Delhi District Court
Da vs . Sunder Lal Page 1 Of 65 on 6 March, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 132/02
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Sunder Lal
S/o Ram Het Prasad
M/s Sunder Lal Store,
WZ30, Main Road Palam Colony,
New Delhi.
R/o WZ30,C, Sadh Nagar,
Palam Colony,New Delhi
........ VendorcumProprietor
Serial number of the case : 132/02
Date of the commission of the offence : 27.12.2001
Date of filing of the complaint : 13.11.2002
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DA Vs. Sunder Lal Page 1 of 65
Name of the Complainant : Sh. Arun Kumar, Food Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, r/w Rule 23, 28 & 29
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 : 06/03/14
Judgment announced on : 06/03/14
Brief facts of the case
1. In brief the case of the prosecution is that on 27.12.2001 at about 02.00
p.m. Food Inspectors A.K. Dhir and Baljeet Singh under the supervision and directions
of SDM / LHA Sh. I.S. Mishra visited M/s Sunder Lal Store, WZ30 Main Road, Palam
Colony, New Delhi, where accused Sunder Lal 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
Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) (j)
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and (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955, punishable U/s 16
(1A) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 13.11.2002. The accused after filing his appearance moved an application under
Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from
Central Food Laboratory and consequent thereto second counterpart of the sample as
per the choice of the accused was sent to Director, CFL (Pune) for its analysis vide
orders dated 16.01.2003. The Director, CFL after analysing the sample opined vide its
Certificate dated 17.02.2003 that "sample does not conform to the standards of
Arhardal as per PFA Rules 1955". The Director so opined as he detected synthetic
colour tartrazine.
4. In pre charge evidence, the prosecution examined two witnesses i.e. the
the FI Arun Kumar as PW1 and FI A.K. Dhir as PW2 and pre charge evidence was
closed vide order dated 07.04.2010.
5. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act
1954, r/w Rule 23, 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 26.04.2010 to which
accused pleaded not guilty and claimed trial.
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6. Thereafter, in post charge evidence the prosecution examined four
witnesses including FI Arun Kumar as PW1, FI A.K. Dhir as PW2, the then SDM Sh.
Indu Shekhar as PW3 and FI Baljeet Singh as PW4 and PE was closed vide order
dated 05.10.2011.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 26.03.2012
wherein the accused claimed himself to be innocent. Accused failed to examine any
witness in his defence despite opportunity given.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 FI Arun Kumar deposed that Director PFA Sh. K.S. Wahi accorded
the sanction Ex. PW1/A and authorized him to file the complaint in the designated
court and accordingly he filed complaint Ex. PW1/B bearing his signature at point A.
He deposed that intimation letter Ex. PW1/C along with PA report was sent to accused
by registered post by the SDM/LHA which was not received back undelivered and
postal receipt copy is Ex. PW1/D.
9. During his cross examination he stated that Director PFA did not discuss
the facts of this case with him. He stated that Director PFA in consent mentioned that
Public Analyst found the sample adulterated and also mentioned the provision but
specific adulteration is not mentioned. He stated that he received the complete file for
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filing complaint in November 2002. He denied the suggestion that Dal Arhar is a
perishable food article. He admitted that tartrazine is a water soluble colour and is
permitted in sweets and confectionery upto 100 ppm but not in Dal Arhar. He stated
that it is not necessary that Dal arhar is used after washing. He admitted that it is not
mentioned in the complaint that Dal Arhar was for human consumption. He stated that
he had not asked the PA to supply the paper chromatogram or photographs of the
TLC plates to ascertain whether colour was present or not. He stated that PA did not
mention the name of the test or any other data in the report from which it cannot be
confirmed that Dal Arhar contained tartrazine but she mentioned the colour identified
i.e. tartrazine. He denied the suggestion that colouring of dal is done only at
manufacturing level and not retailer level. He admitted that the colour of Dal is
extracted from any organic solvent and then it is impregnated from chromatographic
paper. He stated that Dal Arhar contains its own inherent nature colour. He stated that
he cannot say that natural colour of Dal will fade away and synthetic colour will subsist
on chromatographic paper. He stated that it is not in his knowledge that vendor gave
the photocopy of the bill of purchase and the same was not accepted by the FI on the
ground that the sample was lifted from an open gunny bag. He stated that photocopy
of the Bill Mark X was not sent to the department as per his knowledge. He stated that
he is B. Pharma. He admitted that the chromatographic test is a sensitive test and
colour in traces can be detected. He denied the suggestion that Director PFA did not
intentionally put the date on the sanction to cover up the delay in initiating the
prosecution.
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10. PW2 FI. A.K. Dhir deposed that on 27.12.2001 he along with FI Baljeet
Singh and other officials of PFA department under the supervision and directions of
SDM/LHA I.S. Mishra visited the premises of M/s Sunder Lal Store, WZ30, Main
Road, Palam Colony, New Delhi where accused Sunder Lal was found conducting the
business of the food articles stored there for sale for human consumption including Dal
Arhar. He deposed that he disclosed his identity and intention for purchasing the
sample of Dal Arhar (ready for sale) lying an open gunny bag bearing no label
declaration for analysis to which accused agreed. He deposed that before taking the
sample he tried his best to procure some public witnesses by requesting some
neighbouers, customers and passersby to join the sample proceedings but as none
agreed and on his request FI Baljeet Singh agreed and joined as witness. He
deposed that at about 02.00 p.m. he purchased 750 gms of Dal Arhar taken from an
open gunny bag having no label declaration after proper mixing with the help of the dry
and clean Jhaba by rotating it in all possible directions thoroughly several times on
payment of Rs. 21/ vide vendor's receipt Ex. PW2/A. He deposed that then and there
he divided the sample equally into three equal parts and put them in three clean and
dry glass bottles and same were separately packed, marked, fastened and sealed
according to PFA Act and Rules and pasted the LHA slip bearing his code number and
signatures from top and bottom in all the three bottles and signatures of the vendor
obtained in such a manner that partly appeared on the LHA slip and partly on the
wrapper. He deposed that notice in Form VI Ex. PW2/B was prepared and a copy was
given to the accused as per his endorsement at portion A to A bearing his signature at
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point A. He deposed that then the Panchnama Ex. PW2/C was prepared. He deposed
that accused gave the photocopy of MCD renewal receipt Mark X at the spot. He
deposed that all the documents Ex. PW2/A to Ex. PW2/C were read over and
explained to accused in Hindi and thereafter understanding the same accused signed
at point A, witness signed at point B and he signed at point C. He deposed that one
counterpart of the sample was deposited in intact condition with the PA on 28.12.2001
vide receipt Ex. PW2/D along with one copy of memo in form VII in a sealed packet
and another copy of Memo Form VII in a separately sealed envelope. He deposed
that the remaining two counterparts of same in intact condition along with two copies
of Memo of Form VII in a sealed packet were deposited with LHA on 28.12.2001 vide
receipt Ex. PW2/B with the intimation that one counterpart of the sample in intact
condition has already been deposited with the PA. He deposed that all the copies of
memo of Form VII were marked with the impression of seal which was used to seal the
sample counterparts. He deposed that on receipt of PA report Ex. PW2/F according to
which sample was found adulterated being coloured with synthetic colouring matter
Tartrazine as mentioned therein at portion X. He deposed that he further investigated
the matter by sending letter Ex.PW2/G to STO ward no. 61 and as per reply at portion
A Sh. Sunder Lal was found proprietor of the said firm. He deposed that he also sent a
letter Ex. PW2/H to DHO, MCD but no reply was received. He deposed that he also
sent a letter Ex. PW2/I to vendor and he gave the copy of ration card mark Y and
found that he is responsible for day to day affairs of the said firm. He deposed that
during investigation accused Sunder Lal was found vendorcum proprietor of the said
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firm.
11. During his cross examination he stated that it is not in his knowledge that
vendor sent any bill of purchase by post to the department. He deposed that he cannot
say that Mark X is the photocopy of the Bill. He denied the suggestion that accused
showed purchase bill Mark X at the spot and that he did not accept the said purchase
bill by saying that Dal was lying in the open gunny bag. He stated that it is not in his
knowledge that vendor was the manufacturer of the Dal Arhar or not. He voluntarily
stated that he was selling the Dal Arhar at the shop. He stated that Jhaba was already
clean and dry so he did not make the same clean and dry. He stated that nobody
made the Jhaba clean and dry as it was already clean and dry. He stated that Dal was
weighed in Pan balance. He stated that the polythene bag in which 750 gms Dal was
put was not made clean and dry as it was already clean and dry. He denied the
suggestion that Jhaba and the polythene bag were not clean and dry. He denied the
suggestion that Jhaba and the polythene bag was already contaminated with some
coloring matter. He admitted that Director CFL has not mentioned in his certificate the
percentage of colour. He stated that he cannot comment that the presence of the
colour in Dal may be in traces or in negligible quantity. He voluntarily stated that the
PA report has shown the presence of the colour which is not permitted. He denied the
suggestion that by presence of colour in traces or in negligible quantity the purchaser
is not prejudiced by purchasing the same. He stated that tartrazine colour is water
soluble. He denied the suggestion that he in collusion with the supplier of the sample
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commodity have not impleaded the supplier as an accused in this case.
12. PW3 the then SDM/LHA Sh. Indu Shekhar Mishra and Food Inspector
Baljit Singh deposed on the same lines as deposed by PW1 and PW2 in their
examination in chief.
13. This so far is the prosecution evidence in the matter.
14. 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.
15. 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.
16. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector A.K. Dhir coupled with the report of the Director,
CFL dated 17.02.2003 that accused Sunder Lal was indeed found selling Dal Arhar
which was adulterated on account of it containing synthetic colour viz. tartrazine.
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17. The star / the material witness of the prosecution i.e. Food Inspector A.K.
Dhir categorically proved that on 27.12.2001 he along with Food Inspector Baljit Singh
and SDM / LHA Indu Shekhar Mishra visited the shop of accused Sunder Lal who
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) he collected / purchased the
sample of Dal Arhar. He proved the sample proceedings vide Ex. PW 2/A to Ex. PW
2/C. He further proved the deposit of the sample with the Public Analyst and deposit
of the counterparts of the sample with the Local Health Authority vide Ex. PW 2/E and
D. He further proved that the Dal Arhar on analysis by the public analyst vide his
report Ex. PW2/F was found adulterated as it was containing synthetic colour
Tartrazine. The Sanction / Consent for prosecution was proved by PW1 FI Arun
Kumar as Ex. PW 1/A and the complaint was proved as Ex. PW 1/B.
18. The deposition of the Food Inspectors was duly corroborated by the
remaining prosecution witnesses i.e. PW3 the then SDM/LHA Indu Shekhar Mishra
and PW4 Baljit Singh.
19. Furthermore the fact that the sample was collected/lifted by the Food
Inspector on 27.12.2001 as well as that the accused was the vendor was not disputed
during the trial and was also admitted by the accused during his examination under
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Section 313 Cr. P.C as recorded before the Ld. Predecessor of this Court on
26.03.2012. From the answers given by the accused to question no. 1 2, 4 etc. 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 (1) FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R.
(Criminal) 842, Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC)
768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan
V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam
2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC
258, State of H.P. V. Wazir Chand AIR 1978 SC 315 no dispute remains that the
sample of Dal Arhar was indeed collected by the Food Inspector for analysis from
vendor/accused Sunder Lal.
20. 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
21. At the outset it was argued that no public witness was joined by the Food
Inspector (FI) during the alleged sample proceedings which is in violation of section 10
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(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. However I
do not agree with the contentions raised by the Ld. Defence counsel. The Hon'ble
Apex Court in Shriram Labhaya Vs. MCD
, decided on 26.02.1974
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. Similarly in Babu Lal Vs.
State, AIR 1971, SC 1277 It has been held that there is no rule of law that a conviction
can not be based on the sole testimony of Food Inspector. Reliance may also be
placed upon 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.
State
22. 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. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
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to take action as per law. He discharges public duty. 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.".
23. 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.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".
24. The two prosecution witnesses apart from the Food Inspector i.e.
SDM/LHA and FI Baljit Singh duly corroborated the testimony of the Food Inspector on
material particulars. It is writ large from the deposition of PW2, PW3 and PW4 that FI
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A.K. Dhir 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. I
find no reasons why the Food Inspector or the SDM would falsely implicate the
accused or depose falsely against him. 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 unambiguously proved.
Rule 14
25. It was 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
container/ 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
when the Dal was taken out from the gunny bag for sampling as well as on the
polythene bag in which the Dal was put for weighing. 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 Sri Ram Swaroop Vs. State 1978 (1) FAC 76, State of Maharashtra Vs. Bhaskar
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Rajeshwari, Koyakutty Vs. FI 2001 (1) RCR 340, Jagdish Chand Vs. State 1980 (II)
FAC 323 and M. Mohammad vs. State 1978 (1) FAC 114.
26. However I differ with the contentions as raised by the Ld. defence
counsel.
27. 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 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 make the same. Furthermore he
should sample the article in hygienic conditions. Reliance may be placed upon
Varghese Vs. Food Inspector, 1989(2) FAC 236.
28. I have perused the deposition of the Food Inspector i.e. A.K. Dhir who
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was examined as PW2. The Food Inspector deposed as under:
"...........I purchased 750 gms of Dal Arhar taken from an open gunny bag
having no label declaration after proper mixing with the help of the dry and clean
Jhaba by rotating it in all possible direction thoroughly several times......... Then and
thereafter I divided the sample quantity into three equal parts and put them in three
clean and dry glass bottles......"
29. During his cross examination he stated as under:
"JHABA was already clean and dry so he did not make the same clean and dry.
Nobody made the JHABA clean and dry as it was already clean and dry.........The
polythene bag in which 750 gms of dal was put was not made clean and dry as it was
already clean and dry. It is wrong to suggest that JHABA and the polythene bag were
not clean and dry. It is also wrong to suggest that JHABA and polythene bag was
already contaminated with some colouring matter.
30. Similarly PW3 the then SDM Indu Shekhar Mishra deposed as under:
" Before taking sample the arher dal was mixed by the FI Shri A.K. Dheer
with the help of clean and dry JHABA in that gunny bag by rotating it in all possible
directions. The 750 gms of Arhar Dal was weighed in a clean and dry polythene bag
and the so purchased sample was divided into 3 equal parts by FI by putting the same
in 3 clean and dry glass bottles......."
31. During his cross examination he stated as under:
"The jhaba was made clean and dry by the accused with the help of a
cloth. Polythene bag was already clean so it was not made clean at the spot. It is
wrong to suggest that JHABA was not made clean and dry by the accused. FI did not
make the JHABA clean and dry at the spot."
32. PW3 Food Inspector Baljit Singh deposed as under:
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"Before taking sample the Dal Arhar was properly mixed in the said
gunny bag with the help of a clean and dry JHABA by rotating it in all possible
directions several times. The so purchased quantity of the sample commodity was
divided by the FI into three equal parts by putting it in three clean and dry glass
bottles......."
33. Hence the prosecution witnesses consistently deposed regarding the
jhaba as well as the sample bottles and the polythene bag being clean and dry. I have
no reasons to disbelieve them. 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 find no reasons why the Food Inspector would depose falsely or falsely
implicate the accused, there being no previous enmity against him. I have also gone
through Section 114 (e) of the Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
34. The above provisions and the legislation is based upon the maxim
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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)".
35. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.
36. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,
1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,
Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.]
37. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
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suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
38. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
39. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".
40. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
Discrepancies
41. It was argued by Ld. Defence counsel that there are major discrepancies
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in the deposition of the FI i.e. PW2 and PW3 i.e. SDM/LHA qua the sample
proceedings. It was argued that FI claimed that Jhaba was not made clean and dry at
the spot as the same was already clean and dry. However the SDM claimed that the
Jhaba was made clean and dry at the spot by the FI with the help of a cloth. The Ld.
Defence counsel argued that this discrepancy itself proves that the 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.
42. No doubt the Ld. Defence counsel pointed out the above discrepancy in
the deposition of the Food Inspector and SDM regarding the sample proceedings.
However the discrepancy as pointed out by Ld. Defence counsel is too trivial in nature
to be given any weightage. The discrepancy as above was natural and bound to
occur on account of passage of time and lapse of memory. Human memories are apt
to blur with passage of time. The sample was lifted in the year 2001 and the cross
examination of the witnesses was recorded in the year 2010 i.e. after a gap of around
9 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.
43. By and large a witness cannot be expected to possess a photographic
memory and to recall the details of an incident. It is not as if a video tape is replayed
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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 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 .
44. 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
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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 be even be a deliberate at
tempt to offer embellishment and sometime in their overanxiety they may give slightly
exaggerated account. Court can sift the chaff from corn and find out truth from the tes
timony 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.
45. Moreover, officials like Food Inspector, the SDM and FA are involved in
collecting samples/witnessing sample proceedings almost daily and sometimes more
than one sample is collected in a day. During their stint as Food Inspector and
SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the
facts being mixed up due to passage of time. Same has to be given due allowance. In
case at hand the discrepancy pointed out is too trivial/ insignificant. Nonetheless the
fact which emerges is that the Jhaba was clean and dry prior to its use for sampling.
Homogenization / Mixing of Sample.
46. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there is variations in the report of Public
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Analyst and Director, CFL. It was further argued that there was variations in the report
of the Public Analyst for example the Public Analyst found the 'moisture' as 9.72 % ,
on the other hand, the Director found the same to be 9.15% by weight. Similarly
damaged grains were found by the PA at 0.08% by weight against 0.38% found by the
Director, CFL. It was argued that this variation being more than 0.3% which is the
permissible limit proves that the sample were not representative. Reliance was placed
upon Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Ratan Malhotra
2012 (2) FAC 2012.
47. However, I find no merits in the contention of the Ld. defence counsel.
Firstly the Food Inspector and the other complainant witnesses categorically stated
that the sample was taken after mixing the Dal Arhar properly. I have no reasons to
disbelieve the Food Inspector or the other complainant witnesses in this regard.
Moreover, there was no requirement of mixing or making the sample i.e. the Dal
homogenized as such in view of the law laid down in Dhian Chand Vs. State of
Haryana, 1999 (1) FAC 272. It was laid down in the above said case as under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
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
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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. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,
the Hon. Apex Court observed as under:
"If the food sold to the food inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock in possession of the person".
49. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982
(2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
CC No. 132/02
DA Vs. Sunder Lal Page 24 of 65
(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
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 CC No. 132/02 DA Vs. Sunder Lal Page 25 of 65 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 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 CC No. 132/02 DA Vs. Sunder Lal Page 26 of 65 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. In the case at hand not only from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the Dal was properly mixed at the time of sampling but in view of the above discussion, I am of the opinion that it being the case of Dal Arhar it was not required to homogenize the Dal Arhar. 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 Arhar homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the CC No. 132/02 DA Vs. Sunder Lal Page 27 of 65 food articles at the time when the sample is lifted by the FI. Variations.
55. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation of more than 0.3% in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.
56. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."CC No. 132/02 DA Vs. Sunder Lal Page 28 of 65
57. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".
58. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
CC No. 132/02 DA Vs. Sunder Lal Page 29 of 65
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory.".
59. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.
CC No. 132/02 DA Vs. Sunder Lal Page 30 of 65
60. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
61. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:
"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".CC No. 132/02 DA Vs. Sunder Lal Page 31 of 65
62. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".
63. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
64. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:
"in the instant case whereas the public analyst found the presence of milk fat to the CC No. 132/02 DA Vs. Sunder Lal Page 32 of 65 extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only.".
65. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
It was further held in para 11 to 14 as under:
"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".
66. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance.CC No. 132/02 DA Vs. Sunder Lal Page 33 of 65
It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."
67. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
68. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:
"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".
69. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst. CC No. 132/02 DA Vs. Sunder Lal Page 34 of 65
70. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".
71. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
72. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:
"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".
73. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal CC No. 132/02 DA Vs. Sunder Lal Page 35 of 65 Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
74. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
CC No. 132/02 DA Vs. Sunder Lal Page 36 of 65
"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 done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
75. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:
"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.
76. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded.CC No. 132/02 DA Vs. Sunder Lal Page 37 of 65
77. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
78. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
79. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed in paras 49 and 54 above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it CC No. 132/02 DA Vs. Sunder Lal Page 38 of 65 will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
80. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director CC No. 132/02 DA Vs. Sunder Lal Page 39 of 65 in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.
81. Furthermore, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: CC No. 132/02 DA Vs. Sunder Lal Page 40 of 65 "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
82. Nonetheless, if the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:
"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."
Delay
83. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in the testing / analysis of the sample by the Director, CFL because though the sample was collected on 27.12.2001 it was analyzed by the Director, CFL only 17.02.2003. It was argued that this delay occurred because of the lapses on the part of the prosecution as the complaint CC No. 132/02 DA Vs. Sunder Lal Page 41 of 65 was filed in the court on 13.11.2002 i.e. after almost an year of the lifting of the sample. It was argued that if the report of the Director, CFL is only to be seen / relied upon as per the mandate of Section 13(3) of the PFA Act then no reliance can be placed upon the same because after a lapse of 11 months the sample of Dal so collected by the Food Inspector would have been rendered unfit for analysis thereby causing grave prejudice to the accused.
84. However, I differ with the Ld. defence counsel. No doubt the sample was collected on 27.12.2001 and the same was analyzed / tested by Director, CFL in January 2003 and he gave his report on 17.02.2003, however, the fact remains that when the sample was sent for analysis the Director, CFL categorically opined that "the sample was in condition fit for analysis". Therefore when there is a categorical finding / opinion of the Director, CFL that the sample was fit for analysis, I have no reasons to presume or agree with the contention of the Ld. defence counsel that the sample when analyzed would have been rendered unfit for analysis on account of the delay. It being the case of Dal Arhar under so circumstances the sample would have deteriorated on account of the delay as discussed above so as to render it unfit for analysis.
85. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, CC No. 132/02 DA Vs. Sunder Lal Page 42 of 65 Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred u/s 13(2) and that depends on the facts of each case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.". Further reliance may be placed upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179 .
86. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
CC No. 132/02 DA Vs. Sunder Lal Page 43 of 65
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable........... .............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
"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 CC No. 132/02 DA Vs. Sunder Lal Page 44 of 65 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, 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.".CC No. 132/02 DA Vs. Sunder Lal Page 45 of 65
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."
It was further observed in para 76 as under:
CC No. 132/02 DA Vs. Sunder Lal Page 46 of 65
"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the CC No. 132/02 DA Vs. Sunder Lal Page 47 of 65 accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 : (AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".
87. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused.
On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous CC No. 132/02 DA Vs. Sunder Lal Page 48 of 65 crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. 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.".
88. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
89. 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 CC No. 132/02 DA Vs. Sunder Lal Page 49 of 65 would only be a fruitless venture.".
90. 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."
91. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".
92. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for CC No. 132/02 DA Vs. Sunder Lal Page 50 of 65 analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso.".
93. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have CC No. 132/02 DA Vs. Sunder Lal Page 51 of 65 interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
94. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced CC No. 132/02 DA Vs. Sunder Lal Page 52 of 65 and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".
95. In the case at hand it is apparent from the report of Director, CFL that the sample when sent for analysis / at the time of its examination was fit for analysis / examination. It being not unfit for examination / analysis no prejudice can be presumed to have been caused to the accused merely on account of delay. Thus, it is only in cases where prejudice is caused to the accused on account of delay in institution of the prosecution that is to say the sample is decomposed / deteriorated or is rendered unfit for analysis by the Director, CFL then the benefit has to be given to the accused (Reliance may be placed upon The Apex Court's Judgment in Girish Bhai Dahya Bhai Vs. C.C. Jani 2009 (2) FAC 195). But in other cases the accused is not entitled to any such benefit. To avail the benefit the accused is bound to prove on record that the sample was not a representative. If the accused person wants to show certain infirmities in the process of chemical examination performed by the Director, then he has to make an application to the trial Court to have the Director summoned as a witness. This procedure was not adopted by the accused / CC No. 132/02 DA Vs. Sunder Lal Page 53 of 65 vendor and he has not brought any material on the record to show why the report submitted by the Director should not be relied upon.
96. The very fact that the Director, CFL opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the Director, CFL. The Director's report that the sample was fit for analysis is a fact and there can not be any contrary presumption against the same. How can there be a presumption ( that a sample must have got decomposed, deteriorated or unfit for analysis on account of delay ) contrary to a fact in existence (Director's Certificate that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis has to prove that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the Director or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not on the contrary to the law as well as the principle of jurisprudence.
CC No. 132/02 DA Vs. Sunder Lal Page 54 of 65 Use of colour.
97. 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.
98. 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 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 CC No. 132/02 DA Vs. Sunder Lal Page 55 of 65 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) ".
99. 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. Hence no colour could be added to Dal Arhar.
Injurious to health.
100. 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 CC No. 132/02 DA Vs. Sunder Lal Page 56 of 65 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.".
101. 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.".
102. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.
103. 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.
CC No. 132/02 DA Vs. Sunder Lal Page 57 of 65
104. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 the Hon'ble Apex Court observed as under:
"Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28."
Paper Chromatography Test.
105. It was further argued that the usual method used for analysis is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. However I find no merit in the said contention of the Ld. defence counsel. Paper chromatography is a method prescribed in the DGHS Manual. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, CC No. 132/02 DA Vs. Sunder Lal Page 58 of 65 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 days 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
106. It was further argued that in the report of the PA as well as the Director 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 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 CC No. 132/02 DA Vs. Sunder Lal Page 59 of 65 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 or the Director 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.
Warranty.
107. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor had purchased the article from M/s Ganga Dhar Sunil Kumar vide Bill Mark X and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was CC No. 132/02 DA Vs. Sunder Lal Page 60 of 65 argued that the vendor / accused had purchased the article from the above manufacturer / dealer vide Mark X and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused.
108. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.
109. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may CC No. 132/02 DA Vs. Sunder Lal Page 61 of 65 be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.
110. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:
"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."
111. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 CC No. 132/02 DA Vs. Sunder Lal Page 62 of 65
112. In the case at hand, no doubt the accused placed on record bill Mark X purportedly issued by M/s Ganga Dhar Sunil Kumar, however the said bill does not come to the rescue of the accused for numerous reasons. Firstly, the accused did not examine the executor of the bill. The bill has not been proved as per the rules of evidence. In the absence of the deposition the executor of the bill or the signatory of the same the genuineness of the bill remains disputed. Nothing stopped the accused from moving the application for examining the proprietor/owner of Ganga Dhar Sunil Kumar to substantiate his claims and avail the benefit of warranty. In fact despite opportunity given the accused did not lead any defence evidence. Secondly, it is specifically mentioned on the said bill i.e. Mark X as "Note: (1) Maal hamari dukan se jaane ke baad hamari kisi prakar ki PFA Act ke antargat koi zimedari nahi hogi". This means that even assuming that the Dal was sold by M/s Ganga Dhar Sunil Kumar to the accused (though not proved on record) no warranty was extended/issued in favour of the accused by M/s Ganga Dhar Sunil Kumar. Hence he cannot claim the same. Thirdly, the very fact that no bill was supplied to FI at the time of lifting of sample, nor any bill was handed over to him or the SDM/LHA till the filing of complaint neither the bill was even produced in the court till the stage of evidence itself proves that the accused was making false claims. If indeed he had purchased the articles from M/s Ganga Dhar Sunil Kumar and sold it in the same condition as was purchased and he knew that he was entitled to the benefit of warranty I fail to understand why he waited so long to seek the benefit of warranty when he could have been absolved/discharge of his liability if he was indeed entitled to the benefit. Nothing CC No. 132/02 DA Vs. Sunder Lal Page 63 of 65 stopped him all this while to move the court to exercise the power u/s 20A. The very fact that the plea of warranty was taken after lapse of 8 years of filing of the complaint itself proves that he was making false claims. Fourthly, the sample was lifted from an open gunny bag bearing no label declaration. It was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. It is not disputed by the defence that the sample was lifted from an open bag. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent CC No. 132/02 DA Vs. Sunder Lal Page 64 of 65 it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is retailer and not the manufacturer/supplier who no longer has control over the articles so sold.
113. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and Rule 29 of PFA Rules 1955, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
114. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 6th March 2014 ACMMII/ New Delhi CC No. 132/02 DA Vs. Sunder Lal Page 65 of 65