Da vs . Manoj Aggarwal Page 1 Of 52 on 24 March, 2014

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Delhi District Court

Da vs . Manoj Aggarwal Page 1 Of 52 on 24 March, 2014

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

C.C. No. 272/03

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

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

Versus

Manoj Aggarwal
M/s Bansal Store,
B3/161, Raghubir Nagar,
New Delhi27

........ VendorcumProprietor

Serial number of the case : 272/03
Date of the commission of the offence : 24.01.2003
Date of filing of the complaint : 09/07/03
Name of the Complainant : Sh. S.K. Sharma, Food Inspector

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DA Vs. Manoj Aggarwal Page 1 of 52
Offence complained of or proved : Section 2 (ia) (j) & (m) of PFA Act
1954, r/w Rule 23, 28 & 29
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 24/03/14
Judgment announced on : 24/03/14

Brief facts of the case

1. In brief the case of the prosecution is that on 24.01.2003 at about 05.30

p.m. Food Inspector R.K. Bhaskar and FI VPS Choudhary under the supervision and

directions of SDM / LHA Sh. B.M. Jain visited M/s Bansal Store, B3/161, Raghubir

Nagar, New Delhi27, where accused Manoj Aggarwal was found present conducting

the business of various food articles including Dal Arhar, for sale for human

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

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

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

the sample of Dal Arhar.

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

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

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

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

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

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of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w

Section 7 of the Act.

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

dated 09.07.2003. The accused after filing his appearance moved an application

under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample

from Central Food Laboratory and consequent thereto second counterpart of the

sample as per the choice of the accused was sent to Director, CFL (Pune) for its

analysis vide orders dated 01.08.2003. The Director, CFL after analysing the sample

opined vide its Certificate dated 27.08.2003 that "sample bearing no. BMJ/LHA/3350

does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955".

The Director so opined as the sample was found adulterated with synthetic colour

tartrazine.

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

the then SDM/LHA Sh. B.M. Jain as PW1, Food Inspector R.K. Bhaskar as PW2 and

Food Inspector VPS Choudhary as PW3 and pre charge evidence was closed vide

order dated 09.10.2007.

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

1954 of the PFA Rules, punishable U/s 16 (1) r/w section 7 of the Act was framed

against the accused vide order dated 06.05.2008 to which accused pleaded not guilty

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and claimed trial. However today during the course of arguments Ld. SPP pointed out

that in the charge framed by the Ld. Predecessor on 06.05.2008 there appears to be

certain typographical error. It was submitted that the section has been mentioned as

16(1) instead of 16(1A) and it appears due to typographical error/oversight.

Furthermore the appropriate sections are not reflected in the charge. However Ld.

Defence counsel fairly conceded that he has no objection if section is read as 16(1A)

along with Rule 23, 28 and 29 of the PFA Rules i.e. they are read as part and parcel

of the charge framed by the Ld. Predecessor as same has not caused any prejudice to

the accused. From the complaint, the deposition of the prosecution witnesses coupled

with the report of the CFL and the statement recorded u/s 313 Cr.P.C. the exact

offence for which the accused is facing trial was known to the accused. In these

circumstances the errors which seems to be typographical error/oversight stands

rectified.

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

witnesses including the then SDM/LHA Sh. B.M. Jain as PW1, the Food Inspector

R.K. Bhaskar as PW2, Food Inspector VPS Choudhary as PW3 and Food Inspector

S.K. Sharma as PW4 and PE was closed vide order dated 25.08.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 10.12.2010

wherein the accused claimed himself to be innocent.

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

8. PW1 the then SDM/LHA B.M. Jain deposed that on 24.01.2003 he being

the SDM/LHA, Rajouri Garden along with FI R.K. Bhaskar and FA Balwant Shah went

to M/s Bansal Store, B3/161, Raghubir Nagar, New Delhi where accused Manoj

Aggarwal was found conducting the day to day business of the food articles of that

shop stored for sale. He deposed that at about 05.30 p.m. FI R.K. Bhaskar disclosed

his identity and intention to take sample of Dal Arhar a food article for analysis to

which accused agreed. He deposed that FI made efforts to join public witnesses by

requesting customers, passersby and neighbouring shopkeepers but none agreed and

on his request FA Balwant Shah joined the same. He deposed that FI purchased 750

gms of Dal Arhar (ready for sale) taken from an open gunny bag having no label

declaration. He deposed that sample was taken under his supervision and direction

after properly mixing with the help of clean and dry jhaba by rotating it in all possible

directions. He deposed that the FI divided the sample commodity in 3 equal parts by

putting the same in 3 clean and dry bottles. He deposed that each sample bottle was

separately packed fastened, marked and sealed according to PFA Act and Rules. He

deposed that LHA slips were pasted on each counter part and accused signed each

bottle in such a manner that his signatures partly appeared on wrapper and partly on

LHA slips. He deposed that the accused received sale price of Rs. 18/ of the sample

vide Ex. PW1/A. He deposed that notice in form VI was prepared and given to the

accused by FI which is Ex. PW1/B who received the same vide his endorsement and

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signatures at portion A and panchnama Ex. PW1/C was also prepared by FI. He

deposed that all the aforesaid documents were read over and explained to accused in

Hindi. He deposed that accused signed all documents at point A, FI at point C and

witness at point B. He deposed that accused gave his statement Ex. PW1/D stating

that he is vendor cum proprietor and the shop is not registered with any Sales

Tax/MCD Department which bears his signature at point A. He deposed that two

counterparts of the sample were deposited with the LHA vide receipt Ex. PW1/E under

intimation that one counterpart has already been deposited with PA for analysis. He

deposed that PA report Ex. PW1/F was received which showed that the sample was

adulterated because it was coloured with synthetic colouring matter i.e. Tartrazine. He

deposed that the whole file including all the statutory documents were sent to the then

Director PFA Sh. S.L. Bansal through him who after going through them applied his

mind and gave the consent Ex. PW1/G for prosecution of accused. He deposed that

thereafter complaint Ex. PW1/H was filed by FI S.K. Sharma. He deposed that

thereafter intimation letter Ex. PW1/J along with copy of PA report was sent to

accused vide postal registration receipt Ex. PW1/K as mentioned at portion X which

was not received back undelivered.

9. During his cross examination he stated that there was about 34 Kg of

Dal Arhar in the gunny bag from which the sample was lifted. He stated that 750 gms

of Dal Arhar was taken from gunny bag and weighed on the pan balance and Dal

Arhar was divided into three equal parts by approximation and put into the sample

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bottles from the pan balance on which it was weighed. He stated that Jhaba was made

clean by the FI at the spot with the help of cloth piece which was provided by the

vendor. He stated that other pulses were also lying in the shop. He stated that the

colour of Dal was yellowish. He stated that bottles were already dry and clean and the

same were not made again dry and clean at the spot. He stated that bottles were

turned down to ensure that same were clean. He denied the suggestion that piece of

the cloth provided was not clean and was used as a wiper. He stated that tartrazine is

permitted in sweets and confectionery upto certain extent but not in Dal Arhar. He

stated that he cannot say that consumers usually wash the Dal prior to cooking. He

stated that he did not observe any colouring material in the shop. He stated that he

does not know that it is not possible for vendor to colour the Dal and it is done by the

manufacturer. He stated that he does not know that tartrazine is an organic dye and

acts as a preservative. He stated that he did not personally discuss the present case

with the Director, PFA. He stated that consent letter was not signed in his presence.

He stated that he cannot comment that Director PFA did not put date on consent Ex.

PW1/G to cover up the delay. He stated that he did not ask the Public Analyst to

provide the copy of chromatograph or photographs of the TLC plate. He stated that he

does not know that the vendor sent any photocopy of bill of purchase Mark X to the

Director PFA by post. He denied the suggestion that colour impregnated from the cloth

which was used in cleaning the Jhaba. He stated that passerby were also requested

while standing outside the shop to join the sample proceedings. He stated that he

cannot say FI mentioned in the documents prepared at the spot that he tried to

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associate the public witnesses. He denied the suggestion that FI intentionally did not

try to associate the public witnesses. He denied the suggestion that bottles were not

clean and dry and used one.

10. PW2 Food Inspector R.K. Bhaskar, PW3 FI VPS Choudhary and PW4

S.K. Sharma deposed on the same lines as deposed by PW 1 in his examination in

chief.

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

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

as also the Ld. SPP for complainant. I have also carefully gone through the evidence

recorded in the matter and perused the documents placed on record by the

prosecution in this case.

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

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

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector R.K. Bhaskar coupled with the report of the CFL

dated 27.08.2003 that accused Manoj Aggarwal was indeed found selling Dal Arhar

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

15. The star / the material witness of the prosecution i.e. Food Inspector R.K.

Bhaskar categorically proved that on 24.01.2003 he along with FI V.P.S. Choudhary

and SDM / LHA Sh. B.M. Jain visited M/s Bansal store, where accused Manoj

Aggarwal who was the vendorcumproprietor was found conducting the business of

sale of various food articles including Dal Arhar, for human consumption and in

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

Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act &

Rules) he collected / purchased the sample of Dal Arhar. He proved the sample

proceedings vide Ex. PW 1/A to Ex. PW 1/C. He further proved the deposit of the

sample with the Public Analyst and deposit of the counterparts of the sample with the

Local Health Authority vide Ex. PW 2/A and Ex. PW1/E. He further proved that the Dal

Arhar on analysis by the public analyst vide his report Ex. PW1/F was found

adulterated as it was containing synthetic colour tartrazine. He proved the letter

written to STO as Ex. PW2/B. The Sanction / Consent for prosecution was proved as

Ex. PW 1/G and the complaint was proved as Ex. PW 1/H.

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

remaining prosecution witnesses i.e. PW1 Sh. B.M. Jain the then SDM/LHA and FI

V.P.S. Choudhary (PW3).

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

Inspector on 24.01.2003 from M/s Bansal Store as well as that the accused was the

vendor/ proprietor of M/s Bansal Store was not disputed during the trial and was also

admitted by the accused during his examination under Section 313 Cr. P.C as

recorded before the Ld. Predecessor of this Court on 10.12.2010. From the answers

given by the accused to question no. 1 & 2 which are admissible in evidence against

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

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

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

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

Assam 2006 Cr. L.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25

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

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

Chand AIR 1978 SC 315 coupled with Ex. PW1/A to Ex. PW1/C as well as Ex.

PW1/D which is in the handwriting of accused no doubt remains that the sample of Dal

Arhar was indeed collected by the Food Inspector for analysis from M/s Bansal Store

of which the accused is the proprietor cum vendor.

18. 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.

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Public witness

19. At the outset it was argued that no public witness was joined by the FI

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

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

that the FI despite the mandate of section 10 (7) did not deliberately join any public

person i.e. customers, neighbourers etc. in the sample proceedings.

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

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

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

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

independent corroboration by public persons unless the testimony suffers from fatal

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

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

testimony of Food Inspector. Reliance may also be placed upon Prem Ballabh Vs.

State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of Assam, 1999(2) FAC

180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare Lal 1972 FAC 679 ,

Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339, Laxmidhar Saha Vs.

State of Orissa 1989 (1) FAC 364, Food Inspector Vs. Satnarian 2002 (5) SCC

373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs. Narayanasamy 1997

(2) FAC 203.

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State
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

22. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness

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is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

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

Bhaskar 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.

24. 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

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

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

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

container/bottles as well as the instrument i.e. jhaba with which the sample was

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poured in the bottles. It was argued that the colour was already sticking to the Jhaba,

the sample bottles as well as polythene bag and it was this colour which was detected

by the Director. 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.

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

counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

28. I have perused the deposition of the Food Inspector i.e. R.K. Bhaskar

who was examined as PW2. The Food Inspector deposed as under:

"Sample was taken after properly mixing with the help of clean and dry
jhaba by rotating it in all possible direction. I divided the sampled commodity in 3
equal parts by putting the same in 3 clean and dry bottles.

29. During his cross examination he stated as under:

"It is wrong to suggest that sample bottles were not made properly tight
and vapors of sealing material entered into the sample bottles........ It is wrong to
suggest that sample bottles were used one and were without clean and dry"

30. Similarly PW1 the then SDM/LHA B.M. Jain deposed as under:

"Sample was taken under my supervision and direction after properly
mixing with the help of clean and dry jhaba by rotating it in all possible direction. The
FI divided the sampled commodity in 3 equal parts by putting the same in 3 clean and
dry bottles.

31. During his cross examination he stated as under:

"Jhaba was made clean by the FI at the spot with the help of cloth piece
which was provided by the vendor. Bottles were already dry and clean and the same
were not made again dry and clean at the spot. Bottles were turned down to ensure
that same were clean. It is wrong to suggest that piece of cloth provided was not
clean and was used as a wiper"

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32. PW3 FI V.P.S. Choudhary deposed as under:

" The sample was taken at 5.30 p.m. by proper mixing it with help of
clean and dry Jhaba by rotating it in all possible direction i.e. downwards, upwards,
clockwise and anticlockwise several times. The FI divided the sample then and there
into three equal parts by putting them in three clean and dry glass bottles.

33. During his cross examination he stated as under:

"Jhaba was already clean and dry but I do not remember whether the same was made
clean at the spot. It is wrong to suggest that some colour was sticking to the Jhaba
which came into the sample commodity. Sample commodity was taken into clean and
dry polythene bag after mixing and weighed."

34. Hence the prosecution witnesses consistently deposed regarding the

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

their deposition/statement no doubt remain that the sample proceedings were

conducted in a proper manner and that the sample bottles, the jhaba as well as the

polythene bag used for weighing the Dal was clean and dry. I have no reasons to

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

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

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

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

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

already discussed above, I find no reasons why the Food Inspector would depose

falsely or falsely implicate the accused, there being no previous enmity against him. I

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

Section 114 reads as under:

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

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

35. 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)".

36. 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.

37. 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

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

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

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

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

38. 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.

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

was observed as under:

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

40. 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.".

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41. 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.

Discrepancies

42. It was argued by Ld. Defence counsel that there are major discrepancies

in the deposition of PW1, PW2 and PW3 qua the sample proceedings. It was argued

that the SDM/LHA claimed that the Dal was weighed on pan balance but on the other

hand PW2 and PW3 claimed that Dal was put in a polythene bag for the purpose of

weighing. It was further submitted that PW1 claimed that jhaba was made clean at the

spot by the FI however the FI i.e. PW2 and PW3 did not state so. The Ld. Defence

counsel argued that these discrepancies itself proves that the sample proceedings

were bad and there was violation of Rule 14. Reliance was placed on the law laid

down in AIR 2001 SC 3976 and 2012 (1) FAC 384.

43. No doubt the Ld. Defence counsel pointed out the above discrepancies in

the deposition of Food Inspector and the SDM/LHA however the discrepancies as

pointed out by Ld. Defence counsel are too trivial in nature to be given any weightage.

The discrepancies as above are natural and bound to occur on account of passage of

time and lapse of memory. Human memories are apt to blur with passage of time. The

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sample was lifted in the year 2003 and the deposition/cross examination of witnesses

were recorded in the year 2010 i.e. after a gap of around 7 years. After such a long

time period a person cannot be expected to give a parrot like version or depose with

mathematical precision. Only a tutored witness can depose so. Error due to lapse of

time/lapse of memory have to be given due weightage/ due allowance.

44. By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape is replayed

on the mental screen. By and large people cannot accurately recall a conversation

and reproduce the very words used by them or heard by them. They can only recall

the main purport of the conversation. It is unrealistic to expect a witness to be a human

tape recorder. Ordinarily a witness cannot be expected to recall accurately the

sequence of events which take place in rapid succession or in a short time span. A

witness is liable to get confused, or mixed up when interrogated later on. A witness,

though wholly truthful, is liable to be overawed by the court atmosphere and the

piercing cross examination made by counsel and out of nervousness mix up facts, get

confused regarding sequence of events, or fill up details from imagination on the spur

of the moment. The subconscious mind of the witness sometimes so operates on

account of the fear of looking foolish or being disbelieved though the witness is giving

a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort

of a psychological defence mechanism activated on the spur of the moment. Reliance

may be placed upon the observations made by the Hon'ble Apex Court in case titled

CC No. 272/03
DA Vs. Manoj Aggarwal Page 20 of 52
as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir

Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of

Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada
Bhoginbhai Hirjibhai v.

State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972

SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .

45. The law is well settled that discrepancies which do not go to the root of

the matter and shake the basic version of the witnesses cannot be annexed with un

due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable

evidence. One cannot come across a witness whose evidence does not contain some

exaggeration or embellishments. Sometimes there could be even be a deliberate at

tempt to offer embellishment and sometime in their overanxiety they may give slightly

exaggerated account. Court can sift the chaff from corn and find out truth from the tes

timony of witnesses. Evidence is to be considered from the point of trustworthiness. If

this element is satisfied they ought to inspire confidence in mind of the court.

46. Moreover, officials like Food Inspector and the SDM/LHA are involved in

collecting samples/witnessing sample proceedings almost daily and sometimes more

than one sample is collected in a day. During their stint as Food Inspector and

SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the

facts being mixed up due to passage of time. Same has to be given due allowance. In

case at hand the Food Inspector's testimony was duly corroborated by PW3 and it was

CC No. 272/03
DA Vs. Manoj Aggarwal Page 21 of 52
para materia with the complaint. Regarding the statement made by SDM/PW1 where

in he claimed that jhaba was made clean at the spot it is to be seen that the same

does not in any way affect the prosecution story or renders it unreliable. Firstly same

was not stated by the witness in his examination in chief and it came up for the first

time during the cross examination. Moreover if the statement is assumed to be correct

it goes on to further prove that the sample proceedings were conducted in an appropri

ate manner. Moreover no such suggestion regarding the cleaning of the jhaba was giv

en to the FI/PW2 during his cross examination. Regarding the use of the polythene for

weighing the Dal firstly it is to be seen that PW2 and PW3 categorically stated that

polythene was clean and no colour was sticking to it. Secondly, no doubt SDM/LHA

did not state about the use of polythene bag however during his cross examination it

was nowhere put to him/he was not confronted regarding the use of the polythene bag.

Merely because he did not state a word about the use of polythene bag does not ren

dered the testimony of both the FIs unbelievable/ unreliable.

Homogenization / Mixing of Sample.

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

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

accordingly the sample which were sent to PA and Director, CFL were not

"representative" and this is the reason why there is variations in the report of Public

Analyst and Director, CFL. For example the Public Analyst found the 'moisture' as

CC No. 272/03
DA Vs. Manoj Aggarwal Page 22 of 52
8.42 % , on the other hand, the Director found the same to be 9.98% by weight. It was

argued that this variation being more than 0.3% which is the permissible limit proves

that the sample were not representative. Reliance was placed upon Kanshi Nath Vs.

State 2005(2) FAC 219 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.

48. 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 Dal Arhar properly. I have no reasons to

disbelieve the Food Inspector or the other complainant witnesses in this regard.

49. Secondly, there was no requirement of mixing or making the sample i.e.

the Dal homogenized as such in view of the law laid down in Dhian Chand Vs.

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

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In 1992(1) FAC 283 (supra) it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the

CC No. 272/03
DA Vs. Manoj Aggarwal Page 23 of 52
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous." .

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

the Hon. Apex Court observed as under:

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

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

the entire stock in possession of the person".

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

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

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

CC No. 272/03
DA Vs. Manoj Aggarwal Page 24 of 52
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.

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

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

Kerela vs. Alassery Mohammad it was observed as under:

"It has to be remembered that any person, not necessarily the Food
Inspector and not necessarily a government officer, is entitled to purchase an article of
food from a vendor and send it for analysis provided he follows the procedure
mentioned in Section 12 of the Act. If a private person purchases a portion of ice
cream from the respondent under Section 12 of the Act and causes the sample to be

analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

CC No. 272/03 DA Vs. Manoj Aggarwal Page 25 of 52

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."

53. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

54. 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."

55. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained CC No. 272/03 DA Vs. Manoj Aggarwal Page 26 of 52 inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

56. In the case at hand not only from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the Dal was properly mixed at the time of sampling but in view of the above discussion, I am of the opinion that it being the case of Dal Arhar it was not required to homogenize the Dal Arhar. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal Arhar 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. CC No. 272/03 DA Vs. Manoj Aggarwal Page 27 of 52 Variations.

57. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation of more than 0.3% in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

58. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."

59. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:

CC No. 272/03 DA Vs. Manoj Aggarwal Page 28 of 52

"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report 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......"

It was further observed in para 3 as under:

"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".

60. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:

"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the CC No. 272/03 DA Vs. Manoj Aggarwal Page 29 of 52 analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory.".

61. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.

62. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held CC No. 272/03 DA Vs. Manoj Aggarwal Page 30 of 52 as under:

"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".

63. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:

"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".

64. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:

CC No. 272/03 DA Vs. Manoj Aggarwal Page 31 of 52

"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".

65. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:

"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".

In para 15 it has been further observed as under:

"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".

66. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:

"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of CC No. 272/03 DA Vs. Manoj Aggarwal Page 32 of 52 that report only.".

67. 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".

It was further held in para 11 to 14 as under:

"11. 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 disregarded.".

68. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:

"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a CC No. 272/03 DA Vs. Manoj Aggarwal Page 33 of 52 contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."

69. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:

"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".

70. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".

71. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.

72. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:

CC No. 272/03 DA Vs. Manoj Aggarwal Page 34 of 52

"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".

73. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:

"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".

74. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:

"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".

75. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:

CC No. 272/03 DA Vs. Manoj Aggarwal Page 35 of 52

"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."

14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".

76. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect CC No. 272/03 DA Vs. Manoj Aggarwal Page 36 of 52 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 subsections (3) and (5) of Section 13 of the Act".

77. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:

"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede 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.

78. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded.

CC No. 272/03 DA Vs. Manoj Aggarwal Page 37 of 52

79. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:

"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.

80. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.

81. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will CC No. 272/03 DA Vs. Manoj Aggarwal Page 38 of 52 defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

82. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director CC No. 272/03 DA Vs. Manoj Aggarwal Page 39 of 52 in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

83. Furthermore, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: CC No. 272/03 DA Vs. Manoj Aggarwal Page 40 of 52 "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

84. Nonetheless, if the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:

"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

Use of colour.

85. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to CC No. 272/03 DA Vs. Manoj Aggarwal Page 41 of 52 health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

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

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 CC No. 272/03 DA Vs. Manoj Aggarwal Page 42 of 52 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

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

Injurious to health.

88. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

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

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

CC No. 272/03 DA Vs. Manoj Aggarwal Page 43 of 52

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

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

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

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

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

Paper Chromatography Test.

93. It was further argued that the usual mode of analysis is paper CC No. 272/03 DA Vs. Manoj Aggarwal Page 44 of 52 chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon , State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. The Director as per the report applied the DGHS manual method. Paper Chromatography is just one of the method prescribed in the DGHS Manual. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

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

CC No. 272/03 DA Vs. Manoj Aggarwal Page 45 of 52

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

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

Percentage of colour

94. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is CC No. 272/03 DA Vs. Manoj Aggarwal Page 46 of 52 permitted in food articles no question /argument can be raised that the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

Warranty

95. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor had purchased the article from M/s Sanjay Provision Store vide Bill Mark X and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued that the vendor / accused had purchased the article from the above manufacturer / dealer vide Mark X and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused. It was argued that it is the admitted case of prosecution that the accused is merely a retailer and not a manufacturer and accordingly when he had CC No. 272/03 DA Vs. Manoj Aggarwal Page 47 of 52 purchased the articles from M/s Sanjay Provision Store he cannot held liable for the adulteration detected in the sample.

96. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.

97. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, CC No. 272/03 DA Vs. Manoj Aggarwal Page 48 of 52 Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.

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

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

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

100. In the case at hand, no doubt the accused placed on record bill Mark X CC No. 272/03 DA Vs. Manoj Aggarwal Page 49 of 52 purportedly issued by M/s Sanjay Provision Store, however the said bill does not come to the rescue of the accused for numerous reasons. Firstly, the accused did not examine the executor of the bill. The bill has not been proved as per the rules of evidence. In the absence of the deposition the executor of the bill or the signatory of the same the genuineness/ authenticity of the bill remains highly doubtful. Nothing stopped the accused from moving the application for examining the proprietor/owner of M/s Sanjay Provision Store to substantiate his claims and avail the benefit of warranty. In fact despite opportunity given the accused did not lead any defence evidence. Secondly, the very fact that no bill was supplied to FI at the time of lifting of sample, nor any bill was handed over to him or the SDM/LHA till the filing of complaint neither the bill was even produced in the court till the stage of evidence itself proves that the accused was making false claims. If indeed he had purchased the articles from M/s Sanjay Provision Store and sold it in the same condition as was purchased and he knew that he was entitled to the benefit of warranty I fail to understand why he waited so long to seek the benefit of warranty when he could have been absolved/discharge of his liability if he was indeed entitled to the benefit. Nothing stopped him all this while to move the court to exercise the power u/s 20A. The very fact that the plea of warranty was taken after lapse of 7 years of filing of the complaint itself proves that he was making false claims. Thirdly, the sample was admittedly lifted from an open gunny bag bearing no label declaration. It was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but they were sold in the same condition/state. Once the bag is opened and sold CC No. 272/03 DA Vs. Manoj Aggarwal Page 50 of 52 loose at his shop the warranty itself lapses. It is not disputed by the defence that the sample was lifted from an open bag. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is retailer and not the CC No. 272/03 DA Vs. Manoj Aggarwal Page 51 of 52 manufacturer/supplier who no longer has control over the articles so sold. Hence he is not entitled to any warranty.

101. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and Rule 29 of PFA Rules 1955, the accused stands convicted under Section 2 (ia) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

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

Announced in the open Court                                   (Gaurav Rao)
on 24th March 2014                                        ACMMII/ New Delhi




CC No. 272/03
DA  Vs.  Manoj Aggarwal                                                        Page 52 of 52

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