Delhi District Court
Da vs . Vinod Gupta Page 1/28 on 1 February, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 92/99
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Vinod Gupta S/o Sh. Radhey Shyam Gupta,
M/s Gupta Provision Store
D/154, Laxmi Nagar, Delhi. ...........Vendor
Serial number of the case : 92/99/14
Date of the commission of the offence : 11/01/99
Date of filing of the complaint : 09/07/99
Name of the Complainant : Sh. Pramod Kothekar Food
Inspector
Offence complained of or proved : Section 2(ia)(a)(m) and 2(ix)(h) of
PFA Act, 1954 which is punishable
u/s 16 (1) (a) of PFA Act 1954 r/w
Section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 27.01.2016
Judgment announced on : 01.02.2016
CC No. 92/99
DA Vs. Vinod Gupta Page 1/28
Brief facts of the case
1.In brief the case of the prosecution is that on 11.01.1999 at about 04:15 am, Food Inspector S. P. Singh under the supervision and directions of SDM/LHA Sh. Sanjeev Kumarj visited the premises of M/s Gupta Provision Store, D/154, Laxmi Nagar, Delhi where accused Vinod Gupta who was the vendor was found present conducting the business of sale of various food articles including Mustard Oil, for sale for human consumption and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) the Food Inspector collected/ purchased the sample of Mustard Oil.
2. During the course of investigation it was revealed that Sh. Vinod Gupta S/o Sh. Radhey Shyam is the vendor and also incharge & responsible for conducting the day to day business of the firm i.e M/s Gupta Provision Store, D/154, Laxmi Nagar, Delhi. The vendor did not disclose the particulars of the supplier and particulars of the manufacturing concern i.e M/s Krishna Oil Mills,
3. It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was not conforming to the standards laid down under item no. A.17.06. Of appendix 'B' of PFA Rules, 1955 because Iodine value was more than the maximum prescribed limit of 112 and Saponification value was more than the maximum prescribed limit of 177. B.T.T was also less than the minimum prescribed limit of 23 degree Celsius. Accordingly after obtaining the necessary Sanction/Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (i) (a) (b) (c) (m) of PFA Act 1954 which is punishable under section 16 (1) (a) read with Sec. 7 of the PFA CC No. 92/99 DA Vs. Vinod Gupta Page 2/28 Act, 1954 and violation of Section 14A which is punishable u/s 16(1C) of the PFA Act.
4. After the complaint was filed, accused was summoned vide order dated 09.07.1999. The accused after filing his appearance moved an application under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory and consequent thereto second counterpart of the sample as per the choice of the accused was sent to Director, CFL (Calcutta) for its analysis vide orders dated 04.08.1999. The Director, CFL after analysing the sample opined vide its Certificate dated 02.09.1999 that "the sample of Mustard Oil contravenes Rule 32 (e) of PFA Rules & is adulterated". The Director so opined as the sample was not conforming to the standards laid down under item no. A.17.06. Of appendix 'B' of PFA Rules, 1955 because Iodine value was more than the maximum prescribed limit of 112 and Saponification value was more than the maximum prescribed limit of
177. B.T.T was also less thatn the minimum prescribed limit of 23 degree Celsius.
5. Notice for violation of provision of Section 2(ia)(a)(m), 2(ix)(h) of PFA Act, and Rule 32(e) of PFA Rules which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act. was framed against the accused vide order dated 29.05.2000 to which accused pleaded not guilty and claimed trial.
6. Statement of accused Vinod Gupta U/s 313 Cr. P.C. was recorded on 06.08.2013 wherein accused claimed himself to be innocent. Despite opportunity, accused did not lead any defence evidence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. Pramod Kothekar deposed that on 11.01.1999 he along with CC No. 92/99 DA Vs. Vinod Gupta Page 3/28 FI S. P. Sing under the supervision and direction of Sh. Sanjeev Kumar SDM/HA went to M/s Gupta Provision tore, D/154, Laxmi Nagar, Delhi where accused Vinod Gupta was found conducting the business of the food articles in the said shop including "Mustard Oil". He deposed that he and LHA disclosed their identity and intention for taking the sample to which accused agreed. He deposed that 3 X ½ litre of Mustard Oil (ready for sale) was taken as such in original sealed bottle having identical label declaration as reproduced in Form VI. He deposed that the sample was taken at 04:15 pm. He deposed that he tried his best to procure some public witness but as none agreed on his request before taking the sample FI S. P. Singh agreed and joined as witness in the sample proceedings. He deposed that he divided the sample into three equal parts. He deposed that then each original sample bottle containing the sample of Mustard Oil were separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that the vendor signatures were obtained on LHA Slip bearing his number and signature and the wrapper of the sample bottles in such a manner that a portion of his signature were on the wrapper as well as on the LHA Slip. He deposed that Rs. 102/ was given to the accused towards the sample price vide vendor receipt Ex. PW1/A. He deposed that Notice in Form VI Ex. PW1/B was given to the accused with his endorsement at portion A to A bearing his signature at point A. He deposed that Panchnama Ex. PW1/C was prepared. He deposed that all these documents Ex. PW1/A to Ex. PW1/C was read over and explained to the accused in Hindi and after understanding the same accused signed at point A, he signed at point C and the witness signed at point B, respectively. He deposed that the cone counter part of the sample was deposited in intact condition with the PA on 12.01.1999 vide receipt Ex. PW1/D along with one copy of Memo in form VII and another copy of Memo Form VII in a separately sealed envelope. He deposed that the remaining two counter parts CC No. 92/99 DA Vs. Vinod Gupta Page 4/28 of sample in intact condition along with two copies of Memo of Form VII in a sealed packet were deposited on 12.01.1999 with LHA vide receipt Ex. PW1/E bearing his signature at point A and the signature of the LHA vide receipt Ex. PW1/E bearing his signature at point A and the signature of the LHA at point B, with the intimation that one counter part of the sample in intact condition has already been deposited with the PA. He deposed that all the copies of memo of Form VII were marked with the impression of seal which was used to seal the sample counter parts. He deposed that on receipt of the PA Report Ex. PW1/F according to which sample was not conforming to standard laid down under item no. A.17.06 of appendix 'B' of PFA Rules, 1955 because Iodine value is more than the maximum prescribed limit of 112, Saponification value is more than the maximum prescribed limit of 177 and B.T.T is also also less than the prescribed limit of 23 degree Celsius and the batch no. 01 (not cleared) as mentioned therein at portion X and Y. He deposed that he further investigated and sent a letter to STO, Ward No. 81, to seek information with regard to M/s Gupta Provision Store Ex. PW1/H and as per its reply at portion A, it is not registered. He deposed that a letter by Director PFA Sh. Ahok Bakshi was written to the CMO Panipat for seeking the information of M/s Krishna Oil Mills, Panipat Haryana and as per its reply at portion A the said name is fictitious and does not exist. He deposed that then he met the concerned Sarpanch and he also gave in writing Ex. PW1/K the same information as CMO Panipat with regard to Krishna Oil Mills Panipat, which bears his signatures at point A. He deposed that he went to address of Krishna Oil Mills where a Kohlu was running and his owner Virender Kumar gave in writing that he never sells the oil in bottles and his statement is Ex. PW1/J bearing his signature at point A. He deposed that after completion of investigation, the complete case file along with all the statutory CC No. 92/99 DA Vs. Vinod Gupta Page 5/28 documents were sent to the Director Sh. Ashok Bakshi through the SDM/LHA who after going through the entire case file applied his mind and gave the sanction for prosecution Ex. PW1/L against the accused persons. He deposed that he filed the complaint Ex. PW1/M bearing his signature on each page at point A. He deposed that intimation letter Ex.PW1/N bearing the signature of the LHA at point A was sent along with the PA report by registered post to the accused person through LHA, which were not received back undelivered. He deposed that the photocopy of the Postal Registration Receipt is Ex. PW1/O bearing the relevant entry at portion A.
8. During his cross examination he stated that there was no separate seal on the bottles but the same were sealed in original condition. He stated that no batch number was given on the label of the sample commodity. He stated that label declaration was reproduced on the Notice in Form VI. He stated that at the time of sampling, vendor disclosed that the bottles were of same lot. He stated that as per the label of the sample commodity, same was manufactured by Krishna Oil Mill, Panipat, Haryana. He denied the suggestion that all the three sample bottles were not of same lot. He denied the suggestion that he lifted the sample of three different lot. He denied the suggestion that the proper method of lifting the sample was to open the three bottles and then mixed. He stated that he does not know about the saponification value and iodine value. He admitted that as per the report of the Director, CFL, the sample bottles were without batch/lot number. He stated that he cannot say if saponification value and iodine value of mustard oil increases with the lapse of time. He denied the suggestion that he lifted wrong method of sampling.
9. PW2 Sh. S. P. Singh, Food Inspector and PW3 Sh. Sanjeev Kumar, the then SDM/LHA , deposed on the same lines as deposed by PW1 in his examination in CC No. 92/99 DA Vs. Vinod Gupta Page 6/28 chief.
10. This so far is the evidence in the matter.
11. The star / the material witness of the prosecution i.e. Food Inspector Dr. Pramod Kothekat proved the sample proceedings dated 11.1.1999 as were conducted in the presence of SDM/LHA. From the deposition of the prosecution witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution, the admissions made by the accused persons during their examination under Section 313 Cr. P.C. as recorded before the Ld. Predecessor of this Court on 06.08.2013 which are admissible in evidence against the accused persons in view of sub clause (4) of Section 313 Cr. P C, no doubt remains that the sample of Mustard Oil was indeed collected by the Food Inspector for analysis from premises of M/s Gupta Provision Store of which accused Vinod Gupta is the vendor and incharge of and responsible for conduct of day to day business of the above said M/S Gupta Provision Store.
12. It is argued by Ld. Counsel for the accused that the prosecution case is full of loopholes. The prosecution has not examined any public witness in support of its case, there is wide divergence in the report of Public Analyst and Certificate of Director CFL and proper sample procedure has not been followed for lifting the sample. It is argued that the Food Inspector wrongly invoked Rule 22 of PFA Rules for lifting the sample. It is also submitted that at the time of lifting of policy, there was policy bearing No. F6 (228)/85/ENF/PFA Dated 29.09.1985 which was modified vide order No. 5/07 Dated 14.09.2007, for giving benefit of written warning to the first time CC No. 92/99 DA Vs. Vinod Gupta Page 7/28 offender for violation of Rule 32 of PFA Rules. The accused was denied the said benefit without plausible reason despite being the first time offender. The Ld. Counsel for the accused has also relied on judgment of Dwarka Nath & Anr. Vs. MCD AIR 1971 SC 1844 to contend that the accused cannot be held guilty for violation of Rule 32 (e) of PFA Rules. The prosecution was bad in law. Reliance is placed on judgment of Hon'ble Apex Court in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR Crl.
13. On the other hand, Ld. SPP for the complainant has argued that the complainant has fully succeeded in brining home the guilt of accused person beyond reasonable doubt.
14. I have heard the arguments advanced at bar by Ld. Defence Counsel as also Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
Reasons For Decision Public Witness
15. At the outset, it was argued that that no public witness was joined by the FI during the alleged sample proceedings which is in violation of section 10 (7) and therefore the accused is entitled to be acquitted on this ground alone. It was argued that the FI despite the mandate of section 10 (7) did not deliberately join any public person i.e. customers, neighbourers etc. in the sample proceedings and hence no CC No. 92/99 DA Vs. Vinod Gupta Page 8/28 reliance can be placed on the alleged sample proceedings.
16. However, I do not agree with the contentions raised by the Ld. Defence counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC (SC) 483 has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties............ Similarly in Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. Further reliance may be placed upon the law laid down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339, Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs. Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs. Narayanasamy 1997 (2) FAC 203.
17. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1) FAC 230, the Hon. Apex Court held as under: ".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an alternative contention that there was non compliance with Section 10(7) of the Act inasmuch as the Food Inspector failed to procure the signatures of independent persons when he took the sample. The said contention is not CC No. 92/99 DA Vs. Vinod Gupta Page 9/28 available to the defence as the Food Inspector has given evidence that he really called the persons who were present in the canteen to affix their signatures after witnessing the sample but none of them obliged. A three Judge Bench of this Court has laid down the legal position concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases 491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud, J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.".
18. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon. Apex Court held as under : ".......Corroboration of the statement of main witness is not the requirement of law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of PW1 as is evident from the seizure memo and the receipt obtained for sale besides the report of the public analyst. The mere fact that the other witnesses cited by the prosecution had not supported the case of the prosecution was no ground to reject the testimony of PW1. In this case courts below have adopted a hyper technical approach to hold that there was no corroboration because there were minor discrepancies in the statement of PW1 and the other witnesses. It is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. If the statement of PW1 itself inspired CC No. 92/99 DA Vs. Vinod Gupta Page 10/28 confidence and the sample was found to be adulterated, the courts below should have returned a finding on merits and not to dismiss the complaint allegedly on the ground of non corroboration of the testimony of PW1.
19. State Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspicious nor be rejected on that ground........... His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on it to prove the prosecution case.".
20. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
21. The prosecution witnesses PW1 to PW3 have consistently deposed that Food Inspector Dr. Pramod Kothekar tried his best to involve public witnesses in the sample proceedings but none agreed. It is a known fact that the general public is wary of being involved in criminal investigations/ implementation of administrative powers/enforcement of law seeking to curb antisocial evils. Normally, association of public witnesses is not possible as public is not prepared to suffer any discomfort/inconvenience for the sake of society. The prosecution story, which is CC No. 92/99 DA Vs. Vinod Gupta Page 11/28 otherwise credible and trustworthy, cannot be doubted merely on account of absence of public witnesses. In the present case lifting of sample is admitted/unequivocally proved and there is nothing on record to doubt prosecution witnesses. The defence has brought nothing on record to show the motive of false implication of accused by the Food Inspector and the SDM. The prosecution story inspires confidence and there is no reason to disbelieve prosecution witnesses.
Variation in Report of Public Analyst and Certificate of Director CFL
22. The Ld. Counsel for accused has vehemently argued that solely on account of the variation in the report of Public Analyst and Certificate of Director, CFL, the accused are entitled to benefit of doubt and acquittal as held in Kanshi Nath Vs. State 2005 (2) FAC 219, I do not agree with the said argument.
23. In the present case, there is consistent report of Public Analyst and Certificate of Director, CFL regarding the Iodine value and Saponification value being found in the sample commodity more than the standards laid down in PFA Rules. The PA Report found the Iodine value to be 117.33 and Saponification value to be 180.17. The Director CFL found the Iodine value to be 118 and Saponification value as 186.05. The prescribed uper limit of Iodine value is 112 and Saphonification value is 177 for sample commodity as per item no. A.17.06 of Appendix "B" of PFA Rules.
24. Moreover, the said argument is untenable on account of Section 13(3) of PFA Act which reads as under:
"13.............
(3) The certificate issued by the Director of Central Food CC No. 92/99 DA Vs. Vinod Gupta Page 12/28 Laboratory (under subsection 2B) shall supersede the report given by the public analyst under subsection (1)........."
25. It is no gainsaying that there is a settled law that once the appellant exercise the right U/Sec. 13 (2) of the Act, the Certificate of the Director, CFL stands completely wiped out by the certificate of the Director, CFL, however, the accused can still show that in the facts of the given case and of concrete objective grounds that the sample sent to the Director, CFL, was not a representative sample as held in number of cases. The same proposition of law was also laid down by our own Hon'ble Delhi High Court in case of MCD Vs. Bishan Sarup, Crl. Appl. No. 48 D of 1972 FAC 273. It is observed as under in the said case :
"1.The consideration of the timelapse between the date of the taking of the sample, the launching of the prosecution and the date when the sample was sent to the Director of Central Food Laboratory is relevant only for this purpose. Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to subsection (5) of Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated therein. The presumption attaching to the certificate again is only in regard to what is stated in it as to the 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 the record the sample sent for analysis to the Director could not be taken to be a representative sample of the article of food from which it was taken and if this contention is found to be correct, conviction based on the certificate will not be sustainable. Reference on this aspect of the question may be made to the observations of the Division Bench of the Punjab High Court in Municipal Corporation of Delhi Vs. Nirajan Kumar & Others (2).
"We would like to clarify that finality and conclusiveness CC No. 92/99 DA Vs. Vinod Gupta Page 13/28 has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report, of the Central Food Laboratory was due to certain factors for which an accused could not be held responsible. In short, the finality and conclusiveness are only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed."
11. The same view was taken by the Division Bench of Gujarat High Court in Mohanlal Chhaganlal Mithaiwala V. Vipanchandar R. Gandhi and another (3) where Shelat, J. (as he then was) speaking for the Court observed as under : "The certificate of the Director of Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test : Under the proviso to section 13 (5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, chemical or otherwise by the ingredients of the ghee used in the preparation being mixed with the other facts, or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate CC No. 92/99 DA Vs. Vinod Gupta Page 14/28 of the Director though made final and conclusive under the proviso."
26. I do not find any substance in the submission of Ld. Counsel for accused that merely on account of divergence in the Certificate of the Director, CFL and Public Analyst, it is to be presumed that the sample was not representative. The Hon'ble High Court of Delhi in the case of Bishan Sarup (supra) clearly laid down that the accused has to prove a concrete objective ground to establish that the sample sent to Public Analyst and Director CFL was not a representative sample. The contradiction in two reports is not such a concrete objective ground in itself to infer that sample was not representative sample. The accused has to show something more for proving that the representative sample was not taken. This proposition finds strength from the following judgments ;
A) D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the Certificate of the Director and the PA. B) The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under :
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst.
That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the CC No. 92/99 DA Vs. Vinod Gupta Page 15/28 Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
C) In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, CC No. 92/99 DA Vs. Vinod Gupta Page 16/28 nonexisting report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
D) In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under: :
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
E) In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under :
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."
F) In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the CC No. 92/99 DA Vs. Vinod Gupta Page 17/28 Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
G) In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division
Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under sub section (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to sub section (5) is final and conclusive evidence of the facts stated therein." H) In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
I) In its latest judgment titled as Food Inspector, Department of PFA, Govt. of CC No. 92/99 DA Vs. Vinod Gupta Page 18/28 NCT of Delhi, Vs. Kailash Chand Dated 31.08.2015, the Hon'ble Apex Court remanded back the appeal/ file to the Hon'ble High Court of Delhi against acquittal order passed by the Hon'ble High Court of Delhi in sample commodity, where, the accused was given the benefit of doubt because of variation in report of Public Analyst and Director CFL in moisture, damage grain and weevilled, beyond permissible limit of 0.3%. Taking note of Section 13 (3) of PFA Act providing that the report of Director CFL shall supercede the report given by Public Analyst and Rules 23, 28 & 29 of PFA Rules, which completely prohibits addition of synthetic red colour, the Hon'ble Supreme Court remanded the matter to Hon'ble High Court of Delhi to consider the case in light of the statutory provision and the provisions enshrined under PFA Rules.
27. So, in view of the law discussed above, the prosecution's case cannot be seen with doubt only because of some variation in the report of two experts i.e P. A and Director, CFL regarding the value of Iodine and Saponification found in sample commodity. The Iodine value and Saponification value was found in the sample commodity more than the standards laid down in PFA Rules as per report of Public Analyst as well as Certificate of Director, CFL. Even otherwise,the law gives supremacy and primacy to report of Director,CFL and the report of Public Analyst get effaced from record on receiving report of Director,CFL. Then, merely on account of some divergence in report of well as Public Analyst and Director, CFL, it cannot be presumed that the sample sent to Director, CFL is not representative. Such an inference is not in consonance with mandate of statue as well as law laid down by Hon'ble Apex Court.
28. Moreover, it can not be the intention of the legislature that the person who has CC No. 92/99 DA Vs. Vinod Gupta Page 19/28 been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 Crl. LJ 1527 the Hon'ble Apex Court observed as under : "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Violation of Rule 32 (e) of PFA Rules, 1955
29. It is urged by Ld. Counsel for the accused that Rule 32(e) of PFA Rules was beyond the power of the Central Government u/s 23 of the Act to frame Rules and is invalid. He has relied on Dwarka Nath & Anr (supra) to support his submissions. I have gone through the said judgment of Hon'ble Supreme Court meticulously. The Hon'ble Supreme Court vide judgment of Dwarka Nath (supra) held Rule 32(e) requiring batch number or code number on label of containers to be ultra virus the rule making power of the Central Government and declared it to be invalid. So, the CC No. 92/99 DA Vs. Vinod Gupta Page 20/28 accused was not obliged to mention the Batch Number or Code Number on label of container/s on account of the aforesaid judgment. In view of the same, the accused is acquitted for violation of Rule 32(e) of PFA Rules 1955 which is punishable u/s 16(1) (a) read with Section 7 of the PFA Act.
Prosecution bad in law
30. It was also one of the argument of Ld. Defence counsel that the prosecution itself was bad in law. It was argued that the prosecution was launched on 12.07.1999 on the basis of the Public Analyst's report dated 29.01.1999. The Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because though Section 23 (which empowers the Central Government to make rules to carry out the provisions of the Act) was amended w.e.f. 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 however the methods of analysis to be adopted were specified for the first time only w.e.f. 25.03.2008 after clause 9 was inserted in Rule 4. It was argued that therefore 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 for that matter the Director, CFL could adopt for analysis of the sampled product. Reliance is placed upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal),
31. However I do not agree with the contentions of Ld. Defence counsel. I CC No. 92/99 DA Vs. Vinod Gupta Page 21/28 have perused the provisions of the Prevention of Food Adulteration Act 1954 as well as Food Adulteration Rules 1955.
32. As per Section 13 (2) of the Act the Public Analyst's report can be challenged by getting the counterpart of the sample analyzed by the Central Food Laboratory. The analysis at the Central food Laboratory is done by the Director whose report has been made conclusive and final as far as the results of the analysis is concerned. {Section 13 (3) }
33. 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.
34. As per Rule 3 (a) of PFA Rules one of the most important and primary function of the Central Food Laboratory is to analyze the sample of food and give a certificate of analysis accordingly. As per Rule 3 (2) CFL, Pune was designated/ specified laboratory at the relevant time to analyze the sample of food article lifted from Delhi. Prior to that CFL, Calcutta was assigned the said function/duty and presently CFL, Mysore is doing the same.
35. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same read 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 CC No. 92/99 DA Vs. Vinod Gupta Page 22/28 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 subcommittee 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 Subcommittee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
36. The 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 i.e. 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.
37. Therefore on the day of analysis of the sample in question the Public Analyst CC No. 92/99 DA Vs. Vinod Gupta Page 23/28 was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. Furthermore on the day of analysis of the counterpart of the sample in question CFL, Pune was a designated/ specified laboratory as per the Act and Rules appended therein to analyze the sample in question 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.
38. As far as Pepsico's case (supra) is concerned the judgment 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 judgment relied upon by the Ld. Defence counsel read 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(1A)(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(1A)(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 CC No. 92/99 DA Vs. Vinod Gupta Page 24/28 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."
39. It is to be seen that in that case as observed in para 34 even the laboratories where the tests were to be performed were not specified. But as is the case herein the analysis was done by CFL, Pune which was a specified/ designated laboratory to analyze the sample as per Rule 3 r/w section 13 of the Act. Moreover in Pepsico's case it was held that the percentage of Carbofuran detected in the sample was within the tolerance limits prescribed for sweetened carbonated water.
40. Regarding the pick and choose method as discussed above the Central Committee for Food Standards, constituted by the Central Government as per Section 3 of the PFA Act to give effect to the scheme and purpose of the Act, considered this aspect and directed and specified the methods to be adopted uniformally for analysis of the food product to remove the anomaly which may occur due to use of different methods by different experts in respect of the same food product. These adopted methods were used prior to their being specifically notified in Rule 4 (9) which came into force w.e.f. 2008 and which had led to the adulterators being prosecuted and punished even by the Hon'ble Apex Court in numerous rulings upto the year 2008 also.
Bad Sampling Procedure
41. It is argued by Ld. Counsel for the accused that the proper method for sampling was not followed. As per Notice, Form VI, no batch number was given on CC No. 92/99 DA Vs. Vinod Gupta Page 25/28 label of the sample commodity. So the FI should have opened the three sample bottles and mixed its content for getting a representative sample. It was not right for the FI to invoke Rule 22 (A) of the PFA Rules. In order to appreciate the contention of Ld. Counsel for accused, it shall be useful to refer to Rule 22 (A) of PFA Rules. It provides:
"22A. Contents of one or more similar sealed containers having identical labels to constitute the quantity of a food sample. Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in rule 22 shall be treated to be a part of the sample."
42. As per rule 22A of PFA Rules, the sealed containers are treated to be a part of sample which means that the sealed container as such has to be sent to Public Analyst for analysis. In the present case, as per the prosecution case as reflected in testimony of PW's, the bottles of mustard oil were in original sealed condition having identical label declaration. The said identical label declaration bears reproduction on Form Notice VI. The FI also disclosed that the three sample bottles were of same lot. I do not agree with the contention of Ld. Counsel that merely because the batch no. was not given on the label, the sample bottles cannot be considered as having identical label declaration. As discussed earlier, the Hon'ble apex court in judgment of Dwarka Nath(supra) held that the rule 32(e) of PFA rules requiring batch number or code number on label of containers to be ultra virus the rule making power of the Central Government, and declared it to be invalid. So, once there is no obligation to declare batch number or code number on label of sealed container, the absence of batch number cannot be made a ground to contend that the sealed container having no batch number are not of same lot. The FI clearly stated in his testimony that all the CC No. 92/99 DA Vs. Vinod Gupta Page 26/28 sample bottles bear identical label declaration and were of same lot. So, the FI properly invoked Rule 22A in the present case and rightly sent the original sealed sample bottle to PA for analysis. The judgment of State of Punjab vs Daulat Ram Criminal Appeal no. 14DBA of 1985 decided on 16.7.11991 relied on by Ld. Counsel for defence is distinguishable on facts. In the said case, the case of complainant/prosecution was not that the contents of the bottles were common. So, it is not applicable to the present case.
Benefit of Policy
43. As regards violation of Rule 32 of the PFA Rules 1955, it is stated by counsel for accused that at the time of taking sample in the present case, as per policy no. F6 (228)/85/ENF/PFA dated 20.09.1985 no prosecution shall be launched u/s 7 and 16 of the PFA Act and offender shall be let off for the first offence after issuing warning for first violation of Rule 32 of the PFA Rules 1955. In support of his submissions, Ld. Counsel for accused has placed on record judgment of M/s Pepsi Food P. Ltd and another Vs State 2012(2) FAC 428 and Rama Hazari vs State Crl. M.C 1142/2010 & Crl. M.A 4059/2010.
44. I do not agree with argument of Ld. Counsel for the accused. The said policy was applicable only in cases where the sample does not confirm to Rule 32 of PFA Rules 1955 which pertains to the particulars of the labelling on the sealed packet or container. However, it had no applicability in cases where the contents of the sealed packet or container are not conforming to the prescribed standard and hence are also adulterated besides violating Rule 32 of PFA Rules 1955. In the present case, the sample was not only found deficient with regard to Rule 32 of PFA Rules 1955 CC No. 92/99 DA Vs. Vinod Gupta Page 27/28 but was also adulterated. So the accused is not entitled to benefit of policy no. F6 (228)/85/ENF/PFA dated 20.09.1985 in the present case.
Violation of Section 2 (ix) (h) of PFA Act
45. As per the label declaration reproduced on form Notice VI, the manufacturer of the sample commodity is Krishna Oil Mills. The testimony of FI Dr. Pramod khotekar and documents proved by prosecution Ex PW 1/J and Ex PW 1/K leave no doubt that the accused had declared the fictitious company M/s Krishna Oil Mills, Panipat Haryana as manufacturer of sample commodity.
Decision
46. In view of the aforesaid reasons, the prosecution has established the guilt of accused beyond reasonable doubt and the accused Vinod Gupta is convicted for violation of Section 2(ia)(a),(m) and 2(ix)(h) of PFA Act, 1954 which is punishable u/s 16 (1) (a) of PFA Act 1954 r/w Section 7 of the PFA Act.
Announced in the open Court [PRIYA MAHENDRA] on 01.02.2016 ACMMII/ New Delhi CC No. 92/99 DA Vs. Vinod Gupta Page 28/28