Da vs . Satish Sharma Page 1 Of 52 on 25 March, 2014

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Delhi District Court

Da vs . Satish Sharma Page 1 Of 52 on 25 March, 2014

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

C.C. No. 156/04

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

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

Versus

Satish Sharma
S/o Sh Mata Prasad Sharma
M/s Sharma Dairy,
G1/143, Sector 16,
Rohini, Delhi.
R/o House no. G1/143, Sector 16,
Rohini, Delhi
........ VendorcumProprietor

Serial number of the case : 156/04
Date of the commission of the offence : 27.04.2004
Date of filing of the complaint : 19.08.2004
Name of the Complainant : Sh. Sanjiv Kumar Gupta, Food
Inspector

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DA Vs. Satish Sharma Page 1 of 52
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA
Act 1954, punishable U/s 16(1) (a)
r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 25/03/14
Judgment announced on : 25/03/14

Brief facts of the case

1. In brief the case of the prosecution is that on 27.04.2004 at about 04.45

p.m. , Food Inspector Sanjiv Kumar Gupta and Field Assistant Brahmanand under the

supervision and directions of SDM / LHA Sh. Harish Kumar Ahuja visited M/s Sharma

Dairy, G1/143, Sector 16, Rohini, Delhi85, where accused Satish Sharma who was

the vendorcumproprietor was found present conducting the business of sale of

various dairy articles including toned milk (ready for sale) for sale for human

consumption and in compliance of the provisions of the Prevention of Food

Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955, the Food

Inspector collected / purchased the sample of toned milk.

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

Analyst for analysis and as per the report of Public Analyst the sample was found not

conforming to the standard of toned milk as per PFA rules 1955 as per tests performed

as the Milk solids not fat is less than the prescribed minimum limit of 8.5% and

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

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

(m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.

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

dated 19.08.2004. The accused after filing his appearance moved an application under

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

Central Food Laboratory and consequent thereto second counterpart of the sample as

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

orders dated 13.09.2004. The Director, CFL after analysing the sample opined vide its

Certificate dated 19.10.2004 that "sample bearing No. 63/LHA/7196 does not conform

to the standard of Toned Milk". The director so opined as the milk solids not fat were

found at 07.64% against the minimum prescribed standard of 8.5%.

4. In pre charge evidence prosecution examined three witnesses i.e. the

then SDM/LHA Harish Kumar Ahuja as PW1, the Food Inspector Sanjiv Kumar Gupta

as PW2 and Brahamanad FA as PW3 and thereafter pre charge evidence was closed

vide orders dated 09.07.2007.

5. Charge for violation of provision of Section 2 (ia) (a) & (m) of PFA Act

1954 punishable U/s 16 (1) (A) r/w section 7 of the Act was framed against the

accused vide order dated 26.11.2008 to which accused pleaded not guilty and claimed

trial. Today during the course of arguments Ld. SPP for the complainant pointed out

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that there are two errors in the charge as framed by Ld. Predecessor on 26.11.2008. It

was pointed out that the complaint case number has been mentioned as 156 /03

whereas the same is 156/04. Furthermore the section has been mentioned as 16 (1)

(A) instead of 16 (1) (a). It was submitted by Ld. SPP that the error appears to be

typographical or due to oversight. Ld. Defence counsel Sh. R.K. Sharma fairly

conceded that the error appears to be typographical and he has no objection if the

complaint case is read as 156/04 and the section as 16 (1) (a). In these

circumstances and as no prejudice is caused to the accused the above mistakes stand

rectified.

6. In support of its case the complainant/prosecution examined three

witnesses i.e. the then SDM/LHA Harish Kumar Ahuja as PW1, Sanjiv Kumar Gupta,

the Food Inspector as PW2, and Field Assistant Brahamanand as PW3 and PE was

closed vide order dated 03.08.2009.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 27.01.2010

wherein the accused claimed himself to be innocent.

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

8. PW1 Harish Kumar Ahuja, the then SDM/LHA deposed that on

27.04.2004 while he was posted as SDM of Saraswati Vihar, Delhi under his

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supervision/direction FI Sanjeev Kumar Gupta and FA Brahamanand went to M/s

Sharma Dairy, G1/143, Sector16, Rohini, Delhi85 where accused Satish Sharma

was found conducting the business of the food articles in that shop including Toned

milk meant for human consumption. He deposed that FI Sanjeev Kumar and he

disclosed their identity and intention for taking the sample to which accused agreed

and then 1500 Ml of toned milk (ready for sale) was taken form an open container

bearing no label declaration (container marked as Toned milk). He deposed that the

sample was taken at 04.45 p.m. and the sample was taken after proper mixing/

homogenization with the help of a clean and dry plunger by rotating it in all possible

directions several times i.e. Clockwise, anticlockwise, up and down. He deposed that

the FI divided the sample into three equal parts by putting them in three clean and dry

glass bottles separately. He deposed that 40 drops of formalin was added with a clean

and dry dropper to each sample bottle containing the sample which was mixed

properly. He deposed that then each bottle containing the sample was separately

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

that then the vendor signatures were obtained on his LHA slip bearing his number and

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

signature were on the wrapper as well as on the LHA slip. He deposed that Rs. 19.50

paise was given to the vendor towards the sample price vide vendor receipt Ex.

PW1/A. He deposed that then notice in form VI Ex. PW1/B was given to the accused

with his endorsement at portion A to A. He deposed that panchnama Ex. PW1/C was

prepared. He deposed that all these documents Ex. PW1/A to C were read over and

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explained to accused in Hindi and after understanding the same accused signed at

point A, witness at point B and the FI signed the same at point C. He deposed that

accused gave his statement Ex. PW1/D. He deposed that the FI tried his best to

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

the same on his request FA Brahamanand agreed and joined as witness. He deposed

that the two counter parts of the sample were deposited in intact condition with LHA on

28.04.2004 vide receipt Ex. PW1/E with the intimation that one counterpart of the

sample has already been deposited in intact condition with the PA along with two

copies of Memo of Form VII in a sealed packet. He deposed that PA receipt is Ex.

PW1/F. He further deposed that PA report i.e. Ex. PW1/G was received to which the

sample was found does not conform to the standards because milk solids not fat is

less than the prescribed minimum limit of 8.5 % i.e. 6.72 %. He deposed that then on

completion of the investigation by the FI the complete case file along with all statutory

documents were sent through him to the then Director PFA Sh. V.K. Singh who after

going through the case file applied his mind and gave his consent for prosecution Ex.

PW1/H. He deposed that complaint Ex. PW1/J was filed in the court by FI Sanjeev

Kumar. He deposed that intimation letter Ex. PW1/K was sent along withe PA report

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

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

PW1/L.

9. During his cross examination he stated that they reached at the spot

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between 04.3004.45 p.m. He stated that he does not remember how many persons

gathered at the spot when they reached there. He stated that there were 45

containers except the container from which the sample was lifted were lying at the

spot. He stated that containers were lying inside the shop. He stated that there was no

other milk shop next to the shop of the vendor. He stated that he does not remember

how many persons except vendor were present when they entered into the shop. He

denied the suggestion that sample commodity was not properly mixed/ homogenized

by the FI. He stated that bottles were already dry and clean. He stated that he does

not recollect whether the same were made clean by the FI at the spot. He denied the

suggestion that bottles were not clean and dry. He denied the suggestion that they did

not visit the shop of the vendor and no sample proceedings were conducted at the

shop. He stated that he cannot tell as to how many persons were asked to join the

sample proceedings by the FI as he was inside the shop and FI went outside the shop

to ask the public persons to become as a witness. He stated that he does not recollect

whether there was any label declaration on other containers lying the shop. He stated

that vendor put his signatures on 45 papers at the spot.

10. PW 2 Food Inspector Sh. Sanjeev Kumar Gupta and PW3

Brahamanand, Field Assistant have deposed on the same lines as deposed by PW1 in

his examination in chief.

11. This so far is the prosecution evidence in the matter.

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

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

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

prosecution in this case.

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

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

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector Sanjeev Kumar Gupta coupled with the report of

the Director CFL dated 19.10.2004 that accused Satish Sharma was indeed found

selling toned milk which was adulterated on account of the milk solids not fat being

less than the minimum prescribed standard of 8.5% i.e. 7.64%.

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

Sanjeev Kumar Gupta categorically proved that on 27.04.2004 he along with Field

Assistant Brahamanand and SDM / LHA Sh. Harish Kumar Ahuja visited at M/s

Sharma Dairy, G1/143, Sector 16, Rohini, Delhi, where accused Satish Sharma who

was the vendorcumproprietor was found present conducting the business of dairy

including toned milk, for sale for human consumption and in compliance of the

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

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Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) he collected

/ purchased the sample of toned milk. He proved the sample proceedings vide Ex. PW

1/A to Ex. PW 1/C. He further proved the deposit of the sample with the Public

Analyst vide Ex. PW1/F and deposit of the counterparts of the sample with the Local

Health Authority vide Ex. PW 1/E. He further proved that the toned milk on analysis

was found adulterated as same was found not conforming to standards. The Sanction

/ Consent for prosecution was proved as Ex. PW 1/H and the complaint was proved as

Ex. PW 1/J.

16. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. Sh. Harish Kumar Ahuja, the then SDM/LHA

(PW1) and Sh. Brahmanand Field Assistant (PW3).

17. Furthermore the fact that the sample was collected by the Food Inspector

on 27.04.2004 and that the accused was the vendorcum proprietor of M/s Sharma

Dairy was not disputed during the trial and was also admitted by the accused during

his examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of

this Court on 27.01.2010. From the answers given by the accused during his

examination u/s 313 Cr.P.C. which are admissible in evidence against the accused in

view of sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny

Thomas Vs. Food Inspector, Kochi 2008 (1) FAC 1 (SC), Mohan Singh V. Prem

Singh, (SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal

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Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr.

L.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas

Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V.

State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC

315 coupled with Ex. PW1/A to Ex. PW1/C and Ex. PW1/D which is in the handwriting

of the accused no dispute remains that the sample of toned milk was indeed collected

by the Food Inspector for analysis from M/s Sharma Dairy of which accused Satish

Sharma was the vendorcum proprietor.

18. The report of the Director which is on record proves that the sample

when analyzed did not conform to the standards of toned milk as the Milk solids not fat

were 7.64% against the minimum prescribed limit of 8.5%. Hence the milk was

adulterated as not conforming to the standards.

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

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

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

contradictions.

Public witness

20. It was argued that no public witness was joined by the FI during the

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

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

despite the mandate of section 10 (7) did not deliberately join any public person i.e.

customers, neighbourers etc. in the sample proceedings. However I do not agree with

the contentions raised by the Ld. Defence counsel. The Hon'ble Apex Court in

decided on 26.02.1974 has
Shriram Labhaya Vs. MCD , categorically held that

testimony of the Food Inspector alone, if believed, is sufficient to convict the accused

and there is no requirement of independent corroboration by public persons unless the

testimony suffers from fatal inconsistencies. Similarly in Babu Lal Vs. State, AIR

1971, SC 1277 It has been held that there is no rule of law that a conviction can not be

based on the sole testimony of Food Inspector. Reliance may also be placed upon

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

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

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

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

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

Vs. Narayanasamy 1997 (2) FAC 203.

State
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so

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purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

22. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as
under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

23. It is writ large from the deposition of PW1, PW2 and PW3 that FI Sanjeev

Kumar Gupta made sincere efforts to join the public persons in the sample

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proceedings but none agreed. I have no reason to disbelieve them. It is very hard

these days to get association of public witnesses in criminal

investigation/implementation of administrative powers/enforcement of law seeking to

curb anti social evils. Normally, nobody from public is prepared to suffer any

inconvenience for the sake of society. Absence of public witness in this case is not

fatal to the prosecution as the prosecution story inspires confidence and lifting of the

sample stands unambiguously proved.

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

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

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

or enmity to falsely implicate him.

Rule 14 and Homogenization / Mixing of Sample.

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

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

that at the time when the sample was collected, the Food Inspector not only failed to

clean the sample bottles, the plunger and the jug used for taking the sample but the

milk was not properly mixed/ homogenized and accordingly representative sample

was not taken by the Food Inspector. It was argued that Rule 14 of the Act is

mandatory and not directory and in case there is no strict adherence to Rule 14,

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benefit has to be given to the accused. Reliance was placed on the law laid down in

Sardarmal Jain Vs. Nagar Nigam & Anr 1996 (2) 203, Vasantry Jai Kham Khati

Vs. State of Gujarat 2004 FAJ 148, State of Gujarat Vs. Kamlesh Bhai Ram Bhai

2005 (1) FAC 107 and State Vs. Suresh Kumar 2010 (2) FAC 204

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

counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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28. I have perused the deposition of the Food Inspector PW2. The Food

Inspector deposed as under:

" The sample of 1500 ml of Toned Milk was taken from an open Container Marked as
Toned Milk, after proper mixing with the help of clean and dry plunger by rotating in all
possible directions i.e. Clock wise, anticlockwise, up and down several times. .........I
divided the sample then and there into three equal parts by putting them into three
separate clean and dry bottles.

29. During his cross examination he stated as under:

"Bottles were already dry and clean and the same were not made again dry and
clean at the spot.......The milk was taken after homogenizing with the help of clean
and dry plunger and milk was taken with the help of 1 liter clean and dry measure and
1/2 liter clean and dry measure and put into clean and dry jug from which it was put
into the bottles by approximation"

30. PW1 the then SDM/LHA Harish Kumar Ahuja deposed as under:

"The sample was taken after proper mixing/ homogenisation with the help of a clean
and dry plunger by rotating it in all possible directions several times i.e. Clockwise,
anticlockwise, up and down. The F.I. divided the sample into three equal parts by
putting them into three clean and dry glass bottles separately"

31. During his cross examination he stated as under:

"It is wrong to suggest that sample commodity was not properly mixed/ homogenized
by the FI. Bottles were already dry and clean........It is wrong to suggest that bottles
were not clean and dry.

32. PW3 Field Assistant Brahamanand during his examination in chief

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deposed as under:

"Then at about 04.45 p.m. approx. 1500 ml of toned Milk taken from an open
container marked as toned milk after proper mixing with the help of clean and dry
plunger by rotating in all possible directions several times on payment of Rs. 19.50/
vide receipt E.PW1/A."

33. Hence all material prosecution witnesses consistently deposed regarding

the proper mixing of the toned milk with the help of plunger and a measure. They

categorically stated that the milk was rotated several times in all possible directions

before the sample was taken by the Food Inspector. Furthermore, the plunger,

measure as well as the sample bottles and the Jug as categorically deposed by all the

prosecution witnesses were clean and dry. I have no reasons to disbelieve them.

Nothing on record has been proved to the contrary i.e. the defence has not proved that

the Food Inspector did not comply with the provisions of the Rule 14. Just because

the defence is challenging the sampling process conducted by the Food Inspector /

asserting that Rule 14 was violated is not sufficient to either disbelieve or throw away /

outrightly reject the testimony of the Food Inspector. I find no reasons why the Food

Inspector would depose falsely or falsely implicate the accused, there being no

previous enmity against him. I have also gone through Section 114 (e) of the Indian

Evidence Act.

34. Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of

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the particular case."

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

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

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

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

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

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

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

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

Assessar, 5 OLJ 179)".

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

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

it may prove it. It was observed that, "The Local (Health) Authority is a public official.

The act of the Local (Health) Authority in despatching a copy of its report of analysis of

a food article with necessary intimation or information is an official act. When the act

has been shown to have been performed, it is open to the court in its discretion to

draw the presumption that the act has been performed regularly. If there is acceptable

evidence to show that the Local (Health Authority) has forwarded the document, by

virtue of illustration (e) to section 114, the court may presume that it was forwarded

regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,

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1954 and Rule 9A of the Rules.".

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

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

drawn that the sample proceedings were duly conducted [Nagar Parishad Alwar Vs.

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

Cri LJ 46, Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri

LJ (Ker) 1 and
Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].

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

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

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

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

(2002) 5 FAC 234.

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

was observed as under:

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

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

41. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

42. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,

the Hon. Apex Court observed as under:

"If the food sold to the food inspector is proved to be adulterated, it is

immaterial whether the sample purchased by him is a representative sample or not of

the entire stock in possession of the person".

43. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982

(2) FAC 133, it was observed in para 5 as under:

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

CC No. 156/04
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(supra).

It was further observed at para 6 as under:

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

44. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984

(1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of

Kerela vs. Alassery Mohammad it was observed as under:

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

CC No. 156/04
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with such a complaint.

It was further observed:

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

45. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon

the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as

under:

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

46. In the case at hand from the deposition of the Food Inspector and the

other prosecution witnesses it stands duly established that the toned milk was properly

mixed at the time of sampling. Furthermore it has to be remember that the act has

been enacted so as to prevent the adulterated food article being sold to the

customers/consumers. It is a matter of common knowledge that when any customer

goes to a shop to buy milk the vendor does not give the milk after mixing the

same/rotating it several times in all directions with the help of a measure or plunger in

the container in which he has stored the same in his shop. He merely takes out the

CC No. 156/04
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milk with the help of a measure or any other instrument from top most layer/ by putting

the measure in container containing milk and sells it to the customer. Therefore when

this is usual mode of selling the milk to the customers then why should a different

mode be used for the purpose of sale to the Food Inspector. The act has been

enacted for the purpose of protection of the customers/consumers of food articles and

it is not sold to them by the shop owner after homogenization. Hence no question of

making the food article/milk homogenized should arise or else the entire purpose of

act will be defeated. This is the reason why the PFA Act or the Rules nowhere

provides for mixing of the food articles at the time when the sample is lifted by the FI.

Variations.

47. Coming to the second limb of arguments of the Ld. defence counsel that

there is a variation of more than 0.3% in the report of Public Analyst qua the report of

Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State

2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled

to acquittal as benefit has to be given to him for the variation in the two reports I find

no merits in the same in view of law the laid down by the Hon'ble Apex Court in

Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the

Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa

Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court

of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

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48. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s

Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

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

49. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the

Hon'ble High Court of Delhi as under:

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

It was further observed in para 3 as under:

"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the
Director, Central Food Laboratory is conclusive and binding and the Courts are bound

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to decide the case on the basis of that report only.".

50. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC

26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the

decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant

Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of

M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as

under:

"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by
the Director would be final and conclusive evidence of the facts stated in the said
certificate. It is obvious that the facts stated would be with respect to the result of the
analysis by the Director and the findings reached therein regarding relevant
ingredients of the part of the sample sent for analysis and analysed by the Director of
the Central Food Laboratory. Once this type of conclusive evidence emerges on
record, whatever might have been contraindicated regarding the concerned
ingredients of the sample as found in the prior report of the public analyst would be
totally pushed out of the arena of contest and cannot be looked at. If that is so, there
would be no question of considering any variance between the results of the
tests carried out by the public analyst on the one hand and the Director of the
Central Food Laboratory on the other visavis two parts of the sample sample.
Any variation or variance between the different ingredients mentioned in these
two reports would presuppose comparison between two existing reports on
record. But if one of the reports is wholly pushed out of record as enjoined by
S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of
comparison between the contents of these two reports with a view to finding out
the supposed variance between the existing and operative report of the Director
and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to
countenance the submission of the accused that despite these provisions, non

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existing report of the public anlayst can still be looked at for the purpose of finding out
the alleged variance between the contents of that report and the superseding
certificate of the Director of the Central Food Laboratory.".

51. In the above case while discussing the word 'supersede' which means to

'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held

that once the report of Director is received the earlier report given by the Public

Analyst is rendered ' obsolete
' and stands '
wiped out
'.

52. In the above referred case while discussing and relying upon the Apex

Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held

as under:

"It was further observed that once supersession take effect, it is not permissible to rely
on the report of the public analyst for the purpose of basing a conviction. That is so
because the report of the Director is made final and conclusive. The Supreme Court
in the aforesaid decision held that the public analyst's report stood superseded by the
certificate of the Director and once the certificate of the Director was found to be
unreliable, there would not remain on record any evidence on which accused could be
convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious
that even in a converse case where the accused claims acquittal on the ground of any
important variance between the earlier report of the public anlyast and the later
certificate of the Director of the Central Food Laboratory which supersedes it, it would
not be open to the Court to rely upon the contents of the superseded report of the
public analyst for doubting correctness of the certificate issued by the Director.".

53. Similar view was taken in case law laid down in V.B. Shukla Vs.

Prakash, 1973 14 Guj LR 381 wherein it was held as under:

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

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

"It is thus clear that the report of the Director of the Central Food Laboratory not only
supersedes the one issued by the Public Analyst but it is final and conclusive
evidence of the facts stated therein. In this view of the matter, when there is report of
Central Food Laboratory, the report of the Public Analyst will, for all practical
purposes, treated as nonexistent. The report of the Central Food Laboratory will be
final and conclusive evidence of the facts stated therein and the question, therefore, of
any comparison of that report with the report issued by the Public Analyst which has
already been superseded does not arise. There are statutory provisions and they
have to be strictly complied with.".

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

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

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In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life.
For that matter, he called the public analyst and examined him as a Court witness.
This procedure is not warranted by law. Instead of reviving the report of the analyst,
he should have discarded the same.".

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

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

57. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134,
the Division Bench of the Hon'ble High Court of Delhi held "the question whether
the milk was in a fit condition of analysis when analysed by the Director is a question
of fact and it depends upon so many circumstances that in the absence of any
evidence about the condition of sample the Courts cannot lay down any artificial rule
that after a certain period has lapsed it must be presumed that the sample was not fit
for analysis even when the Director analysed it and gave a certificate. If the
respondent wished to rely on matters with respect to which the certificate of the
Director is not conclusive evidence it was his duty to have led evidence as to the
matter in which the sample had been kept during the period it was sent to the
Director".

It was further held in para 11 to 14 as under:

"11. It is ridiculous that the learned Magistrate should have compared the
report of the Public Analyst with the certificate issued by the Director. Under
Section 13(5) of the Act the certificate issued by the Director has to be final and

CC No. 156/04
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conclusive evidence of the facts stated therein, although no such presumption
attached to the report of the Public Analyst. The certificate granted by the Director
cannot therefore be disregarded.".

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

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

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

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

60. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1)

FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

"The certificate issued by the Director would then supersede the report given by the

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

61. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi,

it was held that merely because there is a discrepancy between the report of the

Public Analyst and the Director, CFL, it is no ground for rejecting the report of the

Director, CFL as it completely wipes out the report of the Public Analyst.

62. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division
Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the
variation in the two reports is of no consequence because the certificate issued by
the Director of the Central Food Laboratory under subsection (2) of section 13
supersedes the report of the Public Analyst given under subsection (1) of the said
Section and as per proviso appended to subsection (5) is final and conclusive
evidence of the facts stated therein.".

63. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1)

FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at

para 10 as under:

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

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

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

65. So once there is a report of Director, CFL on record, no reference can be
made to the report of the Public Analyst. The report can not be looked into at all for the
purpose of comparison and thus to show the variations, if any. In Calcutta Municipal
Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court
observed as under:
"12. When the statue says that certificate shall supersede the report it
means that the report would stand annulled or obliterated. The word
"supersede" in law, means "obliterated, set aside, annul, replace, make
void or inefficacious or useless, repeal" (vide Black's Law Dictionary,
5th Edn.). Once the Certificate of the Director of Central Food
Laboratory reaches the court the Report of the Public Analyst stands
displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be
looked at which deals with the evidentiary value of such certificate. The
material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed
by the Director of the Central Food Laboratory.........shall be final
and conclusive evidence of the facts stated therein."

14. If a fact is declared by a statute as final and conclusive, its impact
is crucial because no party can then give evidence for the purpose of
disproving the fact. This is the import of Section 4 of the Evidence Act
which defines three kinds of presumptions among which the last is
"conclusive proof". "When one fact is declared by this Act to be conclusive
proof of another the court shall, on proof of the one fact regard the other as

CC No. 156/04
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proved and shall not allow evidence to be given for the purpose of
disproving it".
15. Thus the legal impact of a Certificate of the Director of Central
Food Laboratory is threefold. It annuls or replaces the report of the Public
Analyst, it gains finality regarding the quality and standard of the food
article involved in the case and it becomes irrefutable so far as the facts
stated therein are concerned.".

66. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984

(1) FAC 41, it was observed as under:

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

67. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC

113 it was observed as under:

"For all purposes the report of the public analyst is replaced by teh
certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1)
FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v.

CC No. 156/04
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State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate,
set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's
certificate supersedes the report given by the public analyst. Once superseded it does
not survive for any purpose. It will be anomalous to hold that for some purpose it
survives and for other purposes it is superseded.

68. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble

Supreme Court upheld the conviction despite the variation in the report of the PA and

the Director, CFL being more than 1.083% as the court held that the report of the PA

stood superseded.

69. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs.

Bishan Sarup which was decided on 11.03.1970 held as under:

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

70. In Bishan Sarup's case as referred above despite the variation being

much more than .3%, the accused was convicted.

71. Hence, once the report of the Public Analyst becomes annulled /

obliterated how can any reference be made to the same. No defence lying on the

report is tenable in the eyes of the law. That is the mandate of the statute as well as

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the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a

variation no presumption can be drawn that the sample which was sent to Director,

CFL was not representative. In fact no question of "variation" or the 'sample being

not representative' can arise or be looked into by the court. As already

discussed above that it is the mode in which the sample is sold to the

customer/consumer which has to be kept in mind by the court. The sample is

not made representative when it is sold to a consumer/customer by the

vendor/shopkeeper. Hence he cannot complain that a representative sample

was not taken by the Food Inspector or else if the said plea is allowed it will

defeat the very purpose of the PFA Act. The court cannot legitimately make

such a comparison and conclude that there are divergences and therefrom draw

an inference that the sampling must have been done improperly or that the

sample was not representative.

72. Moreover, I have perused the procedure / the rules laid down in the

Prevention of Food Adulteration Act to be followed by the Food Inspector at the time

and after the sample is collected by him. As per Section 11 1(b), the Food Inspector

has to divide the sample then and there in three parts and mark and seal or fasten

upon each part in such a manner as its nature permits and take the signature or

thumb impression of the person from whom the sample has been taken. As per

Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public

Analyst and the remaining two parts to the Local Health Authority. As per Section 13

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(2 A) upon an application by the accused, the court directs the sample kept by the

Local Health Authority to be produced before him for its onward transmission to the

Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once

the sample is produced before the court, the court meticulously scrutinizes the sample

to check whether the seal, thumb impression or signature on the same are intact or

not. The sample is shown to the accused and upon his satisfaction it is sent to the

Director, CFL. Hence, there arises no question of changing the sample because of

the above mentioned counter checks as enumerated in the Act. Furthermore, when

the sample is sent to the Director, CFL it is under the seal of the court and the Director

in his certificate reports that the sample has been received by him intact as send by

the court. Therefore, once the sample has been collected by the Food Inspector

remains duly sealed, is inspected by the court and the accused for counter checking

the seal and signatures of the accused and thereupon send to the Director, CFL under

the seal of the court no question of the sample being changed or not being

representative arises. Reliance may be placed upon Municipal Committee Amritsar

Vs. Lachman Dass 1978(1) FAC 211.

73. Furthermore, it can not be the intention of the legislature that the person

who has been found selling, offering for sale, manufacturing etc food articles which

have been found to be adulterated upon examination by a Public Analyst as well as by

Director, CFL i.e. two independent authorities be allowed to go scot free merely

because there is a difference or variation in the report of the Public Analyst & Director,

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CFL. It does not appeal to a prudent mind that once a food article has been found to

be adulterated by two different agencies the accused may go unpunished solely on

account of variance in the amount of / extent of adulteration. Doing so would defeat

the entire purpose of the Act and shall have drastic consequences as adulteration of

food is a menace to public health as the Prevention of Food Adulteration Act has been

enacted with the aim of eradicating that anti social evil and for ensuring purity in the

articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs.

State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of

Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under:

"any narrow and pedantic, literal construction likely to leave loopholes for the
dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be
discouraged".

74. Nonetheless, if the accused wants to prove that the report of the

Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/

decomposed/ deteriorated or that his report or the method used by him for analysis

were faulty nothing stopped him from calling the Director for cross examination. Once

he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi

Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1)

FAC 206, it was held as under:

"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

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in any manner incorrect."

Delay

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

was an inordinate delay in the testing / analysis of the sample by the Director, CFL

because though the sample was collected/lifted on 27.04.2004 it was analyzed by the

Director, CFL after a gap of almost 6 months. It was argued that this delay occurred

because of the lapses on the part of the prosecution as the complaint was filed in the

court only on 19.08.2004 i.e. after 4 months. It was argued that if the report of the

Director, CFL is only to be seen / relied upon as per the mandate of Section 13(3) of

the PFA Act then no reliance can be placed upon the same because after a lapse of 6

months the sample of toned milk so collected by the Food Inspector would/must have

been rendered unfit for analysis thereby causing grave prejudice to the accused.

Reliance was placed upon the law laid down in State vs. Raj Kumar 2012 (2) FAC

351 and Gian Chand Vs. State 1978 (1) FAC 15.

76. However, I differ with the Ld. defence counsel. Firstly, no doubt the

sample was collected on 27.04.2004 and the same was analyzed / tested by Director,

CFL after 6 months, however, the fact remains that when the sample was sent for

analysis the Director, CFL categorically opined that "the sample was in condition fit for

analysis". Secondly, the Food Inspector and the other prosecution witnesses have

categorically stated that at the time of sampling, the necessary preservative i.e. 40

CC No. 156/04
DA Vs. Satish Sharma Page 36 of 52
drops of Formalin were added in each of the sample bottles. Thirdly, no evidence

has been led by the defence that even after adding of formalin the sample would not

have remained fit for analysis or that the Director's report was incorrect/false.

Fourthly, when Formalin was added and there is a categorical finding / opinion of the

Director, CFL that the sample was fit for analysis, I have no reasons to presume or

agree with the contention of the Ld. defence counsel that the sample when analyzed

would have been rendered unfit for analysis on account of the delay.

77. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,

Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:

"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under
which provision the accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the sample is found by the said
Central Food Laboratory unfit for analysis due to decomposition by passage of time or
for any other reason attributable to the lapses on the side of prosecution, that valuable
right would stand denied. This would constitute prejudice to the accused entitling him

to acquittal but mere delay as such will not per se be fatal to the prosecution

case even in cases where the sample continues to remain fit for analysis in
spite of the delay because the accused is in no way prejudiced on the merits of
the case in respect of such delay. Therefore it must be shown that the delay has
led to the denial of right conferred u/s 13(2) and that depends on the facts of each
case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a
ground for the prosecution case being thrown out.". Further reliance may be placed
upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179
.

CC No. 156/04 DA Vs. Satish Sharma Page 37 of 52

78. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.

In para 63 of the judgment it was observed as under:

"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........

.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".

It was further observed in para 66 as under:

"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."

It was further observed in para 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was CC No. 156/04 DA Vs. Satish Sharma Page 38 of 52 not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."

It was further observed in para 68 as under:

"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".

It was further observed in para 71 as under:

"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."

It was further observed in para 72 as under:

"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".

It was further observed in para 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V.

CC No. 156/04 DA Vs. Satish Sharma Page 39 of 52

Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."

It was further observed in para 74 as under:

"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"

It was further observed in para 75 as under:

"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."

It was further observed in para 76 as under:

"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."

The court concluded / summed up its observation / findings in para 103 as under:

"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully CC No. 156/04 DA Vs. Satish Sharma Page 40 of 52 marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.

10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.

11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :

(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).

12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused."

79. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit CC No. 156/04 DA Vs. Satish Sharma Page 41 of 52 for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.

8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".

80. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:

"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed."

81. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:

"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned CC No. 156/04 DA Vs. Satish Sharma Page 42 of 52 Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

82. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:

" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."

83. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:

"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".

84. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other CC No. 156/04 DA Vs. Satish Sharma Page 43 of 52 words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."

85. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, observed as under:

"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis."

86. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the CC No. 156/04 DA Vs. Satish Sharma Page 44 of 52 milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".

87. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:

"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act."

CC No. 156/04 DA Vs. Satish Sharma Page 45 of 52

88. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:

"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.

89. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:

"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".

90. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t CC No. 156/04 DA Vs. Satish Sharma Page 46 of 52 after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:

"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.

91. In the case at hand it is apparent from the report of Director, CFL that the sample when sent for analysis / at the time of its examination was fit for analysis / examination. It being not unfit for examination / analysis no prejudice can be presumed to have been caused to the accused merely on account of delay. Thus, it is only in cases where prejudice is caused to the accused on account of delay in institution of the prosecution that is to say the sample is decomposed / deteriorated or is rendered unfit for analysis by the Director, CFL then the benefit has to be given to the accused (Reliance may be placed upon The Apex Court's Judgment in Girish Bhai Dahya Bhai Vs. C.C. Jani 2009 (2) FAC 195). But in other cases the accused is not entitled to any such benefit. To avail the benefit the accused is bound to prove on record that the sample was not a representative. If the accused person wants to show certain infirmities in the process of chemical examination performed by the CC No. 156/04 DA Vs. Satish Sharma Page 47 of 52 Director, then he has to make an application to the trial Court to have the Director summoned as a witness. This procedure was not adopted by the accused / vendor and he has not brought any material on the record to show why the report submitted by the Director should not be relied upon.

92. The very fact that the Director, CFL opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the Director, CFL. The Director's report that the sample was fit for analysis is a fact and there can not be any contrary presumption against the same. How can there be a presumption ( that a sample must have got decomposed, deteriorated or unfit for analysis on account of delay ) contrary to a fact in existence (Director's Certificate that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis has to prove that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the Director or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not on the contrary to the law as well as the principle of jurisprudence.

CC No. 156/04 DA Vs. Satish Sharma Page 48 of 52 Marginal Deficiency

93. Lastly it was argued by Ld. Defence counsel that even if the report of the Director is admitted to be correct still it is apparent from the report of Director that the sample only marginally did not conform to the standards of Milk solids not fat. It was argued that the prescribed standard was not less than 8.5% and the Director found the same to be 7.64% i.e. only 0.86% less than the prescribed limit. It was argued that this marginal variation/ deficiency from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. However I do not agree with the Ld. Defence counsel.

94. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.

95. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:

"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:

"The act does not make a distinction between cases coming under it on CC No. 156/04 DA Vs. Satish Sharma Page 49 of 52 the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."

96. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:

"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."

97. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:

"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".

CC No. 156/04 DA Vs. Satish Sharma Page 50 of 52

98. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:

"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".

99. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.

100. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:

"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".

101. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."

102. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42. CC No. 156/04 DA Vs. Satish Sharma Page 51 of 52

103. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard/marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.

104. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:

The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.

105. In view of my above discussion, as the "milk solids not fat" were found by the Director in the sample of Toned Milk so analysed at 7.64% as against the prescribed standards of minimum 8.5%, the accused stands convicted under Section 2 (ia) (a) & (m) r/w section 7 and 16 (1) (a) of PFA Act 1954.

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

          Announced in the open Court                                   (Gaurav Rao)
           on 25th March, 2014                                     ACMMII/ New Delhi




      CC No. 156/04
      DA  Vs. Satish Sharma                                                              Page 52 of 52

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