Delhi District Court
Delhi Administration / Food Inspector vs Rajesh Gupta on 2 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 219/04
Unique Case ID No. 02403R0485062004
Date of Institution: 26.10.2004
Date of reserving judgement: 08.06.2016
Date of pronouncement: 02.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Rajesh Gupta
S/o. Sh. Ram Khilari Lal Gupta
R/o. A-130, Aruna Park,
Shakarpur, Delhi-92 ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Rajesh Gupta is stated to be the vendor-cum-proprietor of M/s. Priya Tea Stall (Kiosk), from where the food article, that is, 'Vanaspati' was lifted for sampling.
CC No. 219/04 Page 1 of 382. As per the complaint, on 19.07.2004, the food officials consisting of Food Inspector (FI) Jeet Ram and Field Assistant (FA) Pratap Raj under the supervision of Local Health Authority (LHA)/SDM Sh. S. K. Sachdeva reached along with their staff at the premises of M/s. Priya Tea Stall, Kiosk No. 29, Dr. Rajinder Prasad Road, New Delhi-01, where the accused was found conducting the business of food articles and having stored Vanaspati which was lying in an open tin bearing no label declaration, meant for use in preparation of food articles for sale. The sample was then lifted as per procedure prescribed under the PFA Act and Rules after giving notice to the vendor and offering price of the same. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 09.08.2004, the PA found the sample to be not conforming to the standards of vanaspati because it gave negative Baudouin Test. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 26.10.2004 alleging violation of section 2(ia)(a) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was CC No. 219/04 Page 2 of 38 summoned vide order dated 26.10.2004. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 27.12.2004, opining the sample to be not conforming to the standards of Vanaspati as per PFA Rules because it gave negative Baudauin Test.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Sh. S. K. Sachdeva and PW-2 FI Jeet Ram. On the basis of their depositions, charge was framed against the accused on 09.12.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act to which he pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-3 FA Pratap Raj in post-charge stage.
5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 19.07.2004 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 750 grams of Vanaspati after mixing it in the open tin in which it was lying using a clean and dry karchi (serving spoon), dividing it CC No. 219/04 Page 3 of 38 in three parts and putting in clean and dry bottles, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A vide which the price of the commodity was offered to the vendor which he refused to accept on the ground that vanaspati was not meant for sale, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. The accused furnished allotment receipt Ex. PW- 1/D. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/F and two remaining counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW- 1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-2 FI. He sent letter Ex. PW-1/H to the STO Ward No. 3 to ascertain the constitution of the business concern. Thereafter, sanction Ex. PW-1/J was taken from the Director PFA and the complaint Ex. PW-1/K was filed in the court. Intimation letter Ex. PW-2/A along with copy of PA report were sent to the accused vide postal receipt Ex. PW-2/B. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that no sample was taken or that the vanaspati was not for use / sale or that the accused had been falsely implicated.
6. Statement of the accused under section 313 CrPC was recorded on 17.11.2012 wherein he denied the allegations and pleaded innocence. Though he admitted that he used to sell food articles at Kiosk No. 29, yet he claimed that he was not selling vanaspati and no vanaspati was stored CC No. 219/04 Page 4 of 38 by him in any tin. He claimed that no vanaspati was taken from his shop, that no public witness was joined and that his signatures were obtained on blank papers. He questioned the report of PA on the ground that no sample was taken from his shop and also that of CFL on the ground that representative sample was not taken. He expressed intention to lead evidence in defence but no such evidence was led by him.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 27.12.2004 which as per section 13(3) and (5) of PFA Act is final and conclusive and it has rather conformed the findings of PA with respect to the negative Baudouin Test. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended that the matter would not be covered under PFA Act as the vanaspati was meant to be used in preparation of other food articles like pakoras and samosas but was not for direct sale to any person. It is then strongly submitted that there are variations in the report of PA and CFL which would conclude that the samples were not representative and thus, no reliance can be placed on these reports. It is then submitted that the karchi and bottles were not made clean and dry at the spot it is possible that the CC No. 219/04 Page 5 of 38 sample got contaminated due to the same. It is pointed out that no public person was joined by the FI despite their presence at the spot.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. The charge framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. It is to be understood that the accused is not facing charge for violation of section 2(ia)(b) of PFA Act for which it has to be established that the food article contained any substance affecting injuriously the nature, substance or quality thereof.
11. The commodity in the present case is "Vanaspati" which is a standardized food article and has to be tested as per the standards prescribed. This article falls in Item No. A.19 of Appendix-B of PFA Rules 1955 wherein standards have been prescribed statutorily which are required to be complied with.
CC No. 219/04 Page 6 of 3812. As per the said standards prescribed, every such product has to contain raw or refined sesame (til) oil in sufficient quantity so that when the vanaspati is mixed with refined groundnut oil in the proportion of 20:80, the colour produced by the Baudouin Test shall not be lighter than 2.0 red unit in a 1 cm cell on a Lovibond Scale. Various other standards have been prescribed but they are not in issue in the present case, as the sample was conforming to other standards.
13. It is pertinent to note that both the chemical experts, PA and CFL, have found the sample to be not conforming to standards due to negative Baudouin Test. Thus, the reports of the two analysts are in conformity to each other on this count and not at any variance.
14. But the defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, the moisture content was 0.08%, melting point was 40.0 degree, unsaponifiable matter was 0.52% and fatty acids were 0.24%. However as per the CFL report, moisture content was 0.077%, melting point was 45.0 degree, unsaponifiable matter was 0.42% and fatty acids were 0.19%.
15. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said variations CC No. 219/04 Page 7 of 38 in the moisture, melting point, unsaponifiable matter and free fatty acids, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused.
16. In this regard, The defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
17. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
18. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive CC No. 219/04 Page 8 of 38 evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
19. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
20. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
CC No. 219/04 Page 9 of 3821. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
22. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
23. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CC No. 219/04 Page 10 of 38 CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
24. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "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 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 sub- sections (3) and (5) of Section 13 of the Act".
25. Similarly, in Prahlad Bhai Amba Lal Patel v. 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 v. Union of India [AIR CC No. 219/04 Page 11 of 38 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 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 contra-indicated 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 the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same 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.".
26. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA CC No. 219/04 Page 12 of 38 had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to 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 record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of CC No. 219/04 Page 13 of 38 the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
27. This judgment was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240[], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (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".
28. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
CC No. 219/04 Page 14 of 3829. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which CC No. 219/04 Page 15 of 38 case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.
30. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
31. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of CC No. 219/04 Page 16 of 38 the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
32. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
CC No. 219/04 Page 17 of 3833. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
34. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the CC No. 219/04 Page 18 of 38 ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
35. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 5%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents CC No. 219/04 Page 19 of 38 even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
36. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited CC No. 219/04 Page 20 of 38 substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.
37. As mentioned earlier, this judgment has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh CC No. 219/04 Page 21 of 38 Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
38. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
39. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
40. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble CC No. 219/04 Page 22 of 38 Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
41. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
42. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
43. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not CC No. 219/04 Page 23 of 38 representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.
44. Even otherwise, if the variations, if they can be so called, are noticed, they are very marginal. Such variations are certainly due to time gap between the analysis by PA and CFL. Change in moisture content and fatty acids is always expected due to impact of internal heat of the food article, outside atmosphere, presence of light, pressure and air, storing conditions etc. But when the complaint is not on account of presence or absence of moisture or fatty acids or any other parameters but on account of absence of sesame (til) oil thereby giving a negative Baudouin Test, which would never vanish away due to any passage of time, no benefit can be granted to the accused. Even if the moisture content or fatty acid content has undergone a change during the intervening period, the sample would still fail due to absence of sesame oil as detected through Baudouin Test.
45. The further question is if the variations in the two reports were a result of the sample being not representative. For that, it is first to be seen if the sample was required to be representative. The incriminating factor in this case is absence of sesame oil as ascertained through Baudouin Test. As per Item No. A.19 of Appendix-B of PFA Rules, such sesame oil is necessary to be added in quantity more than the minimum prescribed. This is primarily to detect adulteration in ghee and vanaspati. Such a requirement is mandatory and has to be followed, in the absnece of which CC No. 219/04 Page 24 of 38 the adulteration in ghee and vanaspati and food articles prepared through them would be difficult to be detected. Hence, no vanaspati can be sold without conforming to such standards.
46. The accused has relied upon judgements titled as Municipal Committee Amritsar v. Mehar Singh [1972 PFA Cases 603 (P&H)] and State v. Mahavir Prasad [2005(1) CCC (HC) 307] and has contended that vanaspati oil imported from Mediterranean region does not respond to Baudouin Test and thus accused cannot be held responsible. But in my considered view, it would be for the accused to take a specific defence and prove it. No such stand was taken by the accused at the trial and no suggestion was put to any PW or taken in statement under section 313 CrPC. No chemical expert witness has been examined in defence this case so as to accord the prosecution to cross-examine him on such a point. The chemical experts were never called under section 293 CrPC to clarify this point. And more importantly, the accused never claimed at any stage that the vanaspati lifted from his possession was the one imported from Mediterranean region. In the absence of any evidence to this effect, the court cannot just assume a hypothetical defence. If such a view could be taken, then the specific standards laid in Item No. A.19 would be left redundant and even cognizance of offence could not be taken if any sample of any vanaspati fails on account of negative Baudouin Test. Such interpretation would give the vanaspati sellers freedom to violate the provisions of Item No. A.19 and not to add sesame oil in vanaspati as required. Unless such a defence is taken and proved, the accused cannot be granted benefit on account of a hypothetical possibility.
CC No. 219/04 Page 25 of 3847. Similarly, it would be for the accused to show as to on what basis he claims presence of contamination in sample of food article in question. The burden would upon be him to show as to how even some contamination (though there is no positive evidence to this effect) could have resulted in absence of sesame oil in vanaspati. But no evidence has been led by the accused to establish this fact. Once such ingredient is found absent in the samples, that would result in violation. Thus, even if the samples were not properly homogenized, that would not make any difference as even the best possible homogenization would have at the most distributed the ingredients evenly in the entire sample but would have not resulted in presence of sesame oil so as to give positive Baudouin Test. Unless the accused is able to show that such absence of necessary ingredient was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused is required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve his CC No. 219/04 Page 26 of 38 purpose. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.
48. There is nothing for the court to disbelieve the PA and CFL reports wherein the sample was failed due to negative Baudouin Test. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that the result of Baudouin Test was wrongly given or sesame oil was present in vanaspati or that absence of sesame oil was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused even in his statement under section 313 CrPC.
49. Now coming to the defences raised by the accused. The defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no evidence to show that the karchi or bottles used by the food officials were not clean or dry as testified by them on oath. There is no evidence to establish that the said karchi was used for lifting other food articles lying at the shop or was contaminated. All the PWs have rather corroborated each other by stating that the utensils and implements were clean and dry when used. Mere bald suggestions would not serve the purpose of the accused. He never led any evidence to establish his defence that the said items were contaminated. Mere suggestion is not an evidence and would CC No. 219/04 Page 27 of 38 not be sufficient to falsify depositions given on oath by the PWs. Even if it is assumed that there was some contamination, that might have failed the sample on account of some unwanted ingredient but would not have resulted in absence of sesame oil so as to give negative Baudouin Test.
50. All the PWs have corroborated the stand of each other even on facts. There is no material contradiction in their testimony that goes to the root of the matter. As human memory is liable to fade, some variations, improvements, omissions, contradictions and exaggerations are bound to creep in, but unless they are substantial or material enough, they have to be ignored. Witnesses cannot be expected to remember all minute details of the incident with scientific precision or mathematical accuracy after lapse of several years of incident. But in this case, no such contradiction can be seen and the evidence of witnesses is consistent on material particulars. All the witnesses deposed that some government office was situated at some distance from the kiosk, that some public persons were also available, that no such person agreed to join as witness despite request, that their names and addresses were not recorded and no written notice was given to them. The witnesses also accepted that the vanaspati was not meant for direct sale and was only for use in preparation of other food articles. They accepted that some vanaspati was also lying in frying pan but no sample was lifted from the said frying pan. No irregularity or illegality is visible from the procedure adopted.
51. Similarly, there is no merit in the stand that the commodity was not meant for direct sale but only for use in preparation of other food articles.
CC No. 219/04 Page 28 of 38It is pertinent to note that even the complainant in the complaint has not mentioned that the product was being sold and it has been mentioned that the product was meant for use.
52. In this regard, it would be the relevant to read Explanation to section 7 of PFA Act (as inserted in 1976 by way of amendment). It clarifies that a person shall be deemed to store any adulterated food or any article of food, if he stores such food for the manufacture therefrom of any article of food for sale. Again, section 2 (viiib) of PFA Act (also inserted in 1976 by way of amendment) defines "manufacture" to be including any process incidental or ancillary to the manufacture of an article of food.
53. Therefore, section 2 (viiib) read with Explanation to section 7 of the PFA Act makes it amply clear that if any food is stored for use in preparation of any other food article meant for sale for human consumption, then such food article would also be covered under the definition of "sale" and would be governed by the PFA Act. The position would be different if a product is stored for any purpose other than sale or for being used as ingredient in preparation of any other food meant for any purpose other than sale. Therefore, no benefit can be given to the accused even on this ground.
54. The stand taken by the accused on this point is also very contradictory and rather self destructive. On the one hand, accused claimed in his statement under section 313 CrPC that he was not storing CC No. 219/04 Page 29 of 38 vanaspati and no sample of this article was taken from him, but on the other hand, he is questioning the sampling method adopted and taken stand that representative sample was not taken. If the accused claimed that no sample was taken from him, there was no occasion for him to take a stand that the bottles/karchi were contaminated or that the samples were not representative or that the vanasapati was not meant for direct sale or that it was meant only for preparation of food articles. Such contradictory stands, that too without any evidentiary proof, would make the defence of the accused weak.
55. Similarly, there would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer/user. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The only benefit which an accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him. But no such stand has been taken by the accused and no bill/invoice/cash memo has been proved to show the person from whom he has purchased the product.
56. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses CC No. 219/04 Page 30 of 38 as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
57. Lastly, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 26.10.2004 on the basis of the PA report dated 09.08.2004. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as CC No. 219/04 Page 31 of 38 define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that 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 the Director, CFL could adopt for analysis of the product in question.
58. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
59. 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 CC No. 219/04 Page 32 of 38 terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.
60. 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. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) CC No. 219/04 Page 33 of 38 designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.
61. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central CC No. 219/04 Page 34 of 38 Committee for Food Standards are published for the guidance of all concerned."
62. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
63. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Even otherwise, the Baudouin Test has been specifically prescribed in Item No. A.19 itself and therefore, no other notification was required to validate that test. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act CC No. 219/04 Page 35 of 38 it was competent to use the method it deemed fit for the purpose of analysis of the sample.
64. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the CC No. 219/04 Page 36 of 38 aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
65. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of sale of vanaspati without addition of certain prescribed quantity of sesame oil so as to give positive Baudouin Test. In this case, prosecution is for violation of section 2(ia)(a) and (m) of the Act.
66. No other stand has been taken by the accused at the trial or during the arguments advanced.
67. The case in hand would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that it was not of the nature, substance or quality which it is "purported" to be as per PFA Rules. The case would CC No. 219/04 Page 37 of 38 fall under section 2(ia)(m) of PFA Act as the mandatory constituents were absent from the food article.
68. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(a) and
(m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
69. Having said so, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.
70. Let the matter be listed for arguments on sentence.
Announced in the open court this 2nd day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 219/04 Page 38 of 38