Delhi District Court
"34. As Far As Grounds 1 And 2 Are ... vs Unknown on 30 April, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 177/06
Unique Case ID No. 02403R0406382006
Date of Institution: 20.07.2006
Date of reserving judgement: 21.04.2016
Date of pronouncement: 30.04.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Munish Kumar
S/o. Sh. Ram Gopal
R/o. J-4/71A, Khirki Extension,
Malviya Nagar, New Delhi
A-2) Ram Gopal
S/o. Lt. Sh. Balwant Singh
R/o. J-4/71A, Khirki Extension,
Malviya Nagar, New Delhi ... Accused persons
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused CC No. 177/06 Page 1 of 38 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 Munish Kumar is stated to be the vendor of M/s. Deepak Sweets and Restaurant, of which accused no. 2 Ram Gopal is stated to be the licensee, from where the food article, that is, 'Boondi ke laddoo' was lifted for sampling.
2. As per the complaint, on 29.11.2005, the food officials consisting of Food Inspector (FI) C. B. Boora, and Field Assistant (FA) Shivji Mehto under the supervision of Local Health Authority (LHA)/SDM Ms. Sonika Singh reached along with their staff at M/s. Deepak Sweets and Restaurant at Shop No. 122, Mehar Chand Market, Lodhi Colony, New Delhi- 110003, where the accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Boondi ke Laddoo from the vendor, lying in open tray bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 28.12.2005, the PA found the sample to be adulterated on the ground that total dye content of the synthetic colour used exceeded the prescribed maximum limit of 100 ppm. Upon receipt of report, the SDM/LHA ordered investigation which was CC No. 177/06 Page 2 of 38 carried out by the FI, which revealed that accused no. 2 was the licensee of the restaurant. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 20.07.2006 alleging violation of section 2(ia)
(j) and (m) of PFA Act, read with Rules 28, 29 and 30 of PFA Rules, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 20.07.2006. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 04.09.2006, opining the sample to be in violation of Rule 44-A of PFA Rules, having tested positive for Kesari Dal flour. Synthetic colour tartrazine was also detected but there was no observation that it was beyond the permissible limits.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 Ms. Sonika Singh and PW-2 FI C. B. Boora. On the basis of their depositions, charge was framed against the accused persons on 25.09.2009 for commission of the offence punishable under section 7/16 PFA Act, being violation of section 2(ia)(a), (j) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, the witnesses examined in pre-charge stage were recalled for further cross-
CC No. 177/06 Page 3 of 38examination in post-charge stage. Additionally, the prosecution examined PW-3 FA Shivji Mehto in post-charge stage.
5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 29.11.2005 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gms of Boondi ke Laddoo after breaking them into smallest possible pieces and mixing/homogenizing it in a clean and dry tray using a clean and dry spoon, dividing it in three parts and putting in clean and dry bottles, putting 40 drops of formalin in each bottle as preservative, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C and Raid Report Ex. PW-1/D. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/F and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW- 1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-2. He sent letter Ex. PW-2/A to the accused no. 1 and received his reply Ex. PW-2/B. He also sent letters Ex. PW-2/C and Ex. PW-2/D to STO and DHO, MCD and got their replies. Thereafter, sanction Ex. PW-1/H was taken from the Director PFA and the complaint Ex. PW-1/J was filed in the court. Intimation Letter Ex. PW-1/K was sent CC No. 177/06 Page 4 of 38 to the accused persons along with copy of PA report vide postal receipt Ex. PW-1/L. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sample proceedings were not conducted in the presence of the accused no. 1 or that there was no adulteration, though it was admitted that accused no. 2 was not present at the spot.
6. Statements of the accused persons under section 313 CrPC were recorded on 29.06.2012 wherein they denied the allegations and pleaded innocence. Accused no. 1 denied his presence at the spot, though admitted the proceedings dated 29.11.2005. Accused no. 2 stated that he had no concern with the shop as he was only a lisencee. They claimed that no efforts were made to join public witnesses. They stated that reports of chemical experts were wrong due to improper sampling method and they being highly divergent. They chose not to lead evidence in defence.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against both the accused persons beyond reasonable doubt, on the ground that the accused have not been able to rebut the findings in the CFL report dated 04.09.2006 which as per section 13(3) and (5) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various CC No. 177/06 Page 5 of 38 missing links in the testimony of witnesses. Ld. Counsel has contended that there is variation in the reports of the PA and CFL, in as much as no kesari dal was found in the sample by the PA and therefore, the samples were not representative. It is then pointed out that no percentage or amount of kesari dal has been given by the CFL, arguing that it was negligible and presence of only traces of such kesari dal would not be an offence as it cannot be called as an 'mixture'. It is also contended that proper methodology was not adopted by the CFL for detecting kesari dal, contending that the paper chromatography test used was not a reliable test.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for both the accused persons and have carefully perused the material available on record.
10. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a), (j) and (m) of the PFA Act. This is important to note because the ingredients of these offences are different and distinct. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(j) deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an CC No. 177/06 Page 6 of 38 article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
11. The commodity in the present case is Boondi ke Ladoo, which is not a standardized food article falling under any of the items under Appendix-B of PFA Rules. It is a proprietary item as per Rule 37-A of PFA Rules. The alleged violation in the present case is that of Rule 44-A of PFA Rules which prohibits sale, possession or use as ingredient in the preparation of any article of food intended for sale Kesari gram, Kesari dal or Kesari dal flour and their mixtures with Bengal-gram, dal or flour. It is not the defence of the accused persons that such Rule 44-A is not applicable to the food product in question or that the said food product was not for sale for human consumption.
12. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matters, though the CFL did not find the colour to be beyond the permissible limits. However, the CFL did find the presence of Kesari dal flour as well by paper chromatography test.
13. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
CC No. 177/06 Page 7 of 3814. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
15. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
16. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the CC No. 177/06 Page 8 of 38 scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
17. Thus, there can be no two views on the proposition that the report of CFL supersedes the report of PA and has the effect of nullifying the same. Upon certificate of CFL, the contents and findings of report of PA cannot be read.
18. However, in view of the judgements titled as Kanshi Nath v. State [2005(2) FAC 219], as relied upon subsequently in various judgements including State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398], it is clear that despite such finality to the CFL report, it would still be open for the accused to establish that the CC No. 177/06 Page 9 of 38 sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this fact.
19. The question is, to what extent the PA report can be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the prosecution or the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
20. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have CC No. 177/06 Page 10 of 38 been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".
21. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed CC No. 177/06 Page 11 of 38 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.".
22. The case of MCD v. Bishan Sarup [supra] was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director".
23. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation CC No. 177/06 Page 12 of 38 of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
24. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. There is no requirement that to give validity to the report of CFL, it should be similar on all points as determined by the PA. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. There is no rule that if the CFL detects something additional to what has been detected by the PA, the report of CFL shall lose its conclusiveness and finality. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL. But mere time gap in analysis by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions or hypothesis. If the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact caused to him on account of any such delay, benefit would certainly go to him. One such situation in CC No. 177/06 Page 13 of 38 favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter or evidence adduced by the prosecution and defence and not a matter or assumptions.
25. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
26. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act CC No. 177/06 Page 14 of 38 or Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
27. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
CC No. 177/06 Page 15 of 3828. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of 'Sodium Chloride' when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under 'ideal conditions', the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
29. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are 'substantial enough' so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of 'Sodium Chloride'. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all the other chemical experts with respect to all other ingredients. It was not laid down that in CC No. 177/06 Page 16 of 38 every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
30. Such an interpretation as being suggested by the defence, that any variation more than 0.3% would lead to acquittal, is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poison is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Certainly no. This position would not change even if there is huge delay in analysis by two experts. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. Again, if PA detects one kind of poison and CFL detects one additional kind of poison, may be on account of different or advanced methods for analysis, then also no benefit can be extended to the accused. CFL report in all cases supersedes the PA report and variations therein would not lead to CC No. 177/06 Page 17 of 38 irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The CFL is not governed or bound by the report of PA. It is not bound to give results only within variation of 0.3% when compared to PA results. If such a rule is applied, then the report of PA would be given precedence over the CFL which would be against the provisions of law. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample being not representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, even on account of wrong methodology for analysis, the benefit goes to the accused straight away and in that case also, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts and has advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± CC No. 177/06 Page 18 of 38 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
31. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colours) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. It would be for the accused to establish what would be the variation that can be called as substantive enough to give benefit to him and further that such variation was a result of sample being not representative. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert examined in that case without leading any further evidence whatsoever in this case. The experts who have actually analysed the samples in this case have not been cross-examined by the accused by applying under section 293 CrPC.
CC No. 177/06 Page 19 of 3832. As mentioned earlier, this judgment has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that most of these were appeals against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
33. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
34. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter CC No. 177/06 Page 20 of 38 remanded back to consider the statutory provisions under section 13(3) of PFA Act.
35. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
36. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
37. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. The judgement in Delhi Administration v. Sunil Khemani [Crl. L. P. No. 625/2013, High Court of Delhi, dated 27.01.2014] is also one such judgement but it is not clear what evidence had been led before the trial court which was considered to be subtantive variation by the Hon'ble Court. But where the CC No. 177/06 Page 21 of 38 evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
38. In the case in hand, the accused is trying to take benefit from both the reports in his favour. He wants the PA report to believed which does not show presence of Kesari dal and also wants the CFL report to be believed which does not show synthetic colour to be in excess of prescribed limits. However, in my considered view, the court cannot, merely on the basis of these 'variations', if they can be called so, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report. In simple terms, the CFL detected what the PA failed to detect. The provisions are there only to check the correctness of the report of the PA on all counts, and not only to check its correctness only on the counts that are against the accused.
39. The incriminating ingredient in this case is Kesari dal flour. Rule 44-A, PFA Rules read as:
CC No. 177/06 Page 22 of 38"No person ... shall ... sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale-
(a) Kesari gram (Lathyrus sativus) and its products,
(b) Kesari dal (Lathyrus sativus) and its products,
(c) Kesari dal flour (Lathyrus sativus) and its products,
(d) a mixture of Kesari gram (Lathyrus sativus) and Bengal-gram (Cicer arietinum) or any other gram,
(e) a mixture of Kesari dal (Lathyrus sativus) and Bengal-gram dal (Cicer arietinum) or any other dal,
(f) a mixture of Kesari dal (Lathyrus sativus) flour and Bengal-
gram dal (Cicer arietinum) flour or any other flour."
40. Thus, the use of Kesari gram, Kesari dal and Kesari dal flour is totally prohibited for use as an ingredient in food for sale. Additionally, their mixtures with Bengal-gram, Bengal-gram dal and Bengal-gram dal flour are also prohibited for use as an ingredient in the preparation of any food article for sale.
41. As per Rule 2(p) of PFA Rules, "ingredient" means any substance, including a food additive, used in the manufacture or preparation of a food and present in the final product although possibly in a modified form. It may be noted that such 'use' has not been restricted to principal or primary or main use. Any use, even in very small quantities, would be covered in this definition.
CC No. 177/06 Page 23 of 3842. So, no quantity of Kesari dal flour is permissible to be used as an ingredient under clause (c) of Rule 44-A, and a mixture of Kesari dal flour and Bengal-gram dal flour is also not permissible to be used under clause
(e) of Rule 44-A of PFA Rules. In this case, it is not the case of the prosecution that a mixture of Kesari dal flour and Bengal-gram dal flour was found present. Its case is therefore not falling in clauses (d), (e) or (f) of Rule 44-A, but is falling under clause (c) of the said Rule. For clause
(c) to apply, there is no requirement that to constitute a violation, there has to be a 'mixture' of Kesari dal flour with any other ingredient. Such mixtures are covered only under clauses (d), (e) and (f). If there is presence of Kesari dal flour as an ingredient in any food product, it would be violative of Rule 44-A (c). Once such ingredient is found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to the quantity present. Thus, even if the samples had not been properly homogenized, that would not make any difference as presence of even the smallest quantity of a prohibited substance would be violative of the provisions. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused persons never chose to apply and cross-examine the Director CFL when this option was available to him under section 293 CrPC, which otherwise makes its report admissible in evidence without formal proof. No expert CC No. 177/06 Page 24 of 38 witness was examined in defence. No such defence was raised by the accused persons even in their statements under scetion 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. Thus, the report of CFL cannot be discarded on this count.
43. As far as the judgement titled as Municipal Corporation of Delhi v. Modern Flour Mills and General Industries [1984(II) PFA Cases 144] is concerned, on which the accused persons are heavily relying, the same is clearly distinguishable. In that case, the CFL had specifically stated in his report that the presence of Kesari Dal was "trace positive (negligible)" and that the sample of Besan should not be considered as adulterated. It was thus held that since only a negligible trace of Kesari dal was found, it would not be correct to say that the sample was a mixture of Kesari dal and Besan. A bare reading of this judgement would also show that it was being ascertained if the sample in that case fell under clauses (d), (e) of (f) of Rule 44-A as 'mixtures' and not under clauses (a),
(b) or (c) of Rule 44-A which nowhere require kesari dal to be a mixture for use with any commodity other than Bengal-gram/dal/flour. Similar was the position in judgement titled as Nagapalika Parishad Khilchipur v. Rajender Kumar [1988(II) FAC 4]. But the present case would stand on different footing altogether. There is nothing to show that the case is not falling under clause (e) of Rule 44-A. CC No. 177/06 Page 25 of 38
44. Further in the present case, there is no finding of the CFL that the presence of Kesari dal flour was only in traces or negligible or not to be considered as adulteration. If the quantity was so insignificant, the Director CFL must have mentioned it so, as in above referred case. Though it is correct that no percentage or quantity of Kesari dal flour has been mentioned in the report, yet that would not give automatic benefit to the accused by concluding that it was only present in traces as contended. If the accused wanted any clarification, he should have exercised the option under section 293 CrPC by applying and calling the analyst for cross-examination. It was not the job of the prosecution as the report of CFL is otherwise admissible in evidence without formal proof. But nothing had prevented the accused from putting questions in this regard to the analyst in his report which is silent in any particular point. Now without even examining the export who had analysed the sample, this court cannot hypothetically assume that the quantity must have been in traces or negligible. Had it been so, the analyst would have mentioned so. Therefore, no benefit can be drawn by the accused on this count. Even if the said presence was in traces, the offence would be made out.
45. Moving ahead, Ld. Defence Counsel has questioned the method of testing as adopted by the CFL. Relying on the judgement titled as Maya Ram v. State of Punjab [1987(II) PFA Cases 320], it is argued that paper chromatography test as adopted by the CFL is not a sure and reliable test.
46. However, I do not find myself in agreement with such arguments. Paper chromatography test is a recognized test to determine presence of CC No. 177/06 Page 26 of 38 food colours and Kesari dal. For that matter, even the accused has nowhere gave any suggestion to any witness at the trial that no such Kesari dal was present. Rather PW-2 was given suggestion that only an insignificant quantity of kesari dal was present, which the witness could not affirm or deny. Apparently, such a question was supposed to be put to a chemical expert or the analyst who had analysed the sample and not to the PW-1, PW-2 or PW-3 as they were not experts in this field. In any case, it is clear that even the accused accepts presence of Kesari dal flour in the sample, though has claimed that it was only in negligible quantities. Even otherwise, there is nothing to show that this paper chromatography test is not a sure or reliable test to detect presence of Kesari dal in food articles. This test is internationally recognised and accepted method. As earlier stated, no attempt was made by the accused to apply and cross- examine the Director CFL under section 293 CrPC and to question the analyst or Director as to the validity and intricacies of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.
47. The judgement in Maya Ram v. State of Punjab [1987(II) PFA Cases 320] is clearly distinguishable on facts of this case. This judgement would apply only to those cases where some synthetic food colour is permitted to be used in a food article and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper CC No. 177/06 Page 27 of 38 chromatography test would not be sufficient to find if the colour detected was permissible or not. But this judgement would not apply to those cases where use of such colours or ingredient is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour or ingredient detected was permissible or not, but has only to determine if any such colour or ingredient was detected (as all such colours or ingredients are prohibited), this judgement would not apply. In view of this, the obvious conclusion is that use of such Kesari dal as ingredient is totally prohibited.
48. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of Kesari dal flour used in the sample of Boondi Laddoo. Even if the said quantity is in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this ingredient is not permitted within any limits for use in this commodity, though it has to qualify to be called as mixture when found in Bengal- gram dal or dal flour. In any case, it would be for the accused persons to show as to on what basis they claim presence of such Kesari dal in traces in food article in question. The burden would upon be them to show how even traces of this ingredient could have entered the food articles being sold by them. But no evidence has been led by the accused persons to establish this fact. Thus, it is clear that the food article was adulterated within the meaning of section 2(ia) of PFA Act.
49. Now coming to the defence of the accused persons. Accused no. 1 has claimed that he was not present at the time of sampling proceedings.
CC No. 177/06 Page 28 of 38Well, if such a stand is to be believed, then it has not been explained how the signatures of the accused have appeared on the documents prepared at the spot. The accused in his statement has accepted that he had signed the samples but claimed that no attempt was made to join public witnesses and no price was paid to him. If he was not at all present at the spot, it is not understood how he was aware if any such attempt was made or not. Again, there is no evidence to show that accused was not there or that the proceedings were conducted in his absence. There is no witness who could depose on these lines. Mere bald suggestions without any evidentiary support would not establish the existence of such facts. Accused no. 1 has been duly identified by the witnesses in court.
50. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent CC No. 177/06 Page 29 of 38 corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
51. All the PWs have corroborated the stand of each other on most of the facts. They all deposed about steps undertaken by them in sampling proceedings, in one voice and in support of each other. All deposed about disclosing their identity, use of clean and dry utensils, preparation of documents and compliance of the rules. All witnesses denied the suggestions put to them by the defence. There is nothing to disbelieve them or to shake their credibility.
52. As far as the defence of accused no. 2 is concerned, that he has nothing to do with the shop in question, it is to be seen that such a stand is also without merit. He admits that the shop in question was allotted to him as licensee by the authorities. What he fails to explain is that how the shop then was being operated by accused no. 1 when the licence stands in his name. It is not a case where the accused no. 2 might have leased out the shop to some third party. Accused no. 1 is none other than his real son and both of them stay together at the same address. Further, there is nothing to show that the shop exists in the name of accused no. 1. The letter written by the FI PW-2 to the Deputy Health Officer, MCD Ex. PW- 2/D was duly replied and it was disclosed that the business concern Deepak Sweets & Restaurant at the given address was registered with them in the name of accused no. 2 Ram Gopal. Thus, it is not only the shop premises that has been allotted to him, but also the business concern CC No. 177/06 Page 30 of 38 that stands registered in his name. So, he is deemed to be incharge of or responsible for the affairs of the said concern. Irrespective of the fact if he himself used to sit at the shop or run its business or had taken help of his son accused no. 1, the fact that the shop stands in his name, would be sufficient to implicate him as well. His absence at the spot during the sampling proceedings would not make any difference. No account books, bank record, bills, etc. have been shown by the defence to establish the nature of this business concern and its ownership contrary to what has been established by the complainant.
53. Moving ahead, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 20.11.2002 on the basis of the Public Analyst's report dated 23.05.2002. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus CC No. 177/06 Page 31 of 38 argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.
54. However, I do not find myself in agreement with the said contention or to the interpretation sough to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
55. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains CC No. 177/06 Page 32 of 38 effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.
56. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.
CC No. 177/06 Page 33 of 3857. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules. The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
58. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food CC No. 177/06 Page 34 of 38 products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
59. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
60. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
CC No. 177/06 Page 35 of 38"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
61. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample CC No. 177/06 Page 36 of 38 of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of kesari dal in any food article. In this case, prosecution is for violation of section 2(ia)(a), (j) and (m) of the Act. The present case would be squarely covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also not with respect to pesticides in carbonated water, the ruling in Pepsico's case would not help the accused.
62. No other stand has been taken by the accused persons at the trial or during the arguments advanced. No questions have been raised during trial or at the time of arguments about validity and correctness of the sanction to prosecute as given by the Director PFA.
63. The case in hand would therefore be covered under section 2(ia)(a) of PFA Act as there is sufficient evidence to show that it was not of the nature, substance or quality which it is "purported" to be as per PFA Rules. The case would fall under section 2(ia)(m) of PFA Act as the constituent of Keasri dal flour is present in quantities not within the CC No. 177/06 Page 37 of 38 prescribed limits, being totally prohibited. However, no offence under section 2(ia)(j) would be made out in view of the CFL report that does not specify that the quantity of synthetic colour present was in excess of the prescribed limits. Use of such synthetic colours is permitted in sweets and unless they are detected in quantities beyond permissible limits, no violation of section 2(ia)(j) would be there. Violation of section 2(ia)(a) and (m) is punishable under section 16(i)(a) of PFA Act.
64. In view of this discussion, it is concluded that the complainant / prosecution has been able to establish its case and prove the guilt of the accused persons beyond the shadow of reasonable doubt. It has been proved that the accused persons had sold adulterated food in violation of section 2(ia)(a) and (m) of PFA Act read with Rule 44-A of PFA Rules, and have committed the offence punishable under section 7/16(1)(a) of PFA Act.
65. Both the accused persons are therefore held guilty and are convicted for the offence punishable under section 16(1)(a) of the PFA Act.
66. Let the matter be listed for arguments on sentence.
Announced in the open court this 30th day of April 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 177/06 Page 38 of 38