are major discrepancies in the deposition of PW1, PW2 and PW3 qua the sample proceedings. It was argued that the FI had claimed that the Jhaba was cleaned by him with a cloth piece. On the other hand, the SDM/LHA claimed that the Jhaba was made clean by the vendor/accused. FA on the other hand claimed that Jhaba was not made clean by the FI with the help of a cloth. Similarly the FI had stated that 1520 persons had gathered at the spot whereas the SDM/LHA claimed that 23 person were present at the shop at the time of sampling. The Ld. Defence counsel argued that these discrepancies themselves prove that the prosecution witnesses were deposing falsely and sample proceedings were bad and there was violation of Rule 14. Reliance was placed on the law laid down in AIR 2001 SC 3976 and 2012 (1) FAC 384.
56. No doubt the Ld. Defence counsel pointed out the above discrepancies in the deposition of PW1, PW2 and PW3 however the discrepancies as pointed out by Ld. Defence counsel are too trivial in nature to be given any weightage. The discrepancies as above are natural and bound to occur on account of passage of time and lapse of memory. Human memories are apt to blur with passage of time. The CC No. 90/05 DA Vs. Kamil etc. Page 26 of 54 sample was lifted in the year 2004 and the deposition/cross examination of witnesses were recorded in the year 2010 and 2013 i.e. after a gap of around 69 years. After such a long time period a person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance.
57. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance may be placed upon the observations made by the Hon'ble Apex Court in CC No. 90/05 DA Vs. Kamil etc. Page 27 of 54 case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
58. The law is well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with un due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. One cannot come across a witness whose evidence does not contain some exaggeration or embellishments. Sometimes there could even be a deliberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exag gerated account. Court can sift the chaff from corn and find out truth from the testimo ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confidence in mind of the court.
59. Moreover, officials like Food Inspector and the SDM/LHA are involved in collecting samples/witnessing sample proceedings almost daily and sometimes more than one sample is collected in a day. During their stint as Food Inspector and SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the facts being mixed up due to passage of time. Same has to be given due allowance. In case at hand the discrepancies as above does not effect the prosecution story at all. It CC No. 90/05 DA Vs. Kamil etc. Page 28 of 54 does not render it unreliable or untrustworthy. It stands proved on record that a clean and dry jhaba was used for sampling.
PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.
60. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to the accused and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300.
61. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 25.04.2005 and the next date of hearing before the court was 27.09.2005. However in between the dates of hearing the matter was listed/taken up on 10.05.2005. It was done so in pursuant to the application u/s 13 (2) PFA Act moved by the accused seeking sending of one of the counterpart to the Director, CFL for his opinion. However it is evident from CC No. 90/05 DA Vs. Kamil etc. Page 29 of 54 proceedings dated 10.05.2005 that on that day, for reasons best known to him the accused withdrew the application while submitting that he does not wish to exercise the right. Hence once he himself does not exercise the right u/s 13(2) PFA Act he cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.
62. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".
63. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."
64. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can CC No. 90/05 DA Vs. Kamil etc. Page 30 of 54 have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."
65. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no sample was sent to Director, CFL, the petitioner can make no grievance.
66. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.
67. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director. "
68. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under:
".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the CC No. 90/05 DA Vs. Kamil etc. Page 31 of 54 Act, he cannot complain that he has been deprived of any right."
69. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........
70. Thus though he had moved the application however he withdrew the same and hence it amounts to non exercising the right u/s 13 (2). Therefore denial of statutory right to him was because of his own volition.
71. As far as the service of the intimation letter and the PA report to the accused is concerned firstly as discussed above the accused did not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon him or not looses much of its significance. Secondly, from the application dated 04.05.2005 which bears the signature of the accused as well as Ld. Defence counsel it is crystal clear/writ large/stands proved/admitted that he had received the PA's report and intimation letter. Hence the defence is now taking up a false/incorrect plea that no report was received. Thirdly, PW3 SDM/LHA and PW2 FI Shyam Lal categorically deposed that CC No. 90/05 DA Vs. Kamil etc. Page 32 of 54 the intimation letter along with PA's report was sent to the accused by registered post and the same was not received back undelivered. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to the accused. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:
"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise does not assume importance".
72. Hence from the application of the accused as well as unrebutted testimony of the prosecution witnesses, it stands duly proved that the PA's report along with intimation letter was received by the accused. Delay
73. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in filing the complaint as though the sample was collected/lifted on 08.04.2004 the complaint was filed only on 25.04.2005 i.e. after a gap of more than 1 year. It was argued that it was unlikely that the sample would have remained fit for such a long period and hence even if the accused had pressed for his application u/s 13(2) the sample would have become deteriorated/decomposed by that CC No. 90/05 DA Vs. Kamil etc. Page 33 of 54 time and no purpose would have been served by moving the application. It was argued that on account of the lapses/laches on the part of the prosecution the accused's right u/s 13 (2) was prejudiced and no reliance can be placed on the Director's report as the same would have deteriorated due to lapse of 1 year since its lifting. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957.
74. However I do not agree with the contentions of Ld. Defence counsel. The accused should have went ahead with his application u/s 13 (2)/should have exercised the right therein and only if the Director had opined that sample was decomposed he would have been entitled to the benefit or could have claimed prejudice. Reliance may be placed upon Ajit Prasad's case (supra) as well as MCD Vs. Ghisa Ram 19481997 FAC (SC) 265 and Babu Lal Hargovind Das Vs. State of Gujarat 19481997 FAC (SC) 1083. He did not exercise his right for reasons best known to him.
75. Furthermore no presumption can be drawn by the Court that merely on account of the delay of 1 year the sample would have decomposed/rendered unfit for analysis. It being a sample of Dal and I am not inclined to agree with the defence plea that the Dal would have deteriorated due to lapse of 1 year. The defence could not prove anything on record to that extent.
CC No. 90/05 DA Vs. Kamil etc. Page 34 of 54
76. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the Director of CFL". In these circumstances the report of the PA was accepted in maintaining the conviction.
77. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
78. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
79. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed CC No. 90/05 DA Vs. Kamil etc. Page 35 of 54 as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis."
80. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
81. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
82. In M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110 it was observed as under:
CC No. 90/05 DA Vs. Kamil etc. Page 36 of 54
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, CC No. 90/05 DA Vs. Kamil etc. Page 37 of 54 Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
"It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
"If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".CC No. 90/05 DA Vs. Kamil etc. Page 38 of 54
83. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
84. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was one of the contentions of the Ld. defence counsel that since the complaint was launched after lapse of more than 4 months from the date of taking sample the accused could not utilize his right to send the sample to Director, CFL. As a matter of fact the accused had not moved any application under Section 13(2) of the Act claiming that as there was delay in launching of the prosecution / supply of the PA's report, no purpose would have been served by resorting to an application under Section 13(2) of the Act as on account of delay the article of food would not have retained its quality for examination. Repelling the contentions their lordship held as under:
" There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed."
85. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food CC No. 90/05 DA Vs. Kamil etc. Page 39 of 54 Adulterations cases 195, it was held that if the report of the Public Analyst is served upon the accused after two years and the accused does not make any application for sending the sample to Director, CFL no prejudice is caused to him.
86. Hence I finds no merits in the contentions of Ld. Defence counsel that delay caused prejudice to the accused.
Use of colour.
87. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.
88. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the CC No. 90/05 DA Vs. Kamil etc. Page 40 of 54 Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:
"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".
89. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:
CC No. 90/05 DA Vs. Kamil etc. Page 41 of 54
" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".
90. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.
91. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association CC No. 90/05 DA Vs. Kamil etc. Page 42 of 54 Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"
(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.
92. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:
" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".
93. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not CC No. 90/05 DA Vs. Kamil etc. Page 43 of 54 specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
94. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:
"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".
95. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.
96. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that CC No. 90/05 DA Vs. Kamil etc. Page 44 of 54 the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.
97. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.
Paper Chromatography Test.
98. It was further argued that the PA used paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are CC No. 90/05 DA Vs. Kamil etc. Page 45 of 54 the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:
"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act.".".
19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."
Percentage of colour
99. It was further argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the CC No. 90/05 DA Vs. Kamil etc. Page 46 of 54 above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.
PA's report
100. In the case at hand the accused did not exercise his right as envisaged CC No. 90/05 DA Vs. Kamil etc. Page 47 of 54 u/s 13 (2). It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.
In the case at hand PA vide his report Ex PW/1/F found Tartrazine in the sample of the Dal Arhar which is not permitted/ in violation of Rule 23, 28 and 29. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 07.04.2004 to 12.04.2004 she was a duly/ validly appointed Public Analyst.
Rule 18
101. It was also one of the arguments of the Ld. defence counsel for the accused that there was violation of Rule 17 and 18, benefit of which must be given to the accused. It was argued that it has not been proved that the specimen impression of the Seal used for sealing the sample as provided in Rule 17 was sent to the Public CC No. 90/05 DA Vs. Kamil etc. Page 48 of 54 Analyst separately as per the mandate of Rule 18. It was argued that in these circumstances the sample being tampered with during its transit to the PA cannot be ruled out. Reliance was placed upon State of Maharashra Vs. Rajkaran 19481997 FAC (SC) 918, State of HP Vs. Narender Kumar 2004 FAJ 281 SC, State of Orissa Vs. Rabindru Sahu 2006 (1) FAC 200 (SC), State Vs. Banwari Lal 2011 (1) FAC 149, Delhi High Court and Gian Chand Vs. State of Haryana 1982 (I) FAC 8.
102. I have perused the deposition of the Food Inspector i.e. PW 1, the report of the Public Analyst as well as Rule 18 of the Prevention of Food Adulteration Rules, 1955. Rule 18 provides that the copy of Memorandum and a specimen impression of the Seal used to seal the packet shall be sent to the Public Analyst separately. In Kassim Kunju Pookunju and Anr. Vs. K.K. Ramakrishna Pillai and Anr., Crl. Appeal No. 29 of 1968, decided on 02.12.1968, the Hon'ble Apex Court observed as under:
"The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7 of the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.
We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied.".CC No. 90/05 DA Vs. Kamil etc. Page 49 of 54
103. Similarly in N. Sukumaran Nair Vs. Food Inspector, Mavelikara, Crl. Appeal No. 343 of 1989, decided on 31.01.1995, the Hon'ble Apex Court held as under:
"The Food Inspector as PW1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in crossexamination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in crossexamination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence.".
104. In Srinagar Municipal Corporation Vs. Sonna Ullah Malik 1978(2) FAC 99, it was held as under:
"The object of Rule 17 and 18 is to prevent the possibility of tampering with the sample before it reaches the public analyst and it is with this object that it is provided that the specimen impression of the seal used should be sent separately to the public analyst so that he can compare it with the seal used on the container of the sample to find out if it tallied or not. In case the seal does not tally with the specimen, it would show that the sample had been tampered with...........the statement of the Food Inspector that he had sent specimen of the seal to the public analyst read with the report of the public analyst that he had received the specimen separately sent, leaves no manner of doubt that rules 17 and 18 were duly complied with by the Food Inspector and the grievance made by the respondent is untenable."CC No. 90/05 DA Vs. Kamil etc. Page 50 of 54
105. It is also not necessary that the sample along with the memorandum should be sent with one person and a copy of the memorandum and the specimen impression of the seal should be sent along with another person or that if they are sent with the same person they should be sent at different times (1978 (1) FAC 167, 1978 (1) FAC 246 and 1976 (2) FAC 61).
106. Reliance may also be placed upon on law laid down by Hon. Supreme Court in Kasim Kunju O Kunju vs. Ramakrishna Pillai 1976 (2) FAC 68 and Gyan Chand Vs. MCD 1979 (2) FAC 320 and 1981 (1) FAC 290.
107. In the case at hand the sample was lifted on 05.04.2004 at about 06.15 p.m. and same was deposited with LHA on the next working day i.e. 06.04.2004. Thus there was no delay in depositing the sample with SDM/LHA. This itself rules out any tampering. Furthermore, the Food Inspector categorically stated that one counterpart of the sample was deposited with the PA on 06.04.2004 vide Ex. PW1/D in a sealed packet containing one copy of memo in Form VII and another sealed envelope containing one copy of another memo in Form VII separately. It is apparent from Ex. PW1/D which is the receipt of the sample at the PA's office that the copy of Form VII was sent in a sealed packed separately. Furthermore the PA in his report Ex. PW1/F categorically stated as "the condition of seals on the container and the outer covering on receipt was as follows: seals were intact and identical to the specimen impression of the seal received from the Food Inspector". Hence there CC No. 90/05 DA Vs. Kamil etc. Page 51 of 54 was no violation of Rule 18. Reliance may be placed upon the law laid down by the Hon. Apex Court in N. Sukumaran Nayyar Vs. FI 19481997 FAC (SC) 420. There is thus no violation and nothing on record to even remotely suggest that the accused was prejudiced or the sample tampered with before its analysis by the PA. Regarding the contentions that the FI had put the seal impression in form VII which was put in the sealed packet deposited with the PA which he should not have done so as to avoid tampering suffice is to say that after the copy of memo in Form VII was put with the sample in the packet, the packet was sealed and the same was opened by the PA only after comparing it ( seal impression on the packet) with the seal impression sent in a separate packet as is evident from the report of the PA. Hence there is no force in the argument that the FI should not have sent/put seal impression in form VII with the sample as no prejudice can be said to have been caused to the accused. There is no chance/ reason/remotest of proof of any tampering. Nonetheless if the accused had any apprehension/reasons to believe that the sample was tampered with than nothing stopped him from exercising the right available with him u/s 13 (2) of PFA Act which as already discussed above he did not exercise for reasons best known to him.
Accused not the owner or proprietor of the shop in question.
108. It was lastly argued by the Ld. Defence counsel that the prosecution could not connect accused Kamil with shop in question. It was argued that there is CC No. 90/05 DA Vs. Kamil etc. Page 52 of 54 nothing on record to connect the accused with M/s Kamil Kiryana Store. It was argued that prosecution could not place any document on record connecting/linking the accused with M/s Kamil Kiryana Store. Ld. Defence counsel argued that as per Ex. PW1/I the license of the shop in question i.e. M/s Kamil Kiryana Store was issued in the name of Shahabuddin i.e. accused no. 2 and therefore he alone was liable. However I find no merits in the contentions of Ld. Defence counsel. It stands proved from the admissions made by the accused during his examination u/s 313 Cr.P.C. as well as from the deposition of the Food Inspector and other prosecution witnesses that Dal Arhar was sold to the Food Inspector by accused Kamil. When Food Inspector had lifted the sample it was accused Kamil who was present at the shop. Documents Ex. PW1/A to Ex. PW1/C which bears the signature of accused Kamil leaves no doubt whatsoever that the sample was lifted in his presence /from him. No doubt the license was in the Shahbuddin however the sample was lifted from the accused. At the time of sale it was accused who was the vendor. Hence there is no escape of the accused from the liability under the Act. In fact the accused is the son of license holder i.e. accused no. 2 Shahabuddin. Reliance may be placed upon the law laid down in State of Orissa Vs. K. Rajeshwar Rao 19481997 FAC (SC) 956 wherein the Hon. Apex Court observed "It is not material to establish the capacity of the person visavis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the FI). The court held that section 7 of the Act enjoins everyone whether an employer or a servant not CC No. 90/05 DA Vs. Kamil etc. Page 53 of 54 to sell adulterated food and anyone who contravenes this provision is punishable under section 16 without proof of mens rea. Reliance may also be placed on Sarjoo Prasad Vs. State of UP 1975 (1) FAC 221, Ibrahim Hazi Vs. FI 1976 (2) All India Prevention of Food Adulteration Cases 66, Budhmal Vs. The State 1977 (2) FAC 369, Smt. Manibhai and anr Vs. State of Maharashtra 1973 FAC 349 and Raghubar Vs. State of U.P. 1977 (2) FAC 144.
109. In view of my above discussion, as colour tartrazine was found by the PA in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
110. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 22nd May 2014 ACMMII/ New Delhi CC No. 90/05 DA Vs. Kamil etc. Page 54 of 54