Delhi District Court
Sunil Kumar vs . The State (Da) on 3 January, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
SUNIL KUMAR VS. THE STATE (DA)
CA No. 113/2017
CNR No. DLND01-006798-2017
Sh. Sunil Kumar
S/o Sh. Kishan Chand,
R/o GH-8/167, Paschim Vihar,
Delhi-110063 ......Appellant
Versus
The State (DA) ......Respondent
Date of Institution: 18.05.2017
Date of decision : 03.01.2023
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction dated 29.04.2017 and CA No. 113/2017 Sunil Kumar Vs. The State 1/25 order on sentence dated 03.05.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.
2. The brief facts of the case as per record are that accused was running an establishment in the name of M/s Rattan Dairy at Shop No.8, GH-13, DDA Market, Paschim Vihar, Delhi- 110063. On 30.06.2008, Food Inspector Sh. Rajendra Kumar Bhaskar alongwith Field Assistant Sh. Om Prakash and SDM/LHA Sh. Ashish Mohan visited the said establishment and lifted 750 grams of Paneer from an open tray kept at the premises. The said sample was divided into three parts and packed as per Rules. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not conform to the standard because milk fat of dried matter was found to be 46.87%, which was less than prescribed minimum limit of 50%. On all other parameters, the sample was passed by the report of the PA. The said analysis was carried out during the period 03.07.2008 to 08.07.2008 and the result was prepared on 17.07.2008.
3. As the sample failed to pass the test, prosecution was launched by Food Inspector by filing complaint with the court. Accused was summoned. He exercised his right under Section 13(2) PFA Act and got the second sample analyzed by CFL. CFL gave report dated 06.11.2008 after analyzing the sample during the period 27.10.2008 to 06.11.2008. According to the said report, the dried matter had milk fat of about 45.32%, which is further lower by about 1.55% when compared with the report of the public analyst.
CA No. 113/2017 Sunil Kumar Vs. The State 2/254. Notice of accusation was served upon the accused under Section 2 (ia) (a) & (m) of PFA Act; punishable under Section 16 (1) (a) read with Section 7 of the Act of 1954 in these facts and circumstances.
5. After trial, vide judgment dated 29.04.2017, accused was convicted for offence under Section 16 (1) (a) of PFA Act and vide order dated 03.05.2017, accused was directed to undergo simple imprisonment for a period of 1 year and fine of Rs.50,000/- and in default of payment of fine SI of 15 days.
6. During the hearing of the appeal, Ld. Counsel has raised several contentions. I have divided the same under various heads based on the factual and legal question involved.
A) Delay in analysis and lodging of prosecution:
7. Ld. Counsel for the appellant has firstly stated that in the present case, the sample was lifted on 30.06.2008. Thereafter, the report of the public analyst was prepared on 17.07.2008 i.e. 17 days after the collection of sample.
8. Ld. Counsel has emphasized that the present case pertain to perishable food article i.e. paneer, which is a milk product and therefore, the same does not have very long shelf life. He has next contented that not only there was delay on this account itself, there was a further delay of almost 3 months in the filing of the complaint. It was only when, after 3 months, the complaint was filed, the accused got an opportunity to get the second sample tested under Section 13 (2) of PFA Act. However, due to the delay caused in lodging of prosecution, such valuable CA No. 113/2017 Sunil Kumar Vs. The State 3/25 right of the accused can be said to have been clearly defeated, as under no circumstances, paneer could have been fit for testing/analyzing after such a long period of time.
9. Ld. Counsel has relied upon the decision in State Vs. Vinod Kumar Gupta, 2010 (2) JCC 987, where lodging of prosecution even after 4 months was rejected on the account of delay as it would defeat the right of the accused for getting the sample tested for the second time.
10. Ld. Counsel has, in support of his contention, further relied upon the decision in MCD Vs. Ghisa Ram, Criminal Appeal No. 194/66 in SC of PFA cases 1951-1975 at page 93 and decision in Chanan Lal Vs. State, 1972 PFA Cases 292, as also, Girish Bhai Dahiyabhai Shah Vs. CC Jani, 2009 (2) FAC 194.
11. Ld. Counsel has next urged, even if it was argued that sample was fit for testing, that judicial notice can be taken of the fact that ordinarily, in paneer, milk fat decreases with time. Ld. Counsel has relied upon the decision in State Vs. Praveen Aggarwal, 2012 (2) FAC 124 and State Vs. V.K. Mutto, 2008 (1) FAC 320.
B) On the manner of taking the sample:
i) Sample not representative:
12. Ld. Counsel has next urged that in the present case about 3-4 bricks of paneer were lying at the shop of the appellant (as per the admission made by PW-2 in his evidence and cross examination), however, team had taken only one whole brick for the purposes of sample. Counsel submits that one brick of paneer CA No. 113/2017 Sunil Kumar Vs. The State 4/25 was not representative of the entire lot of paneer lying at the shop of the appellant. In support of his contention that a portion of paneer should have been taken from all the bricks available and mashed together, he has relied upon the decision in Delhi Administration Vs. Suraj, 2014 (1) FAC 264.
ii) Non compliance of Rule 14 of PFA Rules in lifting sample:
13. Ld. Counsel for the accused has stated that the tray on which the paneer was placed and cut into small pieces was never cleaned before mashing of the sample on the same. Further, although, in the examination in chief, witness has stated that a clean and dry knife and tray was used by him for the purposes of mashing the paneer but in the cross examination he admitted that he had not made the knife clean and dry at the spot, nor the vendor had made the same clean and dry as it was appearing to be already clean and dry. Therefore, he has urged that the witness was required to make a positive assertion in his evidence that he had cleaned and dried the equipment used for the purposes of sampling. According to the counsel, merely because the witness stated that clean apparatus was used without positively indicating when he had the cleaned and dried the same, compliance of Rule 14 of PFA Rules cannot be presumed.
14. I have gone through the trial court record, record of this appeal, submissions forwarded by counsel for appellant and Ld. SPP for State. My observation as as below:-
CA No. 113/2017 Sunil Kumar Vs. The State 5/25Delay in analysis and lodging of prosecution:
15. The analysis of the arguments on this ground was done by the trial court from para 49 onwards, where the court concluded that reliance placed by the accused on judgment of Chanan Lal Vs. State, 1972 FAC 292 was misplaced. On the other hand, the trial court has relied on various judgments of Hon'ble Supreme Court, Hon'ble High Court of Delhi and other Hon'ble High Courts of India. Ld. Trial court came to the conclusion that in case, the CFL found that the sample was "Fit for Analysis", the result given by it is conclusive and does not require any interference. It also held that there is nothing on record which shows that the sample was not fit for analysis. It is further stated that no sample can be discarded on the basis of expiry of shelf life if it is opined by CFL that it is fit for analysis.
Decision
16. Before proceeding further with the matter, it may be pertinent to refer to the definition of term adulterated as contained in Section 2 (ia) of the Act, 1954, which is extracted hereinbelow:
[(ia) ] "adulterated"--an article of food shall be deemed to be adulterated--
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality CA No. 113/2017 Sunil Kumar Vs. The State 6/25 thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, 1[***], rotten, decomposed or diseased animal or vegetable substance or is insect-
infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
[(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
[(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health;]
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
CA No. 113/2017 Sunil Kumar Vs. The State 7/25(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
17. Now clearly, the present case seems to be falling under Clause (m) of Section 2 (1a). The same cannot be considered as insignificant, inasmuch as, the definition of adulterated deals with patent and latent defects which include defects of quality and nature of substance or addition of other substances which may be injurious in nature, or presence of insects or any filthy, putrid, rotten, decompose substance, product of a diseased animal, any other poisonous ingredient injurious to health, or a permissible additive beyond the prescribed limit or a prohibited substance. All the aforesaid imply that an adulterated food article has been rendered unfit for human consumption due to the aforestated ingredients. Some of them may be patent and some may be latent. However, Clause (m) deals with a different situation, as such it contemplates that the quality or purity is below the standard but the product is not injurious to health at the same time. Only this clause contains an exception/proviso which is being reproduced again for emphasis:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
18. Therefore, if the quality and purity of the article fell CA No. 113/2017 Sunil Kumar Vs. The State 8/25 below the standard or the constituents are in quantities beyond the prescribed limit due to natural causes and beyond the control of human agency then the article cannot be deemed to be adulterated.
19. Paneer is not a primary product and is derived from milk given by an animal. The quality of Paneer would depend on the quality of milk given by a particular animal. Further, Paneer is an article which is perishable in nature and does not have a very long shelf life like many other milk products. This shelf life is further dependent on several other factors such as the conditions in which the Paneer is stored i.e. the level of moisture and the range of temperature to which it is exposed, whether it is kept in the dark or expose to the direct sunlight, whether it is exposed to dust or other extraneous matter etc. A Paneer kept refrigerated uninterruptedly will definitely have a longer shelf life than a Paneer kept on a table or almirah for that reason itself.
20. In this case, the sample was lifted on 30.06.2008. Deposited by FI with Public Analyst on 01.07.2008. The same was analyzed by Public Analyst from 03.07.2008 to 08.07.2008. The prosecution was launched on 29.09.2008. The sample was received by CFL on 27.10.2008. The analysis was done from 27.10.2008 to 06.11.2008 and the report was made by CFL on 06.11.2008.
21. It is noted that from the date of taking of sample i.e. 30.06.2008 and the date on which the CFL started examination i.e. 27.10.2008, there is a gap of about 4 months and the shelf life of Paneer may already be over. Even if formalin was added can it CA No. 113/2017 Sunil Kumar Vs. The State 9/25 be said with any certainty that the Paneer, though, it might have remained fit for analysis, no change in its constitution would have taken place over such a long period? That the fat content would have remained same?
22. At this stage, the decision in Chanan Lal Vs. State, 1972 FAC 292 passed by Hon'ble High Court of Delhi may be referred to. In the said judgment, Delhi High Court had noted the evidence of two persons, namely, Sh. P. P. Bhatnagar, then Public Analyst and Sh. B. D. Narang, an Expert in the Field of Food Analysis before it. Para 7 and 8 of the judgment are as below:-
"Para 7 Sh. P. P. Bhatnagar is the Public Analyst of the Municipal Corporation of Delhi. He is a graduate in Science with Chemistry as one of the subjects and entered service in the year 1952 as a Chemist. He has been analyzing articles of food since them. He had been working as a Public Analyst for the New Delhi Municipal Committee and also for Delhi Cantonment Board since September, 1964. He states that if two drops of formalin are added to 25 grams of Paneer and the same is kept in sealed bottle, it will be fit for analysis at least for a period of 8 months. He further states that in case the contents leak out of the bottle, a part of formalin will go out with it and there was likelihood of the Paneer getting de-composed. The action of formalin is to arrest the growth of bacteria and preserve the status quo. The period for which the sample will remain fit for analysis will depend upon the fact whether it was prepared from fresh milk or from sour milk. Moreover, if, at the time of taking the sample, the decomposition has set in, the addition of formalin will not be able to preserve the Paneer for the average period of 8 months. The weather conditions will also affect. In case of Paneer prepared from sour milk, the period of fitness will go down by two of three months. This witness never carried out any tests to find out the period during which Paneer will remain fit for analysis after formalin had been added to it.
Para 8 Dr. B. D. Narang is an M. Sc. (Hons.) in CA No. 113/2017 Sunil Kumar Vs. The State 10/25 Chemistry from Punjab University any Ph. D. in Chemistry from University of Texas (USA). He has been in the field of food analysis for about 28 years and has been working as a Public Analyst since 1959. He is a member of the Central Committee for Food Standards, a statutory body of the Government of India. He claims to have carried out experiments to find out the period of fitness of Paneer. His experiments consisted of preparing the Paneer in the laboratory after buying the milk. He had prepared two sets of sample bottles of Paneer. To one set, he did not add formalin, but had put them in dry clean bottles, which were later on sealed. The other set of bottles in which Paneer had been put in, he had added requisite drops of formalin and sealed them. From each set, some of the bottles were kept at room temperature while the rest in a refrigerator. His observations were that the sample of Paneer to which formalin had been added remained fit for analysis for about one month when kept in the refrigerator. If the same was kept at room temperature, it remained fit from 11 to 15 days. Samples to which no formalin was added and was kept at room temperature, he found, that it started giving slight putrid smell the following day and became decomposed on the 5th day. A similar sample kept in the refrigerator did not give him satisfactory values and so he discarded this part of the experiment."
23. In para 11 of the said judgment, the testimony of Dr. B.D. Narang was relied upon and testimony of Sh. P.P. Bhatnagar was discarded stating that the statement of Sh. P.P. Bhatnagar is based on general observation while that of Dr. B.D. Narang is based on experiments conducted by him.
24. In para 13 of the said judgment, High Court held that "it is safe for me to assume that the sample of Paneer to which requisite drops for formalin have been added and which is kept in refrigerator would remain fit for analysis for about one month".
CA No. 113/2017Sunil Kumar Vs. The State 11/25
25. Now in the present case, it seems there is no dispute that formalin was added to the paneer. Why such an exercise was carried out? So, as per the rules framed in consonance with the Prevention of Food Adulteration Act, formalin is added as preservative. A preservative is a thing which increases the shelf life of a food article. The question that arises before this court is as to by how many months shelf life of paneer is raised if formalin is added? Although, the question seems to be case specific, however, if one was to consider the observations made by the Delhi High Court in the Chanan Lal's case, it can be said to some extent that the High Court has laid down a broader principle when it comes to dealing with perishable food items, which, at least, would apply to paneer samples with greater rigor. The conclusion in para 13 of the said judgment "that the shelf life of the Paneer after adding formalin and kept in refrigerator, is one month", cannot be ignored nor treated as a pure question of fact. Rather, it amounts to laying down a general proposition that shelf life of paneer even after addition of formalin could ordinarily be one month. By no stretch of imagination, it can be taken to extend up till 4 months, as seems to have been considered by the Trial Court.
26. The reasoning of the Trial Court that if the CFL found the sample fit for analysis, then the period does not matter, runs counter to the reasoning/ratio as laid down by the Delhi High Court.
27. So, in these circumstances, it can be held that formalin can only have effect as preservative up to a period of CA No. 113/2017 Sunil Kumar Vs. The State 12/25 one month if the samples are kept in refrigerator. Moreover, in the present case, it is admitted fact that the sample was taken in the month of June, which is the hottest month of the year in New Delhi, India and the witness PW-1 has admitted the same in his cross examination. The witness further admitted in the cross examination that the:
"Counterparts of the sample were kept in the room temperature."
28. It was one out of these counter parts of the sample, which was sent to the CFL after 4 months. This admission of PW-1 in the cross examination leaves no doubt that the counterparts of the sample were not preserved in refrigeration after adding the formalin until it dispatch to CFL after the filing of complaint.
29. The decisions in MCD Vs. Ghisa Ram, Criminal Appeal No. 194/66 in SC of PFA cases 1951-1975 at page 93 and Girish Bhai Dahiyabhai Shah Vs. CC Jani, 2009 (2) FAC 194 also support the case of the accused.
30. Moreover, there are certain other aspects which need to be noted in the present case. The report of the public analyst gives specific description of the physical appearance of the sample as follows:
ii) Physical appearance:- White coloured sample of Paneer.
31. The CFL report also gives the physical appearance of the sample and the same is as follows:
ii) Physical appearance:- Off white solid pieces of Chhanna/paneer.CA No. 113/2017
Sunil Kumar Vs. The State 13/25
32. Therefore, from the aforesaid, it is obvious that the colour of the sample Paneer had already undergone change from "White" to "Off white" during the period between the analysis by the public analyst on 03.07.2008 and its examination at the CFL on 27.10.2008. Can this aspect be ignored? Is this change in the colour of the sample not indicative of the decay setting in or the sample undergoing change because of elapse of time or of the fact that the sample was not representative?
33. The matter does not rest here. It is also noteworthy that the moisture content of the two samples also has a difference of almost 0.77% while it was 67.96% as per report dated 17.07.2008, it had come down to 67.19% on 06.11.2008 when the CFL examined the sample. Similarly, the fat content had come down to 45.32% on 06.11.2008 from 46.87% on 03.07.2008.
34. Now this takes me back to the definition of adulterated as contained in Section 2 (ia) (m) and the proviso contained in. Can it be said beyond reasonable doubt that the deficiency in fat content which was about 4% on the date of examination by PA could not have been because of natural causes beyond control of human agency. Paneer by its very nature looses fat over the period of time. The benefit caused by the delay in lodging of prosecution and the variance in fat content in the two reports must be given to the accused in these circumstances.
The incorrect method of taking of sample in violation of Rule 14.
CA No. 113/2017Sunil Kumar Vs. The State 14/25
35. I may note here that witness PW-1 had noted in examination in chief that:
At about 05.00 PM, I purchased 750 gms Paneer from an open tray bearing no label declaration, after cutting the Paneeer in smallest pieces in a clean and dry try with the help of clean and dry knife and then mixing the same with the help of same knife in the same tray, on payment of Rs.90/- vide vendor's receipt Ex.PW1/A. The so purchased sample was divided into three equal parts by putting it in three clean and dry glass bottles and 20 drops of formalin were added in each of the sample bottle separately by shaking the same for proper dispersion with the help of clean and dry dropper and all the three sample bottles were separately packed, marked, fastened and sealed, according to PFA Act and Rules, after affixing LHA slip bearing the signature and code No. of LHA from top to bottom in all the three bottles and signatures of the vendor obtained in such a manner that partly appeared on the LHA slip and partly on the wrapper.
36. This testimony was supported by the testimony of PW-2 as well. However, in his cross examination, PW-2 deposed as follows:
There were 3-4 bricks of paneer lying at the time of sampling. However, sample was lifted from one brick only. There was no water in the tray in which the paneer was lying. 750 gms paneer was cut by the vendor from one brick and then it was weighed, the so purchased paneer was cut into smallest pieces by the FI in another clean and dry tray with the help of clean and dry knife and mixed with the same knife. The paneer was put into the pan by the vendor with the help of hands. Paneer was put into the sample bottles with the help of spoon. 20 drops of formalin were put into the sample bottles. I do not know the strength of the formalin. It is wrong to suggest that deficiency found in the fat content in the sample commodity was due to improper sampling. It is wrong to suggest that the sample was not properly mixed.CA No. 113/2017
Sunil Kumar Vs. The State 15/25
37. Therefore, clearly, firstly, it was an admitted position that 3-4 bricks of Paneer of various weight and size were available, yet, only one brick was selected as sample. The same has already been considered as a incorrect method of taking of sample by the Delhi High Court in Delhi Administration Vs. Suraj, 2014 1 FAC, where a Ld. Single Judge of the Delhi High Court was dealing with a case pertaining to identical food item, namely, paneer and the sample was restricted to one brick of paneer out of many available at the premises. The Delhi High Court observed as follows:
The trial court has rightly reached a conclusion that the entire lot of bricks of paneer lying in the tray was not cut into pieces and the sample was not taken from the entire lot, which is in contradiction to the provisions of the PFA Act, as per which the Food Inspector was required to homogenize the entire lot of bricks of paneer and then take a sample from the same. In view thereof, the first ground, which has been urged by the appellant i.e. there was no necessity to take the sample from all the bricks of paneer is without any merit.
38. Further, admittedly, in the present case, even this sample was not mashed but only cut into pieces, thereby a small piece cut out of the brick cannot even be considered as representative of the entire brick.
39. Lastly, the witness also admitted that the tray and the knife used for cutting was not made clean nor dry by the raiding team.
40. In view thereof, it can be held that the sample taken was not non representative as well as there was violation of Rule CA No. 113/2017 Sunil Kumar Vs. The State 16/25 14 as far as the method of sampling is concerned.
41. In these circumstances, the analysis of the different samples by public analyst and the CFL is also hit by the defective manner in which sampling was carried out. In case, the samples are non representative, benefit has to be given to the accused.
42. I have noticed that the report of the CFL is defective, inasmuch as, it does not give any name of the method of the test used as far as row 1 is concerned and for all rows subsequent thereto i.e. 2 to 6, it merely says "-do-" which indicates that the test name mentioned above has been applied, which test name is nowhere to be found. Although, it has been contented by the Ld. SPP that PA report cannot be looked for any purpose, once CFL report is on record, as also, that mentioning of the test name is not required by the PA, I am constrained to note that the provisions of the Act were specifically amended w.e.f. 01.04.1996 to incorporate Section 23 (1A) (ee) (hh) which reads 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:-
............................
(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."
43. The amendment cannot be treated to be purposeless. In Dhian Singh Vs. Municipal Board Saharanpur, AIR 1970 CA No. 113/2017 Sunil Kumar Vs. The State 17/25 SC 318, the Hon'ble Supreme Court was of the view that the report of the PA need not contain the mode or particular of analysis nor the test applied. This decision was rendered before the amendment in the statute, whereby the Parliament decided to incorporate the two sub clauses (ee) and (hh) to Section 23 (1A). The intention of the legislature seemed to be that to obviate any discrepancies in the reports solely on count of the laboratory to which articles were sent or the different test methods adopted by different labs, the said provisions were incorporated. Therefore, what was not significant prior to 1976, became relevant and important. The decision in Dhian Singh (Supra), most respectfully, would cease to be the applicable law on the aspect in view of the specific legislative mandate introduced by way of amendment. Any subsequent decision, for a case instituted on a sample taken after the amendment of 1976, which fails to note the statutory amendment and follows the aforesaid decision in Dhian Singh (Supra), can be treated as a decision rendered sub silentio. I deem it appropriate to refer to a few decisions on the principle of sub-silentio.
44. In Nima Ongdi Lepcha v. State of Sikkim and Ors, AIR 2007 Sikkim 7 it was observed and I quote:
A perusal of the judgment in Anil Lachungpa's case extracted above at Paragraph 11, does not show that the fact situation in P. K. Saraswat's case, AIR 1999 Sik 16 and the legal issues involved therein, were brought to the notice of the Court in the case. Arguments addressed, if any, on the point or the issues raised in the case, find no mention in the judgment. In the situation, we have no alternative, but to assume that the issues involved in P. K. Saraswat's case was never argued by the Ld. counsel which deprived the Ld. Single Bench CA No. 113/2017 Sunil Kumar Vs. The State 18/25 of taking notice of the same. It is, therefore, clear that the question whether the Act No. 1 of 1988 stood repealed by the application of the decision of the Single Bench in P. K. Saraswat's case, and whether it applied in the fact situation of Anil Lachungpa's case, never received consideration of the Court. The total absence of argument on the relevant point thus justifies a conclusion that the decision in Anil Lachungpa's case was arrived at sub silentio. It is well recognized rule of law that a precedent sub silentio is not authoritative. Observations and expressions often quoted from some old English cases in this regard are 'a hundred precedent sub silentio are not material' and 'Precedents sub silentio and without argument are of no moment'. Indeed it has long been the established rule in this country that decisions rendered without hearing arguments, without reference to the crucial words of the rule and without any citation of authority are not binding and would not be followed. Thus, it goes without saying, that the decision in Anil Lachungpa's case ought not to be regarded as possessing any authority of precedent on the point raised by the petitioner, namely, that the Act No. 1 of 1988 stands repealed on the authority of this decision.(Emphasis supplied)
45. In A-One Granites v. State of U. P., AIR 2001 SC 1203 it was observed and I quote:
The first question which falls for consideration of this Court is as to whether the question regarding applicability of Rule 72 of the Rules in relation to the present lease is concluded by the earlier decision of this Court rendered in Prem Nath Sharma v. State of U. P., (1997) 4 SCC 552 : (1997 AIR SCW 2121 : AIR 1997 SC 2252 : 1997 All LJ 1201). From a bare perusal of the said judgment of this Court it would be clear that the question as to whether Rule 72 was applicable or not was never canvassed before this Court and the only question which was considered was whether there was vio-
lation of the said rule.
11.This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, and it was laid CA No. 113/2017 Sunil Kumar Vs. The State 19/25 down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. Following the said decision, this Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 : (AIR 1989 SC 38) observed thus (at p. 43 of AIR) :
"In Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancester Motor Co.
(London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M. R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed."
In State of U. P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, reiterating the same view, this Court laid down that such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India and observed thus :
"A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141."
In the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488 : (2000 AIR SCW 2037 : AIR 2000 SC 2264 : 2000 Cri LJ 2971), while examining the CA No. 113/2017 Sunil Kumar Vs. The State 20/25 binding effect of such a decision, this Court observed thus (Para 20):
"A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined."
12. Thus we have no difficulty in holding that as the question regarding applicability of Rule 72 of the Rules having not been even referred to, much less considered by this Court in the earlier appeals, it cannot be said that the point is concluded by the same and no longer res integra and accordingly this Court is called upon to decide the same. (Emphasis supplied)
46. Therefore, in view of the amendment, even though, CFL may have given its report, the PA's report can still be looked to ascertain the test performed to come to a conclusion that PA's report indicates different name of tests applied in the report. It is noteworthy that the sample in the present case and the completion of analysis were both carried out after the notification of lab and method of testing pursuant to the amended Section 23 (1A) (ee) and (hh).
47. At this stage, it may be pertinent to refer to the two reports in the present case.
PA's Report:
S.No. Quality Name of Method Result Prescribed Standards Characteristics of Test used as per:-
(a) Item A--- of Appendix 'B'
(b) As per label declaration for proprietary foods CA No. 113/2017 Sunil Kumar Vs. The State 21/25
(c) As per provisions of the Act and Rules, for both above.
1 Butyro 28.011AOAC 43 40-43 refractometer reading at 40 deg C of the extracted fat () 2 Baudouin Test of 28.129AOAC Negative Negative extracted fat () 3 Moisture () 28.002AOAC 67.96% Not more than 70.0 4 Milk fat contains Roese-Gottlieb 46.87% Not less than 50.0 on dry wt. Basis () method 5 Test for Sugar () Modified barfoed Negative Negative test 6 Test for starch () Iodine Test Negative Negative CFL Report:
Sr. Quality Name of Method Results Prescribed Standards No. Characteristics of test used as per:
(a) Item A- of
Appendix 'B'
(b) As per label
declaration for
proprietary foods.
(c) As per provisions
of the Act and Rules,
for both above.
1 Moisture 67.19% Not more than 70.0%
2 Milk fat contains on -do- 45.32% Not less than 50.0%
dry weight basis
3 B.R. of extracted Fat -do- 42.2 ---
at 400 C
4 Test for starch -do- Negative Shall be negative
5 Test for Sugar -do- Negative Shall be negative
6 Test for colour -do- No Free from extraneous
extraneous synthetic food colour
colour
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48. Therefore, one presumption would be that the PA's report mentions the test names in conformity with the notification, in which eventuality, the court has to conclude that all different standards prescribed viz-a-viz Paneer have to be tested by different tests. If that was so, the CFL could not have used only one test to come to any conclusion viz-a-viz different standards prescribed.
49. Clearly, the CFL report fails to mention any test in row no. 1 and the prosecution also did not make any effort during evidence to call the witness to prove the tests/method of analysis used by him, I would have to read the report as it is and to my view, the report which does not indicate the method of analysis , as also, indicates that the same method of analysis was applied to test a product for various standards, cannot be relied upon, more specifically, when the PA's report indicates a different method of analysis for each standard prescribed.
50. At this stage, during arguments, when this issue has been taken up and the court has formed and expressed an opinion, Ld. SPP for the Department submits that the Director CFL who prepared the report may be summoned and his evidence may be recorded to this effect.
51. I am not inclined to accede to the request of the Ld. SPP as firstly, the case pertains to the year 2008 and 15 years have elapsed since then. Secondly, the name of the Director is also not mentioned anywhere in the CFL report and process of now tracing the witness cannot be carried out by the court at this stage. Being a complaint case, it was for the prosecution to take CA No. 113/2017 Sunil Kumar Vs. The State 23/25 care of any defect in its case and the witness could have been summoned to give details of the test/method of analysis, more specifically, when prosecution has itself put a question to the court witness regarding the method used, which question was disallowed by the court way back on 03.02.2016 during the evidence of Court Witness CW-1 Dr. Raman Seth as irrelevant on the ground that the Director, CFL had not mentioned the name of the method in his report. The prosecution was well aware of the defect even in the year 2016 and at that stage, it could have summoned the Director CFL to give details of the method used by the CFL for examining the sample to ascertain whether it prescribed to various standards or not. It was for the prosecution to prove that the method notified in terms of amended Section 23 (1A) (hh) had been resorted to.
52. The want of test name in the present case is further highlighted by the fact that out of the 3 appeals jointly being heard regarding sample of Paneer, in one of the appeal i.e. Mudassar Ansari Vs. State, CA No. 112/2017 the following tests/methods of analysis are mentioned in the CFL report.
Sr. Quality Name of Method Results Prescribed Standards No. Characteristics of test used as per:
(a) Item A- of
Appendix 'B'
(b) As per label
declaration for
proprietary foods.
(c) As per provisions
of the Act and Rules,
for both above.
1 Test for Formalin D. Pearson Positive Shall be positive
2 Moisture I.S.10484:1983 60.76% Not more than 70.0%
3 Milk fat contains on I.S.2785: 1979 46.99% Not less than 50.0%
CA No. 113/2017
Sunil Kumar Vs. The State 24/25
dry weight basis
4 B.R. of extracted Fat A.O.A.C.18th 41.2 ---
at 400 C edition
5 Test for starch I.S. 1479 Part I Negative Shall be negative
1960
6 Test for Sugar -do- Negative Shall be negative
7 Test for colour -do- Negative Free from extraneous
synthetic food colour
53. This itself shows that the use of the expression "- do-" in the CFL report in the other two appeals which are being disposed off today is a patent defect in the report.
54. In view thereof, the case of Mudassar Ansari is being segregated from these appeals.
55. Therefore, in view of the aforesaid findings/observations, accused is hereby acquitted.
56. TCR be returned.
57. File be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 03.01.2023 ASJ-04, New Delhi
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Sunil Kumar Vs. The State 25/25