Da vs . Muni Ram Page 1 Of 63 on 7 April, 2014

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Delhi District Court

Da vs . Muni Ram Page 1 Of 63 on 7 April, 2014

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

C.C. No. 90/03

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

Muni Ram s/o Sh Hari Ram
M/s Singla Traders, Y47,
Janta Market, Nangloi,
New Delhi 41.
R/o Ist Floor, Y47,
Janta Market, Nangloi,
New Delhi
........ VendorcumProprietor

Serial number of the case : 90/03
Date of the commission of the offence : 18.06.2002
Date of filing of the complaint : 17.02.2003

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Name of the Complainant : Sh. Hukam Singh, Food Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, r/w Rule 23, 28 & 29
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 07/04/14
Judgment announced on : 07/04/14

Brief facts of the case

1. In brief the case of the prosecution is that on 18.06.2002 at about 04.00

p.m. Food Inspector V.P.S. Choudhary and FI Hukam Singh under the supervision and

directions of SDM / LHA Sh. Vijay Khanna visited M/s Singhla Traders, Y47, Janta

Market, Nangloi, Dehli, where accused Muni Ram 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

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

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

(m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A)

r/w Section 7 of the Act.

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

dated 17.02.2003.

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

Food Inspector V.P.S. Choudhary as PW1 and Food Inspector Hukam Singh as PW2

and pre charge evidence was closed vide order dated 29.09.2008.

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

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

the Act was framed against the accused vide order dated 27.04.2009 to which

accused pleaded not guilty and claimed trial.

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

witnesses including the Food Inspector V.P.S. Choudhary as PW1, Food Inspector

Hukam Singh as PW2 and the then SDM/LHA Sh. Vijay Khanna as PW3 and PE was

closed vide order dated 19.03.2011.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 27.06.2011

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wherein the accused claimed himself to be innocent. Accused did not examine any

witness in his defence despite opportunity given.

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

8. PW1 Food Inspector V.P.S. Choudhary deposed that on 18.06.2002 he

along with FI Hukam Singh under the supervision of LHA/SDM Mr. Vijay Khanna

visited M/s Singla Traders, Y47, Janta Market, Nangloi, Delhi where accused Muni

Ram was found present and conducting the business of the said shop after having

stored food articles including Dal Arhar contained in open gunny bag bearing no label

declaration. He deposed that he introduced himself and intended to take sample of

said dal arhar to which accused agreed. He deposed that he made efforts to join some

public witnesses by requesting some passersby, customers and neighborers but none

agreed and on his request FI Hukam Singh joined the proceedings. He deposed that

at about 04.00 p.m. he took 750 gms of said dal arhar on payment of Rs. 18.75 paise

vide vendor's receipt Ex. PW1/A which was read over and explained to accused in

Hindi. He deposed that before taking the sample he properly mixed the said dal arhar

in said gunny bag with the help of clean and dry jhaba. He deposed that he divided

the sampled quantity into 3 equal parts by putting the same in 3 clean and dry bottles.

He deposed that each part was separately packed, fastened, marked and sealed as

per law and LHA slips bearing code number and signature of LHA were also affixed on

each parts and accused signed each counterpart in such a manner that his signatures

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appeared partly on wrapper and partly on the LHA slips. He deposed that he prepared

notice Form VI Ex. PW1/B and panchnama Ex. PW1/C. He deposed that accused

also gave statement Ex. PW1/D on the spot that his shop was not registered with STO

and he is the only person responsible for day to day conduct of its business. He

deposed that all the aforesaid documents were read over and explained to accused in

Hindi and accused also received a copy of Form VI, accused put his signature at point

A, he signed at point C and witness signed at point B. He deposed that on 19.06.2002

one counterpart of the sample along with one copy of Form VII having specimen seal

impression and another copy of Form VII in separately sealed cover were deposited

with PA for analysis vide receipt Ex. PW1/E and on the same day two counterparts

along with 2 copies in form VII were deposited in the office of LHA vide receipt Ex.

PW1/F under intimation that one counterpart has already been deposited with PA for

analysis. He deposed that PA report Ex. PW1/G was received vide which the sample

was adulterated because it was coloured with synthetic colouring matter tartrazine. He

deposed that he conducted further investigation and sent a letter to STO Ward no. 62

Ex. PW1/H who gave reply at portion X that the shop of accused was not registered.

He deposed that complete case file along with all statutory documents were sent to the

then Director PFA Sh. K.S. Wahi who after going through the entire file, applied his

mind and gave his consent Ex. PW1/J for prosecution and the complaint Ex. PW1/K

was filed by FI Hukam Singh. He deposed that intimation letter and copy of PA report

were sent to the accused through registered post which were duly served upon the

accused. Intimation letter is Ex. PW1/L and copy of postal receipt is Ex. PW1/M.

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9. During his cross examination he stated that he had asked the source of

purchase of the sample commodity from the vendor but he did not disclose the same.

He denied the suggestion that accused told him that he had purchased the sample

commodity from the market. He denied the suggestion that he wanted to mention this

fact on the documents prepared at the spot or that he did not allow him to do so. He

stated that there was approximately 1820 Kg of Dal Arhar lying in the open gunny bag

of approximately 35 Kg of capacity. He stated that the entire Dal was mixed properly

with the help of a clean and dry Jhaba by him. He stated that there were 78 jhabas

lying in the shop of the accused. He stated that the Jhaba in question was made of

iron. He stated that the Jhaba was also made clean and dry at the spot with the help

of a clean and dry white cloth although it was already clean and dry. He stated that

the cloth was also provided by the vendor. He denied the suggestion that the cloth

was not provided by the vendor or that it was brought by him. He denied the

suggestion that cloth was not clean and dry or that some yellow colour was sticking

with it. He stated that the sample commodity was put with the help of a Jhaba in a

white paper bag and was weighed on pan balance. He stated that the paper bag was

provided by the vendor. He stated that the sample commodity was put directly into

sample bottles from the paper bag in equal parts. He stated that the sample bottles

were not made clean and dry at the spot as they were already clean and dry. He

stated that he cannot tell as to when the bottles were issued and cleaned by the

department. He denied the suggestion that some yellow colour was sticking with

sample bottles when they were used in the sample proceedings. He stated that 34

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public persons came at the spot during sample proceedings. He stated that he does

not know the names and addresses of those public persons. He stated that he

requested them to become witness in sample proceedings. He stated that he had not

mentioned this fact on any of the documents because he had not tried to associate

those public persons in sample proceedings. He denied the suggestion that sample

failed due to bad sampling.

10. PW2 FI Hukam Singh and PW3 Sh. Vijay Khanna, the then SDM/LHA

deposed on the same lines as deposed by PW1 in his examination in chief

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

12. I have heard the arguments advanced at bar by the Ld. defence counsel

as also the Ld. SPP for complainant. I have also carefully gone through the evidence

recorded in the matter and perused the documents placed on record by the

prosecution in this case.

13. After hearing the rival contentions raised at bar as well as on careful

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

PA dated 09.07.2002 that accused Muni Ram was indeed found selling Dal Arhar

which was adulterated on account of it containing synthetic colour viz. Tartrazine.

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

V.P.S. Choudhary categorically proved that on 18.06.2002 he along with Food

Inspector Hukam Singh and SDM / LHA Sh. Vijay Khanna visited M/s Singla Store,

where accused Muni Ram who was the vendorcumproprietor was found conducting

the business of sale of various food articles including Dal Arhar and in compliance of

the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of

Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) he collected

/ purchased the sample of Dal Arhar. He proved the sample proceedings vide Ex. PW

1/A to Ex. PW 1/C. He further proved the deposit of the sample with the Public

Analyst and deposit of the counterparts of the sample with the Local Health Authority

vide Ex. PW 1/E and F. He further proved that the Dal Arhar on analysis by the public

analyst vide his report Ex. PW1/G was found adulterated as it was containing synthetic

colour tartrazine. He proved the letter written to STO as Ex. PW1/H. The Sanction /

Consent for prosecution was proved as Ex. PW1/J and the complaint was proved as

Ex. PW 1/K.

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

remaining prosecution witnesses i.e. PW2 FI Sh. Hukam Singh and PW3 Sh. Vijay

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Khanna the then SDM/LHA.

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

Inspector on 18.06.2002 from M/s Singla Store as well as that the accused was the

vendor/ proprietor of M/s Singla Store was not disputed during the trial and was also

admitted by the accused during his examination under Section 313 Cr. P.C as

recorded before the Ld. Predecessor of this Court on 27.06.2011. From the answers

given by the accused to question no. 1 & 2 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 coupled with Ex. PW1/A to C which bears the signature of

the accused as well as Ex. PW1/D which is in the handwriting of the accused and also

bears his signatures, no doubt remains that the sample of Dal Arhar was indeed

collected by the Food Inspector for analysis from M/s Singla Store of which the

accused is the proprietor cum vendor.

18. During the course of arguments, Ld. defence counsel appearing for

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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.

Dal whether meant for human consumption

19. At the outset it was argued that dal was not meant for human

consumption. However I do not agree with the contentions of Ld. Defence counsel.

Firstly, no doubt the FI V.P.S. Choudhary did not state that the Dal was meant for

human consumption however the same seems to have happened due to

oversight/inadvertence. Secondly, the SDM/LHA i.e. Sh. Vijay Khanna under whose

supervision the sample was collected categorically stated as "conducting the

business of food articles stored there for sale for human consumption including

dal arhar". Hence when the SDM categorically stated that the Dal was stored for

sale for human consumption the mere fact that the FI did not state so looses

significance. The SDM/LHA was not even once suggested during his cross

examination that the dal was not meant for human consumption or that the same was

meant for some other purpose. Thirdly, it is a matter of common knowledge that dal

arhar is one of the most commonly used dal/food article. Fourthly, no suggestion

was given either to PW1 FI V.P.S. Choudhary or Hukam Singh (PW2) that the dal was

not for human consumption. Fifthly, the FI and other prosecution witnesses had

categorically stated that the sample was purchased from the accused and a payment

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of Rs. 18.75/ was made to him vide Ex. PW1/A, which bears the signature of the

accused. Not even a single suggestion was given to either of the prosecution

witnesses that no payment was made by the FI or not received or declined by the

accused. Hence 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. 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, The State of Tamilnadu vs. R. Krishnamurthy, 1980 (1) FAC 7,

Mohammad Yamin Vs. The State of Uttar Pradesh, 1972 FAC 375 and Ram

Labhaya Vs. Municipal Corporation of Delhi 1974 FAC 102.

Public witness

20. It was also one of the argument 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.

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

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counsel. The Hon'ble Apex Court in Shriram
Labhaya Vs. MCD , decided on

26.02.1974 has categorically held that testimony of the Food Inspector alone, if

believed, is sufficient to convict the accused and there is no requirement of

independent corroboration by public persons unless the testimony suffers from fatal

inconsistencies. Similarly in Babu Lal Vs. State, AIR 1971, SC 1277 It has been

held that there is no rule of law that a conviction can not be based on the sole

testimony of Food Inspector. Reliance may also be placed upon Prem Ballabh Vs.

State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of Assam, 1999(2) FAC

180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare Lal 1972 FAC 679 ,

Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339, Laxmidhar Saha Vs.

State of Orissa 1989 (1) FAC 364, Food Inspector Vs. Satnarian 2002 (5) SCC

373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs. Narayanasamy 1997

(2) FAC 203.

State
22. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

23. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held

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as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

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

Choudhary made sincere efforts to join the public persons in the sample proceedings

but none agreed. I have no reason to disbelieve them. It is very hard these days to get

association of public witnesses in criminal investigation/implementation of

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.

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

story inspires confidence and lifting of the sample stands unambiguously proved.

25. 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 or the SDM were inimical to the accused or had any

grudge or enmity to falsely implicate him.

Rule 14

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

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

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

bottles as well as the instrument i.e. jhaba with which the sample was lifted. It was

argued that colour was already sticking to the sample bottles as well as the Jhaba and

it was this colour which was detected by the PA. It was argued that Rule 14 of the Act

is mandatory and not directory and in case there is no strict adherence to Rule 14,

benefit has to be given to the accused. Reliance was placed on the law laid down in

Shew Chandar Mathur and another Vs. State of Assam and another FAC 1991 (I)

9, Sudhirchandra B. Joshi Vs. Arvindkumar Naranbhai Patel and ors 2002 (2)

FAC 196, State of Gujarat Vs. Laghadhirbhai Vaghjibhai Prajapati, 2009 (2)

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Criminal Court Cases 134 and Rajinder Kumar Vs. State of Haryana and anr.

RCR (Cri) 2008 (3) 422.

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

counsel.

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

case laws relied upon by the Ld. defence counsel and perused the deposition of the

Food Inspector and other complainant witnesses. After going through the material

available on record and the law cited by the Ld. defence counsel, I am of the opinion

that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at

the time when the Food Inspector collects the sample, he shall ensure that not only the

container/bottle is clean but it is also dried. Furthermore the container should be such

so as to prevent any leakage, evaporation and in case of dry substance entrance of

moisture. The container should be sealed carefully to avoid the above. While

sampling the various types of articles of food, the Food Inspector should make use of

clean and dry appliances. He should use clean and dry spoon or other instruments

for sampling and avoid using his own hands to make the same. Furthermore he

should sample the article in hygienic conditions. Reliance may be placed upon

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

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

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

"Before taking sample I properly mixed the said dal arhar in said gunny
bag with the help of clean and dry Jhaba. I divided the sampled quantity into 3 equal
parts by putting the same in 3 clean and dry bottles equally"

30. During his cross examination he stated as under:

".....The entire Dal was mixed properly with the help of a clean and dry
JHABA by me.......The JHABA was also made clean and dry at the spot with the help
of a clean and dry white cloth, although, it was already clean and dry.....It is wrong to
suggest that cloth was not clean and dry or that some yellow colour was sticking with
it.....The sample bottles were not made clean and dry at the spot as they were already
clean and dry.......It is wrong to suggest that some yellow colour was sticking with
sample bottles when they were used in the sample proceedings".

31. Similarly PW3 the then SDM/LHA Sh. Vijay Khanna deposed as under:

" At about 04.00 p.m., FI V.P.S. Chaudhary purchased 750 gms of Dal
Arhar taken from a open gunny bag having no label declaration after proper mixing
with the help of a clean and dry jhaba by rotating it in all possible directions thoroughly
several times on payment of Rs. 18.75 paise vide vendor's receipt Ex. PW1/A. The FI
V.P.S. Chaudhary then and there divided the sample equally into three equal parts by
putting into three clean and dry glass bottles......."

32. During his cross examination he stated as under:

".....It is wrong to suggest that vendor was using the same Jhaba in other food
article. Jhaba was made clean and dry by the FI at the spot with the help of clean
cloth and same was provided by the vendor. It is wrong to suggest that cloth was dirty
with which the Jhaba was made clean. The dal was put in one clean and white paper
and then it was weighed on the pan scale and thereafter it was divided into three parts
and put into the bottles directly. Bottles were already dry and clean and the same
were not made again dry and clean at the spot".

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33. PW2 FI Hukam Singh deposed as under:

" Before taking sample FI properly mixed the said dal arhar in said gunny
bag with the help of clean and dry Jhaba. FI divided the sampled quantity into 3 equal
parts by putting the same in 3 clean and dry bottles equally"

34. Hence the prosecution witnesses consistently deposed regarding the

jhaba as well as the sample bottles being clean and dry. They denied that some

colour was already sticking either to the bottles or the Jhaba. I have no reasons to

disbelieve them. Nothing on record has been proved to the contrary i.e. the defence

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

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

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

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

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

Section 114 reads as under:

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

Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"

35. The above provisions and the legislation is based upon the maxim

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"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly

and regularly done. This presumption chiefly applied to official acts. It means that an

official act is proved to have been done, it would be presumed to have been regularly

done. The presumption under Section 114 (e) could only be nullified by clear and

cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)

Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.

Assessar, 5 OLJ 179)".

36. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.

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

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

drawn that the 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
.].

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

Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper

approach to proceed with doubt or disbelief unless there is something to excite

suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi

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(2002) 5 FAC 234.

39. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it

was observed as under:

"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

40. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was

observed as under:

"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

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

"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

Homogenization / Mixing of Sample.

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

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

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

Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food

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

was taken after mixing the Dal Arhar properly in all possible directions several times. I

have no reasons to disbelieve the Food Inspector or the other complainant witnesses

in this regard. Secondly, there was no requirement of mixing or making the sample i.e.

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

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

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous." .

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

the Hon. Apex Court observed as under:

"If the food sold to the food inspector is proved to be adulterated, it is

immaterial whether the sample purchased by him is a representative sample or not of

the entire stock in possession of the person".

45. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982

(2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
usual mode of supply to the customer when he comes to purchase. If there is
normally a practice of stirring and mixing when the food stuff concerned is sold to
customers from time to time representative sample would be that which is taken after
such stirring and mixing. If on the other hand the usual mode of sale is to take portions

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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.

46. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984

(1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of

Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food
Inspector and not necessarily a government officer, is entitled to purchase an article of
food from a vendor and send it for analysis provided he follows the procedure
mentioned in Section 12 of the Act. If a private person purchases a portion of ice
cream from the respondent under Section 12 of the Act and causes the sample to be
analysed and if the sample is found to be adulterated, the vendor cannot turn round
and find fault with the purchaser for not stirring the entire mass of the ice cream in the
container or for not taking a section and stirring i before purchasing it. Equally so, at
any rate, in the case of sale to the Food Inspector the vendor cannot come forward
with such a complaint.

It was further observed:

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

47. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of

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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.

48. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon

the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as

under:

"Neither the Act nor the Rules contain any provision to the effect that the entire
quantity of milk in the container in the possession of the vendor should be stirred
before effecting the sale to the Food Inspector. If the normal mode of serving or
selling a part of the milk contained in a larger container involves stirring the entire
quantity, the vendor should have done it. If that is not the normal mode, that will not
be done when the sale is made to the Food Inspector also."

49. 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."

50. 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

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said food article after mixing the same with the help of Jhaba in the gunny bag/bag in

which he has stored the same in his shop. He does not first rotate the said food article

in all possible directions several times and then sell the same to the customer. He

merely takes out the food article with the help of Jhaba or any other instrument from

top most layer and sells it to the customer. Therefore when this is usual mode of

selling the food article to the customers then why should a different mode be used for

the purpose of sale to the Food Inspector. The act has been enacted for the purpose

of protection of the customers/consumers of food articles and it is not sold to them by

the shop owner after homogenization. Hence no question of making the food

article/Dal homogenized should arise or else the entire purpose of act will be

defeated. This is the reason why the PFA Act or the Rules nowhere provides for

mixing of the food articles at the time when the sample is lifted by the FI.

Discrepancies

51. It was further argued by Ld. Defence counsel that there are major

discrepancies in the deposition of PW1, PW2 and PW3 qua the sample proceedings.

It was argued that though PW1 i.e. FI V.P.S. Choudhary and PW3 SDM/LHA had

claimed that the Jhaba was made clean and dry at the spot with the help of piece of

cloth provided by the vendor however PW2 claimed that Jhaba was not made clean

and dry at the spot as it was already clean and dry. Similarly PW1 had claimed that

apart from the Jhaba used by them there were other Jhabas at the shop i.e. around

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78 jhabas but PW2 stated that he did not see any other Jhaba except the Jhaba lying

in the gunny bag from which the sample was lifted. Furthermore PW1 claimed that 23

public persons were present at the spot at the time of sample but on the other hand

PW3 claimed that there were 45 public persons present at the spot. The Ld. Defence

counsel argued that these discrepancies itself proves 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.

52. No doubt the Ld. Defence counsel pointed out the above discrepancies in

the deposition of PW1, PW2 and PW3 however the discrepancies as pointed out by

Ld. Defence counsel are too trivial in nature to be given any weightage. The

discrepancies as above are 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 2002 and the deposition/cross examination of witnesses

were recorded in the year 2009 and 2011 i.e. after a gap of around 79 years. After

such a long time period a person cannot be expected to give a parrot like version or

depose with 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.

53. 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

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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.

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 .

54. 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

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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.

55. 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 discrepancies as above does not effect the prosecution story at all. It

does not render it unreliable or untrustworthy. The fact remains that the sample pro

ceedings were conducted in a proper manner and that the bottles as well as the Jhaba

were clean and dry.

PA's Report/intimation letter not received hence right u/s 13 (2) could not be
exercised thus prejudice caused to the accused.

56. It was also one of the arguments of Ld. Defence counsel that PA's report

along with intimation as per the provisions of section 13 (2) of the Act was not

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supplied/delivered to the accused and accordingly the accused could not exercise his

right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample

kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused

serious prejudice to the accused as his right to get the counterpart of the sample

analyzed by the Director was defeated. Reliance was placed upon the law laid down

in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs.

Munim 2006 (2) FAC 93 and Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300.

57. However the said plea of Ld. Defence counsel is meritless and contrary to

the records. Firstly, as per records the prosecution was launched on 17.02.2003 and

the next date of hearing before the court was 17.01.2004. On 17.01.2004 the process

could not be served upon the accused and the next date was 04.10.2004. It is evident

from proceedings dated 04.10.2004 that the accused deliberately/ on his own volition

and for reasons best known to him opted not to move application u/s 13 (2)/did not

exercise his right u/s 13(2) of the Act. Though it is reflected in order sheet as

"accused has submitted that he is not exercising his right u/s 14 of the Act" however

section 14 seems to have been inadvertently written/is a typographical error as there

is no right contemplated under section 14 of the Act and the right is available under

section 13 only. Hence once he himself does not exercise the right/does not file the

application u/s 13(2) PFA Act he cannot be allowed to complain later on regarding

violation of the right as envisaged u/s 13(2) of the PFA Act. Secondly, PW1 FI

V.P.S. Choudhary had categorically deposed that the intimation letter along with PA's

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report was sent to the accused by registered post and the same were duly served

upon the accused. He proved the intimation letter along with postal registration receipt

as Ex. PW1/L and Ex. PW1/M. During his cross examination not even a single

suggestion was given to the witness that he was deposing falsely regarding the

sending of the PA's report and intimation letter or that the same was never served

upon the accused i.e. the defence did not challenge the testimony of Food Inspector

regarding the sending of the PA report and its receipt by the accused. On similar lines

was the deposition of PW2 FI Hukam Singh and PW3 the then SDM/LHA Sh. Vijay

Khanna regarding the sending of the intimation letter along with the PA's report. Not

even a single suggestion was given to them that the intimation letter along with PA's

report was never sent by registered post to the accused. Their testimony has thus

remained unchallenged and I have no reasons to disbelieve them. Thirdly, during his

examination u/s 313 Cr.P.C. the accused while answering question no. 13 regarding

sending of the PA's report along with intimation letter answered as "It is a matter of

record". He did not state at that time that report was not received by him or that the

prosecution witnesses were deposing falsely regarding the same. Fourthly, I have

perused Ex. PW1/M. Serial no. 0806 and 0807 pertains to the sending of the

registered documents at the residential as well as business address of the accused.

The address appearing on Ex. PW1/M is the same address as appearing in the

complaint as well as on which the summons sent by the court were duly served upon

the accused. If the summons were served on the same address I fail to understand

why the intimation letter and the PA's report sent vide Ex. PW1/M and L would not be

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received by him. It is nowhere the defence claim/plea that the address is incorrect.

58. Section 114 of the Evidence Act and the presumption which Section 114

raises has been discussed above. Clause (f) of Section 114 reads as under:

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

59. It is now well settled that sending by post, means sending by post to the

addressees proper address. Where a notice has to be served through post, all that a

sender can do to comply with the provisions is to post the prepaid registered letter

containing addressees correct address. Once he does this and the letter is delivered

to the post office, he has no control over it. In that event, under Section 27 of the

General Clauses Act, the letter shall be presumed to have been delivered to the

addressee. There is no obligation upon the sender to prove the service of notice upon

the addressee if he send the notice by registered post, properly addressed. Where a

letter is sent under certificate of posting a presumption arises under Section 114 of the

Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal

Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P.

Rama Reddy, 2003(3) Andh. LT 120 (AP)]

60. Once the evidence discloses that the letter was addressed at a proper

address by registered post then unless it is rebutted or the contrary is proved to have

been effected at the time at which the letter would be delivered in the ordinary course

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of post it is presumed that there is a proper service. If the addressee either can not be

met or refused to take delivery there appears to be no reason why the letter should not

be considered as properly served upon the addressee ( State Vs. Bhag Chand

Sadhu Mal, 1999 (3) Guj. LR 2220.)

61. In the absence of anything indicating that such letters were not posted or

concocted the presumption under Section 114 (f) comes into play (Vandavasi

Kartikaya Vs. S. Kamalanna, A 1994 AP 102).

62. A bare denial with no reliable evidence is not sufficient to rebut the

presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial

without reliable evidence, without further rebuttal, the presumption continues [Fazal

Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].

63. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the

prosecution did not prove any postal acknowledgment signed by the accused to prove

about the service of copy of the report of the Public Analyst which had been sent by

registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC

300 the court held as under:

"In the present case the petitioner in his examination under section 313 Cr. P.C has
merely denied to have received the copy of the report of the Public Anlayst. However,
no evidence has been adduced on behalf of the accused persons to rebut the
presumption available under the General Clauses Act as well as Section 114 of
the Evidence Act. As observed by the Division Bench of this Court, when it is proved

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that registered letter has been posted after being duly stamped in the address of a
person, a presumption arises that such letter must have been served on the
addressee. The evidence adduced on behalf of the prosecution to the effect that the
report of the Public Analyst had been posted by registered post as per the postal
receipt has not been successfully challenged by the petitioner in any manner in cross
examination. The mere denial of the accused in his statement under Section 313,
Code of Criminal Procedure, cannot have the effect of rebutting the statutory
presumption available under the provisions of the General Clauses Act.".

64. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it

was held "admittedly there is presumption in law that a communication sent by post on

the correct address of the addressee is presumed to have been received by him if it is

not received back by the sender."

65. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while

relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass

Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of

Maharashtra, 1972 FAC 545, it was held as under:

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

66. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held
as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon
the sender or the postman to arrange that notice to be served upon the addressee. If

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a letter is posted prepaid and registered with a acknowledgment due or otherwise to
the correct address of the addressee and delivered to the post office, there is
presumption under Section 27 of the General Clauses Act that the letter is delivered to
the addressee.".

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

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

69. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was
observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal
Procedure, cannot have the effect of rebutting the statutory presumption available
under the provisions of the General Clauses Act."

70. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that

where extract of the relevant entries in the register maintained in the office also

indicated that the notice under section 13(2) of the Act alongwith the report of the

Public Analyst was sent to the applicant by registered post on the address available on

record and it is not the contention that the accused / addressee / vendor did not reside

at the address on which the notice was sent then "The mere fact, that A/D receipt was

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not filed or received back, was not sufficient to rebut or dislodge the presumption of

service of notice sent by registered post in absence of any evidence to the contrary.".

Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed

upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex

Court has held "the notice dispatched by sender by post with correct address on it,

can be deemed to be served on sendee unless he proves that he is not really served.

This principle was propounded keeping in view the provisions of section 27 of the

General Clauses Act."

71. In the case at hand in view of categorical deposition of the Food

Inspector and the SDM/LHA coupled with Ex. PW1/L and M as discussed above a

presumption tenable in the eyes of law can be drawn that the PA's report along with

intimation letter was duly delivered/received by the accused/the vendor. Nonetheless

nothing stopped the accused from moving the application on 17.01.2004 or

04.10.2004 i.e. when he filed his appearance after the complaint was filed.

72. As far as the prejudice is concerned suffice would be to say that once the

accused does not exercise the right u/s 13 (2) he cannot complain later on.

73. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it

was held that as the petitioner did not exercise his right under section 13(2) and no

sample was sent to Director, CFL, the petitioner can make no grievance.

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74. In Jai Singh Vs. State 1976 (1) FAC 207, it was held as under:
"the delay in the submission of the report cannot be said to be inordinatethe vendor
accused cannot himself decide that no useful purpose will be served by the sample
being sent for test by the Director of Central Food Laboratory. He has to move an
application and get sample tested and if it is found deteriorated by the Director, he can
claim that the prejudice was caused to him and he was deprived of the right by reason
of laches on the part of the prosecution."

75. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that

if a person does not voluntarily takes advantage of Section 13 he can not complaint

about the loss of any right.

76. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it

was one of the contentions of the Ld. defence counsel that since the complaint was

launched after lapse of more than 4 months from the date of taking sample the

accused could not utilize his right to send the sample to Director, CFL. As a matter of

fact the accused had not moved any application under Section 13(2) of the Act

claiming that as there was delay in launching of the prosecution / supply of the PA's

report, no purpose would have been served by resorting to an application under

Section 13(2) of the Act as on account of delay the article of food would not have

retained its quality for examination. Repelling the contentions their lordship held

as under:

" There is also in our view no justification for holding that the accused had no
opportunity for sending the sample in his custody to the Director, Central Food
Laboratory under Section 13(2) because he made no application to the Court for

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sending it. It does not avail him at this stage to say that over four months had elapsed
from the time the samples were taken to the time when the complaint was filed and
consequently the sample had deteriorated and could not be analysed. The decision of
this Court in Municipal Corporation Delhi V. Ghisa Ram: 1975 (1) FAC 186, has no
application to the facts of this case. In that case the sample of the vendor had in fact
been sent to the Director of the Central Food Laboratory on his application but the
Director had reported that the sample had become highly decomposed and could not
be analysed.".

77. In Babu Lal's case as above, Hon'ble Mr. Justice Jagmohan Reddy,

J speaking for the court said "unless an application to send the sample to the Director

is made the vendor cannot complaint that he was deprived of his right to have the

sample analysed by the Director." The similar view as above was taken by their

lordship in Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC

545. It was held as under:

".....appellant should have made an application after paying the prescribed fee if he
wanted the part of the sample available with him to be sent to the Director for analysis.
If he had made the application after paying the prescribed fee, the Magistrate would
have had no option but to send the part of the sample for analysis by the Director. If in
pursuance of the application the part of the sample was sent to the Director and he
had reported that the part of the sample was incapable of analysis for the reason that
it was decomposed the appellant could perhaps, have contended that he was
deprived of his right to have the sample analysed by the Director on account of the
laches of the complainant and that he should be acquitted. But, since the appellant
never applied under section 13(2) of the Act, he cannot complain that he has been
deprived of any right.".

78. Same view was taken in Sukhmal Gupta Vs. The Corporation of

Calcutta 1974 FAC 207, Hypercity Retail (India) Ltd. and Ors. Vs. State of

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Punjab and Anr. 2013(1) FAC 392, MCD Vs. Ajit Pershad 1975 (2) FAC 60 and

Pitabasa Bisi Vs. State 1996 (1) FAC 145.

79. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as
under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been
given to the accused person as a measure of abundant caution so that the mistake, if
any, committed by the Chemical Analyst may be rectified and the persons, who are
really innocent, be not punished. It is also provided that this right has to be exercised
by the accused person within a reasonable time. If he sleeps himself over this right
and does not make a prayer that the sample given to him should be sent to the
Director, Central Food Laboratory, then he cannot make any grievance about the
delay caused in the examination of the sample by the Director. Furthermore, under
section 510, Criminal Procedure Code, the report made by the Director, Central Food
Laboratory, can be received in evidence even when the Director does not enter into
the witnessbox. If the accused person wants to show certain infirmities in the process
of chemical examination performed by the Director, then he has to make an
application to the trial Court to have the Director summoned as a witness. This
procedure was not adopted by the petitioner and he has not brought any material on
the record to show why the report submitted by the Director should not be relied
upon.".

80. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it
was held as under:
"There is no doubt that in the present case the prosecution was launched after nearly
five months but the petitioner did not submit any application under subsection (2) of
section 13 of the Prevention of Food Adulteration Act, 1954, requesting the court to
get the sample of milk analysed by the Central Food Laboratory. There is no material
on the record to show that the sample of milk taken from the petitioner, to which
formalin was duly added, was either decomposed or was in such a condition that it
could not be analysed.".

CC No. 90/03
DA Vs. Muni Ram Page 37 of 63
81. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was
held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State
of Gujarat 1972 FAC 18 that the question of deprivation of the right even to the
accused under section (2) of Section 13 of the aforesaid Act, does not arise until the
accused makes an application to the Court for having the sample analysed by the
Central Food Laboratory, Calcutta. Until such an application is made no right can be
said to have accrued to the accused. In this case also no such application was made.
Until there is evidence on record to show that the article of food had deteriorated by
lapse of time or by addition of preservative in quantity of less than the one prescribed,
it is very difficult for the court to say that the sample must have decomposed and
become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong
when he observed that even if the accused had made an application as aforesaid it
would only be a fruitless venture.".

82. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble
Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the
sample to the Central Food Laboratory for analysis. He did not avail the same.
Therefore, it was no longer open to him to contend that he had no opportunity to send
the sample in his custody to the Director, Central Food Laboratory under Section 13
(2), since he did not make any application to the Court for sending it.".

83. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319
and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P.
It was observed in para 12 as under:

" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2)
FAC 249 .........held that it is for the accused to establish as to how the prejudice has
been caused to him either because of delay in launching the prosecution or for any
other reason."

CC No. 90/03
DA Vs. Muni Ram Page 38 of 63
84. Further the Hon'ble Apex in Dalchand Vs. Municipal Corpn, 15 (1984)

2 SCC 486 held that, "where the effect of noncompliance with the rule was such as

to wholly deprive the right of the person to challenge the Public Analyst's report by

obtaining the report of the Director of the Central Food Laboratory, there might be just

cause for complaint, as prejudice would then be writ large. Where no prejudice was

caused there could be no cause for complaint."

85. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food

Adulterations cases 195, it was held that if the report of the Public Analyst is served

upon the accused after two years and the accused does not make any application for

sending the sample to Director, CFL no prejudice is caused to him.

86. In Ram Bilas Vs. State 1997(1) 141, while dealing with delay in

sending the PA's Report to the accused it was held :

"Be that as it may, the petitioner did not choose to challenge the report by moving an
application for sending of the other sample bottle for analysis of the Central Food
Laboratory. (Reliance placed upon Tulsi Ram Vs. State of Madhya Pradesh 1984
(2) FAC 146, wherein it has been held that "it is a question of prejudice").

in the above case it was discussed in para 6 as under:
"Similarly, the Hon'ble Supreme Court in another decision in Jagdish Prasad Vs.
State of West Bengal, 1972 FAC 127: 19481997 FAC (SC) 55, observed that
"where no application is made under subsection (2) for sending the sample to the
Director of the Central Food Laboratory, and the report of the Public Analyst is not
superseded under subsection (3) by the certificate of the Director, a conviction of the
accused on the basis of the report of the Public Analyst and on his evidence would be
proper". The petitioner could very well establish the denial of his right under Section

CC No. 90/03
DA Vs. Muni Ram Page 39 of 63
13(2) on account of delay in forwarding the report of the Public Analyst to him, if on an
application the other sample bottle had been examined and a report of the Director of
Central Food Laboratory had confirmed that the sample has become unfit for analysis.
As such, it is not a case of any prejudice caused to the petitioner by delay, if any, in
forwarding the report of the Public Analyst to him."

Delay

87. The Ld. Defence counsel also argued that the prosecution was launched

after more than 6 months since the lifting of the sample. It was also argued that the

first effective hearing in the matter was on 04.10.2004 i.e. after 2 years and therefore

even if the accused had moved the application the sample would not have remained fit

for analysis by the Director and hence moving the application u/s 13 (2) would have

been an exercise in futility. However, the said defence is unsustainable. As already

discussed above once no application u/s 13 (2) is moved the accused is no longer

entitled to claim the loss of the right u/s 13 (2). Furthermore, no presumption can be

drawn by the Court that the sample of Dal if sent for analysis to the Director after the

institution of the case would have decomposed/rendered unfit for analysis on account

of delay as above. Moreover the adulteration being of colouring matter and the

sample being of Dal Arhar the delay would not have in any manner prejudiced the

accused/effected his right.

88. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,

Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:

CC No. 90/03
DA Vs. Muni Ram Page 40 of 63
"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under
which provision the accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the sample is found by the said
Central Food Laboratory unfit for analysis due to decomposition by passage of time or
for any other reason attributable to the lapses on the side of prosecution, that valuable
right would stand denied. This would constitute prejudice to the accused entitling him

to acquittal but mere delay as such will not per se be fatal to the prosecution

case even in cases where the sample continues to remain fit for analysis in
spite of the delay because the accused is in no way prejudiced on the merits of
the case in respect of such delay. Therefore it must be shown that the delay has
led to the denial of right conferred u/s 13(2) and that depends on the facts of each
case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a
ground for the prosecution case being thrown out.". Further reliance may be placed
upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179
.

89. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.

In para 63 of the judgment it was observed as under:

"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........

.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how CC No. 90/03 DA Vs. Muni Ram Page 41 of 63 prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".

It was further observed in para 66 as under:

"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."

It was further observed in para 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."

It was further observed in para 68 as under:

"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".

It was further observed in para 71 as under:

"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming CC No. 90/03 DA Vs. Muni Ram Page 42 of 63 decomposed or cause prejudice to the accused."

It was further observed in para 72 as under:

"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".

It was further observed in para 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."

It was further observed in para 74 as under:

"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"

It was further observed in para 75 as under:

"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders CC No. 90/03 DA Vs. Muni Ram Page 43 of 63 involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."

It was further observed in para 76 as under:

"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."

The court concluded / summed up its observation / findings in para 103 as under:

"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.

10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.

11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :

(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).

CC No. 90/03 DA Vs. Muni Ram Page 44 of 63

12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".

90. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.

8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".

CC No. 90/03 DA Vs. Muni Ram Page 45 of 63

91. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:

"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".

92. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:

"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

93. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:

" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."

94. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:

"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days CC No. 90/03 DA Vs. Muni Ram Page 46 of 63 that elapsed between the taking of the sample and its examination by the Public Analyst.".

95. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."

96. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:

"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken CC No. 90/03 DA Vs. Muni Ram Page 47 of 63 place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .

97. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:

"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a CC No. 90/03 DA Vs. Muni Ram Page 48 of 63 considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".

98. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:

"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.

99. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:

"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about CC No. 90/03 DA Vs. Muni Ram Page 49 of 63 one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".

100. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:

"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.

101. In the case at hand it being a sample of Dal Arhar and there being nothing on record, no evidence led by the defence to prove that the Dal Arhar must have got deteriorated, decomposed/ rendered unfit for analysis, I find no merit in the contention of Ld. Defence counsel that solely on account of delay the right of the accused was prejudiced. If indeed the accused/Ld. Defence counsel were of the opinion that delay in launching of the prosecution or the summoning of the accused had prejudiced the right of the accused that is say that sample by that time had become decomposed/ deteriorated the accused should have exercised his right u/s 13 CC No. 90/03 DA Vs. Muni Ram Page 50 of 63 (2) to fortify his stand. He would have been entitled to the benefit on account of delay had he exercised his right under section 13 (2) and the Director had opined that the sample had been decomposed/ rendered unfit for analysis. His having not done so he cannot now claim/agitate that prejudice has been caused to him on account of delay. Rule 18

102. It was also one of the arguments of the Ld. defence counsel for the accused that there was violation of Rule 17 and 18, benefit of which must be given to the accused. It was argued that it has not been proved that the specimen impression of the Seal used for sealing the sample as provided in Rule 17 was sent to the Public Analyst separately as per the mandate of Rule 18. It was argued that in these circumstances the sample being tampered with during its transit to the PA cannot be ruled out. Reliance was placed upon State of Orissa Vs. Rabindru Sahu 2006 (1) FAC 200 (SC), State Vs. Banwari Lal 2011 (1) FAC 149, Delhi High Court and Gian Chand Vs. State of Haryana 1982 (I) FAC 8.

103. I have perused the deposition of the Food Inspector i.e. PW 1, the report of the Public Analyst as well as Rule 18 of the Prevention of Food Adulteration Rules, 1955. Rule 18 provides that the copy of Memorandum and a specimen impression of the Seal used to seal the packet shall be sent to the Public Analyst separately by post. In Kassim Kunju Pookunju and Anr. Vs. K.K. Ramakrishna Pillai and Anr., Crl. CC No. 90/03 DA Vs. Muni Ram Page 51 of 63 Appeal No. 29 of 1968, decided on 02.12.1968, the Hon'ble Apex Court observed as under:

"The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7 of the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.

We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied.".

104. Similarly in N. Sukumaran Nair Vs. Food Inspector, Mavelikara, Crl. Appeal No. 343 of 1989, decided on 31.01.1995, the Hon'ble Apex Court held as under:

"The Food Inspector as PW1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in crossexamination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in crossexamination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence.".

CC No. 90/03 DA Vs. Muni Ram Page 52 of 63

105. In Srinagar Municipal Corporation Vs. Sonna Ullah Malik 1978(2) FAC 99, it was held as under:

"The object of Rule 17 and 18 is to prevent the possibility of tampering with the sample before it reaches the public analyst and it is with this object that it is provided that the specimen impression of the seal used should be sent separately to the public analyst so that he can compare it with the seal used on the container of the sample to find out if it tallied or not. In case the seal does not tally with the specimen, it would show that the sample had been tampered with...........the statement of the Food Inspector that he had sent specimen of the seal to the public analyst read with the report of the public analyst that he had received the specimen separately sent, leaves no manner of doubt that rules 17 and 18 were duly complied with by the Food Inspector and the grievance made by the respondent is untenable."

106. It is also not necessary that the sample along with the memorandum should be sent with one person and a copy of the memorandum and the specimen impression of the seal should be sent along with another person or that if they are sent with the same person they should be sent at different times (1978 (1) FAC 167, 1978 (1) FAC 246 and 1976 (2) FAC 61).

107. Reliance may also be placed upon on law laid down by Hon. Supreme Court in Kasim Kunju O Kunju vs. Ramakrishna Pillai 1976 (2) FAC 68 and Gyan Chand Vs. MCD 1979 (2) FAC 320 and 1981 (1) FAC 290.

108. In the case at hand the Food Inspector categorically stated that the specimen impression of seal was sent separately to the PA vide Ex. PW1/E. It is apparent from Ex. PW1/E which is the receipt of the sample at the PA's office that the CC No. 90/03 DA Vs. Muni Ram Page 53 of 63 same was sent in a sealed packed separately. Furthermore the PA's in his report Ex. PW1/G categorically stated as "the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector." Reliance may be placed upon the law laid down by the Hon. Apex Court in N. Sukumaran Nayyar Vs. FI 420 SC on Food Adulteration cases 19481997. The sample was collected on 18.06.2002 at about 04.00 p.m. and it was deposited with the PA on the next working day i.e. on 19.06.2002. There was thus no undue delay in depositing the sample with the PA. This itself rules out any tampering with the sample. Hence there is no violation and nothing on record to even remotely suggest that the accused was prejudiced or the sample tampered with before its analysis by the PA. Regarding the contentions that the FI had put the seal impression in form VII which was put in the sealed packet deposited with the PA which he should not have done so as to avoid tampering suffice is to say that after the copy of memo in Form VII was put with the sample in the packet, the packet was sealed and the same was opened by the PA only after comparing it ( seal impression on the packet) with the seal impression sent in a separate packet. Hence there is no force in the argument that the FI should not have sent/put seal impression in form VII with the sample as no prejudice can be said to have been caused to the accused. There is no chance/ reason/remotest of proof of any tampering. Nonetheless if the accused had any apprehension/reasons to believe that the sample was tampered with than nothing stopped him from exercising the right available with him u/s 13 (2) of PFA Act which as already discussed above he did not exercise for reasons best known to him. CC No. 90/03 DA Vs. Muni Ram Page 54 of 63 Use of colour.

109. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

110. 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 CC No. 90/03 DA Vs. Muni Ram Page 55 of 63 linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

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

111. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. Hence no colour could be added to Dal Arhar. Reliance may be placed upon the Hon. Apex Court ruling titled as Badri Prasad Vs. State of M.P. SC on PFA (19481997) 1122. It was held since the article was artificially coloured that by itself made it adulterated, because the rules prescribed that no colouring matter should be added to chillies powder...........That per see would make the article adulterated. CC No. 90/03 DA Vs. Muni Ram Page 56 of 63 Injurious to health.

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

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

113. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".

114. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. CC No. 90/03 DA Vs. Muni Ram Page 57 of 63 Mere presence of the colour amounts to adulteration.

115. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

116. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 the Hon'ble Apex Court observed as under:

"Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28."

Mode of test not mentioned by the PA in his report

117. It was also argued by Ld. Defence counsel that the PA did not specify the methods used by him for the analysis of the sample. Hence his report cannot relied upon. However I do not agree with the contentions of Ld. Defence counsel. Firstly, the sample was collected on 28.06.2002 and analyzed by the PA on 09.07.2002. At that time as per prescribed Form III as per Rule 7 (3) the Public Analyst was not obliged to specify the name of method/the test used by him for analyzing the sample. Form III was amended w.e.f. 29.01.2003 only and it was only after 29.01.2003 that the PA was directed to mention in his report the modes of analysis. Accordingly as there was no obligation on the part of the PA to mention the tests/method i.e. to say there was no Rule or statute or directions to do so the report cannot be rejected on the grounds claimed by the Ld. Defence counsel. Secondly reliance may be placed upon CC No. 90/03 DA Vs. Muni Ram Page 58 of 63 the Hon'ble Supreme Court ruling in Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 wherein it has been held as under:

"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".

Paper Chromatography

118. It was further argued that the usual mode of analysis as per the DGHS Manuals is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon Maya Ram Vs. State of Punjab 1978 (2) FAC 320, State Vs. Subhash Chand 2012 (2) JCC 1052 and Bansi Lal V. State of Haryana, 1993 (1) FAC 117. However I find no merit in the said contention of the Ld. defence counsel. Firstly, paper chromatography is just one of the method prescribed in the DGHS Manual. It is not clear which method was employed by the PA to give his report. Nonetheless paper chromatography being a prescribed method in DGHS Manual no conclusion can be drawn by the court that it is not a reliable method. 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 CC No. 90/03 DA Vs. Muni Ram Page 59 of 63 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. 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

119. It was further argued that in the report of the PA the percentage of colour CC No. 90/03 DA Vs. Muni Ram Page 60 of 63 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 mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

CC No. 90/03 DA Vs. Muni Ram Page 61 of 63 PA's report

120. It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.

In the case at hand PA vide his report Ex PW/1/G found Tartrazine in the sample of the Dal Arhar which is not permitted/ in violation of Rule 23, 28 and 29. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 09.07.2002 she was a duly/ validly appointed Public Analyst.

121. In view of my above discussion, as colour tartrazine was found by the PA in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under CC No. 90/03 DA Vs. Muni Ram Page 62 of 63 Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

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

Announced in the open Court                                      (Gaurav Rao)
on 07th April 2014                                           ACMMII/ New Delhi




CC No. 90/03
DA  Vs.  Muni Ram                                                                 Page 63 of 63

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