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[Cites 27, Cited by 0]

Delhi District Court

Delhi Administration / Food Inspector vs Ashok Kumar on 7 February, 2017

                 IN THE COURT OF SH. ASHU GARG,
          Addl. Chief Metropolitan Magistrate - II (New Delhi),
                    Patiala House Courts, New Delhi

CC No. 142/01
Unique Case ID No. 02403R0016702001

Date of Institution:              01.10.2001
Date of reserving judgement:      07.01.2017
Date of pronouncement:            07.02.2017

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                         ... Complainant

               versus

Ashok Kumar
S/o. Late Sh. S.R.Goyal
R/o. H.No.F-88, Prashant Vihar,
Pitampura, Delhi.                                    ... Accused


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Ashok Kumar is stated to be the vendor-cum-proprietor of M/s Shiv Dry Fruits at 2, Gadodia Market, Khari Baoli, Delhi-110006, from where the food article, that is, 'Kali Mirch Whole' was lifted for sampling.

CC No. 142/01 Page 1 of 34

2. As per the complaint, on 03.10.2000, food officials consisting of Food Inspector (FI) Arun Kumar and FI D.V. Singh under the supervision of Local Health Authority (LHA)/SDM Sh. G.R. Meena reached along with their staff at the premises in question where the accused was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'Kali Mirch Whole' from the vendor lying in an open gunny bag (ready for sale) bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 16.10.2000, the PA found the sample to be adulterated on the ground that it contained mould infected berries. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by FI on 01.10.2001 alleging violation of section 2(ia)(a),

(f) and (l) of PFA Act, as punishable section 7/16(1A) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was CC No. 142/01 Page 2 of 34 summoned vide order dated 01.10.2001. The accused appeared but no application under section 13(2) of PFA Act was moved by him for exercising his right to get the second counterpart of the sample analysed by the Central Food Laboratory (CFL), as also observed in order dated 17.07.2002.

4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Arun Kumar. On the basis of his deposition, charge was framed against the accused on 15.04.2009 for commission of the offence punishable under section 7/16 PFA Act, being violation of section 2(ia)(a), (f) and (l) of PFA Act, to which he pleaded not guilty and claimed trial. At the trial, the witness already examined in pre-charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 FI D.V. Singh and PW-3 Sh. G.R. Meena in post-charge stage.

5. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 03.10.2000 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 600 gms of 'Kali Mirch Whole' (ready for sale), thoroughly mixing it using a clean and dry jhaba, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A and cash memo Ex. P4, Notice as per Form-VI Ex. PW-1/B CC No. 142/01 Page 3 of 34 and Panchnama Ex. PW-1/C. On the next working day, that is 04.10.2000, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out by PW-1. He collected the replies of STO Ex. PW-1/G and Ex. PW-1/H. The accused also sent his replies Ex. PW-1/J and Ex. PW-1/K. After concluding the investigation, sanction Ex. PW-1/L was taken from the Director PFA and the complaint Ex. PW-1/M was filed in the court. After this, intimation letter Ex. PW-1/N with copy of PA report was served upon the accused against acknowledgement. These witnesses were duly cross examined by Ld. Defence counsel wherein they denied that the sample was not sealed or that the same has been tampered with or that PW-2 and PW-3 did not visit the shop of the accused or that no adulterated substance was found in the Kali Mirch stocked at his shop. The witnesses denied deposing falsely at the instance of the FI.

6. Statement of the accused under section 313 CrPC was recorded on 17.07.2015 wherein he denied the allegations and pleaded innocence. He accepted the proceedings dated 03.10.2000, though claimed that one Raj Kumar was also running the shop being one of the partners and that the payment must have been made to the other partner. He stated that the Kali Mirch was not lifted after mixing the same. He claimed the PA report to be wrong. He asserted that the documents / replies Ex. PW-1/J and Ex. PW-1/K had been written by him on dictation and under pressure of the CC No. 142/01 Page 4 of 34 FI, though accepted the receipt of the intimation letter. He took defence that he had purchased the commodity from the market against a bill and was selling it in the same condition as he purchased it. No evidence in defence was however led by the accused despite opportunity.

7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the PA report dated 16.10.2000. It is pointed out that the accused has failed to exercise his right under section 13(2) PFA Act and failed to get the sample analysed from Central Food Laboratory (CFL). It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. It is submitted that the PA report on the basis of which the prosecution has been lodged has not been proved as the PA has not been examined. It is then submitted that no violation of section 2(ia)(f) and (l) would be made out as there is no evidence to show that by mere presence of some mould infested berries, the product would be rendered injurious to health or unfit for human consumption or could be said to be insect-infested. It is argued that the PA report is suffering from serious discrepancies as it does not mention the description of the seal affixed or the weight of the sample or that the signatures of the accused were there on the sample. It is also contented CC No. 142/01 Page 5 of 34 that the possibility of tampering or the sample getting spoiled cannot be ruled out as it was analysed on 16.10.2000 despite the fact that it was received by the PA on 04.10.2000. It is submitted that the FI has not complied with the provisions related to joining of public witnesses and that there was nothing to show that the food article had been 'sold' by the accused in violation of PFA Act or Rules.

9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record including the written submissions furnished by the accused.

10. It is to be understood that the charge framed against the accused is for violation of section 2(ia)(a),(f) and (l) of the PFA Act. Section 2(ia)(a) applies when a food article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(f) deals with the food article that consists, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption. Section 2(ia)(l) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which renders it injurious to health.

CC No. 142/01 Page 6 of 34

11. In the case at hand, it is an admitted position that the food article Kali Mirch Whole / Black Pepper Whole is a standardized food article which falls under Item A.05.17 of Appendix-B of the PFA Rules under the head "Spices and Condiments". Specific standards have been prescribed for this food article under this provision. In addition to the various other standards, it is prescribed that "it shall be free from mould, living and dead insects, insect fragments, rodent contamination".

12. The present case is based on the findings of PA as given in report Ex. PW-1/F that has found the presence of mould infested berries up to 3.26% on the basis of which it was opined that the sample was adulterated as it contained mould infected berries. The sample was however conforming to the other standards.

13. It has been argued by the Ld. Defence Counsel that this PA report has not been proved because the PA herself was not examined by the prosecution and that such non-examination has deprived the accused of his right to cross-examine her. In this regard, it is to be understood that report of the PA, being a chemical expert, is admissible in evidence under section 293 CrPC without formal examination of such expert. Therefore, the prosecution was not bound to examine her. In case the accused wished to cross examine her, he had the right and opportunity to apply under section 293 CrPC to recall her and to question her on anything on which the report was silent or to seek any clarification or explanation. But no such application was ever moved by the accused and she was never opted to be CC No. 142/01 Page 7 of 34 cross-examined. Therefore, it cannot be said that he did not get an opportunity to cross examine her.

14. As far as this report is concerned, the court has no reason to disbelieve the same. It is nowhere the defence of the accused that Mrs. M.Shrivastava, the PA was not competent to give opinion or that some invalid or unreliable or improper method was used by her to detect the adulteration or that the report otherwise suffers from some inherent infirmity. It is to be understood that the report by the PA was given as per the prescribed format in the PFA Rules (as it existed at the relevant time). Therefore, it cannot be said that omission to mention the description of the seal or the specimen impression or the weight of the sample or the fact that signatures of the accused were there on the wrapper, etc. would render the report invalid or incomplete. This report is only the final report given by the PA as per the format prescribed under the Rules that existed at that time, which does not contain each and every minute detail of the analysis. Such detailed record of analysis is maintained separately by the office of the PA including the details/description of the sample, the dates/periods of analysis, the methods / tests applied, the analytical values, calculations etc., which can always be summoned by the accused if desired. But when no such attempt was made by the accused, he cannot take any benefit by claiming that the report is silent on some aspect. When the report of the PA is admissible in evidence under section 293 CrPC, the court cannot discard the same on the basis of hypothetical assumptions on the ground that something has not been mentioned therein, particularly when the PA CC No. 142/01 Page 8 of 34 was never called to be cross-examined by the accused to explain these things.

15. To the same effect, there is no force in the stand of Ld. Counsel that the PA report Ex. PW-1/F is not as per Form III of PFA Rules. The said Form, which exists as on date, is different from the Form that existed at the time of analysis by PA. The format and ingredients of the said Form were changed by way of an amendment in the year 2002. The report Ex. PW-1/F as given in this case is as per the format which existed at that time in the PFA Rules.

16. Similarly, it cannot be said that the sample might have been tampered when it remained in the custody of the PA till 16.10.2000. It is to be noted that 16.10.2000 was the date of the preparation of the report and not that of the analysis of the sample. Chemical analysis of food products ordinarily takes several days and as per the new format of Form- III, PA is required to mention this period. But when no such column was there in the Form that existed at that time and the PA was never opted to be cross examined on this aspect, it cannot be said that the sample was analysed only on 16.10.2000 despite the fact that it was received by the PA office on 04.10.2000. Again, only the PA was the best person to have explained the position and to produce the relevant records but the accused never attempted to apply under section 293 CrPC to cross examine her or to summon the detailed record from the PA office. Failure of the accused to do so would not come to his rescue.

CC No. 142/01 Page 9 of 34

17. Similarly, no reliance can be placed by the accused on the evidence of PW-1 FI who expressed his ignorance about the term "mould" on the ground that he was not an expert. Obviously, the competent person to do so was the PA but she was never opted to be cross examined by the accused despite such opportunity available to him. Not only the PA but also no other food chemical expert had been examined by the accused in his defence to ascertain the meaning of "mould", "mould infected berries"

or "mould infested berries", in case it was so relevant for his defence.

18. It is also important to note that the accused has not exercised his right under section 13(2) PFA Act for getting the sample analysed through CFL. It is nowhere his stand that such right available to him had got frustrated due to any act or omission on the part of the complainant. It is not the case of the accused that he did not receive the PA report with intimation letter. No such stand had been taken at the trial or in his statement under Section 313 CrPC. No suggestion was given to any PW claiming that the letter and report were not sent to him or were not served upon him or were having some deficiency otherwise. PW-1 deposed that the intimation letter was personally served upon the accused as well. Ex. PW-1/N also bears the acknowledgement of receipt of the report duly signed by the accused on 23.11.2001. Even in his statement under section 313 CrPC, the accused admitted the receipt of the PA report and intimation letter.

19. Though it is not the case of the accused that the time taken in filing the complaint had frustrated his right on the ground that the shelf life of CC No. 142/01 Page 10 of 34 Kali Mirch was over by that time or that it would have been rendered unfit for analysis, yet the court shall deal with this aspect as well, because the complaint was filed after about one year of lifting the sample.

20. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2) of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.

CC No. 142/01 Page 11 of 34

21. The question is whether can the delay of one year be called as an unexplained delay so as to automatically frustrate his right? As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require few days to analyse the sample (12 days in the present case), to prepare his/her report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/ manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is CC No. 142/01 Page 12 of 34 impossible to achieve in very short span of time during which the shelf life of the product may expire in the meanwhile. But even if the shelf life to consume a product gets expired so as to render the food "unfit for consumption", it would still not be rendered "unfit for analysis" unless such an opinion is given by the chemical analyst. Thus, the fate of the case would depend on its own set of facts and circumstances. No standard or time frame has been prescribed in the Rules framed under the PFA Act after which the sample would automatically be rendered unfit for analysis and it is therefore a subject matter of evidence led by the parties.

22. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or frustrated his rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.

CC No. 142/01 Page 13 of 34

23. In the case at hand, no question was put to any PW seeking explanation as to why a time of twelve months was taken in filing the complaint, so as to enable them to explain the circumstances. Record shows that letters had been written to the accused and government departments to ascertain the constitution of the business concern involved.

24. Even otherwise, some delay in filing the complaint would not automatically frustrate the right of the accused, particularly when the 'adulteration' is independent of such delay. If the incriminating ingredient is prone to natural changes, then certainly delay in filing the case would be taken into consideration. For instance, if the sample is failed on account of excess moisture or ash content, which might change and increase with lapse of time, the court may give benefit to an accused because effect of heat, light, temperature, air etc. cannot be ignored on such perishable food articles. But where a sample is failed on account to some ingredient the nature of which would not change with the passage of time, the accused in such a case cannot take this ground. For instance, the nature and content artificial synthetic colours or artificial sweeteners would not change with any passage of time and if a sample fails on these counts, the accused cannot refuse to exercise his right on the ground that there had been some delay in filing the complaint.

25. It is pertinent to note that in the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], full bench of the Hon'ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that the there was no occasion for the CC No. 142/01 Page 14 of 34 trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analyses to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (a perishable article) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon'ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon'ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup's case. If despite the delay and differences, CC No. 142/01 Page 15 of 34 the food continues to be adulterated, no benefit could be given to the accused on that count.

26. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the report of PA only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance, the offence would still be made out, irrespective of such chemical changes on account of delay. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

27. As a corollary, the accused cannot choose to forgo his right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused cannot claim that after lapse of any specific time period, his right would automatically stood frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analyses. It is only when the accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he CC No. 142/01 Page 16 of 34 can get benefit of the delay. In judgement titled as Britannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon'ble High Court was dealing with a matter of 'Cheddar Cheese' which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon'ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that "There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed". The Hon'ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he CC No. 142/01 Page 17 of 34 was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, where the accused never applies under section 13(2) of the Act, he cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused would have applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under section 13(2) of the Act would have been denied to him.

28. Thus, it is clear that the court would not assume that the right of the accused stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when he exercises his right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. But when the sample is not found unfit for analysis by the CFL, the court cannot then substitute its own view on the basis of any hypothesis or assumptions and conclude that the sample would have rendered unfit for analysis. However, it would still be open for the accused to establish at evidence that the changes/variations on account of delay had resulted in causing prejudice to him. Thus, the matter would depend on case to case basis.

29. In view of this proposition, the accused in this case cannot claim that his right under section 13(2) PFA stood automatically frustrated when the complaint was filed after one year of lifting the sample so as to give CC No. 142/01 Page 18 of 34 him an option not to file application to send the sample for analysis to CFL. Even otherwise, no such contention has been raised in the present case.

30. There is again no merit in the submission of the Ld. Defence Counsel that the remnant of the sample sent to the PA or the other two counterparts of the sample deposited with the LHA were not produced before the court for purpose of verification and cross-examination. No such requirement is there for the prosecution to do so. The unused remnant is destroyed by the PA after analysis and no PFA Rule requires such remnant to be preserved. Again, nothing had stopped the accused from summoning the other two counterparts from the office of LHA for any purpose whatsoever. The accused also had an option to apply under section 13(2) PFA Act upon which the court would have called for the counterparts, but such option was also not exercised by the accused.

31. The PA report clearly shows that the product contained mould infested / infected berries up to 3.26%. Though word "mould" is not defined anywhere in the PFA Act or Rules but it is commonly known to be a furry growth of minute fungus that develops in food article if it is not properly stored. The court need not go into the meaning of mould when it has no reason to disbelieve or discard the PA report. The sample is taken in air tight containers and it is nowhere the case of the accused at the trial that such moulds developed during the intervening period till the time the sample was analysed. The stand of the accused has been that mould means dust of parent substance (as suggested to PW-1) and that no such CC No. 142/01 Page 19 of 34 mould or fungus was there in the sample (as suggested to PW-3). But no food expert has been examined by the accused in defence who could depose that mould means dust of parent substance. In any case, there is no doubt that whatever may be the meaning of mould, the food article was required to be free from such mould, as specifically prescribed in Item no. A.05.17 of Appendix-B of PFA Rules.

32. At the same time, it can be safely said that the mould does not mean insects or rodents which are mentioned separately in addition to mould in the prescribed standards. Such presence of mould infested or infected berries cannot be called to be a filthy or putrid or rotten or decomposed or diseased animal or vegetable substance so as to be covered by section 2(ia)

(f). As a mould cannot be said to be an insect, the food article cannot be said to be "insect infested" as required by section 2(ia)(f). Additionally, there is nothing to show that the food article was "otherwise unfit for human consumption". No such opinion was given by the PA and there is no other material to reach to the opinion that the food article was rendered unfit for human consumption on account of presence of 3.26% of mould infected or infested berries. Therefore, in view of the PA report, it is clear that there is no violation of section 2(ia)(f) and (l) of PFA Act.

33. At the same time, it is apparent that the food article was adulterated within the meaning of section 2(ia)(a) as it was not of the nature, substance or quality which it purported to be as per PFA Rules. Also, there is violation of section 2(ia)(m) of PFA Act which applies when the quality of food article falls below the prescribed standards or its CC No. 142/01 Page 20 of 34 constituents are present in quantities not within the prescribed limit of variability, which does not render it injurious to health. For section 2(ia)

(m) to apply, it is not necessary for the prosecution to establish that the product was rendered injurious to health as in case of section 2(ia)(l) which is its aggravated form. Since it is clear that the standards prescribed in Item no. A.05.17 of Appendix-B required the product to be free from mould, the presence of 3.26% of mould infected / infested berries would be a violation of section 2(ia)(m) and would fall within the definition of adulteration.

34. All the PWs in this case have corroborated the stand of each other on material facts. All deposed about attempt made to join public persons as witnesses. All deposed about steps taken during sample proceedings. There is no contradiction in their statements that can be said to be material enough so as to go to the root of the matter. There is nothing to disbelieve them or to shake their credibility. It is not a case of non-compliance of any Rule or procedure. Rather the witnesses categorically deposed about compliance of due procedure and there is nothing in their cross- examination so as to attach any falsity to their version. All the witnesses deposed about use of clean and dry jhaba and bottles. As against this, there is no evidence in the form of testimony of any witness to the effect that any implement / utensil / instrument was not clean and dry or that some specific rule or provision was not followed by the food officials. Not even a suggestion was given to any PW to the effect that there was any contaminant present in jhaba or bottle.

CC No. 142/01 Page 21 of 34

35. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 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. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.

36. There is nothing to substantiate the stand of the accused, as suggested to PW-2 and PW-3, that they were not present at the spot. There oral testimony given on oath in the court would be sufficient to establish their presence at the spot, particularly when there is nothing in their cross- examination to shake their credibility. Even if PW-3 did not sign any document prepared at the spot, that would not lead to conclusion that he was not present. As against the corroborative testimony of three witnesses, there is not even a single witness who could depose that PW-2 CC No. 142/01 Page 22 of 34 and PW-3 were not present at the spot. No such stand was taken by the accused even in his statement under section 313 CrPC when he admitted the facts to be correct when specifically put about the presence of the PFA team consisting of the two FIs and SDM/LHA.

37. Ld. Defence Counsel has contented that there was no complaint against the accused in pursuance of which the sample was taken from him. It is not understood how this fact would help the accused. The FI is competent and duty bound to lift sample of any food article as authorized by the PFA Act and rules. There is no requirement of any prior complaint to be there against any such person before a sample is lifted from him.

38. It is again no defence available to the accused that the food article was not being sold to any customer. The definition of "sale" under section 2(xiii) of PFA Act is very wide which includes sale for human consumption or for use or for analysis, which also includes an agreement for sale, an offer for sale, exposing for sale, having in possession for sale and also an attempt to sell. The moment the food article is sold by the accused to the FI for analysis, it would be 'sale' within the definition in section 2(xiii) and would be covered by PFA Act. The accused also accepted the price of the sample vide vendor's receipt Ex. PW-1/A and also issued cash memo Ex. P-4 in his own handwriting and duly signed by him. It is nowhere the stand that he was forced or pressurized or compelled to sign Ex. PW-1/A or to issue Ex. P-4, though in his statement he claimed that the payment must have been made to his other partner, while admitting his signatures.

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39. Again, it is no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. There is no requirement that the sample can be lifted only when a food article is actually being sold to any customer. The only benefit which the accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty in writing and had been selling the product in the same manner as purchased by him.

40. In the present case, the accused vaguely claimed for the first time in his statement under section 313 CrPC that he had purchased the food article from the market against a bill. However, no such stand was ever taken by him during the trial and no such suggestion was put to him to any witness. No such bill was furnished to the FI at the time of sampling or subsequently during the course of investigation. He never produced any such bill in the court. In the absence of any such bill, the court cannot ascertain as to from whom the product was purchased, in which condition, on what date and whether there was a warranty in writing as required by section 19(2) of PFA Act read with section 14 of PFA Act in the format and language prescribed under Form-VIA as required by Rule 12-A of PFA Rules. No witness from the supplier has been examined in defence who could depose that the food article was supplied by him to the accused CC No. 142/01 Page 24 of 34 against a warranty in writing. Therefore, no benefit of warranty under section 19(2) of PFA Act can be given to the accused.

41. The accused has then contented that the business concern M/s Shiv Dry Fruits was a partnership concern and the other partner was one Sh. Raj Kumar also running the shop. But it is interesting to note that no such stand was taken by the accused at any stage of the trial and no such issue was raised during the evidence of any PW. It was only in his statement under section 313 CrPC that the accused claimed for the first time that Sh. Raj Kumar was also running the shop being one of its partners and that the payment of the sample must have been made to him. In written submissions filedon belaf of the accused, the name of such other partner is claimed to be one Sh. Ajay Kumar.

42. Be that as it may, there is nothing to show that the partnership firm was in existence on the day of the lifting of the sample. No suggestion was given to any PW, particularly PW-1 who conducted the investigation, that the business concern was a partnership concern. Record shows that the accused had given reply on his official stationery Ex. PW-1/K dated 22.03.2001 wherein he informed in his own handwriting that the business concern earlier had two partners but the other partner Raj Kumar left the firm, that his whereabouts were not known and that he was the only owner of the said business concern. Therefore, the said firm cannot be called a partnership firm. The accused in his statement under section 313 CrPC claimed for the first time that the documents Ex. PW-1/J and Ex. PW-1/K had been written by him on the dictation and under pressure of the FI.

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However, even such a stand does not appeal to senses. No such stand was taken at the trial and no question was put to this extent to the investigation FI PW-1 so as to enable him to explain or deny the same. No complaint was made by the accused against any official before any forum whatsoever. In any case, except such bald averment in his statement under Section 313 CrPC, which is not an evidence, so as to prove this fact. Tthere is no evidence in the form of testimony of any witness on the basis of which the court may conclude that these documents had been obtained from the accused by the FI under duress or pressure or compulsion. Further, the FI also received reply from the Sales Tax Department Ex. PW-1/H which clearly shows that the dealer had applied for change in constitution on 01.07.1999 (application is Ex.P-2 and Retirement Deed is Ex. P-3, as supplied by the accused himself) and thereafter, the firm was a proprietorship firm with effect from 01.04.1999, of which accused Ashok Kumar was the proprietor. The accused has never questioned the genuineness of these documents or denied the correctness of the contents therein. He never produced any material in his defence to establish that the said business concern was a partnership firm. It is therefore clear that on the day of sampling, the accused was the proprietor of M/s Shiv Dry Fruits and was solely responsible for conduct of its business affairs.

43. Ld. Counsel then submits that no such mould infected / infested berries were observed by the FI at the time of lifting the sample which would show that the sample was tampered with by the time it reached the PA. He submits that no such observation was there in any document prepared at the spot by the FI. However, I do not find any merit in such CC No. 142/01 Page 26 of 34 arguments. The FI is not required to give any such opinion which is essentially the job of the PA as a chemical expert. No Rule requires the FI to examine the sample minutely at the spot itself or to make such observations which may not be even visible to naked eyes. It is only when a product is analysed in the laboratory by the PA by applying prescribed and suitable testing methods, under proper testing conditions and as per the prescribed guidelines that the exact nature of adulteration can be ascertained. The report of PA is never governed by the observations or opinion of the FI given or omitted to be given on any document prepared at the time of sampling.

44. It is further seen that the accused in his statement under section 313 CrPC claimed for the first time that the Kali Mirch was not mixed when lifted. Again, such a stand has been taken for the first time at the fag end of the case when the evidence was complete and no such defence was raised at the trial. Be that as it may, there is no evidence that the food article was not properly mixed by the FI as deposed by the three witnesses in corroboration to each other and which fact has never been questioned during their cross-examination. In any case, failure to mix or homogenize the food article would not have made any difference because moulds are required to be totally absent in this food article. Even the best possible mixing would have only distributed the mould infected / infested berries evenly but would not have resulted in their disappearance altogether. Therefore, even if the food article was not mixed (though there is no evidence to this effect), that would help the accused in any manner.

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45. Though the defence has not raised this issue, yet the court is also dealing with a possible defence that method of analysis and laboratories were not specified by the Rule-making authority rendering the prosecution bad, relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310]. The prosecution was launched on 01.10.2001 on the basis of the PA report dated 16.10.2000. It may be argued that the prosecution was bad in law and no prosecution could have been launched because section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used.

46. Well, if such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories or methods have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

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47. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. There is nothing to show that the PA Smt. M.Srivastava was not validly appointed as Public Analyst or could not have analyzed the sample. No such stand was taken at the trial and PA was not sought to be cross- examined under section 293 CrPC to explain the facts. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.

48. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
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The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."

49. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

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50. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point.

51. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
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35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."

52. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. At that time, there was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of moulds in such spices. In this case, prosecution is for violation of section 2(ia)(a), (f) and (l) of the Act. The present case would be covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is with respect to presence of moulds which are specifically prescribed to be absent, the ruling in Pepsico's case would not help the accused.

53. Ld. Defence Counsel has relied upon the precedents titled as State v. Puran Mal [AIR 1985 SC 741], MCD v. Kacheroo Mal [AIR 1976 CC No. 142/01 Page 32 of 34 SC 394] and M/s. N.R.F. Mills v. The Corporation of Calcutta [AIR 1970 Calcutta 333]. These judgements pertain to section 2(ia)(f) of PFA Act and are not being discussed here, as it has already been held that the material on record in this case do not point out violation of this provision.

54. No other stand has been taken by the accused at the trial or during the arguments advanced.

55. The case in hand would be thus covered under section 2(ia)(a) as the article sold by the accused was not of the nature, substance or quality which it purported to be, and under section 2(ia)(m) of PFA Act as the constituent of mould was present in quantities not within the prescribed limits, being totally prohibited, but still not rendering the food injurious to health. At the same time, in the absence of any expert opinion or material, it cannot be said that the extent of mould infected / infested berries rendered the food article injurious to health or insect-infested or unfit for human consumption so as to make out violation of section 2(ia)(f) or section 2(ia)(l) of the PFA Act.

56. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(a) and (m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of the PFA Act.

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57. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.

58. Let the matter be listed for arguments on sentence.

Announced in the open court this 07th day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC CC No. 142/01 Page 34 of 34