In Re vs A-1) Pradeep Sharma on 6 January, 2017

[Cites 44, Cited by 0]

Delhi District Court

In Re vs A-1) Pradeep Sharma on 6 January, 2017

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

CC No. 148/03
Unique Case ID No.

Date of Institution:           31.03.2003
Date of reserving judgement:   08.12.2016
Date of pronouncement:         06.01.2017

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

            versus

A-1) Pradeep Sharma
S/o. Lt. Sh. Duni Chand Sharma
R/o. 4237/7, Andrews Ganj, New Delhi

A-2) M/s. The Crystal Restaurant
(A Unit of Palace Restaurant)
Opposite Gate No. 1 Site, K-4,
Pragati Maidan Complex, New Delhi

A-3) Manoj Kumar
S/o. Sh. R. C. Gupta
R/o. 16/419, Kalyan Puri, Delhi-91

A-4) Babu Ram
S/o. Sh. Molur Ram
R/o. B-40, Madhu Vihar, Gali No. 15
Near Patparganj, Delhi-91




CC No. 148/03                                             Page 1 of 50
 A-5) Prahlad Rai Gupta
S/o. Sh. Om Prakash
R/o. A-212, Narwana Apartments,
Patpargan, Delhi-91

A-6) M. L. Gupta
S/o. Lt. Sh. M. R. Gupta
[SINCE EXPIRED]                              ...     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 accused no. 1 is stated to be the vendor-cum F&B Manager of the accused no. 2 M/s. The Crystal Restaurant, a partnership firm, from where the food article, that is, 'Dal Moong Dhuli' was lifted for sampling. Accused no. 3, 4, 5 and 6 (since expired) are stated to be the working partners of accused no. 2 firm.

2. As per the complaint, on 17.08.2002, the food officials consisting of Food Inspector (FI) Jeet Ram and FI S. K. Sharma under the supervision of Local Health Authority (LHA)/SDM Sh. S. M. Haider reached along with their staff at the premises of accused no. 2 M/s. The Crystal Restaurant opposite Gate No. 1 site, K-4, Pragati Maidan Complex, New Delhi-110001, where the accused no. 1 in the capacity of its Food & Beverages Manager was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption.

CC No. 148/03 Page 2 of 50

The FI disclosed his identity and expressed his intention to purchase a sample of Dal Moong Dhuli (ready for sale) from the said vendor lying in an open polythene bag bearing no label declaration, to which he agreed. The sample 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 offered to the vendor but he refused to accept the same. 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 29.08.2002, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter 'Tartrazine'. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was revealed that accused no. 2 was a unit of M/s. Palace Restaurant that was a partnership firm, of which accused no. 3, 4, 5 and 6 were the working partners all of whom were in charge of and responsible to the firm for its business affairs. It was also found that no nominee under section 17 of the PFA Act had been appointed by the accused persons. 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 31.03.2003 against all the accused persons alleging violation of section 2(ia)(j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, as punishable section 7/16(1A) 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 CC No. 148/03 Page 3 of 50 were summoned vide order dated 31.03.2003. The accused persons appeared and filed an 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). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 17.05.2003, opining the sample to be not conforming to the standards of dal moong as per PFA Rules due to presence of synthetic colour 'Tartrazine'.

4. Accused no. 6 expired in the meanwhile and proceedings against him stood abated.

5. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Bal Mukand and PW-2 FI Jeet Ram. On the basis of their depositions, charge was framed against the accused no. 1 to 5 on 08.02.2010 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (j) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-3 Sh. S. M. Haider (SDM/LHA) and PW-4 FI S. K. Sharma in post-charge stage.

6. At the trial, PW-2, PW-3 and PW-4 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 17.08.2002 and narrated the steps CC No. 148/03 Page 4 of 50 undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 750 gms of dal moong lying in open polythene bag bearing no label declaration, mixing the same with the help of a clean and dry jhaba, 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. Statements of vendor Ex. PW-1/D and Ex. PW-1/D1 were also taken. On the next working day, that is, 19.08.2002, 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 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-2 who sent letter Ex. PW-1/H to the accused no. 2 but it was never replied. He sent letter Ex. PW-1/I to STO and received its reply. Matter was then dealt with by PW-1 FI Bal Mukand who obtained sanction Ex. PW-1/A (Sic: Ex. PW-1/AA) from the Director PFA and filed the complaint Ex. PW-1/B (Sic: Ex. PW-1/BB) in the court. After this, intimation letter Ex. PW-1/C (Sic: Ex. PW-1/CC) with copy of PA report was sent to the accused persons through registered post vide postal receipt Ex. PW-1/D (Sic: Ex. PW-1/DD). All these witnesses were duly cross- examined by Ld. Defence Counsel wherein they denied that the accused persons had been falsely implicated or that the jhaba was not clean and dry or that the accused no. 1 had produced bill of purchase to the FI which was not accepted by him.

CC No. 148/03 Page 5 of 50

7. Statements of the accused no. 1 (also on behalf of accused no. 2), 3 and 5 under section 313 CrPC were recorded on 31.08.2015, and that of accused no. 4 was recorded on 02.02.2016, wherein they denied the allegations and pleaded innocence. Accused no. 1 (also on behalf of accused no. 2 as its AR) admitted the proceedings dated 17.08.2002, but claimed that no efforts were made to join public witnesses and he did not accept the payment as the food article was not for sale but for preparation of bhalla and halwa etc. He claimed that the sample was not taken properly as the FI did not mix the dal at all with the jhaba. He stated that the documents were not read over and explained to him. He questioned the reports of PA and CFL on the ground that there was variation between the two. On the other hand, accused no. 3 expressed ignorance about the sample proceedings on the ground that he was not present at the time of sampling. He denied the PA and CFL reports and claimed that there was no adulteration in the food article. Accused no. 4, instead of denying the adulteration, stated that food article 'may have' synthetic colour and that they used to clean/wash the dal 4-5 times before cooking and serving the same to the customers. He however, denied his role stating that he was not present at the spot at the relevant time, and also claimed that the partnership firm had been 'verbally' dissolved prior to lifting the sample. He claimed that accused no. 1 was the overall incharge of the kitchen of the restaurant. Accused no. 5 took stand that he had ceased to be a partner of the firm in February 2001 after a verbal agreement to this effect and that the firm was dissolved in writing only after the sample was declared failed by the PA. He expressed ignorance about the sample proceedings CC No. 148/03 Page 6 of 50 but claimed that there was no adulteration and that PA/CFL reports were wrong. The accused persons chose to lead evidence in defence.

8. The accused persons examined accused no. 1 as DW-1 as the only defence witness. He deposed that sample was kept for preparing dahi bhalla and before preparing the same, the dal used to be soaked in water for whole night and then washed with clean water twice or thrice. He reiterated that the dal was not for sale and the dal lifted by FI wad dry that was yet to be soaked in water for further preparation.

9. 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 persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the CFL report dated 17.05.2003 which as per section 13(3) and (5) of PFA Act is final and conclusive, and which has confirmed the findings given by the PA. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.

10. 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 no percentage or extent of synthetic colour Tartrazine has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that the jhaba used by the FI was not made clean and dry at the spot and CC No. 148/03 Page 7 of 50 possibility of contamination cannot be ruled out. It is then contended that Tartrazine is not a harmful colouring matter as its use is permitted in many food articles. Ld. Counsel has submitted that tartrazine is a water soluble colour and when the dal moong is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is also argued that the accused persons were not the manufacturers of the article but were only users who had purchased the commodity from another seller. Ld. Counsel submits that the matter would not be covered by the PFA Act as the dal in question was not for direct 'sale' as such but was only for use in preparation of other food articles like bhalla and halwa. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law.

11. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.

12. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a), (b), (j) and (m) of the PFA Act read with Rules 23, 28 and 29 of PFA Rules with respect to the offence of 'adulteration'. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(b) is applicable if the article contains any other substance which affects CC No. 148/03 Page 8 of 50 injuriously the nature, substance or quality thereof. Section 2(ia)(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. 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.

13. The commodity in the present case is dal moong dhuli (split pulse) which is food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.10 of Appendix B of the PFA Rules. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter Tartrazine in the sample analysed. On this point, the reports are conforming to each other and not at variance.

14. But the defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, moisture content was 10.99%, other food grains were 0.04% and damaged grains were 0.08%, whereas according to the CFL report, moisture content was 8.8%, other food grains were nil and damaged grains were 3.2%.

15. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said variation in CC No. 148/03 Page 9 of 50 the moisture content, other food grains and damaged grains, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused persons.

16. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].

17. I have carefully gone through the said judgements based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.

18. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive CC No. 148/03 Page 10 of 50 evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

19. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

20. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."

CC No. 148/03 Page 11 of 50

21. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a "greater expert whose certificate is to be accepted by court as conclusive evidence".

22. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.

23. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath's case (supra) has been shown by the defence where such PA report, as superseded by the CC No. 148/03 Page 12 of 50 CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.

24. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that "It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act".

25. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR CC No. 148/03 Page 13 of 50 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of 'variation' and held that "Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

26. In the case of MCD v. Bishan Sarup [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA CC No. 148/03 Page 14 of 50 had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:

(a) The accused is entitled to get benefit of doubt if on account of 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.

(b) "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) Despite the difference in reports, there was no effort to show CC No. 148/03 Page 15 of 50 that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

27. This judgement was also relied upon by the Hon'ble High Court of Delhi in Salim and Co. v. MCD [1978 Cri LJ 240], where it was observed that "It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director".

28. In MCD v. Zahiruddin [ILR (1972) 1 Del 630], the Hon'ble High Court of Delhi held that "It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded." Similar was the observation of Hon'ble High Court in MCD v. Manohar Lal [1975 (1) FAC 182].

CC No. 148/03 Page 16 of 50

29. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be "unfit for analysis" in which case it can be assumed that the right of the accused stood frustrated. But CC No. 148/03 Page 17 of 50 where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.

30. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in Bishan Sarup's case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.

31. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be "substantial enough" to be considered in favour of the accused. The Act or Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In CC No. 148/03 Page 18 of 50 the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant's witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be "substantial enough", then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.

32. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.

33. In Kanshi Nath's case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked CC No. 148/03 Page 19 of 50 about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon'ble Court ruled in favour of the accused and acquitted him.

34. Thus, the point to be noted is, that the law laid down in Bishan Sarup's case still holds good. No benefit can be granted to the accused persons merely because there are 'variations' in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath's case, the accused was able to adduce evidence to the effect that 'in ideal conditions', the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon'ble Court in that case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup's case, the Hon'ble Court had CC No. 148/03 Page 20 of 50 convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.

35. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 5%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The CC No. 148/03 Page 21 of 50 comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.

36. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any CC No. 148/03 Page 22 of 50 difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL which would be against the scheme of the Act.

37. As mentioned earlier, this judgement has been relied upon time and again by the Hon'ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].

CC No. 148/03 Page 23 of 50

38. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath's judgement, but at the same time, expressly ordered the question of law to be kept open.

39. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon'ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.

40. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.

CC No. 148/03 Page 24 of 50

41. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.

42. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon'ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon'ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.

43. In the case in hand, the court cannot, merely on the basis of the above mentioned 'variations', conclude that the samples were not representative. Rather this is one of those few cases where there is no variation found with respect to the incriminating substance. Both the PA and CFL reports are in conformity and have found synthetic colour in the CC No. 148/03 Page 25 of 50 samples analysed by them. Both have identified the said colour to be tartrazine in corroboration to each other. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.

44. Even otherwise, if the variations, if they can be so called, are noticed, they are very marginal. Such variations are certainly due to time gap between the analysis by PA and CFL. Change in moisture content and damaged grains is always expected due to impact of internal heat of the food article, outside atmosphere, presence of light, pressure and air, storing conditions etc. But when the complaint is not on account of presence or absence of moisture or any other parameters but on account of presence of synthetic colouring matter, which would not develop due to any passage of time, no benefit can be granted to the accused persons. Even if the moisture content has undergone a change during the intervening period, the sample would still fail due to presence of synthetic colouring matter the use of which is absolutely prohibited in food grains.

45. There is nothing for the court to disbelieve the PA and CFL reports wherein artificial synthetic colour tartrazine has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused persons that no colour was detected, or was detected wrongly. In this case, no stand has been taken by the accused persons at the trial that any such colour was a result of natural CC No. 148/03 Page 26 of 50 environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused persons in their statements under section 313 CrPC or even in defence evidence. Strangely, accused no. 4 in his statement under section 313 CrPC never specifically denied the presence of colour in the sample, and claimed that such colour might be there. He rather claimed that the food article used to be washed before cooking. Similarly, even while deposing as DW-1, the accused no. 1 never claimed that there was no colour in the food article. His defence version proceeded to explain that when the dal used to be soaked and washed, the colour used to get washed away.

46. No only this, it would be interesting to note that while cross- examining PW-4, the defence put suggestions to him to the effect that the 'colour detected' by the PA was due to contamination in the jhaba and that some colour was already sticking with the jhaba used, which the PW-4 categorically denied. Well, by putting such specific suggestions to the PW-4, the accused persons have lost the right to claim that there was no artificial or synthetic colour as detected by the PA or CFL. By taking such a stand, the accused persons have rather accepted that colour was in fact there in the sample, though have taken stand that it got added due to unclean jhaba. They have virtually accepted that such colour was there, though the burden would now shift upon them to prove that the colour was sticking to the jhaba which came on to the food article.

CC No. 148/03 Page 27 of 50

47. As per Rule 23 of PFA Rules, addition of a colouring matter to any article of food except as specifically permitted by the Rules is prohibited. Rule 28 provides the details of colours permitted for use and Rule 29 enlists the food articles in which synthetic colours are permitted. A bare perusal of this list would show that it does not mention food grains as the food in which any such synthetic colour is permitted. The obvious inference is that use of such synthetic food colour is totally prohibited for use in food grains, though they are permitted in specified food articles within the prescribed limits. Thus, there is no force in the stand of the accused persons that this colour is permitted for use in other food articles. When the use of any such colour is absolutely prohibited for this product, no such colour can be used.

48. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of dal moong. It would not make any difference if the analysts have not given the percentage of colour used. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted up to certain prescribed limits and not where it is totally prohibited. In any case, it would be for the accused persons to show as to on what basis they claim presence of such colouring matter in traces in food article in question. The burden would upon be them to show how even traces of such colour could have entered CC No. 148/03 Page 28 of 50 the food article being used or sold by them. But no evidence has been led by the accused persons to establish this fact.

49. Similarly, there is no merit in the contention that Tartrazine is a water soluble colour and no prejudice would be caused to any customer because dal moong would be washed before preparation. As per section 19(1) of PFA Act, it shall be no defence that the food article sold had not caused any prejudice to the purchaser. Just because some synthetic colour is water soluble and the food article is generally washed before being cooked, that gives no right to anyone to use prohibited synthetic colours in food articles in violation of statutory provisions. Thus, it is clear that the food article dal moong was adulterated within the meaning of section 2(ia) of PFA Act being in violation of Rule 23 read with Rules 28 and 29. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, dated 18.02.2013] which are squarely applicable to this case.

50. The requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and CC No. 148/03 Page 29 of 50 condiments, it is necessary to mix and homogenise the samples so as to evenly distribute there ash content, moisture, broken grains, etc. If it is not so done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling.

51. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk or spices contains deadly poison which is a prohibited substance, then presence of even minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.

52. In this perspective, if the sample of dal moong was failing on account of ash content, moisture, damaged seeds, etc, then proper homogenization would have been required. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in food grains, then any homogenization would be immaterial. Even if homogenized in best possible manner, such CC No. 148/03 Page 30 of 50 colour would still be there, though evenly distributed, which would still be an offence in any case. In the present case, even if it is assumed that the sample had not been properly homogenized (though there is no evidence to this effect), that would have no bearing on the test results. Even if the synthetic colours are evenly distributed, that would still make out the offence of adulteration because such colours are totally prohibited for use in food grains.

53. The defence vaguely claims that the sample was not taken properly and that the possibility of contamination has not been ruled out. However, no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no evidence to establish the stand of the accused persons that the jhaba or bottles were not clean and dry or that some material / contaminant was there in/on it. However, surprisingly, no such suggestion was given to PW-2 or PW-3 to this extent and was only put to PW-4. Again, no such stand was taken by of the accused persons in their statements under section 313 CrPC. Rather accused no. 1 took a very contradictory stand in his statement under section 313 CrPC by claiming that the dal was not mixed at all with the jhaba. But again, no such stand was taken by him when he stepped into the witness box and deposed as DW-1. In the present case, all the witnesses deposed in one voice that the bottles, jhaba, etc were clean and dry when used. All PWs specifically deposed about use of clean and dry jhaba and their version is corroborative in nature. There is no suggestion given to PW-2 or PW-3 to the effect that the jhaba was not clean thereby enabling them to admit or deny such a CC No. 148/03 Page 31 of 50 suggestion. This is not a case where there is no evidence to show that the utensils or implements were clean and dry. Rather there is positive testimony of the witnesses to this effect which has never been questioned or rebutted by leading contrary evidence. The accused persons did not lead any evidence in defence or examine any witness who could depose that the jhaba or bottles were not clean and dry.

54. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is pointed out that the PA report is silent as to the method of testing adopted by her and to show if that method was valid or sure test. It is particularly submitted that if tartarzine was detected using paper chromatography method, then that method is not a sure test. Similarly, it is submitted that the CFL has not specifically mentioned as to what test was adopted out of various tests prescribed under DGHS manual.

55. Well, the court does not find merit in the said submissions. It is to be understood that report of chemical experts is admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such report cannot be questioned on any point on which it is silent. If the accused persons wish such report to be clarified or questioned, they have an option available to then to apply to the court under section 293 CrPC and cross-examine the analyst. Despite such option being available, if the accused persons fail to exercise the same, they 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.

CC No. 148/03 Page 32 of 50

The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that DGHS method had been used by the analyst to determine the presence of synthetic food colours. In such a case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him/her about the method used to detect synthetic colour, if they were genuinely feeling aggrieved by his/her failure to name the test method. The CFL (and even PA) maintains all the details of the tests conducted, calculations made, inferences drawn and values derived on the basis of which final results are given as mentioned in its certificate. The report and certificate on record are only the final figures as given in the format prescribed under the PFA Rules. They do not contain all the details of the entire analysis from beginning to end and such data can always be called by the accused persons if desired. The accused persons cannot be allowed to take benefit of their failure to apply and cross- examine the CFL when this opportunity was available to them. This was obviously not the responsibility of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, 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 CC No. 148/03 Page 33 of 50 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."

56. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320], as relied upon by them, would not help the accused persons. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused persons as aforesaid to ask the CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused persons also chose not to examine any expert witness in defence to establish their stand that the paper chromatography test is not a sure test.

57. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets or sauces) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited CC No. 148/03 Page 34 of 50 and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.

58. Now coming to the defences raised by the accused persons. The court shall consider them one by one.

59. Firstly, the accused persons have claimed during cross-examination of PW-3 that the vendor had produced the bill of purchase to the FI but he refused to entertain the same on the ground that the dal was in loose condition. It is submitted that the accused persons were not manufacturers of the commodity in question.

60. In this regard, it would be seen that such a defence was never taken during the evidence of any other witness, particularly PW-2 who was the FI who had lifted the sample. No such stand was taken by any accused person in his statement under section 313 CrPC nor was taken by DW-1 in defence evidence. Such stand has remained a bald suggestion only.

61. In any case, it would be no defence to claim that accused eprsons were not the manufacturers of the commodity. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of 'sale' under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even CC No. 148/03 Page 35 of 50 attempt to sell and also sale for analysis. The only benefit which the vendor can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a written warranty and had been selling the product in the same manner as purchased by him.

62. In the present case, the accused persons never disclosed from whom they had purchased the commodity. They have not bothered to even place on record any such bill and to prove it as per law. Even if it is assumed that the FI did not entertain the bill, nothing had stopped the accused persons from submitting a copy of a bill to the PFA department during the course of investigation. Again, there is no reason why no such bill has been even produced before the court. No witness has been summoned from any supplier to appear and produce any such bill. No endorsement was made by the accused no. 1 on the documents prepared at the spot claiming that he had purchased the same from any third person or that was having any such bill / invoice / cash memo. No such person has been summoned and examined by the accused who could confirm or deny the stand taken by the accused. There is no evidence to show if any such supplier exists and what was his address.

63. Even if it is assumed that the accused no. 1 had purchased the commodity from a third party, that by itself would not help the accused persons in any manner. It is to be understood that the benefit of warranty under section 19(2) of PFA Act would be available only when there is a written warranty from the supplier/seller in addition to the fact that it has CC No. 148/03 Page 36 of 50 been sold in the same condition as was purchased. Both the conditions have to be fulfilled simultaneously. Only fulfilling one condition that the commodity was sold in the same manner as was purchased from the supplier, would remain incomplete in the absence of other condition of a "written warranty". Such a written warranty can be in the form of a bill or invoice or label or separately given. But it is important to note that such a written warranty has to be as per Rule 12-A of PFA Rules which provides that the same should be as per Form-VIA therein. Unless there is a written warranty, that too in the prescribed format, mentioning all the necessary details, the vendor cannot seek benefit. Therefore, in this case, even if it is accepted that the accused persons had purchased the dal from a third party, there is no evidence to show that there was a written warranty in the prescribed form and also that they had stored and sold the dal in the same manner as was purchased by them. Therefore, such a position would not help them.

64. Secondly, it is claimed that the food article was not for sale but was only for the use in preparation of other food articles in the restaurant and even at the time of sampling, the price of sample was not accepted by the vendor on the ground that it was for manufacture of bhalla and halwa.

65. The court does not find merit in such a stand that the commodity was not meant for direct sale but only for use in preparation of other food articles. It would be the relevant to read Explanation to section 7 of PFA Act (as inserted in 1976 by way of amendment). It clarifies that a person shall be deemed to store any adulterated food or any article of food, if he CC No. 148/03 Page 37 of 50 stores such food for the manufacture therefrom of any article of food for sale. Again, section 2 (viiib) of PFA Act (also inserted in 1976 by way of amendment) defines "manufacture" to be including any process incidental or ancillary to the manufacture of an article of food.

66. Therefore, section 2 (viiib) read with Explanation to section 7 of the PFA Act make it amply clear that if any food is stored for use in preparation of any other food article meant for sale for human consumption, then such food article would also be covered under the definition of "sale" and would be governed by the PFA Act. The position would be different if a product is stored for any purpose other than sale or for being used as ingredient in preparation of any other food meant for any purpose other than sale. Therefore, no benefit can be given to the accused persons even on this ground.

67. Thirdly, the accused persons during cross-examination of PW-2, claimed that the sample commodity was for use of staff, which suggestion was denied by the PW. Such a stand appears to have been taken to claim that the product was not for 'sale'. However, interestingly, no such stand was reiterated thereafter. No such suggestion was put to any other PW. No such stand was taken by any accused in his statement under section 313 CrPC nor deposed by the defence wirness DW-1. Rather contradictory version has been taken by accused no. 4 in his statement when he stated that they used to clean/wash the dal before coking and "serving to customers". Even DW-1 never claimed that the food article was not for sale. The restaurant business would clearly show that the food CC No. 148/03 Page 38 of 50 articles being prepared there in the kitchen were meant for sale for human consumption, unless proved otherwise. There is nothing to show that the food was not for sale.

68. Fourthly, the accused no. 3, 4 and 5 claimed that they had no role to play in the business and put the entire blame on accused no. 1 being the Food & Beverages Manager. It is pertinent to note that accused no. 4 and 5 tried to claim that they had already left the partnership firm before the date of sampling. Again, their version has no takers.

69. As per the prosecution case, the accused no. 1 vendor when asked by the FI disclosed the details of the persons involved. He gave statement Ex. PW-1/D disclosing that business concern in question was a partnership firm, of which accused no. 2 to 6 were the partners. He also furnished copy of partnership deed Mark-X on that day. It is important to note that none of the accused no. 2 to 5 has ever denied at trial the fact that he was a working partner of the firm. The correctness of the partnership deed, as submitted by accused no. 1, has never been questioned. The original deed was in possession of the accused persons only but was never produced, in case the contents of its copy were to be disputed by them. Nowhere during the cross-examination of any PW the defence claimed that the copy of deed as supplied by accused no. 1 was a forged document or any of its contents were wrong. A perusal of its contents would show that in clause (6), it was specifically averred that "all the parties shall be working partners and shall be responsible for carrying out the day to day functioning of the partnership firm viz. day to day management, CC No. 148/03 Page 39 of 50 maintaining of account, office bank affairs, purchase and sale of goods, recovery of dues, tax matters, etc". It is thus clear that all the partners were working partners and all were responsible or incharge of affairs of the firm, particularly when no nominee under section 17 of the PFA Act had been appointed by the firm. The FI was not expected to further know what were the internal arrangements between the partners as it was withing their personal knowledge only. As it is clear in writing that all the partners were working partners and responsible in day to day working of the firm, there is sufficient material to implicate them. It would now be upon them to lead evidence to prove anything to the contrary. But the accused persons never led any evidence to this effect and to deny their roles in contravention of the specifically agreed terms of partnership deed.

70. As far as accused persons are concerned, they have accepted existence of partnership deed in writing. Accused no. 4 or 5, who claimed for the first time in their statements under section 313 CrPC that there were no more associated with the firm, never took any such stand at the trial nor led any evidence to establish this fact. There is no reason for the court to believe the accused persons when they claimed that the partnership was "verbally dissolved". A partnership firm created in writing could not have been so dissolved verbally. And if so dissolved, there was no explanation as to who was still running the business. Accused no. 4 on one hand claimed that he was not incharge of the kitchen and the firm 'dissolved' prior to sampling, by at the same time claimed that "we used to clean/wash the dal" before serving to customers. If he was no CC No. 148/03 Page 40 of 50 more associated in business, there was no occasion for him to claim that they used to do so.

71. Similarly, if accused no. 5 claims that he ceased to be a partner by 'verbal agreement', which he though to be valid, then there was no occasion for him to state that the partnership firm was dissolved in writing after the sample was failed by the PA. This would show that firm was very much in existence on the day of sampling. Otherwise, there was no need to dissolve it subsequently. In any case, no such dissolution deed of its terms have been placed or proved on record and such a version remains bald averment without any evidentiary support. Such stands are liable to be rejected.

72. Lastly, 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 31.03.2003 on the basis of the Public Analyst's report dated 29.08.2002. 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 CC No. 148/03 Page 41 of 50 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 or the Director, CFL could adopt for analysis of the product in question.

73. 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 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.

74. 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 CC No. 148/03 Page 42 of 50 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 no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown 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 Ex. PW-1/F also mentions that she has been duly appointed and this fact was never disputed at the time of trial.

75. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to CC No. 148/03 Page 43 of 50 analyse the samples as per the Act. At the relevant time, CFL Pune had been specified to be the laboratory for Delhi region.

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

"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.

The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."

CC No. 148/03 Page 44 of 50

77. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

78. 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. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.

79. As far as Pepsico's case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The CC No. 148/03 Page 45 of 50 relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.

35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."

80. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico's case, the Hon'ble court CC No. 148/03 Page 46 of 50 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 prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is for violation of section 2(ia)(a), (b), (j) and (m) of the Act. The present case would be squarely covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico's case would not help the accused persons.

81. 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 CC No. 148/03 Page 47 of 50 formalities and strict future commitments. 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 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. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc.

82. There is also no merit in the submission that no offence under section 2(ia)(j) is made out. In view of Rules 23, 28, 29 and 30 of PFA Rules, it is clear that the presence of colour in food grains like dal moong should be nil. It cannot be said that no standards have been prescribed. As such, the presence of synthetic colours would be covered under section 2(ia)(j) and it is not a simple case of misbranding. Had it been a case where colours were permitted and the presence of such colour had not been mentioned on the label, only in that case it would have been a case of misbranding simplicitor.

CC No. 148/03 Page 48 of 50

83. It has come on record that the accused no. 2 business concern was a partnership firm, of which accused no. 3, 4, 5 and 6 (since expired) were its working partners and accused no. 1 was the vendor-cum-F&B manager at the time of sale. 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, even if the accused no. 3 to 5 were not present at the spot or the accused no. 1 was not the partner of the firm, that would not exonerate them from their liability. Being the vendor and the working partners respectively, both of them were responsible for compliance of the rules.

84. No other stand taken has been taken by the defence hitting on merits of the case.

85. The case in hand would be covered under section 2(ia)(a) as the Dal sold by the accused persons was not of the nature, substance or quality which it purported and represented to be, under Section 2(ia)(j) as there is presence of colour which is not permitted in this article and under section 2(ia)(m) of PFA Act as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited. However, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was affecting injuriously its nature, substance or quality thereof so as to make out violation of section 2(ia)(b). Violation of section 2(ia)(j) is punishable under section 16(1A) and violation of section 2(ia)(a) and (m) is punishable under section 16(i)(a) of PFA Act.

CC No. 148/03 Page 49 of 50

But being graver offence, their conviction can be under section 16(1A) of PFA Act.

86. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of all the accused persons beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 had sold and accused no. 2 to 5 had sold through accused no. 1 adulterated food in violation of section 2(ia)(a), (j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, and have committed the offence punishable under section 7/16(1A) of PFA Act.

87. Having said so, the accused no. 1 to 5 are held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.

88. Let the matter be listed for arguments on sentence.

Announced in the open court this 06th day of January 2017 ASHU GARG ACMM-II (New Delhi), PHC CC No. 148/03 Page 50 of 50

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

In Re vs A-1) Pradeep Sharma on 6 January, 2017