Delhi District Court
Da vs . S.R. Verma Page 1 Of 65 on 14 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 29/03
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
S. R. Verma
S/o Late Sh. M. R. Verma
M/s Krishna General Store,
Shop No. 11, DDA, Central Market
Kalkaji, New Delhi19
R/o L161 B, DDA Flats,
Kalkaji, New Delhi19.
........ VendorcumProprietor
Serial number of the case : 29/03/14
Date of the commission of the offence : 11.09.2002
Date of filing of the complaint : 27.01.2003
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Name of the Complainant : Sh. Satish Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) and (j) of PFA
Act 1954 and Rule 23 r/w Rule 28 &
29 of PFA Rules, 1955, punishable
U/s 16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 14.08.2014
Judgment announced on : 14.08.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 11.09.2002 at about 03.00
p.m., Food Inspector C.B. Boora and FI Sh. A. K. Dhir, under the supervision and
directions of SDM/LHA Sh. Rajesh Kumar visited M/s Krishna Store, Shop No. 11,
DDA Central Market, Kalkaji, New Delhi, where accused S. R. Verma who was the
vendorcumproprietor was found present conducting the business of various food
articles including Dal Arhar, for sale for human consumption and in compliance of the
provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of
Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) the Food
Inspector collected / purchased the sample of Dal Arhar.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was adulterated
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because it was found "coloured with synthetic colour matter viz. Tartrazine" and
accordingly after obtaining the necessary Sanction/Consent under Section 20 of the
Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) & (j)
of PFA Act 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16
(1A) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 27.01.2003. The accused after filing his appearance moved an application
under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample
from Central Food Laboratory and consequent thereto second counterpart of the
sample as per the choice of the accused was sent to Director, CFL (Pune) for its
analysis vide orders dated 20.02.2003. The Director, CFL after analysing the sample
opined vide its Certificate dated 25.03.2003 that "sample does not conform to the
standards of Arhar Dal as per PFA Rules 1955". The Director so opined as the
sample was found containing synthetic food colour Tartrazine though as per
Rules/standards it ought to have been free from any colouring matter.
4. In pre charge evidence, the prosecution examined three witnesses i.e.
Sh. Rajesh Kumar, then SDM/LHA as PW1, FI Sh. C. B. Boora as PW2 and FI Sh. A.
K. Dhir as PW3 and pre charge evidence was closed vide order dated 16.07.2007.
5. Charge for violation of provision of Section 2 (ia) (a) & (j) of PFA Act
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1954, punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused
vide order dated 28.07.2008 to which accused pleaded not guilty and claimed trial.
6. In the post charge evidence the prosecution examined four witnesses
i.e. Sh. Rajesh Kumar, the then SDM/LHA as PW1, Food Inspector Sh. C.B. Boora as
PW2, Food Inspector Sh. A. K. Dhir as PW3 and Food Inspector Sh. Satish Kumar as
PW4 and PE was closed vide order dated 20.01.2010.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 28.04.2010
wherein the accused claimed himself to be innocent. Accused examined Sh. Rajender
Kumar as DW1, himself as DW2 and Sh. Mukesh Kumar as DW3 in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Sh. Rajesh Kumar deposed that on 11.09.2002 he was posted as
SDM/LHA, Defence Colony and FI C. B. Boora and FI A. K. Dhir under his supervision
visited M/s Krishna Store, Shop No. 11, DDA Central Market, Kalkaji, New Delhi where
the accused was found conducting the business of the store after having stored Dal
Arhar for sale for human consumption which was contained in an open gunny bag with
no label declaration. He deposed that after introducing himself to the accused FI
showed his intention to purchase a sample of Dal Arhar for analysis for which the
accused agreed. He deposed that he also made efforts to join some public witnesses
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by requesting some passersby, neighboring shopkeepers and customers but none
was willing and on his request FI A. K. Dhir joined the proceedings. He deposed that
at about 03.00 PM FI purchased 750 gms of Dal Arhar from the accused on payment
of Rs. 20/ to him vide receipt Ex. PW1/A. He deposed that before taking sample the
Dal in question was properly mixed up by the FI with the help of a clean and dry jhaba
by rotating the same in all possible directions. He deposed that FI divided the sample
quantity in 3 equal parts by putting the same in 3 clean and dry bottles and each bottle
was separately packed, fastened, marked and sealed as per law and his slips
containing his code no. and signatures were affixed on each bottles which were signed
by the accused in a manner that his signatures appeared partly on slips as well on
wrappers. He deposed that FI prepared Notice Ex. PW1/B and Panchnama Ex.
PW1/C and a copy of the notice was also received by the accused. He deposed that
FI also recorded the statement of the accused Ex. PW1/D in which he admitted that he
was the sole proprietor of the shop and his shop was registered with MCD. He
deposed that all the aforesaid documents were read over and explained to the
accused in Hindi and thereafter, he signed the same at point A along with other
witnesses separately. He deposed that on 12.09.2002 two sealed counter parts of the
sample along with 2 copies of memo VII having specimen seal impression of the seal
used in sealed packet were deposited in his office by the FI vide receipt Ex. PW1/E
under intimation that one counter part has already been deposited with PA for
analysis. He deposed that PA report i.e. Ex. PW1/F revealed that the sample was
adulterated due to the presence of the synthetic colouring matter i.e. Tartrazine. He
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deposed that after investigation, file containing all relevant documents was sent to the
then Director, PFA who gave consent order Ex. PW1/G bearing his signatures at point
A. He deposed that after filing of the complaint intimation letter Ex. PW1/H along with
PA report were sent to the accused through registered post vide Ex. PW1/J, which
were not received back undelivered.
9. During his cross examination he stated that at the time of sampling, he
was posted as SDM, Defence Colony. He admitted that Kalkaji did not fall within the
territorial jurisdiction of SubDivision, Defence Colony. He stated that Sh. A. K. Singh
was posted as SDM on the date of sampling in SubDivision, Kalkalji. He stated that
as per routine practice and being Link Officer of each other, they used to lift the
sample from whole District. He stated that the Link Officer orders were issued by the
D.C., South. He admitted that order is not on record. He denied the suggestion that
no such order was issued by the D.C., South/West. He voluntarily stated that they
were appointed as LHA for entire State of Delhi and as such were competent to lift the
sample from the entire District. He denied the suggestion that he was not authorized
to lift the sample from SubDivision, Kalkaji. He admitted that copy of his Gazette
Notification as LHA was not on judicial file. He denied the suggestion that he was not
authorized to work as LHA at the time of sampling. He stated that the capacity of the
bag was approximate 3040 kg and 810 kg Dal was lying in the bag at the time of
sampling. He stated that he does not remember how many jhabas were lying with the
vendor. He stated that the size of the jhaba was around 6 inches. He stated that the
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jhaba was not used in another commodity by the vendor in their presence. He stated
that jhaba was clean and dry at the time of sampling. He stated that it was already
clean and dry and the same was not made clean at the spot. He denied the
suggestion the jhaba was dirty. He denied the suggestion that the spices and pulses
were lying in the shop. He stated that Dal was weighed in a pan scale by putting on
the paper but he does remember exactly now. He admitted that the Dal was put into
the bottles after weighing. He stated that bottles were already dry and clean and the
same were not made again dry and clean at the spot. He stated that two counterparts
of the sample were deposited with him and remained in his custody. He admitted that
as per the report of the PA, Tartrazine was found in the sample commodity. He stated
that he cannot say whether the Tartrazine is a water soluble colour or it is not harmful.
10. PW2 F.I. C. B. Boora, PW3 FI Sh. A. K. Dhir and PW4 FI Satish Kumar
deposed on the same lines as deposed by PW 1 in his examination in chief. In addition
PW2 FI C.B. Boora deposed that he conducted further investigation and found that
accused was the person who was looking after the business of the shop. He further
deposed that the reply of STO is Ex. PW2/B and receipt is Ex. PW2/C.
11. This so far is the prosecution evidence in the matter. The accused led the
defence evidence as under:
12. DW1 Sh. Rajender Kumar deposed that he used to purchase food
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articles from the shop of the accused as such he is known to him. He deposed that on
11.09.02 at about 02.30 pm he went to purchase sugar and tea leaves from the shop
of the accused then a vehicle of SDM came there. He deposed that two Food
Inspectors along with SDM came to the shop. He deposed that the name of the Food
Inspectors were Sh. C. B. Boora and Sh. A. K. Dhir and name of SDM was Sh. Rajesh
Kumar. He deposed that there were 1213 kg of Dal Arhar lying in gunny bag. He
deposed that sample of 100 gms of Dal Arhar was lifted from the accused. He
deposed that vendor showed the bill of purchase to the FI but the FI refused to accept
the same while saying that the sample was lifted from an open gunny bag. He
deposed that he cannot say whether the bill mark D1 to D3 were those bills which
were shown by the vendor at the spot (bills mark D1 to D3 was produced by the Ld.
Defence Counsel). He deposed that there were 2025 public persons present at the
spot. He deposed that FI were saying that they will not ask for join any public
witnesses. He deposed that he remained at the spot for about 1012 minutes.
13. During his cross examination by Ld. SPP for complainant he stated that
Food Inspectors were calling each other by names hence he came to know about their
names. He stated that he cannot say how he came to know about the name of SDM.
He stated that he does not remember the day when the sample was lifted. He stated
that when he left the spot, Food Inspectors and SDM were present at the spot . He
stated that 57 bills were shown by the accused to the FI but he could not tell the dates
of those bills. He stated that he cannot say whether those bills were in respect of
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purchase of tea, sugar or Dal Arhar. He stated that vendor told them the bills were in
respect of Dal Arhar. He stated that he had not seen any of the bills but only heard of
the bills from the vendor. He stated that he cannot tell how much Dal Arhar was
purchased by those bills. He stated that he does not know who issued those bills. He
denied the suggestion that no bill was shown by the vendor to the FI that is why he
was unable to tell about those bills. He denied the suggestion that accused later on
prepared forged bill and produced before the Court on that day. He denied the
suggestion that he was not present at the spot at the time of sampling. He stated that
as per his knowledge, vendor did not gave the copy of the bill to the PFA Department
or sent the same through registered post to the department that FI did not accept the
bills of purchase. He stated that he had not seen those bills after the day of sampling.
14. DW2 S. R. Verma deposed that he was running a Kiryana Shop, under
the name and style of M/s Krishna General Store, Shop No. 11, DDA Center Market,
Kalkaji, New Delhi, in the year 2002. He deposed that on 11.09.02 at about 03.00 PM
one FI Sh. Boora and one SDM along with some staff came at his shop in a Jeep and
they introduced themselves as member of PFA Department and expressed their desire
to take a sample of Dal Arhar from him. He deposed that there was approximately
1012 kg of Dal Arhar, lying in the gunny bag in his shop at that time. He deposed that
he agreed for the same despite the fact that he was suffering from some serious
ailments during those days. He deposed that FI lifted the sample of Dal Arhar from his
shop. He deposed that he showed him the bill of purchase of the sample commodity
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and told him that he had purchased the same from Shyam Lal Raj Kumar, 4053/55,
Naya Bazar, Delhi vide Bill No. 57609 dated 06.08.2002, which is mark D1. He
deposed that he requested the FI to accept this bill, but he refused to accept the same
on the ground that the Dal was lying in open condition. He deposed that he had made
the payment of the sample to the above mentioned firm through the Receipt No. 60488
dated 07.09.2002. He deposed that he had told the FI that the Dal Arhar of which the
sample was lifted, was the same, which he had purchased from the above mentioned
firm.
15. During his cross examination he stated that he did not make any
complaint to PFA Department or any other concerned authority in respect of the fact
that the FI did not accept the Bill produced by him at the spot on the ground that the
Dal Arhar was lying in loose condition in his shop. He voluntarily stated that he was
not aware of this fact. He stated that he did not send the photocopy of the bill mark
D1 to PFA Department at any time to clam his warranty. He voluntarily stated that
he was not aware of this fact. He stated that he had himself visited the firm of Shyam
Lal Raj Kumar, a day, prior to the present sample proceedings and selected Dal Arhar
and asked the shopkeeper to send the same to him. He stated that he had purchased
one bag containing approximately 100 kg of Dal Arhar from the above mentioned firm.
He stated that bag was in stitched condition, when Dal Arhar containing therein was
delivered at his shop. He stated that he had not maintained any record for the sale for
said Dal Arhar to the customers. He voluntarily stated that only 1012 kg of Dal Arhar
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remained unsold from the said quantity till the time of sample proceedings. He stated
that at that time, he had purchased the same for Rs. 24//25 for per kg. He stated
that he does not remember as to how much payment was made by him to the above
mentioned firm in this regard. He voluntarily stated that it is mentioned in the Bill
produced by him. He denied the suggestion that he was not having any bill of
purchase or receipt as mentioned by him or that later on the same was fabricated by
him and produced before the Hon'ble Court.
16. DW3 Sh. Mukesh Kumar deposed that in the year 2002, he was the
Proprietor of M/s Shyam Lal Rajkumar, 4053/55, Naya Bazar, Delhi and he is still the
Proprietor of the same. He deposed that his firm used to deal in the sale and
purchase of pulses and other food grains etc. He deposed that his firm is situated at
the address mentioned in the bill. He deposed that the bill Mark D1 is of his firm and
the receipt dated 07.09.02 also belongs to his firm. He deposed that he does not
remember as to who is the person who had issued the above mentioned bill and
receipt and he cannot identify the signature of the person who had issued the same.
He deposed that he knows accused S.R. Verma. He deposed that accused used to
purchase pulses etc from his firm. He deposed that however, his firm used to supply
pulses and other food grains to the customers in stitched bags having a weight of 100
kg. He deposed that Dal Arhar and Basmati Chawal had been supplied to Krishna
Store, Govindpuri through the broker Rajesh Gupta. He deposed that he had no
knowledge that any sample of Dal Arhar was lifted from accused S. R. Verma on
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11.09.02 and the accused never informed him in this regard. He deposed that
accused did not inform him that the sample of the same Dal Arhar was lifted by FI
which was supplied by him to accused.
17. During his cross examination he stated that through the bill Mark D1 his
firm had supplied Dal Arhar to Krishna Store in a stitched bag having a weight of 101.2
kg. He stated that their bags wherein the pulses and other food grains used to be
supplied to the various customers were having a brand mark of 'BALE' and on the bag
in question the same brand mark was also printed. He stated that he never sold Dal
Arhar to the accused in loose condition. He stated that he never sold Dal Arhar to the
accused smeared with any synthetic colour.
18. This so far is the evidence in the matter.
19. 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.
20. 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.
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21. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector C.B. Boora coupled with the report of the Director
dated 25.03.2003 that accused S. R. Verma was indeed found selling Dal Arhar which
was adulterated on account of it containing synthetic colour viz. Tartrazine.
22. The star / the material witness of the prosecution i.e. Food Inspector C.B.
Boora categorically proved the sample proceedings dated 11.09.2002 as were
conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C
i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution,
the admissions made by the accused during his examination under Section 313 Cr.
P.C as recorded before the Ld. Predecessor of this Court on 28.04.2010 which are
admissible in evidence against the accused in view of sub clause (4) of Section 313
Cr. P.C as well as the law laid down in Benny Thomas Vs. Food Inspector, Kochi
2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal)
842, Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh.
Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V.
Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam
2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC
258, State of H.P. V. Wazir Chand AIR 1978 SC 315 and document Ex. PW1/D,
which is in handwriting of accused and bears his signatures, no doubt remains that the
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sample of Dal Arhar was indeed collected by the Food Inspector for analysis from M/s
Krishna Store of which the accused is the proprietor cum vendor.
23. 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.
Whether the SDM/LHA was competent to authorize the lifting of the sample?
24. At the outset it was argued by Ld. Defence counsel that the then
SDM/LHA Rajesh Kumar (PW1) was not authorized/competent to direct the lifting of
the sample as he was posted as SDM, Defence Colony whereas the sample was lifted
from the jurisdiction of Kalkaji and Kalkaji does not fall within the territorial jurisdiction
of sub division Defence Colony. However I do not agree with the arguments raised by
the Ld. Defence counsel. The SDM/LHA during his cross examination categorically
explained how he was competent to direct the lifting of the sample. He proved that he
was posted as SDM, Defence Colony and he was Link Officer of SDM, Kalkaji and as
per routine practice he used to lift samples from the whole South District. He further
proved that he was appointed as LHA for the entire State of Delhi and as such was
competent to lift the sample from entire District. The defence could not prove
otherwise that is to say could not prove how he was not authorized/competent to direct
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the lifting of the sample.
Public witness
25. It was also one of the arguments of Ld. Defence counsel that no public
witness was joined by the FI during the alleged sample proceedings which is in
violation of section 10 (7) and therefore the accused 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 and hence no reliance can be placed on the alleged sample proceedings.
26. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
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suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
27. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
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28. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
29. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
30. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
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necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
31. It is writ large from the deposition of PW1, PW2 and PW3 that FI C.B.
Boora made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands admitted/unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14
32. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
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argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles, the envelope/paper bag used for measuring the Dal as well
as the instrument i.e. jhaba with which the sample was poured in the bottles. It was
argued that the colour was already sticking to the Jhaba, the envelope/paper bag and
the sample bottles and it was this colour which was detected by the Director. It was
argued that Rule 14 of the Act is mandatory and not directory and in case there is no
strict adherence to Rule 14, benefit has to be given to the accused. Reliance was
placed on the law laid down in State of Gujarat Vs. Harumal Retumal and others
2008 FAJ 292 (Guj), Koyakutty Vs. Food Inspector 2000 (2) FAC 238 and Shew
Chander Mathur and anr Vs. State of Assam and anr., 1991 (1) FAC 9.
33. However I differ with the contentions as raised by the Ld. defence
counsel.
34. 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/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
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moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to mix the same. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
35. I have perused the deposition of the Food Inspector i.e. C.B. Boora who
was examined as PW2. The Food Inspector deposed as under:
"........Before taking sample dal arhar was properly mixed with the help of
clean and dry jhaba in the aforesaid gunny bag by rotating the jhaba in all possible
directions. I divided the sample quantity into 3 equal parts by putting the same in
three separate dry and clean bottles."
36. During his cross examination he stated as under:
"........Dal was mixed by me by rotating with the help of clean and dry
Jhaba lying in the bag and the same was provided by the vendor.....It is wrong to
suggest that same Jhaba was used by the vendor in another food articles....Bottles
were already dry and clean and the same were not made again dry and clean at the
spot."
37. Similarly PW1 the then SDM/LHA Sh. Rajesh Kumar deposed as under:
"............before taking sample the Dal in question was properly mixed up
by the FI with the help of a clean and dry jhaba by rotating the same in all possible
directions. FI divided the sample quantity into 3 equal parts by putting the same in 3
clean and dry bottles each bottle was separately packed fastened marked and sealed
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as per law and my slips containing my code no. and signatures were affixed on each
bottles which were signed by the accused in a manner that his signatures appeared
partly on slips as well as on wrappers."
38. During his cross examination he stated as under:
"...........The Jhaba was not used in another commodity by the vendor in our
presence. The Jhaba was clean and dry at the time of sampling. It was already clean
and dry and the same was not made clean at the spot. It is wrong to suggest that
Jhaba was dirty......Bottles were already dry and clean and the same were not made
again dry and clean at the spot."
39. PW3 FI A.K. Dhir deposed as under:
" Before taking the sample, Dal Arhar was properly mixed with the help of
a clean and dry jhaba by rotating it in all possible direction i.e. Downwards, upwards,
clockwise and anticlockwise several times. Then FI divided the sample then and there
into three equal parts by putting them in three clean and dry glass bottles."
40. During his cross examination he stated as under:
".......It is wrong to suggest that vendor was having only one Jhaba or that the
same was being used in different food articles by the vendor.......Jhaba was provided
by the vendor and it was clean and dry. It is wrong to suggest that Jhaba was not
clean and dry. Dal was put into the clean and dry polythene bag then it was weighed
in the pan scale and thereafter same was put into the sample bottles. Bottles were
already dry and clean and the same were not made again dry and clean at the spot. It
is wrong to suggest that bottles were containing some material and were dirty."
41. Hence the prosecution witnesses consistently deposed regarding the
jhaba, the envelope/bag as well as the sample bottles being clean and dry. From their
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deposition/statement no doubt remains that the sample proceedings were conducted
in a proper manner and that the sample bottles, paper envelope as well as the jhaba
were clean and dry. I have no reasons to disbelieve them. As discussed above I find
no reasons why the FI or the SDM would falsely implicate the accused that is to say
why they would use contaminated or colored instruments or bottles for sampling. The
defence has failed to prove any motive which could be assigned to the above officials
for falsely implicating the accused. Moreover nothing on record has been proved to
the contrary i.e. the defence has not proved that the Food Inspector did not comply
with the provisions of the Rule 14. Just because the defence is challenging the
sampling process conducted by the Food Inspector / asserting that Rule 14 was
violated is not sufficient to either disbelieve or throw away / outrightly reject the
testimony of the Food Inspector. I have also gone through Section 114 (e) of the
Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
42. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
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and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
43. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.
44. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,
1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,
Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].
45. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
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
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(2002) 5 FAC 234.
46. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
47. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".
48. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
49. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has
been held as under:
"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
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by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."
50. Though it was also argued by the Ld. Defence counsel that in view of the
deposition of prosecution witnesses it stands proved that an unclean jhaba was used
(jhaba was already lying in the gunny bag and the same was not made clean at the
time of sampling) for sample proceedings and hence the sample proceedings were
bad, however I find no merit in the same. Firstly, the prosecution witnesses
consistently proved that the jhaba was clean and dry. They denied that it was
unclean/dirty or that some colour was sticking to it. Secondly, the mere fact that the
jhaba was lying in the same gunny bag from which the sample was lifted does not
render the sample proceedings bad or does not prejudice the accused in any manner.
It is to be seen that the witnesses deposed that the Jhaba was lying in the same gunny
bag i.e. bag containing Dal Arhar from which the sample was lifted. Things would have
been different if the Jhaba was lying in some other commodity/article and it was used
without cleaning it. Had that been the case it would have been open for the defence to
claim prejudice or that the sample proceedings were bad in law. But once the Jhaba
was lying in the bag containing the sample commodity/Dal Arhar itself and it is used to
take out the sample commodity I fail to understand how prejudice is caused to the
accused because it is the same jhaba with which the accused is selling the Dal to the
customers and hence whether the Jhaba got coloured while lying in the bag containing
the sample commodity i.e. Dal or the Dal/sample commodity got coloured because of
the Jhaba does not make a difference because the fact remains that on analysis Dal
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was found coloured/adulterated. The Act has been enacted for the protection of the
customers/consumers and if the Food Inspector uses the Jhaba lying in the gunny bag
containing the commodity of which the sample is lifted and the sample when sent for
analysis is found adulterated then the accused/vendor cannot agitate that the jhaba
was not cleaned before the sample was lifted because the very fact that the jhaba was
lying in the bag containing the sample commodity proves that he was using the same
Jhaba for selling the sample/Dal to the customers. Two different standards cannot
apply i.e. one for the customer or the consumer and the other for the Food Inspector.
Homogenization / Mixing of Sample.
51. 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 and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there are variations in the report of Public
Analyst and Director, CFL. For example the PA had found the damaged grains at
0.14% whereas the Director found the same at 1.60% by weight, similarly the PA had
found the Weevilled grains at 0.32% whereas the Director found the same at 1% by
count. It was argued that these variations prove that the sample were not
representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219
and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.
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52. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the Food Inspector and the other
complainant witnesses as discussed above that the sample was taken after mixing/
rotating the Dal thoroughly in all possible directions several times with the help of a
Jhaba. I have no reasons to disbelieve the Food Inspector or the other complainant
witnesses in this regard. Secondly, there is no requirement of homogenization or
making the sample representative prior to its lifting either under the Act or the Rules
appended therein.
53. Thirdly, there was no requirement of mixing or making the sample i.e.
Dal Arhar homogenized as such in view of the law laid down in Dhian Chand Vs.
State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
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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."
54. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
55. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 20/ to the
accused/vendor towards the purchase of sample commodity. In this regard vendor's
receipt Ex. PW1/A was executed which bears the signature of accused at point A. The
testimony of the Food Inspector has gone unrebutted on this material particular. The
testimony of the SDM/LHA as well as the other FI which is on the same lines have also
remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The
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food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC
(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of
an article of food, which is found to be adulterated, the accused will be guilty of an
offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD
Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court
of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the CC No. 29/03 DA Vs. S.R. Verma Page 29 of 65 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 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".
56. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of CC No. 29/03 DA Vs. S.R. Verma Page 30 of 65 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."
57. 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 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.
58. 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."
59. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:
" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained in as much as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."CC No. 29/03 DA Vs. S.R. Verma Page 31 of 65
60. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations.
61. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as CC No. 29/03 DA Vs. S.R. Verma Page 32 of 65 benefit has to be given to him for the variation in the two reports I find no merits in the same. No question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.
62. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.
63. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.
CC No. 29/03 DA Vs. S.R. Verma Page 33 of 65
64. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"
65. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor Dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari Dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:
"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".
66. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.
67. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held CC No. 29/03 DA Vs. S.R. Verma Page 34 of 65 as:
".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.
9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."
68. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
69. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, CC No. 29/03 DA Vs. S.R. Verma Page 35 of 65 there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".
70. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there CC No. 29/03 DA Vs. S.R. Verma Page 36 of 65 would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
71. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.
72. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be CC No. 29/03 DA Vs. S.R. Verma Page 37 of 65 unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
73. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:
"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".
74. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has CC No. 29/03 DA Vs. S.R. Verma Page 38 of 65 already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".
75. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
76. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only.".
77. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:
"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and CC No. 29/03 DA Vs. S.R. Verma Page 39 of 65 conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".
78. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."
79. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
80. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:
"The certificate issued by the Director would then supersede the report given by the CC No. 29/03 DA Vs. S.R. Verma Page 40 of 65 Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".
81. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
82. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".
83. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
84. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:
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"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".
85. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive CC No. 29/03 DA Vs. S.R. Verma Page 42 of 65 proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
86. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
87. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:
"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) CC No. 29/03 DA Vs. S.R. Verma Page 43 of 65 FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.
88. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.
89. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
90. In Bishan Sarup's case as referred above despite the variation being CC No. 29/03 DA Vs. S.R. Verma Page 44 of 65 much more than .3%, the accused was convicted.
91. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
92. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector CC No. 29/03 DA Vs. S.R. Verma Page 45 of 65 has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.
CC No. 29/03 DA Vs. S.R. Verma Page 46 of 65
93. It is also to be seen that the variation in the two reports is only in respect of Weevilled grains and damaged grains. However the fact remains that the damaged and Weevilled grains did not exceed the maximum permissible limit in analysis by both the experts and accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding Weevilled grains and damaged grains becomes insignificant. Moreover, in heterogeneous food products like Dal the adulteration can never be uniform and even if the Food Inspector with all the expertise available at his disposal takes the sample after properly mixing/ homogenization still there will be slight difference/variation in the sample which is divided into/put into three different sample bottles/counterparts. One part of the sample may have more Weevilled grains or damaged grains then the other and may be the third may not have any Weevilled grains or damaged grains. The FI had purchased 750 gms of Dal Arhar and it was divided into three counterparts/put into three different bottles. One counterpart went to PA and other was sent to the Director by the court. Upon division into three parts may be the Weevilled grains and damaged grains were more in one part then the other and not in the third part. This is practically possible and that is what happened in this case.
94. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by CC No. 29/03 DA Vs. S.R. Verma Page 47 of 65 Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Whether the sample was tampered with before its analysis by the Public Analyst?
95. It was also one of the argument of Ld. Defence counsel that in the case at hand no reliance can be placed upon the report of the PA as it is a matter of record that the sample remained in the custody of one Clerk namely Ram Ashish and not the Public Analyst. Hence the tampering of the sample prior to its analysis cannot be ruled out. However I find no merit in the contention of Ld. Defence counsel. Firstly, as CC No. 29/03 DA Vs. S.R. Verma Page 48 of 65 discussed above the outcome of the trial is to be decided only on the basis of the report of the Director, CFL as the report of the PA stands annulled/obliterated. As far as the samples sent to the Director, CFL is concerned there is no question of tampering of the seal in view of proceedings dated 20.02.2003 conducted before Ld. Predecessor of this Court. When the two counterparts of the sample as was deposited with the SDM/LHA were produced in the court in pursuant to application u/s 13 (2) moved by the accused on 20.02.2003 the Ld. Predecessor of this court recorded the satisfaction of the accused to the effect that there was no tampering on the seal appearing on the sample bottles and they were properly packed, fastened, marked and sealed. It was only upon his satisfaction and as per his choice that one counterpart of the sample was sent to the Director, CFL for analysis. This itself negates the arguments of Ld. Defence counsel that the sample were tampered with. Moreover, after the samples were produced in the court they were sealed again under the seal of the court and sent to the Director, CFL for analysis and the report of Director, CFL makes it amply clear that the sample was received at his office in sealed/intact condition. Hence there was no tampering whatsoever in the samples so lifted and accordingly no prejudice caused to the accused. As discussed above tampering if any with the sample at the office of PA, though there is no occasion to believe so, looses significance as the outcome of the trial is to be decided on the report of the Director and not the PA. Secondly, nonetheless the sample as per records was lifted on 11.09.2002 and it was deposited with the PA on 12.09.2002 i.e. the next working day itself. Hence there was no undue delay and this itself rules out CC No. 29/03 DA Vs. S.R. Verma Page 49 of 65 any tampering with the sample at the office of PA. No doubt the receipt i.e. Ex. PW2/A bears the signatures of Ram Ashish however it is to be seen that he received the sample for the Public Analyst as is unambiguously reflected from the receipt. Furthermore, the PA categorically reported vide his report Ex. PW1/F that the sample was received by him for analysis in a properly sealed and fastened condition and the seals were intact and unbroken.
Use of colour.
96. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.
97. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), CC No. 29/03 DA Vs. S.R. Verma Page 50 of 65 Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:
"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".
98. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court CC No. 29/03 DA Vs. S.R. Verma Page 51 of 65 observed as under:
" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".
99. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.
100. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
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"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"
(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.
101. Regarding the defence plea that the addition of the colour did not make the Dal injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:
" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".
102. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not CC No. 29/03 DA Vs. S.R. Verma Page 53 of 65 specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
103. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:
"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. As pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".
104. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:
"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".
105. When a prohibited/foreign matter is discovered in the the article of food CC No. 29/03 DA Vs. S.R. Verma Page 54 of 65 the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.
106. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.
107. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.
Paper Chromatography Test.
108. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of CC No. 29/03 DA Vs. S.R. Verma Page 55 of 65 the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:
"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be CC No. 29/03 DA Vs. S.R. Verma Page 56 of 65 inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act.".".
19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."
Percentage of colour
109. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on CC No. 29/03 DA Vs. S.R. Verma Page 57 of 65 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.
Warranty
110. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor/retailer had purchased the article from M/s Shyam Lal Raj Kumar, 4053/55, Naya Bazar vide bill Mark D1 and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued on behalf of accused that he had purchased the article from the above manufacturer / dealer and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused. It was argued that in view of the categoric deposition of DW3 i.e. Mukesh Kumar, accused cannot be held liable for the adulteration detected in the sample. Reliance was placed upon Shri Niranjan Kumar Vs. State of Assam 2012 (1) FAC 457, Aboo Vs. Food Inspector 2003 (1) FAC 81 and Chidambara Rajan Vs. State 1988 (2) FAC 122.
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111. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.
112. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.
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113. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:
"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."
114. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.
115. In the case at hand, no doubt the accused placed on record bill Mark D1 allegedly issued by M/s Shyam Lal Raj Kumar and also examined Sh. Mukesh Kumar, proprietor of the above firm as DW3 however neither the bill nor the deposition of DW3 or for that matter the evidence led by the accused comes to his rescue for numerous CC No. 29/03 DA Vs. S.R. Verma Page 60 of 65 reasons. Firstly, bill Mark D1 was not proved as per the Evidence Act. Its authenticity/ genuineness remained doubtful. Though DW3 claimed that the said bill belongs to his firm however it is a matter of record that the bill does not bear his signatures. It is admittedly not signed by him and he could not also tell the name of the person who had issued the bill and the receipt. Hence in the absence of the signatory/executor of the bill doubts shall always remain regarding its genuineness. As far the testimony of DW1 is concerned it does not inspire confidence at all in view of the fact that he had not seen the bills either prior to the sampling or at the time of sampling or at any time later on. In fact he was not aware whether the bills pertains to purchase of sugar, tea or dal Arhar. Also when the bills in question i.e Mark D1, D2 and D3 were shown to him he failed to identify them as the same bills which the vendor showed to the FI and the FI allegedly refused to accept them. Secondly, the accused during his examination as DW2 had claimed that he had purchased the Dal in question vide bill bearing no. 57609 dated 06.08.2002 i.e. Mark D1 however during his cross examination he stated that he had visited the firm of Shyam Lal Raj Kumar i.e. supplier firm only a day prior to the sample proceedings/lifting of the sample and selected the dal arhar. It is a matter of record that sample was lifted on 11.09.2002 and hence if the accused is to be believed then he must have purchased the dal on 10.09.2002 whereas the bill is of 06.08.2002 i.e. a month old. Both the statements cannot be correct and they cast serious aspersions on the demeanor of accused. It cast grave doubts upon his claim of having purchased dal vide Mark D1. Thirdly, DW3 Mukesh Kumar the alleged supplier categorically stated that the bag which he had sold to the CC No. 29/03 DA Vs. S.R. Verma Page 61 of 65 accused had the brand name of BALE and that he used to sell/ supply sample commodity to various customers having the said brand name. However, it stands established from the prosecution case as well as from the cross examination of the accused that there was no trademark on the bag from which the sample was lifted. Accordingly in view of above deposition/admission made by the accused he failed to prove that the gunny bag from which the sample of Dal was lifted by the Food Inspector/the Dal was the same which was supplied to him by DW3. Moreover it emerges from the deposition of DW2 and DW3 that allegedly 100 Kg of Dal Arhar was supplied in stitched bag to the accused. However the prosecution witnesses categorically stated that the capacity of bag was 3040 Kg. Fourthly, it is not disputed that when the sample of Dal was lifted it was lifted from an open gunny bag. DW3 categorically stated that he used to supply Dal in mechanically stitched bags. DW2 (the accused) admitted in his cross examination that he had purchased the Dal in stitched condition/bags and the quantity was 100 kg. Hence even if it is assumed that the accused had purchased the Dal from M/s Shyam Lal Raj Kumar (though not proved by the accused) still he is not entitled to warranty as the Dal was not stored in the same condition in which the accused had purchased it. Not only the sample was lifted from an open bag but at the time when the sample was lifted there was hardly 810 kg of Dal in the same. Hence even if he had purchased the Dal from DW3 the fact which emerges is that he had opened the bags and sold the bulk of the Dal. To claim the benefit of warranty, it was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but further that CC No. 29/03 DA Vs. S.R. Verma Page 62 of 65 they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in piece meals/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode/condition in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the CC No. 29/03 DA Vs. S.R. Verma Page 63 of 65 manufacturer/supplier who no longer has control over the articles so sold. Fifthly, the very fact that no bill was supplied to FI at the time of lifting of sample, nor any bill was handed over to him or the SDM/LHA till the filing of complaint neither the bill was even produced in the court till the stage of evidence itself proves that the accused was making false claims. In fact he must have procured the bill later on to avoid his liability because if indeed he had purchased the article/Dal from M/s Shyam Lal Raj Kumar vide bill Mark D1 and sold it in the same condition as was purchased and he knew that he was entitled to the benefit of warranty I fail to understand why he waited so long to seek the benefit of warranty when he could have been absolved/discharge of his liability if he was indeed entitled to the benefit. Nothing stopped him all this while to move the court to exercise the power u/s 20A. The very fact that the plea of warranty was taken after lapse of 7 years of filing of the complaint itself proves that he was making false claims. Sixthly, the accused claims that he was purchasing dal for the purpose of sale at his kiryana store from M/s Shyam Lal Raj Kumar and to prove the same he relied upon bill Mark D1, D2 and D3. At the bottom of the bills it is reflected as " Chetavni: Hamari dukan dwara bechi gai sabhi prakar ke daale kevel pashu pakshio ke liye hai yeh manushyo ke khane yogye nahi hai yadi isske viprit praoyog se kisi ko koi haani hoti hai to hum jimmedar nahi hai" i.e. the bills carry a warning that the pulses sold by M/s Shyam Lal Raj Kumar are meant only for consumption by animals and birds and not for human beings. In the case at hand it is nowhere disputed that the Dal was being sold for human consumption. It is not the defence plea that dal was not meant for human consumption. The deposition of the Food Inspector CC No. 29/03 DA Vs. S.R. Verma Page 64 of 65 and the other complainant witnesses that the Dal was being sold for human consumption was never challenged. In fact the deposition of DW1 proves that the accused used to sell dal/pulses to human beings for consumption. Still the accused had the audacity to rely upon the bill and claim warranty. This shakes the conscience of this court.
116. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) & (j) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
117. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 14th August 2014 ACMMII/ New Delhi CC No. 29/03 DA Vs. S.R. Verma Page 65 of 65