Delhi District Court
Da vs . Pritam Singh Page 1/31 on 25 January, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 16/06
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
Pritam Singh S/o Sh. Balbir Singh.
M/s Anupam Sweets
Shop No. 66C, Humayun Pur,
New Delhi110029
R/o 234, Humayun Pur, New Delhi110029
............VendorCumProprietor.
Serial number of the case : 16/06/14
Date of the commission of the offence : 27/10/05
Date of filing of the complaint : 06/01/06
Name of the Complainant : Sh. Ashok Kumar Singh, Food
Inspector
CC No. 16/06
DA Vs. Pritam Singh Page 1/31
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954 and Rule 30 of PFA Rules
1955, punishable u/s 16 (1A), read
with Section 7 of the PFA Act,
1954.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 25/01/16
Judgment announced on : 25/01/16
Brief facts of the case :
1.In brief, the case of the prosecution is that on 27.10.2005 at about 03.30 p.m., Food
Inspector A. K. Singh and Field Assistant Sh. Ashok Kumar, under the supervision and
directions of SDM/LHA Sh.S. P. Kaloria visited the premises of M/s Anupam Sweets, Shop
No. 66C, Humayu Pur, New Delhi, where accused Pritam Singh who was the vendor
cumpartner, was found present conducting the business of sale of various sweet articles
including Boondi Ke Ladoo, 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 PFA Act & PFA Rules) the Food
Inspector collected/ purchased the sample of Boondi Ke Ladoo.
2.During the course of investigation, it was revealed that Pritam Singh S/o Late Sh. Balbir
Singh was the vendorcumproprietor of M/s Anupam Sweets, Shop No. 66C, Humayun
Pur, New Delhi110029 at the time of sampling and as such he is incharge of and
responsible for day to day conduct of the business of the said shop.
3.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 Total Dye
content of the synthetic colour (Tartrazine and Sunset Yellow FCF) was found 206.82 ppm
CC No. 16/06
DA Vs. Pritam Singh Page 2/31
in sample Boondi ke Laddoo, which exceeded the prescribed maximum limit of 100 ppm.
Accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act,
the present complaint was filed for violation of provisions of Section 2 (ia) (a) (j) & (m) of
PFA Act 1954 and also violated the Rule 30 read with Rule 28 & 29 of the PFA Rules, 1955
which is punishable under Section 16 (1A).
4.After the complaint was filed, the accused was summoned. The accused after filing his
appearance moved an application under Section 13(2) of PFA Act to get analyzed the
second counterpart of the sample from Central Food Laboratory and consequent thereto
second counterpart of the sample as per the choice of the accused was sent to Director,
CFL (Pune) for its analysis vide orders dated 21.02.2006. The Director, CFL after
analysing the sample opined vide its Certificate dated 18.03.2006 that "sample bearing
no. 83/LHA/14307 contravenes Rule 30 of PFA Rules 1955". The Director so opined as the
sample was adulterated because Total Dye content of the synthetic colour (Tartrazine and
Sunset Yellow FCF) used was found to be 275.05 which exceeded the prescribed
maximum limit of 100 ppm.
5.In pre charge evidence, the prosecution examined one witness i.e. Sh. S. P. Kaloria, the
then SDM as PW1, pre charge evidence was closed vide order dated 20.02.2007.
6.Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act 1954 and Rule
30 of PFA Rules 1955, punishable u/s 16 (1A), read with Section 7 of the PFA Act, 1954
were framed against the accused Pritam Singh vide order dated 20.11.2007 to which
accused pleaded not guilty and claimed trial.
7.In the post charge evidence the prosecution examined two witnesses i.e. Sh. S. P.
Kaloria, the then SDM/LHA as PW1, Sh. Ashok Kumar, Food Inspector as PW2 and Sh.
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DA Vs. Pritam Singh Page 3/31
Ashok Kumar, Field Assistant as PW3. PE was closed vide order dated 10.04.2013.
8.Statement of accused Pritam Singh U/s 313 Cr. P.C. were recorded on 08.07.2013
wherein the accused claimed himself to be innocent. Despite opportunity given to
accused, he did not lead any defence.
A brief scrutiny of the evidence recorded in the matter is as under:
9.PW1 Sh. Ashok Kumar deposed that on on 27.10.2005 under his supervision and
direction FI A. K. Singh and FA Ashok Kumar went to M/s Anupam Sweets, Shop No. 66
C, Humayu Pur, New Delhi where Pritam Singh was found conducting the business of the
food articles in that shop including Boondi Ke Laddoo" meant for sale for human
consumption. He deposed that they disclosed their identity and intention for taking the
sample to which accused agreed. He deposed that before taking the sample, FI tried his
best to procure some public witnesses to join the sample proceedings but as none agreed
for the same, on his request FA Ashok Kumar agreed and joined as a witness. He
deposed that then 1500 gms of Boondi Ke laddoo ready for sale was taken from an open
tray bearing no label declaration. He deposed that the sample was taken at about 03:30
pm. He deposed that the sample was taken after breaking the laddoo into small pieces
with the help of a clean and dry spoon in a clean and dry tray and mixed by rotating the
spoon properly in the same tray by rotating it in all possible directions several times. He
deposed that FI divided the sample then and there into three equal parts by putting them in
three clean and dry bottles separately. He deposed that 40 drops of formalin was added in
each counter part of the bottle which was shaked for its proper mixing and dispensation.
He deposed that each bottle containing the sample then separately packed, fastened,
marked and sealed according to PFA Act and Rules. He deposed that the vendor's
signatures were obtained on his LHA Slip bearing his LHA Code number and signature
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DA Vs. Pritam Singh Page 4/31
and the wrapper of the sample bottles in such a manner that a portion of his signature
were on the wrapper as well as on the LHA Slip. He deposed that Rs. 90/ was given to the
vendor towards the sample price vide Vendor receipt Ex. PW1/A. He deposed that Notice
in Form VI Ex. PW1/B was given to the accused with his endorsement at portion A to A
bearing his signature at point A. He deposed that panchnama Ex. PW1/C was prepared.
He deposed that all these documents Ex. PW1/A to Ex. PW1/C were read over and
explained to the accused in Hindi and after understanding the same accused signed at
point A, witness signed at point B and FI signed at point C, respectively. He deposed that
accused gave the photocopy of his Driving License mark A. He deposed that the two
counter parts of the sample were deposited in intact condition with him on 28.10.2005 vide
receipt Ex. PW1/D bearing his signature at point A with the intimation that one counter part
of the sample has already been deposited in intact condition with the PA. He deposed that
the PA receipt is Ex. PW1/E. He deposed that Raid Report of this case is Ex. pW1/G
bearing his signature at point A. He deposed that the PA Report Ex. PW1/G was received
according to which the sample was found adulterated because total dye content of the
synthetic colour used exceeded the prescribed maximum limit of 100 ppm (206.82 ppm).
10.Further, he deposed that on completion of the investigation by the FI, the complete case
case file along with all statutory documents were sent through him to the then Director
(PFA) Sh. Diwan Chand, who after going through the case file, applied his mind and gave
his consent for prosecution Ex. PW1/H which bears his signature at point A. He deposed
that the complaint Ex. PW1/J (03 pages) was filed in Court by FI Sh. A. K. Singh bearing
his signature on each page, against the accused who was found to be vendorcum
proprietor. He deposed that the intimation letter Ex. PW1/K bearing the signature of his
successor Sh. Vishwendra, SDM/LHA at point A was sent along with the PA report by
registered post to accused as mentioned therein and the letter sent in the shop and
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DA Vs. Pritam Singh Page 5/31
residential address was not received back undelivered. He deposed that the photocopy of
the Postal Registration Receipt is Ex PW1/L bearing the relevant entry at portion A.
11.During his cross examination, he stated that there was no other shops at the spot other
than the shop of accused. He stated that they did not take sample from the nearby area on
that day. He stated that 1314 samples have been taken by the FI under his supervision
during his posting at different places. He stated that he is depositing in the Court as a
witness for the first time. He stated that he can not say that if the sample was not properly
homogenized the result of the food article will be different and wrong. He denied the
suggestion that sample has not been homogenized by the FI. He stated that the FI tried to
procure the public witness when he was present at the spot. He stated that they did not to
go any where in adjacent area to procure the eye witness for the sampling. He admitted
that the FI cut the laddoo by the knife and homogenized it by rotating it clockwise and
anticlockwise. He admitted that the Besan has inherently contained its own colour. He
stated that the sanction has not been granted in his presence. He denied the suggestion
that the sample was not properly homogenized.
12.PW2 Sh. A.K. Singh, Food Inspector, and PW3 Sh. Ashok Kumar, Field Assistant
deposed on the same lines as deposed by PW 1 in his examination in chief.
13.This so far is the evidence in the matter.
14.After hearing the rival submissions at bar and on careful appreciation of the material on
record, I am of considered view that prosecution has succeeded in proving the guilt of the
accused persons beyond reasonable doubt.
15.Its stand clearly proved from the deposition of prosecution witnesses especially Food
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DA Vs. Pritam Singh Page 6/31
Inspector Sh. A.K. Singh, corroborated by documentary evidence produced by the
prosecution i.e Vendor's Receipt Ex. PW1/A, Notice in Form VI Ex.PW1/B, Panchnama
Ex.PW1/C coupled with Certificate of Director CFL dated 18.03.2006 that on 27.10.2005
accused Pritam Singh was indeed selling boondi ke laddoos for human consumption at
M/s Anupam Sweets, Shop No. 66C, Humayunpur, Delhi32 being its Vendorcum
Proprietor and the sample of boondi ke laddoos was lifted from his shop i.e M/s Anupam
Sweets. The laddoos were adulterated on account of it containing synthetic colour viz.
Tartrazine more than permissible limit of 100 ppm.
16.Ld. Counsel for the accused has raised following issues to contend that prosecution has
miserably failed to bring home the guilt of accused and are entitled to benefit of doubt.
Public Witness
17.At the outset, it was argued that that no public witness was joined by the FI during the
alleged sample proceedings which is in violation of section 10 (7) and therefore the
accused is entitled to be acquitted on this ground alone. It was argued that the FI despite
the mandate of section 10 (7) did not deliberately join any public person i.e. customers,
neighbourers etc. in the sample proceedings and hence no reliance can be placed on the
alleged sample proceedings.
18.However, I do not agree with the contentions raised by the Ld. Defence counsel. The
Hon'ble Apex Court in Shriram
Labhaya Vs. MCD 19481997 FAC (SC) 483 has
categorically held that testimony of the Food Inspector alone, if believed, is sufficient to
convict the accused and there is no requirement of independent corroboration by public
persons unless the testimony suffers from fatal inconsistencies. The Apex Court observed
as "as stated earlier the Food Inspector was unable to secure the presence of independent
persons and was therefore driven to take the sample in the presence of the members of
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DA Vs. Pritam Singh Page 7/31
his staff only. It is easy enough to understand that shopkeepers may feel bound by
fraternal ties............ Similarly in Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been
held that there is no requirement of independent corroboration by public persons unless
the testimony suffers from fatal inconsistencies. Further reliance may be placed upon the
law laid down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs.
State of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs.
Pyare Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs.
Narayanasamy 1997 (2) FAC 203.
19.In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1) FAC 230, the
Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant
adopted an alternative contention that there was noncompliance with
Section 10(7) of the Act inasmuch as the Food Inspector failed to
procure the signatures of independent persons when he took the
sample. The said contention is not available to the defence as the
Food Inspector has given evidence that he really called the persons
who were present in the canteen to affix their signatures after
witnessing the sample but none of them obliged. A three Judge
Bench of this Court has laid down the legal position concerning
Section 10(7) of the Act in the case of Shri Ram Labhaya vs.
Municipal Corporation of Delhi and Another 1974 FAC 102 :
(1974) 4 Supreme Court Cases 491. We may profitably extract the
observations made by Hon'ble Y.V. Chandrachud, J. (as His Lordship
then was):
"The obligation which Section 10(7) casts on the Food
Inspector is to 'call' one or more persons to be present when he takes
action. The facts in the instant case show that the Food Inspector did
call the neighbouring shopkeepers to witness the taking of the sample
but none was willing to cooperate. He could not certainly compel
CC No. 16/06
DA Vs. Pritam Singh Page 8/31
their presence. In such circumstances, the prosecution was relieved
of its obligation to cite independent witnesses.".
20.In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon. Apex Court held
as under :
".......Corroboration of the statement of main witness is not the
requirement of law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the
testimony of PW1 as is evident from the seizure memo and the
receipt obtained for sale besides the report of the public analyst. The
mere fact that the other witnesses cited by the prosecution had not
supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper
technical approach to hold that there was no corroboration because
there were minor discrepancies in the statement of PW1 and the
other witnesses. It is not the number of witnesses but it is the quality
of evidence which is required to be taken note of by the courts for
ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number
of witnesses is required for proof of any fact. If the statement of
PW1 itself inspired confidence and the sample was found to be
adulterated, the courts below should have returned a finding on
merits and not to dismiss the complaint allegedly on the ground of
non corroboration of the testimony of PW1.
held as under:
21.State Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme Court
"It is not the law that the evidence of Food Inspector must necessarily
need corroboration from independent witnesses. The evidence of
the Food Inspector is not inherently suspicious nor be rejected on
that ground........... His evidence is to be tested on its own merits and
if found acceptable, the Court would be entitled to accept and rely on
it to prove the prosecution case.".
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DA Vs. Pritam Singh Page 9/31
22.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 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."
23.The prosecution witnesses PW1 to PW3 have consistently deposed that Food Inspector
Sh. A. K. Singh tried his best to involve public witnesses in the sample proceedings but
none agreed. It is a known fact that the general public is wary of being involved in criminal
investigations/implementation of administrative powers/enforcement of law seeking to curb
antisocial evils. Normally, association of public witnesses is not possible as public is not
prepared to suffer any discomfort/inconvenience for the sake of society. The prosecution
story, which is otherwise credible and trustworthy, cannot be doubted merely on account of
absence of public witnesses. In the present case lifting of sample is
admitted/unequivocally proved and there is nothing on record to doubt prosecution
witnesses. The defence has brought nothing on record to show the motive of false
implication of accused by the Food Inspector and the SDM. The prosecution story
inspires confidence and there is no reason to disbelieve prosecution witnesses.
Breach of Rule 14
24.It was also one of the arguments that there was violation of Rule 14 of the Prevention of
Food Adulteration Rules, 1955 at the time of sampling. It was argued that at the time
when the sample was collected, the Food Inspector failed to clean the sample bottles, tray
and the spoon with which the sample was mixed and poured in the bottles. It was argued
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DA Vs. Pritam Singh Page 10/31
that the colour was already sticking to the sample bottles and it was this colour which was
detected by Director CFL. It was argued that Rule 14 of the Act is mandatory and not
directory and in case there is no strict adherence to Rule 14, benefit has to be given to the
accused. Reliance was placed on the law laid down in State Vs. Suresh Kumar and ors
2010 (2) FAC 204.
25.However, I differ with the contentions as raised by the Ld. Defence counsel.
26.I have heard the Ld. Defence counsel, gone through Rule 14 and the case laws relied
upon by the Ld. defence counsel and perused the deposition of the Food Inspector and
other complainant witnesses. After going through the material available on record and the
law cited by the Ld. defence counsel, I am of the opinion that there was no violation of
Rule 14 in this case. Rule 14 of the Act envisages that at the time when the Food
Inspector collects the sample, he shall ensure that not only the container/bottle is clean but
it is also dried. Furthermore, the container should be such so as to prevent any leakage,
evaporation and in case of dry substance entrance of moisture. The container should be
sealed carefully to avoid the above. While sampling the various types of articles of food,
the Food Inspector should make use of clean and dry appliances. He should use clean
and dry spoon or other instruments for sampling and avoid using his own hands to mix the
same. Furthermore he should sample the article in hygienic conditions. Reliance may be
placed upon Varghese Vs. Food Inspector, 1989(2) FAC 236.
27.I have gone through the relevant deposition of prosecution witnesses PW1 to PW3. The
PW2 (Food Inspector) clearly deposed during his evidence that the boondi ke laddoos
were mixed by him with the help of the said clean and dry spoon in a clean and dry tray.
He also stated that bottles used for storing the sample were dry and clean. PW1 and PW3
also deposed on the same lines. From the deposition of the prosecution witnesses, it is
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DA Vs. Pritam Singh Page 11/31
established that proper procedure for sampling was adopted and that the sample bottles
as well as spoon and tray used were clean and dry. There is no reason to disbelieve the
prosecution witnesses. The defence has not proved any motive for FI or Field Assistant to
use contaminated or colored instruments or bottles for sampling to falsely implicate the
accused. This defence appears to have been coined by the accused as an afterthought to
save accused.
28.Moreover as per Section 114(e) of Indian Evidence Act, the judicial and official acts are
presumed to be regularly performed.
"114 Court may presume existence of certain facts 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"
29.The above provisions and the legislation is based upon the maxim "omnia
praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly and regularly
done. This presumption chiefly applied to official acts. It means that an official act is
proved to have been done, it would be presumed to have been regularly done. The
presumption under Section 114 (e) could only be nullified by clear and cogent evidence
to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1) Punj. LR 69
,
Zeenat Vs.
Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs. Assessar, 5 OLJ 179)".
30.In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it was observed as
under:
"The Food Inspector and the Public Analyst are public
servants.......once it is satisfactorily established that the Food
Inspector after taking the sample divided in into three parts, sealed
the same, forwarded one of the parts to the Public Analyst, for
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DA Vs. Pritam Singh Page 12/31
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.".
31.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. In Lalji Bhai Amrit Lal Vs. State of Gujarat
2010 (2) FAC 163, it has been held as under:
"it is the question of fact in each case as to whether it has
been proved that the bottles were dried and cleaned in which
samples were taken. It must be noted that it is not requirement of law
even of Rule 14 that bottles should be made clean and dry by Food
Inspector himself or bottle should be made clean and dry in the
presence of Food Inspector."
32.In the light of the abovesaid provision and law laid down by superior courts, it is
presumed that the Food Inspector complied with Rule 14 as affirmatively stated by him in
his deposition. The defence is required to bring something concrete for rebutting the said
presumption than simple denial that Rule 14 was not followed by Food Inspector while
taking the sample.
33.In fact from the endorsements made by the accused on the vendor's receipt i.e. Ex.
PW1/A as well as notice in Form VI i.e. Ex. PW1/B no doubt remains that the colour was
added by the accused and that all the instruments/ intermediaries used in sampling were
clean and dry and not coloured. The accused had himself made an endorsement in the
above documents to the effect "boondi laddoo is prepared for sale from besan, sugar,
vanaspati, colour and pista pieces".
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No Homogenization/Mixing of Sample
34.It is one of the arguments of Ld. Defence Counsel that the sample was not properly
mixed/homogenized at the time when it was lifted. The sample sent to Public Analyst and
Director, CFL were not representative and this is the reason for variation in the Report of
Public Analyst and Certificate of Director, CFL. The Public Analyst found the Tartrazine as
206.82 ppm whereas the Director, CFL found it to be 275.05. It is argued that this variation
in itself proved that the sample were not representative. Heavy reliance was placed upon
Kanshi Nath Vs. State 2005(2) FAC 219, Delhi Administration Vs. Narayan Dass
2012 (1) FAC 272, State Vs. Mahender Kumar 2008 (1) FAC 177, Nortan Mal Vs. State
of Rajasthan 1995 (3) RCR 311 and State Vs. Rama Ratan Malhotra 2012 (2) FAC
2012.
35.I do not agree with the contention of the Ld. Defence Counsel that the sample of boondi
ke laddoo was not properly mixed. Firstly, the Food Inspector as well as Field assistant
clearly stated in their deposition that sample was taken after cutting the laddoos in small
possible pieces and properly mixing them with the help of clean and dry spoon. So their
testimony establishes that sample was taken after properly mixing/homogenizing laddoo.
Besides putting a bald suggestion that representative sample was not taken, nothing
concrete has been placed on record by the defence to show that the proper method for
sample lifting was not followed or the representative sample was not taken.
36.Secondly, there is no requirements of homogenization or taking of representative
sample prior to its lifting either under the Act or Rules appended therein. There is no
requirement of mixing or making the sample i.e. the laddoo 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:
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"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."
37.In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full Bench of the Hon.
Apex Court observed as under:
"It was argued with reference to food analysis second edition by
Manard A. Joslyn that the sample must be a representative
sample ..........
We
are not impressed by this argument at all .
Representative sample has got a different connotation, meaning and
purpose in commercial transactions.......In our statue the ingredient
of offence is as mentioned in the 7th section of the Act,
manufacturing for sale, storing, selling or distributing any adulterated
food. If
the food sold to the food inspector is proved to be
adulterated, it is immaterial whether the sample purchased by
him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such
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DA Vs. Pritam Singh Page 15/31
sample is liable to be punished under section 16 (1) (a) (i) of the
Act.
38.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
CC No. 16/06
DA Vs. Pritam Singh Page 16/31
sample of Ice cream could be taken by the Food Inspector only by
stirring the entire mass of ice cream available for sale and taking the
sample thereafter. Hence there is no justification to apply any rule of
representative sampling".
39.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."CC No. 16/06 DA Vs. Pritam Singh Page 17/31
40.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.
41.From the aforesaid law it is clear that the question whether the sample is a representative sample has to be seen taking into account the nature of goods sold and the usual mode of supply to the customer at the time of sale. When a customer goes to the shop to buy laddoo etc the seller/vendor does not give the laddoo after cutting and mixing the same with the help of spoon, knife or any other instruments in the tray/vessels used for storing the same in the shop. Generally, laddoo is sold in laddoo form and cutting & mixing the same would break the laddoo and the purchasers/customer will not buy such laddoo from the vendor. The vendor merely takes out laddoo with the help of spoon or any other instruments or may be sometimes with his hands and sells it to the customers. The mode used for purpose of sale should not be made different only if it is sold to the Food Inspector. The Act has been enacted for giving protection to the customers/consumers of food articles and food articles is not sold to the customer after homogenization. So, insisting on Homogenization will defeat the entire purpose of the Act. Still by way of abundant caution, the Food Inspector has as stated in his deposition, made all possible efforts to make the sample representative and there is nothing on record to disbelieve the Food Inspector.
Variation in Report of Public Analyst and Certificate of Director CFL
42.The Ld. Counsel for accused has vehemently argued that solely on account of the variation in the report of Public Analyst and Certificate of Director, CFL, the accused are CC No. 16/06 DA Vs. Pritam Singh Page 18/31 entitled to benefit of doubt and acquittal as held in Kanshi Nath judgment (supra). I do not agree with the said argument.
43.In the present case, there is consistent report of Public Analyst and Certificate of Director, CFL regarding the presence of Tartrazine and Sunset Yellow FCF colour in the sample more than the permissible limit of 100 ppm. As per the report of Public Analyst it was found it to be 206.82 ppm and Director CFL found it to be 275.05 ppm. So, there is no substantial variation in the report.
44.Moreover, the said argument is untenable on account of Section 13(3) of Prevention of Food Adulteration Act,1954 which reads as under:
"13.............
(3) The certificate issued by the Director of Central Food Laboratory (under subsection 2B) shall supersede the report given by the public analyst under subsection (1)........."
45.It is no gainsaying that there is a settled law that once the appellant exercise the right U/Sec. 13 (2) of the Act, the Certificate of the Director, CFL stands completely wiped out by the certificate of the Director, CFL, however, the accused can still show that in the facts of the given case and of concrete objective grounds that the sample sent to the Director, CFL, was not a representative sample as held in number of cases. The same proposition of law was also laid down by our own Hon'ble Delhi High Court in case of MCD Vs. Bishan Sarup, Crl. Appl. No. 48D of 1972 FAC 273. It is observed as under in the said case :
1.The consideration of the timelapse between the date of the taking CC No. 16/06 DA Vs. Pritam Singh Page 19/31 of the sample, the launching of the prosecution and the date when the sample was sent to the Director of Central Food Laboratory is relevant only for this purpose. Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to subsection (5) of Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated therein. The presumption attaching to the certificate again is only in regard to what is stated in it as to the contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on the record the sample sent for analysis to the Director could not be taken to be a representative sample of the article of food from which it was taken and if this contention is found to be correct, conviction based on the certificate will not be sustainable. Reference on this aspect of the question may be made to the observations of the Division Bench of the Punjab High Court in Municipal Corporation of Delhi Vs. Nirajan Kumar & Others (2).
"We would like to clarify that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report, of the Central Food Laboratory was due to certain factors for which an accused could not be held responsible. In short, the finality and conclusiveness are only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed."
11. The same view was taken by the Division Bench of Gujarat High Court in Mohanlal Chhaganlal Mithaiwala V. Vipanchandar R. Gandhi and another (3) where Shelat, J. (as he then was) speaking for the Court observed as under : "The certificate of the Director of 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 CC No. 16/06 DA Vs. Pritam Singh Page 20/31 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. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, chemical or otherwise by the ingredients of the ghee used in the preparation being mixed with the other facts, 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."
46.I do not find any substance in the submission of Ld. Counsel for accused that merely on account of divergence in the Certificate of the Director, CFL and Public Analyst, it is to be presumed that the sample was not representative. The Hon'ble High Court of Delhi in the case of Bishan Sarup (supra) clearly laid down that the accused has to prove a concrete objective ground to establish that the sample sent to Public Analyst and Director CFL was not a representative sample. The contradiction in two reports is not such a concrete objective ground in itself to infer that sample was not representative sample. The accused has to show something more for proving that the representative sample was not taken.
This proposition finds strength from the following judgments ; A) D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the CC No. 16/06 DA Vs. Pritam Singh Page 21/31 proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the Certificate of the Director and the PA.
B) The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under :
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
C) In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and CC No. 16/06 DA Vs. Pritam Singh Page 22/31 the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
D) In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was bserved by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under: :
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".CC No. 16/06 DA Vs. Pritam Singh Page 23/31
E) In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under :
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."
F) In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
G) In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein."
H) In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It CC No. 16/06 DA Vs. Pritam Singh Page 24/31 would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
I) In its latest judgment titled as Food Inspector, Department of PFA, Govt. of NCT of Delhi, Vs. Kailash Chand Dated 31.08.2015, the Hon'ble Apex Court remanded back the appeal/ file to the Hon'ble High Court of Delhi against acquittal order passed by the Hon'ble High Court of Delhi in sample commodity, where, the accused was given the benefit of doubt because of variation in report of Public Analyst and Director CFL in moisture, damage grain and weevilled, beyond permissible limit of 0.3%. Taking note of Section 13 (3) of PFA Act providing that the report of Director CFL shall supercede the report given by Public Analyst and Rules 23, 28 & 29 of PFA Rules, which completely prohibits addition of synthetic red colour, the Hon'ble Supreme Court remanded the matter to Hon'ble High Court of Delhi to consider the case in light of the statutory provision and the provisions enshrined under PFA Rules.
47.So, in view of the law discussed above, the prosecution's case cannot be seen with doubt only because of some variation in the report of two experts i.e P. A and Director, CFL. The law gives supremacy and primacy to report of Director,CFL and the report of Public Analyst get effaced from record on receiving report of Director,CFL. Then, merely on account of some divergence in report of Public Analyst and Director, CFL, it cannot be CC No. 16/06 DA Vs. Pritam Singh Page 25/31 presumed that the sample sent to Director, CFL is not representative. Such an inference is not in consonance with mandate of statue as well as law laid down by Hon'ble Apex Court.
48.Further, there in merit in the submission of Ld. SPP for the complainant that colour is added to food article like laddoo at the time of its making. Unless the mixing of colour is done by any machine or any mechanical process,the colour is not uniformly mixed. There will always be a situation where the colour of quantity may be more in some pieces of laddoo and others. The mixing of laddoo is generally done by the labours/Halwai with his hands which results into uneven mixing of colour. This results into the different quantity of colour in two samples sent to two experts. This validly explains the difference of quantity of colour in two samples sent to Public Analyst and Director,CFL.
49.Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under:
CC No. 16/06 DA Vs. Pritam Singh Page 26/31
"any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".CC No. 16/06 DA Vs. Pritam Singh Page 27/31
Prosecution bad in law
50.It was also one of the argument of Ld. Defence counsel that the prosecution itself was bad in law. It was argued that the prosecution was launched on 06.01.2006 on the basis of the Public Analyst's report dated 08.11.2005. It was argued that as per the Public Analyst's report she used Chromatography method to analyze the sample/ detect the presence of artificial colour if any in the sampled product. Relying upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal), the Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because though Section 23 (which empowers the Central Government to make rules to carry out the provisions of the Act) was amended w.e.f. 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of Section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used however the methods of analysis to be adopted were specified for the first time only w.e.f. 25.03.2008 after clause 9 was inserted in Rule 4. It was argued that therefore any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or for that matter the Director, CFL could adopt for analysis of sampled product.
51.However, I do not agree with the contentions of Ld. Defence counsel. I have perused the provisions of the Prevention of Food Adulteration Act 1954 as well as Food Adulteration Rules 1955.
52.As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the CC No. 16/06 DA Vs. Pritam Singh Page 28/31 Act. The Public Analyst is appointed by the government Central or State by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL the report is final/holds good for all purposes/ remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43. 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. 24.04.2003 she was a duly/ validly appointed Public Analyst.
53.Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act.
54.As per Section 13 (2) of the Act the Public Analyst's report can be challenged by getting the counterpart of the sample analyzed by the Central Food Laboratory. The analysis at the Central food Laboratory is done by the Director whose report has been made conclusive and final as far as the results of the analysis is concerned. {Section 13 (3) } CC No. 16/06 DA Vs. Pritam Singh Page 29/31
55.As per Rule 3 (a) of PFA Rules one of the most important and primary function of the Central Food Laboratory is to analyze the sample of food and give a certificate of analysis accordingly. As per Rule 3 (2) CFL, Pune was designated/ specified laboratory at the relevant time to analyze the sample of food article lifted from Delhi. Prior to that CFL, Calcutta was assigned the said function/duty and presently CFL, Mysore is doing the same.
56.At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same read as:
The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under subclause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A subcommittee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the CC No. 16/06 DA Vs. Pritam Singh Page 30/31 purpose. These methods of tests having been recommended by the Subcommittee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
57.The Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee i.e. Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
58.Therefore, on the day of analysis of the sample in question the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. Furthermore on the day of analysis of the counterpart of the sample in question CFL, Pune was a designated/ specified laboratory as per the Act and Rules appended therein to analyze the sample in question and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
59.As far as Pepsico's case (supra) is concerned, the judgment cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgment relied upon by the Ld. Defence counsel read as:
"34. As far as Grounds 1 and 2 are concerned, the High Court CC No. 16/06 DA Vs. Pritam Singh Page 31/31 was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
60.It is to be seen that in that case as observed in para 34 even the laboratories where the tests were to be performed were not specified. But as is the case herein the analysis was done by CFL, Pune which was a specified/ designated laboratory to analyze the sample as per Rule 3 r/w section 13 of the Act. Moreover in Pepsico's case it was held that the percentage of Carbofuran detected in the sample was within the tolerance limits prescribed for sweetened carbonated water. Apart from that, the sample in question in the Pepsico's case was synthetic food whereas Boondi ke laddoo is Proprietary food. CC No. 16/06 DA Vs. Pritam Singh Page 32/31
61.Regarding the pick and choose method as discussed above the Central Committee for Food Standards, constituted by the Central Government as per Section 3 of the PFA Act to give effect to the scheme and purpose of the Act, considered this aspect and directed and specified the methods to be adopted uniformally for analysis of the food product to remove the anomaly which may occur due to use of different methods by different experts in respect of the same food product. These adopted methods were used prior to their being specifically notified in Rule 4 (9) which came into force w.e.f. 2008 and which had led to the adulterators being prosecuted and punished even by the Hon'ble Apex Court in numerous rulings upto the year 2008 also.
Paper Chromatography Test.
62.It was further argued that the usual test for detecting colour is Paper Chromatography Test which is not a reliable test to conclude the presence of any colouring matter. Reliance is placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and Maya Ram Vs. State of Punjab Criminal Revision No. 705 of 1981 decided on 15.07.1983. It is also argued that as the Certificate of the Director, CFL nowhere specified the method used by him to analyse the sample and he has simply written about using DGHS method, the same cannot be relied on to return the finding of guilt against the accused persons.
63.I do not agree with the contentions raised by Ld. Counsel for defence. In Delhi Administration Vs. Manohar Lal 2013 (1) FAC 404, the Hon'ble High Court of Delhi upheld the validity of Paper Chromatography Test and laid down that the authenticity of Photo Chromatic Test is only relevant in cases where the expert is to determine the presence of permitted or unpermitted coal tar dye. It was observed as under :
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. was the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ CC No. 16/06 DA Vs. Pritam Singh Page 33/31 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".
64.The present case pertains to sample of boondi ke laddoos. Rule 28 r/w Rule 29 & 30 of PFA Rules, 1955 allows the presence of permitted colour to the tune of 100 ppm in laddoos. Hence, even the permitted colours mentioned in Rule 28 of PFA Rules can be added only up to 100 ppm in laddoos. So, the expert is not to determine whether the colour present in sample is permitted or unpermitted colour but whether the colour present in sample is exceeding the permissible limit i.e. 100 ppm. So, the judgments relied on by the Ld. Counsel for the defence i.e. Maya Ram and Subhash Chand (supra) are not applicable to the present case.
65.Regarding the second contention of name of test not being mentioned in the Certificate of Director, CFL, the said contention of the Ld. Counsel for defence is not sustainable on account of law propounded by Hon'ble Supreme Court in Dhian Singh Vs. Municipal Board Saharanpur and Anr. AIR 1970 SC 318. It was observed as follows: "7. The only other question canvassed before us is that the report of CC No. 16/06 DA Vs. Pritam Singh Page 34/31 the analyst could not have afforded a valid basis for founding the conviction as the data on the basis of which the anlalyst had reached his conclusion is not found in the report or otherwise made available to the court. We are unable to accept this contention as well. It is not correct to say that the report does not contain the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's case referred to earlier. 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, 1963 AII LJ 765 = (AIR 1964 AII 270) wherein it is observed:
"that the report of the pubic analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode of 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 not adulterated as defined in Section 2 (1) of the Act."
Decision :
66.In view of my above discussion, as the total dye/colour quantity/content in the sample of boondi ke laddoo so collected was found at 275.05 ppm which was in excess of the maximum prescribed limit which is 100 ppm as per Rule 30 of PFA Rules. The accused Pritam Singh is convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 and provisions of Rule 30 of PFA Rules, punishable U/Sec 16 (1) (A) r/w Sec. 7 of PFA Act.
67.Let, the accused be heard separately on point of sentence.
Announced in the open Court (PRIYA MAHENDRA) on 25.01.2016 ACMMII/ New Delhi CC No. 16/06 DA Vs. Pritam Singh Page 35/31