Delhi District Court
Delhi Administration / Food Inspector vs Sh. Raj Kumar Sharma on 10 March, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 1819/09
Unique Case ID No. 02403R0020272009
Date of Institution: 27.01.2009
Date of reserving judgement: 20.02.2017
Date of pronouncement: 10.03.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Sh. Raj Kumar Sharma
S/o. Sh. Bhagwan Singh Sharma
R/o. 144-A, Hari Nagar Ashram,
New Delhi-110014 ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Raj Kumar Sharma is stated to be the vendor-cum-proprietor of M/s. Bhardwaj Dairy, from where the food article, that is, 'Ghee' was lifted for sampling.
CC No. 1819/09 Page 1 of 482. As per the complaint, on 26.07.2007, the food officials consisting of Food Inspector (FI) Baljit Singh and Field Assistant (FA) Shivji Mehto under the supervision of Local Health Authority (LHA) / SDM Sh. Lallan Singh reached along with their staff at the premises of M/s. Bharadwaj Dairy at 110, Hari Nagar Ashram, New Delhi-110014, where the accused was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Ghee from the vendor lying in an open drum bearing no label declaration, to which he agreed. A sample of 600 grams of Ghee was then lifted as per procedure prescribed under the PFA Act and Rules, and was divided into three parts. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 13.08.2007, the PA found the sample to be not conforming to the standards on the grounds that the BR reading exceeded the prescribed maximum limit (it was 51.4 when the range should be 40.0 to 43.0), the RM Value was less than the prescribed minimum limit (it was 6.42 when it should not be less than 28) and the BT Test (Baudouin Test) was positive (should be negative in ghee). Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 27.01.2009 alleging violation of section 2(ia)(a), (b), (c) and (m) of CC No. 1819/09 Page 2 of 48 PFA Act and also Rule 44(c) of PFA Rules, as punishable under section 7/16(1)(a) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 27.01.2009. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 04.04.2009, affirming the sample to be not conforming to the standards of Ghee as per PFA Rules as the BR reading exceeded the prescribed maximum limit (it was 52.3 when the range should be 40.0 to 43.0), the RM Value was less than the prescribed minimum limit (it was 5.73 when it should not be less than 28), the BT Test and Rancidity were positive (should be negative in ghee).
4. In view of the CFL report, pre-charge evidence was recorded, wherein the complainant examined PW-1 FI Baljeet Singh and PW-2 FI Virender Singh. On the basis of his deposition, charge was framed against the accused on 22.01.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (b),
(c) and (m) of PFA Act and Rule 44(c) of PFA Rules, to which he pleaded not guilty and claimed trial. At the trial, PW-1 was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-3 FA Shivji Mehto in post-charge stage.
CC No. 1819/09 Page 3 of 485. PW-1 was the FI and PW-3 was the FA who, along with the SDM/LHA Sh. Lallan Singh, were part of the team that had visited the spot for sample proceedings. Both these witnesses deposed about the proceedings conducted by them on 26.07.2007 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 600 gms of Ghee from an open drum bearing no label declaration, mixing the same properly using a clean and dry measure, dividing it in three parts by putting in three separate clean and dry sample glass bottles, sealing, fastening and marking the sample bottles and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A vide which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out by PW-2 FI Virender Singh. During investigation, letter Ex. PW-2/A was sent to the STO and its reply taken. Thereafter, consent/sanction Ex. PW-2/B was obtained from the Director PFA and the complaint Ex. PW-2/C was filed in the court. Copy of PA report and intimation letter Ex. PW-2/D were sent to the accused through registered post vide receipt Ex. PW-2/E. While PW-2 was not cross- examined at all, PW-1 and PW-3 were duly cross-examined by Ld. CC No. 1819/09 Page 4 of 48 Defence Counsel, wherein PW-1 informed that ghee was in molten form and was therefore not heated, that the utensils were clean and dry, that about 20 kg ghee was lying in the drum, and PW-3 could not tell if rancidity was an advanced stage of decomposition or if all the parameters of ghee would change after it becomes rancid.
6. Statement of the accused under section 313 CrPC was recorded on 26.11.2014 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 26.07.2007, yet he claimed that the sample was taken without his consent, that no payment was made to him, that he signed the documents under duress of the FI, that the sample was not mixed properly, that the bottles were not made clean and dry and that he made no adulteration. He however did not lead any evidence in defence despite opportunity.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 04.04.2009 which is final and conclusive as per section 13(3) and 13(5) of the PFA Act. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended CC No. 1819/09 Page 5 of 48 that the complaint was filed after 18 months and on this score, the right of the accused under section 13(2) PFA Act stood frustrated because ghee is a perishable item and by that time, it would have become unfit for consumption after expiry of its shelf life. It is submitted that there are several variations in the reports of PA and CFL which would lead to conclusion that a representative sample as not taken. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the charge framed against the accused is for violation of section 2(ia)(a), (b), (c) and (m) of the PFA Act and Rule 44(c) of PFA Rules. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(b) applies when a food article contains any other substance which injuriously affects its nature, substance or quality. Section 2(ia)(c) applies where any inferior and cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof. Section 2(ia)(m) specifically deals with situation where the quality or purity of the food article falls below the CC No. 1819/09 Page 6 of 48 prescribed standards or its constituent are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. As per Rule 44(c), no person shall sell ghee which contains any added matter not exclusively derived from milk fat.
11. To begin with, it is seen that the commodity in the present case is Ghee, which is a standardised food article falling under Item No. A.11.02.15 of Appendix-B of PFA Rules. Minimum standards have been prescribed under the Rules for this food article. It is important to note that the defence has not disputed the identity of the food article. It is not the case of the accused that the said food article was not ghee was sold as ghee, or that it was or represented to be some other food article. The accused signed all the documents prepared at the spot which mention that the food article was ghee. No stand disputing this position was taken at the trial during evidence of PWs or even by accused in his statement under section 313 CrPC.
12. The accused has then not disputed the fact that he was the proprietor of the business concern from where the sample was lifted and that he was the vendor from whom the sample was taken. He never took stand that he was not the vendor or proprietor or that some other person was vendor or proprietor. No PW was given any suggestion to the effect that the sample was taken without his consent, that price of sample was not paid to him, that he was made to sign the documents under duress/force/threat/pressure, that the proceedings were concluded in his absence, as claimed by accused CC No. 1819/09 Page 7 of 48 for the first time in his statement under section 313 CrPC. No evidence in defence was led by the accused to prove such allegations.
13. The accused has then not disputed the fact that the sample was stored and exposed for sale for human consumption. It is not his case that the food article was not yet ready for sale, or was to be processed further before sale, or was not for sale, or was for some use other than sale. It is not the stand of the defence that the PFA Act is not applicable to the food article in question.
14. In such factual matrix, the prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is 'Since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said 'variations', it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused. It is pointed out that as per PA report, the BR Reading was 51.4, RM Value was 6.42, free fatty acids were 0.08%, moisture was 0.07%, BT Test was positive and there was no rancidity. As against this, as per CFL report, the BR Reading was 52.3, RM Value was 5.73, free fatty acids were 2.33%, moisture was 0.23%, BT Test was positive and rancidity was positive.
15. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in CC No. 1819/09 Page 8 of 48 State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
16. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219], which needs detailed discussion. It is necessary to understand the concept of reports of PA and CFL and variations therein.
17. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
18. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard CC No. 1819/09 Page 9 of 48 of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
19. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
20. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was CC No. 1819/09 Page 10 of 48 observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".
21. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
22. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
23. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is CC No. 1819/09 Page 11 of 48 done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".
24. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as CC No. 1819/09 Page 12 of 48 found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
25. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of CC No. 1819/09 Page 13 of 48 delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason. In Ghisa Ram's case (supra), the Director, CFL had reported that the sample had become highly decomposed and no analyses was possible. In that case, on the basis of evidence, the court found that sample of curd could not have survived for more that four months. At the same time, there was no rule laid down that in every case of frustration of such right, the vendor cannot be convicted on the basis of PA report and different considerations may arise.
Similarly in Ram Mehar v. Delhi Administration (Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969), after the delay of none months, the sample was sent to CFL but the Director reported that the sample had become highly decomposed and its analyses was not possible. Further, in Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal N. 7- D/1966, Delhi High Court, dated 28.07.1969], the evidence had been led in that case to show that the difference between the two reports was mainly due to lapse of time.
(b) The consideration of time-lapse is relevant only for a limited purpose. "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after CC No. 1819/09 Page 14 of 48 this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) "If prejudice is caused to the accused on account of the delay in the institution of proceedings, as when the sample is rendered unfit for analyses in the meanwhile, then the accused is entitled to the benefit of doubt... But in case no prejudice is caused to the accused he cannot be allowed to escape the consequences under the law for such anti-social act..."
(d) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
26. This judgment was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public CC No. 1819/09 Page 15 of 48 Analyst loses all its value after supersession by the certificate of the Director".
27. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].
28. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to CC No. 1819/09 Page 16 of 48 discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter or evidence adduced by the prosecution and defence and not a matter or assumptions.
29. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was CC No. 1819/09 Page 17 of 48 not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
30. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross-examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight CC No. 1819/09 Page 18 of 48 away lead to conclusion that the samples were not representative, would certainly be not tenable.
31. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
32. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.
33. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as CC No. 1819/09 Page 19 of 48 to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
34. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 25% and by the CFL to be 24% when it was examined after a few CC No. 1819/09 Page 20 of 48 months, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 25%, then can the accused get benefit in the ground that there is variation of more than 0.3% in the two reports with respect to some moisture or ash content? Again, if the PA and CFL both find some prohibited matter (say artificial unpermitted synthetic colours or insect infestation) in a sample, then can the accused get benefit in the ground that there is some variation of more than 0.3% in the two reports with respect to some other ingredient? Certainly no. This position would not change even if there is huge delay in analysis by two experts. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit CC No. 1819/09 Page 21 of 48 goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
35. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is CC No. 1819/09 Page 22 of 48 given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3% on any parameter, whether incriminating or not. This would rather give precedence to the report of PA and not CFL.
36. As mentioned earlier, this judgment has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
37. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.
38. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the CC No. 1819/09 Page 23 of 48 acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
39. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
40. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
41. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the CC No. 1819/09 Page 24 of 48 evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. In Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
42. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report. In simple terms, the CFL detected what the PA failed to detect.
43. Even otherwise, this is one of those few cases where there is hardly any variation which cannot be explained. As far as free fatty acid and rancidity are concerned, they can certainly develop and increase with the passage of time, for which the benefit has to be given to the accused to this limited extent. Reliance can be placed on judgements titled as Nebh Raj v. State [Criminal Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980] and National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 21 months of lifting of the sample CC No. 1819/09 Page 25 of 48 (when CFL gave its report). Had it been a case of violation of these parameters only, the accused would have been got the benefit. With passage of time, such changes would be natural as the effect of air, water, heat, internal and external atmosphere, pressure, environment, etc. cannot be ignored on food articles which are perishable in nature.
44. But it is important to note that the two reports are in conformity to each other as the Baudouin Test (BT Test) was found positive in both of them. The BR reading and RM values have changed slightly, and quite possibly due to lapse of time, but that would not give the benefit to the accused, simply for the reason that the values are far beyond what they should be as per the standards. Position might have been different if the values were marginally in violation of the prescribed standards, for which delay of 18 months could have been attributable, but where the values were already in grave violation and there is some difference in values due to time gap, accused cannot seek benefit of delay.
45. The BR reading, RM Value and BT Test result as determined by the CFL have to be given overriding effect and nullifying the earlier PA report on these counts. Had the sample failed only on account of free fatty acids or rancidity or marginal variation in other parameters which might have changed with passage of time, by the CFL, the court might have assumed that the sample failed due to natural causes, but only when there was material to assume that, if there had been no delay, these values would have been within the prescribed standards. But when it is not the position, CC No. 1819/09 Page 26 of 48 such variations would not negate the confirming findings of PA and CFL on other parameters.
46. Now to ascertain the effect of delay in filing the complaint. Sample in this case was lifted on 26.07.2007 and it was analysed by PA from 31.07.2007 to 27.07.2007. PA gave report dated 13.08.2007. The complaint was filed on 27.01.2009.
47. Apparently, there is a huge delay of 18 months in filing the complaint. As the right under section 13(2) of PFA Act can be exercised only after launching the prosecution, the sample was sent to CFL for analysis only thereafter. The CFL examined the sample from 24.03.2009 to 02.04.2009 and gave certificate dated 04.04.2009. Thus, by that time, the food article was already 21 months old and quite possibly, its shelf life would have been over.
48. But the matter would not end here. The question is whether can the said delay frustrate the right of the accused under section 13(2) of the Act, despite the fact that he had exercised his right and had sent the counterpart for analysis by the CFL? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], on the basis of which the Hon'ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis. This judgement was relied upon by the Hon'ble High Court in State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, CC No. 1819/09 Page 27 of 48 dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957].
49. It would be seen that in Chanan Lal's case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon'ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his reasearch that a sample of panir would remain fit only for one month when formalin was added and was kept in refrigerator. The Hon'ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held "On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month". The Hon'ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.
CC No. 1819/09 Page 28 of 4850. Well, a lot of issues are involved in the arguments advanced on this count.
51. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal's case to be considered as it is, in this case as well as in all cases of milk and milk products including ghee. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross-examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future cases even without his examination or cross-examination. There can be other experts in the same field who might have different opinions based on their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal's case cannot be therefore accepted in all cases of milk or milk products blindly.
52. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 Cri.L.J. 1086], full bench of the Hon'ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal's case, which the defence wishes wants the court to rely straight away) as under:
CC No. 1819/09 Page 29 of 48"It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.
It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds."
53. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after forty five years without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.
54. Even otherwise, the judgement in Chanan Lal's case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon'ble Court in that CC No. 1819/09 Page 30 of 48 judgement that prosecution should be filed with 17 days of lifting the sample, is now impossible to achieve. Rule 9(j) on which the Hon'ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.
55. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require few days to analyse the sample (as in the present case), to prepare his report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court CC No. 1819/09 Page 31 of 48 would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in 17 days as per the judgement in Chanan Lal's case. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the case would depend on its own set of facts and circumstances. The judgement in Chanan Lal's case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future pertaining to a sample of milk or milk products like paneer and ghee, delay of one month would have to result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.
56. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration in the any sample of milk or milk products like paneer/chhiana or ghee, the moment one month lapses from the date of lifting the sample, and if any such case come to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.
57. At this stage, it is also necessary to observe that in Chanan Lal's case, the sample sent to CFL was reported to be decomposed and its CC No. 1819/09 Page 32 of 48 contents leaking, rendering it unfit for analysis. Thus, the Hon'ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis (as in the present case), or those cases where the accused chooses not to send sample for analysis to CFL.
58. It is to be understood that there is difference in a food article being unfit for consumption and a food article being unfit for analysis. After shelf life of a food article, generally called as best before date or even expiry date (which are quite short as the food articles are ordinarily perishable in nature), the food article may become "unfit for consumption". At the same time, it may also become unfit for analysis on some parameters (like rancidity, moisture, ash content, broken grains, extraneous matter, damaged grains, etc). But it may still not be rendered "unfit for analysis" on all the counts, particularly those which are not prone to changes with passage of time (like unpermitted artificial synthetic colours, or BT Test or presence of mineral oil, etc). If there is some prohibited substance in the food article which would not develop with the passage of time or there is absence of mandatory ingredient in a food article which would not vanish with passage of time, then irrespective of huge delay, the article would still remain fit for "analyis", though technically it may not remain fit for human "consumption" after lapse of some period of time.
59. Thus, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the accused is able to show on concrete grounds that any such delay in filing the prosecution has caused CC No. 1819/09 Page 33 of 48 prejudice to him or frustrated his rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.
60. As mentioned above, in MCD v. Bishan Sarup [supra], full bench of the Hon'ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that the there was no occasion for the trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analyses to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon'ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that CC No. 1819/09 Page 34 of 48 case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon'ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup's case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.
61. Even in Chanan Lal's case, the Director CFL had reported that the sample was decomposed and leaking. The judgement would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of the accused to get the sample analysed from CFL. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the CC No. 1819/09 Page 35 of 48 report of CFL despite its being final and conclusive, as observed in Bishan Sarup's case, only on the assumption that any particular delay would have frustrated the right of the accused. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance, the offence would still be made out, irrespective of such chemical changes on account of delay. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.
62. In view of this proposition, the accused in this case cannot claim that his right under section 13(2) PFA stood frustrated when the complaint was filed after four months of lifting the sample. He had exercised his right by moving application under section 13(2) PFA Act and it was only when the CFL report was also in conformity with the PA report that such an argument was raised. Such argument is liable to be rejected.
63. The judgements relied upon by the accused, that is, State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957] were apparently against acquittals in which the standard of evaluation is different from that against conviction. Similarly, in the judgement titled as Delhi Administration v. Suraj [2014(1) FAC 264], the Hon'ble High Court had dismissed the petition after observing that it was keeping in view the principles applicable to appeal against acquittal. This judgement is also different on facts as there was no evidence to show that knife used CC No. 1819/09 Page 36 of 48 was clean and dry. In the case at hand, there is positive evidence in the form on testimonies of PWs on oath to show that utensils, impliments and bottles were all clean and dry. Ld. Counsel has failed to explain what other evidence could have been there in addition to corroborative evidence given on oath by the PWs to establish that the utensils/impliments/bottles were all clean and dry and there no evidence to establish anything to the contrary.
64. In the case at hand, the BR reading was found by the PA to be 51.4 and by the CFL to be 52.3. As per standards, it should be within the range of 40.0 to 43.0. There is no explanation how the BR reading went so high in case of ghee sold by the accused. Even if 18 or 21 months delay is considered, that would not increase the BR value to such an extent, if it was otherwise within the prescribed range.
65. Similarly, the Reichert Value or RM Value was found by the PA to be 6.42 and by the CFL to be 5.73. As per standards, it should not be less than 28. There is no explanation how the RM Value went so low in case of ghee sold by the accused. Even if 18 or 21 months delay is considered, that would not lower the BR value to such an extent, if it was otherwise more than the minimum prescribed limit.
66. Again, both the PA and CFL found the Baudoin Test or BT Test positive. As per the standards of ghee, BT test should be negative in ghee. Such BT test is positive in case of vanaspati, as falling in Item No. A.19 of Appendix-B of PFA Rules. BT test give positive result on account of CC No. 1819/09 Page 37 of 48 presence of til oil / sesame oil which is mandatory to be put in vanasapti. This is to primarily detect adulteration of vanasapti in ghee. If BT test is positive in ghee, it becomes clear that vanasapti was added in it. Undoubtedly, vanaspati is a cheaper and inferior substance which also injuriously affects the nature, substance or quality of ghee, irrespective of the fact if it is injurious to health or not. Thus, this is a clear case where the food article ghee was substituted by the accused with inferior or cheaper substance vanaspati or admixture thereof.
67. Moving ahead, Ld. Counsel argues that the proper method of taking sample was to heat the ghee. But as deposed by PW-1, the ghee was already in molten state. Sample was lifted in month of August and ghee would certainly be in molten state at that time. There is again nothing to show that omission to heat the ghee would change its BR Reading, RM value and BT Test to such drastic extent for which benefit may be given to the accused.
68. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such CC No. 1819/09 Page 38 of 48 witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. There is nothing in the cross-examination of the PWs which can be said to be contradictory so as to shake their credibility. No violation of any rule or provision has been pointed out by the defence.
69. Moving ahead, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 27.01.2009 on the basis of the PA report. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used.
CC No. 1819/09 Page 39 of 4870. To this, Ld. SPP has pointed argued that the methods of analysis to be adopted had been specified with effect from 25.03.2008 after clause 9 was inserted in Rule 4. It is thus clear that method for analysis done after 25.03.2008 had been specified.
71. Even otherwise, I do not find myself in agreement with the said contention or to the interpretation of Ld. Defence Counsel sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents even during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
72. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains CC No. 1819/09 Page 40 of 48 effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she has been duly appointed and this fact was never disputed at the time of trial.
73. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analysed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time, CFL Pune was specified to be the laboratory for Delhi region.
CC No. 1819/09 Page 41 of 4874. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:
"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."CC No. 1819/09 Page 42 of 48
75. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
76. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyse the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
77. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The CC No. 1819/09 Page 43 of 48 relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
78. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyse the sample as CC No. 1819/09 Page 44 of 48 per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to standards to be maintained in case of ghee on parameters like BR reading, RM value and BT Test. In this case, prosecution is for violation of section 2(ia)(a),
(b), (c) and (m) of the Act. The present case would be covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to non-compliance of prescribed standards and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused.
79. Moving ahead, it would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The CC No. 1819/09 Page 45 of 48 definition of 'sale' under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which the accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty in writing and had been selling the product in the same state as purchased by him.
80. In the present case, the accused never disclosed from where he had purchased the commodity or that he was selling the same in the same condition as had been purchased. Neither such details were disclosed at the time of sampling proceedings nor during the investigation, nor at the trial while cross-examining the witnesses, or while recording statement of accused or even by way of defence evidence. No bill was produced or proved on record. No witness has been examined by the accused who could establish that any such food article was purchased by the accused from any third person. No such bill was ever submitted to the PFA department even during the investigation. No such bill was shown to the FI at the time of sampling. No endorsement was made by the accused on the documents prepared at the spot claiming that he had purchased the same from any third person or that was having any such bill / invoice / cash memo. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the ghee as lifted from possession of the accused was CC No. 1819/09 Page 46 of 48 purchased by him from any other place and that he was using it in same state as purchased. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused. Such a defence is also liable to be rejected.
81. No other stand has been taken by the accused at the trial or during the arguments advanced.
82. Having said so, it is clear that the ghee lying in possession of accused meant for sale for human consumption was adulterated within the meaning of section 2(ia)(a), (b), (c) and (m) of PFA Act. It has been established on record that the ghee was not of the nature, substance or quality which it purported and represented to be as per section 2(ia)(a). It is also evident that an inferior and cheaper substance like vanasapti or admixture thereof had been substituted by accused wholly or in part in ghee so as to injuriously affect its nature, substance or quality, in violation of section 2(ia)(b) and (c). It is also established that quality or purity of ghee was substantially below the prescribed standard as per Item A.11.02.15 of Appendix-B of PFA Rules, as per section 2(ia)(m) of PFA Act. Of course, the material is not sufficient to hold that the food article was rendered injurious to health, and that is why there is no prosecution for violation of section 2(ia)(l) of PFA Act.
83. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that CC No. 1819/09 Page 47 of 48 the accused had stored for sale adulterated food in violation of section 2(ia)(a), (b), (c) and (m) of PFA Act, and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
84. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Let the matter be listed for arguments on sentence.
Announced in the open court this 10th day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355 CC No. 1819/09 Page 48 of 48