Delhi District Court
Da vs . Pramod Kumar Jain Page 1 Of 57 on 5 March, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1832/09
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Pramod Kumar Jain
S/o Late Sh. Ram Prasad Jain
M/s Ram Prasad Parmod Kumar,
Shop no. 6530A, Khari Bouli,
Delhi
........ VendorcumProprietor
Serial number of the case : 1832/09
Date of the commission of the offence : 14.11.2008
Date of filing of the complaint : 09/02/09
Name of the Complainant : Sh. Sanjeev Kumar Gupta, Food
Inspector
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Offence complained of or proved : Section 2 (ia) (a) (b) & (m) of PFA
Act 1954, punishable U/s 16(1) (a)
and section 14A punishable U/s
16(1C) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 05/03/14
Judgment announced on : 05/03/14
Brief facts of the case
1. In brief the case of the prosecution is that on 14.11.2008 at about 04.30
p.m., Food Inspector Sanjeev Kumar Gupta and Field Assistant Subedar Mishra under
the supervision and directions of SDM / LHA Sh. R.K. Sharma visited at M/s. Ram
Parshad Parmod Kumar Jain, Shop no. 6530A, Khari Bouli, Delhi, where accused
Parmod Kumar Jain who was the vendorcumproprietor was found present
conducting the business of sale of various food articles including Safed Jeera, 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 Safed jeera.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was found not
conforming to the standard of safed jeera as per PFA rules 1955 as per tests
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performed because it contained other edible seeds (mustard seeds) other than cumin
seeds 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) & (m) of PFA Act 1954, punishable U/s 16 (1a) r/w Section 7 of the Act.
Complaint was also filed for violation of section 14A punishable u/s 16(1) (c) as it is
alleged that the vendor failed to disclose the name, address and other particulars of
the person from whom he had purchased the article of food/cumin seeds.
3. After the complaint was filed, the accused was summoned vide orders
dated 09.02.2009.
4. Notice for violation of provision of Section 2 (ia) (a) (b) & (m) of PFA Act
1954 and PFA Rules 1955, section 14A punishable U/s 16 (1) (a) and 16 (1C) r/w
section 7 of the Act was framed against the accused vide order dated 16.07.2009 to
which accused pleaded not guilty and claimed trial.
5. In support of its case, the complainant/prosecution examined three
witnesses namely Sh. R.K. Sharma, the then SDM/LHA as PW1, Food Inspector
Sanjeev Kumar Gupta as PW2 and Field Assistant Subedar Mishra as PW3 and PE
was closed vide order dated 23.07.2010.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 17.03.2011
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wherein the accused claimed himself to be innocent. Despite opportunity accused
failed to lead any DE in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. R.K. Sharma, the then SDM/LHA deposed that on 14.11.2008
he alongwith, FI Sanjiv Kumar Gupta and FA Subedar Mishra and other officials of
PFA Department visited the premises of M/s Ram Prashad Parmod Kumar Jain, Shop
No. 6530A, Khari Bouli, Delhi, where accused Parmod Kumar Jain was found
conducting the business of food articles stored there for sale for human consumption
including Safed jeera. He deposed that they disclosed their identity and intention to
the accused for purchasing the sample of safed jeera lying in an open gunny bag,
bearing no label or declaration for analysis to which the accused agreed. He further
deposed that before purchasing the sample FI Sanjiv Kumar Gupta tried his best to
procure some public witness by requesting some customers, passersby and
neighbouring shopkeepers but as none agreed, then on the request of FA Subedar
Mishra joined as witnesses in sample proceedings. He further deposed that at about
04.30 p.m. FI Sanjiv Kumar Gupta purchased 600 gms Safed Jeera taken from an
open gunny bag, having no label or declaration after proper mixing with the help of a
clean and dry jhaba by rotating in all possible directions i.e. clockwise, anticlockwise,
upwards and downward etc. thoroughly several times on payment of Rs. 96/ vide
vendor's receipt Ex. PW1/A. He deposed that FI then and there divided the sample
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equally into 3 equal parts in three separate clean and dry glass bottles and each
counterpart was separately packed, fastened, marked and sealed according to PFA
Act & Rules. He further deposed that LHA slips bearing his signature and code
number was affixed on each counterpart and signatures of vendor obtained in such a
manner that partly appeared on the LHA slips and partly on wrapper. He further
deposed that Notice in Form VI was prepared vide Ex. PW 1/B and a copy of the same
was given to the accused and as per his endorsement at portion A to A, bearing his
signature at point A. He further deposed that Panchnama Ex. PW 1/C was also
prepared. He deposed that report under Rule 9(e) Ex. PW1/D was also prepared at
the spot. He deposed that all these documents Ex. PW1/A to Ex. PW1/D were read
over and explained to the accused in Hindi and after he understood the same accused
signed at point A, witness signed at point B and FI signed the same at point C.
8. He further deposed that two counterparts of the sample in sealed packet
in intact condition along with two copies of Memo Form VII were deposited with him on
the next working day i.e. on 15.11.2008 vide receipt Ex. PW1/E, with the intimation
that one counterpart has already been deposited with PA. All the copies of memo of
Form VII were marked with the impression of seal which was used to seal the sample
counter parts. All the copies of memo in Form VII bear the seal impression with which
sample were sealed. PA receipt is Ex. PW1/F. He deposed that on receipt of PA
report Ex. PW1/G according to which sample was found nonconforming to standard,
as mentioned therein at portion X. He deposed that after completion of investigation
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by the FI the complete case file along with all statutory documents were sent to the
then Director Sh. Mohan Lal through him, who after going through the entire case file,
applied his mind and gave the sanction for prosecution vide Ex. PW1/H against the
accused and accordingly FI filed the complaint Ex. PW 1/I in the court. He further
deposed that intimation letter Ex. PW1/J along with PA report was sent to the accused,
bearing his signature at point A through registered post vide postal registration receipt
Ex. PW1/K and the same was not received back undelivered.
9. During his cross examination he stated that he does not remember the
names and styles of the adjacent shops and as what commodity was being sold there.
He stated that the vehicle was parked at a distance of 500 meters from the shop of the
accused and then they went at the spot on foot. He stated that sample was sealed at
the spot. He stated that more than 50 bags were lying at the spot at the time of
sampling, some were small and some were big. He stated that 1520 bags were lying
open and other were lying sealed. He stated that the bags were of spices and pulses
were lying there. He stated that he does not remember whether bags were of mustard
were also lying. He stated that there was about 1520 kg of Safed Jeera in the bag at
the time of sampling. He stated that sample commodity was weighed after putting in a
transparent polythene bag same was provided by the vendor. He stated that polythene
bag was not used but it was fresh one. He stated that Safed Jeera was properly
mixed. He denied the suggestion that sample commodity was not properly mixed or
was taken from the upper portion of the bag. He stated that when they reached at the
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spot 34 other customers were also present there. He stated that he cannot tell their
description now and they were requested by the FI to join the sample proceedings but
they refused. He stated that neighbouring shopkeepers were also requested to join the
sample proceedings but he does not remember their names. He stated that they
inquired their names but they did not disclose their names. He stated that he does not
remember whether any display board was installed at the spot. He stated that
extraneous matter does not include any other seeds but it means other waste.
10. PW2 Sanjeev Kumar Gupta, Food Inspector deposed on the same lines
as deposed by PW1. In addition he deposed that during investigation he sent a letter
Ex. PW2/A to the STO ward no. 16 and received its reply at portion A. He deposed
that Sh. Parmod Kumar was the proprietor of the said shop. He deposed that during
investigation accused was found vendorcumproprietor.
11. During his cross examination he stated that 23 customers were present
at the spot he did not ask their names and they did not agree to join the sample
proceedings as a witness. He stated that they were of aged about 3035 years old. He
stated that he did not ask the names of the neighboring shopkeepers as they refused
to join the sample proceedings. He stated that in the either side of the shop of the
accused there were other Kiryana shops and dry fruits but exactly he does not
remember as which shop was left side and which shop was on right side. He stated
that passersby were also requested to join the sample proceedings but they refused.
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He stated that he had not asked the neighbors that they were bound to assist him but
he requested them. He stated that there was about 1520 Kg of Safed Jeera in the
open gunny bag. He stated that other bags of dry fruits were lying there but no bags of
spice were lying there. He stated that there were total 56 bags lying in the shop and
some dry fruits were lying in the cardboard boxes. He stated that other spices were
lying in the racks at counter. He stated that he did not observe so carefully that
mustard seed and other spices were also being sold there. He denied the suggestion
that adjacent to the gunny bag from which the sample was lifted there were bags of
mustard seeds and other spices. He stated that jhaba was provided by the vendor
and the same was already clean and dry. He stated that clean and dry jhaba was
lying at the counter and not in any other gunny bag. He stated that vendor gave the
sample commodity after weighing in a transparent polythene bag. He stated that no
used polythene bag was lying there. He denied the suggestion that they weighed the
sample commodity in a used polythene bag. He denied the suggestion that he did not
try to associate the public witnesses or PA Subedar Mishra agreed to join the sample
proceedings being his subordinate. He stated that all the other material except Safed
Jeera will come under extraneous matter. He again said that extraneous matter does
not include other seeds but it is waste which is such as dirt etc. He stated that with
naked eyes no such dust were seen. He denied the suggestion that he was deposing
falsely.
12. PW3 FA Subedar Mishra deposed on the same lines as deposed by
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PW1 Sh. R.K. Sharma and PW2 Food Inspector Sh. Sanjiv Kumar Gupta in their
examination in chief.
13. This so far is the prosecution evidence in the matter.
14. I have heard the arguments advanced at bar by the Ld. defence counsel
as also the Ld. SPP for complainant. I have also carefully gone through the evidence
recorded in the matter and perused the documents placed on record by the
prosecution in this case.
15. After hearing the rival contentions raised at bar as well as on careful
scrutiny of the material on record, I am of the considered opinion that the prosecution
has successfully brought home the guilt against the accused.
16. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Sanjeev Kumar Gupta coupled with the report of
the PA dated 21.11.2008 that accused Pramod Kumar Jain was indeed found selling
Safed Jeera whole which was adulterated as per the report of PA.
17. The star / the material witness of the prosecution i.e. Food Inspector
Sanjeev Kumar Gupta categorically proved that on 14.11.2008 he along with Field
Assistant Subedar Mishra and SDM / LHA R.K. Sharma visited at M/s Ram Parsad
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Parmod Kumar, Shop no. 6530A, Khari Bauli, Delhi, where accused Parmod Kumar
Jain who was the vendorcumproprietor was found present conducting the business
of various food articles including Safed Jeera whole, 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) he collected / purchased the sample of Safed Jeera whole. The sample
proceedings were proved vide Ex. PW 1/A to Ex. PW 1/D. He further proved the
deposit of the sample with the Public Analyst vide Ex. PW1/F and deposit of the
counterparts of the sample with the Local Health Authority vide Ex. PW 1/E. He further
proved that the Safed Jeera whole on analysis was found adulterated as same was
found not conforming to standards. The Sanction / Consent for prosecution was
proved as Ex. PW 1/H and the complaint was proved as Ex. PW 1/I.
18. The deposition of the Food Inspector was duly corroborated by the
remaining prosecution witnesses i.e. Sh. R.K. Sharma, the then SDM/LHA (PW1) and
Sh. Subedar Mishra Field Assistant (PW3).
19. Furthermore the fact that the sample was collected/lifted by the Food
Inspector on 14.11.2008 as well as that the accused was the vendorcum proprietor
was not disputed during the trial and was also admitted by the accused during his
examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of this
Court on 17.03.2011. From the answers given by the accused to question no. 1 & 2
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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 (1) 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 vendor's receipt Ex. PW1/A, Notice Form VI Ex. PW1/B which bears the
signature of the accused and Ex. PW2/A which is the reply from the Sales Tax Office
no dispute remains that the sample of Safed Jeera was indeed collected by the Food
Inspector for analysis from vendor/accused Parmod Kumar Jain.
20. The PA report which is on record as Ex. PW1/G proves that the sample
was adulterated as it contained other edible seeds/mustard seeds at 0.11% by weight
though the sample ought to have been free from any edible seed.
21. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various loopholes /
contradictions.
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Public witness
22. At the outset it was argued that no public witness was joined by the Food
Inspector (FI) during the alleged sample proceedings which is in violation of section 10
(7) and therefore the accused is entitled to be acquitted on this ground alone. It was
argued that the FI despite the mandate of section 10 (7) did not deliberately join any
public person i.e. customers, neighbourers etc. in the sample proceedings. However I
do not agree with the contentions raised by the Ld. Defence counsel. The Hon'ble
Apex Court in Shriram Labhaya Vs. MCD
, decided on 26.02.1974
has categorically
held that testimony of the Food Inspector alone, if believed, is sufficient to convict the
accused and there is no requirement of independent corroboration by public persons
unless the testimony suffers from fatal inconsistencies. Similarly in Babu Lal Vs.
State, AIR 1971, SC 1277 It has been held that there is no rule of law that a conviction
can not be based on the sole testimony of Food Inspector. Reliance may also be
placed upon Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs.
State of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs.
Pyare Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
State
23. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
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Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".
24. 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.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".
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25. The two prosecution witnesses apart from the Food Inspector i.e.
SDM/LHA and FA Subedar Mishra duly corroborated the testimony of the Food
Inspector on material particulars. It is writ large from the deposition of PW1, PW2 and
PW3 that FI Sanjeev 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. I find no reasons why the Food Inspector or the
SDM would falsely implicate the accused or depose falsely against him. Absence of
public witness in this case is not fatal to the prosecution as the prosecution story
inspires confidence and lifting of the sample stands unambiguously proved.
Rule 14
26. 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 bottles as well as the instrument i.e. jhaba with which the sample was
poured in the bottles/container. It was argued that the other edible seeds/mustard
seeds were also already sticking to the jhaba and the bottles and accordingly on
account of bad sampling that the sample failed. It was argued that Rule 14 of the Act
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is mandatory and not directory and in case there is no strict adherence to Rule 14,
benefit has to be given to the accused. Reliance was placed on the law laid down in
Sardarmal Jain Vs. Nagar Nigam & Anr 1996 (2) 203, Vasantry Jai Kham Khati
Vs. State of Gujarat 2004 FAJ 148, State of Gujarat Vs. Kamlesh Bhai Ram Bhai
2005 (1) FAC 107 and State Vs. Suresh Kumar 2010 (2) FAC 204
27. However I differ with the contentions as raised by the Ld. defence
counsel.
28. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container is clean but it is also dried. Furthermore the container should be such so as
to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to make the same. Furthermore he
should sample the article in hygienic conditions. Reliance may be placed upon
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Varghese Vs. Food Inspector, 1989(2) FAC 236.
29. I have perused the deposition of PW1 i.e. Sh. R.K. Sharma (SDM/LHA)
who deposed as under:
"At about 04.30 p.m. FI Sanjiv Kumar Gupta purchased 600 gms Safed Jeera taken
from an open gunny bag having no label declaration after proper mixing with the help
of a clean and dry jhaba by rotating in all possible directions i.e. clockwise,
anticlockwise, upwards and downwards etc. thoroughly several times.........The FI
Sanjiv Kumar Gupta then and there divided the sample equally into three equal parts
in three separate clean and dry glass bottles......."
30. During his crossexamination he stated as under:
" ......Sample commodity was weighed after putting in a transparent polythene bag,
same was provided by the vendor. Polythene bag was not used but it was fresh one.
Safed Jeera was properly mixed. It is wrong to suggest that sample commodity was
not properly mixed or was taken from the upper portion of the bag.
31. PW2 Food Inspector deposed as under:
"At about 04.30 p.m. I purchased 600 gms Safed Jeera whole taken from an open
small gunny bag having no label declaration after proper mixing with the help of a
clean and dry jhaba by rotating it in all possible directions i.e. clockwise, anticlockwise,
upwards and downwards etc. thoroughly several times.........I then and there divided
the sample equally into three equal parts in three separate clean and dry glass
bottles......."
32. During his cross examination he stated as under:
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"Jhaba was provided by the vendor and the same was already clean and dry. Clean
and dry jhaba was lying at the counter and not in any other gunny bag.......Vendor
gave the commodity after weighing in a transparent polythene bag. No used
polythene bag was lying there. It is wrong to suggest that we weighed the sample
commodity in a used polythene bag"
33. Similarly PW3 the Field Assistant deposed as under:
"At about 04.30 p.m. FI Sanjiv Kumar Gupta purchased 600 gms Safed Jeera whole
taken from an open small gunny bag having no label declaration after proper mixing
with the help of a clean and dry jhaba by rotating it in all possible directions i.e.
clockwise, anticlockwise, upwards and downwards etc. thoroughly several
times.........The FI Sanjiv Kumar Gupta then and there divided the sample equally into
three equal parts in three separate clean and dry glass bottles.......
34. Hence all material prosecution witnesses consistently deposed regarding
the jhaba as well as the sample bottles being clean and dry. I have no reasons to
disbelieve them. Nothing on record has been proved to the contrary i.e. the defence
has not proved that the Food Inspector did not comply with the provisions of the Rule
14. Just because the defence is challenging the sampling process conducted by the
Food Inspector / asserting that Rule 14 was violated is not sufficient to either
disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I find
no reasons why the Food Inspector would depose falsely or falsely implicate the
accused, there being no previous enmity against him. I have also gone through
Section 114 (e) of the Indian Evidence Act.
35. Section 114 reads as under:
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" 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"
36. 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)".
37. 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. ..........When the act has been shown to have been performed, it is
open to the court in its discretion to draw the presumption that the act has been
performed regularly"
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38. 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 as well as the jhaba 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
.].
39. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
40. 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.".
41. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
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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.".
42. 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.
43. Apart from the bald suggestion that the bottles as well as the jhaba were
not clean or dry the defence has been unable to prove that the sample proceedings
were indeed bad or conducted in violation of Rule 14. Thus, there is no force in the
averments made by the Ld. defence counsel.
Homogenization / Mixing of Sample.
44. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted.
45. However, I find no merits in the contention of the Ld. defence counsel.
46. Firstly the Food Inspector and the other complainant witnesses
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categorically stated that the sample was taken after mixing the Safed Jeera whole
properly by rotating it in all possible directions several times. I have no reasons to
disbelieve the Food Inspector or the other complainant witnesses in this regard.
Moreover, there was no requirement of mixing or making the sample i.e. the Safed
Jeera whole 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 difference 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."
47. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Hon.
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Apex Court observed as under:
"If the food sold to the food inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock in possession of the person".
48. 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).
49. 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
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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.
50. 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.
51. 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."
52. 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
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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.
53. 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."
54. In the case at hand not only from the deposition of the Food Inspector
and the other prosecution witnesses it stands duly established that the Safed Jeera
whole was properly mixed at the time of sampling but in view of the above discussion,
I am of the opinion that it being the case of Safed Jeera whole it was not required to
homogenize the same. 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 Safed jeera, Dal, besan etc.
the vendor does not give the said food article after mixing the same with the help of
Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not
first rotate the said food article in all possible directions several times and then sell the
same to the customer. He merely takes out the food article with the help of Jhaba or
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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/safed jeera homogenized should arise or else the
entire purpose of act will be defeated. This is the reason why the PFA Act or the
Rules nowhere provides for mixing of the food articles at the time when the sample is
lifted by the FI.
Discrepancies
55. It was argued by Ld. Defence counsel that there are major discrepancies
in the deposition of the SDM/LHA and the Food Inspector qua the sample
proceedings. It was argued that the SDM/LHA PW1 claimed that the there were more
than 50 bags lying the shop at the time of sampling. On the other hand the Food
Inspector claimed that there were 56 bags only. The Ld. Defence counsel argued that
this discrepancy itself prove that the sample proceedings were bad and there was
violation of Rule 14.
56. No doubt the Ld. Defence counsel pointed out the above discrepancy in
the deposition of PW1 and PW2 however the discrepancy as pointed out by Ld.
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Defence counsel is too trivial in nature/ insignificant to be given any weightage. The
discrepancy as above was natural and bound to occur on account of passage of time
and lapse of memory. Human memories are apt to blur with passage of time. The
sample was lifted in the year 2008 and the cross examination of the witnesses was
conducted in the year 2010 i.e. after a gap of around 2 years. After such a long time
period a person cannot be expected to give a parrot like version or depose with
mathematical precision. Only a tutored witness can depose so. Error due to lapse of
time/lapse of memory have to be given due weightage/ due allowance.
57. By and large a witness cannot be expected to possess a photographic
memory and to recall the details of an incident. It is not as if a video tape is replayed
on the mental screen. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic to expect a witness to be a human
tape recorder. Ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when interrogated later on. A witness,
though wholly truthful, is liable to be overawed by the court atmosphere and the
piercing cross examination made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from imagination on the spur
of the moment. The subconscious mind of the witness sometimes so operates on
account of the fear of looking foolish or being disbelieved though the witness is giving
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a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort
of a psychological defence mechanism activated on the spur of the moment. Reliance
may be placed upon the observations made by the Hon'ble Apex Court in case titled
as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir
Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of
Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada
Bhoginbhai Hirjibhai v.
State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972
SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
58. The law is well settled that discrepancies which do not go to the root of
the matter and shake the basic version of the witnesses cannot be annexed with un
due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable
evidence. One cannot come across a witness whose evidence does not contain some
exaggeration or embellishments. Sometimes there could be even be a deliberate at
tempt to offer embellishment and sometime in their overanxiety they may give slightly
exaggerated account. Court can sift the chaff from corn and find out truth from the tes
timony of witnesses. Evidence is to be considered from the point of trustworthiness. If
this element is satisfied they ought to inspire confidence in mind of the court.
59. Moreover, officials like Food Inspector and the SDM are collecting sam
ples/witnessing sample proceedings almost daily and sometimes more than one sam
ple is collected in a day. During their stint as Food Inspector and SDM/LHA they col
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lect/witness hundreds of sample proceedings and accordingly the facts being mixed up
due to passage of time. Same has to be given due allowance. Moreover during their
examination in chief the witnesses duly corroborated each other as there was no dis
crepancy/contradiction.
PA's Report/intimation letter not received hence right u/s 13 (2) could not be
exercised thus prejudice caused to the accused.
60. It was also one of the arguments of Ld. Defence counsel that PA's report
along with intimation as per the provisions of section 13 (2) of the Act was not
supplied/delivered to the accused and accordingly the accused could not exercise his
right as contemplated u/s 13 (2) of sending the second counterpart of the sample kept
with the LHA to be analyzed by the Director, CFL. It was argued that this caused
serious prejudice to the accused as his right was defeated. Reliance was placed upon
the law laid down in Shiv Dutt Singh Vs. Ram Dass AIR 1980 Allahabad 280,
State of Orissa Vs. G. Sahu 2003 Cri. LJ 3077 and Jagat Ram Vs. Bantu Mal, AIR
1976, Delhi 113.
61. However the said plea of Ld. Defence counsel is meritless. PW1
SDM/LHA R.K. Sharma and Food Inspector Sanjiv Kumar Gupta categorically stated
that intimation letter along with PA's report i.e. Ex. PW1/J were sent to the accused
vide registered post. The Food Inspector placed on record the certified copy of postal
dispatch register on record as Ex. PW1/K. The intimation letter so sent was not
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received back undelivered. The intimation letter was addressed at the correct address
of the accused. It is the same address which is appearing in the complaint as well as
on which the summons were issued by the Court and accordingly the accused filed his
appearance on 15.05.2009. It is not the defence plea that the address on which the
intimation letter Ex. PW1/J was sent was incorrect or that the accused was not the
occupant/resident of the address appearing on Ex. PW1/J. If the summons were duly
received by the accused for 15.05.2009 I fail to understand why the intimation letter
i.e. Ex. PW1/J sent by registered post vide Ex. PW1/K would not have received by him
as it was addressed on same address on which the summons were served.
62. Section 114 of the Evidence Act and the presumption which Section 114
raises has been discussed above. Clause (f) of Section 114 reads as under:
"That the common course of business had been followed in particular cases"
63. It is now well settled that sending by post, means sending by post to the
addressees proper address. Where a notice has to be served through post, all that a
sender can do to comply with the provisions is to post the prepaid registered letter
containing addressees correct address. Once he does this and the letter is delivered
to the post office, he has no control over it. In that event, under Section 27 of the
General Clauses Act, the letter shall be presumed to have been delivered to the
addressee. There is no obligation upon the sender to prove the service of notice upon
the addressee if he send the notice by registered post, properly addressed. Where a
letter is sent under certificate of posting a presumption arises under Section 114 of the
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Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal
Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P.
Rama Reddy, 2003(3) Andh. LT 120 (AP)]
64. Once the evidence discloses that the letter was addressed at a proper address
by registered post then unless it is rebutted or the contrary is proved to have been
effected at the time at which the letter would be delivered in the ordinary course of
post it is presumed that there is a proper service. If the addressee either can not be
met or refused to take delivery there appears to be no reason why the letter should not
be considered as properly served upon the addressee ( State Vs. Bhag Chand
Sadhu Mal, 1999 (3) Guj. LR 2220.).
65. In the absence of anything indicating that such letters were not posted or
concocted the presumption under Section 114 (f) comes into play (Vandavasi
Kartikaya Vs. S. Kamalanna, A 1994 AP 102).
66. A bare denial with no reliable evidence is not sufficient to rebut the
presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial
without reliable evidence, without further rebuttal, the presumption continues [Fazal
Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].
67. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the
prosecution did not prove any postal acknowledgment signed by the accused to prove
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about the service of copy of the report of the Public Analyst which had been sent by
registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC
300 the court held as under:
"In the present case the petitioner in his examination under section 313 Cr. P.C has
merely denied to have received the copy of the report of the Public Anlayst. However,
no evidence has been adduced on behalf of the accused persons to rebut the
presumption available under the General Clauses Act as well as Section 114 of
the Evidence Act. As observed by the Division Bench of this Court, when it is proved
that registered letter has been posted after being duly stamped in the address of a
person, a presumption arises that such letter must have been served on the
addressee. The evidence adduced on behalf of the prosecution to the effect that the
report of the Public Analyst had been posted by registered post as per the postal
receipt has not been successfully challenged by the petitioner in any manner in cross
examination. The mere denial of the accused in his statement under Section 313,
Code of Criminal Procedure, cannot have the effect of rebutting the statutory
presumption available under the provisions of the General Clauses Act.".
68. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it
was held "admittedly there is presumption in law that a communication sent by post on
the correct address of the addressee is presumed to have been received by him if it is
not received back by the sender.".
69. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while
relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass
Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of
Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can
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have no grievance that he could not avail of his right under Section 13(2) of the Act.
In view of the aforesaid position of law in the case at hand, the accused/applicant
cannot complain that a prejudice is caused to him due to late filing of the complaint
and thereby he has been deprived of his right given under Section 13(2) of the Act.".
70. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held
as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon
the sender or the postman to arrange that notice to be served upon the addressee. If
a letter is posted prepaid and registered with a acknowledgment due or otherwise to
the correct address of the addressee and delivered to the post office, there is
presumption under Section 27 of the General Clauses Act that the letter is delivered to
the addressee.".
71. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand
AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the
respondent that in order to comply with the requirement of Section 13(2) of the Act
actual delivery of the notice or deliberate refusal to accept the same by the addressee
is necessary, it will lead us to anomalous and very dangerous situations. A cunning
and unscrupulous accused can effectively thwart the delivery of the notice to him by
staying away from his house for some time knowing the arrival of the notice and get it
returned to the sender as unserved.".
72. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held
that prosecution is not required to prove that the applicant has acknowledged the copy
of the Public Analyst's Report.
73. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was
observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal
Procedure, cannot have the effect of rebutting the statutory presumption available
under the provisions of the General Clauses Act."
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74. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that
where extract of the relevant entries in the register maintained in the office also
indicated that the notice under section 13(2) of the Act alongwith the report of the
Public Analyst was sent to the applicant by registered post on the address available on
record and it is not the contention that the accused / addressee / vendor did not reside
at the address on which the notice was sent then "The mere fact, that A/D receipt was
not filed or received back, was not sufficient to rebut or dislodge the presumption of
service of notice sent by registered post in absence of any evidence to the contrary.".
Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed
upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex
Court has held "the notice dispatched by sender by post with correct address on it,
can be deemed to be served on sendee unless he proves that he is not really served.
This principle was propounded keeping in view the provisions of section 27 of the
General Clauses Act."
75. In the case at hand in view of categorical deposition of the Food
Inspector coupled with Ex. PW1/J and K a presumption tenable in the eyes of law can
be drawn that the PA's report along with intimation letter was duly delivered/received
by the accused/the vendor. Moreover the Food Inspector and the SDM/LHA were not
even once cross examined on this aspect. No suggestion whatsoever was given to
the witnesses/they were not cross examined regarding the sending of the intimation
letter. Their deposition regarding the sending of the intimation letter remained
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unchallenged. Furthermore nothing stopped the accused from exercising the right u/s
13 (2) the moment he filed his appearance in the court on 15.05.2009. In fact it is a
case where the accused for the reasons best known to him did not choose to exercise
his right u/s 13 (2).
76. As far as the prejudice is concerned suffice would be to say that once the
accused does not exercise the right u/s 13 (2) he cannot complain later on.
77. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held
that as the petitioner did not exercise his right under section 13(2) and no sample was
sent to Director, CFL, the petitioner can make no grievance.
78. In Jai Singh Vs. State 1976 (1) FAC 207, it was held as under:
"the delay in the submission of the report cannot be said to be inordinatethe vendor
accused cannot himself decide that no useful purpose will be served by the sample
being sent for test by the Director of Central Food Laboratory. He has to move an
application and get sample tested and if it is found deteriorated by the Director, he can
claim that the prejudice was caused to him and he was deprived of the right by reason
of laches on the part of the prosecution."
79. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that
if a person does not voluntarily takes advantage of Section 13 he can not complaint
about the loss of any right.
80. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it
was one of the contentions of the Ld. defence counsel that since the complaint was
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launched after lapse of more than 4 months from the date of taking sample the
accused could not utilize his right to send the sample to Director, CFL. As a matter of
fact the accused had not moved any application under Section 13(2) of the Act
claiming that as there was delay in launching of the prosecution / supply of the PA's
report, no purpose would have been served by resorting to an application under
Section 13(2) of the Act as on account of delay the article of food would not have
retained its quality for examination. Repelling the contentions their lordship held
as under:
" There is also in our view no justification for holding that the accused had no
opportunity for sending the sample in his custody to the Director, Central Food
Laboratory under Section 13(2) because he made no application to the Court for
sending it. It does not avail him at this stage to say that over four months had elapsed
from the time the samples were taken to the time when the complaint was filed and
consequently the sample had deteriorated and could not be analysed. The decision of
this Court in Municipal Corporation Delhi V. Ghisa Ram: 1975 (1) FAC 186, has no
application to the facts of this case. In that case the sample of the vendor had in fact
been sent to the Director of the Central Food Laboratory on his application but the
Director had reported that the sample had become highly decomposed and could not
be analysed.".
81. In Babu Lal's case as above, Hon'ble Mr. Justice Jagmohan Reddy, J
speaking for the court said "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director." The similar view as above was taken by their lordship in Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC
545. It was held as under:
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".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis. If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right.".
82. Same view was taken in Sukhmal Gupta Vs. The Corporation of Calcutta 1974 FAC 207, Hypercity Retail (India) Ltd. and Ors. Vs. State of Punjab and Anr. 2013(1) FAC 392, MCD Vs. Ajit Pershad 1975 (2) FAC 60 and Pitabasa Bisi Vs. State 1996 (1) FAC 145.
83. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance about the delay caused in the examination of the sample by the Director. Furthermore, under section 510, Criminal Procedure Code, the report made by the Director, Central Food Laboratory, can be received in evidence even when the Director does not enter into the witnessbox. If the accused person wants to show certain infirmities in the process of chemical examination performed by the Director, then he has to make an CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 36 of 57 application to the trial Court to have the Director summoned as a witness. This procedure was not adopted by the petitioner and he has not brought any material on the record to show why the report submitted by the Director should not be relied upon.".
84. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no doubt that in the present case the prosecution was launched after nearly five months but the petitioner did not submit any application under subsection (2) of section 13 of the Prevention of Food Adulteration Act, 1954, requesting the court to get the sample of milk analysed by the Central Food Laboratory. There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
85. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 that the question of deprivation of the right even to the accused under section (2) of Section 13 of the aforesaid Act, does not arise until the accused makes an application to the Court for having the sample analysed by the Central Food Laboratory, Calcutta. Until such an application is made no right can be said to have accrued to the accused. In this case also no such application was made. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
86. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 37 of 57 sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it.".
87. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
88. Further the Hon'ble Apex in Dalchand Vs. Municipal Corpn, 15 (1984) 2 SCC 486 held that, "where the effect of noncompliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint."
89. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food Adulterations cases 195, it was held that if the report of the Public Analyst is served upon the accused after two years and the accused does not make any application for sending the sample to Director, CFL no prejudice is caused to him.
90. In Ram Bilas Vs. State 1997(1) 141, while dealing with delay in CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 38 of 57 sending the PA's Report to the accused it was held :
"Be that as it may, the petitioner did not choose to challenge the report by moving an application for sending of the other sample bottle for analysis of the Central Food Laboratory. (Reliance placed upon Tulsi Ram Vs. State of Madhya Pradesh 1984 (2) FAC 146, wherein it has been held that "it is a question of prejudice").
in the above case it was discussed in para 6 as under:
"Similarly, the Hon'ble Supreme Court in another decision in Jagdish Prasad Vs. State of West Bengal, 1972 FAC 127: 19481997 FAC (SC) 55, observed that "where no application is made under subsection (2) for sending the sample to the Director of the Central Food Laboratory, and the report of the Public Analyst is not superseded under subsection (3) by the certificate of the Director, a conviction of the accused on the basis of the report of the Public Analyst and on his evidence would be proper". The petitioner could very well establish the denial of his right under Section 13(2) on account of delay in forwarding the report of the Public Analyst to him, if on an application the other sample bottle had been examined and a report of the Director of Central Food Laboratory had confirmed that the sample has become unfit for analysis. As such, it is not a case of any prejudice caused to the petitioner by delay, if any, in forwarding the report of the Public Analyst to him."
Delay
91. The Ld. Defence counsel also argued that the prosecution was launched after almost 3 months since the lifting of the sample and therefore even if the accused had moved the application the sample would not have remained fit for analysis by the Director and hence moving the application u/s 13 (2) would have been an exercise in futility. However, the said defence is unsustainable. As already discussed above once no application u/s 13 (2) is moved the accused is no longer entitled to claim the loss of CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 39 of 57 the right u/s 13 (2). Furthermore, no presumption can be drawn by the Court that the sample if sent for analysis to the Director after the institution of the case would have decomposed/rendered unfit for analysis on account of delay of 3 months in launching of the prosecution.
92. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred u/s 13(2) and that depends on the facts of each case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.". Further reliance may be placed upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179 .
93. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 40 of 57 Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........
.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed.".".
It was further observed in para 68 as under:
CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 41 of 57
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 42 of 57 the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."
It was further observed in para 76 as under:
"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 43 of 57 analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".
94. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 44 of 57 heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
95. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
96. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
97. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 45 of 57 been caused to him either because of delay in launching the prosecution or for any other reason."
98. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".
99. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 46 of 57 though made final and conclusive under the proviso."
100. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
101. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 47 of 57 samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".
102. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:
"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 48 of 57
103. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
104. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.
105. In the case at hand it being a sample of Safed Jeera whole and there being nothing on record, no evidence led by the defence to prove that the Safed Jeera CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 49 of 57 whole must have got deteriorated, decomposed/ rendered unfit for analysis, I find no merit in the contention of Ld. Defence counsel that solely on account of delay the right of the accused was prejudiced.
PA's report
106. It is well settled proposition of law that unless superseded the report of Public Analyst remained effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.
Marginal deficiency
107. It was also argued by Ld. Defence counsel that even if the report of the PA is admitted to be correct still it is apparent from the report of PA that the sample only marginally did not conform to the standards. It was argued that as per the report mustard seeds were found only at 0.11% and this marginal variation/ deficiency from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. However I do not agree with the Ld. Defence counsel. CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 50 of 57
108. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
109. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."
110. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 51 of 57 rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
111. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".
112. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
113. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
114. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 52 of 57 inference that the milk was not stirred properly before collecting the sample.".
115. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."
116. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
117. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
118. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
119. In the case at hand the sample on analysis by the PA did not conform to the standards of Safed Jeera whole as it was found containing mustard seeds at CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 53 of 57 0.11% by weight thought it ought to have been free from the same. The sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.
Injurious to health.
120. Lastly it was argued that even if the sample of Safed Jeera whole so collected is admitted to be not as per the standards then still the prosecution failed to prove that sample was in any way injurious to health and thereby sale of such food article/Safed Jeera whole harmful/ delirious to the society.
121. Even the said plea of the Ld. Defence counsel 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.".
122. 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 CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 54 of 57 and would not injure anybody......... 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."
Whether adulteration due to natural causes?
123. It was also one of the arguments of the Ld. Defence counsel that Safed Jeera whole being a primary food/agriculture food the adulteration for which the accused is facing the trial/has been charged of occurred on account of natural causes which was beyond his control. It was argued that it is common phenomenon that in any agriculture field apart from the main crop other crops/plants come up and there is all likelihood that they get mixed up with the main crop/ produce. It was argued that in the case at hand the mustard seeds as found in the sample of Safed Jeera whole in all likelihood occurred because of crop/plant of the mustard seeds having grown besides the crop of Safed Jeera whole. It was argued that in view of proviso to section 2 (ia)
(m) the accused cannot be held responsible for the adulteration.
124. However, I differ with the Ld. defence counsel. It is well settled law that liability under the PFA Act is strict. A grave duty is imposed upon the vendor to check that he does not sell any adulterated food article. In the case at hand accused was a vendor selling Safed Jeera whole apart from other food articles. He was under an obligation/duty bound to ensure the purity of the products he was selling. He being the vendor/seller of the food articles had the responsibility to ensure that adulterated CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 55 of 57 articles are not sold to the consumers. He cannot come up with an excuse that he was not aware of the mustard seeds having mixed up with Safed Jeera whole. Proviso to sub section (m) as discussed above has been enacted to protect the vendor in case the food articles sold deteriorates, decomposes or falls below the standards on account of natural causes beyond his control. Mixing up of mustard seeds with cumin seeds can by no bound of imagination fall under the above provision. It is a case of mixing of an article which is not the constituent or part of the food articles sold and the very presence of which makes the food article so sold adulterated. The vendor had to ensure that he was selling Safed Jeera whole which was up to the standard i.e. not adulterated as per the requirement of the Act/standard prescribed for Safed Jeera whole. He failed to do so and thus has no escape. His plea that the article conformed to the other standards prescribed under the Act for Safed Jeera whole is also not tenable because the adulteration may occur on account of the food article being not up to the standard prescribed for the food article either under one head or two or all. Even if the food article does not conform to the quality standards prescribed under anyone of the heads it amounts to adulteration.
125. As far as liability u/s 14A r/w section 16 (1) (C) is concerned though the charge was framed for the same however none of the prosecution witnesses including the FI even once stated that he asked the vendor to disclose the identity/particulars of the manufacturer or the person from whom he had purchased the article of food. There is no documentary evidence leave apart any oral evidence of the prosecution CC No. 1832/09 DA Vs. Pramod Kumar Jain Page 56 of 57 witnesses in this regard. The prosecution evidence remains silent on this aspect. Accordingly nothing was put to the accused even in his statement u/s 313 Cr.P.C. In these circumstances, prosecution failed to make out any case u/s 14A against the accused.
126. In view of my above discussion, the accused stands convicted under Section 2 (ia) (a) (b) & (m) of PFA Act 1954.
127. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao)
on 5th March, 2014 ACMMII/ New Delhi
CC No. 1832/09
DA Vs. Pramod Kumar Jain Page 57 of 57