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[Cites 39, Cited by 0]

Delhi District Court

Delhi Administration / Food Inspector vs Sunil Gupta on 28 April, 2016

                 IN THE COURT OF SH. ASHU GARG,
          Addl. Chief Metropolitan Magistrate - II (New Delhi),
                    Patiala House Courts, New Delhi

CC No. 178/02
Unique Case ID No.

Date of Institution:              20.11.2002
Date of reserving judgement:      25.04.2016
Date of pronouncement:            28.04.2016

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                   ...    Complainant

               versus

Sunil Gupta
S/o. Sh. R. P. Goel
R/o. D-1448, Sector-8,
Rohini, Delhi                                  ...    Accused


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Sunil Gupta is stated to be the vendor-cum-proprietor of M/s. Goal Departmental Store, from where the food article, that is, 'Dal Arhar' was lifted for sampling.

CC No. 178/02 Page 1 of 34

2. As per the complaint, on 07.05.2002, the food officials consisting of Food Inspectors (FI) B. P. Saroha and Om Pal Singh Ahlawat under the supervision of Local Health Authority (LHA)/SDM Sh. J. N. Kataria reached along with their staff at the premises of M/s. Goal Departmental Store at Shop No. 17, CSC-2, Pocket D-14, Sector-8, Rohini, Delhi, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Dal Arhar from the vendor lying in sealed polythene packets (ready for sale) bearing no label declaration, to which he had agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 23.05.2002, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter 'Tartrazine' and that it was misbranded being in violation of Rule 32 of PFA Rules. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI B. P. Saroha. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by FI Sanjeev Kumar Gupta on 20.11.2002 alleging violation of section CC No. 178/02 Page 2 of 34 2(ia)(a), (b), (j) and (m) of PFA Act as well as Rules 23 and 32 of PFA Rules, as punishable section 7/16(1A) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 20.11.2002. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 17.02.2003, opining the sample to be not conforming to the standards of Dal Arhar as per PFA Rules due to presence of synthetic food colour 'Tartrazine'.

4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Sanjeev Kumar Gupta and PW-2 FI O.P.S. Ahalawat. On the basis of their depositions, charge was framed against the accused on 12.08.2008 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a) and (j) of PFA Act, to which he pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-3 FI B. P. Saroha in post- charge stage. It is pertinent to note that the charge was later amended 20.04.2012 wherein the violation of Rule 23 and 32 of PFA Rules was also inserted, when there was no objection from the defence.

CC No. 178/02 Page 3 of 34

5. At the trial, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 07.05.2002 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 3 sealed polythene packets of 500 gms each of Dal Arhar (ready for sale), separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-2/A, Notice as per Form-VI Ex. PW-2/B and Panchnama Ex. PW-2/C. Accused also gave his statement Ex. PW-2/D. On the next working day that is 08.05.2002, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-3/A and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW- 3/B. PA report Ex. PW-3/C was received and upon direction of SDM/LHA, further investigation was carried out by PW-3 who sent letter Ex. PW-3/D to the STO to ascertain constitution of vendor business concern. Thereafter, sanction Ex. PW-1/A was taken from the Director PFA. Upon transfer of PW-3, the file was marked to PW-1 who filed the complaint Ex. PW-1/B in the court. After this, intimation letter Ex. PW- 1/C with copy of PA report was sent to the accused through registered post vide postal receipt Ex. PW-1/D. These witnesses were duly cross- examined by Ld. Defence Counsel wherein they accepted that the sealed packets were not opened by them and denied that they were supposed to open the sealed packets, mix them together and then to divide them in CC No. 178/02 Page 4 of 34 three parts. According to PW-3, vendor had disclosed that he had packed the dal after cleaning the same. The witnesses denied that tartrazine was not harmful as dal is washed before being cooked and during washing, tartrazine being water soluble gets washed away.

6. Statement of the accused under section 313 CrPC was recorded on 26.04.2010 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 07.05.2002, yet he claimed that no efforts were made to join public witnesses. He questioned the correctness of sample proceedings and stated that the packets were not of the same lot, were without label and were not having same batch number. He stated that PA report with intimation letter were not received by him. He denied the reports of PA and CFL. He chose to lead evidence in defence.

7. The accused examined one Sh. Sushil Kaushik as DW-1 who was his neighbour. He deposed that three polythene packets of dal arhar were lifted by the food officials out of 15-20 packets from the shop of the accused. According to him, no public person was asked to join the proceedings. He also claimed that the accused had informed that he had purchased the packets of Dal Arhar from M/s. Nihal Chand and used to sell the same in same condition. During cross-examination, he denied that no bill was shown to the FI by the vendor.

8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused CC No. 178/02 Page 5 of 34 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 17.02.2003 which as per section 13(3) and (5) of PFA Act is final and conclusive, and which has confirmed the findings given by the PA. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.

9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that percentage or extent of synthetic colour Tartrazine has not been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that since the sealed packets were not bearing any identical label declaration to show that they were of the same lot, Rule 22-A of PFA Rules would not apply and the proper method adopted by the FI should have been to open the sealed packets, transfer the contents to a single container, mix all the contents together to homogenize the same and then to divide the same in three parts. It is then contended that the CFL had given its report is old format and not in the new prescribed format which would have disclosed the method of analysis and the tests adopted by the analyst. Ld. Counsel has relied upon the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] to argue that paper chromatography test used for detecting unpermitted food colours is not a reliable test, and thus, in the absence of any such details of the test, the report of PA and CFL become unreliable. It is further submitted that CC No. 178/02 Page 6 of 34 Tartrazine is not a harmful colouring matter as its use is permitted in many food articles. Ld. Counsel has submitted that tartrazine is a water soluble colour and when the dal arhar is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is also argued that the accused was not the manufacturer of the article but was only a retailer who had purchased the commodity from another seller, for which he should not be held liable. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law.

10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.

11. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (j) of the PFA Act read with Rule 23 of PFA Rules with respect to 'adulteration' and for violation of section 2(ix)(k) read with Rule 32 of PFA Rule with respect to 'misbranding'. This is important to note because the ingredients of these offences are different and distinct.

12. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia) CC No. 178/02 Page 7 of 34

(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability.

13. The commodity in the present case is Dal Arhar (split pulse) which is food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.09 of Appendix B to the PFA Rules. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter Tartrazine in the sample analysed.

14. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

15. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

16. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has CC No. 178/02 Page 8 of 34 repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."

17. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".

CC No. 178/02 Page 9 of 34

18. Thus, there can be no two views on the proposition that the report of CFL supersedes the report of PA and has the effect of nullifying the same. Upon certificate of CFL, the contents and findings of report of PA cannot be read. However, in view of the judgements titled as Kanshi Nath v. State [2005(2) FAC 219], as relied upon subsequently in various judgements including State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377], State v. Suresh Kumar [2010(2) JCC] 1252 and State v. Rama Rattan Malhotra [2012(2) FAC 398], it is clear that despite such finality to the CFL report, it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this fact.

19. In the case at hand, the defence is seeking to claim that the samples were not representative due to variations in PA and CFL report. It is pointed out that as per PA report, moisture content was 9.86% and damaged grains were 0.14%, but as per CFL report, moisture content was 9.70% and damaged grains were nil. But as can be seen, there is no variation that can be called as substantial enough to conclude that the CC No. 178/02 Page 10 of 34 samples were not representative. Even in the above mentioned precedents as relied upon by the defence, it was opined that variation of ± 0.3% would be permissible in case two experts examine a sample in ideal conditions. If the present case is tested even on this scale, the said variations would be within permissible limits. Such variations would certainly not conclude that the samples were not representative. This is one of those few cases where there is hardly any variation between the two reports. The CFL has conclusively and finally confirmed the report of the PA.

20. There is nothing for the court to disbelieve the said report wherein artificial synthetic colour tartrazine has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no colour was detected, or was detected wrongly, or was added by the food officials at the time of sampling or subsequently. In this case, no stand has been taken by the accused at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused in his statement under section 313 CrPC or even in defence evidence.

21. As per Rule 23 of PFA Rules, addition of a colouring matter to any article of food except as specifically permitted by the Rules is prohibited. Rule 28 provides the details of colours permitted for use and Rule 29 CC No. 178/02 Page 11 of 34 enlists the food in which synthetic colours are permitted. A bare perusal of this list would show that it does not mention food grains as the food in which any such synthetic colour is permitted. The obvious inference is that use of such synthetic food colour is totally prohibited for use in food grains, though they are permitted in specified food articles within the prescribed limits. Thus, there is no force in the stand of the accused that this colour is permitted for use in other food articles. When the use of any such colour is absolutely prohibited for this product, no such colour can be used.

22. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of dal arhar. It would not make any difference if the analysts have not given the percentage of colour used. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted upto certain prescribed limits and not where it is totally prohibited. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matter in traces in food article in question. The burden would upon be him to show how even traces of colour could have entered the food article being sold by him. But no evidence has been led by the accused to establish this fact.

CC No. 178/02 Page 12 of 34

23. Therefore, the judgement relied upon by the accused titled as Khushi Ram v. State [1984(II) PFA Cases 256] would not apply to this case, as in that case, there was no evidence to show what percentage of mineral oil was there in the sample. Also in Shew Chander Mathur v. State of Assam [1991(1) PFA Cases 9], there was violation of Rules 14 and 16. In this case, no percentage of synthetic colour whatsoever is permissible to be used in case of food grain dal arhar. There is nothing to show violation of any such Rules 14 or 16.

24. Again, there is no merit in the contention that Tartrazine is a water soluble colour and no prejudice would be caused to any customer because dal arhar would be washed before preparation. As per section 19(1) of PFA Act, it shall be no defence that the food article sold had not caused any prejudice to the purchaser. Just because some synthetic colour is water soluble and the food article is generally washed before being cooked, that gives no right to anyone to use prohibited synthetic colours in food articles in violation of statutory provisions. Thus, it is clear that the food article dal arhar was adulterated within the meaning of section 2(ia) of PFA Act being in violation of Rule 23 read with Rules 28 and 29. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, dated 18.02.2013] which are squarely applicable to this case.

CC No. 178/02 Page 13 of 34

25. Now coming to the defences raised by the accused. The court shall deal with them one by one.

26. The defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no rule prescribed anywhere that the sealed packets of dal ought to have been first opened, then transferred to another container, then mixed together and homogenized, and then divided into three parts, as contended by the accused. Rule 22 only provides the quantity of sample of food to be sent to public analyst. As per Item 38 in Table therein, quantity of 500 gms of Foodgrains and Pulses (whole and split) are to be sent to analyst. Thus, the FI was required to lift 1500 grms of dal arhar (three counterparts of 500 gms each) as per Rule 22. This Rule only provides the minimum quantity of food article that would be required to be sent to the analyst for analysis. There is no bar in sending quantity in excess to these prescribed values and if any excess quantity is lifted, that would not make sampling proceedings bad in law. As per Rule 22-B, notwithstanding Rule 22, the quantity of sample lifted would be considered sufficient unless the analyst reports to the contrary.

27. Rule 22-A on which the defence is strongly relying, has to be read only in such perspective. It mere prescribes that where food is sold or stored in sealed container having identical label declaration, the contents of one or more such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated as part of the sample. It nowhere CC No. 178/02 Page 14 of 34 deals with opening the sealed packets or homogenizing them as being contended. For instance, if dal was in sealed packets of 100 grms each, one counterpart would consist of 5 such sealed packets without opening the same. As per Note to Rule 22 (as inserted in 2005), food sold in packaged condition (sealed container or package) shall be sent for analysis in its original condition, without opening the package as far as practicable, to constitute approximate quantity alongwith original label. Thus, even if the argument of Ld. Defence Counsel is accepted that Rule 22-A is applicable only to "sealed container having identical label declaration" and not to the sealed packets having no label declaration as in the present case, that would not lead to any inference that such packets were required to be opened and mixed. Though the Note to Rule 22 was inserted only in 2005, yet there was nothing to the contrary even earlier thereto. There was no requirement that such packets had to be compulsorily opened and mixed. Rather it was a better method to take the sealed sample itself as one counterpart particularly when the same was exactly of the quantity required by Rule 22.

28. The requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and condiments, it is necessary to mix and homogenise the samples so as to CC No. 178/02 Page 15 of 34 evenly distribute there ash content, moisture, broken grains, etc. If it is not so done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling.

29. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk contains deadly poison which is a prohibited substance, then any minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.

30. Therefore, the judgement relied upon by the accused titled as State of Kerala v. K. S. Balakrishnan [1972 PFA Cases 617] would not apply to this case. In that case, it is not clear as to on what count the sample was found to be adulterated. It appears that the sample was required to be homogenized so as to evenly distribute the contents of sealed packets. But in the case in hand, any such even distribution of colour would have not made any difference. Even the judgement titled as State v.

CC No. 178/02 Page 16 of 34

Muthukrishnan [1990(2) PFA Cases 196] would not be applicable to this case. In that case, there was no certain evidence to show if the bottles were sealed or closed. But in this case, there is no dispute raised by the accused at any stage of the trial to the fact that the packets were duly sealed. It is nowhere the defence of the accused that the packets were only closed and not sealed.

31. In this perspective, if the sample of dal arhar was failing on account of ash content, moisture, damaged seeds, etc, then homogenization would have been required. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in foodgrains, then any homogenization would be immaterial. Even if properly homogenized, such colour would still be there, though evenly distributed, which would be an offence in any case. Thus, there is no merit in the contention that the packets were to be first opened and then mixed before taking the sample, as any such method would have given no benefit to the accused.

32. It is then contended that the three packets lifted by the food officials were not of the same lot. Well, there is no evidence to this effect. When there was no label declaration on the sealed packets, as also accepted by the defence, then there was no occasion for the food officials to have guessed that they were of the same lot or not, except to seek the response of the accused vendor. In this regard, the accused gave in writing to the food officials by making endorsement on Form-VI Ex. PW-2/B under his signatures, categorically stating that said packets were of the same lot and CC No. 178/02 Page 17 of 34 used to be sealed by him. This declaration by the accused in response to the notice in Form-VI has not been rebutted, disputed or retracted. It is nowhere the case of the accused that he was forced or pressurized or threatened to make such endorsement. No such stand was taken at the trial or in his statement under section 313 CrPC or even in defence evidence. No such suggestion was put to any PW, particularly PW-3 FI, during cross-examination. No complaint was lodged against any food official in any forum whatsoever, at any stage.

33. Again, it would be seen that the accused has taken a defence that he had purchased the dal from one M/s. Nihal Chand vide an invoice. Though he had moved an application to examine himself and prove the invoice no. 25995 dated 05.02.2002 as filed on record, no such evidence was led. Despite being not proved, if the accused wanted to rely on this invoice, that would again make his stand contradictory, as there is nothing in this invoice that the packets were of different lots. Accused has not produced any document to show that the product in his possession were purchased in two or more lots. Thus, the court has to give weight to his declaration given at the time of sampling that the product was of the same lot. And if the accused had mixed dal of various lots and then packed them, then the packets were to be lifted in the same manner as they were supposed to be sold in that manner only. The accused cannot take benefit of his own wrong by first failing to put label showing the batch number and other details and them claim that they were of different lots, that too without any satisfactory evidence.

CC No. 178/02 Page 18 of 34

34. It is also to be understood that when there is substantial variation in the two reports of PA and CFL, the courts assume that the samples were not representative, for which benefit is given to the accused. But when the reports are not at variance, like in the present case, it can also be inferred that the samples were truly representative of each other.

35. Moving ahead, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 20.11.2002 on the basis of the Public Analyst's report dated 23.05.2002. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till CC No. 178/02 Page 19 of 34 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.

36. However, I do not find myself in agreement with the said contention or to the interpretation sough to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

37. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the CC No. 178/02 Page 20 of 34 sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, that is, 23.05.2002, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-3/C also mentions that she has been duly appointed and this fact was never disputed at the time of trial.

38. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.

39. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

CC No. 178/02 Page 21 of 34
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."

40. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts CC No. 178/02 Page 22 of 34 and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

41. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.

42. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants CC No. 178/02 Page 23 of 34 that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."

43. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible CC No. 178/02 Page 24 of 34 limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is for violation of section 2(ia)(a) and (j) of the Act. The present case would be squarely covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused.

44. Ld. Defence Counsel then questions the format in which the reports were given by the analysts. It is pointed out that the CFL was required to give report in new format as per Form-II of PFA Rules, as was substituted with effect from 29.01.2003. The report in this case was given on 17.02.2003. The sample was lifted on 07.05.2002 and it was received by the CFL on 21.01.2003, that is, before the date when the new format was inserted and became operational. There is no material to show if the new formats were to be applicable to even those cases where sample had already been received for analysis. No such question was raised at the time of trial. No witness was asked this question enabling them to explain CC No. 178/02 Page 25 of 34 and no attempt was made to apply under section 293 CrPC and to cross- examine the analyst on this point.

45. Even otherwise, there is reason given on the basis it can be said that any prejuduce has been caused to the accused on account of report being in old format. The only point put forth by Ld. Counsel is, that the CFL was required to mention the name of the method adopted in the new format. It is submitted that if tartarzine was detected using paper chromatography method, then that method is not a sure test.

46. Well, the court does not find merit in the said submissions. Even if the report was not in the new format, assuming that new format was applicable to the present case, still, no prejudice has been shown to have been caused to the accused. It is to be understood that report of chemical expert is admissible in evidence without formal proof under section 293 CrPC. But that doe not mean that such report cannot be questioned on any point on which it is silent. If the accused wishes such report to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross-examine him. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, there is no reason why the accused did not opt to cross-examine the CFL analyst and ask him about CC No. 178/02 Page 26 of 34 the method used by him to detect synthetic colour, if he was genuinely feeling aggrieved by his failure to name the test method. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously not the job of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that "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."

47. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused as aforesaid to ask the CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.

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48. The judgement in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.

49. Thus, the judgement of Administrator, Siliguri Municipalty v. Hiralal Goala [1974 PFA Cases 44] would not be applicable wherein the rules were not followed with respect to sending of memos with the report which had caused prejudice to the accused. This case is substantially different in facts. There is nothing to show any violation of Rules 7 and 18 as no such stand was taken at any stage of the trial and no such question was put to the PWs.

50. Moving ahead, there would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or packer or CC No. 178/02 Page 28 of 34 distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of 'sale' under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which the accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him.

51. In the present case, the accused claimed that he had purchased the commodity from one M/s. Nihal Chand vide an invoice Well, such a stand has remained bald allegation without any evidentiary support. This bill was produced on record but was never proved as per law. No witness has been examined by the accused who could establish that any such food article was purchased by the accused from any third person including M/s. Nihal Chand. No such bill was ever submitted to the PFA department even during the investigation. No such bill was shown to the FI at the item of sampling. No endorsement was made by the accused on the documents prepared at the spot claiming that he had purchased the same from any third person or that was having any such bill / invoice / cash memo. Rather the endorsement made by him on Form-VI is in complete contradiction to the said stand, wherein he specifically stated that he used to pack the material himself. Even if it is assumed that he used to purchase the same from some third party, the fact that he was selling the same by preparing small packets and sealing those packets, would take the CC No. 178/02 Page 29 of 34 case out of purview of section 19(2). Situation would have been different if the accused was purchasing sealed packets from third party and was selling the same in the same condition. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the sealed packets as lifted from possession of the accused were containing the same dal as was purchased by him from M/s. Nihal Chand or from any other place. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused. Such a defence is also liable to be rejected.

52. The judgement in Aboo v. Food Inspector [2003(1) FAC 81] would therefore not be applicable to this case, as in that case, suitable evidence had been led in defence and necessary bill proved as per law and there was testimony that the product had been sold in the same condition as purchased.

53. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they CC No. 178/02 Page 30 of 34 are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc.

54. Statement of DW-1 would also not help the accused. He claimed to be present at the spot. He confirmed the prosecution case that food officials were present and had lifted three sealed packets out of 15-20 lying there, as deposed by PW-2 and PW-3. He himself never offered to be a witness in the sample proceedings. The stand taken by him that some bill was shown to the food officials, has never been taken by the accused at the trial and no such suggestion was put by him during cross- examination of the PWs.

55. The accused has claimed in his statement under section 313 CrPC that he never received any intimation letter with copy of PA report. But if that was so, it is not understood as to on what basis he filed an application under section 13(2) PFA Act for getting the sample analysed from CFL.

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Since he has exercised his right under section 13(2) PFA Act, no prejudice was caused to him in any manner. It is nowhere the case of the accused that the sample underwent some change on account of lapse of time in sending the sample to CFL. The artificial synthetic colour would not come due to any lapse of time.

56. Coming to the violation of Rule 32, it is seen that the accused has accepted that the polythene packets used by him were not having any declaration. He has rather taken this very stand to contend that the sampling method was not proper. But there is no merit in the stand of the defence that plastic packets would not come under the purview of Rule 32 of PFA Rules.

57. Rule 32 comes under Part-VII of PFA Rules under the heading "Packaging and Labelling of Foods". It requires "every package" of food to carry a label as provided in Rules and to contain details as mentioned in the Rules. Section 2(ix)(k) makes failure to label such food product an act of misbranding which is an offence punishable under section 16(ia)(a) of the PFA Act.

58. Section 2(x) of PFA Act defines "package" to mean a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper, or other thing in which an article of food is placed or packed. Even a wrapper or 'other thing' in which article of food is placed is covered in the definition. Thus, a plastic packet duly sealed by the accused would be squarely covered in CC No. 178/02 Page 32 of 34 the definition of "package". It was used to pack dal arhar and duly sealed to determine its value.

59. It rather also qualifies to be called a "prepacked commodity" as per the Explanation VII to Rule 32, being a commodity of food, with or without the purchaser being present, having been placed in a package of 'whatever nature' so that the quantity of commodity therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification. In the case at hand, the polythene packets were duly sealed and not merely closed or stapled or tied. They were of predetermined value of 500 gms weight which could not have been altered without tearing/cutting of the seal. Thus, Rule 32 would be applicable and the accused was required to conform to the same. In this case, there is violation of Rule 32 on all counts. No date of packing, best before date, batch number, etc. were mentioned on any label which was mandatory.

60. No other stand has been taken by the accused at the trial or during the arguments advanced.

61. The case in hand would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that it was not of the nature, substance or quality which it is "purported" to be as per PFA Rules. The case would fall under section 2(ia)(j) as there is presence of colour which is not permitted in this article. Obviously, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was CC No. 178/02 Page 33 of 34 affecting injuriously its nature, substance or quality thereof and that is precisely the reason why the charge was not framed for violation of section 2(ia)(b). The matter is also covered for violation of Rule 32 and section 2(ia)(k) for misbranding.

62. Violation of section 2(ia)(j) is punishable under section 16(1A) and violation of section 2(ia)(a) and (k) is punishable under section 16(i)(a) of PFA Act. But being graver offence, his conviction can be under section 16(1A) of PFA Act.

63. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated and misbranded food in violation of section 2(ia)(a), (k) and (j) of PFA Act read with Rules 28, 29 and 32 of PFA Rules, and has committed the offence punishable under section 7/16(1A) of PFA Act.

64. Having said so, the accused is held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.

65. Let the matter be listed for arguments on sentence.

Announced in the open court this 28th day of April 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 178/02 Page 34 of 34