Delhi District Court
Da vs . Jitender Kumar Etc. Page 1 Of 63 on 24 June, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 118/03
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
1. Jitender Kumar s/o Sh. Bhagat Singh
M/s Jitender Store,
Shop No. 1,2 Main Bus Stand,
Karala, Delhi81
........ Vendorcumproprietor
2. Sh. Yogesh Kumar Goel
s/o Sh. Rajinder Prasad Goel
M/s Deepak Kumar Suyash Kumar,
4059, Naya Bazar,
Delhi06 ..........Partner of supplier firm
3. M/s Deepak Kumar Suyash Kumar,
4059, Naya Bazar,
Delhi06
..........Supplier firm
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DA Vs. Jitender Kumar etc. Page 1 of 63
4. Sh. Anil Kumar s/o Sh. Mool Chand
M/s Aggarwal Dall & Flour Mills,
Khasra No. 91, Village Sannoth,
Narela, Delhi40 ............Proprietor of manufacturing firm
Serial number of the case : 118/03
Date of the commission of the offence : 12/08/02
Date of filing of the complaint : 27.02.2003
Name of the Complainant : Sh. Sanjiv Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954, r/w Rule 23, 28 and 29 of
PFA Rules, punishable U/s 16(1A)
r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Accused no. 1 Convicted
Accused no. 2 to 4 Acquitted.
Arguments heard on : 24.06.2014
Judgment announced on : 24.06.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 12.08.2002 at about 06.30
p.m. Food Inspector Sanjiv Kumar Gupta and Food Inspector Pramod Kothekar, under
the supervision and directions of SDM / LHA Sh. Kartar Singh visited M/s Jitender
Store, S. No. 1,2 Main Bus Stand, Karala, Delhi where accused Jitender Kumar
(accused no. 1) who was the vendor cum proprietor of above firm was found present
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conducting the business of various food articles including Dal Arhar, for sale for human
consumption and in compliance of the provisions of the Prevention of Food
Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as the Act & Rules) the Food Inspector collected / purchased
the sample of Dal Arhar.
2. During the course of investigation it was revealed that the sample
commodity was supplied to accused no. 1 by M/s Deepak Kumar Suyash Kumar
(accused no. 3) of which Sh. Yogesh Kumar (accused no. 2) is the partner and
therefore responsible for the day to day conduct of the business of the above firm.
3. Investigation further revealed that M/s Deepak Kumar Suyash Kumar had
itself purchased the sampled food product from M/s Aggarwal Dall & Flour Mills who
had manufactured the same, of which Sh. Anil Kumar (accused no. 4) is the
proprietor and responsible for/Incharge of day to day conduct of the business of the
said firm.
4. 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
Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) (b) (j)
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& (m) of PFA Act 1954 and, for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules
1955, punishable U/s 16 (1A) r/w Section 7 of the Act.
5. After the complaint was filed, the accused persons were summoned vide
orders dated 27.02.2003. Accused Jitender Kumar after filing his appearance moved
an application under Section 13(2) of PFA Act to get analyzed the second counterpart
of the sample from Central Food Laboratory and consequent thereto second
counterpart of the sample as per the choice of the accused was sent to Director, CFL
(Pune) for its analysis vide orders dated 02.04.2003. The Director, CFL after
analysing the sample opined vide its Certificate dated 05.05.2003 that "sample does
not conform to the standards of split pulse (Dal) as per PFA Rules 1955 ". The
Director so opined as the sample was found containing synthetic food colour tartrazine
though as per Rules/standards it ought to have been free from any colouring matter.
6. In pre charge evidence, the prosecution examined two witnesses i.e. the
then SDM/LHA Sh. Kartar Singh as PW1 and Food Inspector Sh. Sanjiv Kumar Gupta
as PW2 and pre charge evidence was closed vide order dated 06.11.2006.
7. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954, Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w
section 7 of the Act was framed against the accused persons vide order dated
14.01.2009 to which accused persons pleaded not guilty and claimed trial.
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8. Thereafter, in post charge evidence the prosecution examined three
witnesses including the then SDM/LHA Sh. Kartar Singh as PW1, Food Inspector Sh.
Sanjiv Kumar Gupta as PW2 and Food Inspector Sh. Pramod Kothekar as PW3 and
and PE was closed vide order dated 09.12.2010.
9. Statement of the accused persons U/s 313 Cr. P.C. were recorded on
05.09.2011 wherein the accused persons claimed themselves to be innocent.
Accused Jitender Kumar examined himself as defence witness in his defence as DW1.
A brief scrutiny of the evidence recorded in the matter is as under:
10. PW1 Sh. Kartar Singh, SDM/LHA deposed that on 12.08.2002 he was
posted as SDM/LHA Saraswati Vihar and on that day under his supervisions and
direction FI Sanjiv Kumar Gupta, FI Dr. Pramod Kothekar with staff visited M/s
Jitender Store, Shop. no. 12, Main Bus stand, Karala, Delhi 81 where accused
Jitender Kumar was found conducting the business of food articles stored there for
sale for human consumption including Dal Arhar. He deposed that they disclosed their
identity and intention for purchasing Dal Arhar (ready for sale) for analysis to which
accused agreed. He deposed that FI S.K. Gupta tried to join some public witnesses to
join the sample proceedings but as none came forward on his request FI Pramod
Kothekar agreed and joined as a witness. He deposed that the sample of 750 gms of
Dal Arhar was taken at about 06.30 p.m. from an open gunny bag bearing no label
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declaration after mixing with the help of a clean and dry jhaba by rotating in all
possible directions several times clockwise, anticlockwise up and downwards several
times. He deposed that the FI then and there divided the sample equally in three equal
parts by putting them in three clean and dry bottle. He deposed that the each sample
bottles were separately packed, marked, fastened and sealed according to PFA Act
and Rules. He deposed that the sample price Rs. 19.50/ was given to the
accused/vendor and the same was accepted by the accused. He deposed that then
vendor receipt Ex. PW1/A was prepared. He deposed that the notice in form VI Ex.
PW1/B was prepared and a copy was given to the accused as per his endorsement at
portion A to A bearing his signature at point A. He deposed that the panchnama Ex.
PW1/C was prepared. He deposed that the accused/vendor gave his statement Ex.
PW 1/D bearing his signature at point 'A'. He deposed that the all these documents
Ex. PW1/A to Ex. PW1/C were read over and explained to the accused in Hindi and
after understanding the same, accused signed at point A and witness signed at point B
and FI S K Gupta signed at point C respectively. He deposed that the one counter part
of the sample was deposited in intact condition with the PA on 13.08.2002 vide receipt
Ex. PW1/E along with one copy of Memo in Form VII and another copy of Memo Form
VII in a separately sealed envelope as intimated and the remaining two counter parts
of sample in intact condition along with two copies of Memo of Form VII in a sealed
packet were deposited with him on 13.08.2002 vide receipt Ex. PW1/F bearing his
signature at point A. He deposed that all the copies of Memo of Form VII were marked
with the impression of seal which was used to seal the sample counter parts. He
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deposed that on receipt of the PA report Ex. PW1/G according to which sample was
found adulterated being colored with synthetic colouring matter Tartrazine as
mentioned therein at portion X. He deposed that after completion of the investigation
the complete case file along with all the statutory documents were sent to the Director
Sh. K.S. Wahi through him who after going through the entire case file, applied his
mind and gave the sanction for prosecution Ex. PW1/H against the accused persons
who were found to be incharge and responsible. He deposed that the complaint Ex.
PW1/J was filed in court by FI Shri Sanjiv Kumar Gupta bearing his signatures at point
A on each page. He deposed that the intimation letter Ex. PW1/K along with the PA
report were sent to the accused persons mentioned therein by registered post through
him which were not received back undelivered. He deposed that the postal
registration receipt copy is Ex. PW1/L bearing the relevant entry at portion A.
11. During cross examination by Ld. counsel for accused no. 4 he stated that
the FI lifted the sample out of open gunny bag having no label declaration. He stated
that he does not recollect the exact capacity of that bag. He stated that there was
approximately 20 or 25 kg. of dal in that bag. He stated that it is perhaps correct that
no bill was shown to the FI by the vendor regarding purchasing of sample dal from
Deepak and Aggarwal Dal Mill. He stated that at the spot no notice u/s 14 A was
issued by the inspector to Deepak Kumar and Suyash Kumar, Naya Bazar, Delhi. He
denied the suggestion that they generally do not entertain any bill of purchase if shown
by the vendor in the case of sample lifted from open container/bag. He stated that he
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cannot tell that the sample commodity was supplied by accused no. 4 Anil Kumar to
vendor. He stated that at the time of sampling, they could not inform the name of the
manufacturer by the vendor. He stated that FI Sanjeev Kumar Gupta conducted the
investigation under his supervision. He stated the file was put up to the Director, PFA
for granting sanction through him. He denied the suggestion that the Director, PFA
had not applied proper mind while granting sanction.
12. During his cross examination conducted by Ld. counsel for accused no. 1
he admitted that Food Inspector collected the bill of purchase from the vendor during
investigation. He admitted that Ex. PW1/D1 is the original of Mark B.
13. During his cross examination by Ld. counsel for accused no. 2 and 3 he
stated that sample was taken from open gunny bag having no mark or label
declaration. He stated that no purchase bill was shown by the vendor at the spot. He
stated that there might be 25 Kgs of Dal Arhar in which the sample was lifted under his
supervision. He stated that he does not remember any case in which the sample was
lifted from open gunny bag without any label and only on the verbal statement, the
alleged supplier was prosecuted.
14. PW 2 FI Sanjiv Kumar Gupta and PW3 FI Sh. P.M. Kothekar deposed on
the same lines as deposed by PW 1 in his examination in chief.
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15. Accused no. 1 Jitender Kumar led the defence evidence as under:
16. DW1 Jitender Kumar deposed that he is running a general Store in
Karala, Delhi, under the name of Jitender General Store and he sells various kiryana
items, including Pulses, Rice etc. He deposed that he had purchased the sample
commodity from M/s Deepak Kumar Suyash Kumar, 4059, Naya Bazar, Delhi. He
deposed that he had started the business of the above mentioned shop in the year
1993 and since the year 1997 onwards he had been purchasing Pulses from the
above mentioned Supplier. He deposed that he had given the photocopy of bill Mark
B to the FI at the time of sampling and the original of the same is Ex. PW 1/D1. He
deposed that the photocopies of the Bill of Purchase from the year 1997 2007 (30 in
number) are collectively being marked as Mark X1. He deposed that he used to sell
the Pulses in the same condition, in which he used to receive the same.
17. During cross examination by Ld. Counsel for accused nos. 2 and 3. he
stated that the FI obtained his signature on several documents at the time of sampling.
He stated that he had not written on any of these documents that the commodity in
question had been purchased by him from the Supplier named by him in his
examinationinchief against the afore exhibited Bill. He voluntarily stated that he had
told the FI about the same but he did not reduce the same into writing on any of the
document. He stated that he had given the photocopy of the Bill in question to the FI,
during the course of sample proceedings. He admitted that he sent the letter Ex. PW
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2/A to the Director, PFA Department and to the Laboratory, in respect of the sample.
He admitted that the same was written by him after two weeks reckoned from the date
of given sampling. He stated that he had sent this Letter on the guidance of some
friends. Thereafter witness was confronted with the portion 'A to A' on Ex. PW 2/A i.e.
the Letter, written by the accused, addressing the same to the Director PFA wherein,
he had written that the PFA Raiding party had even refused to look or receive the
alleged Purchase Bill Ex. PW 1/D1 to which he stated that the version appearing in
the Letter Ex. PW 2/A is the correct version and that even the photocopy of the said
Bill had not been accepted by the FI and hence his aforesaid deposition appearing in
his examinationinchief regarding handing over of copy of the Bill Ex. PW 1/D1 is a
wrong deposition. He admitted that Ex. PW 1/B bears his signature at point 'A'. He
denied the suggestion that the Gunny Bag from which the sample in question had
been lifted was not having any sort of identification mark, so as to connect it with the
Supplier thereof. He voluntarily stated that it was bearing the mark as 'Banke Bihari'.
He denied the suggestion that the sample in question had been lifted from an already
opened Gunny Bag. He voluntarily stated that the bag in question had been opened
as per the directions of the FI. He stated that he had not reflected in his Letter Ex. PW
2/A that the Gunny Bag in question was having brand name 'Banke Bihari' or that the
stitches thereof, were opened as per the directions of the FI. He admitted that the
contents of the Letter Ex. PW 2/A were dictated by someone and he had inserted the
same as were dictated to him. He stated that he does not remember as to who had
dictated the said Letter to him. He stated that he had appended his signatures on the
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documents Ex. PW 1/B at the behest of the FI without understanding the contents
thereof. He denied the suggestion that the contents of the said document had been
read over and explained to him in simple Hindi. He stated that he had not inserted in
the Letter Ex. PW 2/A that the members of PFA Raiding Party had obtained his
signatures on a number of documents, including Ex. PW 1/B, without reading over and
explaining the contents thereof. He admitted that the commodity in question had been
purchased by him as on 15.07.2002 as has been deposed by him. He stated that he
had purchased 2 Bags from the alleged Supplier and one of them had completely
been sold out, prior to the date of sampling. He admitted that in the Bill Ex. PW 1/D1,
the words 'ADM' are shown written against 'Dal Arhar'. He stated that he cannot say if
the words 'ADM' denote Aggarwal Dal Mill. He stated that he continued to purchase
Pulses from the said Supplier even after the lifting of the sample in question. He
stated that he cannot assign any reason as to why he continued purchasing Pulses
from the very supplier even after coming to know the adulteration thereof, in respect of
the present sample proceedings. He stated that he purchases kiryana items and Dals
from other suppliers also, running their shops in Naya Bazar. He stated that he never
ever purchased any such item from M/s Banke Bihari. He denied the suggestion that
the Gunny Bag, containing the sample article had been purchased by him from
elsewhere i.e. other than M/s Deepak Kumar Suyash Kumar or that too without any
sort of Purchase Bill thereof. He denied the suggestion that the Bill in question is being
put so as to defend himself.
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18. During his cross examination by Ld. Counsel for accused no. 4 he stated
that the FI had not seized the empty Gunny Bag from which the sample in question
had been lifted. He denied the suggestion that the said Gunny Bag was lying in loose
condition at the time of sample proceedings or that it was containing no Brand Name /
Mark as 'Banke Bihari'.
19. During his cross examination by Ld. SPP for the Complainant he denied
the suggestion that at the time of sample proceedings, he was not having any original
or photocopy of the Purchase Bill and as such, he did not show the same to the FI and
that is why the question of refusal or acceptance of the same by the FI does not arise.
20. This so far is the evidence in the matter.
21. I have heard the arguments advanced at bar by the Ld. defence counsels
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.
22. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Sanjiv Kumar Gupta coupled with the report of
Director dated 05.05.2003 that accused Jitender Kumar (accused no. 1) was indeed
found selling Dal Arhar which was adulterated on account of it containing synthetic
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colour viz. Tartrazine.
23. The star / the material witness of the prosecution i.e. Food Inspector
Sanjiv Kumar Gupta categorically proved the sample proceedings dated 12.08.2002
as were conducted in the presence of SDM/LHA. From the deposition of the
prosecution witnesses who duly corroborated each other, documents Ex. PW1/ A to C
i.e. Vendor's receipt, Notice Form VI and panchnama as proved by prosecution which
bears the signature of the accused as well, the admissions made by accused no. 1
Jitender Kumar during his examination under Section 313 Cr. P.C as recorded before
the Ld. Predecessor of this Court on 05.09.2011 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 the document Ex. PW2/A and Ex. PW1/D
which is in the handwriting of accused no. 1 and bears his signatures no doubt
remains that the sample of Dal Arhar was indeed collected by the Food Inspector for
analysis from M/s Jitender Store of which accused no. 1 Jitender Kumar was the
vendorcum proprietor.
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24. During the course of arguments, Ld. defence counsels appearing for all
the accused persons attacked the prosecution story on numerous counts while stating
that the prosecution miserably failed to bring home the guilt against the accused
persons. It was argued that the prosecution story suffers from various
loopholes /contradictions. The main line of arguments adopted by Ld. Defence
counsels was same except for the plea of warranty which was claimed by accused no.
1 qua accused no. 2 to 4 and denied by accused no. 2 to 4 who agitated that accused
no. 1 was not entitled to any warranty as envisaged u/s 19 of the Act.
Public witness
25. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused persons are entitled to be acquitted on this ground alone. It was
argued that the FI despite the mandate of section 10 (7) did not deliberately join any
public person i.e. customers, neighbourers etc. in the sample proceedings and hence
no reliance can be placed on the alleged sample proceedings.
26. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
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is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
27. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
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present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
28. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
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State
29. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
30. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
31. It is writ large from the deposition of PW1, PW2 and PW3 that FI Sanjiv
Kumar Gupta made sincere efforts to join the public persons in the sample
proceedings but none agreed. I have no reason to disbelieve them. It is very hard
these days to get association of public witnesses in criminal
investigation/implementation of administrative powers/enforcement of law seeking to
curb anti social evils. Normally, nobody from public is prepared to suffer any
inconvenience for the sake of society. Absence of public witness in this case is not
fatal to the prosecution as the prosecution story inspires confidence and lifting of the
sample stands admitted/unambiguously proved. Furthermore, I find no reasons why
the Food Inspector or the SDM would falsely implicate the accused persons or depose
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falsely against them. There is nothing on record to suggest that the FI, the SDM were
inimical to the accused persons or had any grudge or enmity to falsely implicate them.
Rule 14
32. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles as well as the instrument i.e. jhaba with which the sample
was poured in the bottles. It was argued that the colour was already sticking to the
Jhaba and the sample bottles and it was this colour which was detected by the PA and
the Director. It was argued that Rule 14 of the Act is mandatory and not directory and
in case there is no strict adherence to Rule 14, benefit has to be given to the accused
persons. Reliance was placed on the law laid down in State of Gujarat Vs. Anil
Champak Lal Shah 2007 (II) FAC 130 and State of Maharashtra Vs. Raj Karan
19481997 FAC 918.
33. However I differ with the contentions as raised by the Ld. defence
counsels.
34. I have heard the Ld. defence counsels, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsels and perused the deposition of the
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Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to mix the same. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
35. I have perused the deposition of the Food Inspector i.e. Sanjiv Kumar
Gupta who was examined as PW2. The Food Inspector deposed as under:
" The sample of 750 gms of Dal Arhar was taken from an open gunny
bag bearing no label declaration after proper mixing with the help of clean and dry
jhaba by rotating it in all possible directions i.e. Clockwise, anticlockwise, up and
downwards several times......The sample was divided into three equal parts then and
there by putting them into three clean and dry glass bottles which were separately
packed, marked, fastened and sealed according to PFA Act and Rules"
36. During his cross examination he stated as under:
"....... Jhaba was provided by the vendor by which the sample commodity
was mixed........Jhaba was not made clean and dry by me as it was already clean and
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 19 of 63
dry.......It is wrong to suggest that entire quantity of Dal Arhar in the gunny bag could
not have been homogenized with the Jhaba.
37. Similarly PW1 the then SDM/LHA Sh. Kartar Singh deposed as under:
" The sample of 750 gms of Dal Arhar was taken at about 6.30 PM from
an open gunny bag bearing no label declaration after mixing with the help of clean and
dry jhaba by rotating in all possible directions several times i.e. Clockwise,
anticlockwise, up and downwards several times. The FI then and there divided the
sample equally in three equal parts by putting them into three clean and dry bottles".
38. During his cross examination no suggestion was given to the witness that
the Jhaba or the sample bottles were not clean and dry or that some colour was
sticking to them. His testimony has thus remained unchallenged/unrebutted on this
material aspect and I find no reasons to disbelieve him. "
39. PW3 FI Dr. Pramod Kothekar deposed as under:
" Before taking the sample, Dal Arhar was properly homogenized with a
clean and dry JHABA by rotating it in all possible directions. The so purchased
sample of Dal Arhar was divided by FI then and there in three equal parts and it was
put in 3 clean and dry glass bottles."
40. During his cross examination he stated as under:
".......It is correct that the JHABA and sample bottles were not made
clean and dry at the spot. It is wrong to suggest that the JHABA and the bottles were
not clean and dry"
41. Hence the prosecution witnesses consistently deposed regarding the
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 20 of 63
jhaba as well as the sample bottles being clean and dry. Not even a single suggestion
was given to any of the prosecution witnesses that some colour was sticking to the
sample bottles or the Jhaba. From their deposition/statement no doubt remains that
the sample proceedings were conducted in a proper manner and that the sample
bottles as well as the jhaba were clean and dry. I have no reasons to disbelieve them.
As discussed above I find no reasons why the FI or the SDM would falsely implicate
the accused that is to say why they would use contaminated or colored instruments or
bottles for sampling. The defence has failed to prove any motive which could be
assigned to the above officials for falsely implicating the accused persons. Moreover
nothing on record has been proved to the contrary i.e. the defence has not proved that
the Food Inspector did not comply with the provisions of the Rule 14. Just because
the defence is challenging the sampling process conducted by the Food Inspector /
asserting that Rule 14 was violated is not sufficient to either disbelieve or throw away /
outrightly reject the testimony of the Food Inspector. I have also gone through Section
114 (e) of the Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 21 of 63
42. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
43. 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.
44. 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
.].
45. 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
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 22 of 63
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
46. 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.".
47. 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.".
48. 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.
49. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has
been held as under:
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 23 of 63
"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."
Homogenization / Mixing of Sample.
50. It was also one of the arguments of the Ld. defence counsels that the
sample was not properly mixed / homogenized at the time when it was lifted and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there is variation in the report of Public
Analyst and Director, CFL. For example the moisture content in the sample was
detected by the PA as 7.15% whereas the Director found the same to be 9.25%.
Similarly though the PA found the damaged grains at 0.16% but the Director reported
them at 1%. It was argued that these variations prove that the sample were not
representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219
and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.
51. 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 homogenizing it by mixing/ rotating the Dal thoroughly in all possible
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 24 of 63
directions several times with the help of a Jhaba in the gunny bag itself. I have no
reasons to disbelieve the Food Inspector or the other complainant witnesses in this
regard. Secondly, there is no requirement either under the Act or the Rules
appended therein to homogenize the sample before lifting it.
52. Thirdly, there was no requirement of mixing or making the sample i.e.
Dal Arhar homogenized as such in view of the law laid down in Dhian Chand Vs.
State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
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."
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 25 of 63
53. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
54. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 19.50/ to the
accused/vendor towards the purchase of sample commodity. In this regard vendor's
receipt Ex. PW1/A was executed which bears the signature of accused at point A. The
testimony of the Food Inspector has gone unrebutted on this material particular. The
testimony of the SDM/LHA as well as the other FI which is on the same lines have also
remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The
food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC
(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of
an article of food, which is found to be adulterated, the accused will be guilty of an
offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD
CC No. 118/03
DA Vs. Jitender Kumar etc. Page 26 of 63
Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court
of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not CC No. 118/03 DA Vs. Jitender Kumar etc. Page 27 of 63 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".
55. 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."
56. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the CC No. 118/03 DA Vs. Jitender Kumar etc. Page 28 of 63 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.
57. 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."
58. 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."
59. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in CC No. 118/03 DA Vs. Jitender Kumar etc. Page 29 of 63 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. Variations.
60. Coming to the second limb of arguments of the Ld. defence counsels that there is a variation in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused persons are entitled to acquittal as benefit has to be given to them for the variation in the two reports I find no merits in the same. No question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High CC No. 118/03 DA Vs. Jitender Kumar etc. Page 30 of 63 Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.
61. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.
62. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.
63. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory" CC No. 118/03 DA Vs. Jitender Kumar etc. Page 31 of 63
64. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:
"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".
65. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.
66. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:
".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, CC No. 118/03 DA Vs. Jitender Kumar etc. Page 32 of 63 there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.
9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."
67. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
68. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director CC No. 118/03 DA Vs. Jitender Kumar etc. Page 33 of 63 of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".
69. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these CC No. 118/03 DA Vs. Jitender Kumar etc. Page 34 of 63 two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
70. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.
71. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later CC No. 118/03 DA Vs. Jitender Kumar etc. Page 35 of 63 certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
72. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:
"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".
73. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".
74. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ CC No. 118/03 DA Vs. Jitender Kumar etc. Page 36 of 63 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
75. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."
76. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:
"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".CC No. 118/03 DA Vs. Jitender Kumar etc. Page 37 of 63
77. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."
78. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
79. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:
"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub CC No. 118/03 DA Vs. Jitender Kumar etc. Page 38 of 63 Section".
80. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
81. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".
82. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
83. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:
CC No. 118/03 DA Vs. Jitender Kumar etc. Page 39 of 63
"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".
84. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act CC No. 118/03 DA Vs. Jitender Kumar etc. Page 40 of 63 which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
85. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
86. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:
CC No. 118/03 DA Vs. Jitender Kumar etc. Page 41 of 63
"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.
87. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.
88. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
CC No. 118/03 DA Vs. Jitender Kumar etc. Page 42 of 63
89. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
90. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
91 Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time CC No. 118/03 DA Vs. Jitender Kumar etc. Page 43 of 63 and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass CC No. 118/03 DA Vs. Jitender Kumar etc. Page 44 of 63 1978(1) FAC 211.
92. It is also to be seen that the variation in the two reports is only in respect of the moisture content in the sample bottles/food articles stored in the sample bottles and the number of damaged grains. However it is to be seen the sample conformed to the standard of moisture both in the analysis by the PA as well as by the Director. Accordingly the accused persons are not facing trial for the same. They are facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the moisture content becomes insignificant. Furthermore Ld. SPP rightly pointed out that the analysis by the PA was done in the month of August 2002 whereas the sample was analyzed by the Director in the month of May 2003. The temperature, the humidity, moisture and other natural conditions vary in the month of August as compared to the month of May. Even in an absolutely air tight bottle, the temperature in the bottle/moisture in the bottle containing food grain/Dal will have a change on account of the outside temperature, pressure, moisture etc. as it is a natural phenomenon. As far as the variations in the quantity of damaged grains is concerned as already discussed above the question of variation cannot be looked into nonetheless I do find merits in the submissions of Ld. SPP for the complainant that varying reports can be on account of the fact that the adulteration in the samples cannot be uniform. It stands proved that the sample which was produced in the court and sent to the Director, CFL was the same as was lifted from the accused. In heterogeneous food products like Dal Arhar etc. the adulteration may CC No. 118/03 DA Vs. Jitender Kumar etc. Page 45 of 63 not be uniform. I find merits in the submissions of Ld. SPP who pointed that even after thorough mixing there will be some difference in the quantity/ quality of the sample put in three different bottles by the FI. The FI in the case at hand took 750 gms of Dal after properly mixing it in the gunny bag itself. He then divided it into three parts. It is very much possible that in one part the damaged grains were in large/more number then those in the other parts. This is practically possible and is what exactly happened in this case.
93. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: CC No. 118/03 DA Vs. Jitender Kumar etc. Page 46 of 63 "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Use of colour.
94. It was further argued by the Ld. defence counsels 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.
95. 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 CC No. 118/03 DA Vs. Jitender Kumar etc. Page 47 of 63 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".
96. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:
" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited .......CC No. 118/03 DA Vs. Jitender Kumar etc. Page 48 of 63
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.".
97. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.
98. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for CC No. 118/03 DA Vs. Jitender Kumar etc. Page 49 of 63 standards"
(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.
99. Regarding the defence plea that the addition of the colour did not make the Dal injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:
" 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.".
100. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:
"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".CC No. 118/03 DA Vs. Jitender Kumar etc. Page 50 of 63
101. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
102. 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.".
103. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is CC No. 118/03 DA Vs. Jitender Kumar etc. Page 51 of 63 injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.
104. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.
105. 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.
Paper Chromatography Test.
106. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of CC No. 118/03 DA Vs. Jitender Kumar etc. Page 52 of 63 Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. 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."
CC No. 118/03 DA Vs. Jitender Kumar etc. Page 53 of 63 Percentage of colour
107. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsels. 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 Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded CC No. 118/03 DA Vs. Jitender Kumar etc. Page 54 of 63 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.
Whether accused no. 1 is entitle to benefit of the warranty?
108. In the case at hand accused no. 1 is the vendor cum proprietor from whom/whose shop i.e. M/s Jitender Store the sample of Dal Arhar was taken. It was claimed by accused no. 1 that he is entitled to the benefit of warranty as envisaged under the Act. It was argued that he being the retailer/vendor had purchased the article from M/s Deepak Kumar Suyesh Kumar i.e. accused no. 3 of which accused no. 2 is the partner vide bill Mark B/ Ex. PW1/D1 and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued that the the prosecution witnesses admitted that the accused no. 1 was merely a retailer and not the manufacturer and he had purchased the article from the above manufacturer / dealer and the said fact was also made known to the Food Inspector at the time of sampling itself and also during the course of investigation. Hence he cannot be held liable for the adulteration detected in the sample.
109. The plea/defence of warranty as claimed by accused no. 1 was strongly opposed by accused no. 2 to 4. Counsel Sh. M.K. Gupta appearing for accused no. 2 CC No. 118/03 DA Vs. Jitender Kumar etc. Page 55 of 63 and 3 vehemently argued that firstly the accused could not prove that he had purchased the sample dal/dal in question from accused no. 2 and 3. Secondly, admittedly the sample was taken from an open gunny bag and at the time of sampling there was only 2025 Kg of Dal in the open gunny bag though as per Ex. PW1/D1 even if it is believed that the Dal was sold vide the said bill around 99 Kg of Dal was sold to the accused. This itself is sufficient to deny the benefit of warranty to accused no. 1 as what section 19 contemplates is that goods should be sold in the same condition as they are purchased.
110. As far as accused no. 4 is concerned it was argued that there was nothing at all to connect accused no. 4 with the sale of sample commodity to accused no. 2 and 3 who were the commission agents and who had allegedly sold the dal to accused no. 1. It was argued that the prosecution could not prove any invoice, bill etc. to connect accused no. 4 with the sale of Dal/sample Dal to accused no. 2 and 3.
111. After giving my thoughtful considerations to the submissions made at bar, I am of the opinion that accused no. 1 is not entitled to the benefit of warranty.
112. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession CC No. 118/03 DA Vs. Jitender Kumar etc. Page 56 of 63 and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.
113. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.
114. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in CC No. 118/03 DA Vs. Jitender Kumar etc. Page 57 of 63 para 6 as under:
"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."
115. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22
116. In the case at hand, no doubt accused no.1 examined himself as DW1 and placed on record bill Ex. PW1/D1 and claimed that he had purchased the sample commodity from M/s Deepak Kumar Suyesh Kumar, Naya Bazar however he is not entitled to the benefit of section 19(2) for numerous reasons. Firstly, accused no. 1 could not convincingly proved that the sample of Dal which was lifted from him was the same Dal which was supplied to him by accused no. 2 and 3 vide Ex. PW1/D1. To begin with no bill/copy of bill Ex. PW1/D1 was supplied to the Food Inspector by the accused no. 1 at the time of lifting of the sample. Though the accused no. 1 claimed CC No. 118/03 DA Vs. Jitender Kumar etc. Page 58 of 63 that he had supplied the bill but the FI refused to take the bill on record however the said plea of accused no. 1 does not inspire confidence. The Food Inspector and the other prosecution witnesses categorically stated that neither the source of purchase was disclosed by the vendor/accused no. 1 nor any bill was supplied to them at the spot by him. Moreover, accused no. 1 has been taking inconsistent pleas during the trial regarding the supply of bill to the Food Inspector which casts serious doubts upon his demeanor. Though when he examined himself as DW1 he claimed that he had supplied the copy of bill to the FI at the time of sampling however during his cross examination when he was confronted with Ex. PW2/A i.e. letter written by him to the Director, PFA he admitted that the version appearing in Ex. PW2/A is the correct version and no bill was supplied to the Food Inspector at the time of sampling. The very fact that no bill was supplied to the Food Inspector or the SDM/LHA at the time of sampling as well as no bill was enclosed along with Ex. PW2/A itself proves that the accused no. 1 was making false claims. Furthermore he claimed that the bag from which the sample was lifted was bearing an identification mark "Banke Bihari" however it stands proved from the deposition of the Food Inspector and other prosecution witnesses that the Dal was lifted from an open gunny bag which had no label declaration and there was no identification mark on the same. The prosecution witnesses categorically stated that there was no mark, stencil or any declaration regarding the name of manufacturer etc. on the bag from which the sample was lifted. In fact this plea that the bags were bearing the Mark "Banke Bihari" was an afterthought on account of the statement made by Anil Kumar during his examination CC No. 118/03 DA Vs. Jitender Kumar etc. Page 59 of 63 u/s 313 Cr.P.C. on 05.09.2011. In answer to question no. 19 Anil Kumar proprietor of M/s Aggarwal Dall and Flour Mills i.e. accused no. 4 had claimed that he had supplied Dal Arhar to accused no. 3 in sealed bags having mark "Banke Bihari". Only after this statement was made by accused no. 4 in his examination u/s 313 Cr.P.C. that the accused no. 1 claimed during his cross examination which was recorded on 26.03.2012 that the bags from which the sample was lifted were bearing the mark "Banke Bihari". Prior to the statement made by accused no. 4 the accused no. 1 had nowhere during the investigation or the trial claimed that the bags were bearing the Mark "Banke Bihari". He did not claim so when he wrote a letter Ex. PW2/A to the Director, PFA or during the cross examination of the Food Inspector or other prosecution witnesses or for that matter in his examination in chief. Furthermore, though the accused no. 1 during his cross examination as DW1 claimed that the bag was bearing the Mark "Banke Bihari" however during the cross examination of PW3 Pramod Kothekar it was suggested to him that the gunny bag was bearing the trademark "Hari Chand Deepak Kumar". This is a sufficient proof that the accused was taking the plea of the bags having the Mark "Banke Bihari" on account of the statement made by accused no.4 during his examination u/s 313 Cr.P.C. This was nothing but a false claim by accused no. 1. Also the accused no. 1 admitted during his cross examination that in bill Ex.PW1/D1 the word "ADM" are mentioned against Dal Arhar. When confronted he stated that he cannot say whether ADM denotes Aggarwal Dal Mills i.e. the trademark of accused no. 4 the alleged manufacturer of Dal/sample commodity. Also during his cross examination the accused no. 1 admitted that he had CC No. 118/03 DA Vs. Jitender Kumar etc. Page 60 of 63 been purchasing kiryana items including Dal from other suppliers as well. Hence accused no. 1 could not prove that he had procured the Dal from accused no. 2 to 3 who had in turn sold it to accused no. 1 being the Commission Agent for accused no.
4.
117. Secondly, even if it is believed though not proved on record that the Dal in question was supplied to accused no. 1 by accused no. 2 and 3 vide bill Ex. PW1/D1 still the said bill does not come to the rescue of accused no. 1. As per the bill around 197 Kg of Dal was supplied in two gunny bags one weighing 98.7 kg and other 98.3 Kg. It stands proved from the deposition of the prosecution witnesses that the sample was lifted from an open gunny bag and at the time of lifting of the sample there was only about 25 Kg of Dal in the gunny bag. No suggestion was given during the cross examination of the Food Inspector i.e. PW2 or SDM/LHA i.e. PW1 that the sample was lifted from a stitched bag and not an open gunny bag. It was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because CC No. 118/03 DA Vs. Jitender Kumar etc. Page 61 of 63 he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the manufacturer/supplier who no longer has control over the articles so sold. Hence he is not entitled to any warranty.
118. Accordingly in view of my above discussion accused no. 2 to 4 are acquitted of the charges in the present case. Accused no. 1 is convicted for violation of provisions of Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954 and, for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w Section 7 of the CC No. 118/03 DA Vs. Jitender Kumar etc. Page 62 of 63 Act.
119. Let accused no. 1 be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 24th June 2014 ACMMII/ New Delhi CC No. 118/03 DA Vs. Jitender Kumar etc. Page 63 of 63