Da vs . Jagdish Tyagi Page 1 Of 47 on 14 March, 2014

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Delhi District Court

Da vs . Jagdish Tyagi Page 1 Of 47 on 14 March, 2014

IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI

C.C. No. 193/02

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. Jagdish Tyagi
S/o Sh. Durga Prasad Tyagi
M/s Tyagi Store,
Shop No. 2907, Main Bazar,
Subzi Mandi,
Delhi
R/o 2906, Main Bazar,
Subzi Mandi, Delhi
........ VendorcumProprietor

Serial number of the case : 193/02
Date of the commission of the offence : 20.12.2001

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DA Vs. Jagdish Tyagi Page 1 of 47
Date of filing of the complaint : 21.11.2002
Name of the Complainant : Sh. Virender Singh, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) & (j) 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 : 14/03/14
Judgment announced on : 14/03/14

Brief facts of the case

1. In brief the case of the prosecution is that on 20.12.2001 at about 04.00

p.m Food Inspector Sanjeev Kumar Gupta and FA Mittar Pal under the supervision

and directions of SDM / LHA Sh. G.R. Meena visited M/s Tyagi Store, Shop no. 2907,

Main Bazar, Subzi Mandi, Delhi, where accused Jagdish Tyagi 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

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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) (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.

3. After the complaint was filed, the accused was summoned vide orders

dated 22.11.2002. 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 24.01.2003. The Director, CFL after analysing the sample opined vide its

Certificate dated 26.02.2003 that "sample does not conform to the standards of split

Pulse (Dal) Arhar as per PFA Rules 1955". The Director so opined as he detected

synthetic colour tartrazine whereas the sample ought to have been free from any

colour/colouring material.

4. In pre charge evidence, the prosecution examined two witnesses i.e. the

the FI Sanjiv Kumar Gupta PW1 and SDM Sh. G.R. Meena as PW2 and pre charge

evidence was closed vide order dated 05.06.2007.

5. Charge for violation of provision of Section 2 (ia) (a) & (j) of PFA Act

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1954, punishable U/s 16 (1A) r/w Section 7 of the Act was framed against the accused

vide order dated 28.07.2008 to which accused pleaded not guilty and claimed trial.

6. Thereafter, in post charge evidence the prosecution examined four

witnesses including FI Sanjeev Kumar Gupta as PW1, the then SDM Sh. G.R. Meena

as PW2, FI Virender as PW3 and FA Mittrapal as PW4 and PE was closed vide order

dated 01.09.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 18.12.2010

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 Food Inspector Sanjeev Kumar Gupta deposed that on 20.12.2001

he along with FA Mittar Pal under the supervision and direction of Shri G.R. Meena,

SDM/LHA went to M/s Tyagi Store, Shop no. 2907, Main Bazar, Subzi Mandi, Delhi7

where accused Jagdish Tyagi was found conducting the business of the food articles

in the said shop including Dal Arhar. He deposed that he and LHA disclosed their

identity and intention for taking the sample to which accused agreed. He deposed that

then 750 gms of Dal Arhar (ready for sale) was purchased from an open gunny bag

bearing no label declaration after proper mixing of the Dal arhar with the clean and dry

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jhaba by rotating in all possible directions. He deposed that the sample was taken at

about 04.00 p.m. He deposed that then he divided the sample into three equal parts

then and there by putting them into three clean and dry bottles and each sample bottle

was separately packed, fastened, marked and sealed according to PFA Act and Rules.

He deposed that then the vendor signatures were obtained on LHA slips bearing his

number and signatures and the wrapper of the sample bottles in such a manner that a

portion of his signature were on the wrapper as well as on the LHA slip. He deposed

that Rs. 21/ was given to the accused towards the sample price vide vendor's receipt

Ex. PW1/A. He deposed that then Notice in form VI Ex. PW1/B was given to the

accused with his endorsement at portion A to A bearing his signature at point A. He

deposed that panchnama Ex. PW1/C was prepared. He deposed that accused gave

photocopy of the MCD license which is Mark A. He deposed that vendor at the time of

sampling forcibly wrote that this Dal Arhar is used after washing. He deposed that all

these documents Ex. PW1/A to Ex. PW1/C were read over and explained to the

accused in Hindi and after he understood the same accused signed at point A, he

signed at point C and the FA signed at point B. He deposed that before taking sample

he tried his level best to procure some public witnesses i.e. from customers, passersby

and nearby shopkeepers to join the sample proceedings but as none agreed for the

same on his request FA agreed and joined as witness. He deposed that one

counterpart of the sample was deposited with the PA on 21.12.2001 in intact condition

along with copy of memo Form VII and another copy of the memo VII under sealed

cover separately deposited vide receipt Ex. PW1/D. He deposed that the remaining

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two counterparts of the sample with the two copies of memo Form VII in a sealed

packed deposited in intact condition with the LHA on 21.12.2001 vide receipt Ex.

PW1/E with the intimation that one counterpart of the sample in intact condition has

already been deposited with the PA for analysis. All the forms of memo VII prepared

were having the specimen impression of his seal which he had sealed the sample

bottles. He deposed that on receipt of PA report Ex. PW1/F the same was found

adulterated because it was coloured with synthetic colouring matter i.e. Tartrazine.

He deposed that he further investigated the matter and sent a letter Ex. PW1/G to the

STO Ward no. 40 who furnished the reply Ex. PW1/X. He deposed that accused was

found to be the vendor cum proprietor of the said M/s Tyagi Store. He deposed that on

his transfer the file was handed over to Virender Singh, FI for obtaining sanction for

filing the complaint etc and the consent Ex. PW1/J bearing the signature of Director

K.S. Wahi at point A was given for prosecution of the accused after he went through

the case file by applying his mind. He deposed that intimation letter Ex. PW1/K along

with PA report was sent to the accused by registered post vide registration receipt Ex.

PW1/L which was not received undelivered.

9. During his cross examination he stated that no written notice was given

to the vendor to disclose the source of purchase of the sample commodity. He

voluntarily stated that he was verbally asked but he did not disclose the source of

purchase of the sample commodity. He admitted that accused is a retailer and not

manufacturer of Dal Arhar. He denied the suggestion that usually a retailer disclose

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the source of purchase of articles sold by him. He stated that he does not know

whether the vendor was having any other bag of Dal Arhar at the time of sampling. He

admitted that accused made endorsement on notice Ex. PW1/B that sample

commodity i.e. Dal Arhar is properly washed before cooking. He stated that he cannot

say whether the tartrazine is a water soluble or not. He admitted that it is a permitted

dye in some food articles. He denied the suggestion that no sincere efforts were made

to associate the public witnesses. He denied the suggestion that his statement to this

effect is false. He denied the suggestion that after purchasing the Dal Arhar

proceeding were completed in the official vehicle as there was no space in the shop.

10. PW2 G.R. Meena the then SDM/LHA, PW3 Food Inspector Virender

Singh and PW4 FA Mittrapal deposed on the same lines as deposed by PW1 in his

examination in chief.

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

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

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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 Sanjeev Kumar Gupta coupled with the report of

the Director, CFL dated 26.02.2003 that accused Jagdish Tyagi was indeed found

selling Dal Arhar which was adulterated on account of it containing synthetic colour

viz. tartrazine.

15. The star / the material witness of the prosecution i.e. Food Inspector

Sanjeev Kumar Gupta categorically proved that on 20.12.2001 he along with FA

Mittrapal and SDM / LHA G.R. Meena visited the shop of accused Jagdish Tyagi 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 1/A to Ex. PW

1/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 1/D and

E. He further proved that the Dal Arhar on analysis by the public analyst vide his

report Ex. PW1/F was found adulterated as it was containing synthetic colour

Tartrazine. The Sanction / Consent for prosecution was proved as Ex. PW 1/J and FI

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Virender Singh proved the complaint as Ex. PW2/A.

16. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. PW2 the then SDM/LHA G.R. Meena, PW3 FI

Virender Singh and PW4 FA Mittrapal.

17. Furthermore the fact that the sample was collected/lifted by the Food

Inspector on 20.12.2001 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

Section 313 Cr. P.C as recorded before the Ld. Predecessor of this Court on

18.12.2010. 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 coupled with Ex. PW1/A , Ex.

PW1/B and Ex. PW1/C which bears the signature of the accused no doubt remains

that the sample of Dal Arhar was indeed collected by the Food Inspector for analysis

from vendor/accused Jagdish Tyagi.

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18. 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

19. 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

(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,

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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
20. 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
on it to prove the prosecution case.".

21. 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

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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.".

22. The two prosecution witnesses apart from the Food Inspector i.e.

SDM/LHA and FA Mittra Pal duly corroborated the testimony of the Food Inspector on

material particulars. It is writ large from the deposition of PW2 and PW4 that FI

Sanjeev Kumar Gupta 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

23. It was one of the arguments that there was violation of Rule 14 of the

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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 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 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.

24. However I differ with the contentions as raised by the Ld. defence

counsel.

25. 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

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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.

26. I have perused the deposition of the Food Inspector i.e. Sanjeev Kumar

Gupta who was examined as PW1. The Food Inspector deposed as under:

"...........Then 750gm of Dal Arhar (ready for sale) was purchased from an
open gunny bag bearing no label declaration after proper mixing of the Dal Arhar with
the clean and dry Jhaba by rotating in all possible directions........Then I divided the
sample into three clean and dry bottles.

27. No suggestion was given to this witness i.e. Food Inspector during his

cross examination that either the Jhaba was not clean and dry or that the sample

bottles were also not clean and dry.

28. Similarly PW2 the then SDM G.R. Meena deposed as under:

" The sample was taken after proper mixing with the help of a clean and
dry Jhaba by rotating in all possible directions i.e. Clockwise, anticlockwise, upwards
and downwards etc. thoroughly several times. The FI then and there divided the
sample equally in to three equal parts and same were separately packed, marked,
fastened and sealed according to PFA Act and Rules by putting them into three clean
and dry glass bottles...."

29. No suggestion was given even to this witness during his cross

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examination that either the Jhaba was not clean and dry or that the sample bottles

were also not clean and dry.

30. PW4 Field Assistant Mittrapal deposed as under:

"The sample was taken by proper mixing it with help of clean and dry
jhaba by rotating it in all possible direction several times. The FI S.K. Gupta divided
the sample then and there into three equal parts by putting them in three clean and
dry glass bottles.

31. Hence the prosecution witnesses consistently deposed regarding the

jhaba as well as the sample bottles being clean and dry. I have no reasons to

disbelieve them. In fact the defence did not even once challenged the deposition of the

prosecution witnesses regarding their claim that the bottles or the Jhaba was not clean

or dry. Their testimony has gone unrebutted/unchallenged. Otherwise also 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,

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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"

32. 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

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)".

33. 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.

34. 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

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and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.]

35. 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.

36. 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.".

37. 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.".

38. 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

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P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

Homogenization / Mixing of Sample.

39. 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

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 7.88 % ,

on the other hand, the Director found the same to be 9.02% by weight. Similarly the

Weevilled grains were found by the PA to be nil against 1 % 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.

40. 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 more

so when the defence did not even once challenge the deposition of the prosecution

witnesses regarding their claim that the sample was taken after properly mixing the

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Dal. Their testimony has gone unrebutted/unchallenged in this regard.

41. Secondly, 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
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." .

42. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,

the Hon. Apex Court observed as under:

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"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
liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream

CC No. 193/02
DA Vs. Jagdish Tyagi Page 20 of 47
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 i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

It was further observed:

"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."

45. 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. CC No. 193/02 DA Vs. Jagdish Tyagi Page 21 of 47

46. 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."

47. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

48. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 22 of 47 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 food articles at the time when the sample is lifted by the FI. Variations.

49. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 23 of 47 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.

50. 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."

51. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 24 of 47 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.".

52. 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:

"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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 25 of 47 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.".

53. 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 '.

54. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 26 of 47 public analyst for doubting correctness of the certificate issued by the Director.".

55. 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.".

56. 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.".

57. 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: CC No. 193/02 DA Vs. Jagdish Tyagi Page 27 of 47

"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.".

58. 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 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.".

59. 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".

CC No. 193/02 DA Vs. Jagdish Tyagi Page 28 of 47

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.".

60. 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. 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."

61. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 29 of 47 certificate of the Director.".

62. 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".

63. 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.

64. 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.".

65. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 30 of 47 Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".

66. 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.".

67. 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 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."

CC No. 193/02 DA Vs. Jagdish Tyagi Page 31 of 47

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.".

68. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:

"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".

CC No. 193/02 DA Vs. Jagdish Tyagi Page 32 of 47

69. 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.

70. 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.

71. 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.

72. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.

CC No. 193/02 DA Vs. Jagdish Tyagi Page 33 of 47

73. 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 43, 44, 46 and 48 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 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.

74. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 34 of 47 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 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.

75. Furthermore, it can not be the intention of the legislature that the person CC No. 193/02 DA Vs. Jagdish Tyagi Page 35 of 47 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: "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".

76. 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) CC No. 193/02 DA Vs. Jagdish Tyagi Page 36 of 47 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."

Use of colour.

77. 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.

78. 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: CC No. 193/02 DA Vs. Jagdish Tyagi Page 37 of 47

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

79. 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.

CC No. 193/02 DA Vs. Jagdish Tyagi Page 38 of 47 Injurious to health.

80. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

81. 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.".

82. 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. CC No. 193/02 DA Vs. Jagdish Tyagi Page 39 of 47 Mere presence of the colour amounts to adulteration.

83. 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.

84. 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.

85. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 40 of 47 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, 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

86. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 41 of 47 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 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.

CC No. 193/02 DA Vs. Jagdish Tyagi Page 42 of 47 Warranty.

87. 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 Chandgi Ram Atma Ram, Naya Bazar, Delhi vide Bill no. 5626 dated 16.11.2001 and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued that the vendor / accused had purchased the article from the above manufacturer / dealer vide the above bill 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.

88. 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. CC No. 193/02 DA Vs. Jagdish Tyagi Page 43 of 47

89. 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 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.

90. 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."

91. 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 44 of 47 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

92. In the case at hand, the accused merely made the bald submissions/statement of having purchased the Dal from M/s Chandgi Ram Atma Ram. He did not produce the bill on record. Despite opportunities given he did not lead any defence evidence so as to substantiate his claims. Neither any bill was placed on record/proved as per the law of evidence nor any owner/ proprietor of M/s Chandgi Ram Atma Ram i.e. the alleged supplier was brought to the witness box by the accused. He cannot be given the benefit of warranty merely on his bald statements. If indeed he had purchased the articles from above manufacturer 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 did not seek the indulgence of the court to implead the alleged manufacturer/supplier. Nothing stopped him all this while to move the court to exercise the power u/s 20A.

93. Moreover, 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 45 of 47 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 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 CC No. 193/02 DA Vs. Jagdish Tyagi Page 46 of 47 is he who is retailer and not the manufacturer/supplier who no longer has control over the articles so sold.

94. 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) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

95. Let the accused be heard separately on point of sentence.

Announced in the open Court                                     (Gaurav Rao)
on 14th March 2014                                         ACMMII/ New Delhi




CC No. 193/02
DA  Vs.  Jagdish Tyagi                                                          Page 47 of 47

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