Delhi District Court
Da vs . Subodh Kumar Page 1 Of 62 on 12 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 292/03
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Subodh Kumar S/o Sh. R. S. Yadav
M/s B. K. Dhaba,
Shop No. 4, Race Course Club, New Delhi110003
R/o 12/7, Railway Colony,
Near Sarojani Nagar, New Delhi.
........ VendorcumProprietor
Serial number of the case : 292/03
Date of the commission of the offence : 25.04.2003
Date of filing of the complaint : 04.08.2003
Name of the Complainant : Sh. D. P. Singh, Food Inspector
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Offence complained of or proved : Section 2 (ia) (a) (b) (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 PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 12.08.2014
Judgment announced on : 12.08.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 25.04.2003 at about 03.00
p.m., Food Inspector Sh. D. P. Singh along with FA Sh. Partap Raj and other official
of PFA Department under the supervision and directions of SDM/LHA Sh. S. M. Haider
visited M/s B. K. Dhaba, Shop No. 04, Race Course Club, New Delhi where accused
Subodh Kumar who was the vendorcumproprietor was found present conducting the
business of various food articles including Dal Arhar ready for sale for human
consumption and in compliance of the provisions of the Prevention of Food
Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as the Act & Rules) the Food Inspector collected/purchased the
sample of Dal Arhar.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was adulterated
because it was found "coloured with synthetic colour matter viz. Tartrazine" and
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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) (b) (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 04.08.2003. The accused after filing his appearance moved an application
under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample
from Central Food Laboratory and consequent thereto second counterpart of the
sample as per the choice of the accused was sent to Director, CFL (Pune) for its
analysis vide orders dated 05.09.2003. The Director, CFL after analysing the sample
opined vide its Certificate dated 07.10.2003 that "sample does not conform to the
standards of split pulse (Dal) Arhar as per PFA Rules 1955 ". The Director so opined
as the sample was found containing synthetic food colour Tartrazine though as per
Rules/standards it ought to have been free from any colouring matter.
4. In pre charge evidence, the prosecution examined one witness i.e. Food
Inspector D. P. Singh as PW1 pre charge evidence was closed vide order dated
02.09.2009.
5. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954, punishable U/s 16 (1A) r/w section 7 of the Act was framed against the
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accused vide order dated 27.11.2009 to which accused pleaded not guilty and claimed
trial.
6. In the post charge evidence the prosecution examined two witnesses,
namely, Sh. S. M. Haider, the then SDM/LHA as PW2 and Sh. Partap Raj and Field
Assistant as PW3. PW1 Sh. D. P. Singh could not be cross examined after the
framing of the charge as he expired during the course of the proceedings.
7. PE was closed vide order dated 06.06.2012. Statement of the accused
U/s 313 Cr. P.C. was recorded on 28.09.2012 wherein the accused claimed himself to
be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Sh. D. P. Singh has deposed that on 25.04.2003 he along with FA
Partap Raj and other officials of the PFA department under the supervision and
directions of SDM/LHA Sh. S. M. Haider visited the premises of M/s B. K. Dhaba,
Shop No. 4, Race Course Club, New Delhi, where accused Subodh Kumar was found
conducting the business of the Dhaba stored Dal Arhar for use in preparation of food
articles, for sale for human consumption. He deposed that he disclosed his identity
and intention for taking the sample of Dal Arhar (ready for use), for analysis lying in an
open gunny bag bearing no label declaration, to which accused agreed. He deposed
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that before taking the sample he tried his best to procure some public witnesses by
requesting some neighborers, customers and passersby to join the sample
proceedings but as none agreed on his request FA Partap Raj, agreed and joined as
witness. He deposed that at about 03.00 pm, he purchased approximate 1500 gms of
Dal Arhar (ready for use) taken from a open gunny bag having no label declaration,
after mixing it with the help of clean and dry jhaba by rotating it in all possible
directions several times and a payment of Rs. 45/ was offered but the same was not
accepted by the vendor while making the endorsement that Dal Arhar is not for sale as
such but same is sold after cooking. He deposed that then and there he divided the
so purchase sample into three equal parts and put them in three clean and dry glass
bottles and same were separately packed, marked, fastened and sealed according to
PFA Act and Rules and pasted the LHA slip bearing his code number and signature
from top to bottom on all the three bottles and signatures of the vendor obtained in
such a manner that partly appeared on the LHA Slip and partly on the wrapper. He
deposed that Notice in Form VI Ex. PW1/B was prepared and a copy was given to the
accused as per his endorsement at portion A to A bearing his signature at point A. He
deposed that vendor also made endorsement that he purchased the Dal Arhar from
M/s Manjeet Floor Mills, 60, Netaji Nagar Market, New Delhi vide Cash Memo No. 273
dated 19.04.03. He further deposed that a Notice u/s 14A Ex. PW1/D addressing to
M/s Manjeet Floor Mills, 60, Netaji Nagar Market, New Delhi was prepared at the spot
and sent the same on the next working day through registered post. He deposed that
panchnama Ex. PW1/C was prepared, however later on vendor vide a letter Ex.
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PW1/D1 stated that he wrongly disclosed the wrong source of purchase and he
purchased the Dal Arhar from unknown person from whom no bill was provided to him.
He deposed that M/s Manjeet Floor Mills also gave reply under Section 14A Ex.
PW1/D2 that they had not supplied the Dal Arhar to the vendor. He deposed that all
these documents Ex. PW1/A to Ex. PW1/D were read over and explained to the
accused in Hindi and after he understood the same, accused signed at point A ,
witness signed at point B and he signed at point C, respectively. He deposed that
one counter parts of the sample in intact condition was deposited with the PA on
28.04.03 i.e next working day vide receipt Ex. PW1/E and a Memo VII in a sealed
packet separately. He deposed that all the copies of memo in Form VII bear the seal
impression with which sample were sealed. He deposed that the remaining two
counter parts of sample in intact condition along with two copies of Memo of Form VII
in a sealed packet were deposited with the LHA on 28.04.03 i.e. next working day vide
receipt Ex. PW1/F bearing his signature at point A and the signatory of LHA at point B
with the intimation that one counter part of the sample in intact condition has already
been deposited with the PA. He deposed that all the copies of Memo of Form VII were
marked with the impression of seal which was used to seal the sample counter parts.
He deposed that PA report i.e. Ex. PW1/G was received according to which sample
was found adulterated being coloured with synthetic colouring matter Tartrazine, as
mentioned therein at portion X. He further deposed that he investigated the matter by
sending letter Ex. PW1/H to STO, Ward No. 99 and received reply at portion A
according to which no such firm was found registered with Sales Tax. He deposed
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that vendor also furnished his statement Ex. PW1/I that he is Incharge and responsible
for day to day affairs of M/s B. K. Dhaba, Shop No. 4, Race Course Club, New Delhi
and his Dhaba is not registered with Sales Tax. He deposed that after completion of
the investigation, the complete case file along with all the statutory documents were
sent to the Director Sh. S. L. Bansal through LHA, who after going through the entire
case file, applied his mind and gave the sanction for prosecution Ex. PW1/J against
the accused. He deposed that he identified the signature of Sh. S. L. Bansal at point A
on Ex. PW1/J being conversant with his writing and signatures during his official
course of duties. He deposed that the complaint Ex. PW1/K was filed in Court by him
bearing his signatures at point A. He deposed that the intimation letter along with the
PA report was sent to the accused by registered post through the LHA bearing his
signature at point A which was not received back undelivered.
9. During his cross examination he admitted that he tried to associate the
public witness but this fact is not mentioned in the Panchnama Ex. PW1/C. He
voluntarily stated that he mentioned the same in the report under Rule 9(e). He stated
that Dal Arhar was divided by putting on a paper which is used for packing. He stated
that jhaba was already clean and dry and the 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 the company used to provide
the bottles after making the same clean as per office' order but the same was not
made clean in his presence. He admitted that he had refreshed his memory after
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going through the judicial record. He stated that file was sent for consent through LHA
Sh. S. M. Haider. He admitted that consenting authority had not signed the consent in
his presence. He stated that he cannot say that the Tartrazine is one of the permitted
colour under the PFA Rules in certain food articles. He stated that he cannot say
whether the Tartrazine is not injurious to health. He stated that he does not know
whether the Dal is usually cooked after washing.
10. PW2 Sh. S. M. Haider, Retired Registrar and PW3 FA Sh. Pratap Raj
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.
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
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witnesses especially Food Inspector Sh. D.P. Singh coupled with the report of the
Director dated 07.10.03 that accused Subodh Kumar was indeed found selling Dal
Arhar which was adulterated as it was coloured with synthetic colour viz. Tartrazine.
15. The star / the material witness of the prosecution i.e. Food Inspector Sh.
D. P. Singh categorically proved the sample proceedings dated 25.04.03 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 28.09.2012 which are admissible in evidence against the accused in view of
sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas
Vs. Food Inspector, Kochi 2008 (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
document Ex. PW1/I, which is in handwriting of accused and bears his signatures, no
doubt remains that the sample of Dal Arhar was indeed collected by the Food
Inspector for analysis from M/s B. K. Dhaba of which the accused is the proprietor cum
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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
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
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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.
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,
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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
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
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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 D. P.
Singh made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
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 or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
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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, the paper bag used for measuring the Dal as well as the
instrument i.e. jhaba with which the sample was poured in the bottles. It was argued
that the colour was already sticking to the Jhaba, the paper bag and the sample
bottles and it was this colour which was detected by the Director. It was argued that
Rule 14 of the Act is mandatory and not directory and in case there is no strict
adherence to Rule 14, benefit has to be given to the accused. Reliance was placed on
the law laid down in State of Gujarat Vs. Harumal Retumal and others 2008 FAJ
292 (Guj), Koyakutty Vs. Food Inspector 2000 (2) FAC 238 and Shew Chander
Mathur and anr Vs. State of Assam and anr., 1991 (1) FAC 9.
25. However I differ with the contentions as raised by the Ld. defence
counsel.
26. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
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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. D. P. Singh who
was examined as PW1. The Food Inspector deposed as under:
"...I purchased approximate 1500 gms of Dal Arhar (ready for use) taken
from a open gunny bag having no label declaration, after mixing it with the help of
clean and dry Jhaba by rotating it in all possible directions several times.............then
and there I divided the so purchased sample into three equal parts and put them in
three clean and dry glass bottles and same were separately packed, marked, fastened
and sealed according to PFA Act and Rules..."
28. During his cross examination he stated as under:
"...Jhaba was already clean and dry and the 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...".
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29. Similarly PW2 Sh. S. M. Haider, Retired Registrar deposed as under:
"...Before taking the sample, the Dal Arhar was properly mixed with the
help of clean and dry JHABA in the said gunny bag. The so purchased sample of Dal
Arhar was divided then and there into 3 equal parts by FI by putting it in three clean
and dry glass bottles and all the three sample bottles containing Dal Arhar were
separately packed, fastened, marked and sealed according to PFA Act and Rules..."
30. PW3 FA Sh. Partap Raj deposed as under:
" Before taking the sample, Dal Arhar was properly mixed 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 counterparts, by putting it
into three clean and dry sample glass bottles. All the three sample bottles were
separately marked, fastened and sealed after affixing Paper Slips, bearing signature
and code number of SDM/LHA..."
31. It will be worthwhile to note that no suggestion whatsoever was given to
either of the above two witnesses that the jhaba or the sample bottles were not clean
and dry or that some colour was sticking to them. Their testimony has thus gone
unrebutted on these material particulars.
32. Hence the prosecution witnesses consistently deposed regarding the
jhaba, the paper bag as well as the sample bottles being clean and dry. From their
deposition/statement no doubt remains that the sample proceedings were conducted
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in a proper manner and that the sample bottles, paper bag 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 SDM 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:
" 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
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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
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.
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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.
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
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Food Inspector."
Discrepancies
41. It was argued by Ld. Defence counsel that there is a major discrepancy
in the deposition of Food Inspector i.e. PW1 and PW2 i.e SDM/LHA S. M. Haider qua
the sample proceedings. It was argued that the FI had claimed that the jhaba was
already clean and dry and accordingly same was not made clean and dry at the spot
again. On the other hand, SDM/LHA claimed that the jhaba was clean by the FI with
the help of a dry cloth. The Ld. Defence counsel argued that this discrepancy itself
prove that the prosecution witnesses were deposing falsely and sample proceedings
were bad and there was violation of Rule 14. Reliance was placed on the law laid
down in AIR 2001 SC 3976 and 2012 (1) FAC 384.
42. No doubt the Ld. Defence counsel pointed out the above discrepancy in
the deposition of PW1 and PW2 however the discrepancy as pointed out by Ld.
Defence counsel is too trivial in nature to be given any weightage. The discrepancy
as above is natural and bound to occur on account of passage of time and lapse of
memory. Human memories are apt to blur with passage of time. The sample was lifted
in the year 2003 and the deposition/cross examination of witnesses were recorded in
the year 2009 and 2010 i.e. after a gap of around 67 years. After such a long time
period a person cannot be expected to give a parrot like version or depose with
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mathematical precision. Only a tutored witness can depose so. Error due to lapse of
time/lapse of memory have to be given due weightage/ due allowance.
43. By and large a witness cannot be expected to possess a photographic
memory and to recall the minute details of an incident. It is not as if a video tape is
replayed on the mental screen. By and large people cannot accurately recall a
conversation and reproduce the very words used by them or heard by them. They can
only recall the main purport of the conversation. It is unrealistic to expect a witness to
be a human tape recorder. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up when interrogated later on.
A witness, though wholly truthful, is liable to be overawed by the court atmosphere and
the piercing cross examination made by counsel and out of nervousness mix up facts,
get confused regarding sequence of events, or fill up details from imagination on the
spur of the moment. The subconscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being disbelieved though the witness is
giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is
a sort of a psychological defence mechanism activated on the spur of the moment.
Reliance may be placed upon the observations made by the Hon'ble Apex Court in
case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.
Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State
of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.
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State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972
SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
44. The law is well settled that discrepancies which do not go to the root of
the matter and shake the basic version of the witnesses cannot be annexed with un
due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable
evidence. One cannot come across a witness whose evidence does not contain some
exaggeration or embellishments. Sometimes there could even be a deliberate attempt
to offer embellishment and sometime in their overanxiety they may give slightly exag
gerated account. Court can sift the chaff from corn and find out truth from the testimo
ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this
element is satisfied they ought to inspire confidence in mind of the court.
45. Moreover, officials like Food Inspector and the SDM/LHA are involved in
collecting samples/witnessing sample proceedings almost daily and sometimes more
than one sample is collected in a day. During their stint as Food Inspector and
SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the
facts being mixed up due to passage of time. Same has to be given due allowance. In
case at hand the discrepancy as discussed above does not effect the prosecution sto
ry at all. It does not render it unreliable or untrustworthy. The fact remains that a
clean and dry jhaba was used for the purpose of sample. No suggestion was given to
the SDM/LHA or for that matter to the FA that the jhaba was not clean or that some
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colour was sticking to it. The defence could not impeach the credit of the prosecution
witnesses and I find no reasons to disbelieve them.
46. Though Ld. Defence counsel had also argued that testimony of PW1 ie.
Food Inspector D.P. Singh cannot be read in evidence against the accused as the wit
ness was not available for cross examination after charge. However I find no merits in
the same. Record reveals that the Food Inspector was examined and cross examined
at length as PW1 vide proceedings dated 02.09.2009. Thereafter the charges were
framed on 27.11.2009. No doubt after framing of charge the witness could not be
brought to the witness box however same was on account of his death. Thus it was
only on account of his death that PW1 Sh. D.P. Singh could not be made available to
the defence for cross examination and accordingly in view of Section 33 of the Indian
Evidence Act, 1972 the testimony of PW1 is fully, completely and legally admissible in
evidence. Reliance may be placed upon the law laid down in State of Sikkim Vs.
Pemba Shepa, 1981, Cri. LJ 856 and Nand Ram Vs. State of Madhya Pradesh
1995 FAJ 1 (MP). Moreover the prosecution has squarely proved his case indepen
dent of the testimony of PW1.
Homogenization / Mixing of Sample.
47. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted and
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accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there is variations in the report of Public
Analyst and Director, CFL. For example the moisture content in the sample was
detected by the PA as 7.69% whereas the Director found the same to be 9.70%. It
was argued that this variation proves that the sample were not representative.
Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs.
Rama Ratan Malhotra 2012 (2) FAC 2012.
48. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the Food Inspector and the other
complainant witnesses as discussed above that the sample was taken after mixing/
rotating the Dal thoroughly in all possible directions several times with the help of a
Jhaba. Not even a single suggestion was given to any of the prosecution witnesses
that the dal was not properly mixed before lifting the sample of the same. Their
testimony has thus remained unchallenged/unrebutted on this material aspect and I
have no reasons to disbelieve the Food Inspector or the other complainant witnesses
in this regard. Secondly, there is no requirement of homogenization or making the
sample representative prior to its lifting either under the Act or the Rules appended
therein.
49. 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.
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State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."
50. 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
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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.
51. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had offered/tendered a payment of Rs. 45/ to
the accused/vendor towards the purchase of sample commodity however, the vendor
refused to accept the same and instead made a endorsement on the vendor's receipt
i.e Ex. PW1/A. It is not disputed that the sample was lifted by FI for analysis. Hence
sale to FI stands proved. The Hon. Apex Court in The 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 CC No. 292/03 DA Vs. Subodh Kumar Page 26 of 62 is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream 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".
52. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 27 of 62 Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
53. 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.
54. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 28 of 62 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."
55. 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."
56. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 29 of 62 defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations.
57. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same. No question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.
58. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%. CC No. 292/03 DA Vs. Subodh Kumar Page 30 of 62
59. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.
60. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"
61. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:
"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts CC No. 292/03 DA Vs. Subodh Kumar Page 31 of 62 stated therein regarding the sample concerned".
62. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.
63. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:
".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.
9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."
64. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a CC No. 292/03 DA Vs. Subodh Kumar Page 32 of 62 variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
65. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".
66. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant CC No. 292/03 DA Vs. Subodh Kumar Page 33 of 62 Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
67. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held CC No. 292/03 DA Vs. Subodh Kumar Page 34 of 62 that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
68. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:
"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".CC No. 292/03 DA Vs. Subodh Kumar Page 35 of 62
69. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".
70. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
71. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:
"in the instant case whereas the public analyst found the presence of milk fat to the CC No. 292/03 DA Vs. Subodh Kumar Page 36 of 62 extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only.".
72. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:
"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".
73. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."
74. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the CC No. 292/03 DA Vs. Subodh Kumar Page 37 of 62 Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
75. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:
"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".
76. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
77. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".CC No. 292/03 DA Vs. Subodh Kumar Page 38 of 62
78. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
79. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:
"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".
80. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.CC No. 292/03 DA Vs. Subodh Kumar Page 39 of 62
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
81. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law CC No. 292/03 DA Vs. Subodh Kumar Page 40 of 62 for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
82. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:
"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.
83. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.
84. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. CC No. 292/03 DA Vs. Subodh Kumar Page 41 of 62 Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
85. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
86. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make CC No. 292/03 DA Vs. Subodh Kumar Page 42 of 62 such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
87. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by CC No. 292/03 DA Vs. Subodh Kumar Page 43 of 62 the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.
88. It is also to be seen that the variation in the two reports is only in respect of the moisture content in the sample bottles/food articles stored in the sample bottles. It is to be seen that the sample conformed to the standard of moisture both in the analysis by the PA as well as by the Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the moisture content becomes insignificant. Furthermore Ld. SPP rightly pointed out that the analysis by the PA was done in the month of May 2003 whereas the sample was analyzed by the Director in the month of October 2003. The temperature, the humidity, moisture etc. is drastically different in May and October. Even in an absolutely air tight bottle, the temperature in the bottle/moisture in the bottle containing food grain/Dal will have a change on account of the outside temperature, pressure, moisture etc. as it is a natural phenomenon.
CC No. 292/03 DA Vs. Subodh Kumar Page 44 of 62
89. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Use of colour.
90. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 45 of 62 though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.
91. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:
"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in 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 CC No. 292/03 DA Vs. Subodh Kumar Page 46 of 62 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) ".
92. 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 permissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the 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.".
93. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 47 of 62 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.
94. 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 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.
95. Regarding the defence plea that the addition of the colour did not make the Dal 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:
CC No. 292/03 DA Vs. Subodh Kumar Page 48 of 62
" 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.".
96. 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".
97. 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. 292/03 DA Vs. Subodh Kumar Page 49 of 62
98. 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 recognized by law has been used for mixing.".
99. 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.
100. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.
101. 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 CC No. 292/03 DA Vs. Subodh Kumar Page 50 of 62 presence of the said colour would make it an offence.
Paper Chromatography Test.
102. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09.CC No. 292/03 DA Vs. Subodh Kumar Page 51 of 62
If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:
"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act."
19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."
Percentage of colour
103. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as CC No. 292/03 DA Vs. Subodh Kumar Page 52 of 62 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 Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.
Sale
104. It was also one of the arguments of the Ld. Defence counsel that accused was running a dhaba and the Dal as such was not being sold but it was to be sold only after preparation of the Dal/ after it was being cooked. It was argued that it was made known to the Food Inspector that the Dal was not meant for direct sale hence the accused cannot be held guilty.
CC No. 292/03 DA Vs. Subodh Kumar Page 53 of 62
105. However, I do not agree with the contentions of Ld. Defence counsel. Firstly, as discussed above in detail the sale to FI stands proved. Sale to Food Inspector is a sale within the definition of section 2 of the Act and if the article so sold is found to be adulterated then offence under the PFA Act, 1954 is made out as held by the Hon. Apex Court in Santana Sahu Vs. State of Orissa 19481997 FAC (SC) 1069 and The State of Tamilnadu vs. R. Krishnamurthy, 1980 (1) FAC 7. Reliance may be placed upon the judgments of Hon. Apex Court in The food Inspector, Calicut Corporation vs. C. Gopalan & another, 1972 FAC 9, Mangal Dass Reghavji Ruparel Vs. State of Maharashtra 1965 2 SCR 894, The Public Prosecutor Vs. Palanisami Nadar AIR 1965 Mad. 8,, Mohammad Yamin Vs. The State of Uttar Pradesh, 1972 FAC 375 and Ram Labhaya Vs. Municipal Corporation of Delhi 1974 FAC 102.
106. Secondly, no suggestion was given to any of the prosecution witnesses during their cross examination that the Dal was not meant for sale as such or that it was only to be sold after cooking/preparation. The FI categorically stated that the Dal was ready for sale.
107. Thirdly, even for arguments sake the contentions of the Ld. Defence counsel are admitted to be correct i.e. that the dal was meant for sale only after cooking still it does not come to the rescue of the accused. In Mohd. Yamin Vs. CC No. 292/03 DA Vs. Subodh Kumar Page 54 of 62 State of UP, 19481997 FAC (SC) 280 the Hon. Apex Court held "That if shakkar is an article of food, it does not matter whether the Appellant kept it for sale or for manufacturing rab out of it........A Sale to the Food Inspector is a sale for the purpose of Section 16 of the Act".
108. In MCD Vs. Kewal Ram 1975 FAC 335, the Division Bench of the Hon'ble High Court of Delhi held that butter kept at the bakery not for sale as such but for use in preparation of bakery products still offence under Section 7/16 of the Prevention of Food Adulteration Act has been committed because "food" as defined by the Prevention of Food Adulteration Act has a very wide connotation and covers any article used as food and every component which enters into it. Reliance may also be placed upon M/s P.K. Tejani Vs. M.R. Dange, 1974 FAC 74.
109. In MCD Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court of Delhi held that "where a sample of butter was taken from a Halwai who did not sell butter as such but kept it for use in the preparation of samosas and the butter was found adulterated it was held that "if the butter of which sample was taken can be regarded to be adulterated, then the vendor will have to be held guilty of selling an adulterated article of food to the Food Inspector even though the butter was kept not for sale but was to be used in preparing samosas to be sold to customers.".
It was further held in para 7 that "As was laid down by a Full Bench of this Court in Madan Lal Vs. State (1972 F.A.C. 481) it would not make any difference even if the CC No. 292/03 DA Vs. Subodh Kumar Page 55 of 62 vendor was not a dealer in the article of which sample was taken, if the article was to be used in preparation of any other article which would have been then sold to customers. In that connection, the following observations were made: "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. The position will be the same even if the respondents were not dealers in toned milk as such but were using the toned milk in the preparation of tea or coffee which they were selling to the customers.".
110. In MCD Vs. Ajit Pershad, 1975 (2) FAC 60, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:
"The fact that paneer of which sample was taken was not meant for sale in that very form but was to be used for preparation of sweets and could not make any difference when the sweets so prepared would have been sold at the shop.".
111. In MCD Vs. Moti Ram & Anr. 1975 (2) FAC 41, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:
"The Ghee used, therefore, did not conform to the prescribed standard and the quality or purity of the Ghee used in the preparation of the AluTikkis greatly fell below the prescribed standard. The AluTikkis sold by Moti Ram have, therefore, to be regarded to be adulterated under clause (1) of section 2(i) of the Prevention of Food Adulteration Act."
112. In NDMC Vs. Shri Hardev Singh 1980 (1) FAC 472, a sample of Atta was lifted from a restaurant and Atta as such was not meant for sale but only the chapattis were sold. It was held that the Food Inspector has power to collect the same. CC No. 292/03 DA Vs. Subodh Kumar Page 56 of 62
113. Similarly was held in Food Inspector, Calicut Corporation Vs. Charukattil Gopalan 1972(2) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978 (1) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978(1) FAC 1 , Gajender Kumar Vs. State of Haryana 2010 (1) FAC 158 , 1981 (1) FAC 181 and Madan Lal Vs. State 1972 (2) FAC 481.
Warranty
114. 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/dal from M/s Manjeet Flour Mills. It was argued that the prosecution witnesses admitted that the accused was merely a retailer and not the manufacturer and that he had purchased the article from the above manufacturer / dealer and the said fact was also made known to the Food Inspector who had also prepared Notice u/s 14A i. Ex. PW1/D addressing M/s Manjeet Floor Mills and therefore, he was protected in view of Section 19(2) r/w Section 14 of the Act.
115. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article CC No. 292/03 DA Vs. Subodh Kumar Page 57 of 62 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.
116. 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.
117. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in CC No. 292/03 DA Vs. Subodh Kumar Page 58 of 62 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."
118. 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.
119. In the case at hand the accused is not entitled to the benefit of Section 19 for numerous reasons. Firstly, though at the time of the lifting of the sample the accused had claimed that he had purchased the dal from M/s Manjeet Floor Mills however, during the course of investigation he had himself written a letter Ex. PW1/D1 to the Food Inspector stating that "I was confused and being under pressure I wrongly disclosed the wrong name of M/s Manjeet Floor Mills situated at 60 Netaji Nagar, New Delhi. So it is requested that no will be taken action against M/s Manjeet Flour Mills situated at 60 Netaji Nagar, New Delhi. The CC No. 292/03 DA Vs. Subodh Kumar Page 59 of 62 authenticity/genuineness of this letter is not disputed by the defence and this letter is itself sufficient to dismiss the claim of warranty raised by the accused. Secondly, M/s Manjeet Flour Mills/its owner/proprietor had vide letter i.e. Ex PW1/D2 denied the sale of the dal to the accused. Thirdly, the accused did not prove on record any invoice/bill/cash memo to substantiate/corroborate his claims that he had purchased the dal from M/s Manjeet Flour Mills. In the absence of the same, no warranty can be extended to him. Fourthly, 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 Manjeet Flour Mills (though not proved by the accused) still he is not entitled to warranty as the Dal was not stored in the same condition in which the accused 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 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 CC No. 292/03 DA Vs. Subodh Kumar Page 60 of 62 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.
120. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 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) (b) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
CC No. 292/03 DA Vs. Subodh Kumar Page 61 of 62
121. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 12th August 2014 ACMMII/ New Delhi CC No. 292/03 DA Vs. Subodh Kumar Page 62 of 62