Delhi District Court
Da vs . Rajender Saini Page 1 Of 44 on 24 November, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No.188/06
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
Rajender Saini s/o Sh. Jawahar Lal Saini
M/s Rajender Store,
Shop No4970 Arya Pura Roshanara Road
Delhi7
R/o 7796, Goyanka Road, Deenanath katra,
Roshanara Road, Delhi110007.
........ VendorcumProprietor
Serial number of the case : 188/06
Date of the commission of the offence : 26.11.2005
Date of filing of the complaint : 31.07.2006
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DA Vs. Rajender Saini Page 1 of 44
Name of the Complainant : Sh. OPS Ahlawat,
Food Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954 and Rule 23 r/w Rule 28 &
29 of PFA Rules, 1955, 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 : 24.11.2014
Judgment announced on : 24.11.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 26.11.2005 at about 4.00
p.m., Food Inspector O.P.S. Ahlawat and FA S. Mishra, under the supervision and
directions of SDM / LHA Sh. R.K. Sharma visited M/s Rajender Store, Shop No. 4970
Arya Pura Roshanara Road, Delhi, where accused Rajender Saini who was the
vendorcumproprietor was found present conducting the business of various food
articles including Dal Arhar, for sale for human consumption and in compliance of the
provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of
Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) the Food
Inspector collected / purchased the sample of Dal Arhar.
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
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because it was found "coloured with synthetic colour matter viz. Tartrazine" 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) &
(m) of PFA Act 1954 and for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955,
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 31.07.2006.
4. In pre charge evidence, the prosecution examined one witness i.e. Food
Inspector O.P.S. Ahlawat as PW1 and pre charge evidence was closed vide order
dated 28.01.2009.
5. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act
1954, Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w section
7 of the Act was framed against the accused vide order dated 27.04.2009 to which
accused pleaded not guilty and claimed trial.
6. Thereafter, in post charge evidence the prosecution examined three
witnesses including Food Inspector O.P.S. Ahlawat as PW1, Sh. R.K. Sharma, the
then SDM/LHA as PW2 and FA S. Mishra as PW3 and PE was closed vide order
dated 07.03.2011.
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7. Statement of the accused U/s 313 Cr. P.C. was recorded on 21.05.2012
wherein the accused claimed himself to be innocent. Despite opportunity given the
accused did not lead any defence evidence.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Food Inspector O.P.S Ahlawat deposed that on 26.11.2005 he
alongwith FA S. Mishra and other officials of the PFA department under the
supervision and directions of SDM/LHA Shri R.K. Sharma visited the premises of M/s
Rajender Store, Shop No. 4970, Arya Pura, Roshnara Road, Delhi where accused
Rajender Saini was found conducting the business of food articles stored there for sale
for human consumption including Dal Arhar. He deposed that they disclosed their
identity and intention for purchasing Dal Arhar (ready for sale) for analysis to which
accused agreed. He deposed that he tried to join some public witnesses i.e
customers, passerby and neighbouring shopkeepers to join the sample proceedings
but as none came forward, on his request FA, Sh. S. Mishra agreed and joined as a
witness. He deposed that the sample of 1500 gms of Dal Arhar was taken from an
open gunny bag having no label declaration. He deposed that the sample was taken at
about 4 pm. He deposed that the sample was properly mixed with the help of the neat
and clean Jhaba lying in the bag by rotating in clockwise, anticlockwise, upward and
downward thoroughly several times. He deposed that then and there he divided the
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sample counter parts equally in three equal parts and put them in three clean and dry
glass bottles and same were separately packed, marked, fastened and sealed
according to PFA Act and Rules and pasted the LHA slip from top to bottom in all the
three bottles and signatures of the vendor obtained in such a manner that partly
appeared on the LHA Slip and partly on the wrapper. He deposed that the sample
price of Rs. 42/ was given to the accused and the same was accepted by the
accused. He deposed that then vendor receipt Ex. PW1/A was prepared. He
deposed that notice in Form VI Ex. PW1/B was prepared and a copy was given to the
accused as per his endorsement at portion A to A bearing his signature at point A. He
deposed that then the Panchnama Ex. PW1/C was prepared. He 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 signed at point A and
witness singed at Point B and he signed at point C respectively. He deposed that
accused also furnished his statement, Ex. PW1/D that he is proprietor of M/s Rajender
Store and Incharge and responsible for its day to day conduct of business and the
said store was not registered with Sales Tax Deptt. or MCD. He deposed that the one
counter parts of the sample in intact condition was deposited with the PA on
28.11.2005 vide receipt Ex. PW1/E and a Memo VII in a sealed packed separately.
He deposed that all the copies of memo in Form VII bear the seal impression with
which sample were sealed. He deposed that the remaining two counter parts of
sample in intact condition along with two copies of Memo of Form VII in a sealed
packet were deposited with the LHA on 28.11.2005 vide receipt Ex. PW1/F bearing his
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signature at point A and the signature of the LHA at point B with the intimation that one
counter part of the sample in intact condition has already been deposited with the PA.
He deposed that all the copies of Memo of Form VII were marked with the impression
of seal which was used to seal the sample counter parts. He deposed that PA report
Ex. PW1/G was received according to which sample was found adulterated being
coloured with synthetic colouring matter Tatrazine, as mentioned therein at portion X.
He deposed that he further investigated the matter by sending letter to Sales Tax
Ward No. 40 vide Ex. PW 1/H and as per its reply at portion A, the firm was not
registered with Sales Tax. He deposed that he also sent a letter Ex. PW1/I to DHO,
MCD and as per reply Ex. PW1/J no such firm was registered with them. He deposed
that after completion of the investigation, the complete case file along with all the
statutory documents were sent to the Director Sh. K.S. Wahi through LHA, who after
going through the entire case file, applied his mind and gave the sanction for
prosecution vide Ex. PW1/K against the accused and the firm. He deposed that
accused Rajender Saini was found to be the proprietor of said firm. He deposed that
the complaint Ex. PW1/L was filed in court by him bearing his signatures at point A. He
deposed that the intimation letter Ex. PW1/M along with the PA report was got sent to
the accused by registered post through the LHA bearing his signature at point A which
was not received back undelivered. He deposed that the postal registration receipt
copy is Ex. PW1/N bearing the relevant entry at portion A.
9. During his cross examination he stated that he cannot comment whether
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synthetic colour are water soluble colour. He admitted that tartazene is one of the
permitted colour under PFA Act but it is not permitted in Dal Arhar. He stated that he
cannot comment that if tartrazine to the extent of 100 PPM is added in Dal Arhar
same is injurious to health. He admitted that Public Analyst has not given the
percentage of tartrazine in her report. He stated that he cannot comment that
presence of tartrazine in traces cannot be ruled out. He stated that he cannot
comment that the tartrazine is not injurious to health. He stated that Dal was mixed
with the help of clean and dry Jhaba. He stated that Jhaba was not made clean and
dry at the spot as it was already clean and dry. He stated that Jhaba was provided by
the vendor. He stated that Dal was weighed in the polythene bag and thereafter it was
put into the clean and dry glass bottles by approximation. He stated that he cannot
comment that chromatographic is not a sure test. He stated that bottles were already
dry and clean and the same were not made again dry and clean at the spot. He stated
that he cannot tell when the bottles were issued to him by the department. He admitted
that tartrazine is a water soluble colour. He stated that he cannot comment that Dal is
usually washed prior to cooking. He denied the suggestion that tartrazine found in the
sample commodity was due to bad sampling. He denied the suggestion that Jhaba
was not made clean and dry or that the colour was already sticking with the Jhaba.
10. PW2 Sh. R.K. Sharma, the then SDM/LHA and PW3 FA Sh. S. Mishra
have deposed on the same lines as deposed by PW 1 in his examination in chief.
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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
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 O.P.S. Ahlawat coupled with the report of the PA
dated 20.12.2005 that accused Rajender Saini was indeed found selling Dal Arhar
which was adulterated on account of it containing synthetic colour viz. Tartrazine.
15. The star / the material witness of the prosecution i.e. Food Inspector
O.P.S. Ahlawat categorically proved the sample proceedings dated 26.11.2005 as
were conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution and which bears the
signature of the accused as well, the admissions made by the accused during his
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examination under Section 313 Cr. P.C, specifically question no. 1, 2, 5 and 6 as were
recorded before the Ld. Predecessor of this Court on 21.05.2012 which are admissible
in evidence against the accused in view of sub clause (4) of Section 313 Cr. P.C as
well as the law laid down in Benny Thomas Vs. Food Inspector, Kochi 2008 (2)
FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal) 842,
Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith
Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V. Ganesh
Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1)
Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC 258, State
of H.P. V. Wazir Chand AIR 1978 SC 315 coupled with document Ex. PW1/D, which
is in the handwriting of accused, no doubt remains that the sample of Dal Arhar was
indeed collected by the Food Inspector for analysis from M/s Rajender 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
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during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings and hence no
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.
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Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
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
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the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
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 O.P.S.
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Ahlawat made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands admitted/unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14
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, pan balance, the polythene bag used for measuring the Dal
as well as the instrument i.e. jhaba with which the sample was poured in the bottles. It
was argued that admittedly the jhaba was lying in the gunny bag itself and hence the
FI used an unclean Jhaba for the purpose of sample which is in violation of Rule 14. It
was argued that the colour was already sticking to the Jhaba, the polythene bag and
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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 on
the law laid down in Sardarmal Jain Vs. Nagar Nigam and anr 1996 (2) FAC 203,
Bansi Lal Vs. State of MP 1981 All India Prevention of Food Adulteration Journal
251, State Vs Madan Gupta 2007 (1) FAC 186 and Rajender Kumar Vs. State of
Haryana 2008 (3) RCR (Cri.) 422.
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
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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. O.P.S. Ahlawat
who was examined as PW1. The Food Inspector deposed as under:
" The sample was properly mixed with the help of the neat and clean
Jhaba lying in the bag by rotating in clockwise, anticlockwise, upward and downward
thoroughly several times. Then and there I divided the sample counter part equally in
three equal parts and put 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 his cross examination he stated as under:
"....... Dal was mixed with the help of clean and dry Jhaba. Jhaba was
not made clean and dry at the spot as it was already clean and dry. Jhaba was
provided by the vendor. Dal was weighed in the polythene bag and thereafter it was
put into the clean and dry glass bottles by approximation......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 tartrazine found in the sample commodity was due to bad sampling. It
is wrong to suggest that Jhaba was not made clean and dry or that the colour was
already sticking with the Jhaba".
29. Similarly PW2 the then SDM/LHA Sh. R.K. Sharma deposed as under:
"..... FI O.P.S. Ahlawat purchased 1500 gm of Dal Arhar taken from a
open gunny bag having no label declaration after properly mixing with the help of the
neat and clean Jhaba lying in the bag by rotating thoroughly several times on payment
of Rs. 42/ vide vendor's receipt Ex. PW1/A. Then and there FI O.P.S. Ahlawat
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divided the sample counter part equally in three equal parts and put them in three
clean and dry glass bottles and same were separately packed, marked, fastened and
sealed according to PFA Act and Rules..........."
30. During his cross examination he stated as under:
"......Dal was weighed after putting into a transparent polythene and then it was
divided into three equal parts by putting in the clean and dry sample bottles. FI made
the clean the Jhaba at the spot with the help of piece of cloth lying in the shop of the
vendor.......Bottles were already dry and clean and the same were not made again dry
and clean at the spot.
31. PW3 FA S. Mishra deposed as under:
" Before taking the sample, dal arhar was properly mixed with the help of
a clean and dry JHABA in that gunny bag by rotating it in all possible direction i.e.
upward, downward, clockwise and anticlockwise. The 1500 gms dal was weighed in
a polythene bag and so purchased dal arhar was divided by FI into three equal parts
by putting them in three clean and dry glass bottles and all the three bottles were
packed, fastened, marked and sealed according to PFA Act and Rules."
32. During his cross examination he stated as under:
".....JHABA was not made clean and dry at the spot by the FI or anybody
else as it was already clean and dry.......It is wrong to suggest that some colouring
matter was already sticking with the JHABA and polythene bag."
33. Hence the prosecution witnesses consistently deposed regarding the
jhaba, the polythene bag as well as the sample bottles being clean and dry. They
categorically denied that some colour was already sticking to the jhaba, polythene bag
or the sample bottles. From their deposition/statement no doubt remains that the
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sample proceedings were conducted in a proper manner and that the sample bottles
as well as the jhaba 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
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
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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)".
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.
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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
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
CC No. 188/06
DA Vs. Rajender Saini Page 19 of 44
Food Inspector."
42. Though it was argued by the Ld. Defence counsel that in view of the
deposition of prosecution witnesses it stands proved that an unclean jhaba was used
(jhaba was already lying in the gunny bag) for sample proceedings and hence the
sample proceedings were bad, however I find no merit in the same. Firstly, the
prosecution witnesses consistently proved that the jhaba was clean and dry.
Secondly, the mere fact that the jhaba was lying in the same gunny bag from which
the sample was lifted does not render the sample proceedings bad or does not
prejudice the accused in any manner. It is to be seen that the witnesses deposed that
the Jhaba was lying in the same gunny bag i.e. bag containing Dal Arhar from which
the sample was lifted. It is neither the prosecution case nor claimed by the defence
that the jhaba was lying in some other commodity/bag and it was used without
cleaning it to take out the sample of Dal Arhar which was lying in another bag. Had
that been the case it would have been open for the defence to claim prejudice or that
the sample proceedings were bad in law. But once the Jhaba was lying in the bag
containing the sample commodity/Dal Arhar itself and it is used to take out the sample
commodity I fail to understand how prejudice is caused to the accused because it is
the same jhaba with which the accused is selling the Dal to the customers and hence
whether the Jhaba got coloured while lying in the bag containing the sample
commodity i.e. Dal or the Dal/sample commodity got coloured because of the Jhaba
does not make a difference because the fact remains that on analysis Dal was found
CC No. 188/06
DA Vs. Rajender Saini Page 20 of 44
coloured/adulterated. The Act has been enacted for the protection of the
customers/consumers and if the Food Inspector uses the Jhaba lying in the gunny bag
containing the commodity of which the sample is lifted and the sample when sent for
analysis is found adulterated then the accused/vendor cannot agitate that the jhaba
was not cleaned before the sample was lifted because the very fact that the jhaba was
lying in the bag containing the sample commodity proves that he was using the same
Jhaba for selling the sample/dal to the customers. Two different standards cannot
apply i.e. one for the customer or the consumer and the other for the Food Inspector.
Discrepancies
43. It was argued by Ld. Defence counsel that there is a major discrepancy
in the deposition of PW1, PW2 and PW3 qua the sample proceedings. It was argued
that though FI O.P.S. Ahlawat and FA S. Mishra had claimed that the Jhaba was not
made clean and dry at the spot however the then SDM/LHA Sh. R.K. Sharma claimed
that the Jhaba was made clean and dry at the spot by the FI with the help of a cloth
provided by the vendor. The Ld. Defence counsel argued that this discrepancy itself
proves 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 and PW3 on one hand and PW2 on the other hand however the
CC No. 188/06
DA Vs. Rajender Saini Page 21 of 44
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 2005 and the deposition/cross
examination of witnesses were recorded in the year 2009 and 2010 i.e. after a gap of
around 45 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 weight
age/ due allowance.
45. By and large a witness cannot be expected to possess a photographic
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
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DA Vs. Rajender Saini Page 22 of 44
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 .
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
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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. Though PW2 had
claimed that the Jhaba was made clean again at the spot however he had also stated
that the Jhaba was provided by the accused in a clean and dry condition. The fact re
mains that a clean and dry jhaba was used for sampling.
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 homogenizing it by mixing/ rotating the Dal thoroughly in all possible
directions several times with the help of a Jhaba. I have no reasons to disbelieve the
Food Inspector or the other complainant witnesses in this regard. Secondly, there is
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no requirement either under the Act or the Rules appended therein to homogenize the
sample before lifting it.
50. Thirdly, there was no requirement of mixing or making the sample i.e.
Dal Arhar 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."
51. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
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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
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.
52. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 42/ 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 SDM/LHA as well as the FA which is on the same lines have 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.
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DA Vs. Rajender Saini Page 26 of 44
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice CC No. 188/06 DA Vs. Rajender Saini Page 27 of 44 cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".
53. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
54. 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. CC No. 188/06 DA Vs. Rajender Saini Page 28 of 44
55. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:
"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred 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."
56. 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."
57. 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 Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag 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 or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of CC No. 188/06 DA Vs. Rajender Saini Page 29 of 44 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 it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal 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.
58. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to the accused and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and State Vs. Subhash Chand 2012 (II) JCC 1004. CC No. 188/06 DA Vs. Rajender Saini Page 30 of 44
59. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 31.07.2006 and the next date of hearing before the court was 25.09.2006. On 25.09.2006, accused appeared in the court and was admitted to bail. He had also moved an application u/s 13 (2) of the Act for sending the counterpart of the sample to CFL and accordingly the Ld. Predecessor of this court directed the production of the counterparts on the next date of hearing i.e. 04.10.2006. However on 04.10.2006 when the counterparts of the sample were produced in the court the accused and Ld. Defence counsel submitted before the court that they were not interested in sending the sample for analysis to the Director, CFL and prayed that the samples be sent back to the LHA. Accordingly on their request the samples were returned to the LHA and the matter posted for pre charge evidence. Therefore in the case at hand the accused voluntarily did not exercise his right u/s 13 (2) PFA Act therefore he cannot complain now regarding the loss of right. 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.
60. 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". CC No. 188/06 DA Vs. Rajender Saini Page 31 of 44
61. 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."
62. 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."
63. 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.
64. 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.
CC No. 188/06 DA Vs. Rajender Saini Page 32 of 44
65. 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. "
66. 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."
67. 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........
68. Therefore denial of statutory right to him was because of his own volition. CC No. 188/06 DA Vs. Rajender Saini Page 33 of 44
69. 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. Secondly, I have perused the application u/s 13 (2) as was moved by the accused before the Ld. Predecessor of this court on 23.09.2006. In the application the accused has categorically stated as "that the accused has received the report of the Public Analyst on 19.08.2006 from LHA of PFA Department New Delhi". This statement in the application moved by the accused, bearing his signatures as well as his counsel is sufficient proof of the fact that the report was duly served upon the accused and that the plea of loss of right u/s 13 (2) on account of non supply of report is an absolutely false one. Thirdly, PW1 FI O.P.S. Ahlawat as well as PW2 SDM/LHA Sh. R.K. Sharma categorically deposed that the intimation letter along with PA's report was sent to the accused by registered post vide Ex. PW1/M and N. 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. 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 CC No. 188/06 DA Vs. Rajender Saini Page 34 of 44 it was sent by registered post or otherwise does not assume importance".
70. Hence it stands duly proved that the PA's report along with intimation letter was duly received by the accused.
Use of colour.
71. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon State of Punjab Vs. Prem Kumar 1992 (1) FAC 60.
72. However, I differ with the contentions raised by the Ld. defence counsel in view of 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. In the above judgment, 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 CC No. 188/06 DA Vs. Rajender Saini Page 35 of 44 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 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) ".
73. 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 persmissible 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 .......CC No. 188/06 DA Vs. Rajender Saini Page 36 of 44
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.".
74. Rule 23 prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.
75. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. 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 CC No. 188/06 DA Vs. Rajender Saini Page 37 of 44 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.
76. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same 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.".
77. 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".CC No. 188/06 DA Vs. Rajender Saini Page 38 of 44
78. 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 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". 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".
79. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:
CC No. 188/06 DA Vs. Rajender Saini Page 39 of 44
"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 permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".
80. 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.
81. 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.
82. 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.
CC No. 188/06 DA Vs. Rajender Saini Page 40 of 44 Paper Chromatography Test.
83. 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 placed upon Bansi Lal Vs. State of Haryana 1993 (1) FAC 117. However I find no merit in the said contention of the Ld. defence counsel. 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. ws 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 CC No. 188/06 DA Vs. Rajender Saini Page 41 of 44 the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under 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."
84. 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
85. 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, State Vs. Parkash 1980 (II) FAC 109 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 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with CC No. 188/06 DA Vs. Rajender Saini Page 42 of 44 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 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
86. In the case at hand the accused did not exercise his right as envisaged u/s 13 (2). 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. CC No. 188/06 DA Vs. Rajender Saini Page 43 of 44 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 report Ex PW/1/G found Tartrazine in the sample of the Dal Arhar which is not permitted/ is in violation of Rule 23, 28 and 29. There is nothing on record to doubt her report and the defence has failed to contradict the same.
87. In view of my above discussion, as colour tartrazine was found by the PA in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
88. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 24th November 2014 ACMMII/ New Delhi CC No. 188/06 DA Vs. Rajender Saini Page 44 of 44