Delhi District Court
Delhi Administration / Food Inspector vs Ishwar Dass on 10 January, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 171/99
Unique Case ID No.
Date of Institution: 09.12.1999
Date of reserving judgement: 27.10.2016
Date of pronouncement: 10.01.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Ishwar Dass
S/o. Sh. Ram Singh
R/o. H-66A, Khanna Market
Lodhi Colony, New Delhi-110003 ... Accused
JUDGEMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Ishwar Dass is stated to be the vendor-cum-proprietor of M/s. Ram Singh Bhoj, from where the food article, that is, 'Yellow chilly Powder' was lifted for sampling.
CC No. 171/99 Page 1 of 472. As per the complaint, on 19.06.1999, the food officials consisting of Food Inspector (FI) Dharamveer Singh and FI B.P.Saroha under the supervision of Local Health Authority (LHA)/SDM Sh. A.K.Singh reached along with their staff at M/s. Ram Singh Bhoj at 66A, Khanna Market, Lodhi Road, New Delhi-110003, where the accused was found conducting the business of various food articles, including Yellow Chilly Powder which was lying stored for use in preparation of other food articles meant for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Yellow Chilly Powder from the vendor, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was offered to the vendor but he refused to accept the same. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 07.07.1999, the PA found the sample to be not conforming to the standards because it was coloured with an oil soluble synthetic colouring matter. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 09.12.1999 alleging violation of section 2(ia)(a), (b), (h) and (l) of PFA Act r/w Rules 24, 27 and 49(24) of PFA Rules, as punishable section 7/16(1A) of PFA Act.
CC No. 171/99 Page 2 of 473. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 09.12.1999. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 23.02.2000, opining the sample to be adulterated due to presence of yellow shaded and orange shaded oil soluble coal tar dye.
4. On the basis of CFL Report, the matter was listed for pre-charge evidence, wherein the complainant examined PW-1 FI D.V.Singh and PW-2 FI B.P.Saroha. On the basis of their depositions, charge was framed against the accused on 17.01.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of sections 2(ia)(a), (b), (h) and (l) of PFA Act as well as Rules 21, 27 and 49(24) of PFA Rules, to which he pleaded not guilty and claimed trial. At the trial, the witnesses examined in pre-charge stage of evidence were recalled for cross-examination in post-charge stage and additionally, prosecution examined PW-3 Sh. Anil Kumar Singh (SDM/LHA) in post-charge stage.
5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 19.06.1999 and narrated the steps CC No. 171/99 Page 3 of 47 undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 600 gms of Yellow chilly Powder after homogenizing it with the help of a clean and dry Karchi (serving spoon), dividing it in three parts and putting in clean and dry bottles, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW- 1/C. On the next working day i.e. 21.06.1999, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out by PW-1. He sent letter Ex. PW-1/G to STO and letter Ex. PW-1/H to MCD and got reply Ex. PW-1/J and Ex. PW-1/K. It was found that the accused was the vendor - cum - proprietor of the business concern and that licence in the name of one Smt. Kala Devi was under process. Thereafter, sanction Ex. PW-1/L was taken from the Director PFA and the complaint Ex. PW-1/M was filed in the court. Intimation Letter Ex. PW-1/O was sent to the accused along with copy of PA report through post vide receipt Ex. PW-1/N. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that no sample was lifted from the accused or that no efforts were made to join public witnesses or that the sample had been lifted from a khomcha in front of the shop of the accused.
CC No. 171/99 Page 4 of 476. Statement of the accused under section 313 CrPC was recorded on 20.05.2013 wherein he denied the allegations and pleaded innocence. Though he accepted the proceedings dated 19.06.1999, yet he claimed that no efforts were made to join public witnesses, that no payment towards price of the sample was made to him, that the sample was not taken properly and that the reports of PA and CFL were not reliable being at variation. He claimed that the sample was not mixed properly by the FI. The accused however did not lead any evidence in defence.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 23.02.2000 which as per section 13(3) and (5) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that percentage or extent of synthetic colours has not been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that in the absence of percentage of colour present, it cannot be said that the Yellow chilly Powder was adulterated. It is also contended that the reports do not mention the name of the method adopted by the PA or CFL to detect the CC No. 171/99 Page 5 of 47 colours and it is possible that some unreliable method might have been adopted. Relying upon the judgement titled as Maya Ram v. State of Punjab [1987(II) PFA Cases 320], it is submitted that in case paper chromatography test had been adopted, then that was not a sure test. It is argued that there is variation in the PA report and CFL report which shows that representative samples were not taken. It is strongly submitted that in any case, Yellow chilly Powder was not meant for sale but was only to be used as an ingredient in preparation of other food articles and thus, matter would not fall under PFA Act.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the charge framed against the accused is for violation of sections 2(ia)(a), (b) (h) and (l) of the PFA Act and Rules 24,27 and 49(24). Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(b) deals with an article that contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof. Under Section 2(ia)(h), the article should contain any poisonous or other ingredient which renders it injurious to health. Under Section 2(ia)(l), it has to be established that the CC No. 171/99 Page 6 of 47 quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which renders it injurious to health. Rule 24 of PFA Rules provides that where and extraneous colouring matter has been added to any article of food, there shall be displayed the prescribed declaration on the label attached to the package of food so coloured. Under Rule 27, it is provided that inorganic colouring matters and pigments shall not be added to any article of food unless otherwise provided in Appendix-B and Appendix-C of PFA Rules. Rule 49(24) provides that no person shall sell powdered spices and condiments except under packed conditions.
11. The commodity in the present case is 'Yellow Chilly Powder', which apparently falls under the larger head 'Spices and Condiments' which are a part of Appendix-B of PFA Rules. Such chilly powder is a standardized food article falling in Item No. A.05.05.01 of Appendix-B of PFA Rules. There is no dispute about this fact even from the side of the accused, in as much as he never claimed that the food article was something else or other than chilly powder as governed by the said rule.
12. It is pertinent to note that the PA found the presence of the oil soluble synthetic colouring matter in the sample analysed. And this fact has been confirmed even by the CFL which also found the oil soluble coal tar dye (synthetic colour) in the second sample, though the CFL was able to notice two different shades of such colours, yellow and orange. It is however apparent that the name of the said colours could not be identified.
CC No. 171/99 Page 7 of 4713. Ld. Defence Counsel has pointed out that the reports are at variance. It is pointed out that as per PA report, the moisture was 3.18% but as per CFL report, it was 6.5%. Again, total ash was found by the PA to be 7.67% but found by the CFL to be 7.4%. Similarly, ash insoluble content was found by the PA to be 0.56% which was found by the CFL to be 0.30%. The non volatile ether extract was found by the PA to be 12.66 which was found by the CFL to be 11.0%. Again, crude fibre was found by the PA to be 13.93% but was found to be 21.6 by the CFL. More importantly, the PA found one oil soluble synthetic colour but the CFL found two different shades of oil soluble colours. On this basis, the defence is seeking to claim that the samples were not representative due to said 'variations of more than 0.3%' in PA and CFL report.
14. In this regard, The defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377], State v. Rama Rattan Malhotra [2012(2) FAC 398], Food Inspector v. Naresh Kumar [2014(2) FAC 276], State v. Kamal Dev Vashisht [2012(2) FAC 353], CC No. 171/99 Page 8 of 47 State v. Suresh Kumar [2010(2) FAC 204], K. D. Yadav v. State [2012(2) FAC 523] and Food Inspector v. Amar Chand [2016(1) FAC 190].
15. I have carefully gone through the said judgements based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. In view of the defence taken, it is necessary to understand the concept of reports of PA and CFL and variations therein.
16. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
17. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
18. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the CC No. 171/99 Page 9 of 47 Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
19. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
20. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only CC No. 171/99 Page 10 of 47 attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
21. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
22. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is 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 CC No. 171/99 Page 11 of 47 with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".
23. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same CC No. 171/99 Page 12 of 47 sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
24. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has CC No. 171/99 Page 13 of 47 delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
25. This judgement was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the CC No. 171/99 Page 14 of 47 Director".
26. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
27. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the CC No. 171/99 Page 15 of 47 accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter of assumptions or presumptions.
28. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
29. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which CC No. 171/99 Page 16 of 47 includes cross-examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
30. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
31. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had CC No. 171/99 Page 17 of 47 opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
32. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to an accused merely because there are some difference in two reports. If an accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely CC No. 171/99 Page 18 of 47 because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
33. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if PA fails to detect any poisonous matter in a sample, and CFL detects such poison, then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. Similarly, if PA detects one type of poison and CFL detects the same poison and also an additional poison, then also the accused cannot be given benefit on the ground that the reports were at variance. Again, if both the PA and CFL find same type of poison in the samples, the said result cannot be discarded on the ground that there was difference in the moisture or ash content of the samples. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results CC No. 171/99 Page 19 of 47 therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that there is some variation in reports. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation in any ingredient would nullify the report of CFL. No limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
34. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since there are variations, the sample in his case CC No. 171/99 Page 20 of 47 would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert as examined in that case without leading any further evidence whatsoever in this case. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report. This would rather give precedence to the report of PA and not CFL.
35. As mentioned earlier, this judgement has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in these very judgements [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Food Inspector v. Naresh Kumar [2014(2) FAC 276], State v. Kamal Dev Vashisht [2012(2) FAC 353] and Food Inspector v. Amar Chand [2016(1) FAC 190]].
36. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's CC No. 171/99 Page 21 of 47 judgement, but at the same time, expressly ordered the question of law to be kept open.
37. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
38. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Suresh Kumar [2010(2) FAC 204], K. D. Yadav v. State [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
39. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and CC No. 171/99 Page 22 of 47 appreciation thereof, and not only that there was variations between the two reports.
40. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content in the reports of PA and the Director CFL.
41. Thus, it is not proper to say that there is a substantial variation in the two reports so as to assume that the sample was not representative. The product was lifted from the possession of the accused on 19.06.1999. It was analysed by PA and the report was given by her on 07.07.1999. The CFL on the other hand analysed the sample and gave certificate on 23.02.2000. Therefore, it is clear that there was gap of about 08 months before the sample was analysed by CFL. During such period, there was every possibility that natural ingredients of the food article had undergone CC No. 171/99 Page 23 of 47 some natural change with respect to their weight, moisture, ash and fiber content as effect of air, moisture, internal heat and external environment cannot be fully controlled on these articles kept at room temperature. Such natural changes can always be considered by the court to appreciate the CFL opinion. However, when such natural causes will have no effect on any particular ingredient like synthetic food colour, no such delay would give benefit to the accused. The quantity, quality or nature of artificial synthetic food colours do not materially change even after lapse of considerable period of time. It is not that such synthetic colours would develop or fade away after lapse of some time, as in case of natural food colours and there would be hardly any change in the characteristics or composition of artificial synthetic food colours after lapse of such time. Therefore, if synthetic food colours have been found by the PA and also confirmed by the CFL, this fact would certainly go against the accused, irrespective of the fact that there has been a gap of 08 months when the sample was analysed by the CFL. Of course, such delay might have some bearing on other natural characteristics of the food article including moisture, ash, ether extract or fiber, but that would not have any impact on the presence or absence of synthetic food colours. In view of this position, the time lapse between the analysis by PA and CFL would not help the accused in any manner. From this angle, the delay caused in filing the complaint would also have no bearing in the present case as the right of the accused under section 13(2) of PFA never got frustrated on this account. Such right might have frustrated if the sample had failed on account of some parameter which was prone to change after lapse of some period, which is not the case in the present matter.
CC No. 171/99 Page 24 of 4742. In the case in hand, the court cannot, merely on the basis of the so- called 'variations' in moisture, ash content, non volatite ether extract or crude fiber content, conclude that the samples were not representative so as to disregard the detection of the incriminating colours by both the experts.
43. As far as nature of colour is concerned, it is correct that the PA could detect only one oil soluble colour but the CFL could identify such colours of Yellow and Orange shade. It is also noted that the reports do not suggest if any of the two analysts could identify or name the colours present. But that would hardly be enough to negate the said reports. As far as identification of colours is concerned, the same would not be fatal in this case. Not all the colours in the world are identifiable. There may be some colour or admixture of colours which may not be possible to be identified with the help of prescribed and available methods / techniques / tests / instruments. But the PA clearly mentioned that the sample contained oil soluble synthetic coloring matter and CFL confirmed the fact that the sample contained oil soluble colour / Coal Tar Dye, though opined the same to be one yellow shaded and the other orange shaded.
44. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report. In simple terms, CFL determined what the PA could not determine or determined CC No. 171/99 Page 25 of 47 something wrongly. Having said so, the court has to see if presence of colouring matter as detected by CFL would be an offence.
45. As per Rule 23 of PFA Rules, addition of colouring matter to any article of food except as specifically permitted, is prohibited. As far as synthetic food colours are concerned, only few such colours, as enumerated in Rule 28, are allowed to be used in food articles. Again, such food colours are permitted to be used only in specified food articles as mentioned in Rule 29 and that too, upto the maximum limits as provided in Rule 30.
46. As far as Yellow Chilly Powder is concerned, it does not find any place in any of the clauses of Rule 29. Even as per Item No. A.05.05.01 of Appendix-B of PFA Rules (as it existed on the day of lifting the sample), such "powder shall be dry, free from dirt, mould growth, insect infestation, extraneous matters, added colouring matter and flavouring matter". Even as per the new Item No. A.05.05.01 of Appendix-B of PFA Rules (as it exists on date in repealed PFA Act), such "powder shall be dry, free from dirt, extraneous colouring matter, flavouring matter, mineral oil and other harmful substances". Therefore, no such artificial synthetic colour could have been used in Chilly Powder being totally prohibited.
47. At this stage, it is also to be seen that Item No. A.05.05.01 pertains to chillies and capsicum powder without specifically stating if such powder is of red chillies or yellow chillies. However it also mentions of CC No. 171/99 Page 26 of 47 "Lal Mirchi" to be the common name of such food article which would, if translated in English, would mean Red Chilly only. Therefore, a doubt might arise that the food article in question, which is a Yellow Chilly Powder, may not be covered under Item No. A.05.05.01. However, that would not make any difference. There is no dispute that such chilly powder is a part of spices and condiments which do not form a part of Rule 29 of the PFA Rules. Even if the standards of Item No. A.05.05.01 are not considered as applicable to the food article in question, still it is apparent that use of such synthetic colours is absolutely prohibited in case of Yellow Chilly Powder or any other chilly powder or for that matter, any other spices and condiments. In case such colour is found in the food article, that would be violation of Rule 29 even independent of specific prohibition in Item No. A.05.05.01.
48. In view of Rule 23, 28 and 29 of PFA Rules, such colours are permitted only in the food items mentioned in Rule 29. Since chilly powder nowhere finds place in any of the clauses of Rule 29, it is clear that no such synthetic food colours were/are permitted for use in same, and were/are absolutely prohibited for use in this food article. Reliance can be also placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] which are applicable to this case as well.
49. Having said so, it is immaterial to go into the question as to what was the name or identity of oil soluble colours and also what was the CC No. 171/99 Page 27 of 47 percentage or quantity of synthetic colours used in the sample in question. Since such synthetic colours are absolutely prohibited in such food article, irrespective of their name or identity, their presence in any quantity would be an offence. Even if such synthetic colours were identified to be those enumerated in Rule 28 or not so enumerated or something not identifiable, still that would make no difference because even the colours permitted by Rule 28 are prohibited for use in spices and condiments including Yellow Chilly Powder. There was also no necessity for the analysts to ascertain the quantity or percentage of such colours. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as such colour are not permitted within any limits for use in this food article. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matters in traces in food article in question, particularly when use of such colour as an ingredient was not disclosed by him at the time of sampling. The burden would upon be him to show how even traces of synthetic colours could have entered the food articles being used by him. But no evidence has been led by the accused to establish this fact. The prime characteristic of colours (of being oil soluble) has been duly identified by the CFL, though there is nothing to show what were their scientific names. Once such ingredients are found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the fact that quantity was not mentioned by the CFL or PA. It is also to be seen that no attempt was made by the accused to call for the records of analysts on any point on which the reports were silent. The PA report or the CFL Certificate as available on record, are only the final reports which were prepared as per CC No. 171/99 Page 28 of 47 the formats prescribed under the PFA Rules that existed at the relevant time. All the other details including the analytical values, calculations, test methodology etc., are maintained separately by the offices of PA and CFL which can always be summoned if required. The accused in this case never exercised the option as available to him under section 293 CrPC to call and examine PA or CFL and to question them about the nature or identity of synthetic colours or the percentage of such colour or the test methodology adopted by them. They would have been the best persons to explain the circumstances and to fill the gaps if any, and also to rebut the defences of the accused. But when no attempt was made by the accused, he cannot now chose to question the reports on something on which they are silent.
50. Again, even if the samples were not properly homogenized (though there is no evidence to that effect), that would not make any difference as even its smallest quantity would be violative of the provisions. Homogenization would have at the most distributed the ingredients evenly in the entire sample but would have not resulted in absence of that ingredient. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused at the trial. No suggestion to this effect was given to any witness during cross- examination. The accused never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. No expert witness was examined in defence. Such defence was raised for first CC No. 171/99 Page 29 of 47 time by the accused only in his statement under section 313 CrPC, which appears to be an afterthought. In any case, even such a stand has remained bald averment because there is no witness examined on record whom may depose that the sample was not mixed properly. Thus, the court cannot be now made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald averments or suggestions. The accused is required to bring positive material on record. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.
51. There is nothing for the court to disbelieve the CFL report wherein artificial synthetic colours had been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no colour was detected, or was detected wrongly, or that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination.
52. The defence in this case has claimed that the sample was not taken properly. However, no specific irregularity has been pointed out by the CC No. 171/99 Page 30 of 47 accused in sample proceedings. No suggestions were given to the PWs on this regard. There is no evidence to show that the bottles or karchi used by the food officials were not clean or dry, as testified by them on oath. There is no evidence to establish that the implements or utensils used for lifting food articles were contaminated in any manner. There is nothing to show violation of any rules in the present case. The witness have deposed about the utensils / implements to be clean and dry and such a fact has not been rebutted. It is not the case of the defence that some artificial colour had been subsequently put or was added by the food officials. No such stand has been taken at the trial or in the statements under section 313 nor any evidence have been led to this effect.
53. All the witnesses have supported the case of each other by deposing in one voice about sample proceedings, about lifting of the sample from open polythene bag, about the quantity lifted, about the steps in proceedings, signing of documents etc. There is no material contradiction in their evidence in their cross-examination which can help the accused.
54. Ld. Defence Counsel then questions the mode of testing adopted by the analysts in detecting the presence of food colours. It is argued that the PA and CFL do not mention the exact method for determining the colours and in case the colours were detected using paper chromatography method, then that method is not a sure and reliable test.
55. Well, the court does not find merit in the said submissions. It is to be understood that reports of chemical experts are admissible in evidence CC No. 171/99 Page 31 of 47 without formal proof under section 293 CrPC. But that does not mean that such report cannot be questioned on any point on which it is silent. If the accused wishes such reports to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross- examine the experts. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analysts any opportunity to explain any point on which the report is silent. In such a case, there is no reason why the accused did not opt to cross-examine the PA or CFL analyst and ask him about the method used by him to detect synthetic colour, if he was genuinely feeling aggrieved by his test methodology. The CFL maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously not the job of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that "the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-
CC No. 171/99 Page 32 of 47examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
56. Even the judgement of Maya Ram v. State of Punjab (supra) would not help the accused. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused as aforesaid to ask the CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.
57. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are otherwise clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets or sauces) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into CC No. 171/99 Page 33 of 47 the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.
58. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
59. The next defence put forth by the accused is that the food article was not for sale but was only for the use in preparation of other food articles. However, there is no merit in the contention. As per the definition of "sale" under section 2(xiii) PFA Act, it includes sale of any CC No. 171/99 Page 34 of 47 article of food for analysis or having in possession for sale of any such article. As per section 2(v)(a) of PFA Act, "food" includes any article used as food or drink for human consumption and includes any article which ordinarily enters into or is used in the composition or preparation of human food. Thus, the definition of "sale" is quite wide which would include spices stored for preparation of food articles meant for sale for human consumption, as in the case at hand. Again, Explanation to section 7 of PFA Act (as inserted in 1976 by way of amendment), clarifies that a person shall be deemed to store any adulterated food or any article of food, if he stores such food for the manufacture therefrom of any article of food for sale. Section 2 (viiib) of PFA Act (also inserted in 1976 by way of amendment) defines "manufacture" to be including any process incidental or ancillary to the manufacture of an article of food. Apparently, such prepared food articles were also meant for sale for human consumption, and therefore, the matter would fall within the purview of PFA Act. Position would have been different if the said food was stored or meant not for sale but for personal use or any purpose not covered in the definition of sale. Therefore, no benefit can be given to the accused even on this ground.
60. Finally, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 09.12.1999 on the basis of the Public Analyst's report dated 07.07.1999. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. CC No. 171/99 Page 35 of 47 Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
61. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been CC No. 171/99 Page 36 of 47 booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
62. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report mentions that she had been duly appointed and this fact was never disputed at the time of trial.
63. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food CC No. 171/99 Page 37 of 47 Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time, CFL Pune was specified to be the laboratory for Delhi region.
64. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned CC No. 171/99 Page 38 of 47 and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
65. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
66. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a CC No. 171/99 Page 39 of 47 specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
67. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also CC No. 171/99 Page 40 of 47 erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
68. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in spices and condiments. In this case, prosecution is for violation of section 2(ia)(a), (b), (h) and (l) of the Act. The present case would be covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.
CC No. 171/99 Page 41 of 4769. It would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only retailer using it for preparation of food for sale. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. PFA Act applies to the vendor and retailers as well. The only benefit which a vendor can claim is under section 19(2) of PFA Act which would apply only if the vendor is able to show that he had purchased the product against a warranty and had been selling the product in the same state as purchased by him.
70. In the present case, the accused never disclosed from where he had purchased the commodity or that he was selling the same in the same state as had been purchased. Neither such details were disclosed at the time of sampling proceedings nor during the investigation, nor at the trial while cross-examining the witnesses, while recording statement of accused or even by way of defence evidence. No bill was produced or proved on record. No witness has been examined by the accused who could establish that any such food article was purchased by the accused from any third person. No such bill was ever submitted to the PFA department during the investigation. No such bill was shown to the FI at the time of sampling. No endorsement was made by the accused on the documents prepared at CC No. 171/99 Page 42 of 47 the spot claiming that the commodity had been purchased from any third person or that he was having any such bill / invoice / cash memo. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the sample as lifted from possession of the accused contained the same Chilly Powder as was purchased by him from any other place. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused.
71. The accused has not denied the fact that he was the vendor cum proprietor of the business concern. The FI had written letter Ex. PW-1/H to the Sales Tax Department and as per its reply, the correctness of which has never been questioned by the defence, the accused Ishwar Dass was registered as Proprietor of M/s. Ram Singh Bhoj. The record of Sales Tax Ex. PW-1/K also shows this fact. It is also on record that one reply was furnished by CMO, NDMC and it was informed that health licence had been applied for this business concern by one Smt. Kala Devi W/o. Sh. Ram Singh which was under process. But other than this, there is nothing to show the status or relation of Smt. Kala Devi with the said M/s. Ram Singh Bhoj. The accused has never claimed that he was not the proprietor or that Smt. Kala Devi was the proprietor of the said business concern. In view of the record and reply of the Sales Tax Office and the testimony of the witnesses, it can be safely said that the accused was the proprietor of M/s. Ram Singh Bhoj. Even if not, he is still liable to be proceeded CC No. 171/99 Page 43 of 47 against in the capacity of vendor who had sold food article within the meaning of PFA Act.
72. It is further seen that during cross-examination of PW-3, a new story was propounded by the accused, to the effect that the sample was not lifted from shop of the accused but from a khomcha in front of the shop pf the accused. He even suggested that accused had shown the FI some papers in respect of ownership of the khomchas. Even during cross- examination of PW-1, it was suggested that no sample was lifted from the accused. Needless to say, such suggestions were denied by the PWs. Strangely, no such defence was raised by the accused in his statement under section 313 CrPC where, in contradiction to the suggestions put to PW-1 and PW-3, he accepted that the sample was lifted from his shop by the food officials. There, he never took stand that no sample was lifted from his shop, though took other defences like sample was not taken properly or that the PA and CFL reports are at variance or that the sample was not mixed properly. In any case, no such stand had been proved on record. No evidence was led by the accused to establish that the sample was not lifted from his shop or was lifted from some khomcha outside his shop. The defence version is therefore inconsistent and without any evidentiary support.
73. No other stand has been taken at the trial or during the course of arguments.
CC No. 171/99 Page 44 of 4774. The case in hand would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that the food article was not of the nature, substance or quality which it is "purported" to be as per PFA Rules. There is violation of Rule 27 that prohibits use of inorganic colouring matters and pigments except as provided under the rules.
75. However, it is clear that there is no evidence to show that the colours so used were in quantity that rendered the food article injurious to health or that it injuriously affected the nature, substance or quality of the product. In the absence of such percentage or extent of colour used, and the extent of harm it may cause, there is no material to show that the food article contained any poisonous or other ingredient which rendered it injurious to health. No opinion was given by any analyst to the effect that the food article was unfit for human consumption. Thus, in my considered view, the offences under section 2(ia)(b) and 2(ia)(h) would not be made out.
76. On similar lines, when there is nothing to show that the article was rendered injurious to health, no violation of section 2(ia)(l) can be said to be established. However, since the constituents of food article were present in quantities not within the prescribed limits, being totally prohibited, which did not render it injurious to health, there would be violation of milder section 2(ia)(m) of the Act.
77. There is also no violation of section Rule 49(24) of PFA Act. That rule would apply of any spices are directly sold in loose condition. When CC No. 171/99 Page 45 of 47 the spices are meant to be used in preparation of food articles, the packet needs to be opened for use. The definition of sale cannot be extended to such impossible limits and to hold that even in preparation of food for sale, a vendor cannot open the sealed packets. As the food article was not for direct sale and not being sold loose as such to any customer, no such violation of Rule 49(24) would be made out.
78. Again, there is no violation of Rule 24 that essentially pertains to display of statement on the label with respect to use of colours. That rule would apply only in those cases where use of colours is permitted. But where such colours are prohibited, any such display of statement would be immaterial.
79. The case would probably fall under section 2(ia)(j) as there was presence of colour which was not permitted in the food article in question, but since no charge was framed under this provision, the court is not going into that aspect.
80. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(a) and
(m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
CC No. 171/99 Page 46 of 4781. Having said so, the person is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.
82. Let the matter be listed for arguments on sentence.
Announced in the open court this 10th day of January 2017 ASHU GARG ACMM-II (New Delhi), PHC CC No. 171/99 Page 47 of 47