Delhi District Court
In Re vs A-1) Sunder Kumar on 8 October, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 143/04
Unique Case ID No. 02403R0494662004
Date of Institution: 30.07.2004
Date of reserving judgement: 14.09.2016
Date of pronouncement: 08.10.2016
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) Sunder Kumar
S/o. Sh. Fare Ram
R/o. G-2, Flat No. 18, Chander Nagar,
Surya Nagar, Ghaziabad, UP
A-2) Sonu Pawar
S/o. Sh. Fare Ram
R/o. House no. 40, Gali No. 14,
Khajoori Colony, Delhi-94
[Since expired] ... 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. 143/04 Page 1 of 47 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor of M/s. Shiva Fast Food Restaurant, of which the accused no. 2 (since espired) was the proprietor, from where the food article, that is, 'Chillies Sauce' was lifted for sampling.
2. As per the complaint, on 17.03.2004, the food officials consisting of Food Inspector (FI) R. K. Bhaskar and Field Assistant (FA) Naubat Singh under the supervision of Local Health Authority (LHA)/SDM Sh. S. C. Menz reached along with their staff at M/s. Shiva Fast Food Restaurant, at A-1, Shiva Chowk, Main Wazirabad Road, Khajoori Chowk, Delhi-94, where the accused no. 1 was found conducting the business and having stored for use various food articles. The food officials lifted a sample of Chillies Sauce, as lying in an open plastic cane, from the vendor accused no. 1 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 offered to the vendor which he refused to accept on the ground that the commodity was not for sale and was only for use in preparation of chowmien, pakoras and sandwiches. 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 08.04.2004, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matters 'Tartrazine' and 'Brilliant Blue', and also that the sample was not conforming to standards because Total Soluble Solids and Acidity CC No. 143/04 Page 2 of 47 were less than the prescribed minimum limits. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. It was revealed that the accused no. 2 (since expired) was the proprietor of the restaurant in question. 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 30.07.2004 alleging violation of section 2(ia)(a), (b), (j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 30.07.2004. The accused persons 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 21.10.2005, opining the sample to be not conforming to the standards of Spices based Sauce as per PFA Rules due to presence of synthetic food colours 'Tartrazine' and 'Brilliant Blue FCF', and also because Total Soluble Solids were found less than the prescribed minimum limits.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 Sh. S.C. Menz (SDM/LHA) and PW-2 FI R. K. Bhaskar. On the basis of their depositions, charge was framed against both the accused persons on 12.08.2010 for commission of the offence CC No. 143/04 Page 3 of 47 punishable under section 7/16(1A) 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 of evidence were recalled for cross-examination in post-charge stage and additionally, prosecution examined PW-3 FA Naubat Singh 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 17.03.2004 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 900 gms of Chillies Sauce after homogenizing it in the open plastic cane in which it was lying, dividing it in three parts and putting in clean and dry bottles, 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 vendor's statement 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/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW- 1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-2. He sent letters Ex. PW-2/A and Ex. PW-2/B to the DHO and STO and received their replies. Letters Ex. PW-2/C and Ex. PW-2/D were also sent to the accused persons but they were never replied.
CC No. 143/04 Page 4 of 47Thereafter, sanction Ex. PW-1/H was taken from the Director PFA and the complaint Ex. PW-1/I was filed in the court. Intimation Letter Ex. PW-1/J was sent to the accused persons along with copy of PA report through post but when they remained unserved, the letters were served personally. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the food articles were not for sale or that no business activity was going on at the restaurant being under renovation.
6. Statements of the accused persons under section 313 CrPC were recorded on 08.11.2013 wherein they denied the allegations and pleaded innocence. Though accused no. 1 accepted the proceedings dated 17.03.2004, yet he claimed that the Chillies Sauce was not for sale and no efforts were made to join public witnesses. He took stand that no business activity was going on at the restaurant which was under renovation. He stated that reports of chemical experts were wrong. Accused no. 2 (since expired) expressed ignorance as to the proceedings as he was not present at the spot but denied the case against him. They however did not lead any evidence in defence.
7. The matter was at the stage of announcement of the judgement when the accused no. 2 expired. As such, proceedings against him stood abated and this judgement thus pertains to accused no. 1 only.
8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused CC No. 143/04 Page 5 of 47 no. 1 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 21.10.2005 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.
9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that percentage or extent of synthetic colours has not been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that in the absence of percentage of colour present, it cannot be said that the Chillies Sauce was adulterated. It is also contended that proper methodology was not adopted by the analysts for detecting adulteration. It is argued that there is variation in the PA report and CFL report which shows that representative samples were not taken. It is strongly submitted that in any case, Chillies Sauce was not meant for sale but was only being used as an ingredient in preparation of other food articles and thus, matter would not fall under PFA Act. It is submitted that the PW-1 and PW-2 deposed about mixing the sample in open plastic can, but PW-3 stated that the open plastic cane had been closed with a lid lying nearby.
10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
CC No. 143/04 Page 6 of 4711. It is to be understood that the charge framed against the accused is for violation of section 2(ia)(a), (j) and (m) of the PFA Act. 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) specifically 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 article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
12. The commodity in the present case is 'Chillies Sauce', which apparently a spices-based sauce. There is no dispute about this fact even from the side of the accused, in as much as he never claimed that the food article was something else or other than spices-based Sauce.
13. It is to be noted that Items No. A.16.01 to A.16.44 of Appendix-B of PFA Rules were substituted by GSR 185(E) dated 21.03.2005.
"Chillies Sauce" as a spices-based sauce has been a standardized food article, which now falls in Item no. A.16.28 of the Appendix B of PFA Rules as "Vegetable Sauces other than Tomato Sauce", under the main head "Fruit Products". Prior thereto, Item No. A.16.13 dealt with "Spices CC No. 143/04 Page 7 of 47 based Sauce", which expressly included Chillies Sauce. Detailed standards have been prescribed with respect to such Chillies based Sauce.
14. The record however shows that the PA as well as CFL have both analysed the food article as per the standards prescribed in Item no. A.16.13 (as it then existed). It is nowhere the case of the defence that the product in question did not fall in this Item No. A.16.13 or that the said standards are not applicable to this case. The said Item No. A.16.13 reads "Spices based sauce like chillies sauce shall....". Thus, chillies sauce would be a part of Spices based sauce only.
15. It is pertinent to note that the PA found the presence of the synthetic colouring matters Tartrazine and Brilliant Blue in the sample analysed. And this fact has been confirmed even by the CFL which also found the same synthetic colours in the second sample. Thus, this is one of the few cases where the reports of CFL and PA are in confirmation of each other.
16. But Ld. Defence Counsel still argues that the reports are at variance. It is pointed out that as per PA report, total soluble solids were 6.79% and total acidity was 0.49%. But as per CFL report, total soluble solids were 7.87% and total acidity was 1.04%. On this basis, the defence is seeking to claim that the samples were not representative due to said 'variations of more than 0.3%' in PA and CFL report.
17. In this regard, The defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said CC No. 143/04 Page 8 of 47 ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377], State v. Rama Rattan Malhotra [2012(2) FAC 398], Food Inspector v. Naresh Kumar [2014(2) FAC 276], State v. Kamal Dev Vashisht [2012(2) FAC 353] and Food Inspector v. Amar Chand [2016(1) FAC 190].
18. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. In view of the defence taken, it is necessary to understand the concept of reports of PA and CFL and variations therein.
19. 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. 143/04 Page 9 of 4720. 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.
21. 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."
22. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted CC No. 143/04 Page 10 of 47 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".
23. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
24. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
25. 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 CC No. 143/04 Page 11 of 47 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 sub- sections (3) and (5) of Section 13 of the Act".
26. 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 CC No. 143/04 Page 12 of 47 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 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.".
27. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and CC No. 143/04 Page 13 of 47 their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
CC No. 143/04 Page 14 of 4728. This judgment was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240[], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director".
29. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
30. 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 CC No. 143/04 Page 15 of 47 possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter of assumptions or presumptions.
31. 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.
32. 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 CC No. 143/04 Page 16 of 47 samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross-examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
33. 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 CC No. 143/04 Page 17 of 47 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.
34. 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.
35. 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 an accused merely because there are some difference in two reports. If an 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 CC No. 143/04 Page 18 of 47 ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
36. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if PA fails to detect any poisonous matter in a sample, and CFL detects such poison, 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. Similarly, if PA detects one type of poison and CFL detects the same poison and also an additional poison, then also the accused cannot be given benefit on the ground that the reports were at variance. Again, if both the PA and CFL find same type of poison in the samples, the said result cannot be discarded on the ground that there was difference in the moisture or ash content of the samples. CFL report in all cases supersedes the PA report and variations CC No. 143/04 Page 19 of 47 therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that there is some variation in reports. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises 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 in any ingredient would nullify the report of CFL. No 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.
CC No. 143/04 Page 20 of 4737. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since there are variations, 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 as examined in that case without leading any further evidence whatsoever in this case. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report. This would rather give precedence to the report of PA and not CFL.
38. 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. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in these very judgements [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta CC No. 143/04 Page 21 of 47 [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], Food Inspector v. Naresh Kumar [2014(2) FAC 276], State v. Kamal Dev Vashisht [2012(2) FAC 353] and Food Inspector v. Amar Chand [2016(1) FAC 190]].
39. 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.
40. 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 remanded back to consider the statutory provisions under section 13(3) of PFA Act.
41. 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 CC No. 143/04 Page 22 of 47 [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.
42. 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 only that there was variations between the two reports.
43. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation 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 in the reports of PA and the Director CFL.
CC No. 143/04 Page 23 of 4744. Thus, it is not proper to say that there is a substantial variation in the two reports so as to assume that the sample was not representative. The product was lifted from the possession of the accused no. 1 on 17.03.2004. It was analysed by PA from 19.03.2004 to 01.04.2004 and the report was given by her on 08.04.2004. The CFL on the other hand analysed the sample from 18.10.2005 to 21.10.2005 and gave the report on 21.10.2005. Therefore, it is clear that there was gap of 18 months before the sample was analysed by CFL. During such period, there was every possibility that natural ingredients of the food article had undergone some natural change with respect to their weight, moisture, liquidity, acidity, etc. as effect of air, moisture, internal heat and external environment cannot be fully controlled on these articles kept at room temperature. Such natural changes can always be considered by the court to appreciate the CFL opinion. However, when such natural causes will have no effect on any particular ingredient like synthetic food colour, no such delay would give benefit to the accused. The quantity, quality or nature of artificial synthetic food colours do not materially change even after lapse of considerable period of time. It is not that such synthetic colours would develop or fade away after lapse of some time, as in case of natural food colours and there would be hardly any change in the characteristics or composition of artificial synthetic food colours after lapse of such time. Therefore, if synthetic food colours have been found by the PA and also confirmed by the CFL, this fact would certainly go against the accused, irrespective of the fact that there has been a gap of 18 months when the sample was analysed by the CFL. Of course, such delay might have some bearing on other natural characteristics of the food article including Total CC No. 143/04 Page 24 of 47 soluble solids as well as Acidity, but that would not have any impact on the presence or absence of synthetic food colours. In view of this position, the time lapse between the analysis by PA and CFL would not help the accused in any manner. From this angle, the delay caused in filing the complaint would also have no bearing in the present case as the right of the accused under section 13(2) of PFA never got frustrated on this account. Such right might have frustrated if the sample had failed on account of some parameter which was prone to change after lapse of some period, which is not the case in the present matter.
45. In the case in hand, the court cannot, merely on the basis of the so- called 'variations' in total soluble solids or acidity, conclude that the samples were not representative so as to disregard the detection of the incriminating colours by both the experts in corroboration to each other. There is no variation even in the colours identified by them. 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. Having said so, the court has to see if presence of colouring matter Tartrazine and Brilliant Blue FCF, as detected by CFL in confirmation to that of PA, would be an offence.
46. The present case is now based on CFL report, which categorically shows that sample was found containing synthetic colouring matters Tartrazine and Brilliant Blue FCF. As per Item No. A.16.13 (as it existed then), only specified preservatives, ingredients, stabilizers and emulsifiers CC No. 143/04 Page 25 of 47 were permitted. It was specifically mentioned that the food product "shall not contain any coaltar food colour". Thus, it would be clear that in view of Rule 23, 28 and 29 of PFA Rules, such colours were permitted only in the food items mentioned in Rule 29. Chillies Sauce nowhere finds place in any of the clauses of Rule 29. It is therefore clear that no such synthetic food colours were/are permitted for use in Chillies Sauce, and were/are absolutely prohibited for use in this food article. Reliance can be also placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] which are applicable to this case as well.
47. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of synthetic colours used in the sample in question. 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 colour is not permitted within any limits for use in this food article. In any case, it would be for the accused persons to show as to on what basis they claimed presence of such colouring matter in traces in food article in question, particularly when use of such colour as an ingredient was not disclosed by them at the time of sampling. The burden would upon be them to show how even traces of synthetic colours could have entered the food articles being sold by them. But no evidence has been led by the accused persons to establish this fact. The colours have been duly identified by the CFL and in conformity to the PA. Once such ingredients are found present in any quantity whatsoever in the food article, that CC No. 143/04 Page 26 of 47 would result in violation, irrespective of the fact that quantity was not mentioned by the CFL or PA.
48. Again, even if the samples were not properly homogenized (though there is no evidence to that effect), that would not make any difference as even its smallest quantity would be violative of the provisions. Homogenization would have at the most distributed the ingredients evenly in the entire sample but would have not resulted in absence of that ingredient. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of 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 persons at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused persons never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. No expert witness was examined in defence. No such defence was raised by the accused even in his statement under section 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused is required to bring positive material on record and mere putting CC No. 143/04 Page 27 of 47 suggestions to witnesses, which they deny, would not serve his purpose. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.
49. There is nothing for the court to disbelieve the CFL report wherein artificial synthetic colours had been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no colour was detected, or was detected wrongly, or that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination.
50. The defence in this case has claimed that the sample was not taken properly. However, no specific irregularity has been pointed out by the accused in sample proceedings. No suggestions were given to the PWs on this regard. There is no evidence to show that the bottles used by the food officials were not clean or dry as testified by them on oath. There is no evidence to establish that the implements or utensils used for lifting food articles were contaminated. There is nothing to show violation of any rules in the present case. The witnesses have deposed about the utensils / implements to be clean and dry and such a fact has not been rebutted. It is not the case of the defence that some artificial colour had been subsequently put or was added by the food officials. No such stand has been taken at the trial or in the statement under section 313 nor any evidence have been led to this effect.
CC No. 143/04 Page 28 of 4751. The witnesses have deposed about sending of memos separately. PW-2 clarified the fact that the Form VII was sent separately as mentioned in the PA receipt. It is not a case where no evidence has been lead by the prosecution to this extent. Rather all the witnesses categorically deposed about the use of clean and dry bottles and also sending memos separately to the analysts.
52. All the witnesses have supported the case of each other by deposing in one voice about sample proceedings, about lifting of the sample from open plastic cane, about the quantity lifted, about the steps in proceedings, signing of documents etc. There is no material contradiction in their evidence. Both the PW-1 and PW-2 corroborated each other by stating that 2-3 kg of Chillies Sauce was available in the plastic cane. There is nothing in their cross-examination which can be called as contradiction, except the fact that PW-3 deposed about the cane having been closed by a lid stated to be lying nearby at the time of mixing the commodity and the other witnesses did not say anything about any such lid.
53. It is to be understood that the sample proceedings were conducted in 2004 and the witnesses were cross-examined in 2012, that is, after about eight years of the incident. When evidence was recorded after lapse of such a long period, some contradictions, omissions, additions and improvements are bound to creep in, because human memory is liable to fade with passage of time. No witness can be expected to remember all minute details of the incident with mathematical accuracy or scientific CC No. 143/04 Page 29 of 47 precision. Unless some contradiction is material enough to go to the root of the matter, such variations have to be ignored.
54. The said contradiction as appearing in evidence of PW-2 and PW-3 cannot be said to be material enough so as to negate the testimony of the witness on other counts primarily when the sample proceedings have not been disputed by the accused persons. The accused no. 1 has admitted the visit of the food officials and lifting of sample from premises.
55. The only remote conclusion that can be drawn from the use of lid would be that the commodity was not properly homogenized. However, as already stated, homogenization of the commodity would have made no difference in the present case as far as the presence of colour is concerned, though it might have made some impact with respect to other characteristics including Total soluble solids or even acidity. But when the sample had failed on account of presence of a prohibited substance, then no amount of mixing would have made any difference. Even the best possible homogenization would have resulted only in even distribution of the incriminating substance but would not have resulted in absolute absence thereof. The presence of a prohibited substance in any quantity would have in any case resulted in violation of rules. Therefore, no benefit can be given to the accused even on this count.
56. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is argued that the PA and CFL do not mention the exact method for determining the colours and CC No. 143/04 Page 30 of 47 in case the colours were detected using paper chromatography method, then that method is not a sure and reliable test.
57. Well, the court does not find merit in the said submissions. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such report cannot be questioned on any point on which it is silent. If the accused wishes such reports to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross- examine the experts. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its own views and refuse to disbelieve a report of PA or CFL, without giving the analysts any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that DGHS prescribed method had been used by the analyst to determine the colours. In such a case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him about the method used by him to detect synthetic colour, if they were genuinely feeling aggrieved by his test methodology. The CFL maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously CC No. 143/04 Page 31 of 47 not the job of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that "the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
58. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused as aforesaid to ask the CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.
59. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food CC No. 143/04 Page 32 of 47 colour is permitted to be used in a food article (like sweets or sauces) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.
60. 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. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal CC No. 143/04 Page 33 of 47 inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
61. There is no irregularity in LHA codes as mentioned in the documents. The PA report, CFL report and the documents prepared at the spot clearly show that the LHA code no. 52/LHA/6007 had been mentioned on them. Such code, seal and signatures of the accused have been duly checked when the counterparts of the sample were produced in the court before sending the same to CFL under section 13(2) of PFA Act. There is no merit in the stand of the Ld. Defence Counsel that SDM PW-1 had mentioned a different code in a different case (bearing CC No. 144/04) with respect to a different food article lifted from the same premises from the accused no. 1 on that day. There is nothing on record to show that different code could not have been given to the LHA and the LHA should have used only a single code. This is particularly when it is nowhere the case of the accused that different samples had been sent to different analysts.
62. The next defence put forth by the accused is that the food article was not for sale but was only for the use in preparation of other food articles in the restaurant. It is also his case that on the day of sampling, no sale was being conducted as the restaurant was under renovation on that day.
63. Well, the accused has failed to establish such a stand at the trial, primarily because no evidence has been lead by him in defence to CC No. 143/04 Page 34 of 47 substantiate this stand. No witness has been examined who could depose that the restaurant was under renovation or there was no sale transaction on that day. In the absence of any evidence, such a version has remained a bald averment. When no witness has been examined to this extent, even prosecution did not get any opportunity to rebut such a stand or to cross- examine any such witness or seek production of relevant documents in this regard through that witness. Mere putting bald suggestions would not be prove any fact in the absence of any positive evidence.
64. The accused claims that the food officials did not seize any bill books to show any sale transaction on the day of sampling. Again, this position holds equally good even for the accused. If the food officials failed to do so, even the accused has failed to produce any such record to show that there was no sale transaction on that day. There is nothing to show if any such bill books or account books were being maintained by the accused persons at that time. No such bill books, which should have been in exclusive possession of the accused persons only, have been shown by them, to establish if any such bill books / account books were being maintained by them and what was the last such entry made to show any previous sale transaction. When there is no evidence to establish if any such books were in existence or not, their absence cannot be taken against the prosecution. Rather it would be for the accused to explain why no such books have been produced by them despite taking such a specific stand. His failure to produce these books in their possession therefore has to be considered against him.
CC No. 143/04 Page 35 of 4765. In any case, "sale" within the meaning of PFA Act, is not dependent on maintaining or failure to maintain such bill books by the accused persons. The definition of sale as per section 2(xiii) of PFA Act is quite wide which includes exposing for sale, having in possession for sale, sale for analysis, and also an attempt to sell. Therefore, when the sample was taken by the Food Inspector, there was an obvious sale transaction irrespective of the fact if the product had been otherwise sold to any other person on that day or not. There is nothing to show in evidence or otherwise that no sale activity was going on at the restaurant on that day or that the restaurant was under renovation. Such defences are nothing but bald suggestions without any evidentiary support.
66. Similarly, there is no merit in the stand that the commodity was not meant for direct sale but only for use in preparation of other food articles. It is pertinent to note that even the complainant in the complaint has not mentioned that the product was being sold and it has been mentioned that the product was meant for use.
67. In this regard, it would be the relevant to read Explanation to section 7 of PFA Act (as inserted in 1976 by way of amendment). It clarifies that a person shall be deemed to store any adulterated food or any article of food, if he stores such food for the manufacture therefrom of any article of food for sale. Again, section 2 (viiib) of PFA Act (also inserted in 1976 by way of amendment) defines "manufacture" to be including any process incidental or ancillary to the manufacture of an article of food.
CC No. 143/04 Page 36 of 4768. Therefore, section 2 (viiib) read with Explanation to section 7 of the PFA Act make it amply clear that if any food is stored for use in preparation of any other food article meant for sale for human consumption, then such food article would also be covered under the definition of "sale" and would be governed by the PFA Act. The position would be different if a product is stored for any purpose other than sale or for being used as ingredient in preparation of any other food meant for any purpose other than sale. Therefore, no benefit can be given to the accused even on this ground.
69. Finally, 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 30.07.2004 on the basis of the Public Analyst's report dated 08.04.2004. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in CC No. 143/04 Page 37 of 47 Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 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.
70. However, I do not find myself in agreement with the said contention or to the interpretation sought 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.
71. 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 CC No. 143/04 Page 38 of 47 Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the 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 giving report of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/G also mentions that she had been duly appointed and this fact was never disputed at the time of trial.
72. 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 CC No. 143/04 Page 39 of 47 analyse the samples as per the Act. At the relevant time, CFL Pune was specified to be the laboratory for Delhi region.
73. 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."CC No. 143/04 Page 40 of 47
74. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts 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.
75. 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.
76. 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 CC No. 143/04 Page 41 of 47 relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants 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."
77. 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 CC No. 143/04 Page 42 of 47 was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in Chillies Sauce. 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 (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused.
78. It would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only retailer selling it or using it for preparation of food for sale. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. PFA Act applies to the vendors as well. The only benefit which the vendors can claim is under section 19(2) of PFA CC No. 143/04 Page 43 of 47 Act which would apply only if the vendor is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him.
79. In the present case, the accused persons never disclosed from where they had purchased the commodity or that they were selling the same in the same condition as had been purchased. Neither such details were disclosed at the time of sampling proceedings nor during the investigation, nor at the trial while cross-examining the witnesses, while recording statements of accused persons or even by way of defence evidence. No bill was produced or proved on record. No witness has been examined by the accused persons who could establish that any such food article was purchased by the accused persons from any third person. No such bill was ever submitted to the PFA department even during the investigation. No such bill was shown to the FI at the time of sampling. No endorsement was made by the accused no. 1 on the documents prepared at the spot claiming that the commodity had been purchased from any third person or that he was having any such bill / invoice / cash memo. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the sample as lifted from open plastic cane as lifted from possession of the accused was containing the same Chillies Sauce as was purchased by him from any other place. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused.
CC No. 143/04 Page 44 of 4780. No other stand has been taken by the accused 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.
81. The accused no. 1 has not denied the fact that he was the vendor and the accused no. 2 (since expired) was the proprietor of the restaurant. Accused no. 2, though was not present at the spot at the time of sampling, had not denied that he was not the proprietor of the same. But his absence at the spot during the sampling proceedings would not make any difference. Section 7 of the PFA Act specifies it clearly that "No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute... (i) any adulterated food...". Thus, both the vendor and the proprietor would be covered under purview of the PFA Act and a vendor cannot take the ground that only the proprietor would be liable.
82. The judgements relied upon by the defence would not help the accused. The precedents titled as Rupak Kumar v. State of Bihar [2014(1) FAC 198] and MCD v. Laxmi Narain Tandon [1975(II) FAC 441] lay down the law on the point authoritatively, but not of avail to the accused, because in this case, it is on record that the food article was meant for use in the products meant for sale and not for any purpose other than sale. The judgements titled as State of MP v. Ganesh Prasad [2000 (I) FAC 268], Md. Nabijan v. State [2000(1) FAC 29], M.N. Choudhary CC No. 143/04 Page 45 of 47 v. State of Bihar [2007(1) FAC 106], C. S. Ram Mohan v. State of A. P. [2007(1) FAC 90], K. P. Tensing v. D. Jayachandran [2011(1) FAC 328], and State of Punjab v. Hotel Royal Palace [2011(2) FAC 265] revolve on their own set of facts and circumstances and were passed on the basis of evidence led in those cases. None of these judgements deal with Explanation to section 7 read with section 2(viiib) of PFA Act. If such interpretation as propounded by Ld. Defence Counsel is to be accepted, then the very purpose of PFA Act would be defeated as every restaurant would then be free to use adulterated articles to prepare food for sale. Such an interpretation cannot be therefore given in view of definitions of 'sale' and 'manufacture'.
83. The case in hand would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that the food article was not of the nature, substance or quality which it is "purported" to be as per PFA Rules. The case would fall under section 2(ia)(j) as there is presence of colour which is not permitted in this article, and under section 2(ia)(m) of PFA Act as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited. However, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was affecting injuriously its nature, substance or quality thereof so as to make out violation of section 2(ia)(b), and that was the precise reason why the charge was also not framed under this provision. Violation of section 2(ia)
(j) is punishable under section 16(1A) and violation of section 2(ia)(a) and
(m) is punishable under section 16(i)(a) of PFA Act. But being graver offence, conviction can be under section 16(1A) of PFA Act.
CC No. 143/04 Page 46 of 4784. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of accused no. 1 beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 had sold adulterated food in violation of section 2(ia)(a), (j) and (m) of PFA Act read with Rules 23, 28, 29 and 30 of PFA Rules, and has committed the offence punishable under section 7/16(1A) of PFA Act.
85. Having said so, the accused no.1 is held guilty and is convicted for the offence punishable under section 16(1A) of the PFA Act.
86. Let the matter be listed for arguments on sentence.
Announced in the open court this 08th day of October 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 143/04 Page 47 of 47