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[Cites 37, Cited by 0]

Delhi District Court

Standards Published The Same So As To Be ... vs Unknown on 27 August, 2016

               IN THE COURT OF SH. ASHU GARG,
        Addl. Chief Metropolitan Magistrate - II (New Delhi),
                  Patiala House Courts, New Delhi

CC No. 37/01
Unique Case ID No.

Date of Institution:           02.05.2001
Date of reserving judgement:   27.06.2016
Date of pronouncement:         27.08.2016

In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                ...    Complainant

               versus

A-1) Inder Pal
S/o. Sh. Ram Pal
[PROCLAIMED OFFENDER]

A-2) M/s. Mohan Dairy
Siyana Road, Buland Shahar, UP

A-3) Mahender Kumar
S/o. Sh. Laxman Prasad
[PROCLAIMED OFFENDER]                       ...    Accused persons

JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The CC No. 37/01 Page 1 of 38 accused no. 1 is stated to be the vendor of M/s. Mohan Dairy, of which the accused no. 3 is stated to be the Nominee, from whose Vehicle No. UP- 13D-7370 the food article, that is, 'Pasteurized Full Cream Milk' was lifted for sampling.

2. As per the complaint, on 10.07.2000, the food officials consisting of Food Inspector (FI) N. N. Sharma and FI B. P. Saroha under the supervision of Local Health Authority (LHA)/SDM Sh. Sanjiv Kumar reached near Nizamuddin Bridge, Delhi, where they found Van no. UP- 13D-7370 that had stored the food article 'Pasteurized Full Cream Milk' (Apar Brand) for sale for human consumption. The accused no. 1 was the driver of the said Van and it was found that the milk was being carried for sale in Delhi. The sample of milk was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor who disclosed that the milk belonged to the accused no. 2 partnership firm. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 25.07.2000, the PA opined the sample to be not conforming to the standards because 'milk solids not fat' was found to be 8.67% which was less than the prescribed minimum limit of 9.0%. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was revealed that the milk in the van belonged to the accused no. 2 firm that was having four partners. However, the said firm had appointed the CC No. 37/01 Page 2 of 38 accused no. 3 as its Nominee under section 17 of PFA Act and as such, he was deemed to be in charge of and responsible to the firm for its affairs. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 02.05.2001 against all the accused persons in the capacity of vendor, firm and nominee respectively, alleging violation of section 2(ia)

(a) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 02.05.2001. It is important to note that the presence of accused persons could not be secured for a very long time and even coercive measures could not yield any result. It was only on 08.07.2009 that AR of accused no. 2 appeared through his Ld. Counsel and he actually appeared on 29.10.2009. Accused no. 1 and 2 never appeared even after process under Section 82/83 CrPC and they were declared proclaimed offenders vide order dated 29.10.2009. It is also to be seen that the accused no. 2 never opted to file any application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL).

4. On the basis of PA report, notice of accusation under section 251 CrPC was framed against accused no. 2 firm on 13.01.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act, CC No. 37/01 Page 3 of 38 being violation of section 2(ia)(a) and (m) of PFA Act, to which its AR pleaded not guilty and claimed trial.

5. At the trial, the prosecution examined three witnesses in support of its case. PW-1 FI N. N. Sharma, PW-2 Sh. Sanjiv Kumar and PW-3 FI B. P. Saroha were examined.

6. PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 10.07.2010 and narrated the steps undertaken by them during the sample proceedings, viz. their intercepting the van in question being driven by accused no. 1, disclosing their identity, expressing intention to purchase sample of milk for analysis, lifting the sample of 2 sealed polypacks of milk of 500 ml each, shaking them well, opening them, pouring their contents in a clean and dry steel jug, homogenising the contents with the help of a clean and dry long steel spoon (Karchi), allowing it to attain room temperature, dividing it in three equal parts and putting them in three clean and dry sample bottles, adding 27 drops of formalin as preservative in each bottle, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW- 1/C. The vendor furnished his statement Ex. PW-1/D informing that the milk belonged to accused no. 2. On the same day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of CC No. 37/01 Page 4 of 38 Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-1 who sent letter Ex. PW-1/H and reminder Ex. PW-1/H-1 to the accused no.1 which were never replied. He sent letter Ex. PW-1/I and two reminders Ex. PW-1/I-1 and Ex. PW-1/I-2 to the accused no. 2 firm but they were also never replied. He sent a letter Ex. PW-1/J and a reminder Ex. PW-1/J-1 to the CMO, Bulandshahar UP and received reply Ex. PW-1/J-2 along with relevant documents through which he came to know about the nomination in favour of accused no. 3. Thereafter, sanction Ex. PW-1/K was taken from the Director PFA and complaint Ex. PW-1/L was filed in the court. After this, intimation letter Ex. PW-1/M with copy of PA report was sent to the accused persons through registered post vide postal receipts Ex. PW-1/N. All these witnesses were duly cross-examined by Ld. Defence Counsel for accused no. 2 wherein they denied that the sampling method was not proper or that due to delay in filing the complaint for ten months, the right of the accused under Section 13(2) of PFA Act got frustrated.

7. Statement of the accused no. 2 (through its AR) under section 313 CrPC was recorded on 06.04.2015 wherein he denied the allegations and pleaded innocence. He expressed ignorance about the proceedings dated 10.07.2000 on the ground that no one from the firm was present at the spot at that time. He claimed that the sample was not taken properly by the FI. He however did not lead any evidence in defence.

CC No. 37/01 Page 5 of 38

8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused no. 2 beyond reasonable doubt, on the ground that it has not been able to rebut the findings of the PA report dated 25.07.2000. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.

9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that the intimation letter with copy of PA report were never received by the accused and thus, his right under section 13(2) of the PFA Act to get the sample analysed through CFL stood frustrated. It is also argued that the complaint was filed after ten months and on this score also, the right of the accused stood frustrated because milk is a perishable item and by that time, it would have become unfit for further analysis. It is then contended that the milk was not meant for sale as there is no witness who had seen the vendor accused selling the milk to any customer. Ld. Counsel has argued that the PA was not competent to analyse the sample and also that the prosecution was bad in law as the labs and test methods had not been notified by the government. It is submitted that even the sample procedure was not proper and it might be possible that some fat / solids remained sticking to the polypacks of the milk when their contents were poured into the jug.

CC No. 37/01 Page 6 of 38

10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused no. 2 and have carefully perused the material available on record.

11. It is to be understood that the notice framed against the accused no 2 is for violation of section 2(ia)(a) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.

12. The commodity in the present case is 'Pasteurized Full Cream milk' as was declared even on the sealed polypackets. It is not the stand of the defence that the food product was not Pasteurized Full Cream Milk or was some other milk or that some other standards were to apply to the food article. Specific standards have been provided with respect to such milk in Appendix-B of PFA Rules. As per the prescribed standards, the content of milk solids not fat in full cream milk should be minimum 9.0%. There is no issue with respect to applicability of these standards.

13. The present case is based on the findings of PA as given in report Ex. PW-1/G. The report shows that the percentage of milk solids not fat CC No. 37/01 Page 7 of 38 was found to be 8.67%, which should have been not less than 9.0%. As far as this report is concerned, the contents and findings therein have not been disputed by the defence, though it is claimed that such findings are wrong on account of incorrect sampling methodology. It is nowhere the stand of the accused that some improper or unreliable method was used by the PA to analyse the milk solid not fat content. It is to be understood that report of chemical expert is admissible in evidence under section 293 CrPC without formal examination of such expert. Even when the report of chemical expert is admissible in evidence without formal proof under section 293 CrPC, it can always be questioned on any point on which it is silent. If the accused wishes such report to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross-examine the PA. But in this case, no request was made by the accused to cross-examine the PA under section 293 CrPC when this option was available to him, so as to question her on the testing methodology adopted. It is to be noted that the office of the PA maintains all the details of the methods used, the analytical values, the calculations, etc on the basis of which the final report is given. The final report so given is in the format as prescribed under the Rules (as the Rules existed at that time). But no attempt was made by the accused to call for those records or question the PA as to the validity, details or intricacies of the test methodology. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA, without CC No. 37/01 Page 8 of 38 giving the analyst any opportunity to explain any point on which the report is silent. In the present case, the report of PA has never been questioned. In such a case, there is no reason why the accused did not opt to cross- examine the PA and ask her about the method used by her to detect the content of milk solids not fat, if he was genuinely aggrieved by contents of her report. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. Reliance can be placed on judgements titled as Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206], wherein it was observed that "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."

14. The accused has also not exercised his right under section 13(2) PFA Act for getting the sample analysed through CFL. For this, the arguments are that PA report with intimation letter were never served upon it, and that delay in filing the complaint frustrated its right as shelf life of milk was over by that time and it would have been rendered unfit for analysis. The sample of milk in this case was lifted on 10.07.2000 and it was analysed by PA around 25.07.2000. The complaint was filed on 02.05.2001.

CC No. 37/01 Page 9 of 38

15. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2) of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.

16. At the outset, there is no merit in the contention that the PA report was not received by the accused no. 2 firm. PW-1 and PW-3 both deposed about sending the copy of PA report with intimation letter Ex. PW-1/M through registered post vide receipt Ex. PW-1/N. The original of this CC No. 37/01 Page 10 of 38 receipt had been produced on record during the testimony of PW-1 and its copy compared with the original at that time. The receipt clearly shows the correct address of the accused no. 2 firm. It is pertinent to note that the genuineness of this document has never been questioned by the defence. It is not the case where no original receipt exists or that the receipt shown to the court was forged or fabricated. No objection was taken by the defence as to the mode of proof when this document was exhibited. The correctness of the postal receipt has not been questioned during cross- examination of PWs. Not even a single suggestion was given to the witnesses that the postal receipt Ex. PW-1/N was a forged or fabricated or that no such letter was sent or that it was sent at an incorrect address. For that matter, no suggestion was given even to the effect that the PA report or intimation letter were never received by it. Thus, accused no.2 cannot take benefit on this count. The accused no. 2 has virtually accepted, having chosen not to deny, the fact that the PA report was sent through registered post.

17. Once this fact of sending the letter is so established, section 27 of the General Clauses Act would come into play. It is not the case of the accused that the said letter Ex. PW-1/M was sent at an incorrect address. No such stand has been taken by the accused at any stage of trial including prosecution evidence, statement of accused or defence evidence. The record shows that the authorization letter in favour of AR Sh. Ajay Bansal issued and filed on behalf of accused no. 2 firm under section 305 CrPC, which is on the original letter head of the firm and bears the signatures of its two partners, mentions the address of its office as "Siyana Road, CC No. 37/01 Page 11 of 38 Bulandshahar, UP". This address, which is the admittedly correct address, is the same address at which the intimation letter was sent to it. In such a position, when a letter had been sent through registered post at a correct and proper address, there would be a presumption of service under section 27 of the General Clauses Act in favour of the complainant. The burden would not upon be the complainant to show delivery of the letter and such burden would now shift upon the accused to show that the letter was not so delivered despite having been sent at a correct address through registered post. But the accused has not led any evidence to this effect. No attempt was made by it to summon the records of postal department to show as to whom the letter was delivered or if it remained undelivered. There is no evidence to show that the letter was not delivered to the accused no. 2. Accused no. 2 has not claimed that its office had been shifted or closed or that the letter could not have been served upon it otherwise at the relevant time. Thus, accused no. 2 has failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 and PW-3 deposed that the registered letter was not received back undelivered, the burden would be upon the accused to prove anything to the contrary. By not leading any evidence, the version of the accused remains unsubstantiated. Even in the statement under section 313 CrPC, the AR of accused no. 2 never denied the factum of sending of the intimation letter and only replied it to be a matter of record. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused no. 2 in due course. The accused cannot therefore opt to simply deny the things at the stage of final arguments and claim for the first time that PA report was not received by it.

CC No. 37/01 Page 12 of 38

18. Upon this, the accused claims that the delay in filing the complaint had frustrated its right under section 13(2) PFA Act. The question is whether can the period of ten months be called as an "unexplained delay"

so as to automatically frustrate its right? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], that pertained to a milk product "paneer" on the basis of which the Hon'ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis. This judgement was relied upon by the Hon'ble High Court in State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957]. Ld. Counsel also has relied upon the judgment titled as Gian Chand v. The State [1978(1) PFA Cases 15], to impress that a delay of eight months in filing the complaint would be fatal.

19. It would be seen that in Chanan Lal's case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon'ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his research that a sample of panir would CC No. 37/01 Page 13 of 38 remain fit only for one month when formalin was added and was kept in refrigerator. The Hon'ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held "On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month". The Hon'ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.

20. Well, a lot of issues are involved in the arguments advanced on this count.

21. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal's case to be considered as it is, in this case as well as in all cases of milk and milk products. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross- examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future cases even without his examination or cross-examination. There can be other experts in the same field who might have different opinions based on CC No. 37/01 Page 14 of 38 their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal's case cannot be therefore accepted in all cases of paneer blindly.

22. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 Cri.L.J. 1086], full bench of the Hon'ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal's case, which the defence wishes the court to rely straight away) as under:

"It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.
It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same CC No. 37/01 Page 15 of 38 time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds."

23. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after four decades without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.

24. Even otherwise, the judgement in Chanan Lal's case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon'ble Court in that judgement that prosecution should be filed with 17 days of lifting the sample, is now almost impossible to achieve. Rule 9(j) on which the Hon'ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.

25. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require a few days to analyse the sample (as in the present case), to prepare his/her report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct CC No. 37/01 Page 16 of 38 investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in 17 days as per the judgement in Chanan Lal's case. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the case would depend on its own set of facts and circumstances. The judgement in Chanan Lal's case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future pertaining to a sample of milk or any milk product, delay of one month would have to CC No. 37/01 Page 17 of 38 result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.

26. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration in the any sample of milk or milk products, the moment one month lapses from the date of lifting the sample, and if any such case comes to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.

27. At this stage, it is also necessary to observe that in Chanan Lal's case, the sample sent to CFL was reported to be decomposed and its contents leaking, rendering it unfit for analysis. Thus, the Hon'ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis, or those cases where the accused chooses not to send sample for analysis to CFL (as in the present case).

28. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or has frustrated his rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has CC No. 37/01 Page 18 of 38 resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.

29. In the case at hand, PW-1 during cross examination explained that the time of ten months was consumed in investigation of the case. Record shows that after the sample was lifted on 10.07.2000, various letters and reminders were issued to the accused persons which were never replied. Therefore, the entire burden cannot be put on the complainant / prosecution for the said delay. In such position, ten months period cannot be said to be "unexplained delay".

30. Even otherwise, it is not a case where the accused no. 2 immediately after receiving the intimation letter opted to exercise its right under section 13(2) PFA Act. Rather it chose to not even appear in the court for eight long years. It appeared for the first time only in the year 2009. After such time, the accused cannot say that its right stood frustrated eight years ago thereby giving it the liberty not to file any application under section 13(2) PFA Act.

CC No. 37/01 Page 19 of 38

31. It is pertinent to note that in the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], which pertains to a sample of milk (as in the present case), full bench of the Hon'ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that there was no occasion for the trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analysis to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (as in the present case) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon'ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon'ble court also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases CC No. 37/01 Page 20 of 38 where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup's case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.

32. Even in Chanan Lal's case, the Director CFL had reported that the sample was decomposed and leaking. The judgement would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of the accused to get the sample analysed from CFL. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions and presumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the reports of chemical analysts, as observed in Bishan Sarup's case, only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

CC No. 37/01 Page 21 of 38

33. As a corollary, the accused cannot choose to forgo his right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused cannot claim that after lapse of any specific time period, his right would automatically stand frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analysis. It is only when the accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he can get benefit of the delay. In judgement titled as Britannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon'ble High Court was dealing with a matter of 'Cheddar Cheese' which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon'ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that "There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had CC No. 37/01 Page 22 of 38 deteriorated and could not be analysed". The Hon'ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, where the accused never applies under Section 13(2) of the Act, he cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused had applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under Section 13(2) of the Act would have been denied to him.

34. Thus, it is clear that the court would not assume that the right of the accused stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when he exercises his right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. But when the sample was never sent for analysis by the CFL, the court cannot then substitute its own view on the basis of any hypothesis or assumptions and conclude that the sample would have rendered unfit for analysis. However, it would still be open CC No. 37/01 Page 23 of 38 for the accused to establish at evidence that the changes/variations on account of delay had resulted in causing prejudice to him.

35. In view of this proposition, the accused no. 2 in this case cannot claim that its right under section 13(2) PFA Act stood automatically frustrated when the complaint was filed after ten months of lifting the sample so as to give it an option not to file application to send the sample for analysis to CFL.

36. The judgment relied upon by the accused, that is, Gian Chand v. State (supra) would also not help the accused, primarily because the issue in that matter was the doubt created with respect to the genuineness of the sample produced before the court by the LHA. The Hon'ble Court opined that the sample so produced before the Magistrate might have been changed as the seal remained with the FI and change of sample was not impossible. It was observed that there was no evidence to show that a sample of milk could have remained fit after six months. On account of such suspicion, the benefit was given to the accused. However, it is to be noted that the said judgement was passed on 05.11.1969 when the statutory provisions were different. Section 11 of PFA Act was amended in 1976 which leaves very little scope of change of sample. At the time of lifting the sample, even the vendor is required to sign all the sample bottles. Thus, even if the seal remains with the FI, he cannot simply change the samples without the signatures of the accused vendor. When the sample is so purchased before the court under amended section 13 of PFA Act, under section 13(2B), the court is required to first ascertain that CC No. 37/01 Page 24 of 38 the mark and seal are intact and the signatures are not tampered with. It is only thereafter that a sample is sent to CFL after verifying that it is the same sample which was lifted from the vendor bearing his signatures. Therefore, there is no scope for change of sample, on the basis of which the benefit of doubt was given to the accused in Gian Chand's case.

37. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk (as in the present case). The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:

(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason. In Ghisa Ram's case (supra), the Director, CFL had reported that the sample had become highly decomposed and no analyses was possible. In that case, on the basis of evidence, the court found that sample of curd could not have survived for more that four months. At the same time, there was no rule laid down that in every case of frustration of such right, the vendor cannot be convicted on the CC No. 37/01 Page 25 of 38 basis of PA report and different considerations may arise. Similarly in Ram Mehar v. Delhi Administration (Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969), after the delay of none months, the sample was sent to CFL but the Director reported that the sample had become highly decomposed and its analyses was not possible. Further, in Municipal Corporation of Delhi v.

Om Prakash [Criminal Appeal N. 7-D/1966, Delhi High Court, dated 28.07.1969], the evidence had been led in that case to show that the difference between the two reports was mainly due to lapse of time.

(b) The consideration of time-lapse is relevant only for a limited purpose. "Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."

(c) "If prejudice is caused to the accused on account of the delay in the institution of proceedings, as when the sample is rendered unfit for analyses in the meanwhile, then the accused is entitled to the benefit of doubt... But in case no prejudice is caused to the CC No. 37/01 Page 26 of 38 accused he cannot be allowed to escape the consequences under the law for such anti-social act..."

38. This precedent squarely applies to the case at hand. There is no reason why the court should not apply the law laid down in this precedent, particularly when there is no evidence even in this case to conclude anything to the contrary.

39. Further, there is also no merit in the contention that the milk in this case was not for sale so as to take it out of purview of PFA Act. It is contended by the defence that as the milk was being carried in a van, the FI was not competent to take a sample therefrom. However, there is no merit in such a stand. As per section 10 of PFA Act, a FI shall have powers to take samples of any article of food from any person selling such article and any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. As per the definition of "sale" under section 2(xiii) PFA Act, it includes sale of any article of food for analysis or having in possession for sale of any such article. Thus, the definition of "sale" is quite wide, which also expands the scope of section 10 of PFA Act. There is no rule of law which requires that the sample could be lifted only when it is actually being sold to any customer. If a food article is exposed or being transported for sale for human consumption, that would be covered under section 10(1). When the accused no. 1 (since PO) in this case was carrying milk in a van meant for sale in Delhi, the said food article was definitely for sale and the FI was competent to lift sample therefrom.

CC No. 37/01 Page 27 of 38

40. It is to be noted that the accused no. 2 has nowhere disowned the van or its contents. It is not its case that the van did not belong to it or that the driver accused no. 1 was not its employee or that the milk therein was not its. It has never claimed at the trial that the milk was meant for any purpose other than sale. Such large quantity of milk being transported would be most probably for sale only, unless the accused establishes otherwise as this fact would be in his personal knowledge only. But there is no defence on these lines at the trial. Position would have been different if the said food was stored / exposed not for sale but for personal use or any purpose not covered in the definition of sale.

41. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments, particularly when at odd hours as in the present case (03.30 AM). But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross- examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon'ble Supreme Court in CC No. 37/01 Page 28 of 38 Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.

42. All the three witnesses in the present case have deposed about the compliance of the necessary rules including use of clean and dry implements / utensils/ instruments. All the three witnesses categorically deposed in their testimony about use of clean and dry jug and steel Karchi. Both PW-1 and PW-3 deposed that the said utensils were taken from the accused no. 1 vendor only. Mere giving suggestions would not establish the existence of facts. Further, it is to be understood that there is presumption of ordinalry and natural course of events under section 114 of the Indian Evidence Act. When no one from the accused no. 2 was present at the spot, it cannot possibly point out any irregularity in sampling method or claim that the jug and karchi were not available with accused no. 1 or that some fat content remained sticking to the polypouches even after pouring the contents in the jug. Apparently, there is no evidence to this effect except bald averments and hypothetical assumptions. If such assumptions are to be accepted to give benefit to the accused, then no prosecution would ever lie because in any such case, the possibility of such content to have left sticking inside the pouch, would never be ruled out. In the present case, all the witnesses categorically stated that the sample pouches were shaken properly before pouring out their contents.

CC No. 37/01 Page 29 of 38

Such shaking will definitely result in proper mixing of any such fat / solid content into the milk. Going by the presumption under section 114 of the Evidence Act coupled with the corroborative testimony of the three PWs, it would be clear that the sample was properly lifted. There is no requirement that the polypouches were to be first heated before pouring out their contents, as claimed by the defence. No such method is prescribed under the rules. Such a method might be a better method but would not be the only method. Therefore, merely on the basis of bald assumptions, no benefit can be given to the accused no. 2 in the absence of specific evidence.

43. All the witnesses examined on record deposed in conformity to each other on material particulars. At the same time, it is to be understood that human memory is liable to fade and some minor contradictions / exaggerations / omissions / variations could creep in with the passage of time. Unless such contradictions / variations are material enough so as to go to the root of the matter, they should not be allowed to negate or nullify the entire testimony of the witnesses on all other counts.

44. In the present case, PW-1 and PW-3 both confirmed the fact that the jug and karchi were given by the accused vendor and that the same were in clean and dry condition. They also deposed that the contents were brought to room temperature before homogenising the same. Both informed that no helper or other person was there in the van other than the accused no. 1 driver. However, PW-2 could not remember as to how many persons were there and from where the jug had been arranged by the FI. He even stated CC No. 37/01 Page 30 of 38 that the FI had made the jug clean and dry at the spot. Thus, there is some contradiction on this point but this would certainly be only a minor contradiction and not material enough to go the root of the matter so as to negate the entire testimony of the other witnesses on all other counts which is otherwise corroborative in nature. When the witness was cross examined after more than ten years of lifting the sample, such minor variations can always creep in but that would not nullify or negate the entire evidence or proceedings. Thus, there is no contradiction in the evidence of the witnesses which can be said to be material enough to give any benefit to the accused no.2.

45. It is further seen that two polypacks of the milk were opened and their contents transferred to a jug, out of which three parts were separately packed. The said procedure was adopted as was provided under the rules as they stood on the day of sampling. It was only in the year 2005 that a "Note" was inserted at the foot of Rule-22 of PFA Rules which required that the food sold in packed condition (sealed container or package) was to be sent for analysis in its original condition, without opening the package to constitute approximate quantity along with original label. When this provision was not there at the time when the sample was lifted, no irregularity can be seen when the FI divided three samples after opening the two sealed packets.

46. The defence lastly claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 02.05.2001 CC No. 37/01 Page 31 of 38 on the basis of the Public Analyst's report dated 25.07.2000. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA could adopt for analysis of the product in question.

47. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 CC No. 37/01 Page 32 of 38 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

48. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she has been duly appointed and this fact was never disputed at the time of trial.

CC No. 37/01 Page 33 of 38

49. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."

50. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food CC No. 37/01 Page 34 of 38 Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

51. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point.

52. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an CC No. 37/01 Page 35 of 38 article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."

53. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. Again, in Pepsico's case, the Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to the standards which the milk had to conform. In this case, prosecution is for CC No. 37/01 Page 36 of 38 violation of section 2(ia)(a) and (m) of the Act. The present case would be covered on the lines of a judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to standards of milk and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.

54. It has come on record that the van in question belonged to the accused no. 2 firm. As per section 17 of PFA Act, since a nominee (accused no. 3) had been appointed by the said firm, he would be liable for the offence committed by the firm in addition to the firm. As per Section 7 of PFA Act, no person shall "himself or by any person on his behalf"

manufacture for sale or store, sell or distribute any adulterated food. Therefore, the accused no. 2 firm would be liable for the offence and it cannot put the entire burden on the accused no. 1 driver/vendor. Being the firm, accused no. 2 is responsible for compliance of the rules.
55. No other stand taken has been taken by the defence hitting on merits of the case.
56. The case in hand would be covered under section 2(ia)(a) as the milk sold (or caused to be sold through accused no. 1) by the accused no. 2 was not of the nature, substance or quality which it purported to be and CC No. 37/01 Page 37 of 38 under section 2(ia)(m) of PFA Act as the constituent of milk solids not fat was present in quantities less than the prescribed minimum limits.
57. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 2 beyond the shadow of reasonable doubt. It has been proved that the accused no. 2 had sold through accused no. 1 (since PO) adulterated food in violation of section 2(ia)(a) and (m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act.
58. Having said so, the accused no. 2 is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.
59. Let the matter be listed for arguments on sentence. Accused no. 1 and 3 continue to be proclaimed offenders.
Announced in the open court this 27th day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 37/01 Page 38 of 38