Da vs . Ruoof Page 1 Of 50 on 9 May, 2014

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Delhi District Court

Da vs . Ruoof Page 1 Of 50 on 9 May, 2014

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

C.C. No. 254/04

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

Sh. Ruoof
S/o Sh Shamshad
M/s Seema Dairy,
C13/8, Shahbad Dairy,
Delhi
........ VendorcumProprietor

Serial number of the case : 254/04
Date of the commission of the offence : 30.08.2004
Date of filing of the complaint : 15.12.2004
Name of the Complainant : Sh. Suniti Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.

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Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 09/05/14
Judgment announced on : 09/05/14

Brief facts of the case

1. In brief the case of the prosecution is that on 30.08.2004 at about 06.30

p.m., Food Inspector Suniti Kumar Gupta and Field Assistant Satish Kumar under the

supervision and directions of SDM / LHA Sh. G.P. Singh visited M/s Seema Dairy

C13/8, Sahabad Dairy, Delhi42, where accused Ruoof who was the vendorcum

proprietor was found present conducting the business of sale of various dairy articles

including toned milk (ready for sale) for sale for human consumption and in

compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the

Prevention of Food Adulteration Rules, 1955, the Food Inspector collected / purchased

the sample of toned milk.

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

Analyst for analysis and as per the report of Public Analyst the sample was found not

conforming to the standard of toned milk as per PFA rules 1955 as per tests performed

as the Milk solids not fat were less than the prescribed minimum limit of 8.5% and

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

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

of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.

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

dated 15.12.2004.

4. In pre charge evidence prosecution examined one witness i.e. Food

Inspector Suniti Kumar Gupta and thereafter pre charge evidence was closed vide

orders dated 19.05.2009.

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

1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the

accused vide order dated 09.09.2009 to which accused pleaded not guilty and claimed

trial.

6. In support of its case the complainant/prosecution examined three

witnesses i.e. Sh. Suniti Kumar Gupta, the Food Inspector as PW1, Sh. G.P. Singh,

the then SDM/LHA as PW2, and Field Assistant Satish Kumar as PW3 and PE was

closed vide order dated 25.08.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 20.11.2012

wherein the accused claimed himself to be innocent. Despite opportunity accused

failed to lead any DE in his defence.

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

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8. PW1 Sh. Suniti Kumar Gupta, Food Inspector, who is the complainant

in the present case deposed that on 30.08.2004 he alongwith FA Satish Kumar under

supervision and directions of SDM / LHA Sh. G.P. Singh visited the premises of M/s

Seema Dairy, C13/8, Sahabad Dairy, Delhi42 where accused Ruoof was found

conducting the business of toned milk. He deposed that he disclosed his identity and

intention to purchase approximately 1.5 liter of toned milk from accused for Rs. 18/

only and accused accepted the price vide vendor's receipt Ex. PW1/A which was taken

from an open container. He deposed that accused himself declared the sample as

toned milk and the same was taken under the supervision and direction of the LHA Sh.

G.P. Singh. He deposed that he tried his level best to join some public persons as

witness before taking the sample but none agreed and thereafter on his request FA

Satish Kumar agreed and joined as a witness in the sample proceedings. He deposed

that the sample was taken after proper homogenization of the toned milk with the help

of clean and dry measure. He deposed that he divided the sample commodity into

three equal parts then and there and thereby putting in clean and dry glass bottles and

in each sample bottles 40 drops of formalin was added. He deposed that each sample

bottle was separately packed, fastened, marked and sealed as per rule of PFA Act. He

deposed that LHA slips bearing his code number and signature pasted and signature

of the accused was taken in such a manner so as to appear partly on the LHA slips

and partly on the wrapper of the sample bottle. He deposed that notice in Form VI was

also prepared at the spot vide Ex. PW1/B. He deposed that panchnama Ex. PW1/C

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was also prepared at the spot. He deposed that all the documents Ex. PW 1/A to Ex.

PW 1/C were signed by accused at point A, by witness at point B and he himself

signed at point C and thereafter all these three documents were explained to accused

and read over in Hindi. He deposed that one copy of Ex. PW1/B was given to accused

vide his endorsement at portion X on the document.

9. He further deposed that on next date i.e. 31.08.2004 one sample

counterpart along with one copy of memo in Form 7 in a sealed packet and another

copy of memo form 7 in a separate sealed packet were delivered in the office of PA

vide receipt Ex. PW1/D. He deposed that the remaining two counterpart of the sample

along with two copies of Memo in form 7 in a sealed packet were given to LHA/SDM

vide receipt Ex. PW1/E. He deposed that all these copies in Memo in form VII were

marked with the impression of seal which was used to seal the sample counterpart

earlier. He deposed that Ex. PW1/F is a raid report submitted in the office after the

completion of sample proceedings. He deposed that one monthly milk delivery card

Ex. PW1/G was taken into possession at the time of sampling from accused which he

produced and signed on it at point A. He deposed that accused gave a signed

statement in writing vide Ex. PW1/H. He deposed that after receiving the PA report

Ex. PW1/J from the LHA he conducted the investigation and during this process sent

one letter to STO ward no. 63 vide Ex. PW1/K and reply of STO is at point X upon it.

He deposed that he also sent a letter to DHO, MCD Rohini Zone vide Ex. PW1/L and

another letter to vendor vide Ex. PW1/M. He deposed that after concluding his

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investigation he submitted the file along with the all the documents for the sanction of

prosecution against the accused which he received vide Ex. PW1/N and the same was

signed by the then Director PFA Sh. V.K. Singh. He deposed that after receiving the

sanction for prosecution he filed the complaint Ex. PW1/O. He deposed that after filing

the complaint LHA had sent intimation letter Ex. PW1/P to the accused along with

copy of PA report by registered post and postal receipt is Ex. PW1/Q having relevant

entry at portion A.

10. During his cross examination he stated that he was posted in sub

division Narela on the day of sampling. He stated that his working area was sub

division Narela and local area was entire Delhi. He stated that he cannot comment

about the local area and working area. He denied the suggestion that his local area

and working area were same. He denied the suggestion that Govt. of NCT has not

declared the subdivision as local area. He stated that there were 2 drums lying in the

shop. He stated that all the drums were having milk and almost half filled and were

apparently stainless steel. He stated that the capacity of the drum was about 40 liters

and there was about 20 liters of toned milk in the drum at the time of sampling. He

stated that there were two measures with the vendor at the time of sampling. He

stated that one clean and dry measure was of 500 ml and was lying outside the drum

on the counter and the other measure was lying in the drum. He stated that milk was

mixed with the help of clean and dry 500 ml measure. He denied the suggestion that

there was some liquid in the measure. He stated that after mixing the milk, the milk

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was taken in the clean and dry stainless steel jug with the help of 500 ml measure. He

denied the suggestion that there was some liquid in the jug before putting the milk. He

stated that bottles were already dry and clean and the same were not made again dry

and clean at the spot. He denied the suggestion that bottles were containing some

liquid. He stated that he does not remember when the bottles were issued to him by

the PFA department. He stated that 2/3 customers were present at the spot but he

cannot tell their names and addresses as they refused to disclose the same. He

admitted that he had not mentioned this fact on the document Ex. PW1/A to C that he

tried to associate the public witnesses but they refused. He voluntarily stated that he

mentioned the same in the raid report. He admitted that two counterparts were

deposited at room temperature. He admitted that PA receipt does not bear the

signature of PA. He denied the suggestion that intimation letter along with PA report

was not supplied to the accused. He voluntarily stated that it was sent through

registered post which was not received back undelivered.

11. PW 2 Sh. G.P. Singh, the then SDM/LHA and PW3 Satish Kumar, Field

Assistant have deposed on the same lines as deposed by PW1 in his examination in

chief.

12. This so far is the prosecution evidence in the matter.

13. I have heard the arguments advanced at bar by the Ld. defence counsel

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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.

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

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

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

loopholes /contradictions.

Whether the sample lifted from the accused or in his absence.

15. At the outset it was argued by the Ld. Defence counsel that sample of

toned milk was lifted in the absence of the accused. It was argued that at the time of

sampling the accused was not present at the shop and his wife was only present

there. Ld. Defence counsel argued that as the sample was not lifted from the

accused/accused was absent at the time of lifting of sample and as the prosecution

has not placed on record any document to connect him with M/s Seema Dairy the

prosecution against him is bad in law.

16. However I find no merits in the above contentions of Ld. Defence

counsel. Firstly, From the deposition of the prosecution witnesses especially PW1

Food Inspector Suniti Kumar Gupta whose testimony was duly corroborated by

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remaining prosecution witnesses i.e. SDM/LHA and Field Assistant it stands

unambiguously established that the sample was lifted from M/s Seema Dairy from

accused Ruoof. The prosecution witnesses categorically deposed that when they

reached at the above shop it was accused Ruoof who was found present at the shop

conducting the business of sale of toned milk. They further proved that it was from

him that the sample was purchased. The testimony of the prosecution witnesses has

remained unchallenged/ unrebutted on this material aspect. Not even a single

suggestion to any of the prosecution witnesses that accused Ruoof was not present at

the spot or that the sample was not lifted from him but from his wife. Secondly, the

documents i.e. vendor's receipt, Form VI and the panchnama prepared at the spot and

which bears the signatures of the accused leaves no doubt that it was the accused

from whom the sample was lifted. Thirdly, lifting of the sample on 30.08.2004 from

M/s Seema Dairy stands further proved in terms of the admissions made by the

accused during his examination under Section 313 Cr. P.C as recorded before the Ld.

Predecessor of this Court on 20.11.2012 which are admissible in evidence against the

accused in view of sub clause (4) of Section 313 Cr. P.C as well as the law laid down

in Benny Thomas Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh

V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of

Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam

2006 Cr. L.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.),

Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney

Disuja V. State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR

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1978 SC 315 Fourthly, Ex. PW1/H which is in the handwriting of the accused is a

sufficient proof of the fact that the accused was the sole vendor/ proprietor of M/s

Seema Dairy. Fifthly, if indeed the sample was lifted from his wife/his wife was

present at the time of lifting of sample nothing stopped the accused to examine his

wife as a defence witness to corroborate his claims. His having not done so I find no

merits in his bald statement made during the examination u/s 313 Cr.P.C. as well as

during the course of arguments that the he was absent from his shop at the time of

lifting of the sample.

Public witness

17. It was also argued that no public witness was joined by the FI during the

alleged sample proceedings which is in violation of section 10 (7) and therefore the

accused is entitled to be acquitted on this ground alone. It was argued that the FI

despite the mandate of section 10 (7) did not deliberately join any public person i.e.

customers, neighbourers etc. in the sample proceedings.

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

counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC

(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,

is sufficient to convict the accused and there is no requirement of independent

corroboration by public persons unless the testimony suffers from fatal

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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. Further reliance may be placed upon the law laid

down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State

of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare

Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,

Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.

Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State

Vs. Narayanasamy 1997 (2) FAC 203.

State
19. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... 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.".

20. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found

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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."

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

Kumar Gupta made sincere efforts to join the public persons in the sample

proceedings but none agreed. I have no reason to disbelieve them. It is very hard

these days to get association of public witnesses in criminal

investigation/implementation of administrative powers/enforcement of law seeking to

curb anti social evils. Normally, nobody from public is prepared to suffer any

inconvenience for the sake of society. Absence of public witness in this case is not

fatal to the prosecution as the prosecution story inspires confidence and lifting of the

sample stands unambiguously proved. Furthermore, I find no reasons why the Food

Inspector or the SDM would falsely implicate the accused or depose falsely against

him. There is nothing on record to suggest that the FI, the SDM were inimical to the

accused or had any grudge or enmity to falsely implicate him.

Rule 14

22. It was also one of the arguments that there was violation of Rule 14 of

the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was

argued that at the time when the sample was collected, the Food Inspector failed to

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clean the sample bottles, the jug with which the sample was poured in the bottles and

also the measure with which the milk was allegedly made homogenized. It was argued

that the sample bottles were not clean and dry and some water/liquid was already

lying in the bottles and it was because of this that the sample did not conform to the

standards. It was argued that Rule 14 of the Act is mandatory and not directory and in

case there is no strict adherence to Rule 14, benefit has to be given to the accused.

Reliance was placed on the law laid down in State of Gujarat Vs. Harumal Retumal

and others 2008 FAJ 292 (Guj), Koyakutty Vs. Food Inspector 2000 (2) FAC 238

and Shew Chander Mathur and anr Vs. State of Assam and anr., 1991 (1) FAC 9.

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

counsel.

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

case laws relied upon by the Ld. defence counsel and perused the deposition of the

Food Inspector and other complainant witnesses. After going through the material

available on record and the law cited by the Ld. defence counsel, I am of the opinion

that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at

the time when the Food Inspector collects the sample, he shall ensure that not only the

container/bottle is clean but it is also dried. Furthermore the container should be such

so as to prevent any leakage, evaporation and in case of dry substance entrance of

moisture. The container should be sealed carefully to avoid the above. While

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sampling the various types of articles of food, the Food Inspector should make use of

clean and dry appliances. He should use clean and dry spoon or other instruments

for sampling and avoid using his own hands to mix the same. Furthermore he should

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

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

25. I have perused the deposition of the Food Inspector and the other

prosecution witnesses. All the prosecution witnesses consistently and repeatedly

stated that the sample of milk was lifted after the milk was homogenized with the help

of a clean and dry measure by rotating the milk several times in all possible directions.

The witnesses categorically stated that the milk was then poured into sample bottles

which were clean and dry. They categorically stated that the measure as well as the

jug were also clean and dry. From their deposition/statement no doubt remain that the

sample proceedings were conducted in a proper manner. I have no reasons to

disbelieve them. Nothing on record has been proved to the contrary i.e. the defence

has not proved that the Food Inspector did not comply with the provisions of the Rule

14. Just because the defence is challenging the sampling process conducted by the

Food Inspector / asserting that Rule 14 was violated is not sufficient to either

disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I have

also gone through Section 114 (e) of the Indian Evidence Act.

Section 114 reads as under:

" The Court may presume the existence of any fact which it thinks likely to

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have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."

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

26. The above provisions and the legislation is based upon the maxim

"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly

and regularly done. This presumption chiefly applied to official acts. It means that an

official act is proved to have been done, it would be presumed to have been regularly

done. The presumption under Section 114 (e) could only be nullified by clear and

cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)

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

Assessar, 5 OLJ 179)".

27. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757

(Guh.) it was observed that irregularity is not to be presumed but a party alleging

it may prove it.

28. In the face of clear statement of the Food Inspector that he has taken the

proceedings of taking sample and sealing according to Rules, a presumption can be

drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,

1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,

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Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1

and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].

29. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with

Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper

approach to proceed with doubt or disbelief unless there is something to excite

suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi

(2002) 5 FAC 234, Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243,

30. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was

observed as under:

"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

31. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:

"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

32. Hence I am of the opinion that there was no violation of Rule 14 and

there was no infirmity in the sample proceedings.

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Homogenization / Mixing of Sample.

33. It was also one of the arguments of the Ld. defence counsel that the

sample was not properly mixed / homogenized at the time when it was lifted.

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

Firstly the Food Inspector and the other complainant witnesses categorically stated

that the sample was taken after mixing the toned milk properly. They categorically

stated that it was homogenized by rotating it in all possible directions several times

with the help of a measure. Once the milk was properly mixed several times by the

measure in the drum itself it was sufficient to make the milk homogenized.

35. Secondly, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,

the Full Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard

A. Joslyn that the sample must be a representative
sample ..........
are not
We

impressed by this argument at all . Representative sample has got a different

connotation, meaning and purpose in commercial transactions.......In our statue the

ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for

sale, storing, selling or distributing any adulterated food. If the food sold to the food

inspector is proved to be adulterated, it is immaterial whether the sample

purchased by him is a representative sample or not of the entire stock in

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possession of the person. A person who stores or sell such sample is liable to

be punished under section 16 (1) (a) (i) of the Act.

36. In the case at hand sale to Food Inspector stands proved. The Food

Inspector categorically proved that he had made a payment of Rs. 18/ to the

accused/vendor towards the purchase of sample commodity. In this regard vendor's

receipt Ex. PW1/A was executed which bears the signature of accused at point A. The

testimony of the Food Inspector has gone unrebutted on this material particular. The

testimony of the SDM/LHA as well as the FA which is on the same lines have also

remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The

food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC

(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of

an article of food, which is found to be adulterated, the accused will be guilty of an

offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD

Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court

of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.

State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals

were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of CC No. 254/04 DA Vs. Ruoof Page 18 of 50 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling"

37. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food CC No. 254/04 DA Vs. Ruoof Page 19 of 50 Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

It was further observed:

"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."

38. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:

"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."

39. Thirdly, the act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy milk. the vendor does not give the said CC No. 254/04 DA Vs. Ruoof Page 20 of 50 food article/ milk after mixing the same with the help of a measure/plunger in the drum in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the milk with the help of a measure or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI.

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

40. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to the accused and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample CC No. 254/04 DA Vs. Ruoof Page 21 of 50 analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300.

41. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 15.12.2004 and the next date of hearing before the court was 03.05.2005. However in between the dates of hearing the matter was listed/taken up on 13.01.2005. It was done so in pursuant to the application u/s 13 (2) PFA Act moved by the accused seeking sending of one of the counterpart to the Director, CFL for his opinion. However on that day, for reasons best known to him the accused withdrew the application while submitting that he does not wish to exercise the right. Hence once he himself does not exercise the right u/s 13(2) PFA Act he cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.

42. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".

43. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:

CC No. 254/04 DA Vs. Ruoof Page 22 of 50

"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."

44. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:

"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."

45. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no sample was sent to Director, CFL, the petitioner can make no grievance.

46. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.

47. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it CC No. 254/04 DA Vs. Ruoof Page 23 of 50 was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director. "

48. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under:

".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right."

49. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:

"The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........

50. Thus though he had moved the application however he withdrew the same and hence it amounts to non exercising the right u/s 13 (2). Therefore denial of statutory right to him was because of his own volition.

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51. As far as the service of the intimation letter and the PA report to the accused is concerned firstly as discussed above the accused did not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon him or not looses much of its significance. Secondly, from the application dated 06.01.2005 which bears the signature of the accused as well as Ld. Defence counsel it is crystal clear/writ large/stands proved that he had received the PA's report and intimation letter on 01.01.2005 itself. Hence the defence was taking up a false/incorrect plea. Thirdly, PW2 SDM/LHA categorically deposed that the intimation letter along with PA's report was sent to the accused by registered post and the same was not received back undelivered. He proved the intimation letter and the postal receipt by which the same was sent as Ex. PW1/P and Q. On similar lines was the deposition of Food Inspector. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to the accused. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:

"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise does not assume importance".

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52. Fourthly, I have perused Ex. PW1/P and Q. The address appearing on the same is the same address as appearing in the complaint as well as on which the summons sent by the court were duly served upon the accused. If the summons were served on the same address I fail to understand why the intimation letter and the PA's report sent vide Ex. PW1/P and Q would not be received by him. It is nowhere the defence claim/plea that the address is incorrect.

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

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

54. It is now well settled that sending by post, means sending by post to the addressees proper address. Where a notice has to be served through post, all that a sender can do to comply with the provisions is to post the prepaid registered letter containing addressees correct address. Once he does this and the letter is delivered to the post office, he has no control over it. In that event, under Section 27 of the General Clauses Act, the letter shall be presumed to have been delivered to the addressee. There is no obligation upon the sender to prove the service of notice upon the addressee if he send the notice by registered post, properly addressed. Where a letter is sent under certificate of posting a presumption arises under Section 114 of the Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P. CC No. 254/04 DA Vs. Ruoof Page 26 of 50 Rama Reddy, 2003(3) Andh. LT 120 (AP)]

55. Once the evidence discloses that the letter was addressed at a proper address by registered post then unless it is rebutted or the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post it is presumed that there is a proper service. If the addressee either can not be met or refused to take delivery there appears to be no reason why the letter should not be considered as properly served upon the addressee ( State Vs. Bhag Chand Sadhu Mal, 1999 (3) Guj. LR 2220.)

56. In the absence of anything indicating that such letters were not posted or concocted the presumption under Section 114 (f) comes into play (Vandavasi Kartikaya Vs. S. Kamalanna, A 1994 AP 102).

57. A bare denial with no reliable evidence is not sufficient to rebut the presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial without reliable evidence, without further rebuttal, the presumption continues [Fazal Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].

58. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the prosecution did not prove any postal acknowledgment signed by the accused to prove about the service of copy of the report of the Public Analyst which had been sent by registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC CC No. 254/04 DA Vs. Ruoof Page 27 of 50 300 the court held as under:

"In the present case the petitioner in his examination under section 313 Cr. P.C has merely denied to have received the copy of the report of the Public Anlayst. However, no evidence has been adduced on behalf of the accused persons to rebut the presumption available under the General Clauses Act as well as Section 114 of the Evidence Act. As observed by the Division Bench of this Court, when it is proved that registered letter has been posted after being duly stamped in the address of a person, a presumption arises that such letter must have been served on the addressee. The evidence adduced on behalf of the prosecution to the effect that the report of the Public Analyst had been posted by registered post as per the postal receipt has not been successfully challenged by the petitioner in any manner in cross examination"

59. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it was held "admittedly there is presumption in law that a communication sent by post on the correct address of the addressee is presumed to have been received by him if it is not received back by the sender."

60. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held as under:

"Once a notice is sent by registered post in the correct address no burden is cast upon the sender or the postman to arrange that notice to be served upon the addressee. If a letter is posted prepaid and registered with a acknowledgment due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the letter is delivered to the addressee.".

61. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act CC No. 254/04 DA Vs. Ruoof Page 28 of 50 actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sender as unserved.".

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

63. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that where extract of the relevant entries in the register maintained in the office also indicated that the notice under section 13(2) of the Act alongwith the report of the Public Analyst was sent to the applicant by registered post on the address available on record and it is not the contention that the accused / addressee / vendor did not reside at the address on which the notice was sent then "The mere fact, that A/D receipt was not filed or received back, was not sufficient to rebut or dislodge the presumption of service of notice sent by registered post in absence of any evidence to the contrary.". Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex Court has held "the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. This principle was propounded keeping in view the provisions of section 27 of the General Clauses Act."

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64. Hence it stands proved that the PA's report along with intimation letter was duly received by the accused.

Delay

65. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in filing the complaint as though the sample was collected/lifted on 30.08.2004 the complaint was filed only on 15.12.2004 i.e. after a gap of more than 3 months. It was argued that the shelf life of the milk is only 1 month and even if the accused had pressed for his application u/s 13(2) the sample would have become deteriorated/decomposed by that time and no purpose would have been served by moving the application. It was argued that on account of the lapses/laches on the part of the prosecution the accused's right u/s 13 (2) was prejudiced. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However I do not agree with the contentions of Ld. Defence counsel. Firstly the prosecution witnesses categorically stated that at the time of sampling 40 drops of formalin were added in the sample bottles as a preservative. Once formalin was added in the sample bottles and the bottles shaken properly for proper dispersion of formalin in the sample bottles/milk, the defence plea that the sample must have deteriorated looses merit. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample would have deteriorated due to lapse of 3 months despite addition of formalin. CC No. 254/04 DA Vs. Ruoof Page 30 of 50 Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 .

66. Secondly, the accused should have went ahead with his application u/s 13 (2)/should have exercised the right therein and only if the Director had opined that sample was decomposed he would have been entitled to the benefit or could have claimed prejudice. Reliance may be placed upon Ajit Prasad's case (supra) as well as MCD Vs. Ghisa Ram 19481997 FAC (SC) 265 and Babu Lal Hargovind Das Vs. State of Gujarat 19481997 FAC (SC) 1083. He did not exercise his right for reasons best known to him.

67. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 3 months the sample would have decomposed/rendered unfit for analysis.

68. In Babu Lal Hargovind Das Vs. State of Gujarat, 19481997 FAC (SC) 1084, the Hon. Apex Court observed at para 6 as under:

"There is also in our view to justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi vs. Ghisa Ram 1967 (2) S.C.R. 116 :

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19481997 FAC (SC) 93 has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative..................No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory".

69. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the Director of CFL". In these circumstances the report of the PA was accepted in maintaining the conviction.

70. In Magal Dass Raghavji vs. State 19481997 FAC (SC) 239 the Hon. Apex Court held that the accused had not done anything to call the Public Analyst and the court could legally act on the report of the Public Analyst.

71. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110. It was CC No. 254/04 DA Vs. Ruoof Page 32 of 50 observed in para 66 as under:

"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."

It was further observed in para 68 as under:

"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".

It was further observed in para 71 as under:

"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."

It was further observed in para 72 as under:

"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing CC No. 254/04 DA Vs. Ruoof Page 33 of 50 the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".

It was further observed in para 74 as under:

"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"

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

"10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.

11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :

(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).

12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".

72. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the CC No. 254/04 DA Vs. Ruoof Page 34 of 50 Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.

8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".

73. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:

"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".

74. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:

"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned CC No. 254/04 DA Vs. Ruoof Page 35 of 50 Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

75. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:

" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."

76. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".

77. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:

" It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .

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78. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:

"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis."

79. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:

"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".

80. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:

"From the aforesaid authorities what emerges out to be the legal position CC No. 254/04 DA Vs. Ruoof Page 37 of 50 on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.

81. Hence I find no merits in the contentions of Ld. Defence counsel that the delay of around 3 months in launching prosecution prejudiced the right of the accused. Marginal deficiency

82. It was also one of the argument of the Ld. Defence counsel that marginal deficiencies have to be ignored as they may occur on account of analytical error. It was argued that in the case at hand PA found the milk solids not fat at 7.09% against the minimum of 8.5% i.e. only 1.41% short. Reliance was placed upon the law laid down in Ram Singh Vs. State of Haryana 2009 (1) RCR Cri. 692 and Sakeel Vs. State of Haryana 2008 (1) FAJ 506.

83. In Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not CC No. 254/04 DA Vs. Ruoof Page 38 of 50 fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.

84. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.

85. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".

86. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%.

87. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.

88. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC CC No. 254/04 DA Vs. Ruoof Page 39 of 50 (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.

89. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."

90. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:

"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:

"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, CC No. 254/04 DA Vs. Ruoof Page 40 of 50 would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."

91. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:

"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."

92. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:

"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".

93. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:

"The sample was taken in accordance with the rules and as the milk solids were CC No. 254/04 DA Vs. Ruoof Page 41 of 50 deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".

94. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.

95. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:

"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".

96. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."

97. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.

98. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The CC No. 254/04 DA Vs. Ruoof Page 42 of 50 Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.

99. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:

The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.

Rule 18

100. It was also one of the arguments of the Ld. defence counsel for the accused that there was violation of Rule 17 and 18, benefit of which must be given to the accused. It was argued that it has not been proved that the specimen impression of the Seal used for sealing the sample as provided in Rule 17 was sent to the Public Analyst separately as per the mandate of Rule 18. It was argued that in these circumstances the sample being tampered with during its transit to the PA cannot be ruled out. Reliance was placed upon State of Maharashra Vs. Rajkaran 19481997 FAC (SC) 918, State of HP Vs. Narender Kumar 2004 FAJ 281 SC, State of Orissa Vs. Rabindru Sahu 2006 (1) FAC 200 (SC), State Vs. Banwari Lal 2011 (1) FAC 149, Delhi High Court and Gian Chand Vs. State of Haryana 1982 (I) FAC 8. CC No. 254/04 DA Vs. Ruoof Page 43 of 50

101. I have perused the deposition of the Food Inspector and the SDM, the report of the Public Analyst as well as Rule 18 of the Prevention of Food Adulteration Rules, 1955. Rule 18 provides that the copy of Memorandum and a specimen impression of the Seal used to seal the packet shall be sent to the Public Analyst separately. In Kassim Kunju Pookunju and Anr. Vs. K.K. Ramakrishna Pillai and Anr., Crl. Appeal No. 29 of 1968, decided on 02.12.1968, the Hon'ble Apex Court observed as under:

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

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

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

"The Food Inspector as PW1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in crossexamination. As is obvious, the CC No. 254/04 DA Vs. Ruoof Page 44 of 50 Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in crossexamination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence.".

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

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

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

105. Reliance may also be placed upon on law laid down by Hon. Supreme Court in Kasim Kunju O Kunju vs. Ramakrishna Pillai 1976 (2) FAC 68 and Gyan CC No. 254/04 DA Vs. Ruoof Page 45 of 50 Chand Vs. MCD 1979 (2) FAC 320 and 1981 (1) FAC 290.

106. In the case at hand the Food Inspector categorically stated that one counterpart of the sample was deposited with the PA on 31.08.2004 vide Ex. PW1/D in a sealed packet containing one copy of memo in Form VII and another sealed envelope containing one copy of another memo in Form VII separately. It is apparent from Ex. PW1/D which is the receipt of the sample at the PA's office that the copy of Form VII was sent in a sealed packed separately. Furthermore the PA in his report Ex. PW1/F categorically stated as "the condition of seals on the container and the outer covering on receipt was as follows: seals were intact and identical to the specimen impression of the seal received from the Food Inspector". Hence there was no violation of Rule 18. Reliance may be placed upon the law laid down by the Hon. Apex Court in N. Sukumaran Nayyar Vs. FI 19481997 FAC (SC) 420. Moreover the sample was collected on 30.08.2004 at about 06.30 p.m. and it was deposited with the PA on the next working day i.e. on 31.08.2004. There was thus no undue delay in depositing the sample with the PA. This itself rules out any tampering with the sample. Hence there is no violation and nothing on record to even remotely suggest that the accused was prejudiced or the sample tampered with before its analysis by the PA. Regarding the contentions that the FI had put the seal impression in form VII which was put in the sealed packet deposited with the PA which he should not have done so as to avoid tampering suffice is to say that after the copy of memo in Form VII was put with the sample in the packet, the packet was sealed and the same CC No. 254/04 DA Vs. Ruoof Page 46 of 50 was opened by the PA only after comparing it ( seal impression on the packet) with the seal impression sent in a separate packet as is evident from the report of the PA. Hence there is no force in the argument that the FI should not have sent/put seal impression in form VII with the sample as no prejudice can be said to have been caused to the accused. There is no chance/ reason/remotest of proof of any tampering. Nonetheless if the accused had any apprehension/reasons to believe that the sample was tampered with than nothing stopped him from exercising the right available with him u/s 13 (2) of PFA Act which as already discussed above he did not exercise for reasons best known to him.

PA's report

107. It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.

In the case at hand PA vide his report Ex PW/1/J opined that the sample did not conform to the standards of milk solids not fat as they were less than the minimum prescribed limit of 8.5%. 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 CC No. 254/04 DA Vs. Ruoof Page 47 of 50 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. 15.09.2004 she was a duly/ validly appointed Public Analyst.

Gerber method

108. It was lastly argued by the Ld. Defence counsel that in view of the law laid down by Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 no conviction can be based relying on the PA's report as the PA used Gerber method which is not a sure/accurate test.

109. I have perused the report of PA dated 15.09.2004. As per the report of the PA, the PA used the Gerber method for the purpose of analyzing the sample of toned milk so collected by the Food Inspector. It is reflected in the report of PA that he used Gerber method for the purpose of calculating the percentage of milk fat in the sample of toned milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of toned milk. The said method is not a sure/accurate test for the purpose of analysis of milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & CC No. 254/04 DA Vs. Ruoof Page 48 of 50 Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under:

".......The High Court has indicated that although the Bombay High Court in State of Maharashtra V. Narayan Dewlu Shanbhag held that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute. The public analyst however followed Gurber's method and on the basis of such report the prosecution case was initiated. In that view of the matter the High Court did not intend to interfere with the order of acquittal. In our view, the High Court has taken a reasonable view and interference by this Court is not warranted. The appeal, therefore, fails and dismissed accordingly."

110. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.

111. In view of the above as the PA used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of toned milk so collected was adulterated or not. Though Ld. SPP for the complainant argued that the Gerber method is a prescribed method in DGHS Manual and is a valid and accurate test and in fact it is the most widely used test all over the world for the purpose of analysis of milk to find out the percentage of the milk fat and the same is also certified by Indian Standards Institute time to time however in view of the above ruling of the Hon. Supreme Court and failure on the part of the Ld. SPP to distinguish CC No. 254/04 DA Vs. Ruoof Page 49 of 50 the said ruling I find no merits in his contention.

112. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the accused stands acquitted of the charges in the present case.

113. I order accordingly.

          Announced in the open Court                                (Gaurav Rao)
           on 9th May, 2014                                     ACMMII/ New Delhi




      CC No. 254/04
      DA  Vs. Ruoof                                                                  Page 50 of 50

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