Da vs . Satish Kumar Gupta Page 1 Of 49 on 9 February, 2015

[Cites 64, Cited by 0]

Delhi District Court

Da vs . Satish Kumar Gupta Page 1 Of 49 on 9 February, 2015

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

C.C. No. 153/02

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

Satish Kumar Gupta s/o Om Parkash Gupta
M/s Super Cheap Store,
Shop No. 1, DESU Colony,
Janakpuri, New Delhi
R/o WZ588, Naraina Village,
New Delhi

........ VendorcumProprietor

Serial number of the case : 153/02
Date of the commission of the offence : 16.03.2002
Date of filing of the complaint : 16.11.2002

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 1 of 49
Name of the Complainant : Sh. V.P.S. Choudhary, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, r/w Rule 23, 28 and 29 of
PFA Rules 1955, punishable U/s
16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 09.02.2015
Judgment announced on : 09.02.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 16.03.2002 at about 04.00

p.m., Food Inspector V.P.S. Choudhary along with FI Hukam Singh, under the

supervision and directions of SDM/LHA Sh. Vijay Khanna visited M/s Super Cheap

Store, Shop no. 1, DESU Colony, Janakpuri, New Delhi, where accused Satish Kumar

Gupta who was the vendorcumproprietor 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

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 2 of 49
because it was "coloured with synthetic colour matter viz. Tartrazine" and accordingly

after obtaining the necessary Sanction/Consent under Section 20 of the Act the

present complaint was filed for violation of provisions of Section 2 (ia) (a) (j) & (m) of

PFA Act 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16

(1A) r/w Section 7 of the Act.

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

dated 16.11.2002.

4. In pre charge evidence, the prosecution examined one witness i.e. Food

Inspector V.P.S. Choudhary as PW1 and pre charge evidence was closed vide orders

dated 28.01.2009.

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

1954, r/w Rule 23, 28 and 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w section 7

of the Act was framed against the accused vide orders dated 11.07.2009 to which

accused pleaded not guilty and claimed trial.

6. In the post charge evidence the prosecution examined three witnesses

i.e. Food Inspector V.P.S. Choudhary as PW1, the then SDM/LHA Sh. Vijay Khanna

as PW2 and Food Inspector Hukam Singh as PW3 and PE was closed vide orders

dated 03.06.2011

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 3 of 49
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 06.09.2011

wherein the accused claimed himself to be innocent. Despite opportunities given

accused did not examine any witness in his defence.

A brief scrutiny of the evidence recorded in the matter is as under:

8. PW1 Food Inspector V.P.S. Choudhary deposed that on 16.03.2002 he

along with FI Hukam Singh under the supervision of Vijay Khanna, SDM/LHA Rajouri

Garden visited M/s Super Cheap Store, Shop No. 1, DESU Colony, Janakpuri, New

Delhi where accused Satish Kumar Gupta was found conducting business of store

after having stored food articles including Dal Arhar for sale for human consumption

which was contained in open gunny bag with no label declaration. He deposed that he

introduced himself to accused and intended to purchase sample of Dal arhar for

analysis to which accused agreed. He deposed that he also made efforts to join some

public witnesses in proceedings by requesting some passersby, customers and

neighboring shopkeepers but none came forward then on his request FI Hukam Singh

joined the same. He deposed that at about 04.00 p.m. he properly mixed up the Dal

Arhar in the said gunny bag with the help of clean and dry Jhaba by rotating the same

in all possible directions and thereafter purchased 750 gms of Dal arhar from the

accused on payment of Rs. 19.50/ vide receipt Ex. PW1/A. He deposed that sample

quantity was divided into 3 equal parts by putting the same in three clean and dry

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 4 of 49
bottles and each counterpart was packed fastened, marked and sealed as per law and

LHA slips containing his signatures and code were pasted on each counterpart and

thereafter accused signed the same in a manner that his signatures appeared partly

on slips as well as on the wrappers. He deposed that he prepared notice Ex. PW1/B

and panchnama Ex. PW1/C. He deposed that a copy of notice was also received by

accused. He deposed that accused also made statement Ex. PW1/D that he was the

sole person to look after the business of the store which was registered in MCD but

not in Sales Tax department. He deposed that on 18.03.2002 he deposited one

counterpart of sample along with a copy of Form VII containing specimen seal

impression of seal used along with one more copy of Form VII having same seal

impression vide receipt Ex. PW1/E for analysis and on the same day the other two

counterparts along with two copies of Form VII having same seal impressions were

deposited with LHA vide receipt Ex. PW1/F under intimation that one counterpart has

already been deposited with PA for analysis. He deposed that PA report Ex. PW1/G

revealed that the sample was adulterated due to presence of synthetic colouring

matter i.e. tartrazine. He deposed that he conducted further investigation and

collected report Ex. PW1/H from STO. He deposed that after investigation was

concluded the file was sent to the then Director PFA who gave consent order Ex.

PW1/J bearing his signatures at point A for the prosecution of accused. He deposed

that after filing of complaint Ex. PW1/K by him LHA sent intimation letter Ex. PW1/L

along with PA report through registered post at given address of accused vide receipt

Ex. PW1/M having relevant entries at point A and B which were not received back

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 5 of 49
undelivered.

9. During his cross examination he stated that he does not remember the

exact time when they left the office on the day of sampling. He stated that he does not

recollect that they left the office at 10.0011.00 a.m. He voluntarily stated that they left

the office after lunch. He stated that they went directly to the shop of the vendor. He

stated that they left the office of SDM/LHA altogether. He stated that he reported to the

office of SDM/LHA after lunch. He stated that 23 customers were present at the time

of sampling in the shop of the vendor and they were asked to join the sample

proceedings and as they did not agree to join the sample proceedings as a witness he

did not ask their names. He stated that neighboring shopkeepers were also requested

to join the sample proceedings as they also did not agree to join the sample

proceedings so he did not ask their names and addresses. He stated that some

boards were displayed at the shops but he was unable to recollect the names of the

shops. He stated that age of customers were between 30 to 40 years. He denied the

suggestion that he intentionally did not try to associate the public witnesses. He stated

that there was about 20 Kg of Dal Arhar in the gunny bag of capacity of 35 Kg. He

denied the suggestion that no gunny bag of capacity of 35 Kg was available in the

market. He stated that gunny bag was not seized as same was not bearing any

declaration. He stated that other pulses were also lying but no other sample was lifted.

He denied the suggestion that the capacity of the gunny bag was 100 Kg from which

the sample was lifted. He stated that he did not notice any gunny bag of capacity of

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 6 of 49
about 100 Kg in the shop of the vendor. He stated that he visited Dal Mills and gunny

bags of 100 Kg were also available there. He denied the suggestion that pulses are

usually supplied in the gunny bag of 100 Kg. He stated that the gunny bags of about

50 Kg are also available in the market. He denied the suggestion that pulses are not

supplied in the gunny bag of 50 Kg. He stated that he cannot say that bill Ex. DA is for

sale of 100 Kg bag. He stated that bill Ex. DA was not shown by the vendor to him at

the spot. He stated that jhaba was lying in the gunny bag from which the sample was

lifted and was also clean and dry. He stated that he did not make the jhaba clean at

the spot as it was already clean and dry. He stated that pan scale was also clean and

dry as such same was not made again clean and dry at the spot. He stated that bottles

were already dry and clean and the same were not made again dry and clean at the

spot. He stated that tartrazine is permitted in sweets and confectionery upto 100 ppm

but not in Dal Arhar. He admitted that the tartrazine is a water soluble. He stated that

generally dal is washed prior to cooking. He denied the suggestion that colour was

found in the Dal due to wrong sampling.

10. PW2 the then SDM/LHA Sh. Vijay Khanna and PW3 Food Inspector

Hukam Singh deposed on the same lines as deposed by PW 1 in his examination in

chief.

11. This so far is the prosecution evidence in the matter.

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 7 of 49
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

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 V.P.S. Choudhary coupled with the report of the

PA dated 02.04.2002 that accused Satish Kumar Gupta was indeed found selling Dal

Arhar which was adulterated as it was containing synthetic colour viz. Tartrazine.

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

V.P.S. Choudhary categorically proved the sample proceedings dated 16.03.2002 as

were conducted in the presence of SDM/LHA. From the deposition of the prosecution

witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C

i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution,

the admissions made by the accused during his examination under Section 313 Cr.

P.C, specifically question no. 1 and 2 as recorded before the Ld. Predecessor of this

Court on 06.09.2011 which are admissible in evidence against the accused in view of

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 8 of 49
sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas

Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh,

(SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal Pradesh,

(SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570,

State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad

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 and

Ex. PW1/D which is in the handwriting of the accused no doubt remains that the

sample of Dal Arhar was indeed collected by the Food Inspector for analysis from M/s

Super Cheap Store of which the accused is the proprietor cum vendor.

16. 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

17. At the outset it was argued that no public witness was joined by the FI

during the alleged sample proceedings which is in violation of section 10 (7) and

therefore the accused is entitled to be acquitted on this ground alone. It was argued

that the FI despite the mandate of section 10 (7) did not deliberately join any public

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 9 of 49
person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

18. However I do not agree with the contentions raised by the Ld. Defence

counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC

(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,

is sufficient to convict the accused and there is no requirement of independent

corroboration by public persons unless the testimony suffers from fatal

inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector

was unable to secure the presence of independent persons and was therefore driven

to take the sample in the presence of the members of his staff only. It is easy enough

to understand that shopkeepers may feel bound by fraternal ties............ Similarly in

Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no

requirement of independent corroboration by public persons unless the testimony

suffers from fatal inconsistencies. Further reliance may be placed upon the law laid

down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State

of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare

Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,

Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.

Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State

Vs. Narayanasamy 1997 (2) FAC 203.

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 10 of 49
19. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)

FAC 230, the Hon. Apex Court held as under:

".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".

20. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.

Apex Court held as under:

".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 11 of 49
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.

State
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... 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.".

22. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."

23. It is writ large from the deposition of PW1, PW2 and PW3 that FI V.P.S.

Choudhary 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

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 12 of 49
administrative powers/enforcement of law seeking to curb anti social evils. Normally,

nobody from public is prepared to suffer any inconvenience for the sake of society.

Absence of public witness in this case is not fatal to the prosecution as the prosecution

story inspires confidence and lifting of the sample stands admitted/unambiguously

proved. Furthermore, I find no reasons why the Food Inspector would falsely implicate

the accused or depose falsely against him. There is nothing on record to suggest that

the FI or the other members of raiding team including the SDM were inimical to the

accused or had any grudge or enmity to falsely implicate him.

Rule 14

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

the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was

argued that at the time when the sample was collected, the Food Inspector failed to

clean the sample bottles, pan scale as well as the jhaba with which the sample was

lifted and poured in the sample bottles. It was argued that the colour was already

sticking to the Jhaba, the polythene used for weighing the dal and the sample bottles

and it was this colour which was detected by the PA. 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.

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

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 13 of 49
counsel.

26. I have heard the Ld. defence counsel, gone through Rule 14 and perused

the deposition of the Food Inspector and other complainant witnesses. After going

through the material available on record and the law cited by the Ld. defence counsel,

I am of the opinion that there was no violation of Rule 14 in this case. Rule 14 of the

Act envisages that at the time when the Food Inspector collects the sample, he shall

ensure that not only the container/bottle is clean but it is also dried. Furthermore the

container should be such so as to prevent any leakage, evaporation and in case of dry

substance entrance of moisture. The container should be sealed carefully to avoid the

above. While sampling the various types of articles of food, the Food Inspector should

make use of clean and dry appliances. He should use clean and dry spoon or other

instruments for sampling and avoid using his own hands to mix the same.

Furthermore he should sample the article in hygienic conditions. Reliance may be

placed upon Varghese Vs. Food Inspector, 1989(2) FAC 236.

27. I have perused the deposition of the Food Inspector i.e. V.P.S.

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

"........At about 4 PM I properly mixed up the dal arhar in the said gunny
bag with the help of clean and dry jhaba by rotating the same in all possible directions
and thereafter purchased 750 gms of dal arhar from accused on payment of Rs.
19.50/ vide receipt Ex. PW1/A. Sample quantity was divided into 3 equal parts by
putting the same in 3 clean and dry bottles."

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 14 of 49
28. During his cross examination he stated as under:

".......Jhaba was lying in the gunny bag from which the sample was lifted
and was also clean and dry. I did not make the Jhaba clean at the spot as it was
already clean and dry. Pan scale was also clean and dry as such same was not made
again clean and dry at the spot. Bottles were already dry and clean and the same
were not made again dry and clean at the spot."

29. Similarly PW2 the then SDM/LHA Sh. Vijay Khanna deposed as under:

"....At about 4:00 p.m., F.I. V.P.S. Chaudhary purchased 750 gms of Dal
Arhar taken from an open gunny bag having no label declaration after proper mixing
with the help of a jhaba lying in the gunny bag by rotating in all possible directions
thoroughly several times on payment of Rs. 19.50 paise vide vendor's receipt Ex.
PW1/A. FI V.P.S. Chaudhary 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."

30. During his cross examination he stated as under:

".........Jhaba was appearing clean and dry as such same was not made
clean and dry at the spot........It is wrong to suggest that sample was not taken in clean
and dry glass bottles."

31. PW3 FI Hukum Singh deposed as under:

".........The sample was taken by properly mixing the sample commodity
with the help of a clean and dry JHABA by rotating it in all possible directions. The so
purchased quantity of sample commodity was divided into three equal parts by FI Shri
V.P.S. Chaudhary and was put in three clean and dry glass bottles."

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 15 of 49
32. Hence the prosecution witnesses consistently proved regarding the

jhaba, the polythene, pan scale as well as the sample bottles being clean and dry.

From their deposition/statement no doubt remains that the sample proceedings were

conducted in a proper manner and that the sample bottles, pan scale polythene as

well as the jhaba were clean and dry. I have no reasons to disbelieve them. As

discussed above I find no reasons why the FI or the other members of raiding team

would falsely implicate the accused that is to say why they would use contaminated or

colored instruments or bottles for sampling. The defence has failed to prove any

motive which could be assigned to the above officials for falsely implicating the

accused. Moreover nothing on record has been proved to the contrary i.e. the

defence has not proved that the Food Inspector did not comply with the provisions of

the Rule 14. Just because the defence is challenging the sampling process conducted

by the Food Inspector / asserting that Rule 14 was violated is not sufficient to either

disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I have

also gone through Section 114 (e) of the Indian Evidence Act.

Section 114 reads as under:

" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."

Clause (e) of the above provision reads as under:

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 16 of 49
" That judicial and official acts have been regularly performed"

33. 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)".

34. 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.

35. In the face of clear statement of the Food Inspector that he has taken the

proceedings of taking sample and sealing according to Rules, a presumption can be

drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,

1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,

Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1

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

36. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 17 of 49
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.

37. 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.".

38. 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.".

39. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:

"there is no provision or requirement of law that the bottles must be sterilized at the

time of taking of the sample in the presence of the witnesses.". Similarly was held in

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

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 18 of 49
40. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has

been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

41. Though it was also argued by the Ld. Defence counsel that in view of the

deposition of prosecution witnesses it stands proved that an unclean jhaba was used

(jhaba was already lying in the gunny bag) for sample proceedings and hence the

sample proceedings were bad, however I find no merit in the same. Firstly, the

prosecution witnesses consistently proved that the jhaba was clean and dry.

Secondly, the mere fact that the jhaba was lying in the same gunny bag from which

the sample was lifted does not render the sample proceedings bad or does not

prejudice the accused in any manner. It is to be seen that the witnesses deposed that

the Jhaba was lying in the same gunny bag i.e. bag containing Dal Arhar from which

the sample was lifted. It is neither the prosecution case nor claimed by the defence

that the jhaba was lying in some other commodity/bag and it was used without

cleaning it to take out the sample of Dal Arhar which was lying in another bag. Had

that been the case it would have been open for the defence to claim prejudice or that

the sample proceedings were bad in law. But once the Jhaba was lying in the bag

containing the sample commodity/Dal Arhar itself and it is used to take out the sample

commodity I fail to understand how prejudice is caused to the accused because it is

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 19 of 49
the same jhaba with which the accused is selling the Dal to the customers and hence

whether the Jhaba got coloured while lying in the bag containing the sample

commodity i.e. Dal or the Dal/sample commodity got coloured because of the Jhaba is

immaterial/does not make a difference because the fact remains that on analysis Dal

was found coloured/adulterated. The Act has been enacted for the protection of the

customers/consumers and if the Food Inspector uses the Jhaba lying in the gunny bag

containing the commodity of which the sample is lifted and the sample when sent for

analysis is found adulterated then the accused/vendor cannot agitate that the jhaba

was not cleaned before the sample was lifted because the very fact that the jhaba was

lying in the bag containing the sample commodity proves that he was using the same

Jhaba for selling the sample/dal to the customers. Two different standards cannot

apply i.e. one for the customer or the consumer and the other for the Food Inspector.

Hence I am of the opinion that proper sampling proceedings were adopted by the FI

for lifting the sample of Dal Arhar.

Homogenization / Mixing of Sample.

42 It was also one of the arguments of the Ld. defence counsel that the

sample was not properly mixed / homogenized at the time when it was lifted which is

itself a violation of Rule 14.

43. However, I find no merits in the contention of the Ld. defence counsel.

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 20 of 49
Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food

Inspector and the other complainant witnesses as discussed above that the sample

was taken after homogenizing it by mixing/ rotating the Dal thoroughly in all possible

directions several times with the help of a Jhaba. During the cross examination of the

prosecution witnesses not even a single suggestion was given to either of them that

the sample was not lifted after proper mixing/ homogenization accordingly, I have no

reasons to disbelieve the Food Inspector or the other complainant witnesses in this

regard. Secondly, there is no requirement either under the Act or the Rules appended

therein to homogenize the sample before lifting it.

44. Thirdly, there was no requirement of mixing or making the sample i.e.

Dal Arhar homogenized as such in view of the law laid down in Dhian Chand Vs.

State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as

under:

"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

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 21 of 49
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."

45. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full

Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food

inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.

46. In the case at hand sale to Food Inspector stands proved. The Food

Inspector categorically proved that he had made a payment of Rs. 19.50/ to the

accused/vendor towards the purchase of sample commodity. In this regard vendor's

receipt Ex. PW1/A was executed which bears the signature of accused at point A. The

testimony of the Food Inspector has gone unrebutted on this material particular. The

testimony of the SDM/LHA as well as the other FI which is on the same lines have also

remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The

CC No. 153/02
DA Vs. Satish Kumar Gupta Page 22 of 49
food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC

(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of

an article of food, which is found to be adulterated, the accused will be guilty of an

offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD

Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court

of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.

State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals

were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis 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 CC No. 153/02 DA Vs. Satish Kumar Gupta Page 23 of 49 usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".

47. 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 CC No. 153/02 DA Vs. Satish Kumar Gupta Page 24 of 49 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."

48. 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.

49. 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."

50. 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."

CC No. 153/02 DA Vs. Satish Kumar Gupta Page 25 of 49

51. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be 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. PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.

52. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not CC No. 153/02 DA Vs. Satish Kumar Gupta Page 26 of 49 supplied/delivered to the accused and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and State Vs. Subhash Chand 2012 (II) JCC 1004.

53. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 16.11.2002 and the next date of hearing before the court was 01.09.2003. However in between the dates of hearing i.e. on 09.12.2002 the accused appeared before the Ld. Predecessor of this court as he had moved an application for bail. It is reflected in proceedings dated 09.12.2002 as under: "On the application of the accused, he is admitted to bail.......... There is no application u/s 13 (2) of the PFA Act. Thus it seems that accused does not want to exercise his right. List on 01.09.2003 for pre charge evidence".

54. Therefore in the case at hand the accused voluntarily did not exercise his right u/s 13 (2) PFA Act. Once he himself does not exercise the right u/s 13(2) PFA Act he cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.

CC No. 153/02 DA Vs. Satish Kumar Gupta Page 27 of 49

55. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".

56. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:

"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."

57. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:

"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."

58. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no CC No. 153/02 DA Vs. Satish Kumar Gupta Page 28 of 49 sample was sent to Director, CFL, the petitioner can make no grievance.

59. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.

60. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director. "

61. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under:

".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right."

62. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:

"The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised CC No. 153/02 DA Vs. Satish Kumar Gupta Page 29 of 49 by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........

63. Therefore denial of statutory right to him was because of his own volition.

64. As far as the service of the intimation letter and the PA report to the accused is concerned firstly as discussed above the accused voluntarily did not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon him or not looses much of its significance. Secondly, PW1 FI V.P.S. Choudhary as well as PW2 SDM/LHA Sh. Vijay Khanna categorically deposed that the intimation letter along with PA's report was sent to the accused by registered post vide Ex. PW1/L and M. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to the accused by registered post. Their testimony having remained unchallenged I have no reasons no disbelieve them or to agree to the defence contentions that no report was received by the accused. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:

"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether CC No. 153/02 DA Vs. Satish Kumar Gupta Page 30 of 49 it was sent by registered post or otherwise does not assume importance".

65. Thirdly, section 114 of the Evidence Act and the presumption which Section 114 raises has been discussed above. Clause (f) of Section 114 reads as under:

"That the common course of business had been followed in particular cases"

66. It is now well settled that sending by post, means sending by post to the addressees proper address. Where a notice has to be served through post, all that a sender can do to comply with the provisions is to post the prepaid registered letter containing addressees correct address. Once he does this and the letter is delivered to the post office, he has no control over it. In that event, under Section 27 of the General Clauses Act, the letter shall be presumed to have been delivered to the addressee. There is no obligation upon the sender to prove the service of notice upon the addressee if he send the notice by registered post, properly addressed. Where a letter is sent under certificate of posting a presumption arises under Section 114 of the Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P. Rama Reddy, 2003(3) Andh. LT 120 (AP)]

67. Once the evidence discloses that the letter was addressed at a proper address by registered post then unless it is rebutted or the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course CC No. 153/02 DA Vs. Satish Kumar Gupta Page 31 of 49 of post it is presumed that there is a proper service. If the addressee either can not be met or refused to take delivery there appears to be no reason why the letter should not be considered as properly served upon the addressee ( State Vs. Bhag Chand Sadhu Mal, 1999 (3) Guj. LR 2220.)

68. In the absence of anything indicating that such letters were not posted or concocted the presumption under Section 114 (f) comes into play (Vandavasi Kartikaya Vs. S. Kamalanna, A 1994 AP 102).

69. A bare denial with no reliable evidence is not sufficient to rebut the presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial without reliable evidence, without further rebuttal, the presumption continues [Fazal Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].

70. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the prosecution did not prove any postal acknowledgment signed by the accused to prove about the service of copy of the report of the Public Analyst which had been sent by registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300 the court held as under:

"In the present case the petitioner in his examination under section 313 Cr. P.C has merely denied to have received the copy of the report of the Public Anlayst. However, no evidence has been adduced on behalf of the accused persons to rebut the presumption available under the General Clauses Act as well as Section 114 of the Evidence Act. As observed by the Division Bench of this Court, when it is proved CC No. 153/02 DA Vs. Satish Kumar Gupta Page 32 of 49 that registered letter has been posted after being duly stamped in the address of a person, a presumption arises that such letter must have been served on the addressee. The evidence adduced on behalf of the prosecution to the effect that the report of the Public Analyst had been posted by registered post as per the postal receipt has not been successfully challenged by the petitioner in any manner in cross examination. The mere denial of the accused in his statement under Section 313, Code of Criminal Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act.".

71. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it was held "admittedly there is presumption in law that a communication sent by post on the correct address of the addressee is presumed to have been received by him if it is not received back by the sender."

72. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:

"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act.".

73. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held as under:

"Once a notice is sent by registered post in the correct address no burden is cast upon the sender or the postman to arrange that notice to be served upon the addressee. If CC No. 153/02 DA Vs. Satish Kumar Gupta Page 33 of 49 a letter is posted prepaid and registered with a acknowledgment due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the letter is delivered to the addressee.".

74. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sender as unserved.".

75. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held that prosecution is not required to prove that the applicant has acknowledged the copy of the Public Analyst's Report.

76. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was observed as under:

"The mere denial of the accused in his statement under Section 313, Code of Criminal Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act."

77. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that where extract of the relevant entries in the register maintained in the office also indicated that the notice under section 13(2) of the Act alongwith the report of the Public Analyst was sent to the applicant by registered post on the address available on record and it is not the contention that the accused / addressee / vendor did not reside at the address on which the notice was sent then "The mere fact, that A/D receipt was CC No. 153/02 DA Vs. Satish Kumar Gupta Page 34 of 49 not filed or received back, was not sufficient to rebut or dislodge the presumption of service of notice sent by registered post in absence of any evidence to the contrary.". Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex Court has held "the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. This principle was propounded keeping in view the provisions of section 27 of the General Clauses Act."

78. In the case at hand in view of categorical deposition of the Food Inspector and the SDM/LHA coupled with Ex. PW1/L and M as discussed above a presumption tenable in the eyes of law can be drawn that the PA's report along with intimation letter was duly delivered upon/received by the accused/the vendor. The address appearing on Ex. PW1/L and M is the same address on which summons were issued by the court for appearance of the accused on 01.09.2003. However as discussed above the accused appeared in between the dates i.e. on 09.12.2002 which proves that summons were duly served upon him. If the summons were duly served upon him I find no reasons why the intimation letter along with the PA's report posted on the same address (both residence as well as the shop address) would not be received by him. The address appearing on Ex. PW1/L and M is the same address as appearing in the complaint as well as on the summons. It is not the defence case that the address is incorrect. Furthermore the fact that the accused appeared on CC No. 153/02 DA Vs. Satish Kumar Gupta Page 35 of 49 09.12.2002 proves that the intimation letter was duly served upon him or else he would have appeared only on 01.09.2003 i.e. date meant for his appearance and not earlier i.e. 09.12.2002. Nonetheless nothing stopped the accused from moving the application on 09.12.2002 i.e. when he first filed his appearance or any time later on within the prescribed time.

Use of colour.

79. 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 State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

80. 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. 153/02 DA Vs. Satish Kumar Gupta Page 36 of 49

"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) ".

81. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:

" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the CC No. 153/02 DA Vs. Satish Kumar Gupta Page 37 of 49 Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".

82. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.

83. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:

"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)

(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after CC No. 153/02 DA Vs. Satish Kumar Gupta Page 38 of 49 consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.

84. 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.".

85. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:

"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".

CC No. 153/02 DA Vs. Satish Kumar Gupta Page 39 of 49

86. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health". Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:

"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act.

AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".

CC No. 153/02 DA Vs. Satish Kumar Gupta Page 40 of 49

87. 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.".

88. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

89. 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 which deals with adulteration of Dal on account of presence of synthetic colouring matter. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

CC No. 153/02 DA Vs. Satish Kumar Gupta Page 41 of 49

90. 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.

Percentage of colour

91. It was further argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261, State Vs. Parkash 1980 (II) FAC 109 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 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 CC No. 153/02 DA Vs. Satish Kumar Gupta Page 42 of 49 Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis. Warranty

92. 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/retailer had purchased the article from M/s M.B. Traders 4156, Naya Bazar vide bill Ex. DA and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued on behalf of accused that he had purchased the article from the above manufacturer / dealer 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.

93. 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 / CC No. 153/02 DA Vs. Satish Kumar Gupta Page 43 of 49 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.

94. 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.

95. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should CC No. 153/02 DA Vs. Satish Kumar Gupta Page 44 of 49 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."

96. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.

97. In the case at hand, benefit of warranty cannot be granted to the accused for numerous reasons. Firstly, the genuineness/ authenticity of the claim of the accused of having purchased Dal from M/s M.B. Traders could not be established. The bill could not be proved as per the Rules of evidence. The executor/signatory of the bill was never produced in the court. The bill admittedly does not bear the signatures/handwriting of the accused. In fact the column at the bottom of the bill regarding the signatures of the purchaser is blank. The accused did not examine either CC No. 153/02 DA Vs. Satish Kumar Gupta Page 45 of 49 the proprietor of M/s M.B. Traders or the executor of the bill. Hence the genuineness of the bills remains doubtful. I also find no merits in his arguments that the Food Inspector failed to accept the bill at the time of sampling. It is to be seen that the SDM/LHA was also present at the spot and it was under his supervision that the sample was lifted. If the FI refused to accept the bill the accused could have handed over it to the SDM/LHA. As discussed I find no reasons why they would refuse to accept the bill and falsely implicate the accused. Furthermore if they had indeed refused to accept the bill nothing stopped the accused from sending the bill to them by post or to the Director PFA along with the complaint that FI had refused to accept the bill. Accused did not do either of above which itself proves that he was making false claims. Secondly, it is not disputed that when the sample of Dal was lifted it was lifted from an open gunny bag. Hence even if it is assumed that the accused had purchased the Dal from M/s M.B. Traders (though not proved by the accused) still he is not entitled to warranty as the accused could not prove that he had stored the Dal in the same condition in which he had purchased it. To claim the benefit of warranty, 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 further that they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. 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 CC No. 153/02 DA Vs. Satish Kumar Gupta Page 46 of 49 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/condition in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the manufacturer/supplier who no longer has control over the articles so sold. In the case at hand the accused claims to have purchased 100 Kg of Dal vide bill Ex. DA however it stands established from the consistent deposition of the prosecution witnesses that when they lifted the sample there was only 20 Kg of Dal lying in the gunny bag having a capacity of 35 Kg only. Hence the Dal even if it was purchased vide bill Ex. DA, CC No. 153/02 DA Vs. Satish Kumar Gupta Page 47 of 49 which otherwise accused could not prove, still it having not being stored in the same condition as was purchased no benefit of warranty can be given to the accused. Thirdly, it is reflected at the bottom of the bill as "Bhool chuk leni deni, maal tulne ke baad saari jimedari khariddar ki hogi". Hence no warranty in respect of the goods sold was extended vide the above bill, therefore accused cannot claim the same as he purchased the same (if indeed he did) at his own peril.

PA's report

98. In the case at hand the accused did not exercise his right as envisaged u/s 13 (2). It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.

In the case at hand PA vide her report Ex PW/1/G found Tartrazine in the sample of the Dal Arhar which is not permitted/ is in violation of Rule 23, 28 and 29. There is nothing on record to doubt her report and the defence has failed to contradict the same.

99. In view of my above discussion, as colour tartrazine was found by the PA in the sample of Dal Arhar so analysed which is not permitted under / is in violation of CC No. 153/02 DA Vs. Satish Kumar Gupta Page 48 of 49 Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954.

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

Announced in the open Court                                   (Gaurav Rao)
on 9th February 2015                                      ACMMII/ New Delhi




CC No.  153/02
DA  Vs. Satish Kumar Gupta                                                     Page 49 of 49

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Da vs . Satish Kumar Gupta Page 1 Of 49 on 9 February, 2015