Delhi District Court
Delhi Administration / Food Inspector vs A-1) Rajendra Prasad on 18 February, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 225/02
Unique Case ID No. 02403R0024682002
Date of Institution: 29.11.2002
Date of reserving judgement: 14.12.2016
Date of pronouncement: 18.02.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Rajendra Prasad
S/o. Late Sh. Nanu Ram
[SINCE EXPIRED]
A-2) Nand Kishore Garg
S/o. Late Sh. Harpat Rai
R/o. 19/318, Kalyan Puri,
Delhi-110091
A-3) M/s. Bhatinda Chemicals Ltd.
Hazi Rattan Link Road,
P. Box No. 71, Bathinda- 151005, Punjab
A-4) Sushil Kumar Srivastava
Hazi Rattan Link Road,
P. Box No. 71, Bathinda- 151005, Punjab ... Accused Persons
CC No. 225/02 Page 1 of 40
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. Accused no. 1 Rajendra Prasad (since expired) is stated to be the vendor-cum- proprietor of M/s. Uttam Store from where the food article, that is, 'Vanaspati' was lifted for sampling. Accused no. 2 Nand Kishor Garg is stated to be the Proprietor of M/s. Garg Trading Company from whom the food article had been purchased by accused no. 1. The food article is stated to have been manufactured by accused no. 3 Company M/s. Bhatinda Chemicals Ltd., of which accused no. 4 Sushil Kumar Srivastav had been appointed as the Nominee.
2. As per the complaint, on 14.08.2001, the food officials consisting of Food Inspector (FI) B. P. Saroha and FI M. K. Gupta under the supervision of Local Health Authority (LHA)/SDM Sh. S. C. Tyagi reached along with their staff at the premises of accused no. 1 (since expired) at M/s. Uttam Store, Main Road, Village Kondli, Delhi-110096, where the accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Vanaspati from the vendor lying in sealed polythene packets of one litre each bearing identical label declaration, to which he agreed. A sample of three such sealed polythene packets was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was CC No. 225/02 Page 2 of 40 separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 24.08.2001, the PA found the sample to be not conforming to the standards because it did not contain sesame oil. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. During the course of investigation, accused no. 1 informed that he had purchased the food article from accused no. 2. The label declaration further showed that the food article had been manufactured / packed by accused no. 3 Company and accused no. 4 was found to be its Nominee as per section 17 of PFA Act. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by the FI on 29.11.2002 alleging violation of section 2(ia)(a), (b) and (m) of PFA Act as punishable section 7/16(1)(a) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 29.11.2002. Record shows that upon appearance, one application dated 08.01.2003 under section 13(2) of PFA Act was filed by accused no. 1 to exercise his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The said application was however dismissed by the court vide order dated 20.01.2003 on the ground that it had not been filed on time (as CC No. 225/02 Page 3 of 40 such an application could be moved within ten days of receipt of PA report. The applicant had claimed that PA report was received by him on 15.12.2002 but he could not file the application earlier as he was ill). Appearance was also put by other accused persons but they chose not to file any such application.
4. Though the allegations in the complaint pertain to violation of section 2(ia)(a), (b) and (m) of PFA Act which are punishable under section 16(1)(a) of the Act which is summons triable in nature, yet vide order dated 01.06.2004, the court directed the matter to be listed for pre charge evidence, which is a procedure in trial of warrant cases. It appears that the court at that time was of the view that the matter ought to be tried as a warrant case.
5. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI B. P. Saroha. On the basis of his deposition, charge was framed against all the accused persons on 19.05.2009 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (b) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, the witness already examined in pre-charge stage was recalled for further cross-examination in post-charge stage. Additionally, the prosecution examined PW-2 Sh. S. C. Tyagi (SDM/LHA), PW-3 Sh. S. M. Bharadwaj (Public Analyst) and PW-4 FI M. K. Gupta in post charge stage.
CC No. 225/02 Page 4 of 406. At the trial, PW-1, PW-2 and PW-4 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 14.08.2001 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 3 sealed packets of Vanaspati bearing identical label declaration, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. The vendor accused no. 1 did not disclose the name of the supplier. However, after noticing the name of the manufacturer on the label of the product, the FI prepared notice under section 14-A of PFA Act Ex. PW-1/D addressed to the accused no. 3 Company. On the next working day, that is, 16.08.2001, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide LHA receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-1. During investigation, PW-1 sent letter Ex. PW1/H to the accused no. 1 / vendor and received his reply Ex. PW-1/I along with photocopy of a bill Mark-X, informing that he had purchased the food article from M/s. Garg Trading Company (proprietorship concern of accused no. 2). The FI sent letters Ex. PW-1/J and Ex. PW-1/K to the STO and ZHO respectively but no reply was received. He then sent letters Ex. PW-1/L and Ex. PW-1/L-1 to accused no. 2 and received replies Ex. PW-1/M and Ex. PW-1/M-1. As CC No. 225/02 Page 5 of 40 per these replies, accused no. 2 claimed that he was not the manufacturer or stockist of "Rishi Brand Vanaspati" (the sample of which was lifted in the present case from the vendor), that he never purchased Rishi Brand Vanaspati from any manufacturer / dealer, that no such Rishi Brand Vananspati had been sold to accused no. 1, that the kacha bill supplied by accused no. 1 did not belong to him and that the stamp appearing on that bill was not their stamp which also bore an incorrect address. According to the FI, he had personally visited the shop and godown of accused no. 2 and found a large quantity of Rishi Brand Vanaspati having stored there with the same batch number of which the sample was lifted from accused no. 1 vendor. However, when he visited again with the SDM to lift the sample from accused no. 2, the premises were found locked and subsequently, in the meanwhile, the entire Rishi Brand Vanaspati was removed by accused no. 2. The FI sent letter to STO and received reply Ex. PW-1/N informing that accused no. 2 was the proprietor of M/s. Garg Trading Company. The FI then sent a letter Ex. PW-1/O to the accused no. 3 to ascertain its constitution and the details of its nominee. Letters Ex. PW-1/O-1 and Ex. PW-1/O-2 were sent to the Excise Department and CMO, Bhatinda for this purpose. The FI received reply Ex. PW-1/O-3 from CMO along with Ex. PW-1/O-4 and reply Ex. PW-1/O-5 from accused no. 3. Upon completion of investigation, sanction Ex. PW-1/P was taken from the Director PFA and the complaint Ex. PW-1/Q was filed in the court. After this, intimation letter Ex. PW-1/R was sent to the accused persons with copy of PA report through registered post vide postal receipt Ex. PW-1/S. CC No. 225/02 Page 6 of 40
7. All these witnesses were duly cross-examined by respective Ld. Defence Counsel for accused no. 1, accused no. 2 and for accused no. 3 and 4. The witnesses accepted that no particulars of the supplier or copy of the bill were furnished by the accused no. 1 vendor at the time of sample proceedings. They denied that samples of different food articles had been deposited by the FI with the PA and LHA. They accepted that no bill of purchase was shown by accused no. 2 and that accused no. 3 was implicated on the basis of label declaration. They denied that the complaint had been filed at a belated stage which frustrated the right of the accused persons under section 13(2) of PFA Act.
8. The prosecution also examined PW-3 who produced the record maintained by the office of PA Ex. PW-3/A which showed that a sample of Vanaspati bearing sample no. BPS/64/2001 (SCT/LHA/SDM/004464) had been deposited on 16.08.2001 vide entry at Sr. No. 1291. He opined that the PA receipt as available in the court record (Ex. PW1/E), that bore sample no. BPS/63/2001 (SCT/LHA/SDM/003260) might have been filed inadvertently in the present case which pertained to another sample as lifted by the same FI.
9. Statements of the accused persons under section 313 CrPC were recorded on 25.08.2010 wherein they denied the allegations and pleaded innocence. Accused no. 1 admitted the proceedings dated 14.08.2001 but claimed that he had given the sample in sealed condition without tampering the same. He stated that the photocopy of the bill had been given to the FI and the original was lying with him, which had been lost CC No. 225/02 Page 7 of 40 for which he lodged complaint with the police on 07.01.2006 vide DD No.
198. He further claimed that Til oil from seeds from Tripura and Mediterranean region does not give positive result to Baudouin test. He denied receiving the intimation letter. Accused no. 2 denied the sample proceedings for want of knowledge. He disowned the bill Mark-X and claimed that he never issued any such bill to accused no. 1. He maintained that he did not sell Vanaspati to accused no. 1. He took stand that FI never visited his place, that no Rishi Brand Vanaspati was in his stock and that he was never the dealer of accused no. 3 and 4. Accused no. 4 (also on behalf of accused no. 3 company) also denied the sample proceedings for want of knowledge and claimed that the company never supplied the sampled commodity to accused no. 2. The accused persons however chose not to lead any evidence in defence.
10. It is to be noted that after hearing the matter, the matter was listed for judgement on 15.02.2017. On that day, the judgement was ready but it was informed that accused no. 1 had already expired a few days ago. His death was got verified and thus, the proceedings against him stood abated.
11. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against all the accused persons (except accused no. 1 since expired) beyond reasonable doubt, on the ground that they have not been able to rebut the findings of the PA report dated 24.08.2001. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
CC No. 225/02 Page 8 of 4012. On the other hand, the respective Ld. Defence Counsel have submitted that the sample proceedings were not conducted properly and that there are various missing links and inherent defects in the testimony of witnesses. Ld. Counsel for accused no. 1 (since expired) had earlier contended that he had purchased the food article from accused no. 2 against the bill Mark-X and had sold the same in the same condition as purchased, and therefore, he would be covered under the benefit of warranty as per Section 19(2) of PFA Act. He had submitted that though accused no. 2 has disowned the bill, yet the testimony of PW-1 would make it clear that accused no. 2 had stocked the Vanaspati of same brand bearing the same batch number. However, since the proceedings against accused no. 1 stand abated upon his death, such arguments need not be discussed. Ld. Counsel for accused no. 2 has claimed that the bill in question is a forged document, the genuineness of which has never been established. He has pointed out that the accused no. 2 has categorically stated that neither the bill belonged to him, nor the same bore his signature, nor the stamp on the bill belonged to him, nor the stamp was having the correct address, nor there is anything to show that accused no. 2 was dealer or stockist or supplier of Rishi Brand Vanaspati. He maintained that accused no. 2 never sold any vanaspati to accused no. 1. Similarly, Ld. Counsel for accused no. 3 and 4 has argued that there is no bill / invoice to show that the food article in question had been ever supplied by accused no. 3 to either accused no. 2 or accused no. 1. It is contended that in the absence of any bill, the sample in question cannot be connected to accused no. 3. Ld. Defence counsel have also asserted that the presence or absence of sesame oil (Til oil) in Vanaspati does not affect CC No. 225/02 Page 9 of 40 its nature or quality. Relying upon judicial precedents, it is submitted that Til oil obtained from seeds of Mediterranean region do not respond to Baudouin test and even if sesame oil of such seeds is added in vanaspati, the same may still give negative Baudouin test.
13. I have heard the arguments advanced by Ld. SPP for the complainant and respective Ld. Defence Counsel for the accused persons facing trial and have carefully perused the material available on record.
14. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a), (b) and (m) of the PFA Act with respect to 'adulteration'. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(b) applied when the food article contains any of the substance which injuriously affect the nature, substance or quality thereof. Section 2(ia)(m) specifically deals with situation where the quality or purity of the food article falls below the prescribed standards or its constituent are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
15. The commodity in the present case is Vanaspati which is a standardized food article falling in Item No. A.19 of Appendix B to the PFA Rules. It is nowhere the stand of the accused persons that the food CC No. 225/02 Page 10 of 40 article does not fall under this head or that it falls under some other head. None of the accused persons have claimed that the food article was not Vanaspati or was some other oil.
16. As per Item No. A.19, clause (x) mandates that such food article shall contain raw or refined sesame (Til) oil in sufficient quantity so that when the vanaspati is mixed with refined groundnut oil in the proportion of 20:80, the colour produced by the Baudouin test shall not be lighter than 2.0 red unit in a 1 cm cell on a Lovibond Scale. Thus, negative Baudouin test would show absence of sesame oil in sample of vanaspati.
17. The prosecution case is thus based on the findings of PA as given in report Ex. PW-1/G. Report of chemical expert is admissible in evidence under section 293 CrPC without formal examination of such expert. As far as this report is concerned, the contents and findings therein have not been disputed by the defence. It is nowhere the stand of the defence that the findings are wrong on account of incorrect sampling methodology, or that the PA had adopted an incorrect method of analysis or there was some other mistake in the report. The accused persons never applied under section 293 CrPC to cross-examine the PA when this option was available to them, so as to question her on the testing methodology adopted by her or to explain other findings in her report. The report shows that Baudoin Test was negative on the basis of which it was opined that the sample did not contain sesame oil.
CC No. 225/02 Page 11 of 4018. The accused persons have also not exercised their right under section 13(2) PFA Act for getting the sample analysed through CFL. For this, the arguments are that PA report with intimation letter were never served upon them. Ld. Defence Counsel have relied upon judgements titled as Rameshwar Dayal v. State of UP [1996(2) PFA Cases 197], State of Orissa v. Gouranga Sahu [2002 (2) FAC 110] to impress that right under section 13(2) PFA Act is valuable right and it is the duty of the complainant to ensure that such right is not frustrated.
19. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2) of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and CC No. 225/02 Page 12 of 40 upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.
20. The sample of vanaspati in this case was lifted on 14.08.2001 and it was analysed by PA who gave report dated 24.08.2001. The complaint was filed on 29.11.2002, that is, after about 15 months from lifting the sample.
21. At the outset, there is no merit in the contention that the PA report was not received by the accused persons. PW-1 and PW-2 deposed about sending the copy of PA report with intimation letter Ex. PW-1/R to the accused persons through registered post vide receipt Ex. PW-1/S. When the postal receipt was exhibited during the evidence of PW-1, it was 'objected to', though it is not clear as to who had objected and on what ground. But despite such objection, strangely, there was no cross- examination on this point from the side of defence. No suggestion was given to any PWs that no such receipt was in existence or that the receipts proved on record were forged documents. It is not the case where no such receipt exists. If the accused persons had any issue about the existence of the original documents, they should have asked the PWs or the complainant department to produce the documents. But no such attempt was made by the accused persons. Thus, there is no reason for the court to disbelieve the version of PW-1 and PW-2 that the letters were sent to the accused persons through registered post which did not return undelivered.
CC No. 225/02 Page 13 of 4022. Once this fact is so established, section 27 of the General Clauses Act would come into play. It is nowhere the stand of the accused persons that the addresses at which the letters had been sent were incorrect or incomplete. No such sand has been taken at the trial or during statement of accused persons. No other addresses have been disclosed by them which they may claim to be correct and proper. When a letter had been sent through registered post at correct and proper addresses, there would be a presumption of service under section 27 of the General Clauses Act in favour of the complainant. The burden would not upon be the complainant to show delivery of the letter and such burden would now shift upon the accused persons to show that the letter was not so delivered despite having been sent at correct addresses through registered post. But the accused persons have not led any evidence to this effect. No attempt was made by them to summon the records of postal department to show as to whom the letters were delivered or if they remained undelivered. There is no evidence to show that the letters were not delivered to the accused persons. Accused persons have not claimed that he was not staying / working at the given addresses or were staying / working at some other address or that the letters could not have been served upon them at the relevant time. It is not their claim that they were not available at the said addresses or had shifted from those addresses. Thus, accused persons have failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 and PW-2 deposed that the registered letter was not received back undelivered, the burden would be upon the accused persons to prove anything to the contrary. By not leading any evidence to support their stand, the version CC No. 225/02 Page 14 of 40 of the accused persons remains unsubstantiated. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused persons in due course. The accused persons cannot therefore opt to simply deny the things and claim that PA report was not received by them. As far as accused no. 2 and 4 are concerned, they never denied receipt of such intimation letter in their statements under section 313 CrPC and simply stated it to be a 'matter of record'.
23. Therefore, it cannot be said that the complaint had frustrated their right under section 13(2) PFA Act. It was upon the accused persons to have taken steps to send the second counterpart to CFL after service of the intimation letter. They cannot simply chose to deny the things at the trial without leading any evidence to support such a stand.
24. Similarly, even the time taken by the complainant to file the complaint would not make any difference. Delay in filing the complaint would be taken in favour of the accused in those cases where the sample sent to CFL is reported to be decomposed, rendering it unfit for analysis, in which case the right of accused can be said to have been frustrated. If an accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or frustrated his rights, only then the delay can be said to be fatal.
25. In the case at hand, any delay whatsoever would not have made any difference as far as the incriminating ingredient is concerned. If the delay causes some variation in natural ingredients but the article still fails on CC No. 225/02 Page 15 of 40 account of presence of a prohibited substance, the offence would still be made out, irrespective of such natural changes on account of delay. The nature, quality and quantity of sesame oil would not have changed in any manner on account of any time gap, though there might be some changes in natural ingredients. Had sesame oil been present in the sample, it would not have disappeared even after lapse of time. Thus, even if there was some time gap in filing the complaint, the accused persons were still having a right under section 13(2) PFA Act and it never stood frustrated. This is particularly when the accused no. 1 in his statement under section 313 CrPC took a defence that til oil from seeds from Tripura and Mediterranean region do not respond to Baudouin test. If such a stand is to be believed, then there was no purpose in sending the sample even to the CFL as Baudoin Test would still have been negative. From this angle as well, the right of the accused persons under section 13(2) PFA Act never got frustrated.
26. As a corollary, the accused persons cannot choose to forgo their right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused persons cannot claim that after lapse of any specific time period, their right would automatically get frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analyses. It is only when an accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he can get benefit of the delay. In judgement titled as Britannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon'ble High Court CC No. 225/02 Page 16 of 40 was dealing with a matter of 'Cheddar Cheese' which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon'ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that "There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed". The Hon'ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, where the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, where the accused never applies under section 13(2) of the Act, he CC No. 225/02 Page 17 of 40 cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused would have applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under section 13(2) of the Act would have been denied to him.
27. Thus, it is clear that the court would not assume that the right of the accused persons stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when they had exercised thier right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. Thus, the matter would depend on case to case basis.
28. In view of this proposition, the accused persons in this case cannot claim that their right under section 13(2) PFA stood automatically frustrated when the complaint was filed after about fifteen months of lifting the sample so as to give them an option not to file application to send the sample for analysis to CFL. Such argument is liable to be rejected. The judgements relied upon by the Ld. Defence Counsel would therefore not help them in any manner.
29. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or CC No. 225/02 Page 18 of 40 designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
30. The incriminating factor in this case is absence of sesame oil as ascertained through Baudouin Test. As per Item No. A.19 of Appendix-B of PFA Rules, such sesame oil is necessary to be added in quantity more than the minimum prescribed. This is primarily to detect adulteration in ghee and vanaspati. Such a requirement is mandatory and has to be followed, in the absence of which the adulteration in ghee and vanaspati and food articles prepared through them would be difficult to be detected. Hence, no vanaspati can be sold without conforming to such standards.
CC No. 225/02 Page 19 of 4031. The accused persons have relied upon judgements titled as Municipal Committee Amritsar v. Mehar Singh [1972 PFA Cases 603 (P&H)] and State v. Mahavir Prasad [2005(1) CCC (HC) 307] and have contended that vanaspati oil or til seeds imported from Mediterranean region do not respond to Baudouin Test and thus they cannot be held responsible. But in my considered view, it would be for the accused persons to take a specific defence and prove it. No such stand was taken by the accused persons at the trial and no suggestion was put to any PW to this extent. Such stand was taken for the first time by the accused no. 1 (since expired) in his statement under section 313 CrPC at the fag end of the trial when the evidence was already over. And no such stand has been taken by accused no. 3 and 4 who are the manufacturers of the product. No chemical expert witness has been examined in defence in this case so as to accord the prosecution to cross-examine him on such a point. The chemical experts were never called under section 293 CrPC to clarify this point. And more importantly, the accused no. 1 (since expired) never claimed at any stage that the vanaspati lifted from his possession was the one imported from Mediterranean region or from Tripura. In the absence of any evidence to this effect, the court cannot just assume a hypothetical defence. If such a view could be taken, then the specific standards laid in Item No. A.19 would be left redundant and even cognizance of offence could not be taken if any sample of any vanaspati fails on account of negative Baudouin Test. Such interpretation would give the vanaspati sellers freedom to violate the provisions of Item No. A.19 and not to add sesame oil in vanaspati as required. Unless such a defence is taken and proved, the accused persons cannot be granted benefit on account of a CC No. 225/02 Page 20 of 40 hypothetical possibility. It cannot be said that because the seeds from Tripura or Mediterranean region do not respond to Baudoin Test, then all the cases of adulteration where absence of sesame oil is detected would fail without going into the fact if the til seeds from other regions were used or not. It is only when an accused raises a specific defence and is able to prove it by leading suitable evidence that he can get benefit. Accused no. 1 (since expired) in this case was only a vendor who was selling the food article in sealed condition. He would not be possibly aware if the sesame oil as claimed to be used by the manufacturer had been imported from Mediterranean region or Tripura. And as far as packer/manufacturers are concerned, no such stand has been taken at all. There is no evidence that sesame oil had been put in the sample by using the til seeds obtained from Tripura or Mediterranean region or any other region. Mere bald averments without any evidentiary support would not help the accused persons.
32. In Municipal Corporation of Amritsar v. Mehar Singh [supra], the Hon'ble High Court of Punjab & Haryana had relied upon and appreciated the evidence of Public Analyst as examined by the court in that case. The said Public Analyst had admitted that there were certain varieties of sesame oil imported from Mediterranean region which would not give red colour in Baudouin Test. However, no evidence of such nature has been led by the defence in the present case. It is not understood how the Ld. Defence Counsel wishes this court to rely upon the testimony of that witness examined in one particular case of Punjab and Haryana decided in 1972, without leading any evidence whatsoever in the case in CC No. 225/02 Page 21 of 40 hand. The Public Analyst is only an expert witness who gives his opinion. Opinion of one such expert given in one case in 1972 cannot be treated as binding on all other opinions of all such experts in the country for all times to come in future. No such witness has been examined or subjected to cross-examine in this case and thus, his opinion given 45 years ago in one case would not be sufficient to nullify the prescribed standards given in Item no. A.19 of PFA Rules which have statutory force. Similarly, the judgement Sohan Lal v. State of Punjab [1983(I) PFA Cases 48 (P&H)] will not help the accused persons.
33. The judgement in State v. Mahavir Prasad [supra] would also not come to the rescue of the accused persons in which the Hon'ble High Court relied upon the case of Municipal Corporation of Amritsar v. Mehar Singh [supra]. It was appeal against an acquittal in which the scope of interference is much different and the Hon'ble High Court was of the view that there was nothing shown by the State to hold a contradictory view or to show that the judgement under challenge was perverse. In the present case, there is no material in the form of evidence to show that the vanaspati was obtained from til seeds imported from Mediterranean region.
34. There is nothing for the court to disbelieve the PA report wherein the sample was failed due to negative Baudouin Test. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused persons at the trial that the result of Baudouin Test was wrongly given or CC No. 225/02 Page 22 of 40 sesame oil was present in vanaspati or that absence of sesame oil was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was specifically raised by the accused persons even in their statements under section 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused is required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve his purpose. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.
35. The case in hand would be therefore covered under section 2(ia)(a) of PFA Act as there is evidence to show that the vanaspati was not of the nature, substance or quality which it is purported to be as per PFA Rules. The case would also fall under section 2(ia)(m) of the Act as the quality or purity of vanaspati was below the specified and prescribed standard as per Item A.19 of Appendix-B of PFA Rules.
CC No. 225/02 Page 23 of 4036. Now coming to the role of accused persons. Accused no. 1 (since expired) is stated to be the vendor, accused no. 2 the distributor and accused no. 3 to be the manufacturer/packer of the food article of which the accused no. 4 was the nominee.
37. As per the accused no. 1 (since expired), he had purchased the commodity from accused no. 2 vide bill no. 67 dated 16.07 (incompletely dated as no year has been mentioned in the date). However, it is a matter of record that no such bill/invoice/cash memo of purchase of this vanaspati had been shown by the accused no. 1 vendor to the FI or the name of the supplier disclosed to him at the time of sampling. As per Form-VI Ex. PW-1/B, vendor claimed that he did not recall the name of the supplier and that he would furnish the same subsequently.
38. It is to be understood that under the PFA Act, the vendors / retailers / suppliers / distributors / manufacturers operate in different fields and all of them can be held liable for selling, distributing, supplying and manufacturing an adulterated or misbranded food article. The only benefit which a vendor / seller / distributor can claim is under section 19(2) of PFA Act by claiming the benefit of warranty. Such benefit can be claimed any such person who is able to show that the food article had been purchased as against a warranty in writing and further that the food article was sold in the same state as was purchased. The twin conditions have to be satisfied simultaneously to claim the benefit of warranty and if one condition is not satisfied, the other condition would not give such benefit to an accused.
CC No. 225/02 Page 24 of 4039. Again, a warranty can be in the form of in invoice / bill / cash memorandum or label on the product (section 14 of PFA Act). But the point to be noted is, that such warranty in writing has to be in the prescribed format as per Rule 12-A of PFA Rules read with Form VI-A therein. As laid down judgement titled as M/s. Muralidhar Shyamlal v. State of Assam [1996(I) PFA Cases 86], the court cannot, in the absence of any such warranty in writing, make any guess as to in what matter the said warranty was given. In the absence of a bill / invoice / cash memo in the prescribed format and containing warranty in writing, no benefit can be given to an accused.
40. As far as accused no. 2 is concerned, the case of the prosecution is based on the document Mark-X as supplied by the accused no. 1 (since expired) allegedly issued by accused no. 2. This document (a photocopy) was furnished by accused no. 1 to the FI during the course of investigation. A bare perusal of this document would show that this is not a proper bill / invoice and is only a kaccha / temporary slip bearing stamp of M/s Garg Trading Company.
41. At the outset, it can be said that this document has not been proved as per law. The accused no. 1 never produced the original of this document nor its copy on record ever been compared with the original. Such a photocopy of a document is neither a primary evidence nor a secondary evidence, and is rather no evidence at all in the eyes of law. The said document ought to have been in a possession of the accused no. 1 CC No. 225/02 Page 25 of 40 but he never proved this document nor any witness was examined by him in defence to establish genuineness of this document or to establish that the food article in question had been purchased by him from accused no. 2 through this document.
42. It is interesting to note that only when the evidence was over, that the accused no. 1 for the first time during his statement under section 313 CrPC claimed that the original of this document had been inadvertently lost, for which he claimed to lodge a complaint with the police vide DD no. 198 dated 07.01.2006. However, he even failed to prove any such DD entry on record. No such record was summoned from any police station (even the name of the police station has not been disclosed) nor it has been proved if any such document was lost or misplaced or stolen. The outcome of any such DD entry has not been brought on record.
43. In any case, the genuineness of this document is also in serious dispute. This document bears the stamp of one M/s. Garg Trading Company and its address has been mentioned as 19/68, Kalyanpuri, Delhi- 110096. On the basis of this address, the FI issued notice Ex. PW-1/L to M/s. Garg Trading Company at this very address. Letter was however served upon the accused no. 2. As is clear from his reply Ex. PW-1/M, the accused no. 2 stated that despite an incorrect address having been mentioned, he chose to receive the same in good faith as it was addressed to M/s. Garg Trading Company. He stated that the address on the letter has been wrongly mentioned as 19/69, Kalyanpuri (sic: 19/68, Kalyanpuri) instead of 19/318, Kalyanpuri, Delhi-110091. In that reply Ex. PW-1/M CC No. 225/02 Page 26 of 40 and the subsequent reply Ex. PW-1/M-1, accused no. 2 categorically denied having sold any such food article or issuing the bill in question.
44. It is important to note that the prosecution has never questioned or disputed the stand of accused no. 2 has taken in his replies. It is nowhere the case of the prosecution that the stamp on the document Mark-X belonged to accused no. 2 or it ever questioned his claim that the stamp did not belong to him. It is nowhere the case of the prosecution that the address mentioned on document Mark-X was the correct address of accused no. 2. Even that complaint against the accused no. 2 discloses the address of the accused no. 2 as "19/318" as disclosed by accused no. 2 in his reply and not "19/68" at which the letter Ex. PW-1/L was sent as mentioned on Mark-X. It is nowhere the case of the prosecution or even the accused no. 1 that the address "19/68, Kalyanpuri" as appearing on the stamp affixed on Mark-X was also the correct address of the accused no. 2 or that it pertain to the address of his godown or workshop or residence. It is nowhere the case of the prosecution that the handwriting on document Mark-X or the signature appearing thereupon belong to accused no. 2 or anyone acting on his behalf. When all these facts were disputed by accused no. 2 at the very first available opportunity and he categorically disowned the said document, the burden was on the complainant department to make further investigation to ascertain further facts and to establish if it actually pertained to accused no. 2 or not. But no attempt was made in this regard and accused no. 2 was implicated by simply assuming the document Mark-X to be correct and simply assuming that CC No. 225/02 Page 27 of 40 the reply of accused no 2 was incorrect. The document was never sent to any forensic lab for opinion of handwriting expert.
45. Even otherwise, there is nothing in this document to identify the food article in question to be the one as purchased from any person through this bill. The name of commodity (Rishi Brand) has not been mentioned and it can never be ascertained only on the basis on this document that the food article as lifted from accused no. 1 (since expired) was the same as purchased by him through this document. Further, there is no complete date mentioned on the bill and it cannot be said as to when the article was purchased. Again, there is no warranty in writing given on this document as prescribed in Form VI-A read with Rule 12-A of PFA Rules. Therefore, the material on record is not sufficient to establish that the accused no. 1 (since expired) had purchased the sampled food article from accused no. 2.
46. The claim of PW-1, that he had visited the premises of accused no. 2 and had found stored Rishi Brand Vanaspati having same batch number, is also not very satisfactory. In case his stand is to be accepted, then he has no explanation why no action had been taken against the accused no. 2 when he refused to show any bill to him. His stand that when he visited the premises with SDM, it was found locked, does not appeal the senses. If he was aware of the correct address of the accused no. 2 on the basis of which he went there, there was no occasion for him to send the letter Ex. PW-1/L at an incorrect address. And if he was not aware of the correct address, he could not have visited the address of the accused. The FI had CC No. 225/02 Page 28 of 40 vast powers under the PFA Act to proceed against such an accused and to take taken against him if he refused to allow lifting of sample. No date of such visit has been given, nor the name of SDM disclosed who went with him. Without actually searching the place, the FI claims that the accused no. 2 had removed the entire stock in night hours. No action was taken by the FI and he is simply trying to justify his inaction. From the material on record, it cannot be said that the food article as lifted from accused no. 1 (since expired) had been sold / supplied to him by accused no. 2. Accused no. 2 would be thus entitled to benefit of doubt.
47. However, this by itself would not give similar benefit to the accused no. 3 or accused no. 4 being the manufacturers of the food article. Even if the particulars and identity of the supplier / distributor has not been established, the prosecution has still been able to establish that the food article had been packed / manufactured by the accused no. 3 company. This fact can be established on the basis of label declarations on the food article in question. Form-VI Ex. PW-1/B on which the label declarations have been reproduced by the FI, mention the complete address of the manufacturer accused no. 3.
48. It is to be understood that the accused no. 3 has never questioned the fact that it had manufactured / packed the article, though a general and vague suggestion was given to the PW-3 to the effect that all kinds of duplicate ghee was available in the market, which the witness denied. There has been no positive statement on the part of the accused no. 3 at the trial or even in statement under section 313 CrPC to the effect that the CC No. 225/02 Page 29 of 40 food article did not belong to it or that it was a duplicate or a spurious product being sold under its name.
49. Though accused no. 3 and 4 have denied the sale of food article to accused no. 1 or accused no. 2, yet it never disputed the fact that the food article had been manufactured by it. Of course, duplicate products exist in the market but that it by itself would not exonerate all the manufacturers from the purview of PFA Act with respect to all the food articles. Of course, if a particular manufacturer is able to establish at a trial that the product in question was a spurious or duplicate product being sold under its name, it may get the benefit. But vaguely claiming that duplicate products are available in the market, would certainly be not enough to establish that the product in question was also a duplicate or spurious product. In the present case, there is no positive material on behalf of accused no. 3 or 4 that the sampled commodity was not their product. No attempt was made to summon the record from the PA / LHA to produce the original labels or counterparts of the food article so as to enable the court to observe them and to ascertain if they were genuine products or duplicate products. In view of this position, merely claiming that the food article was not supplied by it either to accused no. 1 but or accused no. 2 would not be sufficient to exonerate the accused no. 3 in the capacity of the manufacturer of the food article.
50. The benefit of warranty under section 19(2) of PFA Act is only available to the vendor / distributor / supplier and not to the manufacturer of the food article. Any such person is protected if he is able to show that CC No. 225/02 Page 30 of 40 he had purchased the food article from some other person under a suitable warranty in writing and if the food article had been sold in the same state as purchased. But as far as the manufacturer / packer is concerned, he/it cannot claim any such warranty on the ground that no bill was shown by either the vendor or supplier. If it is established that an adulterated or misbranded food article had been manufactured / packed by it, it would be liable for prosecution.
51. Similarly, the accused no. 4 has never disputed the fact that he was the nominee appointed by accused no. 3 company as per section 17 of PFA Act. The nomination papers were obtained by the FI from the concerned LHA, the genuineness of which has never been disputed. Accused no. 4 never claimed that he had not been so appointed or that he ceased to be a nominee from any particular date or that he was not the nominee of Delhi region. Being a nominee, as per section 17 of the PFA Act, such person is deemed to be incharge of or responsible for the affairs of the company. The accused never attempted to take defence that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of the offence, as available to him under the Proviso to section 17(1) of the PFA Act.
52. Moving ahead, it is a matter of record that the food article was given the LHA code "SCT/LHA/SDM/004464". This fact can be seen from the contents of the complaint, the vendor receipt Ex. PW-1/A, Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, Form-VI Ex. PW-1/D and the LHA receipt Ex. PW-1/F. Even the PA report mentions the correct LHA code CC No. 225/02 Page 31 of 40 "SCT/LHA/SDM/004464". However, the PA receipt Ex. PW-1/E as lyong on record mentions the sample no. as "BPS/63/01" and LHA code as "SCT/LHA/SDM/003260" which is totally different from the commodity lifted in this case. In this regard, the prosecution as examined PW-3 S.N. Bhardwaj who produced the records of the PA office and clarified that the PA receipt as available on the judicial record pertains to some other sample that might have been lifted by the same FI on that day. It is seen that this witness has never been cross-examined by any Ld. Counsel for the accused persons despite opportunity. Thus, his evidence has remained unrebutted, unchallenged and undisputed. It is therefore not the case of any of the accused persons that the PA receipt Ex. PW-1/E does not pertain to any other sample. Again such incorrect PA receipt would not make any difference to the matter because there correct code and sample number have been mentioned in the PA report, which has not been disputed. No benefit can be claimed on this point.
53. The defence then claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 29.11.2002 on the basis of the Public Analyst's report dated 24.08.2001. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel have argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub CC No. 225/02 Page 32 of 40 Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
54. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
CC No. 225/02 Page 33 of 4055. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel have also argued that PA Smt. M. Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/F also mentions that she has been duly appointed and this fact was never disputed at the time of trial.
56. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the CC No. 225/02 Page 34 of 40 prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
57. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of CC No. 225/02 Page 35 of 40 administration of this Act and to carry out the other functions assigned to it under this Act.
58. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. And it is not a case where the PA applied some unknown or unspecified method. The PFA Rules in Item No. A.19 of Appendix-B clearly specified that the Baudoin test had to be applied to test presence of sesame oil in vanaspati. Also, there is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross- examined by applying under section 293 CrPC on this point.
59. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be CC No. 225/02 Page 36 of 40 accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
60. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by duly appointed PA who applied specified tests as prescribed by the PFA Rules only. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to use of sesame oil in vanaspati so as to test it positive on Baudoin test. The CC No. 225/02 Page 37 of 40 present case would be covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to absence of a necessary ingredient and not presence of pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.
61. The other judgements relied upon the accused persons would not be in their support and are clearly distinguishable from the present case.
62. The judgements in Bhola Ram v. State of Punjab [1985(1) PFA Cases 270] and R. K. Aggarwal v. State of Haryana [1992(2) PFA Cases 62] would certainly help the accused no. 2 but not the accused no. 3 or 4. In the absence of a clear bill or cash memorandum or invoice in respect of the food article, the accused no. 2 would be entitled to get the benefit. But as far as the accused no. 3 is concerned, it is the manufacturing firm which has not been implicated merely on the 'bare word' of the vendor. Rather the material, including the label declaration on the product would sufficiently show that it was the manufacturer of the food article, which fact has not even been disputed or denied by it.
63. The judgements titled as Rameshwar Dayal v. State [1996(2) FAC 197], State v. Subhash Chand [2012(2) JCC 1004], State of Haryana v. Unique Farmaid Pvt. Ltd. [1999(II) FAC 399], Rohit Mull v. State of CC No. 225/02 Page 38 of 40 Goa [2006(1) FAC 57], Hindustan Lever Ltd. v. State of Punjab [2011(1) FAC 192], Marico Ltd. v. State of Delhi [2015(1) FAC 40], State of Orissa v. Gouranga Sahu [2002 (2) FAC 110] and Pepsico India Holdings P. Ltd. v. State of Gujarat [Crl. LP No. 539/11, High Court of Gujarat, dated 27.04.2012] deal with the right of an accused to get sample analysed through the CFL by applying under section 13(2) PFA Act and frustration of such right by delayed filing of complaint. But in the present case, it has already been observed that such a right of the accused persons was never frustrated as even delayed filing of the complaint would not have resulted in disappearance of til / sesame oil in the sample which was found absent. If the sample did contain sesame oil, no amount of delay would have mattered and the sample would have still be fit for analysis to ascertain presence of such oil.
64. No other stand has been taken or any point raised by the defence at the trial or during the course of arguments.
65. In view of the above discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 3 and 4 beyond the shadow of reasonable doubt. It has been proved that the accused no. 3 had manufactured / packed that food in violation of section 2(ia)(a) and (m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act. Accused no. 4 being nominee of accused no. 3 would also be liable by virtue of section 17 of PFA Act for commission of the said offence. However, in the CC No. 225/02 Page 39 of 40 absence of a proper bill/invoice with warranty in writing as per section 19(2) PFA Act, the accused no. 2 is entitled to be given benefit of doubt.
66. Having said so, the accused no. 3 and 4 are held guilty and are convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 2 is however acquitted of the charges. Bail bond of accused no. 2 shall remain in force for the next six months in terms of section 437-A, CrPC.
67. Let the matter be listed for arguments on sentence qua the convicted accused no. 3 and 4.
Announced in the open court this 18th day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC CC No. 225/02 Page 40 of 40