Delhi District Court
Da vs . Saurabh Garg Page 1 Of 52 on 11 February, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 273/03
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. Saurabh Garg S/o Sh. Kailash Chander Garg
M/s Harsh Dairy,
27/1, Vishwas Nagar, Delhi32
............VendorCumProprietor
Serial number of the case : 273/03
Date of the commission of the offence : 20.01.2003
Date of filing of the complaint : 09.07.2003
Name of the Complainant : Sh. S. B. Sharma Food Inspector
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
Section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
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Arguments heard on : 11.02.2015
Judgment announced on : 11.02.2015
Brief facts of the case
1. In brief the case of the prosecution is that on 20.01.2003 at about 07.30
p.m. Food Inspector S. B. Sharma and FI Ranjeet Singh under the supervision and
directions of SDM / LHA Sh. S. C. Tyagi visited the premises of M/s Harsh Dairy, 27/1,
Vishwas Nagar, Sahadara, Delhi32, where accused Saurabh Garg who was the
vendor was found present conducting the business of sale of various dairy articles
including Toned Milk for sale for human consumption and in compliance of the
provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of
Food Adulteration Rules, 1955, the Food Inspector collected / purchased the sample
of Toned Milk.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was not
conforming to standard because milk solids not fat was less than the prescribed
minimum limit of 8.5% and accordingly after obtaining the necessary Sanction /
Consent under Section 20 of the Act the present complaint was filed for violation of
provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w
Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
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dated 09.07.2003.
4. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act
1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the
accused vide order dated 21.12.2009 to which accused pleaded not guilty and claimed
trial.
5. The complainant/prosecution examined three witnesses i.e. FI. S. B.
Sharma as PW1, Sh. S. C. Tyagi the then SDM/LHA as PW2 and FI Ranjeet Singh as
PW3 and thereafter PE was closed vide orders dated 17.11.2011.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 04.02.2012
wherein the accused claimed himself to be innocent. Despite opportunity given
accused did not examine any witness in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. S. B. Sharma deposed that on 20.01.2003 he along with Sh.
S. C.Tyagi, SDM/LHA and FI Sh. Ranjeet Singh went to M/s Harsh Dairy, 27/1,
Vishwas Nagar, Sahadara, Deli32 where accused Saurabh Garg was found
conducing the business of Toned Milk kept there for sale for human consumption. He
deposed that they disclosed their identity and intention for purchasing milk (ready for
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sale) for analysis to which accused agreed. He deposed that he tried to join some
public witnesses in the sample proceedings by requesting passerby and neighborers
but as none came forward, on his request FI Sh. Ranjeet Singh agreed and joined as a
witness. He deposed that the sample of approximately 750 ml of Toned Milk was
taken from an open Drum/Container bearing no label declaration but disclosed by the
vendor, under the supervisions/directions of Sh. LHA Sh. S.C. Tyagi after proper
homogenization/proper mixing with the help of two clean and dry jugs by pouring and
repouring each other for about 810 minutes. He deposed that the sample was taken
under the direction and supervision of SDM/LHA at about 07.30 pm. He deposed that
he divided the sample then and there into three equal parts by putting them into three
separate clean and dry bottles. He deposed that 20 drops of Formalin were added to
each sample bottles and shaken properly. He deposed that each bottle containing the
sample was separately packed, marked, fastened and sealed according to PFA Act
and Rules. He deposed that the sample price Rs. 9/ was accepted by the accused.
He deposed that then vendor receipt Ex. PW1/A was prepared. He deposed that
Notice in Form VI Ex. PW1/B was prepared and a copy was given to the accused as
per his endorsement at portion A to A bearing his signature at point A. He deposed
that Panchnama Ex.PW1/C was prepared. He deposed that the vendor signatures
were obtained on the LHA Slip and on the wrappers of the sample bottles in such a
manner that a portion of his signature was appearing on the LHA Slip as well as on
the wrapper of the sample bottles. He deposed that the documents were read over
and explained to the accused in Hindi and after understanding the same, accused
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signed at point A and the witness signed at point B and he signed at point C. He
deposed that one counter part of the sample was deposited in intact condition with the
PA on 21.01.2003 vide receipt Ex. PW1/D along with one copy of memo in Form VII
and another copy of Memo of Form VII in a separately sealed envelope. He deposed
that the remaining two counter parts of sample in intact condition along with two
copies of memo of Form VII in a sealed packet were deposited on 21.01.2003 with the
LHA vide receipt Ex. PW1/E bearing his signature at point A and that of 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 PA Report Ex. PW1/F was received according to which
sample was found not conforming to the standard because milk solids not fat was less
then the prescribed minimum limit of 8.5% (5.98%), as mentioned therein at portion X.
He deposed that during investigation, he sent a letter to Sales Tax Department, Ward
No. 82 of Ex. PW1/G and reply was received at portion A according to which firm was
not registered with them. He deposed that accused gave his statement Ex. PW1/H
bearing his signature at point A along with the photocopy of MTNL Bill mark A and the
photocopy of the MCD Form G mark B. He deposed that the accused was found to
be the vendor cum proprietor of M/s Harsh Dairy. He deposed that after completion of
investigation, the complete case file along with all the statutory documents were sent
to the Director Sh. S. L. Bansal through the SDM/LHA who after going through the
entire case file, applied his mind and gave the sanction for prosecution Ex. PW1/J
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against the accused who was found to be the vendor cum proprietor of the said firm.
He deposed that complaint Ex. PW1/K was filed in Court by him. He deposed that the
intimation letter Ex.PW1/L along with the PA report was got sent to the accused by
registered post through the SDM/LHA which bears his signatures at point A. He
deposed that the postal registration receipt copy is Ex. PW1/M bearing the relevant
entry at portion A.
8. During his cross examination he stated that he reached his office at
about 09:30 am. He stated that there was no complaint against the vendor and they
lifted the sample in a routine manner. He stated that they left from the office of
SDM/LHA at about 06:45 pm. He stated that SDM/LHA Sh. S. C. Tyagi, FI Ranjeet
Sign and Field Assistant accompanied him to the spot. He stated that they visited the
spot in the official vehicle of the SDM/LHA. He stated that they reached the spot at
about 07:15 pm. He stated that the distance between the office of the SDM/LHA and
the spot is about 10 km. He stated that no customer was present when they reached
the spot. He stated that firstly, they disclosed their identity and then lifted the sample.
He stated that Vendor's Receipt was signed by the accused at the spot and the same
was explained to him. He stated that the sample price was paid by him and later on
got it reimbursed from the department. He stated that there are some dairies at the
distance but not near the shop of the vendor. He stated that he does not remember
whether any dairy in the name and style of 'Radha Dairy' was situated near the shop
of the vendor. He stated that they remained at the spot for about 45 minutes. He
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stated that no customers came during the sample proceedings. He stated that he
tried to join some public witnesses but none agreed. He stated that neighboring
shopkeepers were also asked to join the sample proceedings but they refused. He
denied the suggestion that accused was not proprietor of the shop. He stated that
sample was taken into three clean and dry glass bottles which were issued from the
department. He stated that sample was in his custody till the same was deposited
with the PA and the LHA i.e next working day. He stated that documents were
prepared at the spot. He denied the suggestion that documents were not read over
and explained to the accused. He stated that sample was personally deposited by
him with the office of Public analyst on the next working day. He denied the
suggestion that he was deposing falsely. He denied the suggestion that no sample
was taken from the accused.
9. PW2 Sh. S. C. Tyagi, the then SDM/LHA and PW3 FI Ranjeet Singh
deposed on the same lines as deposed by PW1 in his examination in chief.
10. This so far is the prosecution evidence in the matter.
11. I have heard the arguments advanced at bar by the Ld. defence counsel
as also the Ld. SPP for complainant. I have also carefully gone through the evidence
recorded in the matter and perused the documents placed on record by the
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prosecution in this case.
12. From the deposition of the prosecution witnesses especially PW1 Food
Inspector S.B. Sharma whose testimony was duly corroborated by remaining
prosecution witnesses i.e. SDM/LHA and other Food Inspector coupled with
documents Ex. PW1/ A to C i.e. Vendor's receipt, Notice Form VI and panchnama
which bears the signature of the accused as well as the admissions made by the
accused during his examination under Section 313 Cr. P.C as recorded before the Ld.
Predecessor of this Court on 04.02.2012 which are admissible in evidence against the
accused in view of sub clause (4) of Section 313 Cr. P.C as well as the law laid down
in Benny Thomas Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh
V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of
Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam
2006 Cr. L.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.),
Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney
Disuja V. State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR
1978 SC 315 coupled with document Ex. PW1/H, which is in the handwriting of the
accused and bears his signatures, no doubt remains that the sample of Toned Milk
was indeed collected by the Food Inspector for analysis from M/s Harsh Dairy of which
the accused is the proprietor cum vendor.
13. During the course of arguments, Ld. defence counsel appearing for
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accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
14. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings.
15. 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
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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.
16. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
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obligation to cite independent witnesses.".
17. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
18. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
19. It is writ large from the deposition of PW1, PW2 and PW3 that FI S.B.
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Sharma made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands admitted/unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14
20. It was one of the arguments that there was violation of Rule 14 of the
Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued
that at the time when the sample was collected, the Food Inspector failed to clean the
sample bottles, the measure and the steel jugs used for taking the sample. It was
argued that Rule 14 of the Act is mandatory and not directory and in case there is no
strict adherence to Rule 14, benefit has to be given to the accused. Reliance was
placed on the law laid down in Sardarmal Jain Vs. Nagar Nigam & Anr 1996 (2)
203, Vasantry Jai Kham Khati Vs. State of Gujarat 2004 FAJ 148, State of
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Gujarat Vs. Kamlesh Bhai Ram Bhai 2005 (1) FAC 107 and State Vs. Suresh
Kumar 2010 (2) FAC 204
21. However I differ with the contentions as raised by the Ld. defence
counsel.
22. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that
at the time when the Food Inspector collects the sample, he shall ensure that not only
the container/bottle is clean but it is also dried. Furthermore the container should be
such so as to prevent any leakage, evaporation and in case of dry substance entrance
of moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to make the same. Furthermore he
should sample the article in hygienic conditions. Reliance may be placed upon
Varghese Vs. Food Inspector, 1989(2) FAC 236.
23. I have perused the deposition of the Food Inspector i.e. S.B. Sharma
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who was examined as PW1. The Food Inspector deposed as under:
"........The sample of Approx 750 ml of Toned Milk was taken from an
open Drum/container bearing no label declaration but disclosed by the vendor, under
the supervision/direction of LHA Sh. S.C. Tyagi after proper homogenization/proper
mixing with the help of two clean and dry jugs by poring and reporing each other for
about 810 minutes......I divided the sample then and there into three equal parts by
putting them into three separate clean and dry bottles."
24. During his cross examination he stated as under:
".......Sample was taken into three clean and dry glass bottles which were
issued from the department."
25. During the cross examination of this witness not even a single suggestion
was given that either the sample bottles, the jugs or the measure were not clean and
dry or that there was some liquid in them. Accordingly I find no reasons to agree to
the contentions of Ld. Defence counsel that the sample proceedings were not
conducted in a proper manner.
26. Similarly PW2 the then SDM/LHA Sh. S.C. Tyagi deposed as under:
"........At about 7.30 p.m., FI S.B. Sharma purchased 750 Ml of toned milk
taken from an open drum bearing no label declaration after properly mixing the milk
with the help of clean and dry two jugs by pouring and repouring several times on
payment of Rs. 9/ vide vendor's receipt Ex. PW1/A. F.I. S.B. Sharma divided the
sample then and there into three equal parts by putting them into three separate clean
and dry glass bottles."
27. Similarly no suggestion was given to this witness that the bottles, jugs or
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the measure was not clean or dry or that they were contaminated.
28. PW3 FI Ranjeet Singh deposed as under:
".........Before taking the sample the entire quantity of the sample
commodity was mixed with the help of a Measure, lying in the said Container, by
rotating in all possible directions several times. The so purchased quantity of sample
commodity was put into clean and dry Steel Jug and was again mixed with the help of
another clean and dry Steel Jug by pouring and repouring several times."
29. During his cross examination he stated as under:
"We get the sample bottles from our Department in clean and dry
condition hence, there is no need to check the sample bottles by conducting any
chemical test for ascertaining its clean and dry condition."
30. Hence the prosecution witnesses consistently deposed regarding the
measure, steel jugs as well as the sample bottles being clean and dry. From their
deposition/statement no doubt remains that the sample proceedings were conducted
in a proper manner and that the sample bottles, steel jugs as well as the measure
were clean and dry. I have no reasons to disbelieve them. As discussed above I find
no reasons why the FI or the SDM would falsely implicate the accused that is to say
why they would use contaminated instruments or bottles for sampling. The defence
has failed to prove any motive which could be assigned to the above officials for
falsely implicating the accused. Moreover nothing on record has been proved to the
contrary i.e. the defence has not proved that the Food Inspector did not comply with
the provisions of the Rule 14. Just because the defence is challenging the sampling
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process conducted by the Food Inspector / asserting that Rule 14 was violated is not
sufficient to either disbelieve or throw away / outrightly reject the testimony of the Food
Inspector. I have also gone through Section 114 (e) of the Indian Evidence Act.
31. Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
32. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
33. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a partly alleging
it may prove it. It was observed that, "The Local (Health) Authority is a public official.
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The act of the Local (Health) Authority in despatching a copy of its report of analysis of
a food article with necessary intimation or information is an official act. When the act
has been shown to have been performed, it is open to the court in its discretion to
draw the presumption that the act has been performed regularly. If there is acceptable
evidence to show that the Local (Health Authority) has forwarded the document, by
virtue of illustration (e) to section 114, the court may presume that it was forwarded
regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,
1954 and Rule 9A of the Rules.".
34. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the sample proceedings were duly conducted [Nagar Parishad Alwar Vs.
Ganga Lahiri, 1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985
Cri LJ 46, Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri
LJ (Ker) 1 and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51.].
35. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
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36. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
37. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions."
38. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
39. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has
been held as under:
"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."
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Homogenization / Mixing of Sample.
40. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted which is
itself a violation of Rule 14.
41. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food
Inspector and the other complainant witnesses as discussed above that the sample
was taken after proper homogenization. They proved that the milk was properly mixed
by pouring and repouring the same several times with the help of two jugs. During
the cross examination of the prosecution witnesses not even a single suggestion was
given to either of them that the sample was not lifted after proper mixing/
homogenization accordingly, I have no reasons to disbelieve the Food Inspector or the
other complainant witnesses in this regard.
42. Secondly, there is no requirement either under the Act or the Rules
appended therein to homogenize the sample before lifting it. In 1992(1) FAC 283 it
was observed that there is no requirement either of the provisions of the Prevention of
Food Adulteration Act or the rules framed thereunder that the contents of the foodstuff
should be made homogeneous before the sample is drawn. Similarly in State of
Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Hon. Apex Court observed as
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under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
43. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 9/ to the
accused/vendor towards the purchase of sample commodity. In this regard vendor's
receipt Ex. PW1/A was executed which bears the signature of accused at point A. The
testimony of the Food Inspector has gone unrebutted on this material particular. The
testimony of the other prosecution witnesses which is on the same lines has also
remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The
food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC
(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of
an article of food, which is found to be adulterated, the accused will be guilty of an
offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD
Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court
of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.
CC No. 273/03
DA Vs. Saurabh Garg Page 20 of 52
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice CC No. 273/03 DA Vs. Saurabh Garg Page 21 of 52 cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".
44. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
45. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:
"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred CC No. 273/03 DA Vs. Saurabh Garg Page 22 of 52 before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."
46. In the case at hand from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the toned milk was properly mixed at the time of sampling. Furthermore it has to be remembered that the act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy milk the vendor does not give the milk after mixing the same/rotating it several times in all directions with the help of a measure or plunger in the container in which he has stored the same in his shop. He merely takes out the milk with the help of a measure or any other instrument from top most layer/ by putting the measure in container containing milk and sells it to the customer. Therefore when this is usual mode of selling the milk to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/milk homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. CC No. 273/03 DA Vs. Saurabh Garg Page 23 of 52 PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.
47. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to the accused and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and State Vs. Subhash Chand 2012 (II) JCC 1004.
48. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 09.07.2003 and the next date of hearing before the court was 04.05.2004. On 04.05.2004 the accused remained absent despite service of process and his warrants were issued for the next date i.e. 13.09.2004. Even on 13.09.2004 the accused remained absent and fresh warrants were issued for 15.12.2004. The warrants were cancelled in between the dates of hearing i.e. 27.09.2004 and the matter posted for 15.12.2004. Neither on 27.09.2004 i.e. the first date when the accused appeared before the court nor on 15.12.2004 did the accused move the application u/s 13 (2) for getting the counterpart CC No. 273/03 DA Vs. Saurabh Garg Page 24 of 52 of the sample analyzed by the Director. Therefore not only the conduct of the accused was not up to mark but from the facts/records it becomes evident that the accused voluntarily did not exercise his right u/s 13 (2) PFA Act. Once he himself does not exercise the right u/s 13(2) PFA Act he cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.
49. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory".
50. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 (2), since he did not make any application to the Court for sending it."
51. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can CC No. 273/03 DA Vs. Saurabh Garg Page 25 of 52 have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act."
52. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it was held that as the petitioner did not exercise his right under section 13(2) and no sample was sent to Director, CFL, the petitioner can make no grievance.
53. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that if a person does not voluntarily takes advantage of Section 13 he can not complaint about the loss of any right.
54. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "unless an application to send the sample to the Director is made the vendor cannot complaint that he was deprived of his right to have the sample analysed by the Director. "
55. In Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC 545. It was held as under:
".....appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis.............. But, since the appellant never applied under section 13(2) of the CC No. 273/03 DA Vs. Saurabh Garg Page 26 of 52 Act, he cannot complain that he has been deprived of any right."
56. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been given to the accused person as a measure of abundant caution so that the mistake, if any, committed by the Chemical Analyst may be rectified and the persons, who are really innocent, be not punished. It is also provided that this right has to be exercised by the accused person within a reasonable time. If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance........
57. Therefore denial of statutory right to him was because of his own volition.
58. As far as the service of the intimation letter and the PA report to the accused is concerned firstly as discussed above the accused voluntarily did not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon him or not looses much of its significance. As per the mandate of section 13 the application for getting the counterpart of the sample has to be moved within 10 days of the receipt of the report of the PA along with the intimation letter which was not done in this case. Secondly, PW1 FI S.B. Sharma as well as PW2 SDM/LHA Sh. S.C. Tyagi categorically deposed that the intimation letter along with PA's report was sent to the accused by registered post vide Ex. PW1/L and M. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to CC No. 273/03 DA Vs. Saurabh Garg Page 27 of 52 the accused by registered post. Their testimony having remained unchallenged I have no reasons no disbelieve them or to agree to the defence contentions that no report was received by the accused. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:
"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise does not assume importance".
59. Thirdly, section 114 of the Evidence Act and the presumption which Section 114 raises has been discussed above. Clause (f) of Section 114 reads as under:
"That the common course of business had been followed in particular cases"
60. It is now well settled that sending by post, means sending by post to the addressees proper address. Where a notice has to be served through post, all that a sender can do to comply with the provisions is to post the prepaid registered letter containing addressees correct address. Once he does this and the letter is delivered to the post office, he has no control over it. In that event, under Section 27 of the General Clauses Act, the letter shall be presumed to have been delivered to the addressee. There is no obligation upon the sender to prove the service of notice upon CC No. 273/03 DA Vs. Saurabh Garg Page 28 of 52 the addressee if he send the notice by registered post, properly addressed. Where a letter is sent under certificate of posting a presumption arises under Section 114 of the Indian Evidence Act that there has been due service of notice/letter. [Amrit Lal Sharma Vs. Narainder Sharotri, 200 (1) PLJR 806 (P&H); M.A. Ghani Vs. P. Rama Reddy, 2003(3) Andh. LT 120 (AP)]
61. Once the evidence discloses that the letter was addressed at a proper address by registered post then unless it is rebutted or the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post it is presumed that there is a proper service. If the addressee either can not be met or refused to take delivery there appears to be no reason why the letter should not be considered as properly served upon the addressee ( State Vs. Bhag Chand Sadhu Mal, 1999 (3) Guj. LR 2220.)
62. In the absence of anything indicating that such letters were not posted or concocted the presumption under Section 114 (f) comes into play (Vandavasi Kartikaya Vs. S. Kamalanna, A 1994 AP 102).
63. A bare denial with no reliable evidence is not sufficient to rebut the presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial without reliable evidence, without further rebuttal, the presumption continues [Fazal Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].
CC No. 273/03 DA Vs. Saurabh Garg Page 29 of 52
64. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the prosecution did not prove any postal acknowledgment signed by the accused to prove about the service of copy of the report of the Public Analyst which had been sent by registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300 the court held as under:
"In the present case the petitioner in his examination under section 313 Cr. P.C has merely denied to have received the copy of the report of the Public Anlayst. However, no evidence has been adduced on behalf of the accused persons to rebut the presumption available under the General Clauses Act as well as Section 114 of the Evidence Act. As observed by the Division Bench of this Court, when it is proved that registered letter has been posted after being duly stamped in the address of a person, a presumption arises that such letter must have been served on the addressee. The evidence adduced on behalf of the prosecution to the effect that the report of the Public Analyst had been posted by registered post as per the postal receipt has not been successfully challenged by the petitioner in any manner in cross examination. The mere denial of the accused in his statement under Section 313, Code of Criminal Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act.".
65. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it was held "admittedly there is presumption in law that a communication sent by post on the correct address of the addressee is presumed to have been received by him if it is not received back by the sender."
66. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of CC No. 273/03 DA Vs. Saurabh Garg Page 30 of 52 Maharashtra, 1972 FAC 545, it was held as under:
"where no application under Section 13(2) of the Act is made by the accused, he can have no grievance that he could not avail of his right under Section 13(2) of the Act. In view of the aforesaid position of law in the case at hand, the accused/applicant cannot complain that a prejudice is caused to him due to late filing of the complaint and thereby he has been deprived of his right given under Section 13(2) of the Act.".
67. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon the sender or the postman to arrange that notice to be served upon the addressee. If a letter is posted prepaid and registered with a acknowledgment due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the letter is delivered to the addressee.".
68. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sender as unserved.".
69. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held that prosecution is not required to prove that the applicant has acknowledged the copy of the Public Analyst's Report.
70. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal CC No. 273/03 DA Vs. Saurabh Garg Page 31 of 52 Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act."
71. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that where extract of the relevant entries in the register maintained in the office also indicated that the notice under section 13(2) of the Act alongwith the report of the Public Analyst was sent to the applicant by registered post on the address available on record and it is not the contention that the accused / addressee / vendor did not reside at the address on which the notice was sent then "The mere fact, that A/D receipt was not filed or received back, was not sufficient to rebut or dislodge the presumption of service of notice sent by registered post in absence of any evidence to the contrary.". Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex Court has held "the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. This principle was propounded keeping in view the provisions of section 27 of the General Clauses Act."
72. In the case at hand in view of categorical deposition of the Food Inspector and the SDM/LHA coupled with Ex. PW1/L and M as discussed above a presumption tenable in the eyes of law can be drawn that the PA's report along with intimation letter was duly delivered upon/received by the accused/the vendor. The address appearing on Ex. PW1/L and M is the same address on which summons were CC No. 273/03 DA Vs. Saurabh Garg Page 32 of 52 issued by the court for appearance of the accused on 04.05.2004. However as discussed above despite service of process the accused did not appear in the court and accordingly his warrants were issued. If the summons were duly served upon him I find no reasons why the intimation letter along with the PA's report posted on the same address would not be received by him. The address appearing on Ex. PW1/L and M is the same address as appearing in the complaint as well as on the summons. It is not the defence case that the address is incorrect. Delay
73. The Ld. Defence counsel also argued that the prosecution was launched after more than 6 months since the lifting of the sample and this caused serious prejudice to the accused. It was argued that after such a long period/gap of more than 6 months the sample would not have remained fit for analysis by the Director and hence no purpose would have been served by moving the application u/s 13 (2). Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However, I differ with the Ld. defence counsel. No doubt the sample was collected on 20.01.2003 and the prosecution was launched after almost 6 months however this delay by itself cannot lead to any presumption that the sample would have decomposed/ deteriorated by the time the complaint was filed in the court i.e on 09.07.2003 and thus automatically the accused CC No. 273/03 DA Vs. Saurabh Garg Page 33 of 52 right would have been prejudiced. Firstly the prosecution witnesses categorically proved that at the time of sampling 20 drops of formalin were added in the sample bottles as a preservative. No evidence has been led by the defence that even after adding of formalin the sample would not have remained fit for analysis at the time when the prosecution was launched or later on. Secondly, I have no reasons to presume or agree with the contention of the Ld. defence counsel that the sample when analyzed by the Director after 6 months would have been rendered unfit for analysis on account of the delay.
74. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 6 months the sample would have decomposed/rendered unfit for analysis.
In Babu Lal Hargovind Das Vs. State of Gujarat, 19481997 FAC (SC) 1084, the Hon. Apex Court observed at para 6 as under:
"There is also in our view to justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi vs. Ghisa Ram 1967 (2) S.C.R. 116 :
19481997 FAC (SC) 93 has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative..................No such defence is available to the Appellant in this case CC No. 273/03 DA Vs. Saurabh Garg Page 34 of 52 because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory".
75. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
76. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the Director of CFL". In these circumstances the report of the PA was accepted in maintaining the conviction.
77. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
".....mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.CC No. 273/03 DA Vs. Saurabh Garg Page 35 of 52
78. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........
.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful CC No. 273/03 DA Vs. Saurabh Garg Page 36 of 52 purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed.".".
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of CC No. 273/03 DA Vs. Saurabh Garg Page 37 of 52 Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."
It was further observed in para 76 as under:
"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides CC No. 273/03 DA Vs. Saurabh Garg Page 38 of 52 that beyond the "Best Before date", the food may still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".
79. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal CC No. 273/03 DA Vs. Saurabh Garg Page 39 of 52 Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
80. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
81. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
82. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned CC No. 273/03 DA Vs. Saurabh Garg Page 40 of 52 Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
83. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
84. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".
85. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, it was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other CC No. 273/03 DA Vs. Saurabh Garg Page 41 of 52 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..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."
86. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis . This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
87. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the CC No. 273/03 DA Vs. Saurabh Garg Page 42 of 52 Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
88. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the CC No. 273/03 DA Vs. Saurabh Garg Page 43 of 52 accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".
89. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
90. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of CC No. 273/03 DA Vs. Saurabh Garg Page 44 of 52 Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.
91. Hence the accused should have moved the application for sending counterpart of the sample to the Director and only if the Director had reported that the sample had decomposed or deteriorated that the accused would have been entitled to acquittal on account of prejudice being caused to him. Without moving the application he cannot claim any prejudice.
92. Though Ld. Defence counsel also argued that even the PA's report cannot be relied upon for the fact that he had analyzed the sample after almost 3 weeks of its lifting as the sample would not have remained fit for analysis that long however for reasons discussed above in detail I find no merits in the contentions of the Ld. Defence counsel. Furthermore the PA categorically stated in his report i.e. Ex. PW1/F that the sample was in a condition fit for analysis. The very fact that the PA opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the PA. The PA's report that the sample was fit for analysis is a fact and there can not be any contrary presumption against the same. How can there be a presumption ( that a sample must have got decomposed, deteriorated or rendered unfit for analysis on account of delay ) contrary to a fact in existence (PA's Certificate that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis CC No. 273/03 DA Vs. Saurabh Garg Page 45 of 52 has to prove that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the PA or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not on the contrary to the law as well as the principle of jurisprudence. Reliance may be placed upon the law laid down by Hon'ble Apex Court in Magal Dass Raghavji vs. State 19481997 FAC (SC) 239 wherein it was held that the accused had not done anything to call the Public Analyst and the court could legally act on the report of the Public Analyst. Further reliance may be placed upon the Apex Court's decision in Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264.
93. If the accused wants to prove that the report of the PA was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the PA for cross examination. Once he does not exercise the right he cannot complain. Reliance may be placed upon the law laid down in Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206.
CC No. 273/03 DA Vs. Saurabh Garg Page 46 of 52 Marginal Deficiency
94. Lastly it was argued by Ld. Defence counsel that even if the report of the PA is admitted to be correct still it is apparent from the report of PA that the sample only marginally did not conform to the standards of Milk solids not fat. It was argued that the prescribed standard was not less than 8.5% and the PA found the same to be 5.98% i.e. only 2.52% less than the prescribed limit. It was argued that this marginal variation/ deficiency from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. However I do not agree with the Ld. Defence counsel.
95. However I find no merits in the contentions of Ld. Defence counsel. In Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
CC No. 273/03 DA Vs. Saurabh Garg Page 47 of 52
96. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.
97. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".
98. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%.
99. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.
100. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.
101. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the CC No. 273/03 DA Vs. Saurabh Garg Page 48 of 52 Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."
102. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."CC No. 273/03 DA Vs. Saurabh Garg Page 49 of 52
103. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
104. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".
105. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
106. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. CC No. 273/03 DA Vs. Saurabh Garg Page 50 of 52 While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
107. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".
108. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."
109. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
110. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
111. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as CC No. 273/03 DA Vs. Saurabh Garg Page 51 of 52 under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
112. In view of my above discussion, as the "milk solids not fat" were found by the PA in the sample of Toned Milk so analysed at 5.98% as against the prescribed standards of minimum 8.5%, the accused stands convicted under Section 2 (ia) (a) &
(m) r/w section 7 and 16 (1) (a) of PFA Act 1954.
113. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao)
on 11th February, 2015 ACMMII/ New Delhi
CC No. 273/03
DA Vs. Saurabh Garg Page 52 of 52