Delhi District Court
"34. As Far As Grounds 1 And 2 Are ... vs Unknown on 24 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 55/05
Unique Case ID No. 02403R0112542005
Date of Institution: 07.03.2005
Date of reserving judgement: 09.07.2016
Date of pronouncement: 24.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA, Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Ajay Kumar Gupta
S/o. Sh. Om Prakash Gupta
R/o. H-109, Extension-III,
Nangloi, Delhi-110041. ... 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 Ajay Kumar Gupta is stated to be the vendor-cum-proprietor of M/s. Royal Caterers, from where the food article, that is, 'Sela Rice' was lifted for sampling.
2. As per the complaint, on 16.12.2004, the food officials consisting of Food Inspector (FI) Sanjeev Kumar Gupta and Field Assistant (FA) CC No. 55/05 Page 1 of 43 Brahma Nand under the supervision of Local Health Authority (LHA)/SDM Sh. Harish Kumar Ahuja reached along with their staff at the premises of M/s. Royal Caterers at Khasra No. 1012, Prem Nagar-II, Kirari, Delhi, where the accused was found conducting the business of food articles and having stored Sela Rice which were lying in an open small gunny bag without label or declaration, meant for preparation of cooked rice to be served to school children. The sample was then lifted as per procedure prescribed under the PFA Act and Rules after giving notice to the vendor and paying price of the same. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 30.12.2004, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter 'Sunset Yellow FCF' and 'Tartrazine'. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 07.03.2005 alleging violation of section 2(ia)(j) and (m) of PFA Act read with Rules 23, 28 and 29 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 07.03.2005. The accused appeared and filed CC No. 55/05 Page 2 of 43 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 30.04.2005, opining the sample to be not conforming to the standards of Rice as per PFA Rules due to presence of Synthetic Colours 'Tartrazine' and 'Sunset Yellow FCF'.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Sanjeev Kumar Gupta. On the basis of his depositions, charge was framed against the accused on 21.07.2008 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(j) of PFA Act, to which he pleaded not guilty and claimed trial. At the trial, the witness already examined in pre- charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 FA Brahma Nand and PW-3 Sh. Harish Kumar Ahuja (SDM/LHA) in post-charge stage.
5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 16.12.2004 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gms of Sela Rice after homogenizing it in the gunny bag in which it was lying using a clean and dry Jhaba, dividing it in three parts and putting in clean and dry bottles, fastening, sealing and marking CC No. 55/05 Page 3 of 43 the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW- 1/C. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW- 1/F was received and upon direction of SDM/LHA, further investigation was carried out by PW-1 FI. He sent letter Ex. PW-1/G to the STO and received its reply. He also sent a letter Ex.PW-1/H to the DHO MCD and its reply was received. Thereafter, sanction Ex. PW-1/K was taken from the Director PFA and the complaint Ex. PW-1/L was filed in the court. Intimation letter Ex. PW-1/M along with copy of PA report were sent to the accused vide postal receipt Ex. PW-1/N. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the jhaba / bottles used in the proceedings were not clean and dry. They accepted that the vendor had informed them that the rice was meant to be supplied to primary schools of the MCD as mid-day meal vide agreement Mark PW-1/DA.
6. Statement of the accused under section 313 CrPC was recorded on 18.11.2014 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 16.12.2004, yet he claimed that no efforts were made to join public witnesses. He took stand that the sample was not taken properly as the jhaba was not clean and dry. He stated that he used to serve cooked food to the MCD School children and CC No. 55/05 Page 4 of 43 used to receive some money for the same. He contended that the rice used to be supplied to him by the MCD and that he did not make any adulteration. No evidence in defence was however led by him.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 30.04.2005 which as per section 13(3) and (5) of PFA Act is final and conclusive and it has rather conformed the findings of PA with respect to presence of synthetic colours in the sample. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that the matter would not be covered under PFA Act as the rice were meant to be prepared to be served to the school children and not for sale to open public. It is then argued that there are variations in the report of PA and CFL which show that the samples were not representative and thus, no reliance can be placed on these reports. It is pointed out that no percentage or extent of synthetic colour Tartrazine and Sunset Yellow FCF has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present, and that in the absence of percentage or colour present, it cannot be said that the rice was adulterated. It is then submitted that the jhaba and bottles CC No. 55/05 Page 5 of 43 were not made clean and dry at the spot it is possible that some colour on the jhaba which was used for other articles at the premises was transferred to the Rice while sampling. It is submitted that the CFL has not clearly named the method used to detect the colours and that the PA had used paper chromatography method to detect the colours which was not a sure test in view of the judgements titled as Maya Ram v. State of Punjab [1987 (II) PFA Cases 320] and State v. Subhash Chand [2012 (2) JCC 1052]. It is lastly contended that the prosecution was bad in law because the labs and the test methods were not notified on the day of sampling.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the charge framed against the accused is for violation of section 2(ia)(j) of the PFA Act, which specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. The accused is not facing charge for violation of section 2(ia)(b) of PFA Act for which it has to be established that the food article contained any substance affecting injuriously the nature, substance or quality thereof.
11. The commodity in the present case is Sela Rice which is a food grain and has to be tested as per the standards prescribed for food grains. The food article 'Rice' falls in Item No. A.18.06.04 of Appendix-B of PFA CC No. 55/05 Page 6 of 43 Rules 1955 wherein standards have been prescribed statutorily which are required to be complied with.
12. Item No. A.18.06.04 of Appendix-B lays down standards for Rice as a food product. Such minimum standards are thus applicable to all the varieties of rice and it cannot be said that no standard has been prescribed specifically for Sela Rice. The said variety is very much a food product meant for human consumption. Though the accused tried to contend during the evidence of PW-2 that the sample lifted was that of Parmal Rice, yet it is seen that this version has not been emphasised. Neither this stand was taken during the cross-examination of PW-1 or PW-3 nor was taken during his statement under section 313 CrPC where the accused rather accepted that the sample of Sela Rice had been taken from him. Irrespective of the variety of rice lifted, the fact remains that all such varieties are covered under Item No. A.18.06.04 of PFA Rules. It is not even the stand of the accused at the trial that such standards of rice are not applicable to this variety of rice. There may be various categories or varieties of rice having different characteristics, but the minimum standards prescribed under Item No. A.18.06.04 have to be complied with by all such varieties unless specified.
13. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matters Tartrazine and Sunset Yellow FCF in the sample analysed. Thus, the reports of the two analysts are in conformity to each other on this count and not at variance.
CC No. 55/05 Page 7 of 4314. But the defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, the moisture content was 11.43% and damaged grains were 0.18%. Whereas, as per CFL report, moisture content was 9.84% and the damaged grains were nil. It is also pointed out that as per PA, the sample of rice received was of light brown colour but as per the CFL, the sample of rice was of slightly yellowish colour.
15. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said variations in the moisture content and colour of sample, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused.
16. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC CC No. 55/05 Page 8 of 43 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
17. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
18. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
19. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
20. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the CC No. 55/05 Page 9 of 43 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."
21. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
22. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only CC No. 55/05 Page 10 of 43 attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
23. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
24. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, CC No. 55/05 Page 11 of 43 legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".
25. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients CC No. 55/05 Page 12 of 43 mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
26. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the CC No. 55/05 Page 13 of 43 facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
27. This judgment was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240[], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director".
CC No. 55/05 Page 14 of 4328. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
29. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the CC No. 55/05 Page 15 of 43 intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.
30. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
CC No. 55/05 Page 16 of 4331. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross-examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
CC No. 55/05 Page 17 of 4332. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
33. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
34. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be CC No. 55/05 Page 18 of 43 permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
35. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 5%, then can the CC No. 55/05 Page 19 of 43 accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises CC No. 55/05 Page 20 of 43 his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
36. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.
CC No. 55/05 Page 21 of 4337. As mentioned earlier, this judgment has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
38. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
39. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter CC No. 55/05 Page 22 of 43 remanded back to consider the statutory provisions under section 13(3) of PFA Act.
40. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
41. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
42. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be CC No. 55/05 Page 23 of 43 substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
43. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.
44. Even otherwise, if the variations, if they can be so called, are noticed, they are very marginal. Such variations are certainly due to time gap between the analysis by PA and CFL. Change in moisture content is always expected due to internal heat of the food article, outside atmosphere, presence of light and air, storing conditions etc. But when the complainant is not on account of presence or absence of moisture but on account of presence of synthetic colour, the nature and characteristics which would never change due to passage of time, no benefit can be granted to the accused. Even if the moisture content has undergone a change during the intervening period, the sample would still fail due to presence of such colouring matter.
45. Again, there is no merit in the contention that the colour of rice was different in two samples. Light Brown and Yellowish colours, as observed CC No. 55/05 Page 24 of 43 by the PA and CFL respectively, are similar in appearance as seen from naked eyes. Such observations were not scientifically analysed but were only as per physical appearance. There is nothing to show that these two colours are so different that it could lead to conclusion that there were two different samples. This is particularly when no such stand has been taken by the accused at the trial. Rather the accused confirmed the correctness of sample when the counterpart was produced in the court at the time of sending it to the CFL bearing his signatures and seals intact.
46. The further question is if the variations in the two reports were a result of the sample being not representative. For that, it is first to be seen if the sample was required to be representative. The incriminating ingredients in this case are artificial synthetic colours Tartrazine and Sunset Yellow FCF. The present case pertains to Rice which is a food grain falling in Item No. A.18.06.04 of Appendix-B of PFA Rules. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 28 lists the artificial/synthetic colours which can be added to the food articles and Rule 29 deals with the food articles in which synthetic food colours can be added. Rice or any other food grain is not a food article falling under Rule 29 wherein the food articles in which the synthetic colours as listed in Rule 28 are permitted to be added. Hence, no colour could be added to such food grains and use of any such synthetic colour is absolutely prohibited. The obvious inference is that use of such synthetic food colour is totally prohibited for use in Rice, though they are permitted in specified food articles within the prescribed limits. Reliance in this regard can be safely placed on the precedents titled as CC No. 55/05 Page 25 of 43 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 as well.
47. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colours used in the sample of Rice. Even if the said quantity is in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as these colours are not permitted within any limits for use in this food article. 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 colours could have entered the food articles being sold by him. But no evidence has been led by the accused to establish this fact. Both the colours have been duly identified by the CFL and in conformity to the PA. It is not that one colour was identified by the PA but more colours or different colours were identified by the CFL. Once such ingredients are found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to their quantity present. Thus, even if the samples were not properly homogenized, that would not make any difference as even its smallest quantity would be violative of the provisions. Homogenization would have at the most distributed the ingredients evenly in the entire sample but would have not resulted in absence of that ingredient. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of CC No. 55/05 Page 26 of 43 delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. No expert witness was examined in defence. No such defence was raised by the accused even in his statement under section 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused is required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve his purpose. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.
48. There is nothing to show that the variations as pointed out by the Ld. Defence Counsel is the result of sample being not representative. The certificate of Director CFL is final and conclusive which cannot be discarded or disbelieved on mere assumptions. Therefore, no benefit can be given to the accused on this count.
CC No. 55/05 Page 27 of 4349. There is nothing for the court to disbelieve the said report wherein artificial synthetic colours Tartrazine and Sunset Yellow FCF have 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 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 wherein he simply claimed that the reports of PA and CFL were not reliable.
50. Now coming to the defences raised by the accused. The defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them.
51. There is no evidence to show that the jhaba or bottles used by the food officials were not clean or dry as testified by them on oath. All the PWs have rather corroborated each other and testified that the jhaba was clean and dry when used. Mere bald suggestions would not serve the purpose of the accused. A suggestion is not an evidence and would not be sufficient to falsify depositions given on oath by the PWs.
52. It is not a case where there is no evidence to show that clean and dry utensils / implements had not been used. All the three witnesses categorically deposed that the jhaba / bottles were clean and dry when CC No. 55/05 Page 28 of 43 used and vehemently denied the suggestions that they were not so clean and dry or that some colour was sticking to them when used. Though there is some contradiction in the evidence of PW-1 and PW-2 on the one hand and that of PW-3 on the other had with respect to the use of a polythene bag or use of a cloth to clean the bottles / jhaba, yet the fact remains that there is no evidence of presence of any contaminant or adulterant in the implements used. There is no witness contrary to the depositions of the three PWs who might have stated on oath that the jhaba or bottle or pan scale or bag were not clean or dry. Except bald suggestions, which cannot be considered as proof of existence of a fact, there is nothing to fortify the stand of the accused. Ld. Counsel has failed to show as to what material was required to establish that the jhaba / bottles were clean and dry, other the corroborative testimony of the witnesses to this effect given on oath in the court without any material to arrive at a contrary conclusion.
53. All the PWs have corroborated the stand of each other on all other material facts. There is no material contradiction in their testimony that would go to the root of the matter. As human memory is liable to fade, some variations, improvements, omissions, contradictions and exaggerations are bound to creep in, but unless they are substantial or material enough, they have to be ignored. Witnesses cannot be expected to remember all minute details of the incident with scientific precision or mathematical accuracy after lapse of several years of incident.
CC No. 55/05 Page 29 of 4354. A careful perusal of the testimony would reveal some contradiction in the evidence of PWs. PW-1 and PW-2 stated that the rice was weighed on a clean pan scale. They never deposed about the commodity having been transferred to any polythene bag. They also claimed that the bottles were already clean and dry and therefore, they were not made further clean and dry at the spot. However, PW-3 contradicted their versions on these two counts by stating that the rice was weighed after putting it into a clean polythene bag and that the sample bottles had been made clean and dry at the spot with the help of a clean and dry cloth brought by the PFA team with it. Thus, there is an apparent variation in the two versions.
55. However, in my considered view, such variation by itself would not be a reason for the court to disbelieve the entire testimony of all the witnesses on all the other counts whatsoever. It is to be noted that the PW-3 was cross-examined in the year 2014, that is after about nine years of the incident. With lapse of such considerable time, some contradictions may creep in, as the witnesses cannot be expected to remember all such minute details of the day of lifting of sampling, particularly when the witnesses have been involved in such lifting of samples throughout their service. Their testimony which is in corroboration to each other on all material particulars cannot be rendered nullified just on account of minor contradiction on some points. Such contradictions would not go to the root of the matter in any case, primarily because all the three witnesses have categorically stated that all the implements / utensils were clean when used. All of them vehemently denied the suggestions that there was some contamination in the jhaba / bottles / pan scale / cloth. Similarly, if CC No. 55/05 Page 30 of 43 PW-3 could not answer some questions or answered some questions wrongly, that would not negate the corroborative evidence of PW-1 and PW-3. If their evidence is read as a whole, it would be seen that all the witnesses emphasised that clean and dry implements / utensils had been used. There is no evidence to establish otherwise the stand of the accused that the jhaba or pan scale or bottles were not clean and dry or that some colour was sticking thereto. No witness has been examined who could have supported the accused by deposing that such contamination was there at any stage of the sample proceedings and except bald suggestions, which have been clearly denied by the PWs, there is no material to fortify the defence taken by the accused.
56. Again, there is no merit in the contention that Tartrazine or Sunset Yellow FCF are water soluble colours and no prejudice would be caused to any customer because rice would be washed before preparation. Such a contention has been rejected by the Hon'ble High Court in Delhi Administration v. Ashwani Kumar [supra]. Again, 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. Even if it is accepted that the rice were meant to be cooked to be served to school children, that would lead to conclusion that the colour would have been washed. The rice purchased from the accused were not cooked rice. So, the court has to see the nature, quality and standard of rice at the time of taking of sample and not after considering its proposed use. No person gets unbridled right to put prohibited artificial colours in food article on the pretext that the article CC No. 55/05 Page 31 of 43 would be washed before being cooked and no actual harm would be caused.
57. Further, there is no force in the stand of the accused that the method of testing as adopted by the experts was not proper. PA had used paper chromatography test and CFL had used DGHS prescribed method. Well, no attempt was made by the accused to apply and cross-examine these experts under section 293 CrPC to ascertain the details, applicability, validity, reliability and intricacies of the methods applied. Without even cross-examining the experts when this option was available to the accused, he cannot dispute their reports on hypothetical grounds. They would have been the best persons to explain the things as they had analysed the sample. It to be noted that the reports on record are not the only documents to show the testing details. All the details of the tests performed, including the exact method used and the values / figures determined as well the calculations thereof are maintained in the concerned offices of the PA and CFL and the reports so given are only the final reports with opinion based on the analysis conducted and are given as per the format prescribed under the PFA Rules. If the accused was seriously disputing any particular report or wanted any clarification on any point on which the report was silent, he should have called the analyst under section 293 CrPC and also have summoned the detailed records as available and to question the analysts thereupon. But by not giving them any opportunity to explain the things, the court cannot find fault in the reports on the basis of mere assumptions and surmises. And not only the PA or CFL, the accused also chose not to examine any expert witness in CC No. 55/05 Page 32 of 43 defence to establish his stand that the paper chromatography test is not a sure test.
58. In any case, the PA report already stood superseded by the CFL report as per section 13(3) and (5) of PFA Act and has no value for any purpose. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320], as being strongly relied by the accused, would not help him. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles, as claimed. This test is internationally recognised and accepted method to detect presence of colours in food articles. This judgement is clearly distinguishable on facts of this case. This judgement 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 this judgement 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), this judgement would not apply.
59. Moving ahead, there is nothing on record to show that the food article was lying with the accused as a consumer and meant to be served to the school children free of cost. If he was to prepare the rice and sell them CC No. 55/05 Page 33 of 43 to school children against monetary consideration, then such sale would be covered within the definition of sale. The accused and the prosecution accept that the accused had handed over the copy of the agreement Mark- PW1/DA to the FI. This agreement was executed between the MCD and the proprietorship concern of the accused with respect to the supply of cooked meal to children of MCD Primary Schools under the Mid-Day Meal Programme. A bare perusal of the contents of this agreement would show that the food articles were not being served free of costs to the school children and rather the costs thereof were paid to the accused by the MCD. The price of cooked meal had been fixed and the accused was required to submit his bills to the school concerned who were in turn required to process the same and arrange for payment. Therefore, it is clear that the rice was being sold to the MCD, though the supply was being made to the MCD School Children. 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. In view of the agreement on record, the matter would come within purview of PFA Act. Thus, such sale would be squarely covered within the definition of 'sale' and governed by the PFA Act and Rules.
60. Similarly, there would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. There is no evidence on record to establish the claim of the accused that CC No. 55/05 Page 34 of 43 the rice used to be supplied by MCD and he was only cooking the same. There is no such averment in the agreement placed on record nor any witness has deposed to this extent nor any such document is on record to show that the raw material used to be supplied by the MCD or that the accused was only to cook the food. No person from MCD has been summoned in defence to establish this stand. There is no document to show as to what quantity of rice was received or being received by the accused, of what quality, under what brand and in which condition. Such a vague defence is without any evidence.
61. The only benefit which an accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him. However, no such stand has been taken by the accused. He never claimed that he had purchased the food article from any third person against any bill.
62. 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 are otherwise truthful and credit worthy and have withstood the test of CC No. 55/05 Page 35 of 43 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.
63. Lastly, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 07.03.2005 on the basis of the Public Analyst's report dated 30.12.2004. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as 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 CC No. 55/05 Page 36 of 43 method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
64. 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.
65. 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.
CC No. 55/05 Page 37 of 43The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.
66. 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.
CC No. 55/05 Page 38 of 4367. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
68. 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 CC No. 55/05 Page 39 of 43 products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
69. 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 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.
70. 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:
CC No. 55/05 Page 40 of 43"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
71. 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 CC No. 55/05 Page 41 of 43 of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in any food grain including rice. In this case, prosecution is for violation of section 2(ia)(a), (j) and (m) 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 and not with pesticides in carbonated water. But when the present case is also not with respect to pesticides in carbonated water but for presence of colour, the ruling in Pepsico's case would not help the accused.
72. No other stand has been taken by the accused persons at the trial or during the arguments advanced. No questions have been raised during trial or at the time of arguments about validity and correctness of the sanction to prosecute as given by the Director PFA.
73. The case in hand would be covered under section 2(ia)(j) of PFA Act as there is evidence to show that there was presence of colour which is not permitted in this article being totally prohibited. However, in the absence of quantity or percentage of colour, it cannot be said that the CC No. 55/05 Page 42 of 43 extent of colour used was affecting injuriously its nature, substance or quality thereof so as to make out violation of section 2(ia)(b) and this was precisely the reason why no prosecution has been launched under this provision. Violation of section 2(ia)(j) is punishable under section 16(1A) of PFA Act.
74. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(j) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, and has committed the offence punishable under section 7/16(1A) of PFA Act.
75. Having said so, the accused is held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.
76. Let the matter be listed for arguments on sentence.
Announced in the open court this 24th day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 55/05 Page 43 of 43