Delhi District Court
Da vs . Sanjay Mangla Page 1 Of 67 on 21 September, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 244/03
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sanjay Mangla
S/o Sh. K.C. Gupta,
M/s Sanjay Mangla Store,
903/8 Main Market, Mehrauli,
New Delhi.
........ VendorcumProprietor
Serial number of the case : 244/03
Date of the commission of the offence : 08/04/2003
Date of filing of the complaint : 26/06/2003
Name of the Complainant : Sh. Rajpal Singh, Food Inspector
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Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954, r/w Rule 23, 28 & 29
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 : 21.09.2015
Judgment announced on : 21.09.2015
Brief facts of the case
1. In brief the case of the prosecution is that on 08.04.2003 at about 05.45
p.m., Food Inspector Rajpal Singh and Field Assistant S. Messi under the supervision
and directions of SDM / LHA Sh. Satnam Singh visited M/s Sanjay Mangla Store,
903/8, Main Market, Mehrauli, Delhi, where accused Sanjay Mangla who was the
vendorcumproprietor was found present conducting the business of various food
articles in the above shop including Dal Arhar (ready for sale) 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 found not
conforming to the standard of Dal Arhar as per PFA rules 1955 as per tests performed
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as the same was coloured with synthetic colouring matter 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) (b) (j) & (m)
of PFA Act 1954 r/w Rule 23, 28 and 29 of PFA Rules, 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 26.06.2003. The accused after filing his appearance moved an application
under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample
from Central Food Laboratory and consequent thereto second counterpart of the
sample as per the choice of the accused was sent to Director, CFL (Pune) for its
analysis vide orders dated 17.09.2003. The Director, CFL after analysing the sample
opined vide its Certificate dated 20.10.2003 that "sample bearing No. 72/LHA/3926
does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955.
The Director so opined as the sample was found coloured with synthetic colouring
matter Tartrazine.
4. In pre charge evidence, the prosecution examined one witness i.e. the
Food Inspector Rajpal Singh as PW1 and pre charge evidence was closed vide order
dated 26.08.2009.
5. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
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Act 1954 r/w Rule 23, 28 and 29 of the PFA Rules, punishable U/s 16 (1A) r/w section
7 of the Act was framed against the accused vide order dated 17.11.2009 to which
accused pleaded not guilty and claimed trial.
6. Thereafter, in post charge evidence the prosecution examined three
witnesses including the Food Inspector Rajpal Singh as PW1, Field Assistant S. Messi
as PW2 and the then SDM/LHA Sh. Satnam Singh as PW3 and PE was closed vide
orders dated 06.02.2013.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 01.04.2013
wherein the accused claimed himself to be innocent. Accused examined himself as
DW1 and Sh. Sunil Kumar Gupta as DW2 in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Food Inspector Rajpal Singh deposed that on 08.04.2003 he along
with FA S. Messi under the supervision and direction of SDM/LHA Sh. Satnam Singh
with staff visited M/s Sanjay Mangla Store, 903/8, Main Market, Mehrauli, Delhi where
accused Sanjay Mangla was found conducting the business of food articles stored
there for sale for human consumption including Dal Arhar. He deposed that he
disclosed his identity and intention for purchasing the sample of said Dal Arhar (ready
for sale) for analysis to which the accused agreed. He further deposed that before
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taking the sample he tried his best to procure some public witnesses by requesting
some neighbourers, customers and passersby to join the sample proceedings but as
none agreed on his request FA S. Messi joined the proceedings. He further deposed
that at about 05.45 p.m. he purchased 1500 gms of Dal Arhar, taken from open gunny
bag having no label declaration after proper mixing with the help of the dry and clean
jhaba by rotating in clockwise, anticlockwise, upward and downward thoroughly
several times on payment of Rs. 39/ vide vendor's receipt Ex. PW1/A. He deposed
that then he divided the sample into three equal parts by putting them in three clean
and dry glass bottles separately and each sample bottle containing the sample was
then separately packed, fastened, marked and sealed according to PFA Act and
Rules. He deposed that LHA slip bearing his code number and signature of LHA was
affixed on all the three counterparts of the bottle. He deposed that then the vendor
signatures were obtained on LHA slip in such a manner that a portion of his signature
were on the wrapper as well as on the LHA slips. He further deposed that the Notice
in Form VI Ex. PW 1/B was prepared at the spot and copy of it was given to the
accused as per his endorsement at portion A to A bearing his signature at point A. He
deposed that Panchnama vide Ex. PW 1/C was prepared. He deposed that accused
furnished his statement Ex. PW1/D that he is the incharge and responsible for day to
day affairs of the said shop and his shop is not registered with Sales Tax or MCD. He
deposed that all the aforesaid documents Ex. PW1/A to Ex. PW1/C were read over
and explained to the accused in Hindi and after he understanding the same accused
signed at point A, witness at point C and he signed at point B respectively.
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9. He further deposed that one counterpart of the sample was deposited
with the PA on 09.04.2003 i.e. next working day vide receipt Ex. PW1/E in sealed
packet containing one copy of memo in Form VII in a separately sealed cover. He
deposed that two counterparts of the sample along with two copies of Memo of Form
VII in sealed packet were deposited with the LHA on 09.04.2003 vide receipt Ex.
PW1/F bearing his signature at point A with the intimation that one counterpart of the
sample has already been deposited with Public Analyst in intact condition and all the
copies of memo of Form VII bore the same seal impression with which the sample in
question was sealed. He further deposed that Public Analyst's report Ex. PW 1/G was
received according to which, the sample was found adulterated as mentioned therein
at portion X. He further deposed that during investigation, he sent a letter Ex. PW1/H
to STO Ward No. 101 and received its reply at portion A that the firm was not
registered with Sales Tax. He deposed that he also sent a letter Ex. PW1/I to the
DHO, MCD and received its reply Ex. PW1/I1 that no health license was issued. He
deposed that on the completion of investigation by him, the complete file including all
statutory documents were sent to the then Director PFA Sh. S.L. Bansal through LHA
who after going through the case file, applied his mind and gave consent vide Ex.
PW1/J for prosecution of accused. He deposed that he filed complaint Ex. PW1/K in
the court. He deposed that intimation letter Ex. PW1/L was sent along with the PA
report by registered post to accused which was not received back undelivered. The
photocopy of the postal registration receipt is Ex. PW1/M bearing the relevant entry at
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point A.
10. During his cross examination he stated that tartrazine is a food colour.
He stated that he cannot say that it is not injurious to health. He stated that Tartrazine
is permitted upto 100 ppm in sweets and confectionery but not in Dal Arhar. He stated
that sweets are consumed directly but it is not necessary that Dal is cooked after
washing. He stated that PA and the Director, CFL had not given the percentage of
colour in their reports. He stated that he cannot say that the presence of colour might
be in traces. He stated that he is B.Sc. in Chemistry. He stated that he does not know
that the TLC is a sensitive test or that colour is detected by the Director, CFL by TLC
method. He stated that he does not know DGHS book provides TLC method for
detection of colour. He stated that accused was running a retail shop. He denied the
suggestion that vendor used to take the food article from only one Jhaba. He
voluntarily stated that there were several jhabas with the accused. He stated that he
cannot say that if one Jhaba is used in various food articles including colour Jhaba can
be contaminated. He stated that he cannot say that if accidentally 34 grains of colour
are fallen in the Dal Arhar it will give TLC test positive. He stated that he cannot say
that all the synthetic colour are water soluble. He stated that it is not in his notice that
PFA department issued any advisory to wash the Dal prior to cooking. He stated that
Jhaba was already clean and dry as such same was not made clean and dry at the
spot and the same was provided by the vendor. He stated that he never used drier
while studying in B.Sc. He stated that he cannot say that instrument can be made
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clean and dry with the help of drier. He denied the suggestion that Jhaba was already
containing colour and same was not made clean.
11. PW 2 FA S. Messy and PW3 the then SDM/LHA Sh. Satnam Singh
deposed on the same lines as deposed by PW 1 in his examination in chief.
12. This so far is the prosecution evidence in the matter. The accused led the
defence evidence and examined himself as under:
13. DW1 Sanjay Mangla deposed that dal arhar the sample of which was
lifted by FI from him was purchased by him from M/s Munna Lal Bharat Singh,
405355, Naya Bazar, Delhi through one commission agent namely Sh. Sunil Gupta
and a bill was issued by the supplier firm in this regard, which is Mark X. He deposed
that the bill Mark X is in the handwriting of Muneem of above mentioned firm and bill
bears the signature of commission agent at point A. He deposed that he had made
the payment of Dal Arhar purchased by him from M/s Munna Lal Bharat Singh, to the
above mentioned commission agent who further paid the same to the said firm. He
deposed that he had shown this bill to the Food Inspector at the spot but he refused to
accept the same on the ground that Dal Arhar was lying in loose condition. He
deposed that he is a retail shopkeeper. He deposed that he did not apply any colour
to Dal Arhar. He deposed that he does not know English. He deposed that the
documents prepared at the spot were not read over and explained to him by the Food
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Inspector.
14. During his cross examination he admitted that at the time when the
sample was lifted from his premises i.e. M/s Sanjay Mangla Store, 903/8, Main Market,
Mehrauli, New Delhi, his shop/firm was not registered with Sales Tax or with MCD. He
admitted that that he was the sole proprietor of shop/firm at that time. He stated that
he did not call any member of the Market Association to inform them that the Food
Inspector was not accepting the bill of purchase. He voluntarily stated that there was
no such market association at that time. He stated that he did not sent photocopy or
original bill to the PFA department of health Department to inform them that he had
purchased the sample commodity through this bill and the Food Inspector did not
accept the same despite the fact he had shown it to the Food Inspector at the spot. He
stated that he did not make any complaint against the Food Inspector to PFA
Department or any other government authority in respect of the above mentioned fact.
He denied the suggestion that he was not having any bill of purchase including bill
Mark X on the date of sampling proceedings and he procured the same later on and
produced before this hon. Court. He admitted that the bill does not bear the signatures
of owner/ proprietor of M/s Munna Lal Bharat Singh. He stated that he is not aware of
owner/ proprietor of M/s Munna Lal Bharat Singh. He stated that he does remember
the exact amount of Dal purchased by him however he had purchased the Dal in
stitched bag. He admitted that when the sample was lifted from his shop it was lifted
from an open gunny bag. He admitted that Ex. PW1/D is in his handwriting and it is in
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English and Hindi. He denied the suggestion that Ex PW1/A to C were read over to
him at the time when his signatures were obtained. He denied the suggestion that he
is responsible for the adulteration in Dal Arhar sample so lifted. He denied the
suggestion that he is deposing falsely.
15. DW2 Sunil Gupta deposed that he is doing the business of broker for the
last about 15 years in Naya Bazar, Delhi. He deposed that he knows the firm namely,
M/s Munna Lal Bharat Singh, 405355, Naya Bazar, Delhi which is dealing in sale and
purchase of pulses, grains etc. He deposed that the bill mark X has been issued by
the Munim of above mentioned firm, which bears his signature at point A, same is Ex.
DW2/A. He deposed that as per this bill on the request of Sanjay Store he got
supplied two bags of dal arhar of 50 kg each from the firm M/s Munna Lal Bharat
Singh to Sanjay Store, Mehrauli. He deposed that the payment of the said commodity
was directly made by Sanjay Store to M/s Munna Lal Bharat Singh. He deposed that
he obtained his commission of .03% upon that sale i.e he got total commission of Rs.
7/ from M/s Munna Lal Bharat Singh. He deposed that accused Sanjay Mangla is the
owner of Sanjay Store. He deposed that he knows him for the last about 15 years as
he was his customer.
16. During his cross examination he stated that the above mentioned 02
bags which were supplied to Sanjay Store were in stitched condition and were not in
open condition. He stated that he does not remember whether any mark etc was
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printed upon the said bags or not. He stated that he has no knowledge that a sample
of dal arhar was lifted from accused Sanjay Mangla on 08.04.2003 and it was found
containing Tartrazine colour. He stated that he has no knowledge whether the colour
found in the sample commodity was added by the accused or by the firm.
17. This so far is the evidence in the matter.
18. 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.
19. 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.
20. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Rajpal Singh coupled with the report of the
Director, CFL dated 20.10.2003 that accused Sanjay Mangla was indeed found selling
Dal Arhar which was adulterated on account of it containing synthetic colour viz.
Tartrazine.
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21. The star / the material witness of the prosecution i.e. Food Inspector
Rajpal Singh categorically proved the sample proceedings dated 08.04.2003 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. especially question no. 1 and 2 as recorded on 01.04.2013 before Ld.
Predecessor of this court 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 and Ex. PW1/D which is in the handwriting of accused and bears his signatures
no doubt remains that the sample of Dal Arhar was indeed collected by the Food
Inspector for analysis from M/s Sanjay Mangla Store of which accused is the vendor
cum Proprietor.
22. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
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the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
23. At the outset it was argued that that no public witness was joined by the
FI during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings and hence no
reliance can be placed on the alleged sample proceedings.
24. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
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requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
25. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
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obligation to cite independent witnesses.".
26. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
27. 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.".
28. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
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"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."
29. It is writ large from the deposition of PW1, PW2 and PW3 that FI Rajpal
Singh 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
30. It was also one of the arguments that there was violation of Rule 14 of
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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 jhaba used for lifting the sample as well as the sample bottles in which the
Dal Arhar was put for the purpose of sampling. It was argued that the colour was
already sticking to the jhaba and sample bottles and it was this colour which was
detected by the Director. 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.
31. However I differ with the contentions as raised by the Ld. defence
counsel.
32. 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
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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.
33. I have perused the deposition of the Food Inspector i.e. Rajpal Singh
who was examined as PW1. The Food Inspector deposed as under:
"........At about 5.45 p.m., I purchased 1500 gms of Dal Arhar taken from
a open gunny bag having no label declaration after proper mixing with the help of the
dry and clean Jhaba by rotating it in clockwise, anticlockwise, upward and downward
thoroughly several times on payment of Rs. 39/ vide vendor's receipt Ex. PW1/A.
Then I divided the sample into three equal parts by putting them in three clean and dry
glass bottles separately"
34. During his cross examination he stated as under:
"..........Jhaba was already clean and dry as such same was not made
again clean and dry at the spot and the same was provided by the vendor.....It is
wrong to suggest that Jhaba was already containing colour and same was not made
clean."
35. Similarly PW3 the then SDM/LHA Sh. Satnam Singh deposed as under:
"...........Before taking the sample the Dal Arhar was properly mixed with
the help of a clean and dry JHABA by rotating it in all possible directions i.e.
clockwise, anticlockwise, up and down. The so purchased quantity of sample
commodity was divided into three equal parts then and there by the FI, by putting it
into three clean and dry sample glass bottles."
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36. During the cross examination of this witness not a single suggestion was
given to him that he was deposing falsely or that sample bottles or the jhaba etc. were
dirty or not clean and dry or that some colour was sticking to them. I accordingly find
no reasons to disbelieve the testimony of this witness.
37. PW2 FA Sh. S. Messy 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 brown paper envelope 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."
38. Similarly even during the cross examination of this witness not a single
suggestion was given to him that he was deposing falsely or that sample bottles or the
jhaba etc. were dirty or not clean and dry or that some colour was sticking to them. I
accordingly find no reasons to disbelieve the testimony of this witness.
39. Hence from their deposition/statement no doubt remains that the 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
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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"
40. 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)".
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DA Vs. Sanjay Mangla Page 20 of 67
41. 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.
42. 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
.].
43. 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.
44. 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
CC No. 244/03
DA Vs. Sanjay Mangla Page 21 of 67
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.".
45. 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.".
46. 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. 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."
Homogenization / Mixing of Sample.
47. 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 and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there are variations in the report of Public
CC No. 244/03
DA Vs. Sanjay Mangla Page 22 of 67
Analyst and Director, CFL for example the Public Analyst found the 'moisture' as
6.24%, on the other hand, the Director found the same to be at 9.2%. Similarly the
Director did not find any Weevilled grains and other edible grains in the sample so sent
to him for analysis whereas the PA found the same to be at 0.62% and 0.38%
respectively. Also the PA detected damaged grains at 0.84% in the sample whereas
the Director found the same at 2.5%. It was argued that these variations prove that
the sample were not representative. Reliance was placed upon Kanshi Nath Vs.
State 2005(2) FAC 219 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.
48. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the Food Inspector and the other
complainant witnesses as discussed above that the sample was taken after properly
mixing/ homogenizing the Dal. They proved that the Dal was repeatedly mixed several
times thoroughly in all possible directions i.e. clockwise, anticlockwise, upward and
downward with the help of a Jhaba in the gunny bag itself and thereafter the sample
was lifted. This was enough to homogenize the Dal. Not even a single suggestion was
given to any of the prosecution witnesses that the Dal was not properly mixed before
lifting the sample of the same. Their testimony has thus remained
unchallenged/unrebutted on this material aspect and I have no reasons to disbelieve
the Food Inspector or the other complainant witnesses in this regard. 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.
CC No. 244/03
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49. 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."
50. 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
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DA Vs. Sanjay Mangla Page 24 of 67
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.
51. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 39/ 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.
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 CC No. 244/03 DA Vs. Sanjay Mangla Page 25 of 67 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 cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".
52. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 CC No. 244/03 DA Vs. Sanjay Mangla Page 26 of 67 (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."
53. 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.
54. 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:
CC No. 244/03 DA Vs. Sanjay Mangla Page 27 of 67
"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."
55. 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."
56. 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 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 CC No. 244/03 DA Vs. Sanjay Mangla Page 28 of 67 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 mandates mixing of the food articles at the time when the sample is lifted by the FI. Nonetheless the FI as precautionary measure mixed the sample properly/ repeatedly to homogenize the sample/make it representative as far as possible prior to its lifting. Variations.
57. As far as the arguments regarding variation in the report of Public Analyst and the Director, CFL are concerned I find no merits in the arguments of Ld. Defence counsel that solely on account of variations as held in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports. Firstly, no question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.
58. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the CC No. 244/03 DA Vs. Sanjay Mangla Page 29 of 67 Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.
59. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.
60. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"
61. In its latest judgment titled as Food Inspector, Department of PFA, Govt. of NCT of Delhi Vs. Kailash Chand dated 31.08.2015 the Hon'ble Apex Court remanded back the appeal/file, to the Hon'ble High Court of Delhi, against acquittal order passed by the Hon'ble High Court of Delhi while making the following CC No. 244/03 DA Vs. Sanjay Mangla Page 30 of 67 observations: "The learned Single Judge has taken note of the fact there were two test reports which were beyond permissible limit of 0.3%. The reason ascribed by the learned Single Judge reads as follows:
"In the report of the PA, the moisture was found to be 9.86%, whereas in the report of the CFL, it was found to be 14.4%. The damaged grain in the report of the PA was found to be 0.44% and weevilled grains was found to be 'nil', whereas in the report of the CFL, damaged grain was found to be 03.1% and weevilled grains at to be 02.2%. While in the report of the PA, the uric acid content was not detected in the sample, in the report of the CFL, it was found to be 54.45 ppm.
The learned trial Court has rightly granted the benefit of doubt to the Respondent because of the above variations, which was beyond the permissible limit of 0.3%.
It is submitted by Mr. Neeraj Kishan Kaul, learned Additional Solicitor General that the High Court has not kept itself alive to two aspects, namely, the mandate of Section 13 (3) of the PFA Act and the language employed in Rules 23, 28 and 29 of the 1955 Rules. Section 13 (3) of the PFA Act reads as follows:
"The certificate issued by the Director of the Central Food Laboratory under subsection (2B) shall supersede the report given by the public analyst under subsection (1)."
Relying on the same, it is urged by Mr. Kaul that in case of two reports, if there is a certificate issued by the Director of Central Food Laboratory under Section 13 (2B), the same shall supersede the report given by the public analyist under sub section (1) of Section 13; and in the case at hand as such, a certificate has been obtained by the prosecution and, therefore, the High Court has erred in law by expressing the opinion that there is variation in reports.
Learned Additional Solicitor General pointing out to the 1955 Rules, submits that the addition of synthetic red colour is totally prohibited.....................
...............On a perusal of the judgment and order passed by the High Court, it is perceptible that there has been no analysis in this regard.
In view of the aforesaid, we think it appropriate that the judgement and order passed by the High Court declining to grant leave to appeal, should be set aside CC No. 244/03 DA Vs. Sanjay Mangla Page 31 of 67 and the matter be remanded to the High Court to consider the case in the light of the statutory provision and the provisions enshrined under the 1955 Rules.
Resultantly, the appeal is allowed and the judgment and order passed by the High Court is set aside and the matter is remitted for reconsideration."
62. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor Dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari Dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:
"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".
63. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.
64. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:
CC No. 244/03 DA Vs. Sanjay Mangla Page 32 of 67
".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.
9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."
65. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
66. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation CC No. 244/03 DA Vs. Sanjay Mangla Page 33 of 67 in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".
67. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the CC No. 244/03 DA Vs. Sanjay Mangla Page 34 of 67 Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
68. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.
69. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious CC No. 244/03 DA Vs. Sanjay Mangla Page 35 of 67 that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
70. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:
"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".
71. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".CC No. 244/03 DA Vs. Sanjay Mangla Page 36 of 67
72. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under:
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
73. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only.".
74. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:
"11. It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director CC No. 244/03 DA Vs. Sanjay Mangla Page 37 of 67 cannot therefore be disregarded.".
75. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."
76. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
77. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:
"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub CC No. 244/03 DA Vs. Sanjay Mangla Page 38 of 67 Section".
78. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
79. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".
80. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
81. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:
"Subsection (5) of section 13 clearly envisages that once the report of the Director of CC No. 244/03 DA Vs. Sanjay Mangla Page 39 of 67 the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".
82. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of CC No. 244/03 DA Vs. Sanjay Mangla Page 40 of 67 disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
83. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
84. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:
"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, CC No. 244/03 DA Vs. Sanjay Mangla Page 41 of 67 set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.
85. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.
86. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
87. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
CC No. 244/03 DA Vs. Sanjay Mangla Page 42 of 67
88. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
89. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or CC No. 244/03 DA Vs. Sanjay Mangla Page 43 of 67 thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.
90. Secondly, as far as the variation in the moisture content is concerned it CC No. 244/03 DA Vs. Sanjay Mangla Page 44 of 67 is to be seen that the sample conformed to the standard of moisture both in the analysis by the PA as well as by the Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour (Tartrazine) detected by both the experts as it was not permissible. Hence the varying reports regarding the moisture content becomes insignificant. (State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258). Furthermore Ld. SPP rightly pointed out that the analysis by the PA was done in the month of April whereas the sample was analyzed by the Director in the month of October. The temperature, the humidity, moisture etc. are highly/extremely different/divergent in the two seasons/months. Even in an absolutely air tight bottle, the temperature in the bottle/moisture in the bottle containing food grain/Dal will have a change on account of the outside temperature, pressure, moisture etc. as it is a natural phenomenon. Thirdly, even the damaged grains as detected by the Director were within the prescribed limit. It is settled law that court has only to see the Director's report as the PA's report gets washed off of the records. Furthermore, in heterogeneous food products like Dal the adulteration can never be uniform and even if the Food Inspector with all the expertise available at his disposal takes the sample after properly mixing/ homogenization still there will be slight difference/variation in the sample which is divided into/put into three different sample bottles/counterparts. One part of the sample may have more damaged grains, Weevilled grains and other edible grains etc then the other and may be the third may not have any. The FI had purchased 1500 gms of Dal Arhar and it was divided into three counterparts/put into three different bottles. One counterpart went to PA and CC No. 244/03 DA Vs. Sanjay Mangla Page 45 of 67 other was sent to the Director by the court. Upon division into three parts the damaged grains, Weevilled grains and other edible grains were more in one part then the other and not in the third part. This is practically possible and that is what happened in this case. Fourthly, at the time of the lifting of the sample the Food Inspector is not expected to detect the adulteration in the sample. His role is merely to lift the sample, divide it into three counterparts for the purpose of analysis. He is not expected to and practically also cannot divide the sample into three equal parts so that all the three counterparts have the same amount of adulteration. It is humanly/ practically impossible. He cannot pick and choose the adulterants which vary according to size, nature etc. and place them in all the three counterparts. Therefore no question of variation should be raised or should be allowed to be agitated in the court. This is the reason why the accused/vendor has been given an opportunity to either accept the PA's report or to challenge it by choosing any of the remaining two counterparts and sending the same to the Director, CFL.
91. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on CC No. 244/03 DA Vs. Sanjay Mangla Page 46 of 67 account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Use of colour.
92. 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.
93. However, I differ with the contentions raised by the Ld. defence counsel CC No. 244/03 DA Vs. Sanjay Mangla Page 47 of 67 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 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) ".CC No. 244/03 DA Vs. Sanjay Mangla Page 48 of 67
94. 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 ....... 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.".
95. 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.
96. 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:
CC No. 244/03 DA Vs. Sanjay Mangla Page 49 of 67
"(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.
97. Regarding the defence plea that the addition of the colour did not make the Dal 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.".
98. 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 CC No. 244/03 DA Vs. Sanjay Mangla Page 50 of 67 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".
99. Similarly in Mithilesh Vs. State of NCT of Delhi decided on28.05.2014 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".
100. 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 permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".
101. When a prohibited/foreign matter is discovered in the the article of food CC No. 244/03 DA Vs. Sanjay Mangla Page 51 of 67 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.
102. 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.
103. 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.
104. It was further argued that the usual test for detecting colour is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon 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. As per the report of CC No. 244/03 DA Vs. Sanjay Mangla Page 52 of 67 the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless 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 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 CC No. 244/03 DA Vs. Sanjay Mangla Page 53 of 67 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."
105. 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
106. It was further argued that in the report of the Director 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. 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 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 Director did not mention the percentage of colour as the mere presence of colour amounts to CC No. 244/03 DA Vs. Sanjay Mangla Page 54 of 67 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.
Prosecution bad in law
107. It was also one of the argument of Ld. Defence counsel that the prosecution itself was bad in law. It was argued that the prosecution was launched on 26.06.2003 on the basis of the Public Analyst's report dated 24.04.2003. It was argued that as per the Public Analyst's report she used Chromatography method to analyze the sample/ detect the presence of artificial colour if any in the sampled product. Relying upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal), the Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because though Section 23 (which empowers the Central Government to make rules to carry out the provisions of the Act) was amended w.e.f. 01.04.1976 and CC No. 244/03 DA Vs. Sanjay Mangla Page 55 of 67 Sub Clause (ee) and (hh) were inserted in Clause (1A) of Section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used however the methods of analysis to be adopted were specified for the first time only w.e.f. 25.03.2008 after clause 9 was inserted in Rule 4. It was argued that therefore any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or for that matter the Director, CFL could adopt for analysis of the sampled product.
108. However I do not agree with the contentions of Ld. Defence counsel. I have perused the provisions of the Prevention of Food Adulteration Act 1954 as well as Food Adulteration Rules 1955.
109. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the government Central or State by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL the report is final/holds good for all purposes/ 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 CC No. 244/03 DA Vs. Sanjay Mangla Page 56 of 67 (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. 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. 24.04.2003 she was a duly/ validly appointed Public Analyst.
110. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act.
111. As per Section 13 (2) of the Act the Public Analyst's report can be challenged by getting the counterpart of the sample analyzed by the Central Food Laboratory. The analysis at the Central food Laboratory is done by the Director whose report has been made conclusive and final as far as the results of the analysis is concerned. {Section 13 (3) } CC No. 244/03 DA Vs. Sanjay Mangla Page 57 of 67
112. As per Rule 3 (a) of PFA Rules one of the most important and primary function of the Central Food Laboratory is to analyze the sample of food and give a certificate of analysis accordingly. As per Rule 3 (2) CFL, Pune was designated/ specified laboratory at the relevant time to analyze the sample of food article lifted from Delhi. Prior to that CFL, Calcutta was assigned the said function/duty and presently CFL, Mysore is doing the same.
113. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same read as:
The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A subcommittee under the convenership of Dr. Sadgopal, CC No. 244/03 DA Vs. Sanjay Mangla Page 58 of 67 Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Subcommittee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
114. The Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee i.e. Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
115. Therefore on the day of analysis of the sample in question the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. Furthermore on the day of analysis of the counterpart of the sample in question CFL, Pune was a designated/ specified laboratory as per the Act and Rules appended therein to analyze the sample in question and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
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116. As far as Pepsico's case (supra) is concerned the judgment cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgment relied upon by the Ld. Defence counsel read as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35. The High Court also misconstrued the provisions of Section 23(1A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
117. It is to be seen that in that case as observed in para 34 even the CC No. 244/03 DA Vs. Sanjay Mangla Page 60 of 67 laboratories where the tests were to be performed were not specified. But as is the case herein the analysis was done by CFL, Pune which was a specified/ designated laboratory to analyze the sample as per Rule 3 r/w section 13 of the Act. Moreover in Pepsico's case it was held that the percentage of Carbofuran detected in the sample was within the tolerance limits prescribed for sweetened carbonated water.
118. Regarding the pick and choose method as discussed above the Central Committee for Food Standards, constituted by the Central Government as per Section 3 of the PFA Act to give effect to the scheme and purpose of the Act, considered this aspect and directed and specified the methods to be adopted uniformally for analysis of the food product to remove the anomaly which may occur due to use of different methods by different experts in respect of the same food product. These adopted methods were used prior to their being specifically notified in Rule 4 (9) which came into force w.e.f. 2008 and which had led to the adulterators being prosecuted and punished even by the Hon'ble Apex Court in numerous rulings upto the year 2008 also.
Warranty
119. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that admittedly the accused was merely a vendor/retailer and not the manufacturer of sampled product. It was argued CC No. 244/03 DA Vs. Sanjay Mangla Page 61 of 67 that he had purchased the article from M/s Munna Lal Bharat Singh, 405355, Naya Bazar, Delhi vide bill no. 68663 dated 25.03.2003 i.e. Mark X and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued on behalf of accused that he had purchased the article from the above manufacturer / dealer and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused.
120. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.
121. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular CC No. 244/03 DA Vs. Sanjay Mangla Page 62 of 67 person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.
122. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:
"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."
123. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil CC No. 244/03 DA Vs. Sanjay Mangla Page 63 of 67 Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.
124. In the case at hand, benefit of warranty cannot be granted to the accused for numerous reasons. Firstly, the genuineness/ authenticity of the claim of the accused of having purchased Dal from M/s Munna Lal Bharat Singh remained doubtful. The proprietor/owner/partner of M/s Munna Lal Bharat Singh was never brought in the witness box/produced in the court by the accused to substantiate his claim that he had purchased the sampled dal from M/s Munna Lal Bharat Singh vide the above bill Mark X. The bill Mark X could not be proved as per the Rules of evidence. The author/executor of the bill was never examined, it does not bear the signatures of the accused and therefore its genuineness could not be established. In fact during his cross examination as DW1 accused stated that he is even not aware as to who is owner/ proprietor of M/s Munna Lal Bharat Singh. No doubt accused examined Sunil Kumar Gupta i.e. DW2 who claimed that he was the commission agent through whom the purchase was made by accused from M/s Munna Lal Bharat Singh however his testimony does not help the cause of the accused and in fact creates doubt upon the claim of DW1. DW1 had claimed that he had made a payment of the Dal to the commission agent i.e. Sunil Kumar Gupta (DW2) however Sunil Kumar Gupta categorically stated that the payment was made by Sanjay Store directly to M/s Munna Lal Bharat Singh. Though both of them claimed that bill Mark X bears the signatures of Munim however they failed to give the name of said Munim and the CC No. 244/03 DA Vs. Sanjay Mangla Page 64 of 67 accused did not examine him in his defence. All this creates grave doubts upon the accused's claim. Secondly, it is not disputed (prosecution witnesses proved and accused admitted during his cross examination) that when the sample of Dal was lifted it was lifted from an open gunny bag Hence even if it is assumed that the accused had purchased the Dal from M/s Munna Lal Bharat Singh (though not proved by the accused) still he is not entitled to warranty as the accused could not prove that he had stored the Dal in the same condition in which he had purchased it. To claim the benefit of warranty, it was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but further that they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a stitched bag and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening CC No. 244/03 DA Vs. Sanjay Mangla Page 65 of 67 the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode/condition in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the manufacturer/supplier who no longer has control over the articles so sold. In the case at hand during his cross examination the accused claimed/stated that he had purchased the Dal in stitched bag and he admitted that when the Dal was lifted it was lifted from an open bag. Hence the accused is not entitled to benefit of warranty.
125. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23 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) (b) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.
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126. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 21st September 2015 ACMMII/ New Delhi CC No. 244/03 DA Vs. Sanjay Mangla Page 67 of 67