Da vs . Sant Kumar Page 1 Of 60 on 18 February, 2015

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Delhi District Court

Da vs . Sant Kumar Page 1 Of 60 on 18 February, 2015

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

C.C. No. 332/03

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

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

Versus

Sant Kumar S/o Sh. Shivcharan Dass Singhal
M/s Balaji Store,
110, Jamrudpur Village, G. K.1, New Delhi.

R/o B4344, Khan Pur Extension, New Delhi62
........ VendorcumProprietor
Serial number of the case : 332/03
Date of the commission of the offence : 29.05.2003
Date of filing of the complaint : 13.10.2003
Name of the Complainant : Sh. O.P.S. Ahlawat, Food
Inspector

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Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954 and Rule 23 r/w Rule 28 &
29 of PFA Rules, 1955, punishable
U/s 16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 18.02.2015
Judgment announced on : 18.02.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 29.05.2003 at about 04:45

p.m., Food Inspector Raj Pal Singh and FA Sh. S. Messy, under the supervision and

directions of SDM/LHA Sh. Bajrang Lal visited M/s Balaji Store, 110, Jamrudpur

Village, G. K.1, New Delhi, where accused Sant Kumar who was the vendorcum

proprietor was found present conducting the business of various food articles including

Dal Arhar, for sale for human consumption and in compliance of the provisions of the

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

Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected /

purchased the sample of Dal Arhar.

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

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

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

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

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

of PFA Act 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16

(1A) r/w Section 7 of the Act.

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

dated 13.10.2003. The accused after filing his appearance moved an application

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

from Central Food Laboratory and consequent thereto second counterpart of the

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

analysis vide orders dated 10.11.2003. The Director, CFL after analysing the sample

opined vide its Certificate dated 12.12.2003 that "sample does not conform to the

standards of split pulse (Dal) Arhar as per PFA Rules 1955 ". The Director so opined

as it was found "coloured with synthetic colouring matter viz. Tartrazine"

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

Bajrang Lal as PW1 and FI Sh. R. P. Singh as PW2 and pre charge evidence was

closed vide order dated 24.05.2006.

5. Charge for violation of provision of Section 2 (ia) (j) of PFA Act 1954,

punishable U/s 16 r/w section 7 of the Act was framed against the accused vide order

dated 30.10.2007 to which accused pleaded not guilty and claimed trial. Amended

Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act 1954,

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punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide

order dated 05.12.2014 to which accused pleaded not guilty and claimed trial.

6. In the post charge evidence the prosecution examined four witnesses

i.e. the then SDM/LHA Sh. Bajrang Lal as PW1, Food Inspector Sh. Raj Pal Singh as

PW2, FI Sh. O.P.S Ahlawat as PW3 and Field Assistant Sh. S. Messy as PW4 and

PE was closed vide order dated 26.08.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 25.05.2011

wherein the accused claimed himself to be innocent. Accused examined Sh. Lakhan

Lal as DW1 in his defence.

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

8. PW1 Sh.Bajrang Lal deposed that on 29.05.2003 while he was posted

as SDM/LHA of Haus Khas, Delhi under his supervision/direction FI Raj Pal Singh and

FA S. Messy went to M/s Balaji Store, 110, Jamrood Pur village, Greater Kailash1,

New Delhi where accused Sh.Sant Kumar was found conducting the business of the

food articles in that shop including "Dal Arhar" meant for human consumption. He

deposed that the FI Raj Pal and he himself disclosed their identity and intention for

taking the sample to which accused agreed then 1500 gms of Dal Arhar ready for sale

was taken from an open container bearing no label declaration. He deposed that the

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sample was taken at 04:45 pm. He deposed that the sample was taken after proper

mixing the Dal lArhar with the help of a clean and dry jhaba by rotating it in all possible

directions several time i.e clock wise, anti clock wise, up and downwards. He

deposed that the FI divided the sample into three equal parts by putting them in three

clean and dry bottles separately then each bottle containing the sample were

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

He deposed that then the vendor signatures were obtained on his LHA Slip bearing his

number and signature and the wrapper of the sample bottles in such a manner that a

portion of his signature were on the wrapper as well as well on the LHA Slip. He

deposed that Rs. 42/ was given to the vendor towards the sample price vide vendor

receipt Ex.PW1/A. He deposed that then Notice in Form VI Ex.PW1/B was given to

the accused with his endorsement at portion A to A bearing his signature at point A.

He deposed that Panchnama Ex. PW1/C was prepared. He deposed that all these

documents Ex. PW1/A to Ex.PW1/C were read over and explained to the accused in

Hindi and after understanding the same accused signed at point A, witness signed at

point B and the FI signed at point C, respectively. He deposed that the FI tried his

best to procure some public witnesses to join the sample proceedings but as none

agreed for the same, on his request, FA S. Messy agreed and joined as witness. He

deposed that the two counter parts of the sample were deposited in intact condition

with the LHA on 30.05.2003 vide receipt Ex. PW1/D bearing his signature at point A

with the intimation that one counter part of the sample has already been deposited in

intact condition with the PA along with two copies of memo of Form VII in a sealed

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packet. He deposed that PA receipt is Ex. PW1/E. He deposed that the PA Report

Ex. PW1/F was received according to which the sample was found adulterated

because it was coloured with synthetic coloring matter i.e Tartrazine. He deposed

that on completion of the investigation by the FI, the complete case file along with all

statutory documents were sent through him to the then Director (PFA), Sh. S.L. Bansal

who after going through the case file, applied his mind and gave his consent for

prosecution Ex. PW1/G which bears his signature at point A. He deposed that the

complaint Ex. PW1/H was filed in court by FI Sh. O.P.S. Ahlawat. He deposed that

the intimation letter Ex. PW1/J bearing his signature at point A was sent along with the

PA report by registered post to accused as mentioned therein which was not received

back undelivered. He deposed that the photocopy of the postal registration receipt is

Ex. PW1/K bearing the relevant entry at portion A.

9. During his cross examination he stated that he cannot say that colour is

washed away, if Dal Arhar is washed prior to cooking. He stated that other food

articles were also lying in the shop of the accused. He stated that there were other

jhabas in different food articles and the jhaba was used in mixing the sample

commodity was lying in the gunny bag and was clean and dry. He stated that vendor

also made clean and dry the jhaba. He denied the suggestion that jhaba was not

made clean and dry at the spot. He stated that bottles were already dry and clean

and the same were not made again dry and clean at the spot. He stated that no other

sample was lifted from any other shop on that day. He stated that except his code slip

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and Report under Rule 9(e), he did not sign on any other documents prepared at the

spot as a witness.

10. PW2 F.I. Raj Pal Singh, PW3 FI O. P.S. Ahlawat and PW4 FA S. Messy

deposed on the same lines as deposed by PW 1 in his examination in chief. In addition

PW2 FI Raj Pal Singh deposed that he further investigated the matter and sent a letter

to STO Ward no. 88 Ex. PW2/A to which the STO replied at portion A according to

which the said firm was not registered in that ward. He further deposed that he sent a

letter to MCD South Zone Ex. PW2/B and the reply of the same is Ex. PW2/C

according to which no trade license was issued to the said firm. He deposed that he

sent two letters Ex. PW2/D and Ex. PW2/E to the accused but he did not reply

regarding the details/constitution of the firm in question.

11. This so far is the prosecution evidence in the matter. The accused led the

defence evidence as under:

12. DW1 Lakhan Lal deposed that he knows accused Sant Kumar for the last

about 10 years. He deposed that in the year 2003 the accused was running a Kiryana

Shop in the village, Jamrudpur. He deposed that he used to purchase grocery items

from the shop of the accused. He deposed that he does not remember the exact date

but it was in the month of May, 2003 between 45 pm, he had gone to the shop of the

accused to purchase some grocery items. He deposed that he saw 3 persons asking

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the accused to draw sample of Dal Arhar from a polythene, which was kept inside the

shop. He deposed that there was approximately 1 ½ - 2 Kg of Dal. He deposed that

the accused was pleading with those 3 persons that the said Dal was meant for use at

his home and was not for sale. He deposed that he was saying that they may take

the sample from other dals, kept there for sale but, those persons were insisting for

taking sample from that Dal Arhar, kept in the polythene. He deposed that thereafter,

he left the shop. He deposed that the accused has discontinued running the said

shop/business.

13. During his cross examination he stated that he does not know as to what

was the Municipal Number of the shop of the accused. He stated that at that time,

accused was residing at Khan Pur, Delhi which was at a distance of about 67 km from

the shop. He stated that the moment he noticed the polythene bag, containing the dal

in question, the said bag was in the hand of some official, who might be a PFA Official.

He stated that he did not notice any label or any slip etc either in the said polythene

bag or otherwise, containing a stipulation that the said dal was not for sale. He stated

that neither himself nor the accused in his presence made/lodged any complaint to

the police official by dialing 100 and complaining that the officials were forcing to take

a sample from a particular bag, containing Dal, which was meant for use at the house

of the accused. He stated that the accused also did not lodge any protest or complaint

either with the Head of the village Panchayat i.e the village in which the shop in

question was situated or with any other person, having any sort of authority. He stated

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that he has no knowledge as to whether the payment in the sum of Rs. 42/ was made

to the accused towards the purchase price of the sample commodity or that any

receipt thereof was also executed. He stated that he has no knowledge if the accused

had or had not made any sort of complaint subsequent to the incident thereby alleging

that the dal purchased as sample was not for sale. He stated that in his presence, no

document of any sort was prepared or got signed from the accused. He stated that

he was also not aware as to at what time he had left the premises. He again said

that he had left the spot after about 510 minutes of his reaching there at the spot as

he could not purchase the desired article from the shop in question i.e. The shop of the

accused as the same was not available with him. He stated that it might have been

05.00 pm when he left the spot. He stated that he was not aware as to in which

language, the accused use to append his signatures. He denied the suggestion that

the total quantity of Dal was not approximately 1 ½ kg but, it was 56 kg or that it was

lying in a container and not in a polythene bag. He denied the suggestion that he was

unaware about all these things because he was not present there at the appropriate

time. He denied the suggestion that he was deposed falsely so as to save the

accused.

14. This so far is the evidence in the matter.

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

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

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

prosecution in this case.

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

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

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector Raj Pal Singh coupled with the report of the

Director dated 12.12.2003 that accused Sant Kumar was indeed found selling Dal

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

Tartrazine.

18. The star / the material witness of the prosecution i.e. Food Inspector Raj

Pal Singh categorically proved the sample proceedings dated 29.05.2003 as were

conducted in the presence of SDM/LHA. From the deposition of the prosecution

witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C

i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution,

the admissions made by the accused during his examination under Section 313 Cr.

P.C. as recorded before the Ld. Predecessor of this Court on 25.05.2011 which are

admissible in evidence against the accused in view of sub clause (4) of Section 313

Cr. P.C as well as the law laid down in Benny Thomas Vs. Food Inspector, Kochi

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2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal)

842, Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh.

Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V.

Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam

2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC

258, State of H.P. V. Wazir Chand AIR 1978 SC 315 no doubt remains that the

sample of Dal Arhar was indeed collected by the Food Inspector for analysis from M/s

Balaji Store of which the accused is the proprietor cum vendor.

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

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

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

loopholes /contradictions.

Public witness

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

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

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

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

person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

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

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

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

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

corroboration by public persons unless the testimony suffers from fatal

inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector

was unable to secure the presence of independent persons and was therefore driven

to take the sample in the presence of the members of his staff only. It is easy enough

to understand that shopkeepers may feel bound by fraternal ties............ Similarly in

Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no

requirement of independent corroboration by public persons unless the testimony

suffers from fatal inconsistencies. Further reliance may be placed upon the law laid

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

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

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

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

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

Vs. Narayanasamy 1997 (2) FAC 203.

22. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)

FAC 230, the Hon. Apex Court held as under:

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".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".

23. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.

Apex Court held as under:

".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is

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required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.

State
24. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".

25. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."

26. It is writ large from the deposition of PW1, PW2 and PW4 that FI Raj Pal

Singh made sincere efforts to join the public persons in the sample proceedings but

none agreed. I have no reason to disbelieve them. It is very hard these days to get

association of public witnesses in criminal investigation/implementation of

administrative powers/enforcement of law seeking to curb anti social evils. Normally,

nobody from public is prepared to suffer any inconvenience for the sake of society.

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Absence of public witness in this case is not fatal to the prosecution as the prosecution

story inspires confidence and lifting of the sample stands admitted/unambiguously

proved. Furthermore, I find no reasons why the Food Inspector or the SDM would

falsely implicate the accused or depose falsely against him. There is nothing on

record to suggest that the FI, the SDM were inimical to the accused or had any grudge

or enmity to falsely implicate him.

Rule 14

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

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

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

clean the sample bottles, the brown envelope used for measuring the Dal as well as

the instrument i.e. jhaba with which the sample was poured in the bottles. It was

argued that the colour was already sticking to the Jhaba, the brown envelope and the

sample bottles and it was this colour which was detected by the Director. It was

argued that Rule 14 of the Act is mandatory and not directory and in case there is no

strict adherence to Rule 14, benefit has to be given to the accused. Reliance was

placed on the law laid down in State of Gujarat Vs. Harumal Retumal and others

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

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

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

counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30. I have perused the deposition of the Food Inspector i.e. Raj Pal Singh

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

"........The sample of 1500 gms of Dal Arhar was taken from an open
container bearing no label declaration, after proper mixing with the help of clean and
dry Jhaba by rotating in all possible directions i.e. Clockwise, anticlockwise, up and

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downwards. ........I divided the sample then and there into three equal parts by putting
them into three separate clean and dry bottles."

31. During his cross examination he stated as under:

"The sample commodity was weighed in a clean and dry brown envelope
which was provided by the vendor. It is wrong to suggest that the envelope was not
clean and dry. .....Bottles were already dry and clean and the same were not made
again dry and clean at the spot......Clean and dry Jhaba was provided by the vendor
after cleaning the same by him."

32. Similarly PW1 the then SDM/LHA Sh. Bajrang Lal deposed as under:

"The sample was taken after proper mixing the Dal Arhar with the help of
a clean and dry Jhaba by rotating it in all possible directions several times i.e.
Clockwise, Anticlockwise, up and downwards. The FI divided the sample into three
equal parts by putting them in three clean and dry bottles separately then each bottle
containing the sample were separately packed, fastened, marked and sealed
according to PFA Act and Rules."

33. During his cross examination he stated as under:

".......There were other Jhabas in different food articles and the Jhaba was used
in mixing the sample commodity was lying in the gunny bag and was clean and dry.
Vendor also made clean and dry the Jhaba. It is wrong to suggest that Jhaba was not
made clean and dry at the spot. Bottles were already dry and clean and the same
were not made again dry and clear at the spot."

34. PW4 FA Sh. S. Messy deposed as under:

" ......The sample was taken by proper mixing it with the help of clean and
dry jhaba by rotating it in all possible directions i.e. Downwards, upwards, clockwise
and anticlockwise several times. The FI Raj Pal Singh divided the sample then and

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there into three equal parts by putting them in three clean and dry glass bottles."

35. During his cross examination he stated as under:

".....Bottles were already dry and clean and the same were not made again dry
and clean at the spot. Clean and dry Jhaba was provided by the vendor as such
same was not made again clean and dry at the spot."

36. Hence the prosecution witnesses consistently deposed regarding the

jhaba, the envelope as well as the sample bottles being clean and dry. From their

deposition/statement no doubt remains that the sample proceedings were conducted

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

were clean and dry. I have no reasons to disbelieve them. As discussed above I find

no reasons why the FI or the SDM would falsely implicate the accused that is to say

why they would use contaminated or colored instruments or bottles for sampling. The

defence has failed to prove any motive which could be assigned to the above officials

for falsely implicating the accused. Moreover nothing on record has been proved to

the contrary i.e. the defence has not proved that the Food Inspector did not comply

with the provisions of the Rule 14. Just because the defence is challenging the

sampling process conducted by the Food Inspector / asserting that Rule 14 was

violated is not sufficient to either disbelieve or throw away / outrightly reject the

testimony of the Food Inspector. I have also gone through Section 114 (e) of the

Indian Evidence Act.

Section 114 reads as under:

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

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

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

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

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

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

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

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

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

Assessar, 5 OLJ 179)".

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

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

it may prove it.

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

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

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

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

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

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

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

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

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

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

(2002) 5 FAC 234.

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

was observed as under:

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

42. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

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

"there is no provision or requirement of law that the bottles must be sterilized at the

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time of taking of the sample in the presence of the witnesses.". Similarly was held in

P.A. Anil Vs. Food Inspector 2009 (2) FAC 43. In Lalji Bhai Amrit Lal Vs. State

of Gujarat 2010 (2) FAC 163, it has been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

44. The Ld. Defence counsel had also argued that as per the prosecution

story the FI had used a brown envelope for the purpose of weighing the Dal. It was

argued by the Ld. Defence counsel that it was the colour of the brown envelope which

was detected by the Director/Analyst. However I find no merits in the above

arguments of Ld. Defence counsel. Mere use of brown envelope by the FI for

measuring the Dal at the time of sampling did not prejudice the accused in any manner

nor entitles him to acquittal. The witnesses consistently deposed that the brown

envelope was clean and dry. They denied the suggestion that some colour was

sticking to the brown envelope or that it was not clean or dry. During the cross

examination of the prosecution witnesses not even a single suggestion was given to

them that this brown envelope was wet or emitting some colour which might have

stuck to the sample of dal. I have no reasons to disbelieve the prosecution witnesses

or doubt that they did not use a proper method or instruments and other intermediaries

for the purpose of taking the sample. Furthermore the Director had detected Tartrazine

colour and not brown as was the colour of the envelope. Moreover, the defence did

CC No. 332/03
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not lead any evidence to substantiate their claims that it was the colour of the brown

envelope which got stuck with the Dal/sample and was detected by the Director/

Analysts. No evidence was led by the defence to prove that the brown envelope was

made up of/one of the colour used in manufacturing brown envelope was Tartrazine.

The director's report regarding the detection of tartrazine colour has remained

unchallenged and I find no reasons to disbelieve him.

Discrepancies

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

in the deposition of PW1, PW2 and PW4 qua the sample proceedings. It was argued

that though the FI and the SDM claimed that the Jhaba used for lifting the sample was

made clean and dry at the spot however the FA claimed that as the jhaba was already

clean and dry the same was not made again clean and dry at the spot. Furthermore

though the SDM in his examination in chief claimed that the Dal was lifted from the

container however during his cross examination he stated that the jhaba used for

mixing the sample commodity was lying in the gunny bag which means an unclean

jhaba was used for lifting the sample. The Ld. Defence counsel argued that these

discrepancies itself proves that the prosecution witnesses were deposing falsely and

sample proceedings were bad and there was violation of Rule 14.

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

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the deposition of PW1, PW2 and PW4 however the discrepancies as pointed out by

Ld. Defence counsel are too trivial in nature to be given any weightage. The

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

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

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

were recorded in the year 2006 and 2010 i.e. after a gap of around 37 years. After

such a long time period a person cannot be expected to give a parrot like version or

depose with mathematical precision. Only a tutored witness can depose so. Error due

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

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

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

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

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

only recall the main purport of the conversation. It is unrealistic to expect a witness to

be a human tape recorder. Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid succession or in a short

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

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

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

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

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

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

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

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

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

case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.

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

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

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

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

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

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

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

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

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

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

gerated account. Court can sift the chaff from corn and find out truth from the testimo

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

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

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

collecting samples/witnessing sample proceedings almost daily and sometimes more

CC No. 332/03
DA Vs. Sant Kumar Page 24 of 60
than one sample is collected in a day. During their stint as Food Inspector and

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

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

case at hand the discrepancies as above does not effect the prosecution story at all.

It does not render it unreliable or untrustworthy. Due to lapse of time a witness may

not be able to recollect the exact facts with mathematical precision.

50. In the case at hand it stands proved from the deposition of the prosecu

tion witnesses that a clean and dry jhaba was used for lifting the sample of Dal Arhar.

No doubt the FA had claimed that the jhaba was not made clean and dry at the spot

however he had categorically stated that the jhaba was already clean and dry. More

over his deposition was recorded after 7 years of lifting of the sample and therefore it

cannot be completely ruled out that he had mis stated the facts on account of lapse of

time/memory. Regarding the statement of the SDM that the jhaba was lying in the gun

ny bag though the Dal was lifted from a container it is to be seen that the examination

in chief was recorded in the year 2006 whereas the cross examination was conducted

in the year 2010 i.e. after 7 years of the lifting of the sample and 4 years of the record

ing of examination in chief. He could not have remembered the minute/exact details af

ter such a long time. Nonetheless he as well as the FI had categorically stated that not

only the Jhaba was clean and dry but it was again made clean and dry at the spot by

the vendor. Hence I find no fault in the sample proceedings.

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Homogenization / Mixing of Sample.

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

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

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

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

Analyst and Director, CFL. For example the moisture content in the sample was

detected by the PA as 6.70% whereas the Director found the same to be 9.80%.

Similarly the PA did not find any damaged grains in the sample sent for analysis

whereas the Director found the damaged grains at 2.6%. It was argued that these

variations prove that the sample were not representative. Reliance was placed upon

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

(2) FAC 2012.

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

Firstly it is evident from the deposition of the Food Inspector and the other

complainant witnesses as discussed above that the sample was taken after mixing/

rotating the Dal thoroughly in all possible directions several times with the help of a

Jhaba. Not even a single suggestion was given to any of the prosecution witnesses

that the Dal was not properly mixed before lifting the sample of the same. Their

testimony has thus remained unchallenged/unrebutted on this material aspect and I

have no reasons to disbelieve the Food Inspector or the other complainant witnesses

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DA Vs. Sant Kumar Page 26 of 60
in this regard. Secondly, there is no requirement of homogenization or making the

sample representative prior to its lifting either under the Act or the Rules appended

therein.

53. Thirdly, there was no requirement of mixing or making the sample i.e.

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

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

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."

54. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full

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Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food

inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.

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

Inspector categorically proved that he had made a payment of Rs. 42/ to the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice CC No. 332/03 DA Vs. Sant Kumar Page 29 of 60 cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".

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

"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.

It was further observed:

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

57. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not. CC No. 332/03 DA Vs. Sant Kumar Page 30 of 60

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

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

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

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

60. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/container in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is CC No. 332/03 DA Vs. Sant Kumar Page 31 of 60 usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Whether Dal meant for self consumption by the vendor and not for sale

61. It was also one of the arguments that the Dal the sample of which was lifted by the FI was not meant for sale as such but was meant for consumption by the vendor and his family and hence the Dal not meant for sale no offence under the Act is made out. However I find no merits in the contentions of Ld. Defence counsel. Firstly, it stands proved from the deposition of the prosecution witnesses, statement u/s 313 Cr.P.C. of the accused as well as defence evidence that the vendor was running a kiryana store in the name and style of M/s Balaji Store and that the business carried in the above name and style was in respect of sale of grocery items i.e. Dal, pulses etc. Therefore when the sample was lifted from the above store the business of which was sale of general food articles like Dal, pulses etc. I have no doubt whatsoever that the dal Arhar was also meant for sale for human consumption. Secondly, during the cross examination of the FI who had lifted the sample and the SDM under whose supervision the sample proceedings were conducted not even a single suggestion was CC No. 332/03 DA Vs. Sant Kumar Page 32 of 60 given to them that the Dal was meant for self use and not for sale to public at large. Therefore I find no reasons to disbelieve their testimony that the Dal was meant for sale for human consumption. Thirdly, the suggestion that the Dal was meant for self/personal consumption of the vendor was given only for the first time to the Field Assistant which the Field Assistant categorically denied. Fourthly, as discussed above at paragraph 55 once the food article is sold to the Food Inspector against the payment as was made in this case or even if the vendor had refused to accept the payment it amounts to sale for the purpose of this Act. Reliance may be placed upon the law laid down in Mohd. Yamin Vs. State of UP, 19481997 FAC (SC) 280 wherein the Hon. Apex Court held "........A Sale to the Food Inspector is a sale for the purpose of Section 16 of the Act".

62. In Atanu Datta Vs. Corporation of Calcutta & Anr., 1997 (2) FAC 45, the sample was taken from the factory and was found adulterated. Defence plea was that the stock from which the sample was taken was not for sale and that the place was also not a place for sale being a factory. The defence plea was rejected and it was held that the premises from which sample was taken was no doubt used as a place for storage for food articles for sale. The court in para 4 observed as under:

"The question which now calls for adjudication is whether in the circumstances as above, a person will have no criminal liability, if at the time of taking the sample by a Food Inspector, he gives out that the stock from which the sample was taken, was not meant for sale. The answer to this question must be in the negative, as otherwise it would be within the power of a person knowingly selling adulterated food to frustrate CC No. 332/03 DA Vs. Sant Kumar Page 33 of 60 the object of the Act, by merely taking the stance that the stock from which the sample was taken, was not meant for sale, which cold not have been the intention of the legislature. Therefore, if any adulterated article of food is found in the place of business, which is also used as a place for sale, it should be presumed that the article of food was stored for sale.".

63. Similarly was held by the Hon. Apex Court in Food Inspector, Calicut Corporation Vs. Charukattil Gopalan 19481997 FAC (SC) 73, it was observed as under:

"To sum up we are in agreement with the decision reported in Municipal Board, Faizabad vs. Lal Chand Surajmal and another AIR 1964 All 199 and the Public Prosecutor vs. Palanisami Nadar AIR 1965 Mad. 98 to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under Section 16(1) (a) (i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article".

Variations.

64. As far as arguments regarding variations in the report of Public Analyst and the Director, CFL are concerned I find no merits in the arguments of Ld. Defence CC No. 332/03 DA Vs. Sant Kumar Page 34 of 60 counsel that solely on account of variations as held in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports. No question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

65. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.

66. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts CC No. 332/03 DA Vs. Sant Kumar Page 35 of 60 mentioned in it.

67. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"

68. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor Dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari Dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:

"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".

69. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.

CC No. 332/03 DA Vs. Sant Kumar Page 36 of 60

70. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:

".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.

9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."

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

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

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

"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill CC No. 332/03 DA Vs. Sant Kumar Page 37 of 60 held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"

It was further observed in para 3 as under:

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

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

"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the 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 CC No. 332/03 DA Vs. Sant Kumar Page 38 of 60 record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

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

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

75. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:

"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so CC No. 332/03 DA Vs. Sant Kumar Page 39 of 60 because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".

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

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

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

"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical CC No. 332/03 DA Vs. Sant Kumar Page 40 of 60 purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".

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

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

In para 15 it has been further observed as under:

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

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

"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only.".

80. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under: CC No. 332/03 DA Vs. Sant Kumar Page 41 of 60

"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".

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

"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."

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

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

83. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) CC No. 332/03 DA Vs. Sant Kumar Page 42 of 60 FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

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

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

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

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

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

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

CC No. 332/03 DA Vs. Sant Kumar Page 43 of 60

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

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

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

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

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

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

14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of CC No. 332/03 DA Vs. Sant Kumar Page 44 of 60 disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

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

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

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

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

CC No. 332/03 DA Vs. Sant Kumar Page 45 of 60

"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.

91. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.

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

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

CC No. 332/03 DA Vs. Sant Kumar Page 46 of 60

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

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

95. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time CC No. 332/03 DA Vs. Sant Kumar Page 47 of 60 and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass CC No. 332/03 DA Vs. Sant Kumar Page 48 of 60 1978(1) FAC 211.

96. It is also to be seen that the variation in the two reports is only in respect of the moisture content in the sample bottles/food articles stored in the sample bottles and damaged food grains found by the Director which the PA did not detect. Firstly, as far as the variation in the moisture content is concerned it is to be seen that the sample conformed to the standard of moisture both in the analysis by the PA as well as by the Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the moisture content becomes insignificant. Furthermore Ld. SPP rightly pointed out that the analysis by the PA was done in the month of June whereas the sample was analyzed by the Director in the month of December. The temperature, the humidity, moisture etc. is drastically different in June and December. Even in an absolutely air tight bottle, the temperature in the bottle/moisture in the bottle containing food grain/Dal will have a change on account of the outside temperature, pressure, moisture etc. as it is a natural phenomenon. Secondly, even the damaged food grains were within the prescribed limit. Furthermore, in heterogeneous food products like Dal the adulteration can never be uniform and even if the Food Inspector with all the expertise available at his disposal takes the sample after properly mixing/ homogenization still there will be slight difference/variation in the sample which is divided into/put into three different sample bottles/counterparts. One part of the sample may have more damaged grains CC No. 332/03 DA Vs. Sant Kumar Page 49 of 60 then the other and may be the third may not have any damaged grains. The FI had purchased 1500 gms of Dal Arhar and it was divided into three counterparts/put into three different bottles. One counterpart went to PA and other was sent to the Director by the court. Upon division into three parts the damaged grains were more in one part then the other and not in the third part. This is practically possible and that is what happened in this case.

97. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the CC No. 332/03 DA Vs. Sant Kumar Page 50 of 60 dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

Use of colour.

98. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

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

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those CC No. 332/03 DA Vs. Sant Kumar Page 51 of 60 enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

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

100. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:

" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular CC No. 332/03 DA Vs. Sant Kumar Page 52 of 60 coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".

101. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.

102. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:

"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)

(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"

CC No. 332/03 DA Vs. Sant Kumar Page 53 of 60

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.

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

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

104. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health". CC No. 332/03 DA Vs. Sant Kumar Page 54 of 60

105. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:

"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".

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

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

107. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and CC No. 332/03 DA Vs. Sant Kumar Page 55 of 60 Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

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

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

Paper Chromatography Test.

110. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography CC No. 332/03 DA Vs. Sant Kumar Page 56 of 60 test. It was observed as under:

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

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

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

CC No. 332/03 DA Vs. Sant Kumar Page 57 of 60 Percentage of colour

111. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was CC No. 332/03 DA Vs. Sant Kumar Page 58 of 60 held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

The complaint ante dated to the sampling proceedings.

112. Lastly it was argued that the complaint and the prosecution as such is bad in law and therefore the accused is to be acquitted on this ground alone. It was argued that though as per prosecution story the sample was lifted on 29.05.2003 however the complaint filed by Food Inspector O.P.S. Ahlawat bears the date as 13.03.2003. It was argued that it itself proves that the entire proceedings were merely an eye wash/fake and that the FI had already drafted the complaint much before the lifting of the sample proceedings. However I find no merits in the same. It stands proved that the sample was lifted on 29.05.2003. The deposition of prosecution witnesses coupled with documents Ex. PW1/A to Ex. PW1/C etc. leaves no doubt regarding the lifting of the sample on 29.05.2003. As far as the date i.e. 13.03.2003 appearing on the complaint is concerned it appears to be merely a typographical error/over sight. It is to be seen that sample was lifted by the FI Rajpal Singh whereas the complaint was filed in the court by FI O.P.S. Ahlawat. As already discussed above in detail I find no reasons why the Food Inspector would falsely implicate the accused. The defence could not prove any motive which could be assigned to the Food Inspector for their colluding with each other to falsely implicate the accused. CC No. 332/03 DA Vs. Sant Kumar Page 59 of 60 Furthermore the consent for prosecution was granted by the Director, PFA only on 26.08.2003 and therefore there was no occasion for complaint to be prepared on 13.03.2003. More so when it is reflected in the para 5 of the complaint that the Director had accorded the consent for prosecution of the accused. Furthermore the PA's report was received on 10.06.2003 which is categorically mentioned in the para 2 of the complaint which itself proves that the date 13.03.2003 is solely on account of typographical error/oversight. Lastly during the cross examination of O.P.S. Ahlawat and for that matter FI Raj Pal Singh the discrepancies as above were not put to them so as to substantiate the defence claim that the complaint is ante dated.

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

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

Announced in the open Court                                           (Gaurav Rao)
on 18th February 2015                                             ACMMII/ New Delhi




CC No.  332/03
DA  Vs. Sant Kumar                                                                          Page 60 of 60

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