Delhi District Court
Vikas Khurana & Anr. vs . Delhi Administration on 17 November, 2022
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04,
PATIALA HOUSE COURTS,
NEW DELHI
IN THE MATTER OF:
Vikas Khurana & Anr. Vs. Delhi Administration
Criminal Appeal No. 160/2017
CNR No. DLND01-009402-2017
CC No. 90/2006
1. Sh. Vikas Khurana
S/o Sh. Kaushal Khurana,
R/o 11112, East Park Road,
Karol Bagh, Street No.2,
Delhi-110005
2. M/s Khurana Departmental Store,
432, Bhera Enclave,
Paschim Vihar,
New Delhi-110063 ...Appellants
Versus
Delhi Administration/Food Inspector
Department of PFA,
Govt. of N.C.T. of Delhi,
A-20, Lawrence Road,
Industrial Area, New Delhi-110035 ...Respondent
Date of Institution : 21.07.2017
Date of decision : 17.11.2022
Cr Appeal No. 160/2017 Page 1 of 13
JUDGMENT (ORAL)
1. Vide this order, I propose to dispose of the present Criminal Appeal filed against the judgment of conviction dated 27.06.2017 and order on point of sentence dated 28.06.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.
2. The facts in brief, were that on 30.08.2005, at about 06:30 PM, Food Inspectors Sh. Hukum Singh alongwith FA Sh. Om Prakash and other officials of PFA Department under supervision of SDM/LHA Sh. B.M. Jain, visited M/s Khurana Departmental Store, Paschim Vihar, New Delhi where the appellant was found selling various food articles including Rai Whole. Sample of the Rai Whole in 9 sealed packets of 100 gms each were purchased having identical label declaration.
3. As per complaint, one sample was sent to Public Analyst who found the sample to be adulterated as it was found to contain "unpermitted oil soluble coloured synthetic colouring material'. The PA's report dated 30.09.2005 which describes the colour identification as "oil soluble colour" and describes the method of test as "chromatography method". Accordingly, Sanction/Consent under Section 20 of the Act was obtained and the complaint was filed for violation of Rule 23 readwith Rule 28 and 29 as well as Rule 32a, 32d, 32e readwith Rule 42(ZZZ) (17) of PFA Rules readwith Section 2 (ia) (a) (b)
(j) & (m) of the PFA punishable under Section 7/16 (1) A of the Act.
4. The appellant was summoned vide order dated 24.03.2006. An application under Section 13(2) of the Act was filed by the appellant. The second counter part of the sample, as Cr Appeal No. 160/2017 Page 2 of 13 selected by the appellant in the Court, was sent to Central Food Laboratory for analysis vide order dated 28.04.2006. The Director CFL after analyzing the sample the sample gave his report vide certificate dated 29.05.2006 that the sample was found to be containing 'synthetic red oil soluble colour'. The report describes the method of test used as DGHS method.
5. A charge for violation of provisions of the Act punishable u/s 7/16 1(A) PFA Act readwith the aforesaid rules was framed against the appellant on 12.11.2009, to which he pleaded not guilty.
6. The prosecution examined 5 witnesses namely, PW1 FI Sh. Hukum Singh, PW2 FI Sh. Arun Kumar Gupta, PW3 Sh. B.M. Jain, PW4 FI Sh. O.P.S. Ahlawat and PW5 FA Sh. Om Prakash who all deposed about taking of sample from the shop of the appellant.
7. The statement of the accused was record u/s 313 Cr.P.C. in which he claimed his innocence.
8. The appellant examined DW1 Sh. S.N Mahindru, an scientific expert who deposed that he had authored several books pertaining to food quality assurance and food laws. He deposed that Rai has various colours and pigments which are natural. Synthetic colours can always be identified through proper test such as Minimum TLC Method. The natural colour in Rai is oil soluble. That the analyst must identify and mention the colour found in his report. The CFL Report nowhere shows the chemical name of the colour found and therefore it was not possible to ascertain whether the colour was synthetic or natural.
9. The Ld. MM on the basis of the evidence concluded Cr Appeal No. 160/2017 Page 3 of 13 that from the report of Director, CFL, it was established that there was extraneous synthetic colour present in the sample of Rai Whole and thus convicted the appellant.
10. The Ld. Counsel for the appellant has argued that Rai has its own colour. As per the guidelines of DGHS, Government of India, all the colours should have been identified by the analyst to rule out the possibility of presence of only synthetic colours. The expert opinion as given by DW1 has been ignored by the Ld. Trial Court and it has been wrongly concluded that the sample was adulterated.
11. It has been contended that the sample in the present case was taken in the year 2005 and the laboratories and the method of testing had not been notified until the year 2008 and therefore no credence could be attached to the report of the PA as well as the CFL. It was thus, argued that the conviction and the sentence was liable to be set aside.
12. Ld. SPP for the Department has argued that it has been held in a catena of judgments that once the food item is analyzed by Director, CFL it takes precedence. Therefore, the report of Public Analyst cannot be referred for any purpose as it becomes non-existent. It was further argued that the sample of Rai Whole was found to contain synthetic oil soluble colours which is prohibited under the Rules and therefore, the appellant has been rightly convicted and sentenced. It submitted that the present appeal is liable to be dismissed.
13. I have heard the arguments and have perused the record. My observations are as under:
14. The first ground on which the conviction has been assailed is that Rai has its own natural colours and the report of Cr Appeal No. 160/2017 Page 4 of 13 Public Analyst as well as of Director, CFL is not conclusive to say that the colour detected was the natural colour or the synthetic colour.
15. "Rai Whole" has its own inherent natural colour. Brown coloured "Rai" belongs to two varieties of mustard seed.
"Rai" has two natural colours, one belongs to caronides and other to riboflavins. Caronides are red coloured and riboflavins are of orange colour. The skin of "Rai" seed has fine reticulations as seen through the lens i.e. lattice the surface marked by a non- working of fine up standing rigids.
16. The Chromatography Test can only detect the presence of colour and not whether it is inherent or added one. In order to distinguish between the two, further tests are required to be performed.
17. The credibility of Chromatography Test was considered in the case of "Maya Ram v. State of Punjab, 1987 (II) FAC 320 (P & H)", wherein it was observed as under:
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is Cr Appeal No. 160/2017 Page 5 of 13 available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that rule 28 permits use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are non-experts." In State v. Subhash Chand 2012 (2) FAC 1052 (DHC) a reference was made to Balmukand Singh v. State of Punjab 2008 Crl. L.J. 1084 where it was held that paper chromatogram test is no sufficient to conclude whether permitted or unpermitted coal tar dye has been used. The expert has to examine carefully the colouring matter by applying various tests for excluding the use of permitted colours, before reading the conclusion to detect the unpermitted coal.
18. It has been explained in a book written by S.N. Mahendroo and published by TATA Macgra-Hill Publishing Ltd. on the subject of "Food Safety A Techno-Legal Analysis", that Cr Appeal No. 160/2017 Page 6 of 13 all varieties of mustard seed contain natural colour pigment of their own. These colour pigments are also oil soluble. When the mustard seeds are treated with a solvent to detect the presence of added colour, then the natural colour pigments present in the seed also get leached out in the solvent and when subjected to TLC test, it shows the presence of colour. In order to find out whether the colour is inherent or synthetic or added, it is compared with the known colours and thereafter, to distinguish between the natural colour or added colour, solvent is sprinkled over a filter paper or the chromatograph itself is kept I an oven. The natural colours have tendency to disappear within 3 or 4 days while synthetic colours last longer. However, the natural colour pigments i.e. carotenoids of mustard seeds do not disappear in the oven for a long time and are sometimes mistaken to be those of synthetic colour. Further Rai/Mustard seeds contains upon 162 micro carotenoide pigments which are oil soluble in nature.
19. Sh. S.N. Mahindru, the expert was also examined by appellant as DW-1. As per witness, under the Manual of Method of analysis of foods issued by the DGHS, Government of India, all the colours should be identified by the Analyst. Some synthetic colours are oil soluble, some are water soluble and some are both. After a colour is detected, the Public Analyst has to identify whether it is a natural colour or a synthetic colour and give its chemical name. This part of his testimony was not challenged nor probed.
20. In the present case, as per the report of Public Analyst Ex.PW1/G, the sample was found to be adulterated as it contained oil soluble synthetic colouring matter with the Cr Appeal No. 160/2017 Page 7 of 13 Chromatography test. The report of Director, CFL also concluded that the sample contained extraneous synthetic red oil soluble colours detected and the method of test used has been stated to be as per DGHS manual.
21. Before dealing with the difference in the tests adopted, I would first like to point out that the CFL Report dated 29.05.2006 is now Ex.CW/A is completely typed. However, the word 'synthetic' has been added in ink by hand before the word 'Red' in row No. 4 of the report. Some initial appear on the same, however, on the other page, wherever there is cutting, full signatures of the author appear. Firstly, therefore, this interpolation in the CFL Report, casts a doubt on the same. The prosecution ought to have summoned the Director, CFL to confirm whether the manipulation in the report was in fact made during the course of duty as also whether the initials were of the Director to rule out any subsequent manipulation by a third party.
22. Be that as it may, from the evidence on record, it is evident that the name of the test applied for determining the presence of colour has not been disclosed in the report of Director, CFL and therefore, I cannot assume that the same was Chromatography test. Therefore, it is possible that the PA had used chromatography test and the CFL had used some other test to detect the presence of colour. If different tests are used, of course, it would affect the outcome of the case. This difference assumes significance as the sample was tested before 25.03.2008, but I would revert to this point a little later.
23. Even if it is assumed that CFL had also used chromatography test, then too, as already discussed above, it can Cr Appeal No. 160/2017 Page 8 of 13 only detect the presence of colour and not that it is an added colour or a natural one. In order to distinguish between the two, further tests are required to be performed. From the report of Director CFL, it is not evident whether the other tests had also been applied to determine if the colour present was not natural. Considering that 'rai whole' has its own natural colour, the possibility of the natural colour being reported as the synthetic added colour cannot be ruled out, in the absence of clear evidence in regard to the tests having been used by the Director, CFL or by the Public Analyst. Since there is no conclusive finding in this regard, the benefit has to be extended to the appellant.
Certified Laboratories and Methods:
24. The second argument that has been addressed on behalf of the Appellant is based on Section 23(ia) (ee) and (hh) of PFA Act. It has been argued that the Laboratories where the samples of food for adulteration are to be analyzed, has not been defined within the meaning of these Sections. Therefore, the Report of the Public Analyst cannot be looked into.
25. For this it would be relevant to refer to the provisions of Section 23(1A)(ee) and (hh) which read as follows:
"23(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
............................Cr Appeal No. 160/2017 Page 9 of 13
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this act;
.......................
(hh) defining the methods of analysis."
26. The said provisions were incorporated in the Prevention of Food Adulteration Act, 1954 with effect from 01.04.1976 only through Act 34 of 1976.
27. Through notification dated 25.03.2008 of the Ministry of Health and Family Welfare published in the Gazette of India (Extraordinary), in exercise of the powers conferred by Section 23 of the 1954 Act, the Central Government has incorporated Rule 4(9) in the Prevention of Food Adulteration Rules, 1955, through Prevention of Food Adulteration (Second Amendment) Rules, 2008.
28. The present Rule 4(9) reads as follows:-
"The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analysing the samples food articles. However, in case the method for analysing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Person's/JACOB/IUPAC/FoodChemicalsCodex/B IS/Woodmen/Winton-Winton/Joslyn shall be adopted. Further, in case of non-availabiltiy of method of analysis in these manuals, the method prescribed in other standard published literature of publication shall be adopted."
29. It has to be noted that the said notification has Cr Appeal No. 160/2017 Page 10 of 13 come into force only on 25.03.2008.
30. These aspects were considered by the Apex Court in the case of Pepsico India Holdings Pvt. Ltd. vs. Food Inspector & Anr. (2011) 1 SCC (Cri) 8. In the said case, the point raised for consideration was whether in the absence of any prescribed and validated method of analysis u/s 23 (1a) (hh) of the Act, could a prosecution be launched against the appellants based on the reports submitted by the Public Analyst using the method of the Director General of Health Services (DGHS). This point was answered in the judgment wherein it was observed that these Sections were not enabling provisions but were mandatory and could be resolved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelled out. It was further noted that in the absence of such discriminated laboratories and specified tests, it can lead to a pick and choose method to suit the prosecution, which cannot be permitted. The non-formulation of Rules under these provisions of the Act is, therefore, fatal for the prosecution. In the Pepsico case (Supra), it was further noted that once there is no information in regard to discriminated reports of the validated methods of analysis, the exercise of sending the second sample to Central Food Laboratory for analysis would be an exercise in futility.
31. This judgment of the Apex Court was followed by the Kerala High Court in the case of R. Gopalakrishnan Vs. Food Inspector in Criminal Revision Petition No.671/2002 decided on 17.07.2013. It was observed that the observations made in the Pepsico case were not limited to the food article i.e. the sample of pepsi that was the subject matter in the said appeal, Cr Appeal No. 160/2017 Page 11 of 13 but it laid down the general preposition of law to be followed in all the cases. Special Leave Petition against the said judgment was preferred in Supreme Court of India, vide Criminal Appeal No. 2476 of 2014, but the same was dismissed.
32. In a recent judgment of M/s Nestle India Ltd. Vs. the Food Safety and Standards Authority of India and Ors. 2015 (2) FAC 56 the Bombay High Court has again followed the Pepsico case (supra) to observe that in the absence of designated laboratories and validated methods of analysis, the reports of the Public Analyst and the Director, CFL, cannot be relied upon.
33. In the present case, as well, the samples were examined by the Public Analyst on 15.09.2005 and by CFL on 26.05.2006. On the said dates, there were no rules framed notifying the laboratories or validating the methods of analysis, which had to be followed. Also, till then there existed no notified laboratory. Perhaps, this is the reason why the PA's report adopted chromatography method and CFL adopted DGHS methods, either ways both were not valid methods of analysis. Since no notification existed till the said date, the report of the Public Analyst as well as the report of the CFL cannot be considered to conclude that the sample collected was adulterated.
34. It needs to be emphasized that while on one hand, adulterated food has rampant ramification as it can cause injury and harm to public at large and in order to prevent such adulteration of food, stringent punishments have been prescribed under the Act, but at the same time stringent procedures have Cr Appeal No. 160/2017 Page 12 of 13 also been laid down for determining if the food was adulterated. Since the punishments are severe, it is incumbent upon the prosecution to abide with the procedures meticulously. In case the proper procedure had not been followed, it would not be safe to rely on the report to hold the accused guilty.
35. The CFL report fails to mention the name of method used for determining the presence of synthetic colour. In the absence of mention of any test, and also that "Rai Whole" has its own colour, the report of PA as well as CFL cannot be relied.
36. In the absence of method of examination, it would not be safe to rely on any of the report to conclude that the sample was adulterated.
37. The benefit of the same has to be extended to the appellant. The conviction and sentence is set aside. Appellant is acquitted. Bail bond cancelled. Surety bond discharged. Bail bond u/s 437-A Cr.P.C. be furnished.
38. The present criminal appeal is disposed off accordingly.
39. The present appeal is disposed of accordingly.
40. TCR be sent back with the copy of this order.
41. Appeal File be consigned to Record Room.
Announced in the open court (Harjyot Singh Bhalla) on 17th November, 2022. ASJ-04/NDD/PHC/ND Cr Appeal No. 160/2017 Page 13 of 13