Delhi District Court
Da vs . Harish Chand Mishra Page 1 Of 42 on 2 April, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 218/04
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
Harish Chand Mishra
S/o Sh. Shambu Nath
M/s New Luxmi Dairy,
C318, Gandhi Vihar,
Delhi54.
R/o C318, Gandhi Vihar,
Delhi54
........ VendorcumProprietor
Serial number of the case : 218/04
Date of the commission of the offence : 27.08.2004
Date of filing of the complaint : 26.10.2004
Name of the Complainant : Sh. Gian Chand, Food Inspector
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DA Vs. Harish Chand Mishra Page 1 of 42
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 02/04/14
Judgment announced on : 02/04/14
Brief facts of the case
1. In brief the case of the prosecution is that on 27.08.2004 at about 05.00.,
Food Inspector Gian Chand and Field Assistant J.P. Bhardwaj under the supervision
and directions of SDM / LHA Sh. S.L. Batra visited M/s New Luxmi Dairy, C318,
Gandhi Vihar, Delhi 54, where accused Harish Chand Mishra who was the vendor
cumproprietor was found present conducting the business of sale of various dairy
articles including cow milk 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, the Food Inspector collected / purchased the sample
of cow milk.
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 found not
conforming to the standard of cow milk as per PFA rules 1955 as per tests performed
as the Milk solids not fat were less than the prescribed minimum limit of 8.5% and
accordingly after obtaining the necessary Sanction / Consent under Section 20 of the
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Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) & (m)
of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 26.10.2004. 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 however the application was dismissed vide detailed order
dated 27.03.2006.
4. In pre charge evidence prosecution examined one witness i.e. the then
SDM/LHA S.L. Batra as PW1 and Sh. Gian Chand, Food Inspector as PW2 and
thereafter pre charge evidence was closed vide orders dated 06.08.2007.
5. Charge for violation of provision of Section 2 (ia) (a) & (m) of PFA Act
1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the
accused vide order dated 08.07.2008 to which accused pleaded not guilty and claimed
trial.
6. In support of its case the complainant/prosecution examined three
witnesses i.e. the then SDM/LHA S.L. Batra as PW1, Gian Chand, the Food Inspector
as PW2, and Field Assistant J.P. Bhardwaj as PW3 and PE was closed vide order
dated 16.07.2010.
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7. Statement of the accused U/s 313 Cr. P.C. was recorded on 24.02.2011
wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 S.L. Batra, the then SDM/LHA deposed that on 27.08.2004 while
he was posted as SDM/LHA Civil Line, Delhi under his supervision/direction FI Gian
Chand and FA J.P. Bhardwaj went to M/s New Luxmi Dairy situated at C318, Gandhi
Vihar, Delhi54 at about 05.00 p.m. where accused Harish Chand Mishra was found
conducting the business of cow milk along with other food articles. He deposed that
they disclosed their intention and identity for purchasing the sample of cow milk for
analysis to which accused agreed. He deposed that FI tried his level best to join some
public witnesses by requesting some customers, passersby and neighborhood
persons but as none agreed then on his request FA J.P. Bhardwaj agreed and joined
as a witness. He deposed that sample consisted of 1500 ml of cow milk taken from an
open drum bearing declaration of cow milk. He deposed that the sample was taken
after proper mixing with the help of a clean and dry plunger by rotating it all possible
directions time and again several times. He deposed that Food Inspector divided the
sample then and there into three equal parts by putting it in three clean and dry glass
bottles. He deposed that 40 drops of formalin were added to each of the sample bottle
and was properly shaken for its uniform distribution. He deposed that each bottle
containing the sample was then separately, packed, fastened and sealed according to
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PFA Act and Rules. He deposed that vendor signatures were obtained on the LHA
slips bearing his signature and stamp and on the wrappers of the bottles and the
vendor signed in such a manner that his signatures appeared partly on the LHA slips
and partly on the wrappers. He deposed that Notice was prepared at the spot and a
copy of which was given to the vendor and the same is Ex. PW1/B. He deposed that
the price of the sample Rs. 22/ was paid by the Inspector to the vendor vide vendor's
receipt Ex. PW1/A. He deposed that panchnama was also prepared at the spot. He
deposed that all the documents prepared on the spot were read over and explained to
the vendor and who after understanding the same signed at point A and witness Sh.
J.P. Bhardwaj signed at point B and FI signed at point C respectively. He deposed
that accused made his statement Ex. PW1/D. He deposed that the two counterparts of
the sample along with two copies of memo of Form VII in a sealed packet were
deposited in intact condition with the LHA on 30.08.2004 vide receipt Ex. PW1/E with
the intimation that one counterpart of the sample has already been deposited in intact
condition with the PA. He deposed that all the copies of memo of Form VII bore the
same seal impression with which the sample in question was sealed. PA receipt is Ex.
PW1/F. He deposed that PA report Ex. PW1/G was received according to which the
sample does not conform to the standards as the milk solids not fat is less than the
prescribed minimum limit of 8.5% i.e. 6.26% as mentioned therein at portion X. He
deposed that then on completion of the investigation by the FI, the complete case file
along with all statutory documents were sent through him to the Director PFA Sh. V.K.
Singh, who after going through the case file applied his mind and gave his consent for
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prosecution Ex. PW1/H. He deposed that complaint Ex. PW1/J was filed in the court
by FI Ram Gian Chand. He deposed that intimation letter Ex. PW1/K along with PA
report was sent to accused by registered post by him which was not received back
undelivered. The postal registered receipt copy is Ex. PW1/L
9. During his cross examination he stated that they went to the spot in a
routine manner and there was no complaint against the accused. He stated that clean
and dry sample bottles were provided by the department. He stated that FI tried to
associate some public witnesses but none agreed. He admitted that the spot is
situated in busy area. He stated that FI deposited one counterpart with the PA and
two deposited with him. He stated that intimation letter along with PA report was sent
through registered post and office copy was kept in official record.
10. PW 2 Food Inspector Sh. Gian Chand and PW3 J.P. Bhardwaj, Field
Assistant have deposed on the same lines as deposed by PW1 in his examination in
chief. In addition PW2 FI Gian Chand deposed that he sent a letter to STO Ward no.
72 vide Ex. PW2/A under which the reply at portion A was received according to which
no such firm was registered.
11. This so far is the prosecution evidence in the matter.
12. I have heard the arguments advanced at bar by the Ld. defence counsel
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as also the Ld. SPP for complainant. I have also carefully gone through the evidence
recorded in the matter and perused the documents placed on record by the
prosecution in this case.
13. After hearing the rival contentions raised at bar as well as on careful
scrutiny of the material on record, I am of the considered opinion that the prosecution
has successfully brought home the guilt against the accused.
14. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Gian Chand coupled with the report of the PA
dated 15.09.2004 that accused Harish Chand Mishra was indeed found selling cow
milk which was adulterated on account of the milk solids not fat being less than the
minimum prescribed standard of 8.5% i.e. 6.26%.
15. The star / the material witness of the prosecution i.e. Food Inspector
Gian Chand categorically proved that on 27.08.2004 he along with Field Assistant J.P.
Bhardwaj and SDM / LHA Sh. S.L. Batra visited at M/s New Luxmi Dairy, where
accused Harish Chand Mishra who was the vendorcumproprietor was found present
conducting the business of dairy including cow milk, 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 cow milk. He proved the sample
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proceedings vide Ex. PW 1/A to Ex. PW 1/C. He further proved the deposit of the
sample with the Public Analyst vide Ex. PW1/F and deposit of the counterparts of the
sample with the Local Health Authority vide Ex. PW 1/E. He further proved that the
cow milk on analysis by PA vide his report Ex. PW1/G was found adulterated as same
was found not conforming to standards. The Sanction / Consent for prosecution was
proved as Ex. PW 1/H and the complaint was proved as Ex. PW 1/J.
16. The deposition of the Food Inspector was duly corroborated by the
remaining prosecution witnesses i.e. Sh. S.L. Batra, the then SDM/LHA (PW1) and Sh.
J.P. Bhardwaj Field Assistant (PW3).
17. Furthermore the fact that the sample was collected by the Food Inspector
on 27.08.2004 and that the accused was the vendorcum proprietor of M/s New Luxmi
Dairy was not disputed during the trial and was also admitted by the accused during
his examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of
this Court on 24.02.2011. From the answers given by the accused to the question no.
1, 2, 6 and 7 during his examination u/s 313 Cr.P.C. 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.
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DA Vs. Harish Chand Mishra Page 8 of 42
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 coupled with Ex. PW1/A to Ex. PW1/C as well as Ex. PW1/D
which is in the handwriting of the accused no dispute remains that the sample of cow
milk was indeed collected by the Food Inspector for analysis from M/s New Luxmi
Dairy of which accused Harish Chand Mishra was the vendorcum proprietor.
18. The report of the PA which is on record proves that the sample when
analyzed did not conform to the standards of cow milk as the Milk solids not fat were
6.26% against the minimum prescribed limit of 8.5%. Hence the milk was adulterated
as not conforming to the standards.
19. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various loopholes /
contradictions.
Public witness
20. It was argued that no public witness was joined by the FI during the
alleged sample proceedings which is in violation of section 10 (7) and therefore the
accused is entitled to be acquitted on this ground alone. It was argued that the FI
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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
decided on 26.02.1974 has
Shriram Labhaya Vs. MCD , 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
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. 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
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
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on it to prove the prosecution case.".
22. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as
under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................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.".
23. It is writ large from the deposition of PW1, PW2 and PW3 that FI Gian
Chand 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
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administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands unambiguously proved.
24. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14 and Homogenization / Mixing of Sample.
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 not only failed to
clean the sample bottles and the plunger used for taking the sample but even the milk
was not properly mixed/ homogenized and accordingly representative sample was not
taken by the Food Inspector. 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 Sardarmal Jain
Vs. Nagar Nigam & Anr 1996 (2) 203, Vasantry Jai Kham Khati Vs. State of
Gujarat 2004 FAJ 148, State of Gujarat Vs. Kamlesh Bhai Ram Bhai 2005 (1)
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FAC 107 and State Vs. Suresh Kumar 2010 (2) FAC 204
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/bottle is clean but it is also dried. Furthermore the container should be
such so as to prevent any leakage, evaporation and in case of dry substance entrance
of moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to 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 PW2. The Food
Inspector deposed as under:
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" The sample was taken after proper mixing with the help of a clean and
dry plunger by rotating in all possible directions time and again several times. I
divided the sample then and there into three equal parts by putting it in three clean
and dry glass bottles".
29. During his cross examination he stated as under:
"...Before purchasing the milk, the same was homogenized with the help
of dry and clean plunger. It is wrong to suggest that the milk was not homogenized. It
is wrong to suggest that bottles were not clean and dry"
30. PW1 the then SDM/LHA S.L. Batra deposed as under:
"The sample was taken after proper mixing with the help of a clean and
dry plunger by rotating in all possible directions time and again several times. The
Food Inspector divided the sample then and there into three equal parts by putting it in
three clean and dry glass bottles"
31. During his cross examination he stated as under:
"Clean and dry sample bottles were provided by the department"
32. PW3 Field Assistant J.P. Bhardwaj during his examination in chief
deposed as under:
"The sample was taken after the milk homogenized with the help of a clean and
dry plunger by rotating it in all possible directions several times. Then FI Gian Chand
divided the sample then and there into three equal parts by putting them in three clean
and dry glass bottles.........."
33. Hence all material prosecution witnesses consistently deposed regarding
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the proper mixing of the cow milk with the help of a plunger. They categorically stated
that the milk was rotated several times in all possible directions before the sample was
taken by the Food Inspector. Furthermore, the plunger as well as the sample bottles
as categorically deposed by all the prosecution witnesses were 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 have also gone through Section 114 (e) of the Indian Evidence Act.
34. 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"
35. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
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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)".
36. 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 partly alleging
it may prove it. It was observed that, "The Local (Health) Authority is a public official.
The act of the Local (Health) Authority in despatching a copy of its report of analysis of
a food article with necessary intimation or information is an official act. When the act
has been shown to have been performed, it is open to the court in its discretion to
draw the presumption that the act has been performed regularly. If there is acceptable
evidence to show that the Local (Health Authority) has forwarded the document, by
virtue of illustration (e) to section 114, the court may presume that it was forwarded
regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,
1954 and Rule 9A of the Rules.".
37. 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 sample proceedings were duly conducted [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
.].
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38. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
39. 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.".
40. 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."
41. 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.
42. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,
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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".
43. 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
(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
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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.
44. 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 it before purchasing it. Equally so, at
any rate, in the case of sale to the Food Inspector the vendor cannot come forward
with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee
(Central Committee for Food Standard) has not prescribed any particular manner of
taking a sample of ice cream, I do not think it is for the court to lay down any such
manner particularly a manner which is contrary to the ordinary course of business."
45. 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:
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"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."
46. In the case at hand from the deposition of the Food Inspector and the
other prosecution witnesses it stands duly established that the cow milk was properly
mixed at the time of sampling. Furthermore it has to be remembered that 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 milk the vendor does not give the milk after mixing the
same/rotating it several times in all directions with the help of a measure or plunger in
the container in which he has stored the same in his shop. He merely takes out the
milk with the help of a measure or any other instrument from top most layer/ by putting
the measure in container containing milk and sells it to the customer. Therefore when
this is usual mode of selling the milk 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/milk 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 food articles at the time when the sample is lifted by the FI.
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PA's Report/intimation letter not received hence right u/s 13 (2) could not be
exercised thus prejudice caused to the accused.
47. It was also one of the arguments of Ld. Defence counsel that PA's report
along with intimation as per the provisions of section 13 (2) of the Act was not
supplied/delivered to the accused and accordingly the accused could not exercise his
right as contemplated u/s 13 (2) of sending the second counterpart of the sample kept
with the LHA to be analyzed by the Director, CFL. It was argued that this caused
serious prejudice to the accused as his right to get the counterpart of the sample
analyzed by the Director was defeated. It was also argued that though the intimation
letter was never received by the accused still the accused had moved the application
under section 13(2) which was dismissed by Ld. Predecessor of this court vide orders
dated 27.03.2006 which itself violated the right of the accused. Reliance was placed
upon the law laid down in Brandavan Vs. State of MP 2005 (2) FAC 273, Shiv Dutt
Singh Vs. Ram Dass AIR 1980 Allahabad 280, State of Orissa Vs. G. Sahu 2003
Cri. LJ 3077 and Jagat Ram Vs. Bantu Mal, AIR 1976, Delhi 113.
48. However the said plea of Ld. Defence counsel is meritless and contrary to
the records. Firstly, as per records the prosecution was launched on 26.10.2004 and
the next date of hearing before the court was 23.02.2005. On 23.02.2005 the accused
remained unserved and fresh process were issued to him for the next date i.e.
18.07.2005. Even on 18.07.2005 the process remained unserved and the matter was
adjourned for 27.03.2006. On 27.03.2006 the accused appeared and moved an
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application u/s 13(2) for sending the counterpart of the sample to Director CFL.
However the Ld. Predecessor dismissed the application moved by the accused while
passing a detailed order. I have perused the said order as well as gone through the
provisions of section 13 of the Act. As per section 13(2) of the Act the accused has to
move an application within 10 days of the receipt of intimation letter along with report
of PA. Though it was contended/argued by the Ld. Defence counsel that no intimation
letter with the PA's report was ever received by the accused however the same is
contrary to the records and in fact a false/inconsistent plea. Not only did the accused
during his examination u/s 313 Cr.P.C. admitted as to have received the PA's report
along with intimation letter but from the the application u/s 13(2) as moved by the
accused on 18.03.2006 it stands proved that the report was received by him in time.
In the second paragraph of the application which bears the signature of the accused it
is written as " the
accused had received the report of the Public Analyst on
October 2004 from LHA of PFA Department". The application bears the signature
of the accused as well as his counsel. This application itself proves that accused was
making false claims of not having received the PA's report. In fact the application
makes it crystal clear that the accused had immediately received the PA's report with
the intimation letter within a day or two of the filing of the present complaint. Hence it
was the accused who despite having received the PA's report in the month of October
2004 itself did not move the application within 10 days as per the mandate of section
13(2) of the Act. This is the reason why the Ld. Predecessor of this court had
dismissed the application moved after lapse of more than 15 months. Secondly if the
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accused was agreed with the order passed by the Ld. Predecessor of this court he
could have assailed the same in the Hon. Sessions Court but for reasons best known
to him he did not do so. Hence he cannot now claim for the loss of right envisaged
under section 13(2) as he himself is responsible for the same. Thirdly, the Food
Inspector as well as the SDM/LHA had categorically stated that they had sent the PA's
report along with intimation letter to the accused vide Ex. PW1/K and L. I have
perused Ex. PW1/K and L and the entry appearing at Sl. No. 1368 and 1369. The
address appearing on the same is the same address on which the accused is residing.
It is not the defence plea that the accused was not residing at the said address or that
the address was incorrect. In fact when processes were issued for 23.02.2005 i.e. the
first day of hearing they were received back with the report that accused had gone to
Allahabad. The above documents leave no doubt that documents were sent and
delivered to the accused at his correct address through registered post. Moreover,
note even a single suggestion was given to the SDM / LHA that no intimation letter
with the PA's report was ever sent to the accused.
49. Section 114 of the Evidence Act and the presumption which Section 114
raises has been discussed above. Clause (f) of Section 114 reads as under:
"That the common course of business had been followed in particular cases"
50. It is now well settled that sending by post, means sending by post to the
addressees proper address. Where a notice has to be served through post, all that a
sender can do to comply with the provisions is to post the prepaid registered letter
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containing addressees correct address. Once he does this and the letter is delivered
to the post office, he has no control over it. In that event, under Section 27 of the
General Clauses Act, the letter shall be presumed to have been delivered to the
addressee. There is no obligation upon the sender to prove the service of notice upon
the addressee if he send the notice by registered post, properly addressed. Where a
letter is sent under certificate of posting a presumption arises under Section 114 of the
Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal
Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P.
Rama Reddy, 2003(3) Andh. LT 120 (AP)]
51. Once the evidence discloses that the letter was addressed at a proper
address by registered post then unless it is rebutted or the contrary is proved to have
been effected at the time at which the letter would be delivered in the ordinary course
of post it is presumed that there is a proper service. If the addressee either can not be
met or refused to take delivery there appears to be no reason why the letter should not
be considered as properly served upon the addressee ( State Vs. Bhag Chand
Sadhu Mal, 1999 (3) Guj. LR 2220.).
52. In the absence of anything indicating that such letters were not posted or
concocted the presumption under Section 114 (f) comes into play (Vandavasi
Kartikaya Vs. S. Kamalanna, A 1994 AP 102).
53. A bare denial with no reliable evidence is not sufficient to rebut the
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presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial
without reliable evidence, without further rebuttal, the presumption continues [Fazal
Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].
54. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the
prosecution did not prove any postal acknowledgment signed by the accused to prove
about the service of copy of the report of the Public Analyst which had been sent by
registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC
300 the court held as under:
"In the present case the petitioner in his examination under section 313 Cr. P.C has
merely denied to have received the copy of the report of the Public Anlayst. However,
no evidence has been adduced on behalf of the accused persons to rebut the
presumption available under the General Clauses Act as well as Section 114 of
the Evidence Act. As observed by the Division Bench of this Court, when it is proved
that registered letter has been posted after being duly stamped in the address of a
person, a presumption arises that such letter must have been served on the
addressee. The evidence adduced on behalf of the prosecution to the effect that the
report of the Public Analyst had been posted by registered post as per the postal
receipt has not been successfully challenged by the petitioner in any manner in cross
examination. The mere denial of the accused in his statement under Section 313,
Code of Criminal Procedure, cannot have the effect of rebutting the statutory
presumption available under the provisions of the General Clauses Act.".
55. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it
was held "admittedly there is presumption in law that a communication sent by post on
the correct address of the addressee is presumed to have been received by him if it is
not received back by the sender.".
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56. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while
relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass
Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of
Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can
have no grievance that he could not avail of his right under Section 13(2) of the Act.
In view of the aforesaid position of law in the case at hand, the accused/applicant
cannot complain that a prejudice is caused to him due to late filing of the complaint
and thereby he has been deprived of his right given under Section 13(2) of the Act.".
57. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held
as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon
the sender or the postman to arrange that notice to be served upon the addressee. If
a letter is posted prepaid and registered with a acknowledgment due or otherwise to
the correct address of the addressee and delivered to the post office, there is
presumption under Section 27 of the General Clauses Act that the letter is delivered to
the addressee.".
58. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand
AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the
respondent that in order to comply with the requirement of Section 13(2) of the Act
actual delivery of the notice or deliberate refusal to accept the same by the addressee
is necessary, it will lead us to anomalous and very dangerous situations. A cunning
and unscrupulous accused can effectively thwart the delivery of the notice to him by
staying away from his house for some time knowing the arrival of the notice and get it
returned to the sender as unserved.".
59. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held
that prosecution is not required to prove that the applicant has acknowledged the copy
of the Public Analyst's Report.
60. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was
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observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal
Procedure, cannot have the effect of rebutting the statutory presumption available
under the provisions of the General Clauses Act."
61. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that
where extract of the relevant entries in the register maintained in the office also
indicated that the notice under section 13(2) of the Act alongwith the report of the
Public Analyst was sent to the applicant by registered post on the address available on
record and it is not the contention that the accused / addressee / vendor did not reside
at the address on which the notice was sent then "The mere fact, that A/D receipt was
not filed or received back, was not sufficient to rebut or dislodge the presumption of
service of notice sent by registered post in absence of any evidence to the contrary.".
Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed
upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex
Court has held "the notice dispatched by sender by post with correct address on it,
can be deemed to be served on sendee unless he proves that he is not really served.
This principle was propounded keeping in view the provisions of section 27 of the
General Clauses Act."
62. In the case at hand in view of categorical deposition of the Food
Inspector and SDM/LHA coupled with Ex. PW1/K and L as discussed above a
presumption tenable in the eyes of law can be drawn that the PA's report along with
intimation letter was duly delivered/received by the accused/the vendor. No doubt the
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SDM / LHA / FI had only placed the photocopy of the postal registration receipt,
however, as already discussed above the testimony of the SDM/LHA remained
unchallenged on this material aspect. Furthermore, the FI during his examination
categorically stated that if required / directed, he can produce the original postal
receipt. The defence however opted not to request the court to direct the FI to produce
the same, hence, it is now not open to agitate that only the copies of the postal receipt
were filed.
63. As far as the prejudice due to non exercise of the right u/s 13 (2) is
concerned the accused cannot complain about the same as he himself was
responsible for the deprivation of the right as discussed above in detail.
64. Reliance may be placed upon Chandrika Proshad Rai Vs. State of
Assam 1976 (1) FAC 27, Kishan Narain Vs. State of U.P. 1976 (1) FAC 131,
Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, Ajitprasad Ram
Kishan Singh Vs. State of Maharashtra, 1972 FAC 545, Sukhmal Gupta Vs.
The Corporation of Calcutta 1974 FAC 207, Hypercity Retail (India) Ltd. and Ors.
Vs. State of Punjab and Anr. 2013(1) FAC 392, MCD Vs. Ajit Pershad 1975 (2)
FAC 60 and Pitabasa Bisi Vs. State 1996 (1) FAC 145.
65. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as
under:
" It is also provided that this right has to be exercised by the accused person within a
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reasonable time. If he sleeps himself over this right and does not make a prayer that
the sample given to him should be sent to the Director, Central Food Laboratory, then
he cannot make any grievance ....".
66. Further reliance may be placed upon Kan Singh Purohit Vs. State of
Rajasthan 1978 (2) FAC 151,Municipal Council Jaipur Vs. Bhuramal 1978(2)
FAC 225. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble
Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the
sample to the Central Food Laboratory for analysis. He did not avail the same.
Therefore, it was no longer open to him to contend that he had no opportunity to send
the sample in his custody to the Director, Central Food Laboratory under Section 13
(2), since he did not make any application to the Court for sending it."
67. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food
Adulterations cases 195, it was held that if the report of the Public Analyst is served
upon the accused after two years and the accused does not make any application for
sending the sample to Director, CFL no prejudice is caused to him.
Delay
68. It was also one of the arguments of the Ld. defence counsel that the
prosecution was launched after more than 2 months of the lifting of the sample and
hence even if the accused had moved the application on 23.02.2005 or before it then
also on account of the delay the sample would not have remained fit for analysis, and
hence, moving the application would have been a futile exercise.
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69. However, I differ with the Ld. defence counsel. No doubt the sample was
collected on 27.08.2004 and the prosecution was launched after almost 2 months
however this delay by itself cannot lead to any presumption that the sample would
have decomposed/ deteriorated by the time the complaint was filed in the court i.e on
26.10.2004 and thus automatically the accused right would have been prejudiced.
Firstly, the Food Inspector and the other prosecution witnesses have categorically
stated that at the time of sampling, the necessary preservative i.e. 40 drops of
Formalin were added in each of the sample bottles. No evidence has been led by the
defence that even after adding of formalin the sample would not have remained fit for
analysis at the time when the prosecution was launched or later on. Secondly, 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.
70. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,
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
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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
.
71. The "delay in launching the prosecution 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.
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.CC No. 218/04 DA Vs. Harish Chand Mishra Page 31 of 42
Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, 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 CC No. 218/04 DA Vs. Harish Chand Mishra Page 32 of 42 of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It 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:
"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 CC No. 218/04 DA Vs. Harish Chand Mishra Page 33 of 42 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 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."
72. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, CC No. 218/04 DA Vs. Harish Chand Mishra Page 34 of 42 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 accusedso 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 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.".
73. 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."CC No. 218/04 DA Vs. Harish Chand Mishra Page 35 of 42
74. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
75. 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."
76. 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.".
77. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the CC No. 218/04 DA Vs. Harish Chand Mishra Page 36 of 42 Hon'ble of Apex Court while dealing with the case of adulteration in milk, observed as under:
" 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."
78. 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.
79. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of CC No. 218/04 DA Vs. Harish Chand Mishra Page 37 of 42 Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.
80. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "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 .............".
81. Hence I am of the opinion that solely on account of delay of 2 months in launching the prosecution since the lifting of the sample no prejudice has been caused to the accused.
Marginal Deficiency
82. Lastly it was argued by Ld. Defence counsel that even if the report of the PA is admitted to be correct still it is apparent from the report of PA that the sample only marginally did not conform to the standards of Milk solids not fat. It was argued that the prescribed standard was not less than 8.5% and the PA found the same to be 6.26% i.e. only 1.24% less than the prescribed limit. It was argued that this marginal variation/ deficiency from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. Reliance was also placed upon PP Karuran Vs. Food Inspector 1985 (2) FAC 129. However I do not agree with the Ld. Defence counsel.
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83. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
84. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."
85. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed CC No. 218/04 DA Vs. Harish Chand Mishra Page 39 of 42 milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
86. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".
87. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
88. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
89. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an CC No. 218/04 DA Vs. Harish Chand Mishra Page 40 of 42 inference that the milk was not stirred properly before collecting the sample.".
90. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."
91. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
92. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard/marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
93. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
94. Furthermore, I am also of the opinion that in view of the answer given by the accused to question no.9 during his examination under Section 313 of Cr.P.C., he cannot escape from the liability as envisaged under the Act. When the PA's Report CC No. 218/04 DA Vs. Harish Chand Mishra Page 41 of 42 was put to the accused, the accused answered as "on the day of sampling it was raining and the milk was lying in an open drum and the said drum was lying outside." Section 313 (4) Cr.P.C. and the case laws have already been discussed above. The above statement is admissible against the accused. This statement when read along with the deposition of the Food Inspector and other prosecution witnesses coupled with the answer no.2 and answer no.3 given by the accused regarding the lifting of the sample which read as "I was very much present there at the spot. Again said, they had asked me to lift the sample and I had agreed for the same In the case at hand the "milk solids not fat" and "it was correct that milk had been purchased" leaves no escape route for the accused. The sale to the FI stands proved. The liability under the Act is strict. Once the milk was sold in the condition as stated by the accused, he cannot escape his liability.
Accordingly as milk solids not fat were found by the PA in the sample of cow milk so analysed at 6.26% as against the prescribed standards of minimum 8.5% it amounts to adulteration within the meaning of 2(ia) (a) & (m) of the Act.
95. Accordingly in view of my above discussion, the accused stands convicted under Section 2 (ia) (a) & (m) r/w section 7 and 16 (1) (a) of PFA Act 1954.
96. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao)
on 2nd April, 2014 ACMMII/ New Delhi
CC No. 218/04
DA Vs. Harish Chand Mishra Page 42 of 42