Da vs . Jai Prakash Mittal Page 1 Of 65 on 27 March, 2014

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Delhi District Court

Da vs . Jai Prakash Mittal Page 1 Of 65 on 27 March, 2014

IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI

C.C. No. 96/03

COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954

Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant

Versus

Jai Prakash Mittal s/o Late Sh. Manohar Lal
M/s Krishna Trading Company,
Shop No. B927, Shastri Nagar,
Delhi52.
R/o D45, East Uttam Nagar,
Delhi59.
........ VendorcumProprietor

Serial number of the case : 96/03
Date of the commission of the offence : 22.06.2002
Date of filing of the complaint : 17.02.2003
Name of the Complainant : Sh. N.N. Sharma, Food Inspector

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Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954, r/w Rule 23, 28 & 29
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 27/03/14
Judgment announced on : 27/03/14

Brief facts of the case

1. In brief the case of the prosecution is that on 22.06.2002 at about 04.00

p.m. Food Inspector Virender Singh and FI N.N. Sharma under the supervision and

directions of SDM / LHA Sh. S.L. Batra visited M/s Krishna Trading Company, B927,

Shastri Nagar, Delhi, where accused Jai Parkash Mittal was found present conducting

the business of various food articles including Dal Moth Dhuli, ready for sale for human

consumption and in compliance of the provisions of the Prevention of Food

Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955

(hereinafter referred to as the Act & Rules) the Food Inspector collected / purchased

the sample of Dal Moth Dhuli.

2. It is further the prosecution's case that the sample was sent to Public

Analyst for analysis and as per the report of Public Analyst the sample was adulterated

because it was found "coloured with synthetic colour matter viz. Tartrazine and

accordingly after obtaining the necessary Sanction / Consent under Section 20 of the

Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) (b) (j)

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& (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955, punishable U/s 16

(1A) r/w Section 7 of the Act.

3. After the complaint was filed, the accused was summoned vide orders

dated 17.02.2003.

4. In pre charge evidence, the prosecution examined two witnesses i.e. the

Food Inspector Virender Singh PW1 and Food Inspector N.N. Sharma as PW2 and

pre charge evidence was closed vide order dated 08.04.2009.

5. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA

Act 1954 r/w Rule 23, 28 and 29 of the PFA Rules, punishable U/s 16 (1A) r/w section

7 of the Act was framed against the accused vide order dated 01.08.2009 to which

accused pleaded not guilty and claimed trial.

6. Thereafter, in post charge evidence the prosecution examined three

witnesses including the Food Inspector Virender Singh as PW1, Food Inspector N.N,

Sharma as PW2 and the then SDM/LHA Sh. S.L. Batra as PW3 and PE was closed

vide order dated 28.07.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 07.07.2011

wherein the accused claimed himself to be innocent. Accused examined himself as

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DW1 and Satish Kumar as DW2.

A brief scrutiny of the evidence recorded in the matter is as under:

8. PW1 Food Inspector Virender Singh deposed that on 22.06.2002 he

alongwith FI N.N. Sharma with staff, under supervision and directions of SDM / LHA

Sh. S.L. Batra visited M/s Krishna Trading Company, B927, Shastri Nagar, Delhi

where accused Jai Prakash Mittal was found conducting the business of food articles

stored there for sale for human consumption including Dal Moth Dhuli. He deposed

that they disclosed their identity and intention for purchasing the Dal Moth Dhuli (ready

for sale) for analysis to which the accused agreed. He further deposed that he tried to

join some public witnesses by requesting customers, passersby and neighboring

shopkeepers to join the sample proceedings but as none came forward, on his request

FI N.N. Sharma agreed and joined as witness. He further deposed that at about 04.00

p.m. he purchased the sample of 750 gms of Dal Moth Dhuli taken from an open

gunny bag having no label declaration on payment of Rs. 17.50 paise vide vendor's

receipt Ex. PW1/A. He deposed that sample was properly mixed with the help of the a

clean and dry Jhaba by rotating in all possible directions i.e. clockwise, anticlockwise,

upward and downward thoroughly several times. He further deposed that then and

there he divided the sample counterpart equally in three equal parts by putting them in

three clean and dry glass bottles and same were separately packed, fastened, marked

and sealed according to PFA Act & Rules. He deposed that LHA slips bearing his

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code no. and signatures were affixed on each counter part and vendors signature

were obtained on the LHA slip and the wrapper of the sample bottle in such a manner

that a portion of his signature partly appeared on LHA slips as well as other portion of

his signatures on the wrappers of the sample bottles. He further deposed that Notice

in Form VI was prepared vide Ex. PW 1/B and a copy of the same was given to the

accused as per his endorsement at portion A to A as well as his signature at point A.

He further deposed that Panchnama Ex. PW 1/C was prepared. He deposed that all

the documents Ex. PW 1/A to Ex. PW 1/C were read over and explained to the

accused in Hindi and after understanding the same, accused signed at point A,

witness at point C and he himself signed the same at point B respectively. He

deposed that accused also furnished his statement Ex. PW1/D that he is the sole

proprietor of said shop and shop is not registered with MCD or Sales Tax.

9. He further deposed that one counterpart of the sample in intact condition

was deposited with Public Analyst on 24.06.2002 vide Ex. PW1/E. He deposed that

all the copies of memo in Form VII were marked with the impression of seal which was

used to seal the sample counter parts. He further deposed that remaining two

counterparts of the sample in intact condition alongwith two copies of Memo in Form

VII in a sealed packet were deposited with LHA on 24.06.2002 vide receipt Ex. PW

1/F, bearing his signature at point A, under intimation that one counterpart of the

sample in intact condition has already been deposited with Public Analyst. He further

deposed that all the copies of Memo in Form VII were marked with the impression of

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seal which was used to seal the sample counterparts. He further deposed that Public

Analyst's report Ex. PW 1/G was received according to which, the sample was found

adulterated as mentioned at portion X. He further deposed that he further

investigated the matter and sent a letter to the STO Ward no. 49 vide Ex. PW1/H and

as per its reply at portion X according to which no such firm was found registered with

them. He further deposed that after completion of the investigation, the complete case

file along with all the statutory documents were sent to the Director Sh. K.S. Wahi

through LHA who after going through the entire case file, applied his mind gave the

sanction vide Ex. PW1/I against the accused who was found to be the vendor cum

proprietor of the said firm. He deposed that complaint Ex. PW1/J was filed by FI N.N.

Sharma. He deposed that intimation letter Ex. PW1/K along with copy of PA's report

was sent to the accused by registered post through the SDM/LHA Sh. V. Valte which

was not received back undelivered and photocopy of postal registration receipt is Ex.

PW1/L.

10. During his cross examination he stated that his posting on the date of

sampling was in North District and SDM/LHA was also posted in North District. He

denied the suggestion that there was no separate notification of SDM/LHA for North

District. He admitted that his notification as FI is not on the judicial record. He stated

that there was about 15 kg Dal Moth Dhuli in the gunny bag at the time of sampling.

He stated that Dal was mixed by him with the help of a clean and dry jhaba. He stated

that jhaba belonged to the vendor. He denied the suggestion that vendor was not

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having any Jhaba. He denied the suggestion that he did not mix the dal with the help

of Jhaba as no Jhaba was issued by the department. He stated that bottles were

already dry and clean and the same were not made again dry and clean at the spot.

He denied the suggestion that bottles were containing some material and were dirty.

He denied the suggestion that seal impression separately was not with the Public

Analyst. He voluntarily stated that same was deposited in the sealed packets as also

mentioned by the PA in her report. He denied the suggestion that Public Analyst was

not legally appointed on the day of sampling. He stated that there were one or two

public persons present at the spot. He denied the suggestion that he intentionally did

not try to associate the public witnesses. He stated that sample was weighed in a

clean and dry transparent polythene bag which was provided by the vendor. He stated

that he does not know when the bottles were issued to him by the department.

11. PW2 FI N.N. Sharma and PW3 Sh. S.L. Batra, the then SDM/LHA

deposed on the same lines as deposed by PW1 in his examination in chief

12. This so far is the prosecution evidence in the matter. The accused led the

defence evidence as under:

13. DW1 Jai parkash Mittal deposed that in the year 2002 he was running a

Kiryana shop under the name and style of M/s Krishna Trading, situated at B927,

Shastri Nagar, Delhi52 and on 22.06.2002 a team from PFA Department came to his

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shop and lifted a sample of Dal Moth which was lying in an open bag at that time. He

deposed that at the time of sampling he had apprised the PFA team that the business

being run by him was running into losses and hence the he was about to discontinue

the business. He deposed that he had also shown the Bill to the raiding party towards

establishing the fact that the dal in question had been purchased by him from M/s

Manohar Lal Ganga Dhar vide bill Mark DA. He deposed that they had apprised him

that since the Dal in question was lying in loose condition the bill was of no avail. He

deposed that thereafter they completed the writing work and after concluding the

sample proceedings left the premises.

14. During his cross examination he stated that he did not send photocopy of

the above mentioned bill to the PFA Department after the date of sample proceedings.

He stated that he was not aware of this aspect. He stated that he did not make any

complaint against the officials of PFA team in respect of non consideration of his

above mentioned bill. He denied the suggestion that he did not show any bill of

purchase to the FI at the spot.

15 DW2 Satish Kumar deposed that in the year 2002 he was working as a

partner in the firm namely M/s Manohar Lal Gangadhar situated at 4106, Naya Bazar,

Delhi and at that time there were two partners in this firm i.e. he and Sh. Jai Bhagwan.

He deposed that this firm was dealing as a commission agent in the sale and purchase

of food grains and pulses etc. He admitted that the bill no. 27795 dated 20.03.2002

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had been issued by their firm however he cannot say whether the payment in respect

of the said bill has been made to the firm or not as being an old record it is not

available. He deposed that as per this bill Dal Moth had been sold to Mittal Traders,

Kishan Ganj, Delhi through a broker namely Jai Kishan. He deposed that he has no

knowledge if any sample of Dal was lifted from the accused. He deposed that he has

no knowledge if the Dal in question which was lifted as a sample by PFA Department

from accused was or was not supplied by their firm to him through the bill no. 27795

dated 20.03.2002. He deposed that their firm used to sale/supply the food grains and

pulses etc to various customers in the sealed bags of 50 Kg.

16. During his cross examination he stated that through the above mentioned

bill his firm had supplied two sealed bags of Dal Moth to Mittal Traders (total weighing

about 99.8 kg).

17. This so far is the evidence in the matter.

18. 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.

19. After hearing the rival contentions raised at bar as well as on careful

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scrutiny of the material on record, I am of the considered opinion that the prosecution

has successfully brought home the guilt against the accused.

20. It stands unambiguously proved from the deposition of the prosecution

witnesses especially Food Inspector Virender Singh coupled with the report of the PA

dated 22.07.2002 that accused Jai Parkash Mittal was indeed found selling Dal Moth

Dhuli which was adulterated on account of it containing synthetic colour viz.

Tartrazine.

21. The star / the material witness of the prosecution i.e. Food Inspector

Virender Singh categorically proved that on 22.06.2002 he along with Food Inspector

N.N. Sharma and SDM / LHA Sh. S.L. Batra visited M/s Krishna Trading Company,

where accused Jai Prakash Mittal who was the vendorcumproprietor was found

conducting the business of sale of various food articles including Dal Moth Dhuli, for

human consumption and in compliance of the provisions of the Prevention of Food

Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955

(hereinafter referred to as the Act & Rules) he collected / purchased the sample of Dal

Moth Dhuli. He proved the sample proceedings vide Ex. PW 1/A to Ex. PW 1/C. He

further proved the deposit of the sample with the Public Analyst and deposit of the

counterparts of the sample with the Local Health Authority vide Ex. PW 1/E and F. He

further proved that the Dal Moth Dhuli on analysis by the public analyst vide his report

Ex. PW1/G was found adulterated as it was containing synthetic colour tartrazine. He

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proved the letter written to STO Ward no. 49 along with reply at portion X. The

Sanction / Consent for prosecution was proved as Ex. PW1/I and the complaint was

proved as Ex. PW 1/J.

22. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. PW2 FI Sh. N.N. Sharma and Sh. S.L. Batra the

then SDM/LHA (PW3).

23. Furthermore the fact that the sample was collected/lifted by the Food

Inspector on 22.06.2002 from M/s Krishna Trading Company as well as that the

accused was the vendor/ proprietor of M/s Krishna Trading Company was not disputed

during the trial and was also admitted by the accused during his examination under

Section 313 Cr. P.C as recorded before the Ld. Predecessor of this Court on

07.07.2011. From the answers given by the accused to question no. 1 & 2 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 Ex. PW1/A to C

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which bears the signature of the accused as well as Ex. PW1/D which is in the

handwriting of the accused and also bears his signatures, no doubt remains that the

sample of Dal Moth Dhuli was indeed collected by the Food Inspector for analysis from

M/s Krishna Trading Company of which the accused is the proprietor cum vendor.

24. During the course of arguments, Ld. defence counsel appearing for

accused argued that the prosecution miserably failed to bring home the guilt against

the accused. It was argued that the prosecution story suffers from various

loopholes /contradictions.

Public witness

25. 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.

26. However I do not agree with the contentions raised by the Ld. Defence

counsel. The Hon'ble Apex Court in Shriram
Labhaya Vs. MCD , decided on

26.02.1974 has categorically held that testimony of the Food Inspector alone, if

believed, is sufficient to convict the accused and there is no requirement of

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independent corroboration by public persons unless the testimony suffers from fatal

inconsistencies. Similarly in Babu Lal Vs. State, AIR 1971, SC 1277 It has been

held that there is no rule of law that a conviction can not be based on the sole

testimony of Food Inspector. Reliance may also be placed upon 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.

State
27. 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. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. 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.".

28. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In

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our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

29. It is writ large from the deposition of PW1, PW2 and PW3 that FI

Virender 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 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.

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30. 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 or the SDM were inimical to the accused or had any

grudge or enmity to falsely implicate him.

Rule 14

31. It was 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

bottles, the polythene bag as well as the instrument i.e. jhaba with which the sample

was poured in the bottles. 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 Sri Ram Swaroop Vs.

State 1978 (1) FAC 76, State of Maharashtra Vs. Bhaskar Rajeshwari, Koyakutty

Vs. FI 2001 (1) RCR 340, Jagdish Chand Vs. State 1980 (II) FAC 323 and M.

Mohammad vs. State 1978 (1) FAC 114.

32. However I differ with the contentions as raised by the Ld. defence

counsel.

33. I have heard the Ld. defence counsel, gone through Rule 14 and the

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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 make the same. Furthermore he

should sample the article in hygienic conditions. Reliance may be placed upon

Varghese Vs. Food Inspector, 1989(2) FAC 236.

34. I have perused the deposition of the Food Inspector i.e. Virender Singh

who was examined as PW1. The Food Inspector deposed as under:

"The sample was properly mixed with the help of a clean and dry Jhaba
by rotating in all possible directions i.e. clockwise, anticlockwise, upward and
downward thoroughly several times. Then and there I divided the sample counter
parts equally in three equal sample parts by putting them in three clean and dry glass
bottles.........."

35. During his cross examination he stated as under:

".....Dal was mixed by me with the help of a clean and dry Jhaba.......It is

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wrong to suggest that I did not mix the Dal with the help of Jhaba as no Jhaba was
issued by the department......Bottles were already dry and clean and the same were
not made again dry and clean at the spot. It is wrong to suggest that bottles were
containing some material and were dirty"

36. Similarly PW2 the Food Inspector N.N. Sharma deposed as under:

" The sample was properly mixed with the help of a clean and dry Jhaba
by rotating in all possible directions i.e. clockwise, anticlockwise, upward and
downward thoroughly several times. Then and there F.I. Virender Singh divided the
sample counter parts equally in three equal parts by putting them in three clean and
dry glass bottles........"

37. During his cross examination he stated as under:

"Clean and dry Jhaba was provided by the vendor but I cannot say how many Jhabas
were lying in the shop of the vendor. Jhaba was already clean and dry as such same
was not made clean and dry at the spot. It is wrong to suggest that Jhaba was not
clean and dry and some colour was sticking with the Jhaba. After proper mixing the
Dal Moth Dhuli, 750 gms was weighed after putting in clean and dry colourless
transparent polythene bag and therefore, sample commodity was divided into three
clean and dry glass bottles. Bottles were already dry and clean and the same were
not made again dry and clean at the spot.........It is wrong to suggest that bottles were
dirty"

38. PW3 S.L. Batra, the SDM/LHA deposed as under:

" The sample was properly mixed with the help of a clean and dry Jhaba
by rotating in all possible directions thoroughly several times. Then and there F.I.
Virender Singh divided the sample counter parts equally in three equal sample parts
by putting them in three clean and dry glass bottles.........."

39. Hence the prosecution witnesses consistently deposed regarding the

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jhaba as well as the sample bottles and the polythene bag being clean and dry. I have

no reasons to disbelieve them. 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. As already discussed above, I find no reasons why the Food Inspector

would depose falsely or falsely implicate the accused, there being no previous enmity

against him. I have also gone through Section 114 (e) of the Indian Evidence Act.

Section 114 reads as under:

" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."

Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"

40. 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)

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Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.

Assessar, 5 OLJ 179)".

41. 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.

42. 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
.].

43. 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.

44. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it

was observed as under:

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"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

45. 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.".

46. 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.

Homogenization / Mixing of Sample.

47. 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.

48. However, I find no merits in the contention of the Ld. defence counsel.

Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food

Inspector and the other complainant witnesses as discussed above that the sample

was taken after mixing the Dal Moth Dhuli properly in all possible directions several

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times. I have no reasons to disbelieve the Food Inspector or the other complainant

witnesses in this regard. Secondly, there was no requirement of mixing or making the

sample i.e. the Dal homogenized as such in view of the law laid down in Dhian

Chand Vs. State of Haryana, 1999 (1) FAC 272. It was laid down in the above said

case as under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In 1992(1) FAC 283 (supra) it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous." .

49. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,

the Hon. Apex Court observed as under:

"If the food sold to the food inspector is proved to be adulterated, it is

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immaterial whether the sample purchased by him is a representative sample or not of

the entire stock in possession of the person".

50. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982

(2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
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

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cream available for sale and taking the sample thereafter. Hence there is no
justification to apply any rule of representative sampling.

51. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984

(1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of

Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food
Inspector and not necessarily a government officer, is entitled to purchase an article of
food from a vendor and send it for analysis provided he follows the procedure
mentioned in Section 12 of the Act. If a private person purchases a portion of ice
cream from the respondent under Section 12 of the Act and causes the sample to be
analysed and if the sample is found to be adulterated, the vendor cannot turn round
and find fault with the purchaser for not stirring the entire mass of the ice cream in the
container or for not taking a section and stirring i before purchasing it. Equally so, at
any rate, in the case of sale to the Food Inspector the vendor cannot come forward
with such a complaint.

It was further observed:

"if the rule making authority backed by the expertise of such a committee
(Central Committee for Food Standard) has not prescribed any particular manner of
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."

52. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of

sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the

language of the Indian Act does not require mixing and division of sample in every

case regardless of whether the nature of the article requires it or not.

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53. 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."

54. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held

by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with
regard to the presence of colouring
matter , the learned MM's finding that the
samples collected were not of representative character cannot be sustained
inasmuch as both the Public Analyst and the CFL have reached a similar
conclusion with regard to the presence of artificial colouring matter."

55. In the case at hand not only from the deposition of the Food Inspector

and the other prosecution witnesses it stands duly established that the Dal was

properly mixed at the time of sampling but in view of the above discussion, I am of the

opinion that it being the case of Dal it was not required to homogenize the Dal. The

act has been enacted so as to prevent the adulterated food article being sold to the

customers/consumers. It is a matter of common knowledge that when any customer

goes to a shop to buy Dal, besan etc. the vendor does not give the said food article

after mixing the same with the help of Jhaba in the gunny bag/bag in which he has

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stored the same in his shop. He does not first rotate the said food article in all

possible directions several times and then sell the same to the customer. He merely

takes out the food article with the help of Jhaba or any other instrument from top most

layer and sells it to the customer. Therefore when this is usual mode of selling the

food article to the customers then why should a different mode be used for the

purpose of sale to the Food Inspector. The act has been enacted for the purpose of

protection of the customers/consumers of food articles and it is not sold to them by the

shop owner after homogenization. Hence no question of making the food article/Dal

homogenized should arise or else the entire purpose of act will be defeated. This is

the reason why the PFA Act or the Rules nowhere provides for mixing of the food

articles at the time when the sample is lifted by the FI.

PA's Report/intimation letter not received hence right u/s 13 (2) could not be
exercised thus prejudice caused to the accused.

56. It was also one of the arguments of Ld. Defence counsel that PA's report

along with intimation as per the provisions of section 13 (2) of the Act was not

supplied/delivered to the accused and accordingly the accused could not exercise his

right as contemplated u/s 13 (2) of sending the second counterpart of the sample kept

with the LHA to be analyzed by the Director, CFL. It was argued that this caused

serious prejudice to the accused as his right to get the counterpart of the sample

analyzed by the Director was defeated. Reliance was placed upon the law laid down

in Shiv Dutt Singh Vs. Ram Dass AIR 1980 Allahabad 280, State of Orissa Vs.

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G. Sahu 2003 Cri. LJ 3077 and Jagat Ram Vs. Bantu Mal, AIR 1976, Delhi 113.

57. However the said plea of Ld. Defence counsel is meritless and contrary to

the records. Firstly, as per records the prosecution was launched on 17.02.2003 and

the next date of hearing before the court was 14.01.2004. Thereafter the matter was

listed on 31.08.2004. It is evident from proceedings dated 31.08.2004 that the

accused deliberately/ on his own volition and for reasons best known to him did not

opt to move application u/s 13 (2). Hence once he himself does not exercise the

right/does not file the application u/s 13(2) PFA Act he cannot be allowed to complain

later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.

Secondly, PW1 FI Virender Singh had categorically deposed that the intimation letter

along with PA's report was sent to the accused by registered post through the

SDM/LHA and the same was not received back undelivered. He proved the intimation

letter along with postal registration receipt as Ex. PW1/K and Ex. PW1/L. On similar

lines was the deposition of PW3 SDM/LHA Sh. S.L. Batra. Not even a single

suggestion was given to either of the witnesses that the intimation letter along with

PA's report was never sent by registered post to the accused. Their testimony has

thus remained unchallenged and I have no reasons to disbelieve them. Thirdly, I have

perused Ex. PW1/L. Serial no. 0798 and 0799 pertains to the sending of the

registered documents at the residential as well as business address of the accused.

The address appearing on Ex. PW1/L is the same address as appearing in the

complaint as well as on which the summons sent by the court were duly served upon

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the accused. If the summons were served on the same address I fail to understand

why the intimation letter and the PA's report sent vide Ex. PW1/L would not be

received by him. It is nowhere the defence claim/plea that the address is incorrect.

58. Section 114 of the Evidence Act and the presumption which Section 114
raises has been discussed above. Clause (f) of Section 114 reads as under:

"That the common course of business had been followed in particular cases"

59. It is now well settled that sending by post, means sending by post to the

addressees proper address. Where a notice has to be served through post, all that a

sender can do to comply with the provisions is to post the prepaid registered letter

containing addressees correct address. Once he does this and the letter is delivered

to the post office, he has no control over it. In that event, under Section 27 of the

General Clauses Act, the letter shall be presumed to have been delivered to the

addressee. There is no obligation upon the sender to prove the service of notice upon

the addressee if he send the notice by registered post, properly addressed. Where a

letter is sent under certificate of posting a presumption arises under Section 114 of the

Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal

Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P.

Rama Reddy, 2003(3) Andh. LT 120 (AP)]

60. Once the evidence discloses that the letter was addressed at a proper

address by registered post then unless it is rebutted or the contrary is proved to have

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been effected at the time at which the letter would be delivered in the ordinary course

of post it is presumed that there is a proper service. If the addressee either can not be

met or refused to take delivery there appears to be no reason why the letter should not

be considered as properly served upon the addressee ( State Vs. Bhag Chand

Sadhu Mal, 1999 (3) Guj. LR 2220.).

61. In the absence of anything indicating that such letters were not posted or

concocted the presumption under Section 114 (f) comes into play (Vandavasi

Kartikaya Vs. S. Kamalanna, A 1994 AP 102).

62. A bare denial with no reliable evidence is not sufficient to rebut the

presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial

without reliable evidence, without further rebuttal, the presumption continues [Fazal

Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].

63. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the

prosecution did not prove any postal acknowledgment signed by the accused to prove

about the service of copy of the report of the Public Analyst which had been sent by

registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC

300 the court held as under:

"In the present case the petitioner in his examination under section 313 Cr. P.C has
merely denied to have received the copy of the report of the Public Anlayst. However,
no evidence has been adduced on behalf of the accused persons to rebut the
presumption available under the General Clauses Act as well as Section 114 of

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the Evidence Act. As observed by the Division Bench of this Court, when it is proved
that registered letter has been posted after being duly stamped in the address of a
person, a presumption arises that such letter must have been served on the
addressee. The evidence adduced on behalf of the prosecution to the effect that the
report of the Public Analyst had been posted by registered post as per the postal
receipt has not been successfully challenged by the petitioner in any manner in cross
examination. The mere denial of the accused in his statement under Section 313,
Code of Criminal Procedure, cannot have the effect of rebutting the statutory
presumption available under the provisions of the General Clauses Act.".

64 In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it

was held "admittedly there is presumption in law that a communication sent by post on

the correct address of the addressee is presumed to have been received by him if it is

not received back by the sender.".

65. 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:

"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.".

66. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held
as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon

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the sender or the postman to arrange that notice to be served upon the addressee. If
a letter is posted prepaid and registered with a acknowledgment due or otherwise to
the correct address of the addressee and delivered to the post office, there is
presumption under Section 27 of the General Clauses Act that the letter is delivered to
the addressee.".

67. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand
AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the
respondent that in order to comply with the requirement of Section 13(2) of the Act
actual delivery of the notice or deliberate refusal to accept the same by the addressee
is necessary, it will lead us to anomalous and very dangerous situations. A cunning
and unscrupulous accused can effectively thwart the delivery of the notice to him by
staying away from his house for some time knowing the arrival of the notice and get it
returned to the sender as unserved.".

68. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held
that prosecution is not required to prove that the applicant has acknowledged the copy
of the Public Analyst's Report.

69. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was
observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal
Procedure, cannot have the effect of rebutting the statutory presumption available
under the provisions of the General Clauses Act."

70. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that

where extract of the relevant entries in the register maintained in the office also

indicated that the notice under section 13(2) of the Act alongwith the report of the

Public Analyst was sent to the applicant by registered post on the address available on

record and it is not the contention that the accused / addressee / vendor did not reside

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at the address on which the notice was sent then "The mere fact, that A/D receipt was

not filed or received back, was not sufficient to rebut or dislodge the presumption of

service of notice sent by registered post in absence of any evidence to the contrary.".

Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed

upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex

Court has held "the notice dispatched by sender by post with correct address on it,

can be deemed to be served on sendee unless he proves that he is not really served.

This principle was propounded keeping in view the provisions of section 27 of the

General Clauses Act."

71. In the case at hand in view of categorical deposition of the Food

Inspector coupled with Ex. PW1/K and L as discussed above a presumption tenable in

the eyes of law can be drawn that the PA's report along with intimation letter was duly

delivered/received by the accused/the vendor.

72. As far as the prejudice is concerned suffice would be to say that once the

accused does not exercise the right u/s 13 (2) he cannot complain later on.

73. 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.

74. In Jai Singh Vs. State 1976 (1) FAC 207, it was held as under:

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"the delay in the submission of the report cannot be said to be inordinatethe vendor
accused cannot himself decide that no useful purpose will be served by the sample
being sent for test by the Director of Central Food Laboratory. He has to move an
application and get sample tested and if it is found deteriorated by the Director, he can
claim that the prejudice was caused to him and he was deprived of the right by reason
of laches on the part of the prosecution."

75. 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.

76. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it

was one of the contentions of the Ld. defence counsel that since the complaint was

launched after lapse of more than 4 months from the date of taking sample the

accused could not utilize his right to send the sample to Director, CFL. As a matter of

fact the accused had not moved any application under Section 13(2) of the Act

claiming that as there was delay in launching of the prosecution / supply of the PA's

report, no purpose would have been served by resorting to an application under

Section 13(2) of the Act as on account of delay the article of food would not have

retained its quality for examination. Repelling the contentions their lordship held

as under:

" 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

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consequently the sample had deteriorated and could not be analysed. The decision of
this Court in Municipal Corporation Delhi V. Ghisa Ram: 1975 (1) FAC 186, 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.".

77. In Babu Lal's case as above, Hon'ble Mr. Justice Jagmohan Reddy,

J speaking for the court said "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." The similar view as above was taken by their

lordship 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 analysis.
If he had made the application after paying the prescribed fee, the Magistrate would
have had no option but to send the part of the sample for analysis by the Director. 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 appellant could perhaps, have contended that he 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, since the appellant
never applied under section 13(2) of the Act, he cannot complain that he has been
deprived of any right.".

78. Same view was taken in Sukhmal Gupta Vs. The Corporation of Calcutta

1974 FAC 207, Hypercity Retail (India) Ltd. and Ors. Vs. State of Punjab and

Anr. 2013(1) FAC 392, MCD Vs. Ajit Pershad 1975 (2) FAC 60 and Pitabasa Bisi

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Vs. State 1996 (1) FAC 145.

79. 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 about the
delay caused in the examination of the sample by the Director. Furthermore, under
section 510, Criminal Procedure Code, the report made by the Director, Central Food
Laboratory, can be received in evidence even when the Director does not enter into
the witnessbox. If the accused person wants to show certain infirmities in the process
of chemical examination performed by the Director, then he has to make an
application to the trial Court to have the Director summoned as a witness. This
procedure was not adopted by the petitioner and he has not brought any material on
the record to show why the report submitted by the Director should not be relied
upon.".

80. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it
was held as under:
"There is no doubt that in the present case the prosecution was launched after nearly
five months but the petitioner did not submit any application under subsection (2) of
section 13 of the Prevention of Food Adulteration Act, 1954, requesting the court to
get the sample of milk analysed by the Central Food Laboratory. 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.".

81. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was

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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 that the question of deprivation of the right even to the
accused under section (2) of Section 13 of the aforesaid Act, does not arise until the
accused makes an application to the Court for having the sample analysed by the
Central Food Laboratory, Calcutta. Until such an application is made no right can be
said to have accrued to the accused. In this case also no such application was made.
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. The learned Magistrate therefore, was clearly in the wrong
when he observed that even if the accused had made an application as aforesaid it
would only be a fruitless venture.".

82. 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.".

83. 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."

84. Further the Hon'ble Apex in Dalchand Vs. Municipal Corpn, 15 (1984)

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2 SCC 486 held that, "where the effect of noncompliance with the rule was such as

to wholly deprive the right of the person to challenge the Public Analyst's report by

obtaining the report of the Director of the Central Food Laboratory, there might be just

cause for complaint, as prejudice would then be writ large. Where no prejudice was

caused there could be no cause for complaint."

85. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food

Adulterations cases 195, it was held that if the report of the Public Analyst is served

upon the accused after two years and the accused does not make any application for

sending the sample to Director, CFL no prejudice is caused to him.

86. In Ram Bilas Vs. State 1997(1) 141, while dealing with delay in

sending the PA's Report to the accused it was held :

"Be that as it may, the petitioner did not choose to challenge the report by moving an
application for sending of the other sample bottle for analysis of the Central Food
Laboratory. (Reliance placed upon Tulsi Ram Vs. State of Madhya Pradesh 1984
(2) FAC 146, wherein it has been held that "it is a question of prejudice").

in the above case it was discussed in para 6 as under:
"Similarly, the Hon'ble Supreme Court in another decision in Jagdish Prasad Vs.
State of West Bengal, 1972 FAC 127: 19481997 FAC (SC) 55, observed that
"where no application is made under subsection (2) for sending the sample to the
Director of the Central Food Laboratory, and the report of the Public Analyst is not
superseded under subsection (3) by the certificate of the Director, a conviction of the
accused on the basis of the report of the Public Analyst and on his evidence would be
proper". The petitioner could very well establish the denial of his right under Section
13(2) on account of delay in forwarding the report of the Public Analyst to him, if on an

CC No. 96/03
DA Vs. Jai Prakash Mittal Page 36 of 65
application the other sample bottle had been examined and a report of the Director of
Central Food Laboratory had confirmed that the sample has become unfit for analysis.
As such, it is not a case of any prejudice caused to the petitioner by delay, if any, in
forwarding the report of the Public Analyst to him."

Delay

87. The Ld. Defence counsel also argued that the prosecution was launched

after more than 6 months since the lifting of the sample and therefore even if the

accused had moved the application the sample would not have remained fit for

analysis by the Director and hence moving the application u/s 13 (2) would have been

an exercise in futility. However, the said defence is unsustainable. As already

discussed above once no application u/s 13 (2) is moved the accused is no longer

entitled to claim the loss of the right u/s 13 (2). Furthermore, no presumption can be

drawn by the Court that the sample of Dal if sent for analysis to the Director after the

institution of the case would have decomposed/rendered unfit for analysis on account

of delay of more than 6 months in launching of the prosecution.

88. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,

Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:

"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under
which provision the accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the sample is found by the said
Central Food Laboratory unfit for analysis due to decomposition by passage of time or

CC No. 96/03
DA Vs. Jai Prakash Mittal Page 37 of 65
for any other reason attributable to the lapses on the side of prosecution, that valuable
right would stand denied. This would constitute prejudice to the accused entitling him

to acquittal but mere delay as such will not per se be fatal to the prosecution

case even in cases where the sample continues to remain fit for analysis in
spite of the delay because the accused is in no way prejudiced on the merits of
the case in respect of such delay. Therefore it must be shown that the delay has
led to the denial of right conferred u/s 13(2) and that depends on the facts of each
case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a
ground for the prosecution case being thrown out.". Further reliance may be placed
upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179
.

89. 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.

In para 63 of the judgment it was observed as under:

"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........

.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".

It was further observed in para 66 as under:

"Whether the sample remains fit for analysis or has become unfit can only be CC No. 96/03 DA Vs. Jai Prakash Mittal Page 38 of 65 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 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed.".".

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:

"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 CC No. 96/03 DA Vs. Jai Prakash Mittal Page 39 of 65 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 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to 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?"

It was further observed in para 75 as under:

"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."

It was further observed in para 76 as under:

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 40 of 65

"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."

The court concluded / summed up its observation / findings in para 103 as under:

"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.

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.".

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 41 of 65

90. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 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 accusedso 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.".

91. 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. 96/03 DA Vs. Jai Prakash Mittal Page 42 of 65

92. 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. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

93. 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."

94. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:

"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".

95. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was CC No. 96/03 DA Vs. Jai Prakash Mittal Page 43 of 65 observed as under:

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."

96. 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:

"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its CC No. 96/03 DA Vs. Jai Prakash Mittal Page 44 of 65 character and is capable of being usefully analysed for a period of about ten months. 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." .

97. 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. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".

98. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 45 of 65

"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.

99. 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".

100. 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 CC No. 96/03 DA Vs. Jai Prakash Mittal Page 46 of 65 and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in 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.

101. In the case at hand it being a sample of Dal Moth Dhuli and there being nothing on record, no evidence led by the defence to prove that the Dal Moth Dhuli must have got deteriorated, decomposed/ rendered unfit for analysis, I find no merit in the contention of Ld. Defence counsel that solely on account of delay the right of the accused was prejudiced. The very fact that the PA opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the PA. The PA's report that the sample was fit for analysis is a fact and there can not be any that a contrary presumption against the same. How can there be a presumption ( sample must have got decomposed, deteriorated or unfit for analysis on account of delay ) contrary to a fact in existence (PA's report/ Certificate that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis has to prove CC No. 96/03 DA Vs. Jai Prakash Mittal Page 47 of 65 that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the PA or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not only the contrary to the law but also against well established principle of jurisprudence. Rule 18

102. It was also one of the arguments of the Ld. defence counsel for the accused that there was violation of Rule 17 and 18, benefit of which must be given to the accused. It was argued that it has not been proved that the specimen impression of the Seal used for sealing the sample as provided in Rule 17 was sent to the Public Analyst separately as per the mandate of Rule 18. It was argued that in these circumstances the sample being tampered with during its transit to the PA cannot be ruled out. Reliance was placed upon State of Orissa Vs. Rabindru Sahu 2006 (1) FAC 200 (SC), State Vs. Banwari Lal 2011 (1) FAC 149, Delhi High Court and Gian Chand Vs. State of Haryana 1982 (I) FAC 8.

103. I have perused the deposition of the Food Inspector i.e. PW 1, the report of the Public Analyst as well as Rule 18 of the Prevention of Food Adulteration Rules, 1955. Rule 18 provides that the copy of Memorandum and a specimen impression of CC No. 96/03 DA Vs. Jai Prakash Mittal Page 48 of 65 the Seal used to seal the packet shall be sent to the Public Analyst separately by post. In Kassim Kunju Pookunju and Anr. Vs. K.K. Ramakrishna Pillai and Anr., Crl. Appeal No. 29 of 1968, decided on 02.12.1968, the Hon'ble Apex Court observed as under:

"The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7 of the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.

We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied.".

104. Similarly in N. Sukumaran Nair Vs. Food Inspector, Mavelikara, Crl. Appeal No. 343 of 1989, decided on 31.01.1995, the Hon'ble Apex Court held as under:

"The Food Inspector as PW1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in crossexamination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in crossexamination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary CC No. 96/03 DA Vs. Jai Prakash Mittal Page 49 of 65 recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence.".

105. In Srinagar Municipal Corporation Vs. Sonna Ullah Malik 1978(2) FAC 99, it was held as under:

"The object of Rule 17 and 18 is to prevent the possibility of tampering with the sample before it reaches the public analyst and it is with this object that it is provided that the specimen impression of the seal used should be sent separately to the public analyst so that he can compare it with the seal used on the container of the sample to find out if it tallied or not. In case the seal does not tally with the specimen, it would show that the sample had been tampered with...........the statement of the Food Inspector that he had sent specimen of the seal to the public analyst read with the report of the public analyst that he had received the specimen separately sent, leaves no manner of doubt that rules 17 and 18 were duly complied with by the Food Inspector and the grievance made by the respondent is untenable."

106. It is also not necessary that the sample along with the memorandum should be sent with one person and a copy of the memorandum and the specimen impression of the seal should be sent along with another person or that if they are sent with the same person they should be sent at different times (1978 (1) FAC 167, 1978 (1) FAC 246 and 1976 (2) FAC 61).

107. Reliance may also be placed upon on law laid down by Hon. Supreme Court in Kasim Kunju O Kunju vs. Ramakrishna Pillai 1976 (2) FAC 68 and Gyan Chand Vs. MCD 1979 (2) FAC 320 and 1981 (1) FAC 290.

108. In the case at hand no doubt the Food Inspector during his deposition CC No. 96/03 DA Vs. Jai Prakash Mittal Page 50 of 65 did not state that the specimen impression of seal was sent separately to the PA. However during his cross examination the witness categorically stated as "It is wrong to suggest that the sample impression separately was not with the Public Analyst. Vol. Same was deposited in the sealed packets as also mentioned by the PA in his report". Furthermore, it is apparent from Ex. PW1/E which is the receipt of the sample at the PA's office and which read as "....... sample no........ duly sealed along with copy of form VII sent separately in a sealed packet" that the same was sent in a sealed packed separately. Furthermore the PA's in his report Ex. PW1/G categorically stated as "the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector." Reliance may be placed upon the law laid down by the Hon. Apex Court in N. Sukumaran Nayyar Vs. FI 420 SC on Food Adulteration cases 19481997. The sample was collected at around 22.06.2002 and it was at about 04.00 p.m. and deposited with the PA on the next working day i.e. on 24.06.2002. There was thus no undue delay in depositing the sample with the PA. This itself rules out any tampering with the sample. Hence there is no violation and nothing on record to even remotely suggest that the accused was prejudiced or the sample tampered with before its analysis by the PA. Moreover if the accused had any apprehension/reasons to believe that the sample was tampered with than nothing stopped him from exercising the right available with him u/s 13 (2) of PFA Act which as already discussed above he did not exercise for reasons best known to him.

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 51 of 65 Use of colour.

109. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

110. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in CC No. 96/03 DA Vs. Jai Prakash Mittal Page 52 of 65 favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

111. Dal Moth Dhuli is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. Hence no colour could be added to Dal Moth Dhuli.

Injurious to health.

112. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid CC No. 96/03 DA Vs. Jai Prakash Mittal Page 53 of 65 down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

113. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".

114. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

115. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 54 of 65

116. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 the Hon'ble Apex Court observed as under:

"Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28."

Mode of test not mentioned by the PA in his report

117. It was also argued by Ld. Defence counsel that the PA did not specify the methods used by him for the analysis of the sample. Hence his report cannot relied upon. However I do not agree with the contentions of Ld. Defence counsel. Firstly, the sample was collected on 22.06.2002 and analyzed by the PA on 22.07.2002. At that time as per prescribed Form III as per Rule 7 (3) the Public Analyst was not obliged to specify the name of method/the test used by him for analyzing the sample. Form III was amended w.e.f. 29.01.2003 only and it was only after 29.01.2003 that the PA was directed to mention in his report the modes of analysis. Accordingly as there was no obligation on the part of the PA to mention the tests/method i.e. to say there was no Rule or statute or directions to do so the report cannot be rejected on the grounds claimed by the Ld. Defence counsel.

Paper Chromatography

118. It was further argued that the usual mode of analysis as per the DGHS CC No. 96/03 DA Vs. Jai Prakash Mittal Page 55 of 65 Manuals is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon Maya Ram Vs. State of Punjab 1978 (2) FAC 320, State Vs. Subhash Chand 2012 (2) JCC 1052 and Bansi Lal V. State of Haryana, 1993 (1) FAC 117. However I find no merit in the said contention of the Ld. defence counsel. Firstly, paper chromatography is just one of the method prescribed in the DGHS Manual. It is not clear which method was employed by the PA to give his report. Nonetheless paper chromatography being a prescribed method in DGHS Manual no conclusion can be drawn by the court that it is not a reliable method. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme CC No. 96/03 DA Vs. Jai Prakash Mittal Page 56 of 65 Court in Dhian Singh (Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ), where it was held as under:

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act."

19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."

Percentage of colour

119. It was further argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Moth Dhuli as Dal Moth Dhuli does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance CC No. 96/03 DA Vs. Jai Prakash Mittal Page 57 of 65 only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

Warranty.

120. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor had purchased the article from M/s Manohar Lal Gangadhar and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued that the vendor / accused had purchased the article from the above manufacturer / dealer vide Mark DA and the said fact was also made known to the Food Inspector. It was argued that in view of the categorical deposition of DW1 and DW2 i.e. Satish Kumar, partner CC No. 96/03 DA Vs. Jai Prakash Mittal Page 58 of 65 of M/s Manohar Lal Gangadhar it stands proved that the sample commodity i.e. Dal Moth Dhuli was purchased by the accused from M/s Manohar Lal Gangadhar and therefore the accused is entitled to benefit of section 19 i.e. warranty.

121. However the said plea of the Ld. defence counsel is not sustainable. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.

122. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of CC No. 96/03 DA Vs. Jai Prakash Mittal Page 59 of 65 Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.

123. In R.K. Aggarwal Vs. State of Haryana & Ors 1992 (2) FAC 62, it was held that the bare word of the vendor in the absence of the bill, cash memo or invoice was not sufficient to grant him the benefit of Section 19(2). Similarly in Bhola Ram Vs. State of Punjab 1985 (1) FAC 270, it was held that the bare word of the vendor in the absence of bill, cash memo or invoice was not sufficient to justify an order of summoning of the manufacturer. It was observed in para 3 as under:

"The bare word of the vendor in that regard would not be enough. There had to be something more to it. On the file, there is no bill, cash memorandum or invoice in respect of the article of food. Thus, no occasion for the present has arisen to employ even the provisions of Section 20A of the Act in impleading the petitioner as an accused in the case.".

124. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:

"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."

CC No. 96/03 DA Vs. Jai Prakash Mittal Page 60 of 65

125. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.

126. In the case at hand, the accused though placed on record one bill dated 20.03.2002 i.e. Mark DA and also examined Sh. Satish Kumar as DW2 however neither the deposition of Sh. Satish Kumar nor the bill proved to be of any help to the accused for numerous reasons. Firstly, the authenticity/ genuineness of the bill could not be proved despite the claims of DW2 that the bill was issued by his firm. Mark DA does not bear the signature of DW2 or DW1. It is not in the handwriting of DW2 as admittedly the Dal was sold through a broker namely Jai Kishan. The said Jai Kishan was never examined by the defence. Secondly, it is reflected in the said bill i.e. Mark DA at the bottom "Maal Hamari dukan se jaane ke baad hamari... ke antargat koi jimmedari nahi hai". The bill is torned at the bottom. The same seems to be deliberately done as from the language as discussed above and from the bill it is quite implied that the words which would have been on the torned piece not available before CC No. 96/03 DA Vs. Jai Prakash Mittal Page 61 of 65 the court would be "PFA" i.e. to say Jaane ke baad hamari PFA ke antergat koi jimmedari nahi hogi. This is what is usually written by the seller or supplier in the bills. Hence once the warranty was not extended vide Mark DA the vendor sold the same at his own peril. He cannot claim warranty which was never extended to him. Thirdly, when the sample was collected it was admittedly taken from an open gunny bag. Once it is established that the food article purchased by him was not sold in the same condition (when it was sold to him it was in sealed condition as stated by DW2 during his cross examination) as was purchased by him he cannot claim the benefit of warranty. It was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. It is not disputed by the defence that the sample was lifted from an open bag. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was CC No. 96/03 DA Vs. Jai Prakash Mittal Page 62 of 65 purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is retailer and not the manufacturer/supplier who no longer has control over the articles so sold. Lastly, the very fact that no bill was supplied to FI at the time of lifting of sample, nor any bill was handed over to him or the SDM/LHA till the filing of complaint neither the bill was even produced in the court till the stage of evidence itself proves that the accused was making false claims. If indeed he had purchased the articles from DW2 and sold it in the same condition as was purchased and he knew that he was entitled to the benefit of warranty I fail to understand why he waited for 9 long years to seek the benefit of warranty when he could have been absolved/discharge of his liability if he was indeed entitled to the benefit. Nothing stopped him all this while to move the court to exercise the power u/s 20A. The very fact that the plea of warranty was taken after 9 years of filing of the complaint itself proves that he was making false claims. Moreover when CC No. 96/03 DA Vs. Jai Prakash Mittal Page 63 of 65 he does not move the application or seek the indulgence of the court to exercise its power under section 20A but at the fag end of the trial brings the alleged supplier/manufacturer collusion between the two cannot be ruled out. More so when the testimony of the manufacture/supplier is to the effect to absolve the accused and also not placing on record concrete/material documents which are self incriminating. PA's report

127. It is well settled proposition of law that unless superseded the report of Public Analyst remained 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.

In the case at hand PA vide his report Ex PW/1/G found Tartrazine in the sample of the Dal Moth Dhuli so collected which is not permitted/ in violation of Rule 23, 28 and 29. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 22.07.2002 she was CC No. 96/03 DA Vs. Jai Prakash Mittal Page 64 of 65 a duly/ validly appointed Public Analyst.

128. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Moth Dhuli so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Moth Dhuli is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) (b) (j) &

(m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

129. Let the accused be heard separately on point of sentence.

Announced in the open Court                                    (Gaurav Rao)
on 27th March 2014                                         ACMMII/ New Delhi




CC No. 96/03
DA  Vs.  Jai Prakash Mittal                                                     Page 65 of 65

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