Delhi District Court
Da vs . Sunil Kumar Page 1/32 on 1 February, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 17/99
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
1.Sunil Kumar S/o Sh. Maheshchand M/s Goel Departmental Store, Shop No. 14, BBlock Market, Parshant Vihar, Delhi85 .......Vendor
2.Sh. Tara Chand, S/o Sh. Shankar lal M/s Shankar Lal Tara Chand 32, New Market, Ramesh Nagar, Delhi15 ......Supplier
3.M/s Shankar Lal Tara Chand 32, New Market, Ramesh Nagar, Delhi15 .......Supplier Firm
4.Delhi Kanodia Oil Mills, 2287, Kauria Pul, Delhi06 Head office: M/s Jyoti Prashad jagan nath, Naya Bans, Delhi.
......Manufacturer.
5.Sh. Bijay Kumar Sharma S/o Late Sh. S. N. Sharma (Since P.O vide order dated 01.09.2011) CC No. 17/99 DA Vs. Sunil Kumar Page 1/32 Production Cum Quality Control Officer, Delhi Kanodia Oil Mills, 2287, Kauria Pul, Delhi06 .........Nominee Serial number of the case : 17/99 Date of the commission of the offence : 28.12.1998 Date of filing of the complaint : 09.03.1999 Name of the Complainant : Sh. Satish Kumar Gupta, Food Inspector Offence complained of or proved : Section 2 (ia) (a) (b) (c) (f) (h) & (l) of PFA Act 1954 punishable u/s 16 (1A) read with Section 7 of the PFA Act, 1954.
Plea of the accused : Pleaded not guilty
Final order : Accused no. 1 to 3( Sunil Kumar, Tara
Chand and M/s Shankar Lal Tara
Chand), -Acquitted
Accused no. 4(Delhi Kanodia Oil Mills)
-Convicted
Accused no. 5(Bijay Kumar Sharma)
P.O
Arguments heard on : 04.02.2016
Judgment announced on : 04.02.2016
Brief facts of the case
1. In brief the case of the prosecution is that on 28.12.1998 at about 07.00 p.m., Food Inspector Satish Kumar Gupta and Food Inspector Sh. B. P. Saroha under the supervision and directions of LHA Sh. R. C. Verma, visited the premises of M/s Goyal Departmental Store, Shop No. 14, B, Block Market, Prashant Vihar, Delhi85, where accused Sunil Kumar who was found present conducting the business of sale of various food articles including Mustard Oil, for sale for human consumption and in compliance of CC No. 17/99 DA Vs. Sunil Kumar Page 2/32 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 Mustard Oil.
2. During the course of investigation, it was revealed that Sunil Kumar S/o sh. Mahesh Chand is the vendorcumincharge of and responsible person for day to day conduct of M/s Goel Departmental Store, Shop No. 14, BBlock Market, Parshant Vihar, Delhi85. The sampled commodity was purchased by Sunil Kumar from M /s Shankar Lal Tara Chand, 32 New market, Ramesh Nagar, Delhi15. Sh. Tara Chand S/o S. Shankar lal is the supplier cumproprietor of M/s Shankar Lal Tara Chand, 32, New market, Ramesh Nagar, Delhi15. The sampled commodity was manufactured by Delhi Kanodia Oil Mills, 2287, Kauria Pul, Delhi06 and its Head office is at M/s Jyoti Prasad Jagan Nath, Naya Bans, Delhi. The manufacturer firm has appointed its nominee Sh. Bijay Kumar Sharma S/o late Sh. S. N. Sharma, Production cum Quality Control Officer who is found to be the person incharge of and responsible for day to day conduct of the manufacturer company.
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 not conforming to the standards laid down under item no. A.17.06 of appendix 'B' of PFA Rules 1955 because sample shows presence of argemone oil. 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) (c) (f) (h) (l) of the PFA Act 1954 which is punishable under Section 16 (1A) of the Act read with Section 7 of the PFA Act.
4. After the complaint was filed, the accused was summoned vide order dated 09.03.1999. The accused after filing his appearance moved an application under Section CC No. 17/99 DA Vs. Sunil Kumar Page 3/32 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 (Calcutta) for its analysis vide orders dated 08.04.1999. The Director, CFL after analysing the sample opined vide its Certificate dated 11.05.1999 that " the sample of Mustard Oil is adulterated". The Director so opined as the sample was not conforming to the standards laid down under item no. A.17.06 of appendix 'B' of PFA Rules 1955 because sample showed presence of argemone oil.
5. In pre charge evidence, the prosecution examined one witness i.e. Sh. Satish Kumar Gupta, Food Inspector as PW1 , pre charge evidence was closed vide order dated 23.09.2008.
6 Charge for the violation of Section 2 (ia) (a) (b) (c) (f) (h) & (l) of PFA Act 1954 punishable u/s 16 (1A) read with Section 7 of the PFA Act, 1954 were framed against the accused persons vide order dated 21.04.2009 to which they pleaded not guilty and claimed trial.
7 In the post charge evidence the prosecution examined three witnesses i.e. Sh. Satish Kumar Gupta, Food Inspector as PW1, Sh. R. C. Verma, the then SDM/LHA as PW2, Sh. B. P. Saroha, the then SDM/LHA as PW3 and PE was closed vide order dated 06.05.2014.
8 Statement of accused U/s 313 Cr. P.C. was recorded on 07.01.2015 wherein the accused persons claimed themselves to be innocent. Despite opportunity given to accused persons, they did not lead any defence.
CC No. 17/99 DA Vs. Sunil Kumar Page 4/32 A brief scrutiny of the evidence recorded in the matter is as under: 9 PW1 Sh. Satish Kumar Gupta deposed that on 28.12.1998 he along wit FI B. P. Saroha under the supervision and direction of Sh. R. C. Verma SDM/LHA went to M/s Goyal Departmental Store, Shop No. 14, B Block Market, Prashant Vihar, Delhi85, where accused Sunil Kumar was found conducting the business of the food articles in the said shop including Mustard Oil. He deposed that he and LHA disclosed their identity and intention for taking the sample to which accused agreed. He deposed that then 3X1 litre of Mustard Oil (ready for sale) was taken as such in original sealed bottle having identical label declaration as reproduced in Form VI. He deposed that the sample was taken at 07:00 pm. He deposed that he tried his best to procure some pubic witness but as none agreed on his request before taking te sample FI B. P. Saroha agreed and joined as witness in the sample proceedings. He deposed that he divided the sample into three equal parts. He deposed that each original sample bottle containing the sample of Mustard Oil were separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that the vendor signature were obtained on LHA Slip bearing his number and signature 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. 234/ was given to the accused 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 a Notice u/s 14A was prepared addressing to M/s Shankar Lal Tara Chand Ex. PW1/D. He deposed that all these documents Ex. PW1/A to Ex. PW1/D was read over and explained to the accused in Hindi and after understanding the same accused signed at point A and he signed at point C and CC No. 17/99 DA Vs. Sunil Kumar Page 5/32 witness signed at point B, respectively. He deposed that the one counter part of the sample was deposited in intact condition with the PA on 29.12.1998 vide receipt Ex. PW1/E along with one copy of Memo in Form VII and another copy of Memo Form VII in a separately sealed envelope. He deposed that the remaining two counter part of the sample in intact condition along with two copies of Memo From VII in a sealed packet were deposited on 29.12.1998 with the LHA vide receipt Ex. PW1/F bearing his signature at point A and the signature of the LHA at point B, with the intimation that one counter part of the sample in intact condition has already been deposited with the PA. He deposed that all the copies of Memo of Form VII were marked with the impression of seal which was used to seal the sample counter parts. He deposed that on receipt of the PA report Ex PW1/G according to which sample was not conform to the standards laid down under item no. A.17.06 of appendix 'B of PFA Rules, 1955 because sample shows presence of argemone oil as mentioned there in at portion A. 10 He deposed that he further investigated and sent letter Ex. PW1/H to STO, Ward no. 63, seeking information with regard to M/s Goyal Departmental Store, the vendor,and as per its reply at portion A, the said store is not registered. He deposed that another letter Ex. PW1/J was sent to STO Ward No. 54 with regard to Shankar Lal Tara Chand and as per its reply at portion A this was a proprietorship firm with Sh Tara Chand as the sole proprietor and his residential address was also furnished. He deposed that the Goyal Departmental Store furnished its reply Ex. PW1/K bearing the signature of Sunil Kumar at point A in which he has stated that he is the responsible for the business of the said shop/firm and the license was in his father's name. His father is heart patient, so he is looking after the business of the shop. He deposed that photocopy of the MCD License Renewal Receipt mark A was also supplied by Sunil Kumar with the reply along with the medical documents of his father of the Apollo Hospital. He deposed that photocopy of CC No. 17/99 DA Vs. Sunil Kumar Page 6/32 the Apollo Hospital treatment papers of M. C. Goyal (father of accused Sunil) mark B (two pages) and the photocopy of the purchased bill mark C bearing the signatures of Sunil Kumar at point A were supplied to him by the accused Sunil Kumar during investigation. He deposed that the reply of proprietor of M/s Shankar Lal Tara Chand to his notice is Ex. PW1/L bearing the signatures of proprietor of M/s Shankar Lal Tara Chand at point A and the photocopy of purchase bill furnished by proprietor of M/s Shankar Lal Tara Chand is mark D. He deposed that he collected the nomination papers executed by M/s The Delhi Kanodia Oil Mills in favour of Vijay Kumar Sharma as mark E and the photocopy of affidavit and the photocopy of agreement for nomination of Sh. Vijay Kumar Sharma as mark F and mark G respectively. He deposed that after the completion of investigation, the complete case file along with all the statutory documents were sent to the Director, Sh. Ashok Bakshi through the SDM/LHA who after going through the entire case file, applied his mind and gave the sanction for prosecution Ex. PW1/M against the accused persons. He deposed that he filed the complaint Ex. PW1/N bearing his signature at point A. He deposed that the intimation letter Ex. PW1/O bearing the signature of the LHA at point A was sent along with the PA report by registered post to the accused person through LHA, which were not received back undelivered. He deposed that the photocopy of the Postal registration Receipt is Ex. PW1/P bearing the relevant entry at portion A & B. He deposed that he also got served the intimation letter along with PA report to Sunil Kumar and Tara Chand personally and the same was acknowledged by accused at portion A and B .
11 During his cross examination he admitted that sample bottles were in originally sealed condition and were not tampered with in any manner. He admitted that vendor made endorsement on the Notice in Form VI that he purchased the sample bottles CC No. 17/99 DA Vs. Sunil Kumar Page 7/32 from Shankar Lal Tara Chand, 32, New market, Ramesh Nagar, Delhi and also provided the copy of the purchase bill Mark C during investigation. He admitted that he was satisfied during the investigation that the sample commodity was manufactured by accused no. 04 and supplied by accused no. 02 to the vendor. He admitted that the complete label declaration was reproduced by him on the Notice in Form VI Ex. PW1/B. He denied the suggestion that the sample bottles were Aggmark and he has not correctly reproduced the label declaration on the Notice in Form VI. He stated that he is not aware that as per Rule 15 of PFA Rules, FI is required to furnish the particulars of the Aggmark label to the Public Analyst. He stated that he is not aware in case of Aggmark products, a company is required to maintain a laboratory to be headed by a Chemist approved by Aggmark Authority who tests the sample of every lot and the Aggmark labels are given to him and pasted by him only if the product is found conforming to the standard. He admitted that in those days as per Notification of the State Govt, the mustard oil could not be sold in loose condition but it could be sold in only sealed packets after the sample was tested by designated laboratories. He stated that he is not aware that for its purpose, twenty laboratories were declared competent to issue a certificate of fitness of food. He admitted that declaration to the effect was made on label that representative sample was tested by competent laboratory and certified unadulterated. He stated that he did not contact Kanodia Oil Mills to find out the name of the competent laboratory who had issued the certificate and did not ask for the certificate. He stated that he cannot affirm or deny that it was his duty to find out the name of the competent authority and ascertain from them whether they had in fact issued a certificate as declared on the sample bottles or not. 12 PW2 Sh. R. C. Mishra, the then SDM/LHA and PW3 Sh. B. P. Saroha, FI deposed on the same lines as PW1 in his examination in chief.
CC No. 17/99 DA Vs. Sunil Kumar Page 8/32 13 This so far is the evidence in the matter.
14. It is argued by Ld. Counsel for accused no. 1 that accused no. 1/vendor purchased the sample commodity/sealed bottles of Mustard Oil from accused no. 2 who was sole proprietor of accused no 3, and stored it properly and sold it in the same state as he purchased it from accused no. 2 and 3. The accused no. 2 and 3 have already admitted the same and he has already placed on record the original bill of purchase which also stand admitted by accused no. 2 and 3. Similarly, the accused no. 2 and 3 have stated that they purchased the sample commodity from accused no. 4 who is manufacturer of sample commodity. They stored it properly and sold it in the same state as purchased from accused no. 4. The accused no. 4 has admitted the same and he has already placed on record the original bill of purchase which also stand admitted by accused no. 4. So, the accused no. 1 to 3 have argued that they are not liable for adulteration found in the sample commodity and are entitled to benefit of warranty as envisaged under section 19 (2) r/w section 14 of the PFA Act. The Ld. Counsel for accused no. 4 has stated that the prosecution case is not worth credence as no independent public witness has been examined in the present case, there is divergence in the Report of PA and Certificate of Director CFL; and prosecution is bad in law.
15. 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. Warranty
16. It shall be useful here to reproduce Section 14 and Section 19 (2) of PFA Act, CC No. 17/99 DA Vs. Sunil Kumar Page 9/32 which read as under: "Section 19 (2):A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves
(a) that he purchased the article of food
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form;
and
(b) that the article of food while in his possession was properly stored ;and that he sold it in the same state as he purchased it."
17. Section 14 of the Act also provides as under: "Manufacturers, distributors and dealers to give warranty No (manufacturer or distributor of, or dealer in) any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
[Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.].
18. In order to seek benefit of section 19(2) r/w section 14 of the Act, vendor was obliged to prove (a) he had purchased the article of food in question from the manufacturer/distributor or dealer with a written warranty in the prescribed form; (b) the article of food was purchased, was properly stored while it was in his possession and (c) he sold in the same state which was purchased by him.
CC No. 17/99 DA Vs. Sunil Kumar Page 10/32
19. 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.
20. 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.
21. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerela, AIR 1995 SC 1983, 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."
22. In the case at hand, the sample was lifted from accused no. 1. The accused no. 02 who is the sole proprietor of the accused no. 03, admitted in reply to an application filed by the accused no. 01, that accused no. 03 supplied the sample commodity to accused no.
01. The original bill of accused no. 03 has also been produced on record by accused no.
01. The accused no. 3 has also admitted the issuing of said bill to accused no. 1. The CC No. 17/99 DA Vs. Sunil Kumar Page 11/32 accused no. 1 has also stated that he disclosed at the spot in an endorsement on Form, Notice VI that he purchased the sample commodity from accused no. 3 and also provided the copy of purchase bill to FI during investigation.
23. Similarly, the accused no. 04 has admitted that it is the manufacturer of the sample commodity and supplied the same to accused no. 03, in reply to an application filed by the accused no. 03 u/s 294 Cr.P.C. The original purchase bill of accused no. 04 has also been produced on record by accused no. 3, the copy of which was supplied by the accused no. 3 to the FI during investigation. The accused no. 4 has admitted issuing the said bill. The genuineness of bills is also established from testimony of the Food Inspector Satish Kumar. In his evidence, he stated that the accused no. 1 supplied the purchase bill Mark C issued by accused no. 3 to him during investigation and accused no. 3 also supplied the purchase bill Mark D issued by accused no. 4, to him during investigation. In his cross examination, he also deposed that ;
".............It is correct that vendor made endorsement on the Notice in Form VI that he purchased the sample bottles from Shankar Lal Tara Chand, 32, New market, Ramesh Nagar, Delhi and also provided the copy of the bill during investigation. It is correct that I was satisfied during the investigation that the sample commodity was manufactured by accused no. 04 and supplied by accused no. 02 to the vendor".
24. Now the next question is that whether the accused no. 1 to 3 fulfilled other conditions for taking benefit of warranty namely that the sample commodity was properly stored and sold in the same state in which it was purchased. The same stand established in favor of accused no. 1 to 3 from deposition of PW1 to PW3. The relevant depositions are:
CC No. 17/99 DA Vs. Sunil Kumar Page 12/32
The PW1 deposed in his crossexamination :
"It is correct that Mustard Oil was in originally sealed condition and were not tampered with in any manner.........."
The PW2 deposed in his crossexamination :
"It is correct that Mustard Oil was lying in originally sealed plastic bottles and accused Sunil Kumar gave the sample in the same condition as he had purchased the same from supplier firm"
The PW3 deposed in his crossexamination that : "It is correct that Mustard Oil was lying in originally sealed plastic bottles and was found properly stored when the sample of the same was lifted by us"
25. The accused no. 01 to 3 has fulfilled all the parameters for becoming entitled to benefit of warranty envisaged under 19(2) r/w Section 14 of PFA Act and cannot be held responsible for adulteration of sample commodity. So accused no 1 to 3 namely Sunil Kumar, Shri Tara Chand, and M/s Shankar Lal Tara Chand are acquitted for offence punishable under section 16 (1A) read with Section 7 of the PFA Act, 1954 for violating Section 2 (ia) (b) (c) (f)(h) & (l) of PFA Act 1954. Public witness
26. At the outset it was argued for accused no. 4 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.
CC No. 17/99 DA Vs. Sunil Kumar Page 13/32
27. However I do not agree with the contentions raised by the Ld. Defence counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC (SC) 483 has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties............ Similarly in Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies.
28. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1) FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an alternative contention that there was noncompliance with Section 10(7) of the Act inasmuch as the Food Inspector failed to procure the signatures of independent persons when he took the sample. The said contention is not available to the defence as the Food Inspector has given evidence that he really called the persons who were present in the canteen to affix their signatures after witnessing the sample but none of them obliged. A three Judge Bench of this Court has laid down the legal position concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases 491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud, J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence.CC No. 17/99 DA Vs. Sunil Kumar Page 14/32
In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.".
29. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon. Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of PW1 as is evident from the seizure memo and the receipt obtained for sale besides the report of the public analyst. The mere fact that the other witnesses cited by the prosecution had not supported the case of the prosecution was no ground to reject the testimony of PW1. In this case courts below have adopted a hyper technical approach to hold that there was no corroboration because there were minor discrepancies in the statement of PW1 and the other witnesses. It is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. If the statement of PW1 itself inspired confidence and the sample was found to be adulterated, the courts below should have returned a finding on merits and not to dismiss the complaint allegedly on the ground of non corroboration of the testimony of PW1.
State Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme Court
30. In held as under:
"It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspicious nor be rejected on that ground........... His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on it to prove the prosecution case.".
31. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as CC No. 17/99 DA Vs. Sunil Kumar Page 15/32 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."
32. The prosecution witnesses all through out in their deposition stated that the effort was made to associate customers, passersby and neighboring shopkeepers in the sample proceedings but none came forward. PW1 Food Inspector Satish Kumar Gupta categorically stated in his evidence that he tried to associate some pubic witnesses by requesting some customers and passersby but none came forward to join the sample proceedings.
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 the accused by the Food Inspector and the SDM. The prosecution story inspires confidence and there is no reason to disbelieve prosecution witnesses. CC No. 17/99 DA Vs. Sunil Kumar Page 16/32 Variation in Report of Public Analyst and Certificate of Director CFL
33. 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 entitled to benefit of doubt and acquittal as held in Kanshi Nath judgment (supra) 2005(2) FAC 219.
34. In the present case, there is consistent report of Public Analyst and Certificate of Director, CFL regarding the presence of Argemone Oil in the sample commodity. It is important to note that the accused persons are facing prosecution in the present case on account of presence of Argemone Oil in the sample commodity. So, variation of percentage of other constituents like Iodine Value, Saponification Value, Acid Value etc. in the Report of PA and Certificate of Director CFL, looses significance.
35. 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)........."
36. 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 CC No. 17/99 DA Vs. Sunil Kumar Page 17/32 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 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 : CC No. 17/99 DA Vs. Sunil Kumar Page 18/32 "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 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."
37. 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 ;CC No. 17/99 DA Vs. Sunil Kumar Page 19/32
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 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 CC No. 17/99 DA Vs. Sunil Kumar Page 20/32 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 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. 17/99 DA Vs. Sunil Kumar Page 21/32
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 would not be surprising if, assuming the best conditions there is some difference in CC No. 17/99 DA Vs. Sunil Kumar Page 22/32 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 argemone oil, 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.
38 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. 17/99 DA Vs. Sunil Kumar Page 23/32 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. 39 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:
"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".
Prosecution bad in law 40 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 9.03.1999 on the basis of the Public Analyst's report dated 21.01.1999. The Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because CC No. 17/99 DA Vs. Sunil Kumar Page 24/32 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 the sampled product. Reliance is placed upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal),
41. 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.
42 As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the 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 CC No. 17/99 DA Vs. Sunil Kumar Page 25/32 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.
43. 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.
44 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) }
45. 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 CC No. 17/99 DA Vs. Sunil Kumar Page 26/32 doing the same.
46. 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 sub committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Subcommittee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
47. 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 CC No. 17/99 DA Vs. Sunil Kumar Page 27/32 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. 48 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.
49 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 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 CC No. 17/99 DA Vs. Sunil Kumar Page 28/32 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."
50 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.
51 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.
CC No. 17/99 DA Vs. Sunil Kumar Page 29/32 Percentage of Argemone Oil
52. It was further argued that in the report of the Director the percentage of argemone oil has not been mentioned hence it cannot be concluded as to what was the exact quantity of the argemone oil detected to make it adulterated. However, I do not agree with the above contentions of Ld. Defence counsel. On reading of Item no. A 17.6 of Appendix B of the PFA Rules it becomes amply clear that no argemone oil could be added to the Mustard Oil . It states that the test for argemone oil should be "negative"". Therefore mere presence of argemone oil whatever may be the traces amounts to adulteration. The percentage is of significance only when the argemone oil 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 argemone oil is permitted in Mustard Oil, no question /argument can be raised that the Director did not mention the percentage of argemone oil as the mere presence of argemone oil amounts to adulteration. 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. 53 Ld. counsel for accused no. 4 has also argued that no reliance can be placed on the Certificate of Director, CFL as it does not even reveal which method was used for analysing the same commodity. 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: CC No. 17/99 DA Vs. Sunil Kumar Page 30/32 "7. The only other question canvassed before us is that the report of 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."
54 Ld. Counsel for the accused no. 4 has heavily relied on judgment of Rakesh Kumar Arora Vs. Department of PFA, GNCT of Delhi, Crl. No. 1069 of 2008 decided on 16.12.2014 to contend that the both mycotoxin and Argemon Oil give similar fluorescence under the UV Lamp and unless High Performance Liquid Chromatography is conducted, the two contaminates i.e. Argemon Oil and Mycotoxin could not distinguished. So, it is argued that in absence of HPLC Test which is not conducted in this case, as per CC No. 17/99 DA Vs. Sunil Kumar Page 31/32 the report of CFL, the accused cannot be convicted for the presence of Argemone Oil in the sample commodity. However, on the perusal of judgment of Rakesh Kumar Arora (supra), it is clear that the similar argument in the said case was not found favour with the Court . Moreover, the defence has not produced any documentary / oral evidence in support of this argument canvassed before me.
So, in view of aforesaid discussion, the accused no. 4, Delhi Kanodia Oil Mills is held to be guilty for adulteration of sample commodity and is convicted for the offence under section 16 (1A) read with Section 7 of the PFA Act, 1954 for violating Section 2 (ia) (b) (c) (f)(h) & (l) of PFA Act 1954.
Announced in the open Court (PRIYA MAHENDRA) on 04.02.2016 ACMMII/ New Delhi CC No. 17/99 DA Vs. Sunil Kumar Page 32/32