Da vs . Shailesh Singhal Page 1 Of 62 on 24 February, 2015

[Cites 79, Cited by 0]

Delhi District Court

Da vs . Shailesh Singhal Page 1 Of 62 on 24 February, 2015

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

C.C. No. 222/04

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

Shailesh Singhal s/o Sh. R. S. Singhal
M/s Grahhasthi Store,
C21/3, Dilshad Colony,
Delhi110095

........ VendorcumProprietor.

Serial number of the case : 222/04
Date of the commission of the offence : 28.01.2004
Date of filing of the complaint : 27.10.2004
Name of the Complainant : Smt. Usha Kiran, Food Inspector

CC No. 222/04
DA Vs. Shailesh Singhal Page 1 of 62
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, punishable U/s 16(1A) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 24.02.2015
Judgment announced on : 24.02.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 28.01.2004 at about 05.30

p.m. Food Inspector Ms. Usha Kiran and Field Assistant Sh. Manohar Lal under the

supervision and directions of SDM / LHA Sh. Anil Banka visited M/s Grahhasthi Store,

C21/3, Dilshad Colony, Delhi110095 where accused Shailesh Singhal who was the

vendorcumproprietor was found present conducting the business of food articles in

the said shop including Rai Whole 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 Rai Whole.

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 adulterated

because it was coloured with unpermitted oil soluble synthetic colouring matter 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) (j) &

CC No. 222/04
DA Vs. Shailesh Singhal Page 2 of 62
(m) of PFA Act 1954 punishable U/s 16 (1A) r/w Section 7 of the Act.

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

dated 27.10.2004.

4. In pre charge evidence, the prosecution examined one witnesses i.e.

Food Inspector Ms Usha Kiran as PW1 and pre charge evidence was closed vide

order dated 19.05.2009.

5. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act

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

vide orders dated 08.09.2009 to which accused pleaded not guilty and claimed trial.

6. In the post charge evidence the prosecution examined three witnesses

i.e. Food Inspector Ms. Usha Kiran as PW1, the then SDM/LHA Sh. Anill Banka as

PW2 and Filed Assistant Sh. Manohar Lal as PW3 and PE was closed vide orders

dated 18.01.2011.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 19.07.2011.

Despite opportunity accused did not lead any defence evidence

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

CC No. 222/04
DA Vs. Shailesh Singhal Page 3 of 62
8. PW1 Ms. Usha Kiran deposed that on 28.01.2004 she along with FA

Manohar Lal with staff under the supervisions and directions of LHA Sh. Anil Banka

visited the premises of M/s Grahsthi Store, C21/3, Dilshad Colony, Delhi where

accused Shailesh Singhal was found conducting the business of food articles stored

there for sale for human consumption including Rai Whole. He deposed that they

disclosed their identity and intention for purchasing Rai Whole (ready for sale) for

analysis to which accused agreed. She deposed that she tried to join some public

witnesses to join the sample proceedings but as none came forward, on her request

FA Manohar Lal agreed and joined as a witness. She deposed that the sample of

600 gms of Rai Whole was taken from an open tin having no label declaration. She

deposed that the sample was taken at about 05:30 pm. She deposed that the

sample was properly mixed with the help of a clean and dry stainless steel spoon by

rotating in all possible directions i.e Clockwise, anticlockwise upward and downward

throughly several times. She deposed that then and there she divided the sample

counter parts equally in three equal sample parts by putting them in three clean and

dry glass bottles and same were separately packed, marked, fastened and sealed

according to PFA Act and Rules. She deposed that the sample price Rs. 18/ was

given to the accused and the same was accepted by the accused. She deposed that

then vendor receipt Ex. PW1/A was prepared. She 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. She deposed that

then the Panchnama Ex. PW1/C was prepared. She deposed that vendor's

CC No. 222/04
DA Vs. Shailesh Singhal Page 4 of 62
signature were obtained on the LHA slips (bearing the code number and signature of

LHA) and the wrapper of the sample bottles in such a manner that portion of his

signature partly appeared on the LHA slip as well as other portion of his signature on

the wrappers of the sample bottles. She deposed that all these documents Ex.

PW1/A to Ex. PW1/C were read over and explained to the accused in Hindi and after

understanding the same, accused/vendor signed at point A, witness signed at point B

and she signed at point C respectively. She deposed that one counter part of the

sample in intact condition was deposited with the PA vide PA receipt Ex PW1/D on

29.01.2004 in a sealed packet containing one copy of memo in Form VII and another

sealed envelop containing one copy of another Memo in Form VII. She 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. She deposed that the remaining two counter

part of sample in intact condition along with two copies of Memo of Form VII in a

sealed packet were deposited with the LHA on 29.01.2004 vide receipt Ex. PW1/E

bearing her signature at point A and 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.

She 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. She deposed

that PA report Ex. PW1/F was received according to which sample was not conforming

to the standard because it was coloured with unpermitted oil soluble synthetic

colouring matter, as mentioned therein at portion X. She deposed that after receipt of

PA report, she further investigated the matter and sent a letter Ex. PW1/G to STO,

CC No. 222/04
DA Vs. Shailesh Singhal Page 5 of 62
Ward No. 77 and reply received at portion A, according to which the said firm was not

registered with them, she sent another letter Ex. PW1/H to DHO, MCD and another

letter Ex. PW1/J to the Vendor and when no reply was received she sent another letter

Ex. PW1/K as reminder to vendor. She deposed that Raid Report is Ex. PW1/L. She

deposed that after completion of the investigation, the complete case file along with all

the statutory documents were sent to the Director Sh. V. K. Singh through LHA, who

after going through the entire case file, applied his mind and gave the sanction for

prosecution Ex. PW1/M against the accused who was found to be vendor and the

proprietor of the said firm. She deposed that she filed the complaint Ex. PW1/N in

Court which bears her signatures at point A. She deposed that the intimation letter

Ex. PW1/O along with the PA report was got sent to the accused by registered post

through the LHA which were not received back undelivered. She deposed that the

postal registration receipt copy is Ex. PW1/P bearing the relevant entry at portion A.

9. During her cross examination she stated that she joined the PFA

Department in August 1993. She stated that the copy of her gazette notification is not

in the judicial file. She stated that the capacity of the tin was two and half kg and the

Rai whole was about 2 Kg in that dabba at that time. She stated that the whole rai was

mixed with the help of steel spoon. She stated that the whole rai was weighed in Pan

scale by taking it in a brown colour envelope. She stated that the said spoon was

provided by the shop keeper. She admitted that she did not bring the postal receipt as

well as original dispatch register from the office of the LHA. She stated that she

CC No. 222/04
DA Vs. Shailesh Singhal Page 6 of 62
inquired the source of purchase from the vendor but he could not disclose the same.

She stated that vendor only informed that he purchased the Rai Whole from market

but could not disclose from where he purchased the same. She stated that there was

about 2 & ½ kg of Rai Whole in an open tin bearing no label declaration. She stated

that clean and dry spoon was provided by the vendor and same was not made clean

and dry at the spot. She denied the suggestion that some brown color was sticking

with the spoon. She stated that bottles were already dry and clean and the same were

not made again dry and clean at the spot. She stated that she does not remember

the date when the bottles were issued to her by the department. She denied the

suggestion that there was some colour sticking with the bottle. She stated that the

colour of Rai Whole was appearing brownish. She stated that she does not know

that Rai Whole has its own natural colour. She stated that she cannot say that the Rai

Whole is like a carrot. She denied the suggestion that she intentionally did not try to

associate the public witnesses.

10. PW2 the then SDM/LHA Sh. Anil Banka and PW3 Field Assistant

Manohar Lal deposed on the same lines as deposed by PW1 in her examination in

chief.

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

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

CC No. 222/04
DA Vs. Shailesh Singhal Page 7 of 62
as also the Ld. SPP for complainant. I have also carefully gone through the evidence

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

prosecution in this case.

13. After hearing the rival contentions raised at bar as well as on careful

scrutiny of the material on record, I am of the considered opinion that the prosecution

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector Ms. Usha Kiran coupled with the report of the PA

dated 10.02.2004 that accused Shailesh Singhal was indeed found selling Rai Whole

which was adulterated as it was found coloured with unpermitted oil soluble synthetic

colouring matter.

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

Usha Kiran categorically proved the sample proceedings dated 28.01.2004 as were

conducted in the presence of SDM/LHA. From the deposition of the prosecution

witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C

i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution,

the admissions made by the accused during his examination under Section 313 Cr.

P.C, specifically question no. 1 and 2 as recorded before the Ld. Predecessor of this

Court on 19.07.2011 which are admissible in evidence against the accused in view of

CC No. 222/04
DA Vs. Shailesh Singhal Page 8 of 62
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 no

doubt remains that the sample of Rai Whole was indeed collected by the Food

Inspector for analysis from M/s Grahasthi Store of which the accused is the proprietor

cum vendor.

16. During the course of arguments, Ld. defence counsel appearing for

accused argued that the prosecution miserably failed to bring home the guilt against

the accused. It was argued that the prosecution story suffers from various

loopholes /contradictions.

Public witness

17. 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

CC No. 222/04
DA Vs. Shailesh Singhal Page 9 of 62
person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

18. 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.

CC No. 222/04
DA Vs. Shailesh Singhal Page 10 of 62
19. 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
obligation to cite independent witnesses.".

20. 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

CC No. 222/04
DA Vs. Shailesh Singhal Page 11 of 62
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
21. 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.".

22. 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."

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

Kiran 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

CC No. 222/04
DA Vs. Shailesh Singhal Page 12 of 62
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

24. It was also 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 brown envelope used for measuring the Rai Whole as

well as the instrument i.e. stainless steel spoon with which the sample was mixed and

poured in the bottles. It was argued that the colour was already sticking to the spoon,

the brown envelope and the sample bottles and it was this colour which was detected

by the PA. 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 upon the law laid down in Rajinder Kumar Vs. State of

CC No. 222/04
DA Vs. Shailesh Singhal Page 13 of 62
Haryana RCR (Cri) 2008 (3) 422, Jagdish Chander Vs. State of Punjab 1980 (II)

FAC 323 and State of Gujarat Vs. Anil Champak Lal Shah 2007 (II) FAC 130.

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

counsel.

26. 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 mix the same. Furthermore he should

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

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

27. I have perused the deposition of the Food Inspector i.e. Usha Kiran who

CC No. 222/04
DA Vs. Shailesh Singhal Page 14 of 62
was examined as PW1. The Food Inspector deposed as under:

"............The sample was properly mixed with the help of a clean and dry
stainless steel spoon by rotating in all possible directions i.e. Clockwise, anticlockwise,
upward and downward thoroughly several times. Then and there I divided the sample
counter parts equally in three equal sample parts by putting them in three clean and
dry glass bottles and same were separately packed, marked, fastened and sealed
according to PFA Act and Rules."

28. During her cross examination she stated as under:

".........The whole Rai was mixed with the help of steel spoon......clean
and dry spoon was provided by the vendor and the same was not made clean and dry
at the spot. It is wrong to suggest that some brown colour was sticking with the spoon.
Bottles were already dry and clean and the same were not made again dry and clean
at the spot.....It is wrong to suggest that there was some colour sticking with the
bottle."

29. Similarly PW2 Sh. Anil Banka, the then SDM/LHA deposed as under:

"........At about 5:30 p.m., F.I. Usha Kiran purchased 600 gms of Rai
Whole taken from an open tin bearing no label declaration after properly mixing with
the help of clean and dry stainless steel spoon by rotating it in all possible directions
on payment of Rs. 18/ vide vendor's receipt Ex. PW1/A. F.I. Usha Kiran divided the
sample into three equal parts by putting them into three clean and dry glass bottles
and all the three counterparts containing the sample of Rai Whole were separately
packed, marked, fastened and sealed according to PFA Act and Rules."

30. During his cross examination he stated as under:

"...........Spoon was already clean and dry as such same was made again clean
and dry at the spot......It is wrong to suggest that some brown colourn was sticking
with the spoon.....bottles were already dry and clean and the same were not made

CC No. 222/04
DA Vs. Shailesh Singhal Page 15 of 62
again dry and clean at the spot. It is wrong to suggest that bottles were not clean......It
is wrong to suggest that some colour was sticking with the bottle."

31. PW3 Field Assistant Manohar Lal deposed as under:

" ......Before taking the sample of Rai whole, it was properly mixed with
the help of a clean spoon in the said Tin by rotating it in all possible directions. The so
purchased quantity of Rai Whole was equally divided into three parts by FI then and
there and was put into three clean and dry glass bottles"

32. During his cross examination he stated as under:

".......The Rai Whole was mixed with the help of a spoon by the FI, which
was provided by the vendor....The spoon was not made clean and dry at the spot as it
was already clean and dry......The brown envelope was not made clean and dry at the
spot as it was already clean and dry."

33. Hence the prosecution witnesses consistently deposed regarding the

spoon, the brown envelope, pan scale, 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, brown envelope as

well as the spoon 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 or colored 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

CC No. 222/04
DA Vs. Shailesh Singhal Page 16 of 62
on record has been proved to the contrary i.e. the defence has not proved that the

Food Inspector did not comply with the provisions of the Rule 14. Just because the

defence is challenging the sampling process conducted by the Food Inspector /

asserting that Rule 14 was violated is not sufficient to either disbelieve or throw away /

outrightly reject the testimony of the Food Inspector. I have also gone through Section

114 (e) of the Indian Evidence Act.

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"

34. The above provisions and the legislation is based upon the maxim

"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly

and regularly done. This presumption chiefly applied to official acts. It means that an

official act is proved to have been done, it would be presumed to have been regularly

done. The presumption under Section 114 (e) could only be nullified by clear and

cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)

Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.

Assessar, 5 OLJ 179)".

CC No. 222/04
DA Vs. Shailesh Singhal Page 17 of 62
35. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757

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

it may prove it.

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

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

drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,

1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,

Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1

and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].

37. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with

Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper

approach to proceed with doubt or disbelief unless there is something to excite

suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi

(2002) 5 FAC 234.

38. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it

was observed as under:

"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner

CC No. 222/04
DA Vs. Shailesh Singhal Page 18 of 62
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

39. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".

40. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:

"there is no provision or requirement of law that the bottles must be sterilized at the

time of taking of the sample in the presence of the witnesses.". Similarly was held in

P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.

41. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has

been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

42. The Ld. Defence counsel had also argued that the colour detected by the

PA was on account of the fact that the rai/sample was put on a brown envelope for

measuring/weighing by the FI at the time of sampling. It was argued that it was the

colour of brown envelope which got stuck with the rai and was detected by the expert

CC No. 222/04
DA Vs. Shailesh Singhal Page 19 of 62
during analysis hence the accused cannot be held liable for the same. However I find

no merits in the contention of Ld. Defence counsel. Firstly, mere use of brown

envelope by the FI for measuring the Rai at the time of sampling did not prejudice the

accused in any manner nor entitles him to acquittal. The witnesses categorically

deposed that the envelope was clean and dry and that no colour was sticking to it. I

have no reasons to disbelieve the prosecution witnesses or doubt that they did not use

a clean and dry envelope. During the cross examination of the Food Inspector not

even a single suggestion was given to him that this brown envelope was either not

clean or dry or that it was wet or emitting some colour which might have stuck to the

sample of Rai Whole. Secondly, the PA report has remained unchallenged. I find no

reasons to doubt the same. If indeed the defence wanted to prove/ substantiate their

stand that the colour detected was on account of the Rai being weighed on a brown

envelope nothing stopped the defence from moving the application for cross

examination of the Public Analyst. Nothing stopped the defence from summoning the

PA in the witness box to challenge his report and substantiate their claims that the oil

soluble colouring matter detected by the PA was the colour of the brown envelope.

Having not done so I find no reasons to differ with the Public Analyst who had opined

that the sample contained "unpermitted oil soluble synthetic colouring matter".

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. 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

CC No. 222/04
DA Vs. Shailesh Singhal Page 20 of 62
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. If the accused wants to prove that the report of the PA was incorrect /

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 also 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. Thirdly, it is not be ignored that the accused did not

exercise the right u/s 13 (2) in this case. If indeed he doubted the PA's report he

should have exercised the right u/s 13 (2). Having not done so and also not having

challenged the PA's report it is not now open to agitate that the colour detected by the

PA was the colour of brown envelope. Fourthly, the defence plea that the colour

detected in the sample by the PA was the colour of the brown envelope is inconsistent

with the defence stand as during the course of trial i.e. cross examination of the

witnesses as well as final arguments it was suggested to the witnesses/vehemently

argued that the colour detected by the PA was the natural colour of the Rai. Apart from

this during the cross examination of the witnesses generalized suggestions were given

to them that the colour was sticking to the bottles, the spoon, the pan scale etc. hence

the defence was not consistent with its arguments/the stand adopted by it during the

course of the trial.

CC No. 222/04
DA Vs. Shailesh Singhal Page 21 of 62
Discrepancies

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

the deposition of PW1, PW2 and PW3 qua the sample proceedings. It was argued

that though the FI and FA stated that the spoon was not cleaned at the spot as the

same was already clean and dry however the SDM/LHA i.e. PW2 stated that the

spoon was made again clean and dry at the spot. The Ld. Defence counsel argued

that this discrepancy itself prove that the prosecution witnesses were deposing falsely

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

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

the deposition of PW1, PW2 and PW3 however the discrepancy as pointed out by Ld.

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

as above is natural and bound to occur on account of passage of time and lapse of

memory. Human memories are apt to blur with passage of time. The sample was lifted

in the year 2004 and the deposition/cross examination of witnesses were recorded in

the year 2010 and 2011 i.e. after a gap of around 67 years. After such a long time

period a person cannot be expected to give a parrot like version or depose with

mathematical precision. Only a tutored witness can depose so. Error due to lapse of

time/lapse of memory have to be given due weightage/ due allowance.

45. By and large a witness cannot be expected to possess a photographic

CC No. 222/04
DA Vs. Shailesh Singhal Page 22 of 62
memory and to recall the minute details of an incident. It is not as if a video tape is

replayed on the mental screen. By and large people cannot accurately recall a

conversation and reproduce the very words used by them or heard by them. They can

only recall the main purport of the conversation. It is unrealistic to expect a witness to

be a human tape recorder. Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid succession or in a short

time span. A witness is liable to get confused, or mixed up when interrogated later on.

A witness, though wholly truthful, is liable to be overawed by the court atmosphere and

the piercing cross examination made by counsel and out of nervousness mix up facts,

get confused regarding sequence of events, or fill up details from imagination on the

spur of the moment. The subconscious mind of the witness sometimes so operates

on account of the fear of looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is

a sort of a psychological defence mechanism activated on the spur of the moment.

Reliance may be placed upon the observations made by the Hon'ble Apex Court in

case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.

Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State

of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972

SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .

CC No. 222/04
DA Vs. Shailesh Singhal Page 23 of 62
46. The law is well settled that discrepancies which do not go to the root of

the matter and shake the basic version of the witnesses cannot be annexed with un

due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable

evidence. One cannot come across a witness whose evidence does not contain some

exaggeration or embellishments. Sometimes there could even be a deliberate attempt

to offer embellishment and sometime in their overanxiety they may give slightly exag

gerated account. Court can sift the chaff from corn and find out truth from the testimo

ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this

element is satisfied they ought to inspire confidence in mind of the court.

47. Moreover, officials like Food Inspector and the SDM/LHA are involved in

collecting samples/witnessing sample proceedings almost daily and sometimes more

than one sample is collected in a day. During their stint as Food Inspector and

SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the

facts being mixed up due to passage of time. Same has to be given due allowance. In

case at hand the discrepancy as above does not effect the prosecution story at all. It

does not render it unreliable or untrustworthy. Due to lapse of time a witness may not

be able to recollect the exact facts with mathematical precision. In the case at hand no

doubt remains that proper sample proceedings were adopted by the FI and that the

spoon was clean and dry. Whether it was already clean and dry or made clean and dry

at the spot is insignificant because it stands established that the spoon was clean and

dry.

CC No. 222/04
DA Vs. Shailesh Singhal Page 24 of 62
Homogenization / Mixing of Sample.

48. It was also one of the arguments of the Ld. defence counsel that the

sample was not properly mixed / homogenized at the time when it was lifted which is

itself a violation of Rule 14.

49. 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 Rai Whole was properly

mixed with the help of a spoon by rotating it in all possible directions several times.

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.

50. Secondly, there is no requirement of homogenization or making the

sample representative prior to its lifting either under the Act or the Rules appended

therein.

51. Thirdly, there was no requirement of mixing or making the sample i.e.

CC No. 222/04
DA Vs. Shailesh Singhal Page 25 of 62
Rai Whole homogenized as such in view of the law laid down in Dhian Chand Vs.

State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
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. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."

52. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full

Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for

CC No. 222/04
DA Vs. Shailesh Singhal Page 26 of 62
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.

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

Inspector categorically proved that he had made a payment of Rs. 18/ 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.

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 CC No. 222/04 DA Vs. Shailesh Singhal Page 27 of 62 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 cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".

54. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 28 of 62 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."

55. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

56. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 29 of 62 quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."

57. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

58. 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 Rai whole etc. the vendor does not give the said food article after mixing the same with the help of Jhaba/spoon in the gunny bag/container in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba/spoon or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 30 of 62 it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Rai whole 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.

PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.

59. 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 1052.

60. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 27.10.2004 and the next date of hearing before the court was 02.03.2005. On 02.03.2005 the accused CC No. 222/04 DA Vs. Shailesh Singhal Page 31 of 62 appeared before the Ld. Predecessor of this court as he had moved an application for bail. It is reflected in proceedings dated 02.03.2005 as under: "An application for bail of accused moved. Heard on bail of accused. Accused is admitted to bail on furnishing bail bond in the sum of Rs. 10000 with one surety in the like amount. Bonds moved and accepted. Accused has submitted that he is not exercising his right u/s 13 (2) of PFA Act .

61. Therefore in the case at hand 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.

62. 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".

63. 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."

CC No. 222/04 DA Vs. Shailesh Singhal Page 32 of 62

64. 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 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."

65. 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.

66. 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.

67. 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. "

CC No. 222/04 DA Vs. Shailesh Singhal Page 33 of 62

68. 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 Act, he cannot complain that he has been deprived of any right."

69. 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........

70. Therefore denial of statutory right to him was because of his own volition.

71. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 34 of 62 of the PA along with the intimation letter which was not done in this case. Moreover when he appeared in the court on 02.03.2005 he did not even once claim that he had not received the intimation letter or the PA's report. Secondly, PW1 FI Usha Kiran as well as PW2 SDM/LHA Sh. Anil Banka categorically deposed that the intimation letter along with PA's report was sent to the accused by registered post vide Ex. PW1/O and P. 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 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".

72. 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"

CC No. 222/04 DA Vs. Shailesh Singhal Page 35 of 62

73. 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 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)]

74. 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.)

75. In the absence of anything indicating that such letters were not posted or CC No. 222/04 DA Vs. Shailesh Singhal Page 36 of 62 concocted the presumption under Section 114 (f) comes into play (Vandavasi Kartikaya Vs. S. Kamalanna, A 1994 AP 102).

76. 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)].

77. 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.".

CC No. 222/04 DA Vs. Shailesh Singhal Page 37 of 62

78. 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."

79. 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 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.".

80. 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.".

81. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 38 of 62 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.".

82. 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.

83. 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 Procedure, cannot have the effect of rebutting the statutory presumption available under the provisions of the General Clauses Act."

84. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 39 of 62 General Clauses Act."

85. In the case at hand in view of categorical deposition of the Food Inspector and the SDM/LHA coupled with Ex. PW1/O and P 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/O and P is the same address on which summons were issued by the court for appearance of the accused on 02.03.2005 which were duly served upon the accused. The intimation letter and the PA's report were sent to the shop of the accused/his place of business as well as his residence. 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/O and P 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

86. The Ld. Defence counsel also argued that the prosecution was launched after almost 9 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 9 months the sample would not have remained fit for analysis by the Director and hence CC No. 222/04 DA Vs. Shailesh Singhal Page 40 of 62 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 28.01.2004 and the prosecution was launched after almost 9 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 27.10.2004 and thus automatically the accused's right would have been prejudiced. I have no reasons to presume or agree with the contention of the Ld. defence counsel that the sample of Rai whole would have decomposed/ deteriorated due to lapse of time 9 months. Firstly, the Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample of Rai whole would have deteriorated due to lapse of 9 months. Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 . Secondly, the accused should have moved application u/s 13 (2)/should have exercised the right therein and only if the Director had opined that sample was decomposed he would have been entitled to the benefit or could have claimed prejudice. Reliance may be placed upon Ajit Prasad's case (supra) as well as MCD Vs. Ghisa Ram 19481997 FAC (SC) 265 and Babu Lal Hargovind Das Vs. State of Gujarat 19481997 FAC (SC) 1083. He did not exercise his right for reasons best known to him. CC No. 222/04 DA Vs. Shailesh Singhal Page 41 of 62

87. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 9 months the sample of Rai whole would have decomposed/rendered unfit for analysis despite addition of formalin. Rai whole is not a substance/food article which would deteriorate/decompose solely due to lapse of time

88. 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 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".

89. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 42 of 62 application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.

90. 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.

91. 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.

92. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 43 of 62 which a stored thing remains usable...........

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

It was further observed in para 66 as under:

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

It was further observed in para 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be 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:

CC No. 222/04 DA Vs. Shailesh Singhal Page 44 of 62

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

It was further observed in para 72 as under:

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

It was further observed in para 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 45 of 62 rendering the sample unfit for analysis?"

It was further observed in para 75 as under:

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

It was further observed in para 76 as under:

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

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

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

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 46 of 62 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.".

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

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample 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.

94. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 47 of 62 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.".

95. 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.".

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

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

97. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 48 of 62 been caused to him either because of delay in launching the prosecution or for any other reason."

98. 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.".

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

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 49 of 62 though made final and conclusive under the proviso."

100. 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." .

101. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 50 of 62 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".

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

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

103. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 51 of 62 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".

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

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

105. 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 CC No. 222/04 DA Vs. Shailesh Singhal Page 52 of 62 he cannot claim any prejudice.

Use of colour.

106. It was further argued by the Ld. defence counsel that the PA though reported that unpermitted oil soluble synthetic colours were detected in the sample of Rai Whole sent to him however he did not specify the colours so detected by him i.e. did not give the names of the colours and hence it cannot be concluded whether the colours were prohibited or not. However I do not agree with the contentions of Ld. Defence counsel. The standard of Rai Whole is mentioned at A.05.15. As per the standard it is categorically mentioned that " the product shall be free from........ added colouring matter". Furthermore, Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which synthetic food colours can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Rai Whole is not a food article falling under Rule 29 wherein the food articles in which the synthetic colours as listed in Rule 28 are permitted to be added. Hence no colour could be added to Rai Whole. As far as the contentions of the Ld. Defence counsel that the PA did not specify the names of colours detected is concerned suffice would be to say that though no doubt the PA did not give the names of the colours detected by him but he reported that "unpermitted oil soluble synthetic colours detected". The very fact that the PA reported unpermitted oil soluble synthetic colouring matter is sufficient to make the article/rai whole CC No. 222/04 DA Vs. Shailesh Singhal Page 53 of 62 adulterated. The term "unpermitted" coupled with "synthetic" proves that the colours were alien to Rai whole. They were not permitted and not natural colours. Had the PA detected natural colour i.e. colour owing its origin to the Rai seeds/natural oil of Rai seeds the PA would have not reported "unpermitted oil soluble synthetic colouring matter. Moreover if the accused doubted the PA's report than nothing stopped the accused from summoning the PA for cross examination to rebut/contradict his report or to exercise his right u/s 13 (2) for analysis by the Director. Having not done so the Ld. Defence counsel/accused cannot now legitimately claim that the report was incorrect or that the colours detected were natural and not unpermitted oil soluble synthetic colours. Once he does not exercise the right he cannot complain.

107. As far as unpermitted synthetic colours detected in the sample is concerned in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the CC No. 222/04 DA Vs. Shailesh Singhal Page 54 of 62 linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

108. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:

" Under Rule 2 (i) (j) the patisa in the preparation of which a non permissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule

28.".

109. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. CC No. 222/04 DA Vs. Shailesh Singhal Page 55 of 62 State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:

"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)

(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health.

110. It was also argued that the addition of the colour did not make the Rai Whole injurious to health. However the said argument is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

111. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed CC No. 222/04 DA Vs. Shailesh Singhal Page 56 of 62 with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".

112. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:

"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".

113. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not CC No. 222/04 DA Vs. Shailesh Singhal Page 57 of 62 permitted by law... But the offence is complete, because a substance not recognized by law has been used for mixing.".

114. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

115. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

116. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

Paper Chromatography Test.

117. It was further argued that the PA used paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was CC No. 222/04 DA Vs. Shailesh Singhal Page 58 of 62 placed upon Maya Ram Vs. State of Punjab 1987II FAC 320,State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. Paper Chromatography is one of the method prescribed in the DGHS manual. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. was the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under CC No. 222/04 DA Vs. Shailesh Singhal Page 59 of 62 Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act."

19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."

118. The judgment passed by the Hon'ble High Court of Delhi in Ashwani Kumar's case (supra) was challenged vide SLP no. 5014/2013 however the SLP was dismissed by Hon'ble Apex court vide orders dated 11.07.2014. Percentage of colour

119. It was further argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23, 28 and 29 along with the standard of Rai Whole i.e. A.05.15 it becomes amply clear that no colour could be added to the Rai Whole as Rai Whole does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to CC No. 222/04 DA Vs. Shailesh Singhal Page 60 of 62 adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis. PA's report

120. It is well settled proposition of law that unless superseded the report of Public Analyst remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.

In the case at hand PA vide her CC No. 222/04 DA Vs. Shailesh Singhal Page 61 of 62 report dated 10.02.2004 Ex PW/1/F found unpermitted oil soluble synthetic colouring matter in the sample of the Rai Whole which is not permitted/ in violation of Rule 23, 28 and 29. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 30.01.2004 till 04.02.2004 and on the day the report was prepared i.e. 10.02.2004 she was a duly/ validly appointed Public Analyst.

121. In view of my above discussion, as unpermitted oil soluble synthetic colours were found by the PA in the sample of Rai Whole so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 r/w A.05.15 the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954.

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

Announced in the open Court                                          (Gaurav Rao)
on 24th February 2015                                            ACMMII/ New Delhi




CC No.  222/04
DA  Vs.  Shailesh Singhal                                                               Page 62 of 62

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Da vs . Shailesh Singhal Page 1 Of 62 on 24 February, 2015