Delhi District Court
Da vs . Mohd. Ahmad Page 1 Of 41 on 2 May, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 214/05
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
Mohd. Ahmad
S/o Late Sh. Mohd. Hanif,
M/s Public Dairy,
RZB3, Vijay Enclave,
Shiv main Market,
Delhi45.
........ VendorcumProprietor
Serial number of the case : 214/05
Date of the commission of the offence : 13.07.2005
Date of filing of the complaint : 06/10/05
Name of the Complainant : Sh. D.V. Singh, Food Inspector
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.
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DA Vs. Mohd. Ahmad Page 1 of 41
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 02/05/14
Judgment announced on : 02/05/14
Brief facts of the case
1. In brief the case of the prosecution is that on 13.07.2005 at about 06.00
p.m. Food Inspector D.V. Singh and Field Assistant Ranjeet Singh under the
supervision and directions of SDM / LHA Sh. V.K. Malhotra visited M/s Public Dairy,
RZB3, Main Shiv Market, Vijay Enclave, Delhi45, where accused Mohd. Ahmad who
was the vendorcumproprietor was found present conducting the business of sale of
various dairy articles including toned milk 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, the Food Inspector collected / purchased
the sample of toned milk.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was found not
conforming to the standard of toned milk as per PFA rules 1955 as per tests performed
as the Milk solids not fat were less than the prescribed minimum limit of 8.5% 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) & (m)
of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
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3. After the complaint was filed, the accused was summoned vide orders
dated 06.10.2005.
4. In pre charge evidence prosecution examined two witnesses i.e. the then
SDM/LHA Sh. V.K. Malhotra as PW1 and the Food Inspector Sh. D.V. Singh as PW2
and pre charge evidence was closed vide orders dated 04.02.2009.
5. Charge for violation of provision of Section 2 (ia) (a) & (m) of PFA Act
1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the
accused vide order dated 19.05.2009 to which accused pleaded not guilty and claimed
trial.
6. In post charge evidence the complainant/prosecution examined three
witnesses i.e. the then SDM/LHA Sh. V.K. Malhotra as PW1, Sh. D.V. Singh, Food
Inspector as PW2 and FA Sh. Ranjeet Singh as PW3 and thereafter PE was closed
vide orders dated 30.01.2010.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 19.03.2010
wherein the accused claimed himself to be innocent. Despite opportunity given
accused did not examine any witness in his defence.
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A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 V.K. Malhotra, the then SDM/LHA deposed that he was posted as
SDM/LHA Najafgarh and on 13.07.2005 at about 06.00 p.m. FI D.V. Singh purchased
a sample of toned milk a food article for analysis from Shri Mohd. Ahmed vendor cum
proprietor of M/s Public Dairy, RZB3, Vijay Enclave, Shiv Main Market, Delhi45
where the said food articles were found stored for sale for human consumption and the
said Shri Mohd. Ahmed was found conducting the business of the said food articles at
the time of sampling. He deposed that the sample consisted of 1500 Ml of toned milk
taken from an open drum having declaration as Toned milk. He deposed that sample
was taken after proper homogenization with the help of a clean and dry measure by
rotating in all possible directions He deposed that the Food Inspector divided the
sample then and there into three equal parts by putting them in three clean and dry
glass bottles. He deposed that 40 drops of formalin were added to each of the sample
bottle and was properly shaken for its uniform distribution. He deposed that each bottle
containing the sample was then separately, packed, fastened and sealed according to
PFA Act and Rules. He deposed that vendor signatures were obtained on the LHA
Slips bearing his signature and stamp and on the wrappers of the bottles. He deposed
that notice was prepared on the spot and a copy of which was given to the vendor and
same is Ex.PW1/B bearing his endorsement from portion A to A. He deposed that the
price of the sample Rs. 21/ was paid by the Inspector to the Vendor vide vendor's
receipt Ex. PW1/A. He deposed that Panchnama Ex. PW1/C was also prepared at the
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spot. He deposed that all the documents Ex. PW1/A to Ex. PW1/C prepared on the
spot were read over and explained to the vendor who after understanding the same
signed at point A, witness signed at point B and FI signed at point C respectively. He
deposed that before starting the sample proceedings efforts were made to join the
public witnesses by the FI but none came forward hence on his request FA Ranjeet
Singh agreed and joined as a witness. He deposed that accused furnished his
statement Ex. PW1/D bearing his signature at point A along with MCD registration
photocopy Mark A and the MCD form G8, photocopy Mark B and the MCD death
certificate of Mohd. Hanif photocopy Mark C, bearing his signature at point A on each
document. He deposed that two counterparts of the sample along with two copies of
memo of Form VII in a sealed packet were deposited in intact condition with the LHA
on 14.07.2005 vide receipt Ex. PW1/E bearing his signature at point A and that of the
FI at point B with the intimation that one counterpart of the sample was already
deposited in intact condition with the PA bearing his LHA code. He deposed that all
the copies of Memo in Form VII bore the same seal impression with which the sample
in question was sealed. He deposed that PA receipt is Ex. PW1/F. He deposed that
PA report Ex. PW1/G was received according to which the sample does not conform
to the standards because milk solids not fat is less than the prescribed minimum limit
of 8.5% (7.53%) as mentioned therein at portion X. He deposed that then on
completion of the investigations by the FI the complete case file along with all statutory
documents were sent through LHA to the Director Sh. Diwan Chand who after going
through the case file applied his mind and gave his consent Ex. PW1/H. He deposed
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that complaint Ex. PW1/J was filed in the court by FI D.V. Singh. He deposed that
intimation letter Ex. PW1/K along with PA report was got sent to accused by registered
post through the LHA which was not received back undelivered. He deposed that the
intimation letter along with the PA report was also got personally served on the
accused as per his endorsement and signatures at the portion encircled in red ink at
portion A. The postal registration receipt copy is Ex. PW1/L, bearing the relevant entry
at portion A.
9. During his cross examination he admitted that he was the senior most
officer of PFA team who lifted the sample from the accused. He stated that on that day
the PFA team consisted of himself, one FI and one FA. He stated that the sample
commodity i.e. Toned Milk was lying in a Drum. He stated that approx. 50 litre of
Toned Milk was available in the said drum at that time and the total capacity of the
drum was approx. 7080 litre. He stated that the measure which was used for mixing
the milk, was provided by the vendor in a clean and dry condition hence, the same
was not made clean and dry at the spot. He stated that he can not recollect as to how
many times the measure was rotated in the sample commodity for mixing the same
however, the sample commodity was mixed properly with the help of said measure.
He stated that the documents which were prepared at the spot were explained to the
vendor in Hindi and the same were signed by him. He stated that it was not
mentioned on any of these documents that they were explained to the vendor. He
stated that he does not remember as to whose shops were situated on either side of
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the shop of the accused. He stated that it took them about 1 ½ hour to 2 hours to
complete the entire sample proceedings at the spot. He stated that 12 customers
were present there at that time but they refused to become a witness in sample
proceedings. He stated that they did not respond to their request hence, their names
and addresses were noted down by the FI. He denied the suggestion that the method
adopted by the FI for sampling proceedings was wrong. He denied the suggestion
that FI did not make any effort to join the public witness to the sample proceedings.
He denied the suggestion that he was not present at the spot or that he remained
seated in his official vehicle or that the sample proceedings were conducted in his
absence. He denied the suggestion that a representative sample was not taken in this
case or that he was deposing falsely.
10. PW2 FI D.V. Singh and PW3 FA Ranjit Singh deposed on the same lines
as deposed by PW1 in his examination in chief.
11. This so far is the prosecution evidence in the matter.
12. 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.
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13. From the deposition of the prosecution witnesses especially PW2 Food
Inspector D.V. Singh whose testimony was duly corroborated by remaining
prosecution witnesses i.e. SDM/LHA and Field Assistant coupled with documents Ex.
PW1/ A to C i.e. Vendor's receipt, Notice Form VI and panchnama which bears the
signature of the accused as well as 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 19.03.2010 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
coupled with document Ex. PW1/D, which is in the handwriting of the accused and
bears his signatures, no doubt remains that the sample of toned milk was indeed
collected by the Food Inspector for analysis from M/s Public Dairy of which the
accused is the proprietor cum vendor.
14. 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
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loopholes /contradictions.
Public witness
15. At the outset it was argued 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.
16. 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
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
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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.
17. 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.".
18. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
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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
19. 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.".
20. It is writ large from the deposition of PW1, PW2 and PW3 that FI D.V.
Singh 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
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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 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
21. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles and the measure with which the milk was allegedly made
homogenized. It was argued that the sample bottles were not clean and dry and some
water was already lying in the bottles and because of this that the sample did not
conform to the standards. 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
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anr., 1991 (1) FAC 9.
22. However I differ with the contentions as raised by the Ld. defence
counsel.
23. 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
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.
24. I have perused the deposition of the Food Inspector and the other
prosecution witnesses. All the prosecution witnesses consistently and repeatedly
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stated that the sample of milk was lifted after the milk was homogenized with the help
of a clean and dry measure by rotating the milk several times in all possible directions.
The witnesses categorically stated that the milk was then poured into the sample
bottles which were clean and dry. They denied the suggestion that the bottles were not
clean or dry or that some water was already there in the bottles. From their
deposition/statement no doubt remain that the sample proceedings were conducted in
a proper manner and that the sample bottles and measure were clean and dry. I have
no reasons to disbelieve them. As already discussed above I find no reasons as to
why the prosecution witnesses would falsely implicate the accused i.e. why they would
adopt improper sample proceedings so as to implicate the accused in a false case.
The defence could not assign any motive for falsely implicating the accused. Further
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."
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Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
25. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
26. 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.
27. 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
.].
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28. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234, Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243,
29. 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.".
30. 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.
31. Hence I am of the opinion that there was no violation of Rule 14 and
there was no infirmity in the sample proceedings.
Homogenization / Mixing of Sample.
32. 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.
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33. However, I find no merits in the contention of the Ld. defence counsel.
Firstly the Food Inspector and the other complainant witnesses categorically stated
that the sample was taken after mixing the toned milk properly. They categorically
stated that it was homogenized by rotating it in all possible directions several times
with the help of a measure. Once the milk was properly mixed several times with the
help of a measure in the drum itself it was sufficient to make the milk homogenized.
34. Secondly, 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.
35. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 21/ to the
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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 FA which is on the same lines have also
remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The
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
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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
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"
36. 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
CC No. 214/05
DA Vs. Mohd. Ahmad Page 19 of 41
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
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."
37. 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."
38. Thirdly, 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 milk. the vendor does not give the said
food article/ milk after mixing the same with the help of a plunger in the drum 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
CC No. 214/05
DA Vs. Mohd. Ahmad Page 20 of 41
takes out the milk with the help of a measure 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
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.
Denial of right u/s 13 (2)
39. It was also one of the arguments of Ld. Defence counsel that the
accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the
second counterpart of the sample kept with the LHA to be analyzed by the Director,
CFL which caused serious prejudice to the accused as his right to get the counterpart
of the sample analyzed by the Director was defeated.
40. However the said plea of Ld. Defence counsel is meritless and contrary to
the records. As per records the prosecution was launched on 06.10.2005 and after
the prosecution was launched the copy of the intimation letter along with PA's report
was sent to the accused through registered post as deposed by the prosecution
CC No. 214/05
DA Vs. Mohd. Ahmad Page 21 of 41
witnesses. The same was not received back undelivered. Nonetheless from the
application moved by the accused u/s 13 (2) it is evident that the accused had
received the same on 01.11.2005. Apart from being sent by post the same was also
personally delivered upon the accused on 11.11.2005 as proved by the Food
Inspector and as is evident from Ex. PW1/K which bears the receiving/signatures of
the accused at point A regarding receipt of the PA's report. Despite having received
the copy of the PA's report along with intimation letter (by post on 01.11.2005 and by
hand on 11.11.2005) no application u/s 13 (2) for sending one of the counterparts to
Director, CFL for analysis was moved by the accused till 06.02.2006. It is writ large
from the records that the application was moved for the first time on 06.02.2006 i.e.
after lapse of more than 3 months (95 days). As per the mandate of section 13 (2) the
accused has to move the application within 10 days of the receipt of the copy of the
PA's report. Hence as the application was moved after the lapse of around 95 days
his request for sending the counterpart of the sample to CFL was rightly rejected by
the Ld. Predecessor vide order dated 06.03.2006. Not only the accused cannot now
claim any prejudice but even otherwise it is also a matter of record that the accused
did not assail orders dated 06.03.2006 passed by Ld. Predecessor of this court which
he should have done if indeed he wanted to send one of the counterpart of the sample
to Director, CFL. It will not be out of place to mention here that in the application u/s
13 (2) which was moved on 06.02.2006 the accused had claimed that he could not
move the application in time as he was under shock due to the death of his father.
However it is an admitted fact that the father of the accused had expired way back in
CC No. 214/05
DA Vs. Mohd. Ahmad Page 22 of 41
the year 2002. This goes a lot to show that the intention of the accused were never
bonafide.
41. As the application was moved highly belatedly and rightly dismissed by
the Ld. Predecessor it amounts to non exercise of right u/s 13 (2) by the accused
because the right ought to have been exercised timely/diligently. In Sukhmal Gupta
and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex
Court held "in this case no prejudice of the defence has been shown..........He never
utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central
Food Laboratory".
42. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble
Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the
sample to the Central Food Laboratory for analysis. He did not avail the same.
Therefore, it was no longer open to him to contend that he had no opportunity to send
the sample in his custody to the Director, Central Food Laboratory under Section 13
(2), since he did not make any application to the Court for sending it."
43. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while
relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass
Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of
Maharashtra, 1972 FAC 545, it was held as under:
CC No. 214/05
DA Vs. Mohd. Ahmad Page 23 of 41
"where no application under Section 13(2) of the Act is made by the accused, he can
have no grievance that he could not avail of his right under Section 13(2) of the Act.
In view of the aforesaid position of law in the case at hand, the accused/applicant
cannot complain that a prejudice is caused to him due to late filing of the complaint
and thereby he has been deprived of his right given under Section 13(2) of the Act."
44. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it
was held that as the petitioner did not exercise his right under section 13(2) and no
sample was sent to Director, CFL, the petitioner can make no grievance.
45. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that
if a person does not voluntarily takes advantage of Section 13 he can not complaint
about the loss of any right.
46. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it
was held "unless an application to send the sample to the Director is made the vendor
cannot complaint that he was deprived of his right to have the sample analysed by the
Director. "
47. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972
FAC 545. It was held as under:
".....appellant should have made an application after paying the prescribed fee if he
wanted the part of the sample available with him to be sent to the Director for
CC No. 214/05
DA Vs. Mohd. Ahmad Page 24 of 41
analysis.............. But, since the appellant never applied under section 13(2) of the
Act, he cannot complain that he has been deprived of any right."
48. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as
under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been
given to the accused person as a measure of abundant caution so that the mistake, if
any, committed by the Chemical Analyst may be rectified and the persons, who are
really innocent, be not punished. It is also provided that this right has to be exercised
by the accused person within a reasonable time
.
If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance....... ."
Delay
49. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in filing the complaint as though the sample was collected/lifted on 13.07.2005 the complaint was filed only on 06.10.2005 i.e. after a gap of almost 3 months. It was argued that the shelf life of the milk is only 1 month and even if the accused's application u/s 13(2) would have been allowed still due to lapse of almost 3 months the sample would have become deteriorated/decomposed by that time. It was argued that on account of the lapses/laches on the part of the prosecution the accused's right u/s 13 (2) was prejudiced. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta CC No. 214/05 DA Vs. Mohd. Ahmad Page 25 of 41 2010 (II) JCC 957. However I do not agree with the contentions of Ld. Defence counsel. Firstly as discussed above the denial of right u/s 13 (2) was on account of the conduct of the accused and hence he cannot make any grievances. Secondly, the prosecution witnesses categorically stated that at the time of sampling 40 drops of formalin were added in the sample bottles as a preservative. Once formalin was added in the sample bottles and the bottles shaken properly for proper dispersion of formalin in the sample bottles/milk, the defence plea that the sample must have deteriorated looses merit. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample would have deteriorated due to lapse of 3 months despite addition of formalin. Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 .
50. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 3 months in launching the prosecution the sample would have decomposed/rendered unfit for analysis.
51. In Babu Lal Hargovind Das Vs. State of Gujarat, 19481997 FAC (SC) 1084, the Hon. Apex Court observed at para 6 as under:
"There is also in our view to justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed CC No. 214/05 DA Vs. Mohd. Ahmad Page 26 of 41 from the time the samples were taken to the time when the complaint filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi vs. Ghisa Ram 1967 (2) S.C.R. 116 :
19481997 FAC (SC) 93 has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative..................No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory".
52. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
53. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the Director of CFL". In these circumstances the report of the PA was accepted in maintaining the conviction.
CC No. 214/05 DA Vs. Mohd. Ahmad Page 27 of 41
54. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110. It was observed in para 66 as under:
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
CC No. 214/05 DA Vs. Mohd. Ahmad Page 28 of 41
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
The court concluded / summed up its observation / findings in para 103 as under:
"10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".
55. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, CC No. 214/05 DA Vs. Mohd. Ahmad Page 29 of 41 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
56. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".CC No. 214/05 DA Vs. Mohd. Ahmad Page 30 of 41
57. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis".
58. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
59. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
60. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
CC No. 214/05 DA Vs. Mohd. Ahmad Page 31 of 41
" It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
61. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis."
62. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
63. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in CC No. 214/05 DA Vs. Mohd. Ahmad Page 32 of 41 Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director."
64. Hence I find no merits in the contentions of Ld. Defence counsel that the delay of around 3 months in launching prosecution prejudiced the right of the accused. Right u/s 13 (2) not being exercised, no report thus having been received from Director, CFL merely on account of delay no presumption can be drawn that sample would have deteriorated due to lapse of time. Furthermore as no certificate has been received from the Director, CFL the case has to be decided on the PA's report. It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.
CC No. 214/05 DA Vs. Mohd. Ahmad Page 33 of 41 Individual shortfall of milk fat and milk solids not fat and marginal deficiency
65. It was also one of the argument of the Ld. Defence counsel that as per report of the PA the total solids in the sample of toned milk so collected was found at 11.83% whereas the minimum requirement is 11.5%. It was argued that the individual criteria/ parameters of milk fat and milk solids not fat is not to be seen but it is the total solids which have to be seen so as to form an opinion whether the milk is adulterated or not. Reliance was placed upon the law laid down in Administrator of the City of Nagpur Vs. Laxman and anr. 19481997 FAC (SC) 8. It was further submitted that marginal deficiencies have to be ignored. It was argued that in the case at hand PA found the milk solids not fat at 7.53% against the minimum of 8.5% i.e. only 0.97% short. Reliance was placed upon the law laid down in Ram Singh Vs. State of Haryana 2009 (1) RCR Cri. 692 and Sakeel Vs. State of Haryana 2008 (1) FAJ 506.
66. However I do not agree with the contentions of Ld. Defence counsel. Firstly, it is specifically mentioned in Appendix B of The Prevention of Food Adulteration Rules, 1955 i.e. A.11.01.11 that "the standards of different classes and designations of milk shall be as given in the table below. Milk shall conform to both the parameters for milk fat and milk solids not fat, independently, as prescribed in columns (4) and (5) of the said table". Hence it is not open to raise any contention that the sample of milk conformed to the standards as a whole (total solids). CC No. 214/05 DA Vs. Mohd. Ahmad Page 34 of 41
67. Secondly, in Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
68. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.
69. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".
70. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%. CC No. 214/05 DA Vs. Mohd. Ahmad Page 35 of 41
71. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.
72. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.
73. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."
74. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
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"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."
75. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
76. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that CC No. 214/05 DA Vs. Mohd. Ahmad Page 37 of 41 they are negligible will amount to altering the standard itself prescribed by the statute.".
77. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
78. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
79. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".
80. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis." CC No. 214/05 DA Vs. Mohd. Ahmad Page 38 of 41
81. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
82. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
83. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
Gerber method
84. It was lastly argued by the Ld. Defence counsel that in view of the law laid down by Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 no conviction can be based relying on the PA's report as the PA used Gerber method which is not a sure/accurate test.
85. I have perused the report of PA dated 29.07.2005. As per the report of CC No. 214/05 DA Vs. Mohd. Ahmad Page 39 of 41 the PA, the PA used the Gerber method for the purpose of analyzing the sample of toned milk so collected by the Food Inspector. It is reflected in the report of PA that he used Gerber method for the purpose of calculating the percentage of milk fat in the sample of toned milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of toned milk. The said method is not a sure/accurate test for the purpose of analysis of milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under:
".......The High Court has indicated that although the Bombay High Court in State of Maharashtra V. Narayan Dewlu Shanbhag held that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute. The public analyst however followed Gurber's method and on the basis of such report the prosecution case was initiated. In that view of the matter the High Court did not intend to interfere with the order of acquittal. In our view, the High Court has taken a reasonable view and interference by this Court is not warranted. The appeal, therefore, fails and dismissed accordingly."
86. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.
CC No. 214/05 DA Vs. Mohd. Ahmad Page 40 of 41
87. In view of the above as the PA used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of toned milk so collected was adulterated or not. Though Ld. SPP for the complainant argued that the Gerber method is a prescribed method in DGHS Manual and is a valid and accurate test and in fact it is the most widely used test all over the world for the purpose of analysis of milk to find out the percentage of the milk fat and the same is also certified by Indian Standards Institute time to time however in view of the above ruling of the Hon. Supreme Court and failure on the part of the Ld. SPP to distinguish the said ruling I find no merits in his contention.
88. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the accused stands acquitted of the charges in the present case.
89. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 02nd May, 2014 ACMMII/ New Delhi
CC No. 214/05
DA Vs. Mohd. Ahmad Page 41 of 41