Da vs . Sanjay Kumar Page 1 Of 62 on 4 February, 2015

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Delhi District Court

Da vs . Sanjay Kumar Page 1 Of 62 on 4 February, 2015

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

C.C. No. 85/07

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

Sanjay Kumar S/o Sh. Babu Ram Gupta
M/s Meerut Dairy,
Shop No. E259, Krishan Vihar,
Main Kanjhawala Road, Delhi41.

........ VendorcumProprietor

Serial number of the case : 85/07
Date of the commission of the offence : 18.04.2007
Date of filing of the complaint : 30.07.2007
Name of the Complainant : Sh. Sanjeev Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.

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Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 04.02.2015
Judgment announced on : 04.02.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 18.04.2007 at about 05.15

p.m. Food Inspector Sanjeev Kumar Gupta and Field Assistant Sh. Brahma Nand

under the supervision and directions of SDM /LHA Sh. G. Sudhakar visited M/s

Meerut Dairy, Shop No. E259, Krishan Vihar, Main Kanjhawala Road, Delhi41,

where accused Sanjay Kumar who was the vendorcumproprietor was found present

conducting the business of sale of various dairy articles including Cow's Milk for sale

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

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

Inspector collected / purchased the sample of cow's milk.

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

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

conforming to the standards because milk fat and solids not fat were less than the

prescribed minimum limit of 3.5% & 8.5% respectively and accordingly after obtaining

the necessary Sanction / Consent under Section 20 of the Act the present complaint

was filed for violation of provisions of Section 2 (ia) (a) & (m) of PFA Act 1954

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

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

dated 30.07.2007. 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 30.08.2007. The Director, CFL after analyzing the sample opined vide its

Certificate dated 06.09.2007 that " sample contains Milk fat and Milk solids not fat less

than 4.0% & 8.5% respectively & hence does not conform to the standards of Cow

Milk".

4. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act

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

accused vide order dated 01.10.2008 to which accused pleaded not guilty and claimed

trial.

5. The complainant/prosecution examined three witnesses i.e. Sh. G.

Sudhakar the then SDM/LHA as PW1, Food Inspector Sanjeev Kumar Gupta as PW2

and Field Assistant Sh. Brahamanand as PW3 and thereafter PE was closed vide

orders dated 05.12.2012.

6. Statement of the accused U/s 313 Cr. P.C. was recorded on 20.03.2013

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

accused did not examine any witness in his defence.

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

7. PW1 Sh. G. Sudhakar deposed that on 18.04.2007 he was posted as

SDM/LHA, Saraswati Vihar, Delhi and on that day he along with FI Sh. Sanjeev Kumar

Gupta and FA Sh. Bhramanand, under his supervision visited premises of M/s Meerut

Dairy, Shop No. E259, Krishan Vihar, Main Kanjhawala Road, Delhi, where accused

Sanjay Kumar was found conducting the business of above mentioned dairy having

stored milk & milk products including Cow's Milk for sale. He deposed that first of all,

they disclosed their identity to the accused and expressed their intention to purchase a

sample of Cow's Milk from him for analysis, to which he agreed. He deposed that

before starting the sample proceedings, they tried to associate some public persons as

witness in sample proceedings but, none came forward then FA Sh. Bhramanand

joined as a witness in sample proceedings. He deposed that thereafter, at about

05:15 pm, FI purchased from the accused, 1500 ml of Cow's Milk, which was lying in

an open Plastic Tub, bearing no label or declaration. He deposed that before taking

the sample, it was properly mixed with the help of a measure, which was lying in the

said Tub at that time. The so purchased sample commodity was taken out in a Steel

Jug and then it was equally put into three clean and dry sample bottles. He deposed

that 40 drops of formalin were added in each sample bottle. He deposed that all the

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three sample bottles were separately packed, fastened and sealed, after affixing LHA

slips, bearing his signature and code number. He deposed that vendor signed on

each counterpart in such a manner so as to appear partly on the LHA slip and partly

on the wrapper of the counterpart. He deposed that the price of the sample

commodity was paid to the vendor vide Vendor's Receipt Ex. PW1/A, bearing his

signature at point A. He deposed that Notice in Form VI was also prepared at the

spot vide Ex. PW1/B and vendor disclosed on this Notice at portion X to X that Cow''s

Milk was ready for sale. He deposed that a copy of this Notice was given to the

vendor as per his acknowledgment at portion Y to Y. He deposed that Panchnama

Ex. PW1/C was also prepared. He deposed that all these documents were signed by

the vendor at point A, by the witness at point B and by FI at point C. He deposed that

vendor gave his statement to him at the spot, which is Ex. PW1/D, bearing his

signature at point A and submitted photocopy of his Driving License, which is mark X,

bearing his signature at point A. He deposed that Raid Report was also prepared at

the spot vide Ex. PW1/E, bearing his signature at point A, signature of witness at point

B and signature of FI at point C. He deposed that one counterpart of the sample was

deposited with PA on 19.04.2007 and the remaining two counterparts were deposited

with him on 19.04.2007 vide LHA Receipt Ex. PW1/F, bearing his signature at point A

and signature of FI at point B. He deposed that PA Report Ex. PW1/G was received

bearing signature of PA at point A. He deposed that thereafter, he was transferred in

the first week of May, 2007 and Sh. M. K. Dwivedi took over the charge of the

concerned area.

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8. During his cross examination he admitted that he was the senior most

officer of PFA Team at that time. He stated that there was total 3 member in PFA

Team, including him at the time when the sample was lifted. He stated that FI

requested some neighborers and some persons , who had gathered at the shop of the

accused, to join as witness in sample proceedings. He stated that he does not know

as to whose shops were situated on the left and right side of the shop of the accused.

He stated that FI had requested public persons to join as witness, before starting the

sample proceedings. He stated that during his tenure as SDM/LHA, Saraswati Vihar,

approximately 4550 food sample were lifted under his supervision. He stated that he

does not remember if in any of the sample proceedings conducted under his

supervision any public person had joined as witness or not. He stated that he does

not remember whether in their presence, accused had sold the sample commodity to

any other customer. He stated that he does not remember if during sample

proceedings any customer came with the intention to purchase the sample commodity

from the accused. He stated that the sample commodity was lying in a Blue Colour

Plastic Tub. He stated that he cannot say as to what was the exact quantity of the

sample commodity lying in the said Tub. He stated that the required quantity of Cow's

Milk was taken out from the Tub in a Jug with the help of a Measure, which was lying

in the Tub at that time. He stated that before that, the entire quantity of Cow's Milk

lying in the Tub was homogenized. He stated that they Measure was made clean and

dry at the spot by the FI, before using the same in the sample proceedings. He stated

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that he does not remember as to how many times the Measure was rotated in the

sample proceedings for mixing the same. He admitted that all the above mentioned

documents i.e Ex. PW1/A to Ex. PW1/E were prepared in his presence. He stated that

it was mentioned in Raid Report, prepared at the spot that public persons were

requested to join as a witness in sample proceedings. He stated that he did not sign

on any of the documents prepared at the spot except the Raid Report and his LHA

Slip. He denied the suggestion that the method adopted for sample proceedings in

this case was not a proper method. He denied the suggestion that a representative

sample was not taken. He denied the suggestion that he was not present at the spot

or that he remained seated in his official vehicle or that all the sample proceedings

were conducted in his absence. He stated that the two counterparts of the sample,

deposited with him were kept in his office almirah at room temperature, as there was

no facility for keeping the same in Refrigerator. He stated that he was not aware that

even after adding formalin the shelf life of Milk was 4 months for accurate analysis.

9. PW2 Food Inspector Sanjeev Kumar Gupta and PW3 Field Assistant

Brahmanand deposed on the same lines as deposed by PW1 in his examination in

chief. In addition PW2 FI Sanjeev kumar Gupta deposed that one counterpart of the

sample along with a copy of Memo in Form VII in a sealed packet and another copy of

memo in Form VII in a sealed packet were delivered to PA on 19.04.2007 vide PA

receipt Ex. PW2/A. He further deposed that during investigations he sent a letter to

STO Ward no. 63 vide Ex. PW2/B and received its reply at portion X to X that the firm

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M/s Meerut Dairy was not registered in that ward. He further deposed that he sent a

letter to DHO, MCD Rohini Zone vide Ex. PW2/C and received its reply at portion X to

X that no license had been issued to above mentioned firm. He deposed that on

conclusion of investigation it was found that vendor/accused Sanjay Kumar was the

proprietor of M/s Meerut Dairy. He deposed that thereafter he sent the entire case file

to SDM/LHA who forwarded the same to the then Director PFA Sh. N. Balacharndran

who granted his consent for prosecution vide Ex. PW2/D, bearing his signatures at

point A. He deposed that thereafter on the directions of Director PFA he filed the

complaint before this Hon. Court vide Ex. PW2/E bearing his signatures at point A and

then intimation letter Ex. PW2/F along with copy of PA report was sent to the accused

through registered post by SDM/LHA Sh. M.K. Dwivedi which was not received back

undelivered. He deposed that photocopy of postal registration receipt is Mark Y.

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

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

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

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

prosecution in this case.

12. 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

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has successfully brought home the guilt against the accused.

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

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

the Director dated 06.09.2007 that accused Sanjay Kumar was indeed found selling

Cow Milk which was adulterated as the milk fat and milk solids not fat were less than

the prescribed minimum limit.

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

Sanjeev Kumar Gupta categorically proved the sample proceedings dated 18.04.2007

as were conducted in the presence of SDM/LHA. From the deposition of the

prosecution witnesses who duly corroborated each other coupled with documents Ex.

PW1/ A to C i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the

prosecution, the admissions made by the accused during his examination under

Section 313 Cr. P.C, specifically question no. 1 and 2 as recorded before Ld.

Predecessor of this court on 20.03.2013 which are admissible in evidence against the

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

in Benny Thomas Vs. Food Inspector, Kochi 2008 (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

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

1978 SC 315 and document Ex. PW1/D, which is in handwriting of accused and bears

his signatures, no doubt remains that the sample of Cow Milk was indeed collected by

the Food Inspector for analysis from M/s Meerut Dairy of which the accused is the

proprietor cum vendor.

15. 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

16. 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

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

reliance can be placed on the alleged sample proceedings.

17. 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

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(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.

18. 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

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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.".

19. 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
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.

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State
20. 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.".

21. 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."

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

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

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

these days to get association of public witnesses in criminal

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

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

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

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

sample stands admitted/unambiguously proved. Furthermore, I find no reasons why

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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

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

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

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

sample bottles, the measure and the steel jug used for taking the sample. 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 Sardarmal Jain Vs. Nagar Nigam & Anr 1996 (2)

203, Vasantry Jai Kham Khati Vs. State of Gujarat 2004 FAJ 148, State of

Gujarat Vs. Kamlesh Bhai Ram Bhai 2005 (1) FAC 107 and State Vs. Suresh

Kumar 2010 (2) FAC 204

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

counsel.

25. 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

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

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

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

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

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

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

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

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

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

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

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

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

26. I have perused the deposition of PW2 Food Inspector Sanjeev Kumar

Gupta. The Food Inspector deposed as under:

" .........Before taking the sample, Cow's Milk was properly mixed with the help
of a clean and dry Measure, by rotating it in all possible directions, several times. The
so purchased quantity of the sample commodity was divided into three equal parts, by
putting it into three clean and dry sample glass bottles."

27. During his cross examination he stated as under:

".......It is wrong to suggest that it was not physically possible to homogenize 15
liters of milk with the help of a measure. It is wrong to suggest that the milk was not
properly stirred and hence a representative sample was not taken.......The bottles

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were not cleaned at the spot because those were already clean and dry."

28. PW1 the then SDM/LHA Sh. G. Sudhakar deposed as under:

"......Before taking the sample, it was properly mixed with the help of a Measure,
which was lying in the said Tub at that time. The so purchased sample commodity
was taken out in a Steel Jug and then it was equally put into three clean and dry
sample bottles."

29. During his cross examination he stated as under:

".........Before that, the entire quantity of Cow's Milk lying in the Tub was
homogenised. The Measure was made clean and dry at the spot by the FI, before
using the same in the sample proceedings......It is wrong to suggest that the method
adopted for sample proceedings in this case was not a proper method. It is wrong to
suggest that a representative sample was not taken."

30. PW3 Field Assistant Brahma Nand during his examination in chief

deposed as under:

".....Before taking the sample, Cow's Milk was properly mixed with the help of a
clean and dry measure by rotating it in the tub itself in all possible directions several
times. The so purchased quantity of the sample commodity was divided into three
equal parts by putting it into three clean and dry sample glass bottles."

31. During his cross examination he stated as under:

"........The measure was rotated in the tub several times in all possible
directions but I do not remember as to how many times the measure was rotated in
the tub. After mixing the milk, the required quantity i.e. 1500 Ml was taken out in a
clean and dry steel jug and then it was equally put in sample bottles as mentioned
above. The measure and jug were not made clean and dry at the spot as they were

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provided by the vendor in clean and dry condition........It is incorrect to suggest that the
method of sampling adopted in this case was wrong."

32. Hence the prosecution witnesses consistently deposed regarding the jug,

measure 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, jug as well as the measure were clean

and dry. In fact not even a single suggestion was given to any of the prosecution

witnesses that either the sample bottles or the measure or the jug contained any liquid

/water at the time of when the sample was taken or that because of this reason the

sample failed on analysis. I have no reasons to disbelieve the prosecution witnesses.

As discussed above I find no reasons why the FI or the SDM would falsely implicate

the accused that is to say why they would use contaminated 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 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.

33. Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to

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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"

34. 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)".

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

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

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

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

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

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

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

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

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

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

1954 and Rule 9A of the Rules.".

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

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

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

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

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

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

37. 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.

38. 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

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of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

39. 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."

40. 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.

41. 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."

42. Though it was also argued by the Ld. Defence counsel that in view of the

deposition of prosecution witnesses it stands proved that an unclean measure was

used (measure was already lying in the tub) for sample proceedings and hence the

sample proceedings were bad, however I find no merit in the same. Firstly, the

prosecution witnesses consistently proved that the measure was clean. Secondly, the

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mere fact that the measure was lying in the same tub from which the sample was lifted

does not render the sample proceedings bad or does not prejudice the accused in any

manner. It is to be seen that the witnesses deposed that the measure was lying in the

same tub i.e. the tub containing the milk from which the sample was lifted. It is neither

the prosecution case nor claimed by the defence that the measaure was lying in some

other tub and it was used without cleaning it to take out the sample of milk which was

lying in another tub. Had that been the case it would have been open for the defence

to claim prejudice or that the sample proceedings were bad in law. But once the

measure was lying in the tub containing the sample commodity/milk itself and it is used

to take out the sample commodity I fail to understand how prejudice is caused to the

accused because it is the same measure with which the accused is selling the milk to

the customers. The Act has been enacted for the protection of the

customers/consumers and if the Food Inspector uses the measure lying in the tub

containing the commodity of which the sample is lifted and the sample when sent for

analysis is found adulterated then the accused/vendor cannot agitate that the measure

was not cleaned before the sample was lifted because the very fact that the measure

was lying in the tub containing the sample commodity proves that he was using the

same measure for selling the sample/milk to the customers. Two different standards

cannot apply i.e. one for the customer or the consumer and the other for the Food

Inspector.

Discrepancies

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43. It was argued by Ld. Defence counsel that there is a major discrepancy

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

though the SDM/LHA during his cross examination claimed that the measure was

made clean and dry at the spot by the FI however the FA claimed that the same was

not made clean and dry at the spot. The Ld. Defence counsel argued that this

discrepancy itself proves that the prosecution witnesses were deposing falsely and

that sample proceedings were bad and there was violation of Rule 14.

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

the deposition of PW1 and PW3 however the discrepancy as pointed out by Ld.

Defence counsel is too trivial in nature to be given any weightage. The discrepancy

as above is 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 2007 and the deposition/cross examination of witnesses were recorded in

the year 2011 and 2012 i.e. after a gap of around 45 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

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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

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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 discrepancy as above does not effect the prosecution story at all nor

does it render it unreliable or untrustworthy. The fact remains that clean sample bottles

as well as Jug and measure were used for lifting the sample.

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

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

Analyst and Director, CFL. For example the PA found the milk fat content at 2.8% and

the milk solids not fat content at 7.45% whereas the Director found the same at 2.0%

and 7.7% respectively. It was argued that these variations proves that the sample

were not representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2)

FAC 219 and State Vs. Mahender Kumar and ors decided on 24.01.2008.

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

Firstly it is evident from the deposition of the Food Inspector and the other

complainant witnesses as discussed above that the sample of Milk was lifted after

proper mixing/ homogenization. The witnesses proved that the sample of Milk which

was lying in the tub was taken after mixing the milk/rotating it in all possible directions

several times in the tub itself with the help of a measure. The witnesses categorically

stated that milk was lifted only after homogenization. Though Ld. Defence counsel

argued that it was not possible to properly mix/homogenize 1015 litres of milk with the

help of a measure however I find no merits in the same. 1015 litres of milk is not a

huge quantity and same can be easily mixed/homogenized with the help of a half litre

measure as was used by the FI in the present case. Repeated mixing/churning as was

done by the FI in the present case and as was proved by the witnesses was sufficient

to homogenize the milk.

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50. Secondly, in 1992(1) FAC 283 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. Similarly in State of Kerela Vs. Alassery

Mohd. 1978 (1) FAC 145, 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
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.

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

Inspector categorically proved that he had made a payment of Rs. 19.50/ 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 other prosecution witnesses which is on the same lines has also

remained unchallenged. In fact during his examination u/s 313 Cr.P.C. the accused

admitted to having sold the sample and received the payment thereof from the FI.

Hence sale to FI stands proved. The Hon. Apex Court in The food Inspector, Calicut

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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 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 27 of 62 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".

52. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 28 of 62 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."

53. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:

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

54. In the case at hand from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the cow milk was properly mixed at the time of sampling. Furthermore it has to be remember that the act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy milk the vendor does not give the milk after mixing the same/rotating it several times in all directions with the help of a measure or plunger in the container in which he has stored the same in his shop. He merely takes out the milk with the help of a measure or any other instrument from top most layer/ by putting the measure in container containing milk and sells it to the customer. Therefore when this is usual mode of selling the milk to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been CC No. 85/07 DA Vs. Sanjay Kumar Page 29 of 62 enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/milk homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations

55. Coming to the second limb of arguments of the Ld. defence counsel that there are variations 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. Firstly, 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.

56. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the CC No. 85/07 DA Vs. Sanjay Kumar Page 30 of 62 total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.

57. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the 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.

58. 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"

59. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 31 of 62 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".

60. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 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.

61. 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."

62. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s CC No. 85/07 DA Vs. Sanjay Kumar Page 32 of 62 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."

63. 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.".

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64. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:

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

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 34 of 62 certificate of the Director of the Central Food Laboratory."

65. 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 '.

66. 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.".

67. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 35 of 62 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.".

68. 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.".

69. 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.

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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.".

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

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

71. 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.".

72. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 37 of 62 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."

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

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

74. 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".

75. 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.

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

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

77. 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.".

78. 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.".

79. 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:

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"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

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

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

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

80. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 40 of 62 also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

81. 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.

82. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 41 of 62 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.

83. 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.

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

85. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 42 of 62 customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

86. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 43 of 62 not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative 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.

87. 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 CC No. 85/07 DA Vs. Sanjay Kumar Page 44 of 62 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".

Delay

88. The Ld. Defence counsel also argued that the prosecution was launched after more than 3 months since the lifting of the sample and this caused serious prejudice to the accused. It was argued that the sample was analyzed/tested by the Director in the month of September 2007 i.e. after more than 4 and ½ months of its lifting and he gave the report on 06.09.2007. It was argued that after such a long period/gap of more than 4 and ½ months the sample would not have remained fit for analysis by the Director and hence his report is incorrect and cannot be relied upon. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However I do not agree with the contentions of Ld. Defence counsel. Firstly the prosecution witnesses categorically proved that at CC No. 85/07 DA Vs. Sanjay Kumar Page 45 of 62 the time of sampling 40 drops of formalin were added in the sample bottles as a preservative. Once formalin was added in the sample bottles and the bottles shaken properly for proper dispersion of formalin in the sample bottles/milk and the Director opines the sample to be fit for analysis I find no reasons to disbelieve him. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample would have deteriorated due to lapse of 4 and ½ months despite addition of formalin. Secondly, in the certificate the Director had categorically mentioned "the sample was in condition fit for analysis". In view of the certificate of the Director which is conclusive and final as per section 13 it stands proved that the sample was fit for analysis i.e. it did not deteriorate or decompose till the time of its analysis.

89. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 4 and ½ months the sample would have decomposed/rendered unfit for analysis. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:

".....mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.

90. The "delay in sending the article to Director, CFL for analysis" on account CC No. 85/07 DA Vs. Sanjay Kumar Page 46 of 62 of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.

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

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

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

It was further observed in para 66 as under:

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

It was further observed in para 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be CC No. 85/07 DA Vs. Sanjay Kumar Page 47 of 62 decomposed and was incapable of being analysed.".".

It was further observed in para 68 as under:

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

It was further observed in para 71 as under:

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

It was further observed in para 72 as under:

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

It was further observed in para 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory.

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

It was further observed in para 74 as under:

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

It was further observed in para 75 as under:

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

It was further observed in para 76 as under:

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

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

"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a CC No. 85/07 DA Vs. Sanjay Kumar Page 49 of 62 manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.

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

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

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

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

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

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample CC No. 85/07 DA Vs. Sanjay Kumar Page 50 of 62 continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.

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

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

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

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

"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

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

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

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

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

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

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis CC No. 85/07 DA Vs. Sanjay Kumar Page 52 of 62 or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."

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

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

99. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of CC No. 85/07 DA Vs. Sanjay Kumar Page 53 of 62 fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".

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

"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he CC No. 85/07 DA Vs. Sanjay Kumar Page 54 of 62 cannot turn round and say that he has been deprived of his right under section 13 of the Act.".

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

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

102. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:

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

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

104. If the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL CC No. 85/07 DA Vs. Sanjay Kumar Page 56 of 62 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:

"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

Marginal Deficiency

105. Lastly it was argued by Ld. Defence counsel that even if the report of the Director is admitted to be correct still it is apparent from the report of Director that the sample only marginally did not conform to the standards of Milk fat and milk solids not fat. It was argued that the prescribed standard was not less than 3.5% (The Director wrongly applied the standard at 4% as in Delhi it is 3.5% and it is 4% only for Punjab and Haryana) and 8.5% respectively and the Director found the same to be 2.0% and 7.7% i.e. only 1.5% and 0.80% less than the prescribed limit. It was argued that these marginal variations/ deficiencies from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. However I do not agree with the Ld. Defence counsel.

106. However I find no merits in the contentions of Ld. Defence counsel. In Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the CC No. 85/07 DA Vs. Sanjay Kumar Page 57 of 62 conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.

107. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.

108. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".

109. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%.

110. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the CC No. 85/07 DA Vs. Sanjay Kumar Page 58 of 62 Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.

111. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.

112. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."

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

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

CC No. 85/07 DA Vs. Sanjay Kumar Page 59 of 62

"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."

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

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

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

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

CC No. 85/07 DA Vs. Sanjay Kumar Page 60 of 62

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

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

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

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

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

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

120. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42. CC No. 85/07 DA Vs. Sanjay Kumar Page 61 of 62

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

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

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

123. In view of my above discussion, as the milk fat and milk solids not fat were found by the Director in the sample of Cow's Milk so analysed at 2.0% and 7.7% as against the prescribed standards of minimum 3.5% (standard as applicable in Delhi) and 8.5% respectively the accused stands convicted under Section 2 (ia) (a) &

(m) r/w section 7 and 16 (1) (a) of PFA Act 1954.

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

          Announced in the open Court                                   (Gaurav Rao)
           on 4th February, 2015                                   ACMMII/ New Delhi




      CC No. 85/07
      DA  Vs.  Sanjay Kumar                                                              Page 62 of 62

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