Da vs . Nilesh Aggarwal Page 1 Of 54 on 21 May, 2014

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Delhi District Court

Da vs . Nilesh Aggarwal Page 1 Of 54 on 21 May, 2014

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

C.C. No. 179/04

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

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

Versus

Nilesh Aggarwal
S/o Late Sh. R.K. Aggarwal,
M/s I.P. Store, Building No. C39,
Gali no. 13, Madhu Vihar, Delhi92
........ VendorcumProprietor
Serial number of the case : 179/04
Date of the commission of the offence : 30.07.2004
Date of filing of the complaint : 17.09.2004
Name of the Complainant : Sh. S.P. Singh, Food Inspector

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DA Vs. Nilesh Aggarwal Page 1 of 54
Offence complained of or proved : Section 2 (ia) (j) & (m) of PFA Act
1954 and Rule 23 r/w Rule 28 & 29
of PFA Rules, 1955, punishable
U/s 16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 21/05/14
Judgment announced on : 21/05/14

Brief facts of the case

1. In brief the case of the prosecution is that on 30.07.2004 at about 07.00

p.m., Food Inspector S.P. Singh and Field Assistant Mitrapal, under the supervision

and directions of SDM / LHA Sh. V.P. Singh visited M/s I.P. Store, Building no. C39,

Gali no. 13, Madhu Vihar, Delhi92, where accused Nilesh Aggarwal who was the

vendorcumproprietor was found present conducting the business of various food

articles including Dal Moong Dhuli, for sale for human consumption and in compliance

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

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

Inspector collected / purchased the sample of Dal Moong Dhuli.

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

Analyst for analysis and as per the report of Public Analyst the sample was adulterated

because it was found "coloured with synthetic colour matter viz. Tartrazine" and

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

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

of PFA Act 1954 and for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955,

punishable U/s 16 (1A) r/w Section 7 of the Act.

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

dated 17.09.2004. The accused after filing his appearance moved an application

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

from Central Food Laboratory and consequent thereto second counterpart of the

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

analysis vide orders dated 08.10.2004. The Director, CFL after analysing the sample

opined vide its Certificate dated 08.11.2004 that "sample bearing No. 22/LHA/7647

does not conform to the standards of split pulse (Dal) Moong as per PFA Rules 1955".

The Director so opined as the sample was found containing synthetic food colour

tartrazine though as per Rules/standards it ought to have been free from any colouring

matter.

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

Food Inspector S.P. Singh as PW1, Sh. V.P. Singh, the then SDM/LHA as PW2 and

Field Assistant Sh. Mitrapal as PW3 and pre charge evidence was closed vide order

dated 19.01.2009.

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

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1954, Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w section

7 of the Act was framed against the accused vide order dated 21.03.2009 to which

accused pleaded not guilty and claimed trial.

6. Thereafter, in post charge evidence the prosecution examined three

witnesses including Food Inspector S.P. Singh as PW1, Sh. V.P. Singh, the then

SDM/LHA as PW2 and Field Assistant Sh. Mitrapal as PW3 and and and PE was

closed vide order dated 26.07.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 02.11.2010

wherein the accused claimed himself to be innocent. Despite opportunity given the

accused did not lead any defence evidence.

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

8. PW1 Food Inspector, S.P. Singh deposed that on 30.07.2004 he along

with Sh. V.P. Singh SDM/LHA and FA Miterpal went to M/s IP Store, Building no.

C39, Gali no. 13, Madhu Vihar, Delhi92 with staff where accused Nilesh Aggarwal

was found conducting the business of food articles stored there for use for human

consumption including Dal Moong Dhuli. He deposed that he disclosed his identity

and intention for purchasing Dal Moong Dhuli ready for sale for analysis to which

accused agreed. He deposed that sample of 1.5 Kg of Dal Moong Dhuli was taken

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from an open plastic baalti bearing no label declaration after proper mixing with the

help of clean and dry Jhaba by rotating in all possible direction. He deposed that he

tried to join some public witnesses to join the sample proceedings but as none came

forward, on his request FA Mittar Pal agreed and joined as a witness. He deposed that

the sample was taken under the direction and supervision of SDM/LHA at about 07.00

p.m. He deposed that he divided the sample then and there into three equal parts by

putting them into three separate clean and dry bottles. He deposed that each bottle

containing the sample was separately packed, marked fastened and sealed according

to PFA Act and Rules. He deposed that the sample price of Rs. 48/ was accepted by

the accused and then vendor's receipt Ex. PW1/A was prepared. He deposed that

notice in form VI Ex. PW1/B was prepared and a copy was given to the accused as

per his endorsement at portion A to A. He deposed that then the panchnama Ex.

PW1/C was prepared. He deposed that the vendor's signature were obtained on the

LHA slip and on the wrappers of the sample bottles in such a manner that a portion of

his signature was appearing on the LHA slip as well as on the wrapper of the sample

bottles. He deposed that after the documents were read over and explained to the

accused in Hindi and after understanding the same, accused signed at point A, the

witness signed at point B and he signed on point C. He deposed that one counterpart

of the sample was deposited in intact condition with the PA on 02.08.2004 vide receipt

Ex. PW1/D along with one copy of Memo in Form VII and another copy of Memo Form

VII in a separately sealed envelope. He deposed that the remaining two counterparts

of sample in intact condition along with two copies of memo of Form VII in a sealed

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packet were deposited with the LHA vide receipt Ex. PW1/E with the intimation that

one counterpart of the sample in intact condition has already been deposited with the

PA. He deposed that all the copies of memo of Form VII were marked with the

impression of seal which was used to seal the sample counterparts. He deposed that

PA report Ex. PW1/F was received, according to which sample was adulterated

because it contained synthetic colouring matter tartrazine. He deposed that he further

investigated and sent a letter to STO Ward no. 84 vide Ex. PW1/G to which the STO

replied at portion A according to which the said firm was not registered in that ward.

He deposed that accused gave statement Ex. PW1/H. He deposed that thereafter the

complete case file along with all statutory documents were sent to Director (PFA) Sh.

V.K. Singh through LHA, who after going through the case file gave his Consent Ex.

PW 1/J for launching prosecution against the accused who was found to be the vendor

cum proprietor of the said firm and accordingly he filed the complaint Ex. PW 1/K in

the court. He further deposed that intimation letter Ex. PW1/L alongwith PA's report

was sent to accused by registered post through LHA which was not received back

undelivered. He deposed that copy of registered postal receipt is Ex. PW1/M, bearing

relevant entry at point A and CFL report is Ex. PW1/N.

9. During his cross examination he admitted that the complaint was filed in

the court after the receipt of the PA report. He stated that he did not read column no.

1 of the PA report however he read the opinion portion. He stated that he does not

know whether tartrazine is permissible synthetic colour as per Rule 28 of PFA Rules

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as amended vide notification no. GSR 304(E) dated 04.06.1997 (w.e.f. 04.06.97

corrected by GSR 551 (E) dated 17.09.97). He denied the suggestion that because of

lack of correct provision of the law and rules he has initiated the false prosecution.

10. He admitted that copy of his Gazette Notification as FI is not on judicial

file. He stated that he was posted at Sub Division Preet Vihar at the time of sampling.

He stated that Dal was lying in the plastic bucket and 1012 Kg of Dal Moong Dhuli

was lying in the same. He stated that the capacity of the plastic bucket was about 20

Kg. He stated that dal was mixed by him with the help of clean and dry jhaba. He

stated that he saw only Jhaba at the time of sampling. He stated that jhaba was made

of steel. He stated that jhaba was provided by the vendor. He denied the suggestion

that same Jhaba was used in other food articles. He stated that haldi powder, mirch

powder etc were not being sold by the vendor in loose condition at the time of

sampling. He stated that Dal was weighed by the vendor in the pan scale and

thereafter same was put into the bottles directly. He stated that jhaba was not made

clean and dry as it was already clean and dry. He stated that bottles were already dry

and clean and the same were not made again dry and clean at the spot. He stated

that bottles were issued from the office but he does not remember when same were

issued. He stated that 34 persons were present at the time of sampling. He stated

that he cannot tell their names and address but they were asked to join the sample

proceedings. He admitted that on the documents Ex. PW1/A to C he did not mention

that he tried to associate the public witnesses. He stated that he does not know

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whether the tartrazine is a water soluble colour. He stated that he does not know that

tartrazine is permitted upto 100 ppm in sweets and confectionery. He voluntarily

stated that but not in Dal. He stated that it is not necessary that Dal is cooked after

washing. He stated that he does not know whether their department distributed the

pamphlets that Dal is cooked after washing. He admitted that vendor was retailer and

not the manufacturer of dal. He stated that he cannot say whether the colour is applied

only after manufacturing. He stated that he cannot say whether any plant for applying

colour on the Dal was installed in the shop. He denied the suggestion that colour is

applied on the Dal so that same can look more attractive and to get more price. He

stated that four copies of Form VII were prepared at the spot and seal impression was

put on all the four copies. He admitted that seal impression was put on the copies

Form VII which were deposited with the PA and the LHA. He denied the suggestion

that he violated the provision of Rule 17 & 18 of PFA Rules. He admitted that it is not

mentioned in the complaint that seal impression was sent separately.

11. PW2 Sh. V.P. Singh, the then SDM/LHA and PW3 FA Mitrapal have

deposed on the same lines as deposed by PW 1 in his examination in chief.

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

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

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

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

prosecution in this case.

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

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

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector S.P. Singh coupled with the report of the Director

dated 08.11.2004 that accused Nilesh Aggarwal Kumar was indeed found selling Dal

Moong Dhuli which was adulterated on account of it containing synthetic colour viz.

Tartrazine.

16. The star / the material witness of the prosecution i.e. Food Inspector S.P.

Singh categorically proved the sample proceedings dated 30.07.2004 as were

conducted in the presence of SDM/LHA. From the deposition of the prosecution

witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's

receipt, Notice Form VI and panchnama as proved by prosecution and which bears the

signature of the accused as well, the admissions made by the accused during his

examination under Section 313 Cr. P.C, specifically question no. 1 and 2 as recorded

before the Ld. Predecessor of this Court on 02.11.2010 which are admissible in

evidence against the accused in view of sub clause (4) of Section 313 Cr. P.C as well

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as the law laid down in Benny Thomas Vs. Food Inspector, Kochi 2008 (2) FAC 1

(SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal) 842, Rattan

Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha

V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V. Ganesh Dass 1995

Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147

(SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC 258, State of H.P. V.

Wazir Chand AIR 1978 SC 315 coupled with document Ex. PW1/H, which is in the

handwriting of accused leaves no doubt remains that the sample of Dal Moong Dhuli

was indeed collected by the Food Inspector for analysis from M/s IP Store of which the

accused is the proprietor cum vendor.

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

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

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

loopholes /contradictions.

Public witness

18. At the outset it was argued that no public witness was joined by the FI

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

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

that the FI despite the mandate of section 10 (7) did not deliberately join any public

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person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

19. However I do not agree with the contentions raised by the Ld. Defence

counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 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. The Apex Court observed as "as stated earlier the Food Inspector

was unable to secure the presence of independent persons and was therefore driven

to take the sample in the presence of the members of his staff only. It is easy enough

to understand that shopkeepers may feel bound by fraternal ties............ Similarly in

Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no

requirement of independent corroboration by public persons unless the testimony

suffers from fatal inconsistencies. Further reliance may be placed upon the law laid

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

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

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

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

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

Vs. Narayanasamy 1997 (2) FAC 203.

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20. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)

FAC 230, the Hon. Apex Court held as under:

".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".

21. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.

Apex Court held as under:

".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor

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discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.

State
22. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".

23. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."

24. It is writ large from the deposition of PW1, PW2 and PW3 that FI S.P.

Singh made sincere efforts to join the public persons in the sample proceedings but

none agreed. I have no reason to disbelieve them. It is very hard these days to get

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association of public witnesses in criminal investigation/implementation of

administrative powers/enforcement of law seeking to curb anti social evils. Normally,

nobody from public is prepared to suffer any inconvenience for the sake of society.

Absence of public witness in this case is not fatal to the prosecution as the prosecution

story inspires confidence and lifting of the sample stands admitted/unambiguously

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

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

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

or enmity to falsely implicate him.

Rule 14

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

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

argued that at the time when the sample was collected, the Food Inspector failed to

clean the sample bottles, the pan balance, the envelope used for measuring the Dal as

well as the instrument i.e. jhaba with which the sample was poured in the bottles. It

was argued that the colour was already sticking to the Jhaba, the envelope and the

sample bottles and it was this colour which was detected by the Director. It was

argued that Rule 14 of the Act is mandatory and not directory and in case there is no

strict adherence to Rule 14, benefit has to be given to the accused. Reliance was

placed on the law laid down in State of Gujarat Vs. Harumal Retumal and others

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2008 FAJ 292 (Guj), Koyakutty Vs. Food Inspector 2000 (2) FAC 238 and Shew

Chander Mathur and anr Vs. State of Assam and anr., 1991 (1) FAC 9.

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

counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

28. I have perused the deposition of the Food Inspector i.e. S.P. Singh, who

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was examined as PW1. The Food Inspector deposed as under:

" The sample of 1.5 Kg of Dal Moong Dhuli was taken from open plastic
baalti bearing no label declaration. After proper mixing with the help of clean and dry
Jhaba by rotating in all possible directions............I divided the sample then and there
into three equal parts by putting them into three separate clean and dry bottles"

29. During his cross examination he stated as under:

"...... Dal was mixed by me with the help of clean and dry Jhaba.......It is
wrong to suggest that Jhaba was used in other food articles........Jhaba was not made
clean and dry as it was already clean and dry. Bottles were already dry and clean and
the same were not made again dry and clean at the spot"

30. Similarly PW2 the then SDM/LHA Sh. V.P. Singh deposed as under:

"The sample was taken after proper mixing with the help of a clean and
dry jhaba by rotating in all possible directions i.e. Clockwise, anticlockwise, upwards
and downwards etc. thoroughly several times... The FI S.P. Singh then and there
divided the sample equally into three equal parts and same were separately packed,
marked, fastened and sealed according to PFA Act and Rules by putting them into
three clean and dry glass bottles..........."

31. During his cross examination he stated as under:

"Dal was mixed by the FI with the help of clean and dry Jhaba by rotating it in
all possible directions. Clean and dry Jhaba was provided by the vendor. I do not
know how many Jhabas were lying in the shop but there was one clean and dry Jhaba
lying in the bucket. It is wrong to suggest that same Jhaba was used in other food
articles. Jhaba was not made clean and dry at the spot as it was already clean and
dry. It is wrong to suggest that some colour was sticking to the Jhaba.........It is wrong
to suggest that there was some colour in the envelope before using it......Bottles were
already dry and clean and the same were not made again dry and clean at the
spot.......It is wrong to suggest that there was some material in the bottles. It is wrong

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to suggest that sample failed due to bad sampling"

32. PW3 FA Mitter Pal deposed as under:

" The sample was taken after proper mixing with the help of a clean and
dry jhaba by rotating in all possible directions i.e. Clockwise, anticlockwise, upwards
and downwards etc. thoroughly several times... The FI S.P. Singh then and there
divided the sample equally into three equal parts and same were separately packed,
marked, fastened and sealed according to PFA Act and Rules by putting them into
three clean and dry glass bottles..........."

33. During his cross examination he stated as under:

".....Clean and dry jhaba was provided by the vendor.......Jhaba was
already clean and dry as such same was not made again clean and dry at the
spot.....Bottles were already dry and clean and the same were not made again dry and
clean at the spot. It is wrong to suggest that bottles and polythene were not clean and
dry and were containing some colour.

34. Hence the prosecution witnesses consistently deposed regarding the

jhaba, the envelope as well as the sample bottles being clean and dry. From their

deposition/statement no doubt remains that the sample proceedings were conducted

in a proper manner and that the sample bottles as well as the jhaba were clean and

dry. I have no reasons to disbelieve them as discussed above I find no reasons why

the FI or the SDM would falsely implicate the accused that is to say would use

contaminated or colored instruments or bottles for sampling. The defence has failed to

prove any motive which could be assigned to the above officials for falsely implicating

the accused. Moreover nothing on record has been proved to the contrary i.e. the

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defence has not proved that the Food Inspector did not comply with the provisions of

the Rule 14. Just because the defence is challenging the sampling process conducted

by the Food Inspector / asserting that Rule 14 was violated is not sufficient to either

disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I have

also gone through Section 114 (e) of the Indian Evidence Act.

Section 114 reads as under:

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

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

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

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

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

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

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

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

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

Assessar, 5 OLJ 179)".

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

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

it may prove it.

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

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

drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,

1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,

Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1

and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].

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

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

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

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

(2002) 5 FAC 234.

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

was observed as under:

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

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 19 of 54
40. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

41. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:

"there is no provision or requirement of law that the bottles must be sterilized at the

time of taking of the sample in the presence of the witnesses.". Similarly was held in

P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

42. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has

been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

Discrepancies

43. It was argued by Ld. Defence counsel that there are major discrepancies

in the deposition of PW1, PW2 and PW3 qua the sample proceedings. It was argued

that the FI had claimed that he saw only one Jhaba at the shop at the time of

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 20 of 54
sampling. On the other hand FA claimed that there were different Jhabs were lying in

the shop of the accused. Similarly the Food Inspector claimed that the Dal was

weighed in the pan balance whereas the SDM claimed that Dal was put in the

envelope. On other other hand FA claimed that the Dal was weighed by putting it in

the polythene bag. The Ld. Defence counsel argued that these discrepancies

themselves prove that the prosecution witnesses were deposing falsely and sample

proceedings were bad and there was violation of Rule 14. Reliance was placed on the

law laid down in AIR 2001 SC 3976 and 2012 (1) FAC 384.

44. No doubt the Ld. Defence counsel pointed out the above discrepancies in

the deposition of PW1, PW2 and PW3 however the discrepancies as pointed out by

Ld. Defence counsel are too trivial in nature to be given any weightage. The

discrepancies as above are natural and bound to occur on account of passage of time

and lapse of memory. Human memories are apt to blur with passage of time. The

sample was lifted in the year 2004 and the deposition/cross examination of witnesses

were recorded in the year 2009 and 2010 i.e. after a gap of around 56 years. After

such a long time period a person cannot be expected to give a parrot like version or

depose with mathematical precision. Only a tutored witness can depose so. Error due

to lapse of time/lapse of memory have to be given due weightage/ due allowance.

45. By and large a witness cannot be expected to possess a photographic

memory and to recall the minute details of an incident. It is not as if a video tape is

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 21 of 54
replayed on the mental screen. By and large people cannot accurately recall a

conversation and reproduce the very words used by them or heard by them. They can

only recall the main purport of the conversation. It is unrealistic to expect a witness to

be a human tape recorder. Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid succession or in a short

time span. A witness is liable to get confused, or mixed up when interrogated later on.

A witness, though wholly truthful, is liable to be overawed by the court atmosphere and

the piercing cross examination made by counsel and out of nervousness mix up facts,

get confused regarding sequence of events, or fill up details from imagination on the

spur of the moment. The subconscious mind of the witness sometimes so operates

on account of the fear of looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is

a sort of a psychological defence mechanism activated on the spur of the moment.

Reliance may be placed upon the observations made by the Hon'ble Apex Court in

case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.

Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State

of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972

SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .

46. The law is well settled that discrepancies which do not go to the root of

the matter and shake the basic version of the witnesses cannot be annexed with un

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 22 of 54
due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable

evidence. One cannot come across a witness whose evidence does not contain some

exaggeration or embellishments. Sometimes there could even be a deliberate attempt

to offer embellishment and sometime in their overanxiety they may give slightly exag

gerated account. Court can sift the chaff from corn and find out truth from the testimo

ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this

element is satisfied they ought to inspire confidence in mind of the court.

47. Moreover, officials like Food Inspector and the SDM/LHA are involved in

collecting samples/witnessing sample proceedings almost daily and sometimes more

than one sample is collected in a day. During their stint as Food Inspector and

SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the

facts being mixed up due to passage of time. Same has to be given due allowance. In

case at hand the discrepancies as above does not effect the prosecution story at all. It

does not render it unreliable or untrustworthy. Whether there was on Jhaba or more

looses significance because may be FI could notice only one Jhaba and the FA could

notice more jhaba than one. Furthermore due to lapse of time a witness may not be

able to recollect the exact facts with mathematical precision. The fact remain that a

clean and dry jhaba was used for sampling. Similarly whether the envelope was used

or polythene was used for putting the dal for weighing on pan balance or the Dal was

directly put in the pan balance is also insignificant as the witness categorically stated

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 23 of 54
that the pan balance, the envelope etc. were clean and dry and no colour was sticking

to them.

Homogenization / Mixing of Sample.

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

sample was not properly mixed / homogenized at the time when it was lifted and

accordingly the sample which were sent to PA and Director, CFL were not

"representative" and this is the reason why there is variations in the report of Public

Analyst and Director, CFL. For example the moisture content in the sample was

detected by the PA as 11.18% whereas the Director the same to be 9.20%. It was

argued that this variation proves that the sample were not representative. Reliance

was placed upon Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama

Ratan Malhotra 2012 (2) FAC 2012.

49. However, I find no merits in the contention of the Ld. defence counsel.

Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food

Inspector and the other complainant witnesses as discussed above that the sample

was taken after mixing/ rotating the Dal thoroughly in all possible directions several

times with the help of a Jhaba. I have no reasons to disbelieve the Food Inspector or

the other complainant witnesses in this regard.

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 24 of 54
50. Secondly, there was no requirement of mixing or making the sample i.e.

Dal Moong Dhuli homogenized as such in view of the law laid down in Dhian Chand

Vs. State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."

51. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full

Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different

CC No. 179/04
DA Vs. Nilesh Aggarwal Page 25 of 54
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food

inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.

52. In the case at hand sale to Food Inspector stands proved. The Food

Inspector categorically proved that he had made a payment of Rs. 48/ to the

accused/vendor towards the purchase of sample commodity. In this regard vendor's

receipt Ex. PW1/A was executed which bears the signature of accused at point A. The

testimony of the Food Inspector has gone unrebutted on this material particular. The

testimony of the SDM/LHA as well as the FA which is on the same lines have also

remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The

food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC

(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of

an article of food, which is found to be adulterated, the accused will be guilty of an

offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD

Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court

of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.

State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals

were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food CC No. 179/04 DA Vs. Nilesh Aggarwal Page 26 of 54 Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:

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

It was further observed at para 6 as under:

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

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 27 of 54

53. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:

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

It was further observed:

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

54. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

55. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as CC No. 179/04 DA Vs. Nilesh Aggarwal Page 28 of 54 under:

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

56. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

57. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for CC No. 179/04 DA Vs. Nilesh Aggarwal Page 29 of 54 the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations.

58. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same. No question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

59. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the CC No. 179/04 DA Vs. Nilesh Aggarwal Page 30 of 54 Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.

60. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"

61. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:

"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".

62. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC CC No. 179/04 DA Vs. Nilesh Aggarwal Page 31 of 54 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.

63. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:

".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.

9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."

64. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

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

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 32 of 54

65. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:

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

It was further observed in para 3 as under:

"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".

66. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as CC No. 179/04 DA Vs. Nilesh Aggarwal Page 33 of 54 under:

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

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."

67. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 34 of 54

68. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:

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

69. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:

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

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 35 of 54

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

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

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

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

In para 15 it has been further observed as under:

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

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

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 36 of 54

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

73. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:

"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded.".

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

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

75. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under: CC No. 179/04 DA Vs. Nilesh Aggarwal Page 37 of 54

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

76. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

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

77. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.

78. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:

"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive CC No. 179/04 DA Vs. Nilesh Aggarwal Page 38 of 54 evidence of the facts stated therein.".

79. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:

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

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

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

81. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:

"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food CC No. 179/04 DA Vs. Nilesh Aggarwal Page 39 of 54 Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."

14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".

82. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the CC No. 179/04 DA Vs. Nilesh Aggarwal Page 40 of 54 report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

83. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:

"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.

84. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 41 of 54

85. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:

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

86. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.

87. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample CC No. 179/04 DA Vs. Nilesh Aggarwal Page 42 of 54 was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

88. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when CC No. 179/04 DA Vs. Nilesh Aggarwal Page 43 of 54 the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

89. It is also to be seen that the variation in the two reports is only in respect of the moisture content in the sample bottles/food articles stored in the sample bottles. The sample conformed to the standard of moisture both in the analysis by the PA as well as by the Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the moisture content becomes insignificant. Furthermore Ld. SPP rightly pointed out that the analysis by the PA was done in the month of August 2004 i.e. the rainy season whereas the sample was analyzed by the Director in the month of November 2004 i.e. winter season. The temperature, the humidity, moisture and other natural conditions vary in the month of August as compared to the month of November. Even in an absolutely air tight bottle, the temperature in the bottle/moisture in the bottle containing food grain/Dal will have CC No. 179/04 DA Vs. Nilesh Aggarwal Page 44 of 54 a change on account of the outside temperature, pressure, moisture etc. as it is a natural phenomenon.

90. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

Use of colour.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 45 of 54

91. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.

92. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the CC No. 179/04 DA Vs. Nilesh Aggarwal Page 46 of 54 linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

93. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:

" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".

94. Rule 23 prohibits addition of colouring matter in food articles other than CC No. 179/04 DA Vs. Nilesh Aggarwal Page 47 of 54 those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Moong Dhuli is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Moong Dhuli as given in item A.18.06.10 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Moong Dhuli no colour can be added to it. Hence no colour could be added to Dal Moong Dhuli.

95. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:

"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)

(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 48 of 54

96. Regarding the defence plea that the addition of the colour did not make the Dal injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

97. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".

98. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it CC No. 179/04 DA Vs. Nilesh Aggarwal Page 49 of 54 attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".

99. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

100. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

101. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

Paper Chromatography Test.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 50 of 54

102. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme CC No. 179/04 DA Vs. Nilesh Aggarwal Page 51 of 54 Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act.".".

19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."

Percentage of colour

103. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Moong Dhuli as Dal Moong Dhuli does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of CC No. 179/04 DA Vs. Nilesh Aggarwal Page 52 of 54 colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

104. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Moong Dhuli so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Moong Dhuli is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

CC No. 179/04 DA Vs. Nilesh Aggarwal Page 53 of 54

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

Announced in the open Court                                (Gaurav Rao)
on 21st May 2014                                           ACMMII/ New Delhi




CC No.  179/04
DA  Vs.  Nilesh Aggarwal                                                        Page 54 of 54

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