Delhi District Court
Anr vs . Delhi Administration on 24 January, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
NATIONAL DAIRY DEVELOPMENT BOARD &
ANR VS. DELHI ADMINISTRATION
CA No. 192/2017
CC No. 135/98 (39000/2016)
CNR No. DLND01-011015-2017
1. National Dairy Development Board
Registered Office at:
Anand, Gujarat
(Through its Authorized Representative Mr. N.N. Rastogi)
......Appellant no.1
2. S. Nagarajan
S/o Late Shri V. Sanjeevi
R/o D-17 NDDB Residential Complex
A-84, Sector 17, Noida-201301
..... Appellant no.2
Versus
Delhi Administration
(Department of Food, Govt. Of Delhi
......Respondent
Date of Institution: 21.08.2017
Date of decision : 24.01.2023
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction under the provisions CA No. 192/2017 1/22 of Prevention of Food Adulteration Act, dated 19.07.2017 and order on sentence dated 27.07.2017 passed by Ld. ACMM, Patiala House Courts, New Delhi.
Brief Facts:
2. That on 24.08.1998, Food Inspector (FI) Sh. D.P. Singh alongwith Local Health Authority Sh. R.K. Ahuja and other officials visited M/s Bansal Traders, Shop No.4, C-12, Yamuna Vihar, Delhi-110053, where the vendor was found conducting business of various food articles. The FI disclosed his identity and expressed his intention to purchase a sample of "double filtered mustard oil" lying in sealed packets (tetrapack) of 1 litre each (910 grams) bearing identical label declaration. It is claimed that the sample of mustard oil was taken as per procedure prescribed under the PFA Act. The vendor did not give the details of the supplier. During the investigation, the FI came to a conclusion that the oil had been manufactured by the appellant no.1 i.e. National Dairy Development Board.
3. As per complaint, one sample of mustard oil was sent to Public Analyst (PA) who vide his report dated 31.08.1998 found that the sample did not conform to the standards laid down under item no. A.17.06 of Appendix B of PFA Rules, 1955 because sample showed presence of argemone oil. Accordingly, Sanction/Consent under Section 2 (ia) (a), (b), (c), (f) (h) and (l) of PFA Act, as punishable under Section 16 (1A) read with Section 7 of the Act was obtained and complaint was filed, arraying the appellant no.1 herein as accused no.6 as the manufacturer. Appellant no.2 is the nominee of the appellant company.
CA No. 192/2017 2/224. The appellants were summoned vide order dated 25.09.1998. An application under Section 13(2) of the Act was filed by the appellants. The second counter part of the sample, as selected by the appellants in the Court, was sent to Central Food Laboratory for analysis. The Director CFL after analyzing the sample gave his report vide certificate dated 30.04.1998 opining that the sample of Mustard Oil is adulterated.
5. It may be pertinent to refer to the two reports at this stage itself for sake of clarity. The PA's report dated 31.08.1998 does not indicate the test used for detecting argemone oil but only gives the finding as positive.
6. The CFL report dated 30.04.1998 on the other hand indicates that the TLC test was carried out to detect the presence of argemone oil. No percentage of the argemone oil present in the sample is indicated by either of the reports.
7. A charge for violation of provisions of the Act punishable under Section 7/16 (1A) of PFA Act, read with Section (a), (b), (c), (h) and (l) of Section 2 (ia) of PFA Act was framed against the appellants, to which appellants pleaded not guilty.
8. The prosecution examined 4 witnesses namely, PW1 LHA Sh. R.K. Ahuja, PW2 Food Inspector Sh. D.P. Singh, PW3 Food Inspector Sh. S.P. Singh and PW4 Retired Director, CFL Sh. Satya Prakash.
9. The statement of the accused/appellants was recorded under Section 313 Cr.PC in which appellant claimed innocence.
10. Briefly stated that main arguments put forth by the counsel for the appellant/accused are that:
CA No. 192/2017 3/22Firstly, there was no bill or invoice produced by the vendor so as to link the appellants with the sample product. The sole basis for prosecuting the appellant no.1 Board was the label declaration allegedly appearing on the tetrapack "packed and marketed by National Dairy Development Board, Anand 388001, India" which was allegedly reduced in writing in Form VI required to be prepared in terms of Rule 12 of the PFA Rules. However, the original packaging containing such a declaration was, neither, produced in court during trial, nor, tendered in evidence. Therefore, as per the Ld. Senior Counsel primary evidence of the contents of the label declaration was never produced and the conviction based on secondary evidence was unsustainable;
Secondly, that the method of analysis to be adopted and the labs which could have analysed the sample were not notified at the time when the sample was lifted and examined; and Thirdly, the PA's report does not mention any test and the CFL report relied on TLC as method of analysis but no material has been produced to show that the said test was the notified/approved method of test on the date of analysis.
11. Before, going into the arguments addressed, I am constrained to note that the conviction could not have been under Section 2 (ia) (a) & (m) of PFA Act, simultaneously, in the facts and circumstances of the present case. Upfront, it may be pertinent to refer to the definition of the term "adulterated" as contained in Section 2 (ia) of the Act, 1954, which is extracted hereinbelow:
[(ia) ] "adulterated"--an article of food shall be CA No. 192/2017 4/22 deemed to be adulterated--
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, 1[***], rotten, decomposed or diseased animal or vegetable substance or is insect-
infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
[(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
[(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health;]
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, CA No. 192/2017 5/22 has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
12. I have noticed that the Charge in the present case was framed for violation of Section 16 but the relevant clause from the definition of word adulterated invoked were clause (a),
(b) and (m) of Section 2 (ia) of the Act. However, at the time of convicting the accused, the court came to the conclusion that clause (a) and (m) were both made out and clause (b) was not made out. In the judgment, the Trial Court drew distinction between clause (a) and (m). However, at the time the final conclusion was drawn, the court has not reasoned as to how the case at hand was covered under sub-clause (a) and (m) simultaneously.
13. In my view, the same is not possible as when the Legislature has taken pains to define the word "adulterated" by providing 13 different sub clause from (a) to (m), none of the clause can be treated as implying the same meaning or corresponding with each other.
14. It is noteworthy that sub-clause (a) uses the expression "if the article sold by the vendor", no other clause deals with the aspect of sale by a vendor and are open ended and apply to manufacturing as well as sale. Further, for sub-clause (a) CA No. 192/2017 6/22 to be applicable, it has to be established that a product was asked for by description or buyer relied on the judgment of the vendor as also that the product supplied was to the detriment of the purchaser or it was not of the nature, substance or quality which it purports to be.
15. At this stage, it may be pertinent to refer to the allegations made in the complaint. The complaint signed by Sh. R.K. Ahuja, LHA records that the PA gave a report that sample does not conform to the samples laid down in Item no. 17.06 of Appendix B. It is injurious to health and also likely to cause death. However, as far as clause (m) is concerned, it need not be shown that the product was injurious to health but the same may be relevant for clause (a), since injurious to health would be to the prejudice of the purchaser. Further, for clause (m) to come into operation, all that has to be shown is that standards have been laid down under the rules and the food article does not conform to the same. Clause (a) therefore, would be attracted in cases where no standards are prescribed or the food item is not of the nature or quality it purports to be. However, no such finding was recorded by the Trial Court, inasmuch as, the percentage of argemone oil was never given by either of the report. Therefore, unless the court had come to a conclusion that sale of the product was to the prejudice of the purchaser, conviction could not have been made under clause (a) of the definition of adulterated in the facts and circumstances of the present case.
16. I shall deal with the first argument raised by the counsel i.e. the effect of non production of original packaging.
17. It is vehemently argued by the Ld. Senior Counsel for the appellant that the entire case against the National Dairy CA No. 192/2017 7/22 Development Board is based on the Form VI prepared by the Food Inspector Ex.PW2/B, where the alleged label declaration of the tetrapack has been described by the Food Inspector. However, the original tetra pack was never produced in court nor tendered in evidence. No bill or warranty under Section 14 Rule 12 (a) has been produced or proved by the prosecution to show that the sample actually lifted belonged to National Dairy Development Board.
18. Admittedly, the product was not purchased from the National Dairy Development Board directly by the Food Inspector but was rather purchased from a small vendor, who claimed to have purchased the same from a third party. There was no bill, invoice or warranty within the meaning of the Act and Rules or even otherwise, to link the sample commodity with the appellant.
19. Out of several similar appeals listed before me and being heard together, except in one case, the said tetra pack was never produced before the court for the purposes of recording of evidence. The tetrapack was never exhibited as the tetra pack seized by the team comprising of Food Inspector and other officials. It was the label declaration on the tetra pack, as reduced in writing by the Food Inspector in Form VI, which formed the basis of complaint, prosecution and conviction of the appellants. This Form VI is prepared pursuant to Rule 12 of PFA Rules which reads as follows:
12. [Notice of intention to take sample for analysis:-
When a Food Inspector takes a sample of article for the purpose ofanalysis, he shall give notice of his intention to do so in writing inForm VI, then and there, to the person from whom he takes thesample and simultaneously, by appropriate means, also to thepersons if any, whose name, address and other CA No. 192/2017 8/22 particulars have beendisclosed under section 14-A of the Act;] [Provided that in case where a food inspestor draws asample from an open container, he shall also draw a sample from thecontainer in original condition of the same article, bearing the samedeclaration if such container is available, and intimate this fact tothe Public Analyst.]
20. There is a two fold submission from the counsel. Firstly, that it is possible that the tetrapack that was picked by the Food Inspector was a spurious product and this defence seems to have been taken by the accused during trial and more specifically during the cross examination of the officials, where it was put that whether spurious products were available in the market and if the Food Inspector could vouch for the genuineness or the product being fake. The Food Inspector had admitted that spurious products were available in the market but he expressed his inability to make a definite statement as to whether the samples seized in the present case was spurious or not.
21. The second submission, of course, is more technical and legal than argumentative, inasmuch as, the counsel has submitted that since the entire basis of the prosecution was the declaration on the box, the box was the best evidence to prove its contents. The box, as per the Ld. Senior Counsel, would be document within the meaning of Indian Evidence Act. The Form VI prepared by the Food Inspector at the spot, although, is a duty performed by a public servant and carries a presumption that it was performed properly, the same cannot over ride a more settled and broader principle of law of evidence i.e. the contents of a document have to be proved by producing the document itself for the perusal of the court. Further, the requirement of Form VI is to CA No. 192/2017 9/22 indicate the intention to take a sample under the Act and no conclusiveness is attributable to its contents under the Act. The box would have consitututed primary evidence of its contents. If one was to look at the definition of secondary evidence, as contained in Section 63 of the Evidence Act, it can be noticed that the contents of the Form VI can be said to be falling under sub Section (3) and sub Section (5) of the definition of the secondary evidence at the best. The Evidence Act mandates under Section 64 that the document must be proved by primary evidence and the exceptions to the said rules are contained in Section 65 of the Evidence Act. Certain pre conditions must exist before the secondary evidence can be taken. Section 65 reads as follows:
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"CA No. 192/2017 10/22
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
22. The relevant provisions of the Evidence Act were considered by the Hon'ble Supreme Court of India in decision in Smt. J. Yashoda Vs. Smt. K. Shobha Rani, Appeal (civil) 2060 of 2007 decided on 19.04.2007. The relevant portion thereof is quoted for ease of reference:
Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by CA No. 192/2017 11/22 primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert.CA No. 192/2017 12/22
The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
23. Unfortunately, for the prosecution, at no point of time, any witness has deposed that the third counter part of the sample taken, which would have remained with the LHA, was either no longer available at the time of recording of evidence or could not have been produced for any other reaons within the purview of Section 65 of Evidence Act. This rule must come to the aid of the accused in the present case, inasmuch as, it was the prosecution itself i.e. the complainant itself who was sitting on the document and was possessed of the same. In such circumstances, the onus to seek its production in the court can definitely not be placed on the accused. To my mind, the prosecution must fail on this ground itself, inasmuch as, the very CA No. 192/2017 13/22 declaration, appearing on the box cannot be said to have been proved in accordance with the rules of evidence.
24. At this stage, Ld. SPP for the Department has vehemently urged the court to invoke the power contained under Section 391 of Cr.PC to seek production of the tetrapack/packaging seized in the present case at this stage in the court and for recording of additonal evidence. However, I must politely decline the said request made by the prosecution for the following reasons:
firstly, the tetrapack is in the possession of the cmplainant/LHA and even till date, there is no application on record alongwith the pack itself, claiming that the pack be taken on record and be read in evidence or additional evidene be recorded to prove the same. The packaging is yet to see the light of the day;
secondly, 25 material years of the life of appellant no.2 who is a nominee of the Board has been spent in contesting a criminal trial in which the very foundation of the case against him, that is the declaration made on the tetrapack, was never produced before the court.
25. Unfortunate, as it may seem, had the Ld. MM insisted on the production of the document at the stage of recording of PSE, if not, cognizance, the case would have had a different fate. But only perhaps. I cannot say with any surety that the box, if produced, could have been sufficient to conclude that the same belonged to the appellants. There was an additional duty on the complainant, who had also investigated the present case, to link that box with the accused Board before making a complaint. Since, no bill was produced by the vendor, there CA No. 192/2017 14/22 cannot be any certainty in a conclusion that the box, in fact, belonged to the Board. To conclude the same on mere production of a box would be presuming that there are no counterfeit or spurious products available and merely because the box is available in the market with a declaration, it must be presumed to have been manufactured by the person, whose name appears on the box.
26. In criminal trial such relevant facts require proof beyond what is visible on the box and that also seems to be the scheme of the Act which insists on issuance of bills and warranties, as also, absolves from bottom to top, a person producing the bill, with a vendor being at the bottom of the chain and the manufacturer being at the top of the chain. The intent of such a provision is obvious, that every individual selling a product must insist on receiving a bill, invoice, warranty of its purchase so that the Local Heatlh Authority can link the product with the person who had introduced the same in the market.
27. At this stage, it may be pertinent to refer to Section 14 and 19 (2) of the PFA Act:
Section -14: [14. Manufacturers, distributors and dealers to give warranty.--No [manufacturer or distributor of, or dealer in] any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
[Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.] Explanation.--In this section, in sub- section (2) of section 19 and in section 20A, CA No. 192/2017 15/22 the expression "distributor" shall include a commission agent.] Section 19 (2): [(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves--
(a) that he purchased the article of food--
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.]
28. Similarly, Rule 12 A of PFA Rules may also be referred to at this stage:
[12A. Warranty.--Every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or a [label] a warranty in Form VIA.]
29. The want of bill or invoice itself should be taken as a suspicious fact, which can cast a doubt on the genuniness of the source of the product. A big organization such as National Dairy Development Board cannot be presumed to be selling products in the gray market without any bills and invoices.
30. When I was looking at all these aspects, of course, another aspect which weighed on my mind is that in the report of the CFL, there is no percentage of the adulterant i.e. Argemone Oil, declared and there is evidence to incidate that its presence in more than 1% causes dropsy. There is no evidence nor material to conclude that the quantity which was found in the sample was injurious to health.
31. In these circumstances, I am of the view that the CA No. 192/2017 16/22 prosecution in the present case must fail.
32. As far as second contention is concerned i.e. that the method of analysis to be adopted and the labs which could have analysed the sample were not notified at the time when the sample was lifted and examined;
33. The main argument that has been addressed on behalf of the Appellant is based on Section 23(ia) (ee) and (hh) of PFA Act. It has been argued that the Laboratories where the samples of food for adulteration were to be analyzed, had not been defined within the meaning of these Sections. Further, the method of analysis for evaluating the food articles adherence to prescribed standards had also not been prescribed on the date of the analysis in the present case. Therefore, the Report of the Public Analyst or of CFL cannot be looked into.
34. For this it would be relevant to refer to the provisions of Section 23(1A)(ee) and (hh) which read as follows:
"23(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
............................
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this act;
.......................
(hh) defining the methods of analysis."
35. The said provisions were incorporated in the Prevention of Food Adulteration Act, 1954 with effect from 01.04.1976 only through Act 34 of 1976.
36. Through notification dated 25.03.2008 of the CA No. 192/2017 17/22 Ministry of Health and Family Welfare published in the Gazette of India (Extraordinary), in exercise of the powers conferred by Section 23 of the 1954 Act, the Central Government has incorporated Rule 4(9) in the Prevention of Food Adulteration Rules, 1955, through Prevention of Food Adulteration (Second Amendment) Rules, 2008.
37. The present Rule 4(9) reads as follows:
"The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analysing the samples food articles. However, in case the method for analysing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Person's/JACOB/IUPAC/FoodChemicalsCodex/B IS/Woodmen/Winton-Winton/Joslyn shall be adopted. Further, in case of non-availabiltiy of method of analysis in these manuals, the method prescribed in other standard published literature of publication shall be adopted."
38. It has to be noted that the said notification has come into force only on 25.03.2008.
39. These aspects were considered by the Apex Court in the case of Pepsico India Holdings Pvt. Ltd. vs. Food Inspector & Anr. (2011) 1 SCC (Cri) 8. In the said case, the point raised for consideration was whether in the absence of any prescribed and validated method of analysis u/s 23 (1a) (hh) of the Act, could a prosecution be launched against the appellants based on the reports submitted by the Public Analyst using the method of the Director General of Health Services (DGHS). This point was answered in the judgment wherein it was observed that these Sections were not enabling provisions but were mandatory and could be resolved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelled out. It was further noted CA No. 192/2017 18/22 that in the absence of such discriminated laboratories and specified tests, it can lead to a pick and choose method to suit the prosecution, which cannot be permitted. The non-formulation of Rules under these provisions of the Act is, therefore, fatal for the prosecution. In the Pepsico case (Supra), it was further noted that once there is no information in regard to discriminated reports of the validated methods of analysis, the exercise of sending the second sample to Central Food Laboratory for analysis would be an exercise in futility.
40. This judgment of the Apex Court was followed by the Kerala High Court in the case of R. Gopalakrishnan Vs. Food Inspector in Criminal Revision Petition No.671/2002 decided on 17.07.2013. It was observed that the observations made in the Pepsico case were not limited to the food article i.e. the sample of pepsi that was the subject matter in the said appeal, but it laid down the general preposition of law to be followed in all the cases. Special Leave Petition against the said judgment was preferred in Supreme Court of India, vide Criminal Appeal No. 2476 of 2014, but the same was dismissed.
41. In a recent judgment of M/s Nestle India Ltd. Vs. the Food Safety and Standards Authority of India and Ors. 2015 (2) FAC 56 the Bombay High Court has again followed the Pepsico case (supra) to observe that in the absence of designated laboratories and validated methods of analysis, the reports of the Public Analyst and the Director, CFL, cannot be relied upon.
42. Reliance is also placed upon the decision of the Hon'ble Kerala High Court in Mohanan P. & Others Vs. State of Kerala and Another, Crl. Rev. P.No. 66 of 2011, decided on 25th November, 2021 where the earlier decision in R. CA No. 192/2017 19/22 Gopalakrishnan (supra) has again been followed.
43. As far as third contention is concerned i.e. the PA's report does not mention any test and the CFL report relied on TLC as method of analysis but no material has been produced to show that the said test was the notified/approved method of test on the date of analysis.
44. In the present case, it is noteworthy that the PA's report did not mention any test name for detecting the presence of argemone oil. On the other hand, the CFL adopted "TLC" method to determine the presence argemone oil. On the dates of examination of the samples, there were no rules framed notifying the laboratories or validating the methods of analysis, which had to be followed. Perhaps, this is the reason why the PA's report did not mention any test name and CFL adopted "TLC" method to determined the presence of argemone oil in the sample. The abovesaid TLC method adopted by the CFL was not the valid method of analysis on the date of analysis. No notification under Rule 4(a) existed till the said date. The report of the Public Analyst as well as the report of the CFL cannot be considered to conclude that the sample collected was adulterated.
45. It needs to be emphasized that while on one hand, adulterated food has rampant ramification as it can cause injury and harm to public at large and in order to prevent such adulteration of food, stringent punishments have been prescribed under the Act, but at the same time stringent procedures have also been laid down for determining if the food was adulterated. Since the punishments are severe, it is incumbent upon the prosecution to abide with the procedures meticulously. In case the proper procedure had not been followed, it would not be safe CA No. 192/2017 20/22 to rely on the report to hold the accused guilty.
46. In Dhian Singh Vs. Municipal Board Saharanpur, AIR 1970 SC 318, the Hon'ble Supreme Court was of the view that the report of the PA need not contain the mode or particular of analysis nor the test applied. This decision was rendered before the amendment in the statute, whereby the Parliament decided to incorporate the two sub clauses (ee) and (hh) to Section 23 (1A). The intention of the legislature seemed to be that to obviate any discrepancies in the reports solely on count of the laboratory to which articles were sent or the different test methods adopted by different labs, the said provisions were incorporated. Therefore, what was not significant prior to 1976, became relevant and important. The decision in Dhian Singh (Supra), most respectfully, would cease to be the applicable law on the aspect in view of the specific legislative mandate introduced by way of amendment. Any subsequent decision, for a case instituted on a sample taken after the amendment of 1976, which fails to note the statutory amendment and follows the aforesaid decision in Dhian Singh (Supra), can be treated as a decision rendered sub silentio.
47. In the absence of method of examination, it would not be safe to rely on any of the report to conclude that the sample was adulterated.
48. The benefit of the same has to be extended to the appellant. The conviction and sentence is set aside. Appellants are acquitted. Bail bond cancelled. Surety bond discharged. Bail bond u/s 437-A Cr.P.C. be furnished.
49. The present criminal appeal is disposed off accordingly.
CA No. 192/2017 21/2250. TCR be sent back with the copy of this order.
51. Appeal file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 24.01.2023 ASJ-04, New Delhi
CA No. 192/2017 22/22