Delhi District Court
In Re vs A-1) Capt. Satpal on 20 March, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 68/03
Unique Case ID No. 02403R0024882003
Date of Institution: 10.02.2003
Date of reserving judgement: 02.03.2017
Date of pronouncement: 20.03.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Capt. Satpal
S/o. Lt. Sh. Surjan Ram
[PROCLAIMED OFFENDER]
A-2) Sh. Brij Arora
S/o. Sh. Surender Arora
R/o. 20/526, Dakshinpuri DDA Flats,
New Delhi
A-3) Sh. Vijay Kumar
S/o. Sh. Narsidas
C/o. M/s. Victoria Food Pvt. Ltd.
B-30, Lawrence Road, Industrial Area,
Delhi-35
A-4) M/s. Victoria Food Pvt. Ltd.
B-30, Lawrence Road, Industrial Area,
Delhi-35 ... Accused persons
CC No. 68/03 Page 1 of 54
JUDGEMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 1 (since declared Proclaimed Offender) is stated to be the vendor-cum-proprietor of M/s. Akash Traders, from where the food article, that is, 'Dal Moong Dhuli' was lifted for sampling. Accused no. 2 is stated to be the vendor-cum-proprietor of M/s. Amba Traders who had supplied the said food article to the accused no. 1. Accused no. 4 Company is stated to be the manufacturing company that had processed and packed the food article and had supplied the same to its distributor accused no. 2. Accused no. 3 had been appointed as nominee of the accused no. 4 company under section 17 of the PFA Act.
2. As per the complaint, on 10.09.2002, the food officials consisting of Food Inspector (FI) C. B. Boora and Field Assistant (FA) Shivaji Mehto under the supervision of Local Health Authority (LHA)/SDM Sh. Rajesh Kumar reached along with their staff at the premises of M/s. Akash Traders at 1, Club Road, Anupan Garden, New Delhi, where the accused no. 1 (since PO) was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Dal Moong Dhuli from the vendor lying in sealed polythene packets of 500 grams each, bearing identical label declaration, to which he agreed. A CC No. 68/03 Page 2 of 54 sample of three such sealed packets was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 24.09.2002, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter 'Tartrazine'. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. At the time of sampling, the accused no. 1 vendor has disclosed that he had purchased the food article against a bill from M/s. Amba Traders. It was found that accused no. 2 was the proprietor of the said M/s. Amba Traders who had purchased the food article from accused no. 4 company, of which accused no. 3 was a nominee. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 10.02.2003 against all the accused persons, alleging violation of section 2(ia)(j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 10.02.2003. The presence of accused no. 1 could not be secured despite coercive measures and he was declared proclaimed offender vide order dated 16.01.2007. The other accused CC No. 68/03 Page 3 of 54 persons appeared and accused no. 3 filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 17.04.2003, opining the sample to be not conforming to the standards of Moong Dal as per PFA Rules due to presence of synthetic colour 'Tartrazine', and also that the label of the sample contravened Rule 42(zzz) of the PFA Act (which requires 'vegetarian' symbol to be there on the packets).
4. Based on the CFL report, the matter was listed for pre-charge evidence, wherein the complainant examined PW-1 FI C. B. Boora and PW-2 FI Raj Pal Singh. On the basis of their deposition, charge was framed against the accused no. 2, 3 and 4 (through accused no. 3 as its AR) on 29.10.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (j) and
(m) of PFA Act, read with Rules 23, 28, 29 and 42(zzz) of PFA Rules, to which they pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross- examination in post-charge stage and additionally, the prosecution examined PW-3 Sh. Rajesh Kumar (SDM/LHA) and PW-4 FA Shivaji Mehto in post-charge stage.
5. At the trial, PW-1, PW-3 and PW-4 who were part of the team that had visited the spot for sample proceedings, deposed about the CC No. 68/03 Page 4 of 54 proceedings conducted by them on 10.09.2002 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting a sample of three sealed packets of 500 gms each of Dal Moong Dhuli bearing identical label declaration, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW- 1/C. As per disclosure of the vendor, notice under section 14A of PFA Act Ex. PW-1/D was prepared addressed to the distributor accused no. 2. On the next working day, that is, 11.02.2002, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, investigation was carried out by PW-1. PW-1 sent letters Ex. PW-1/I and PW-1/J to the STOs regarding constitution of M/s. Akash Traders and M/s. Amba Traders, and received their replies. He also sent a letter Ex. PW-1/K to the accused no. 4 company but it was not replied. After transfer of PW-1, further investigation was carried out by PW-2. He sent letters Ex. PW-2/A and Ex. PW-2/B to the accused no. 1 vendor but no reply was received. He also made a visit at both available addresses of accused no, 1 but he had already left to unknown whereabouts. He sent reminder Ex. PW-2/C to the accused no. 2 and received his reply Ex. PW-2/C1. He then sent letter Ex. PW-2/D to the accused no. 4 company and received its reply Ex. PW-2/D1 along with relevant documents informing about nomination of CC No. 68/03 Page 5 of 54 accused no. 3. He confirmed about nomination from PFA department as well. After completion of investigation, sanction Ex. PW-2/E was taken from the Director PFA and complaint Ex. PW-2/F was filed in the court. After this, intimation letter Ex. PW-2/G with copy of PA report was sent to the accused persons through registered post.
6. All these witnesses were duly cross-examined by the respective Ld. Defence Counsel for accused no. 2 on one hand and for accused no. 3 and 4 on the other. While under cross-examination on behalf of accused no. 2, PWs deposed that the sample packets were lifted in sealed condition only, that there was no tampering in the seals, that the vendor had disclosed at the spot that the commodity had been purchased from accused no. 2 vide bill Mark-X (the original of which Ex. PW-2/DA was produced by accused no. 2), and that the label declarations had been reproduced on Form-VI. While under cross-examination on behalf of accused no. 3 and 4, the PWs deposed that the sample commodity was not packed or supplied or delivered by accused no. 4 company on their presence, and that the packets were not weighed at the spot, as net weight was mentioned on the label. They denied that different samples had been lifted which were not identical, or that the samples were lifted in contravention of Rule 22A of PFA Rules. The witness expressed ignorance when suggested that there were two varieties of dal moong being sold by accused no. 4, that is, 'ordinary' variety and 'select' variety.
7. Statements of the accused no. 2, 3 and 4 (through accused no. 3 AR) under section 313 CrPC were recorded on 19.11.2013 wherein they denied CC No. 68/03 Page 6 of 54 the allegations and pleaded innocence. They expressed ignorance of the sample proceedings on the ground that they were not present at the spot. Accused no. 2 the disputed the PA report and claimed that he never received the intimation letter. He questioned the CFL report on the ground that it was divergent to the PA report. He took stand that he was a distributor of the accused no. 4 company and had purchased the food article from it vide bill no. 78656 dated 08.09.2002, and that he had sold the same to accused no. 1 in the same condition as purchased. On the other hand, accused no. 3 and 4 questioned the PA report terming it as erroneous and the CFL report on the ground that the sample commodity did not pertain to them. They took stand that they never sold the sample commodity to M/s. Amba Traders. They accepted the bill Mark-X to be pertaining to them, yet claimed that the Moong Dhuli which was lifted for sampling was of some other variety and not which was supplied by them. No evidence in defence was led by the accused persons despite opportunity.
8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the CFL report dated 17.04.2003 which as per section 13(3) and (5) of PFA Act is final and conclusive, and which has confirmed the findings given by the PA. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
CC No. 68/03 Page 7 of 549. On the other hand, respective Ld. Defence Counsel for the accused persons have submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel for accused no. 2 has claimed the benefit of warranty under section 19(2) of PFA Act on the ground that the sample was purchased by him from accused no. 4 against a proper bill which constitutes a warranty in writing and also that the food article was stored and sold to accused no. 1 in same sealed condition in which it was purchased from the accused no. 4. On the other hand, Ld. Counsel for accused no. 3 and 4 has contended that the bills placed on record nowhere connects the sampled food article with accused no. 4, pointing out that the sample pertained to "Select" variety of the dal, which fact has not been mentioned in any of the bills. It is strongly argued that the report of CFL is not reliable, on the ground that there it is at variance when compared to the PA report. It is asserted that the sample proceedings were not proper as the FI was required to open the sealed packets, to transfer their contents to another container, to mix it properly and then to divide the same and pack them separately. Additionally, it is submitted that no percentage or extent of synthetic colour Tartrazine has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is then submitted that Tartrazine is not a harmful colouring matter as its use is permitted in many food articles. Ld. Counsel has submitted that tartrazine is a water soluble colour and when the Dal Moong Dhuli is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is finally contended that the CC No. 68/03 Page 8 of 54 laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law.
10. I have heard the arguments advanced by Ld. SPP for the complainant and the respective Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
11. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a), (b), (j) and (m) of the PFA Act read with Rules 23, 28 and 29 of PFA Rules with respect to 'adulteration' and for violation of section 2(ix)(k) of the PFA Act (though this provision has not been specifically mentioned in the charge so framed) read with Rule 42(zzz) of PFA Rules with respect to 'misbranding'. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(b) is applicable if the article contains any other substance which affects injuriously the nature, substance or quality thereof. Section 2(ia)(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which does not render the food article injurious to health. Section 2(ix)(k) applies when there is violation of the labelling rules on the food article.
CC No. 68/03 Page 9 of 5412. The commodity in the present case is Dal Moong Dhuli which is food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.10 of Appendix B of the PFA Rules. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter Tartrazine in the sample analysed. On this point, the reports are conforming to each other and not at variance.
13. But the defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, moisture content was 10.50%, whereas according to the CFL report, moisture content was 8.8%.
14. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL (on moisture content), the samples were not representative'. Pointing out the above said variation in the moisture content and foreign organic matter, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused.
15. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in CC No. 68/03 Page 10 of 54 State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
16. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
17. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
18. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard CC No. 68/03 Page 11 of 54 of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
19. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
20. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was CC No. 68/03 Page 12 of 54 observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
21. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
22. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
23. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is CC No. 68/03 Page 13 of 54 done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".
24. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as CC No. 68/03 Page 14 of 54 found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
25. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of CC No. 68/03 Page 15 of 54 delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
26. This judgement was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. MCD [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The CC No. 68/03 Page 16 of 54 Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director".
27. In MCD v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in MCD v. Manohar Lal [1975 (1) FAC 182].
28. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL. But mere delay in CC No. 68/03 Page 17 of 54 analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.
29. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it CC No. 68/03 Page 18 of 54 would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
30. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead CC No. 68/03 Page 19 of 54 to conclusion that the samples were not representative, would certainly be not tenable.
31. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
32. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
33. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as CC No. 68/03 Page 20 of 54 to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
34. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the CC No. 68/03 Page 21 of 54 ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 5%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%.
CC No. 68/03 Page 22 of 54Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
35. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of CC No. 68/03 Page 23 of 54 food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.
36. As mentioned earlier, this judgement has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
37. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
38. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were CC No. 68/03 Page 24 of 54 more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
39. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
40. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
41. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not CC No. 68/03 Page 25 of 54 representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
42. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.
43. Even otherwise, if the variations, if they can be so called, are noticed, they are very marginal. Such variations are certainly due to time gap between the analysis by PA and CFL. Change in moisture content is always expected due to impact of internal heat of the food article, outside atmosphere, presence of light, pressure and air, storing conditions etc. But when the complaint is not on account of presence or absence of moisture or any other parameters but on account of presence of synthetic colouring matter, which would not develop due to any passage of time, no benefit can be granted to the accused. Even if the moisture content has undergone a change during the intervening period, the sample would still fail due to CC No. 68/03 Page 26 of 54 presence of synthetic colouring matter the use of which is absolutely prohibited in food grains.
44. There is nothing for the court to disbelieve the PA and CFL reports wherein artificial synthetic colour tartrazine has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused persons that no colour was detected, or was detected wrongly. In this case, no stand has been taken by the accused persons at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused in his statement under section 313 CrPC or even in defence evidence.
45. As per Rule 23 of PFA Rules, addition of a colouring matter to any article of food except as specifically permitted by the Rules is prohibited. Rule 28 provides the details of colours permitted for use and Rule 29 enlists the food articles in which synthetic colours are permitted. A bare perusal of this list would show that it does not mention food grains as the food in which any such synthetic colour is permitted. The obvious inference is that use of such synthetic food colour is totally prohibited for use in food grains, though they are permitted in specified food articles within the prescribed limits. Thus, there is no force in the stand of the accused persons that this colour is permitted for use in other food articles.
CC No. 68/03 Page 27 of 54When the use of any such colour is absolutely prohibited for this product, no such colour can be used.
46. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of dal Moong Dhuli. It would not make any difference if the analysts have not given the percentage of colour used. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted up to certain prescribed limits and not where it is totally prohibited. In any case, it would be for the accused persons to show as to on what basis they claim presence of such colouring matter in traces in food article in question. The burden would upon be them to show how even traces of colour could have entered the food article being sold by them. But no evidence has been led by the accused persons to establish this fact.
47. Similarly, there is no merit in the contention that Tartrazine is a water soluble colour and no prejudice would be caused to any customer because dal Moong Dhuli would be washed before preparation. As per section 19(1) of PFA Act, it shall be no defence that the food article sold had not caused any prejudice to the purchaser. Just because some synthetic colour is water soluble and the food article is generally washed before being cooked, that gives no right to anyone to use prohibited synthetic colours in food articles in violation of statutory provisions.
CC No. 68/03 Page 28 of 54Thus, it is clear that the food article dal Moong Dhuli was adulterated within the meaning of section 2(ia) of PFA Act being in violation of Rule 23 read with Rules 28 and 29. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, dated 18.02.2013] which are squarely applicable to this case.
48. The requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and condiments, it is necessary to mix and homogenise the samples so as to evenly distribute there ash content, moisture, broken grains, etc. If it is not so done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling.
49. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk or spices contains deadly poison which is a prohibited substance, then presence of even minuscule percentage of such substance would make out an offence. Making such a sample CC No. 68/03 Page 29 of 54 homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.
50. In this perspective, if the sample of Dal Moong Dhuli was to fail on account of ash content, moisture, damaged seeds, etc, then proper homogenization would have been required. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in food grains, then any homogenization would be immaterial. Even if homogenized in best possible manner, such colour would still be there, though evenly distributed, which would still be an offence in any case. In the present case, even if it is assumed that the sample had not been properly homogenized (though there is no evidence to this effect), that would have no bearing on the test results. Even if the synthetic colours are evenly distributed, that would still make out the offence of adulteration because such colours are totally prohibited for use in food grains.
51. The defence vaguely claims that the sample was not taken properly and that the possibility of contamination has not been ruled out. However, no irregularity has been pointed out by the accused in sample proceedings, CC No. 68/03 Page 30 of 54 except giving bald suggestions to the PWs which were categorically denied by them.
52. On similar reasoning, there would be no force in the reliance being placed by the defence on Rule 22A of PFA Rules. Ld. Defence Counsel has argued that the sample was lifted in violation of Rule 22-A and the proper method was to open the seal of the polypackets, transfer and mix its contents, and then divide and pack them separately. Rule 22-A lays down that where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample. The argument of defence, as to non-applicability of Rule 22-A is, that sealed polythene packets cannot be called as sealed "containers" as used in this Rule.
53. It is to be noted that Rule 22 of PFA Rules provides for the quantities of sample of food to be sent to the PA/Director for analysis. It enlists various food articles / category of food articles and the minimum quantities to be sent by the FI to the analysts. It is interesting to note that as per the 'Note' to the Rule 22 (which was inserted in 2005), food sealed in packaged condition (sealed container or package), shall be sent for analyses in its original condition, without opening the package as far as practicable, to constitute approximate quantity along with original label. Thus, in the year 2005 this 'Note' to Rule 22 laid down that in case of sealed containers and packages, the original sealed packet should be sent for analyses without opening it, to constitute approximate quantity along CC No. 68/03 Page 31 of 54 with original label. Thus, if we go by this provision, the FI was required not to open the sealed packets and to lift the same in sealed condition only. Even prior to amendment, it was not improper to lift the sealed packets instead to opening and homogenising them. Rule 22A only pertains to the quantity required and not to the validity of sampling, particularly when the incriminating substance is such which would not change even if the packets were opened, or contents mixed and then divided separately. As already stated, even the best possible homogenisation would not have resulted in the disappearance of synthetic colour present. Thus, even if the packets were cut opened, its contents mixed and then divided, the colour would still have been there. Presence or absence of such colour was not dependant on such sample proceedings.
54. As per Rule 22-B, notwithstanding anything in Rule 22, the quantity of the sample sent for analysis shall be considered as sufficient unless the PA or the Director (CFL) reports to the contrary. Thus, in view of such provisions, there was no infirmity in the sampling method.
55. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is pointed out that the PA report is silent as to the method of testing adopted by her and to show if that method was valid or sure test. It is particularly submitted that if tartarzine was detected using paper chromatography method, then that method is not a sure test. Similarly, it is submitted that the CFL has not specifically mentioned as to what test was adopted out of various tests prescribed under DGHS manual.
CC No. 68/03 Page 32 of 5456. Well, the court does not find merit in the said submissions. It is to be understood that report of chemical experts is admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such report cannot be questioned on any point on which it is silent. If the accused persons wish such report to be clarified or questioned, they have an option available to them to apply to the court under section 293 CrPC and cross-examine the analyst. Despite such option being available, if the accused persons fail to exercise the same, they cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that DGHS method had been used by the analyst to determine the presence of synthetic food colours. In such a case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him/her about the method used to detect synthetic colour, if they were genuinely feeling aggrieved by his/her failure to name the test method. The CFL (and even PA) maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The report and certificate on record are only the final figures as given in the format prescribed under the PFA Rules. (The report of PA is as per the format prescribed under the Rules that existed at the relevant time before they were amended). They do not CC No. 68/03 Page 33 of 54 contain all the details of the entire analysis from beginning to end and such data can always be called by the accused persons if desired. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them. This was obviously not the responsibility of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that "the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
57. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused persons. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused persons as aforesaid to ask the CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused persons also chose not to examine any expert witness in defence to establish their stand that the paper chromatography test is not a sure test.
CC No. 68/03 Page 34 of 5458. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets or sauces) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.
59. Now coming to the defences raised by the accused persons. Ld. Defence Counsel has tried to propound a claim that there were two different qualities / brand names under which the accused no. 4 company used to sell the food article Dal Moong Dhuli. It is submitted that one variety was "ordinary" dal and the other verity was "select" dal dhuli. Ld. Counsel has pointed out that the Dal Moong Dhuli which was sold vide bill dated 09.09.2002 Mark-X and bill dated 08.09.2002 Mark-X1 pertain to ordinary variety and these bills do not show that it pertained to "select" variety of Dal Moong Dhuli, the sample of which was lifted from the accused no. 1 vendor. Ld. Counsel therefore submits that the bills in question do not pertain to the food article as lifted from the spot and CC No. 68/03 Page 35 of 54 therefore, accused no. 3 and 4 never sold the food article the sampled commodity, that is, ordinary variety of Dal Moong Dhuli to accused no. 1 or accused no. 2 against any bill.
60. At the outset, there is nothing to show that there are two separate varieties or brand names ('ordinary' and 'select') of dal moong dhuli being sold by accused no. 4 company. No such fact has been proved on record through any witness. No witness has been examined by the accused no. 3 and 4 in their support, who could step into the witness box and pass the tests of cross-examination by the opposite side on this point. No record whatsoever including the account books, stock registers, bills of sale or purchase, etc. have been shown by accused no. 3 and 4 on the basis of which the court may conclude that there were two different varieties being sold by them, as claimed. There is no documentary or oral evidence to show that some Dal Moong Dhuli of ordinary brand ever existed or ever stocked or sold to any customer or any distributor which was not having the brand name "select". Similarly, there is no evidence that the dal moong dhuli sold under "select" brand was different from any other variety being sold under any other brand name of the accused persons. No bills of sale or purchase of dal moong dhuli have been placed on record showing if Dal Moong Dhuli was purchased or sold by the company under two different varieties or brand names, that is, "select" and "ordinary", if at all such different brands existed.
61. On the other hand, the bill Mark X-1 dated 08.09.2002 (admittedly issued by accused no. 4) shows various varieties of dals but there is no CC No. 68/03 Page 36 of 54 mention of any Dal Moong Dhuli of "select brand". Similarly, in the bill Mark X dated 09.09.2002 issued by accused no. 2, there is no mention of existence of any Dal Moong Dhuli of "select brand", though the printed format of bill mentions all the dals/pulses/grains being sold, whether purchased or not. Thus, except the bald averments that there were two different varieties of Dals being sold under different trade names, there is absolutely zero evidence to prove this fact. Also, no such stand was taken by accused no. 4 while giving reply Ex. PW1/D-1 to the FI. Rather in this reply, the company had never denied having sold the food article to accused no. 2 in the manner as it denied having sold the food article to accused no. 1. It has been specifically mentioned in the reply that the company did not sell the product to M/s. Akash Traders and they never claimed that the product was not sold to M/s. Amba Traders. Therefore, there is nothing to show that any variety of dal moong dhuli ever existed or being sold by accused no. 4 under some trade name which was different from the one lifted in this case.
62. In any case, even if it is accepted that the bill mark - X and X-1 do not pertain to accused no. 4, that would not give any benefit to accused no. 3 and 4 being the manufacturers. A bill is required for the vendor / distributor / supplier to claim the benefit of warranty under section 19(2) of PFA Act. If such a vendor / distributor / supplier is able to show that he had purchased the food article from some other person against a warranty in writing (as per proviso to section 14 of PFA Act, a bill, invoice, cash memo shall be deemed to be a warranty) and that the food article was sold in the same state as purchased, he shall not be deemed t have committed CC No. 68/03 Page 37 of 54 the offence of selling an adulterated or misbranded food article. But no such benefit can be claimed by the manufacturer, primarily because the manufacturer has not purchased the food article from any other person. Thus, if there is no bill which could qualify to be called as a warranty with respect to any food article, the vendor or distributor shall face the consequences and existence of such a bill will give them benefit. But as far as the manufacturers are concerned, their liability does not depend on the availability or non-availability of any bill with any distributor or vendor, provided it is established that the food article had been manufactured by such a manufacturer.
63. The fact that accused no. 4 is the manufacturer of the food article in question is established from the label declarations on the product, as reproduced by the FI on Form VI Ex. PW-1/B. The complete name and address of accused no. 4 have been clearly mentioned on the label of the food article. It is nowhere the case of the accused no. 3 and 4 that the said article was a duplicate or spurious product being wrongly sold under their name. They have not called for the original labels from the office of the PA or LHA or CFL so as to compare them with their actual labels, in case they claim that the product was not theirs. Though it has been claimed that the food article lifted from the vendor was different from the one sold by them through bill mark X-1, yet it is nowhere the case of these accused persons that the sampled food article did not belong to them or was not processed or packed by them. Even if the bills mark X or X-1 are excluded from consideration for the time being, no benefit could be given to the accused no. 3 and 4 in the capacity of manufacturers of the products, CC No. 68/03 Page 38 of 54 though that might affect the liability of accused no. 1 and 2. It is to be seen that the accused no. 3 and 4 have never denied that the "select" brand / trade name, the sample of which was lifted, also pertain to them. Even during the cross-examination of PW-1, suggestions were given to him to the effect that there were two varieties of Dal being manufactured and sold by them, ordinary and select. Even if it is accepted that there existed two such brands/varieties, or that the bills Mark-X and Mark-X1 do not pertain to "select" brand, or that they pertain to "ordinary" brand, yet it would be clear that both the said varieties belong to accused no. 3 and 4 only. They have rather owned up the fact that both the said varieties, if at all they exist, were being processed and packed by them. Therefore, even if any vendor / distributor fails to produce or prove the bill in his favour, the benefit or liability thereof would be suffered by him but as far as manufacturer is concerned, its liability does not depend on the production or non-production or wrong production of any bill by any vendor / distributor.
64. Moreover, there is no reason for the court to disbelieve the genuineness of the bills Mark-X and Mark-X1, which must have been verified by the FI when he accepted photocopies during the course of investigation. Otherwise, there was no need for the FI to reply on them and to implicate the accused persons on their basis. It is nowhere the case of the accused persons that these bills were forged or fabricated documents. Rather in its reply, accused no. 4 nowhere claimed that it pertained to some other quality of dal. No claim was made by accused CC No. 68/03 Page 39 of 54 no.3 or 4 before the FI to the effect that the product did not belong to them or that the sample commodity did not pertain to the bill in question.
65. Thus, even if there were two varieties of Dal Moong Dhuli being processed, packed and sold by the accused no. 4, both of them would still fall within the standards in Item No. A.18.06.10 of Appendix-B of PFA Rules. It is not that synthetic colour, as detected in the present case by both the PA and CFL, was permissible in either ordinary or select variety. Whatever variety of Dal Moon Dhuli it was, it was required to be free from any added synthetic colour. Being a manufacturer and nominee who is deemed to be in charge of and responsible to the company for its affairs under section 17 of the PFA Act, the accused no. 4 and 3 would be responsible for such adulteration.
66. There is no merit in the stand of the accused persons that the witnesses were not present when the food article was sold or delivered or packed by accused no. 4. It was not possible for these witnesses to remain present at the time of packing or delivery or sale. There is no rule that requires that only those samples could be lifted from the vendor or only those manufacturers could be implicated where the food officials remain present during packing or delivery of the product. No such requirement is there under the law that the prosecution should produce such witness in whose presence the product was packed / delivered.
67. If accused no. 4 claims that the sample did not belong to them, there was no occasion for him to move an application under section 13(2) of CC No. 68/03 Page 40 of 54 PFA Act for getting the second counterpart of sample analyzed by the CFL. Ordinarily, it should have simply proved that the product did not belong to it. But it has taken such stand only after the CFL report also went agaist them. Thus, this conduct also goes against them.
68. It is submitted by ld. defence counsel for accused no. 3 and 4 that accused no. 2 was not its authorized dealer, as claimed by accused no. 2. Well, this fact is immaterial to establish if the accused no. 3 and 4 were the manufacturers of the product. Even if the accused no. 2 was not its authorized dealer or was not having a valid bill, he would get the benefit or face the liability accordingly. But as far as accused no. 3 and 4 are concerned, when it is established that the food article was packed by them, they would be liable in their own capacity.
69. PW-1 was given suggestion that the Dal Moong Dhuli had its own colour. PW-2 was suggested that there might be only traces of colours in the Dal Moong Dhuli. PW-3 was also suggested that the tartrazine was added as preservative in the dal. Again, these are only bald suggestions and no expert witness has been examined in defence to establish if the dal has its own colour or if such colours are added for preservation of dal, or if the dal has natural colour. The colour has been identified by both the analysts, PA and CFL, in conformity to each other. Even if the colour was in traces, as claimed, that would make out violation of PFA Act, unless accused is able to prove its defence that it was beyond his control or was despite his due diligence. Going by the Rules 28 and 29 of PFA Act and also the above referred precedents, it is clear that use of such synthetic CC No. 68/03 Page 41 of 54 colours is absolutely prohibited in food grains. The natural colour of dal is never a violation of PFA Rules. Such natural colour fades away during testing and it is only the artificial synthetic colour that is incriminating. Tartrazine is not a natural colour ans is a synthetic colour. There is nothing to show that such colours are permitted to be used as preservatives in dal. Therefore, the matter would certainly fall under the category of adulterated food article.
70. Now coming to the allegation of misbranding. It is pointed out by Ld. Defence Counsel that the PA and the CFL reports are at variance on this point, as the PA never found the food article was to be misbranded but the CFL opined that the vegetarian symbol was missing from the label. Ld. Defence Counsel thus submits that representative samples were not taken and has contended that few packets were bearing the vegetarian symbol and others were not, as also suggested to PW-1, which he denied.
71. Well, it is not understood as to how such a defence would give any benefit to accused no. 3 and 4. All the witnesses deposed that the packets were bearing identical label declarations. The declaration reproduced on Form VI Ex. PW-1/B and Ex. PW-1/D as well as the observations of the CFL certificate dated 17.04.2003 would show that the samples were having identical label declarations. The sample bore the same Lot number as 15, same date of packing as 04.08.2008, same best before date as 04.08.2009, same price of the packet as Rs. 26/-, same net weight of packet as 500 gram and the same name of the packer as accused no. 4 company.
CC No. 68/03 Page 42 of 5472. Therefore, there is no doubt that the food article lifted by the FI belonged to the same lot / batch. This fact has also not been disputed by the defence not any sugegstion given to any witness. Therefore, if the accused persons claim that some packets were having vegetarian symbol and other were not having such a symbol, then this fact would also boomerang back on them, as there is no explanation why they used two different label declarations on the commodity packed under the same lot number. This defence rather goes to establish that the accused persons were selling the food article under the same lot number wherein vegetarian symbol was put on some packets and omitted on some. It is nowhere the case of the accused persons all the packets had vegetarian symbols or that the CFL report is wrong on this point. Thus, even the accused persosn by putting such suggestion admitted that there was no vegetarian symbol on some packets as observed by the CFL, which would make out violation of Rule 42(zzz)(17) of PFA Rules.
73. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of CC No. 68/03 Page 43 of 54 cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc.
74. The defence lastly claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 10.02.2003 on the basis of the Public Analyst's report dated 24.09.2002. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the CC No. 68/03 Page 44 of 54 first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
75. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
76. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official CC No. 68/03 Page 45 of 54 gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/F also mentions that she has been duly appointed and this fact was never disputed at the time of trial.
77. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to CC No. 68/03 Page 46 of 54 analyse the samples as per the Act. At the relevant time, CFL Pune had been specified to be the laboratory for Delhi region.
78. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."CC No. 68/03 Page 47 of 54
79. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
80. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
81. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The CC No. 68/03 Page 48 of 54 relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
82. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court CC No. 68/03 Page 49 of 54 was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is for violation of section 2(ia)(a), (b), (j) and (m) of the Act. The present case would be squarely covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.
83. There is also no merit in the submission that no offence under section 2(ia)(j) is made out. In view of Rules 23, 28, 29 and 30 of PFA Rules, it is clear that the presence of colour in food grains like dal Moong Dhuli should be nil. It cannot be said that no standards have been prescribed. As such, the presence of synthetic colours would be covered under section 2(ia)(j) and it is not a simple case of misbranding. Had it CC No. 68/03 Page 50 of 54 been a case where colours were permitted and the presence of such colour had not been mentioned on the label, only in that case it would have been a case of misbranding simplicitor.
84. Having concluded so, it would be however seen that the case of the accused no. 2 supplier/distributor would be on different footing from that of the accused no. 3 and 4 manufacturers.
85. As per the accused no. 2, he had purchased the commodity from accused no. 4 vide invoice Mark-X1. Copy of this invoice had been furnished to the FI during the course of investigation promptly. It is important to note that the prosecution or even the accused no. 4 has never questioned or disputed the correctness of this invoice. It is nowhere the case of the prosecution that the bill furnished on record was invalid or forged. They have never claimed that no such bill existed in their records and no such records have been produced to show that some other bill was there for that day. There is no merit in the stand of the accused no. 4 that the bill does not pertain to food article in question.
86. It is an admitted position that the product was in originally sealed condition and there was no tampering in the same. As per the concept of warranty under section 19(2) of the Act, a person is not deemed to have committed an offence if he establishes that he had purchased a food article against a warranty in writing and also that the product was sold in the same state as purchased. As per proviso to section 14 of the PFA Act, a cash memorandum, bill or invoice shall be deemed to be a warranty in CC No. 68/03 Page 51 of 54 writing. Thus, accused no. 2 shall be protected under warranty, having purchased the same from accused no. 4 against the bill dated 08.09.2002, copy of which is Mark-X1 and having sold it to vendor in same state in which it was purchased.
87. But as far as accused no. 3 and 4 are concerned, there cannot be any such benefit of warranty as it they were the manufacturers/packers of the food article. They never disputed the fact that the food article had been manufactured by them. Of course, duplicate products exist in the market but that it by itself would not exonerate all the manufacturers from the purview of PFA Act with respect to all the food articles. If a particular manufacturer is able to establish at a trial that the product in question was a spurious or duplicate product being sold under its name, it may get the benefit. But vaguely claiming that duplicate products are available in the market, would certainly be not enough to establish that the product in question was also a duplicate or spurious product. In the present case, there is no material on behalf of accused no. 3 or 4 that the sampled commodity was not their product.
88. Similarly, the accused no. 3 has never disputed the fact that he was the nominee appointed by accused no. 4 company as per section 17 of PFA Act. The nomination papers were obtained by the FI from the concerned LHA, the genuineness of which has never been disputed. Accused no. 3 never claimed that he had not been so appointed or that he ceased to be a nominee from any particular date or that he was not the nominee of Delhi region. Being a nominee, as per section 17 of the PFA CC No. 68/03 Page 52 of 54 Act, such person is deemed to be in charge of or responsible for the affairs of the company. The accused never attempted to take defence that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of the offence, as available to him under the Proviso to section 17(1) of the PFA Act.
89. The case in hand would be thus covered under section 2(ia)(a) as the Dal manufactured/packed/sold by the accused no. 3 and 4 was not of the nature, substance or quality which it purported and represented to be, under Section 2(ia)(j) as there is presence of colour which is not permitted in this article and under section 2(ia)(m) of PFA Act as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited. Further, due to absence of vegetarian symbol on the label, there is violation of Rule 42(zzz)(17) of PFA Rules and consequent violation of Section 2(ix)(k) of PFA Act. However, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was affecting injuriously its nature, substance or quality thereof so as to make out violation of section 2(ia)(b).
90. Violation of section 2(ia)(j) is punishable under section 16(1A) and violation of section 2(ia)(a) and (m) is punishable under section 16(i)(a) of PFA Act. But being graver offence, their conviction for the offence of adulteration can be under section 16(1A) of PFA Act. At the same time, violation of section 2(ix)(k) is punishable under section 16(1)(a) and has to be punished separately for the offence of misbranding.
CC No. 68/03 Page 53 of 5491. Thus, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 3 and 4 beyond the shadow of reasonable doubt. It has been proved that the accused no. 4 company had manufactured/sold adulterated food in violation of section 2(ia)(a), (j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, and have committed the offence punishable under section 7/16(1A) of PFA Act. Accused no. 3 being its nominee would also be liable under section 17 of the PFA Act. Further, they have manufactured/sold a misbranded food in violation of section 2(ix)(k) of PFA Act read with Rule 42(zzz)(17) of PFA Rules, and have committed the offence punishable under section 7/16(1)(a) of PFA Act.
92. Thus, accused no. 3 and 4 are held guilty and are convicted for the offence of selling adulterated food as punishable under section 16(1A) of PFA Act and also for selling misbranded food as punishable under section 16(1)(a) of PFA Act. As far as accused no. 2 is concerned, he is given the benefit of warranty under section 19(2) of PFA Act and is acquitted of the charges. His bail bonds shall remain in force for the next six months in terms of section 437-A, CrPC.
93. Let the matter be listed for arguments on sentence qua the convicted accused no. 3 and 4. Accused no. 1 continues to be a proclaimed offender.
Announced in the open court
this 20th day of March 2017 ASHU GARG
ACMM-II (New Delhi), PHC
Judge Code: DL0355
CC No. 68/03 Page 54 of 54