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[Cites 34, Cited by 0]

Delhi District Court

In Re vs Gopi Singh on 22 August, 2016

               IN THE COURT OF SH. ASHU GARG,
        Addl. Chief Metropolitan Magistrate - II (New Delhi),
                  Patiala House Courts, New Delhi

CC No. 53/00
Unique Case ID No. 02403R0005642000

Date of Institution:             14.03.2000
Date of reserving judgement:     28.06.2016
Date of pronouncement:           22.08.2016

In re:
Delhi Administration / Food Inspector
Department of PFA, Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                             ...           Complainant

               versus

Gopi Singh
S/o. Sh. Roshan Singh
R/o. Vill. Utwara, Distt, Aligarh, UP         ...      Accused


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Gopi Singh is stated to be the vendor of food article, that is, 'Khoa' that was lifted for sampling while being carried by him at the auction site.

2. As per the complaint, on 05.11.1999, Food Inspector (FI) V. P. S. Chaudhary purchased a sample of Khoa from the accused when he was CC No. 53/00 Page 1 of 38 found carrying the same at the Auction Site, Opposite Old Delhi Railway Station, Delhi-110006 meant for sale. The sample was taken under the selection/direction of Local Health Authority (LHA)/SDM Sh. Arun Mishra and FI S. K. Gupta was also joined as a witness. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each counterpart of the sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, etc. The price of sample was also paid to the vendor vide vendor's receipt. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 22.11.1999, the PA found the sample to be not conforming to the standards on the ground that milk fat on dried weight basis was 27.66% which was less than the prescribed minimum limit of 30%. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 14.03.2000 alleging violation of section 2(ia)(a) and

(m) of PFA Act, as punishable under section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 14.03.2000. The accused appeared but never opted to file an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from Central Food Laboratory (CFL).

CC No. 53/00 Page 2 of 38

4. On the basis of PA report, the matter was listed for pre-charge evidence (though the matter was summons triable complaint case, but it was so listed for pre-charge evidence vide order dated 09.06.2004 thereby adopting the procedure for warrants triable complaint case), wherein the complainant examined PW-1 FI V. P. S. Chaudhary. On the basis of his testimony, charge/notice was framed against the accused on 01.07.2009 for commission of the offence punishable under section 7/16(1)(ia) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial. At the trial, PW-1 was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 FI Sanjeev Kumar Gupta and PW-3 Sh. Arun Mishra, SDM/LHA in post-charge stage of evidence.

5. PW-1, PW-2 and PW-3 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 05.11.1999 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample of Khoa for analysis, lifting the sample of 750 gms of Khoa lying in a Tasla in pindi shapes bearing no label declaration, cutting it into smallest possible pieces with the help of a clean and dry knife, mixing it properly, dividing it in three parts and putting in clean and dry bottles, adding formalin as preservative, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witness. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A vide CC No. 53/00 Page 3 of 38 which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. On the same day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/D and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. The accused was arrested at the spot and produced before the court vide application Ex. PW-1/G where he was admitted to bail on the same day. PA report Ex. PW-1/F was received opining the sample to be not conforming to standards. Upon direction of SDM/LHA, further investigation was carried out and thereafter, sanction Ex. PW-1/H was taken from the Director PFA and the complaint Ex. PW-1/J was filed in the court. Copy of PA report and intimation letter Ex. PW-1/K were sent to the accused through registered post vide receipt Ex. PW-1/L. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused had been falsely implicated. They denied that the accused had informed them at the spot that he was not dealing in sale of khoa or that he was servant / employee of one Sh. Vinod Kumar Sharma.

6. Statement of the accused under section 313 CrPC was recorded on 16.07.2014 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 05.11.1999, yet he claimed that no efforts were made to join public witnesses and that that the sample was not mixed properly. He took stand that the bottles were not clean and dry and that the khoa pindi had been broken with hands. He asserted that the owner of the commodity was one Sh. Manoj Kumar Sharma of his village CC No. 53/00 Page 4 of 38 and that he was his employee and had brought the khoa for selling the same in Delhi only for one day. He chose to lead evidence in defence.

7. The accused examined himself as DW-1 as the only defence witness. He deposed that he was caught by the FI while he was carrying 30 kgs of Khoa in a Tasla at the auction site on 05.11.1999 when he came from Putwara by train. He reiterated that the khoa belonged to one Sh. Vinod Kumar Sharma. He dpeosed that he had received a letter dated 23.12.1999 from the FI (PW-1) seeking some information, which he replied vide letter dated 31.12.1999 Ex. DW-1/A that was sent through registered post vide receipt Ex. DW-1/B. During cross-examination, he stated that he had no documentary proof to show that he was employed by Sh. Vinod Kumar Sharma or that he had forged the documents Ex. DW- 1/A and Ex. DW-1/B.

8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the PA report dated 22.11.1999. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.

9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that the PA report and intimation letter were never CC No. 53/00 Page 5 of 38 received by the accused and thus, the right of the accused under section 13(2) PFA Act stood frustrated. It is also argued that the complaint was filed after four months and on this score also, the right of the accused stood frustrated because khoa is a perishable item and by that time, it would have become unfit for further analysis. It is then contended that the khoa was not meant for sale as there is no witness who had seen the accused selling the khoa to any customer. It is strongly submitted that the accused was not the manufacturer / owner of khoa and was only an employee/servant of one Sh. Vinod Kumar Sharma. Ld. Counsel has argued that the PA was not competent to analyse the sample and also that the prosecution was bad in law as the labs and test methods have not been notified by the government. It is submitted that even the sample procedure was not proper and the possibility of contamination cannot be ruled out.

10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.

11. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed CC No. 53/00 Page 6 of 38 standard or its constituents are present in quantities not within the prescribed limits of variability.

12. The commodity in the present case is Khoa / Khoya which is a milk product falling under Item No. A.11.02.17 of Appendix-B of PFA Rules (as it existed on the date of incident, prior to amendment in 2005 when it was renumbered as A.11.02.12) which read:

"KHOYA by whatever variety of names it is sold such as Pindi, Danedar, Dhap, Mawa or kava means the product obtained from cow or buffalo or goat or sheep milk or milk solids or a combination therof by rapid drying. The milk fat content shall not be less than 30 per cent on dry weight basis of finished product, It may contain citric acid not more than 0.1 per cent by weight. It shall be free from added starch, added sugar and added colouring matter."

13. The present case is based on the findings of PA as given in report Ex. PW-1/F. It is to be understood that report of chemical expert is admissible in evidence under section 293 CrPC without formal examination of such expert. As far as this report is concerned, the contents and findings therein have not been disputed by the defence, though it is claimed that such findings are wrong on account of incorrect sampling methodology. It is nowhere the defence of the accused that the PA had adopted an incorrect method of analysis or there was some other mistake in the report. No request was made by the accused to cross- examine the PA when this option was available, so as to question her on the testing methodology adopted. The report shows that Milk fat content on dry weight basis was found to be 27.66%, which should have been not less than 30.0%. It is nowhere the stand of the accused that some CC No. 53/00 Page 7 of 38 improper or unreliable method was used to analyse the milk fat content. The office of the PA maintains all the details of the methods used, the analytical values, the calculations, etc on the basis if which the final report is given. The final report so given is in the format as prescribed under the Rules (as the Rules existed at that time). No attempt was made by the accused to call for those records or question the PA as to the validity, details or intricacies of the test methodology. Even when the report of chemical expert is admissible in evidence without formal proof under section 293 CrPC, it can always be questioned on any point on which they are silent. If the accused wishes such report to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross-examine the PA. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, the report of PA has never been questioned. In such a case, there is no reason why the accused did not opt to cross- examine the PA and ask her about the method used by her to detect milk fat content, if he was genuinely aggrieved by contents of her report. The accused cannot be allowed to take benefit of his failure to apply and cross- examine the CFL when this opportunity was available to him. Reliance can be placed on judgements titled as Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206], wherein it was observed that "the contents of CC No. 53/00 Page 8 of 38 the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross- examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

14. It is then to be noted that the accused has also not exercised his right under section 13(2) PFA Act for getting the sample analysed through CFL. For this, the arguments are that PA report with intimation letter were never served upon him, and that delay in filing the complaint frustrated his right as shelf life of khoa was over by that time and it would have been rendered unfit for analysis.

15. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2) of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of CC No. 53/00 Page 9 of 38 report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.

16. It is to be noted that sample of khoa in this case was lifted on 05.11.1999 and it was analysed by PA around 22.11.1999. The complaint was filed on 14.03.2000.

17. At the outset, there is no merit in the contention that the PA report was not received by the accused. PW-1 and PW-3 both deposed about sending the copy of PA report with intimation letter Ex. PW-1/K through registered post vide receipt Ex. PW-1/L. The original of this receipt had been produced on record during the testimony of PW-1 and its copy compared with the original at that time. Evidence of PW-1 shows "Office file containing original documents seen and returned". It is pertinent to note that the genuineness of this document has never been questioned. It is not the case where no original receipt exists or that the receipt shown to the court was forged or fabricated. Despite taking an objection while exhibiting Ex. PW-1/L, the correctness of the postal receipt has not been questioned during cross-examination of PWs. Not even a single suggestion was given to the witnesses that the postal receipt Ex. PW-1/L CC No. 53/00 Page 10 of 38 was a forged or fabricated or that no such letter was sent or that it was sent at an incorrect address. Thus, accused cannot take benefit on this count.

18. Further, it is seen that the accused is not disputing the factum of sending the letter through registered post. During cross-examination, he only gave suggestions that it was not served upon him. Thus, the accused is accepting that PA report was sent through registered post, though claiming that it was never received by him.

19. Once this fact of sending the letter is so established, section 27 of the General Clauses Act would come into play. It is not the case of the accused that the said letter Ex. PW-1/K was sent at an incorrect address. No such stand has been taken by the accused at any stage of trial including prosecution evidence, statement of accused or defence evidence. The reports on the court summons sent to the accused nowhere shows that the address was incorrect, though he was not found at the address and his brother informed that he was out of town. In such a position, when a letter had been sent through registered post at a correct and proper address, there would be a presumption of service under section 27 of the General Clauses Act in favour of the complainant. The burden would not upon be the complainant to show delivery of the letter and such burden would now shift upon the accused to show that the letter was not so delivered despite having been sent at a correct address through registered post. But the accused has not led any evidence to this effect. He did not even take up this fact while deposing as DW-1. No attempt was made by him to summon the records of postal department to show as to whom the letter CC No. 53/00 Page 11 of 38 was delivered or if it remained undelivered. There is no evidence to show that the letter was not delivered to the accused. Accused has not claimed that he was not staying at that address or was staying at some other address or that it could not have been served upon him at the relevant time. It is not his claim that he was not available at the said address or had shifted from that address. Thus, accused has failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 and PW-3 deposed that the registered letter was not received back undelivered, the burden would be upon the accused to prove anything to the contrary. By not leading any evidence to support his stand, the version of the accused remains unsubstantiated. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused in due course. The accused cannot therefore opt to simply deny the things and claim that PA report was not received by him.

20. Upon this, the accused claims that the delay in filing the complaint had frustrated his right under section 13(2) PFA Act. The question is whether can the delay of four months be called as an "unexplained delay"

so as to automatically frustrate his right? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], that pertained to another milk product "paneer" on the basis of which the Hon'ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis. This judgement was relied upon by the Hon'ble High Court in State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], CC No. 53/00 Page 12 of 38 State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957].

21. It would be seen that in Chanan Lal's case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon'ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his reasearch that a sample of panir would remain fit only for one month when formalin was added and was kept in refrigerator. The Hon'ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held "On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month". The Hon'ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.

CC No. 53/00 Page 13 of 38

22. Well, a lot of issues are involved in the arguments advanced on this count.

23. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal's case to be considered as it is, in this case as well as in all cases of milk products like paneer and khoa. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross-examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future cases even without his examination or cross-examination. There can be other experts in the same field who might have different opinions based on their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal's case cannot be therefore accepted in all cases of paneer blindly.

24. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 Cri.L.J. 1086], full bench of the Hon'ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal's case, which the defence wishes the court to rely straight away) as under:

"It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been CC No. 53/00 Page 14 of 38 relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.
It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds."

25. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after four decades without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.

26. Even otherwise, the judgement in Chanan Lal's case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon'ble Court in that CC No. 53/00 Page 15 of 38 judgement that prosecution should be filed with 17 days of lifting the sample, is now almost impossible to achieve. Rule 9(j) on which the Hon'ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.

27. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require a few days to analyse the sample (as in the present case), to prepare his/her report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court CC No. 53/00 Page 16 of 38 would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in 17 days as per the judgement in Chanan Lal's case. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the case would depend on its own set of facts and circumstances. The judgement in Chanan Lal's case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future pertaining to a sample of paneer or khoa or any other milk product, delay of one month would have to result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.

28. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration in the any sample of paneer, khoa or other milk products, the moment one month lapses from the date of lifting the sample, and if any such case come to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.

29. At this stage, it is also necessary to observe that in Chanan Lal's case, the sample sent to CFL was reported to be decomposed and its CC No. 53/00 Page 17 of 38 contents leaking, rendering it unfit for analysis. Thus, the Hon'ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis, or those cases where the accused chooses not to send sample for analysis to CFL (as in the present case).

30. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or frustrated his rights, only then the delay can be said to be fatal. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.

31. In the case at hand, no question was put to any PW seeking explanation as to why a time of four months was taken in filing the complaint, so as to enable them to explain the circumstances. In such position, four months period cannot be said to be "unexplained delay".

CC No. 53/00 Page 18 of 38

32. It is pertinent to note that in the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], full bench of the Hon'ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that the there was no occasion for the trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analyses to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (a perishable article) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon'ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon'ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal CC No. 53/00 Page 19 of 38 difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup's case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.

33. Even in Chanan Lal's case, the Director CFL had reported that the sample was decomposed and leaking. The judgement would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of the accused to get the sample analysed from CFL. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions and presumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the reports of chemical analysts, as observed in Bishan Sarup's case, only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance, the offence would still be made out, irrespective of such chemical changes on account of delay.

CC No. 53/00 Page 20 of 38

Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

34. As a corollary, the accused cannot choose to forgo his right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused cannot claim that after lapse of any specific time period, his right would automatically stood frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analyses. It is only when the accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he can get benefit of the delay. In judgement titled as Britannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon'ble High Court was dealing with a matter of 'Cheddar Cheese' which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon'ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that " There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the CC No. 53/00 Page 21 of 38 Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed". The Hon'ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, where the accused never applies under Section 13(2) of the Act, he cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused would have applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under Section 13(2) of the Act would have been denied to him.

35. Thus, it is clear that the court would not assume that the right of the accused stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when he exercises his right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. But when the sample was never sent for CC No. 53/00 Page 22 of 38 analysis by the CFL, the court cannot then substitute its own view on the basis of any hypothesis or assumptions and conclude that the sample would have rendered unfit for analysis. However, it would still be open for the accused to establish at evidence that the changes/variations on account of delay had resulted in causing prejudice to him. For instance, if a sample of milk is lifted and prosecution is filed after five months, then the accused cannot choose not to apply for sending the sample to CFL on the ground that his right stood frustrated after lapse of shelf life of milk. He would get benefit only if he applies for analysis for CFL and CFL finds the sample unfit for analysis. But where the CFL finds the milk sample to be fit for analysis and gives it report, the accused cannot get benefit on ground of delay. The accused can still, however, show that on account of such delay, there were certain possible changes in the sample of milk that resulted in variation in the reports of PA and CFL, for which benefit can be given to him. But this rule too would apply where there are natural variations and not where the natural consequences had no effect on adulteration like addition of synthetic colours or poisonous material. Thus, the matter would depend on case to case basis.

36. In view of this proposition, the accused in this case cannot claim that his right under section 13(2) PFA Act stood automatically frustrated when the complaint was filed after four months of lifting the sample so as to give him an option not to file application to send the sample for analysis to CFL. Such argument is liable to be rejected, particularly when the court also observed in order dated 09.06.2004 itself when the accused had CC No. 53/00 Page 23 of 38 appeared that "accused has preferred not to exercise his right u/s 13(2) PFA Act".

37. The judgments relied upon by the accused, that is, State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957] were apparently against acquittals in which the standard of evaluation is different from that against conviction. Even in those matters, the accused persons had exercised their rights under Section 13(2) of PFA Act and thus, they are different on facts. Similarly, in the judgement titled as Delhi Administration v. Suraj [2014(1) FAC 264], the Hon'ble High Court had dismissed the petition after observing that it was keeping in view the principles applicable to appeal against acquittal. This judgement is also different on facts as there was no evidence to show that knife used was clean and dry. In the case at hand, there is positive evidence in the form on testimonies of PWs on oath to show that utensils, implements, bottles, etc. were all clean and dry.

38. Moving ahead, Ld. Counsel argues that the proper method of taking sample was to crush or grate the sample of khoa and not by cutting it into small pieces. Well, there is no such Rule prescribed anywhere. No such method has been shown to be documented in any recognized literature. Grating method may be one good method but is not the only method of lifting the sample. No fault is shown to exist in method adopted by food officials in this case. The purpose is only to evenly distribute formalin to CC No. 53/00 Page 24 of 38 preserve the sample. When the sample was fit for analysis, no fault can be attached to the method. Reliance can be placed on the judgement titled as State v. Shiv Shankar [2012 (1) FAC 212] where the Hon'ble High Court of Delhi had set aside the acquittal and remanded the matter for fresh consideration.

39. Further, there is also no merit in the contention that the khoa in this case was not for sale so as to take it out of purview of PFA Act. As per the definition of "sale" under section 2(xiii) PFA Act, it includes sale of any article of food for analysis or having in possession for sale of any such article. Thus, the definition of "sale" is quite wide. There is no rule of law which requires that the sample could be lifted only when it is actually being sold to any customer. If a food article is exposed for sale for human consumption, even that is covered under the definition of sale. When the accused in this case was carrying khoa pindis in a Tasla and was present at the auction site, the said food article was definitely for sale. There is no evidence to establish anything to the contrary. Even in his statement under section 313 CrPC, the accused stated that he had brought khoya "for selling the same in Delhi" only for one day. Even during his testimony as DW-1, accused never claimed that the khoa was not for sale or was meant for any purpose other than sale. Position would have been different if the said food was stored / exposed not for sale but for personal use or any purpose not covered in the definition of sale.

40. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. The CC No. 53/00 Page 25 of 38 fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 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. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.

41. All the three witnesses in the present case have deposed about the compliance of the necessary rules including use of clean and dry implements / utensils. All the three witnesses categorically deposed in their testimony about use of clean and dry knife and sample bottles. All the three witnesses vehemently denied that the bottles so used by the FI were dirty or containing some material / contaminant. There is nothing on record to establish the stand of the accused that the bottles were not so clean and dry, except some bald averments without any evidentiary proof.

CC No. 53/00 Page 26 of 38

Mere giving suggestions would not establish the existence of facts. There is no witness examined by the accused who could depose that the bottles / knife were not clean or dry. Therefore, it is not a case where there is no evidence to establish that the implements were clean and dry, as being contented by the accused. Rather all the witnesses have deposed that all the utensils / implements were clean and dry. There is no evidence lead by the defence to arrive at any contradictory conclusion. Ld. Defence Counsel has failed to explain as to what evidence was required to establish this fact other than the testimony given by PWs on oath in the court which has not been contradicted.

42. All the witnesses examined on record deposed in conformity to each other on material particulars. At the same time, it is to be understood that human memory is liable to fade and some minor contradictions / exaggerations / omissions / variations could creep in with the passage of time. Unless such contradictions / variations are material enough so as to go to the root of the matter, they should not be allowed to negate or nullify the entire testimony of the witnesses on all other counts.

43. In the present case, PW-1 and PW-2 both confirmed the fact that 30- 40 pindies were there in the tasla. Both of them deposed that the sample was taken from one pindi. Both confirmed each other and stated that the sample was kept on a butter paper in another tasla.

44. Though the version of PW-3 is slightly at variance to these two witnesses, when he stated that about 20 pindis were there and that he did CC No. 53/00 Page 27 of 38 not recall as to how many pindis were taken for the sample or where they were weighed, yet such minor variation would not make him an untrustworthy witness. It is noted that the evidence of PW-3 was recorded in 2013, that is after 14 years of the incident. After lapse of such a long period, such minor contradictions are expected, particularly when the witnesses have been lifting such samples throughout their duties. The witnesses are expected to remember each minute detail with mathematical accuracy and scientific precision. If PW-3 could not recall certain facts pertaining to a period 14 years ago, that would not negate or nullify the evidence of PW-2 and PW-3 who have corroborated each other on material particulars.

45. Similarly, PW-3 deposed about the sample having been weighed on a weighing scale. There is no force in the stand of the defence that this would amount to contradiction as PW-1 and PW-2 did not depose about weighing scale. Apparently, no question was ever put to PW-1 and PW-2 asking them as to how the sample commodity was weighed. When no such question was put to them, they did not get any chance to accept or deny or explain the existence of any weighing scale. Thus, it cannot be said that their testimony is contradictory to PW-3.

46. PW-1 and PW-2 both deposed khoa was lying in tasla in pindi shapes and sample was taken from one pindi (PW-3 could not recall from how many pindis it was taken). Nothing wrong is there is such procedure as the food officials had lifted the sample in the manner it was required to be sold (as per definition of sale). Whenever a customer was to demand CC No. 53/00 Page 28 of 38 khoa of this quantity, the accused would have ordinarily sold him out of one pindi only and not after mixing all the pindis first and then taking out this quantity. If there are hundred pindis of khoa, the FI is not required to take sample from all such pindis and then mix them for proper sampling. Thus, there is nothing improper in the method adopted.

47. Now coming to the defences of the accused. It is the stand of the accused that the food article was mixed with hands, that the implements were not clean and dry, and that he was an employee of one Sh. Vinod Kumar Sharma (referred to as Sh. Manoj Kumar Sharma in statement of accused recorded under section 313 CrPC).

48. However, there is no evidence to establish such stands raised by the accused, primarily because there is no defence evidence to establish these facts. It is pertinent to note that even while deposing as DW-1, the accused never deposed about his version that the sample was mixed with hands and not by knife as stated by the witness, or that the bottles were not clean and dry as suggested to PW-1 and PW-2. Deliberate omission as to existence of these facts in the defence evidence would definitely go against him. Thus, despite giving such suggestions to the PWs, the accused has not led any evidence to this effect even after stepping into the witness box as DW-1.

49. Similarly, there is no proof to show that the accused was an employee / servant of Sh. Vinod Kumar Sharma. No attempt was made by the accused to summon and examine the said Sh. Vinod Kumar Sharma CC No. 53/00 Page 29 of 38 despite the fact that he belonged to the same village. There is nothing to show if any such person exists or not or if the address as disclosed by the accused is correct or not. No salary slip or bank statement has been placed on record to show that the accused has ever received any salary from any such Vinod Kumar Sharma. There is no record of any employment of the accused to this effect. No neighbour, co-worker, superintendent, manager, family member or any other person has been examined in defence who could depose that the accused was working with Sh. Vinod Kumar Sharma or that the food article belonged to him.

50. Rather the version put forth by the accused with respect to the sending of a reply Ex. DW-1/A makes his case all the more doubtful. According to the accused, he had received a letter dated 23.12.1999 Ex. DW-1/A from PW-1 FI V.P.S. Choudhary, to which he sent a reply dated 31.12.1999 (which happens to be the second page of Ex. DW-1/A, though not exhibited separately).

51. A bare perusal of these two documents collectively Ex. DW-1/A would reveal that these documents not at all reliable. The said two documents would make it clear that same have been created / manufactured by the accused subsequently. They are apparently false and fabricated documents. No signatures of FI PW-1 are appearing on the alleged letter dated 23.12.1999. No such letter is a part of record filed by PW-1 in court. Despite that, this document was never put to PW-1 by the defence during his cross-examination enabling him to admit or deny the same. Even existence of any such document was never claimed during CC No. 53/00 Page 30 of 38 entire prosecution evidence. If any such letter was there with the accused, he should have disclosed it during the trial. It is also seen that both these documents (alleged letter and its alleged reply) are strangely on the same type of paper. The papers so used are of strikingly same quality, color and size which also gives reason to doubt their genuineness. Again, a perusal of these documents at the time of this judgement would show that there is not even a fold anywhere on the papers used. If it is the stand of the accused that the said communication was through post, then it is unlikely that there would not be even a single fold in both the papers. Moreover, strangely and apparently, the typewritten contents as appearing in letter dated 23.12.1999 are exactly of the same format, style, formation and even ink as in the reply dated 31.12.1999. All the typed characters and colour of ink are striking similar in the alleged letter and its reply. All these facts cannot be a mere coincidence. It is clear that both these documents have been prepared or typed by the same person and using the same typewriter. In view of this position, particularly when these documents were never put to the PWs and do not bear the signatures of anyone, they cannot be relied upon.

52. Moving ahead, the defence finally claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 14.03.2000 on the basis of the Public Analyst's report dated 22.11.1999. Relying upon the judgement of the Hon'ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was CC No. 53/00 Page 31 of 38 bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that 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 the Director, CFL could adopt for analysis of the product in question.

53. However, I do not find myself in agreement with the said contention or to the interpretation sough to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been CC No. 53/00 Page 32 of 38 booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

54. 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 Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though PA was not sought to be cross-examined under section 293 CrPC to explain the facts to this , yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, she was a duly / validly appointed Public Analyst.

55. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

"The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of CC No. 53/00 Page 33 of 38 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 sub-committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned."

56. This 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 CC No. 53/00 Page 34 of 38 above Committee, that is, 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.

57. 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. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point.

58. As far as Pepsico's case (supra) is concerned, the judgement 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 judgement relied upon by the Ld. Defence counsel reads 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(1-A)(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 CC No. 53/00 Page 35 of 38 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(1-A)(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."

59. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. The Hon'ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico's case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to standards of khoa. In this case, prosecution is for violation of section 2(ia)(a) and (m) of the Act. The present case would be covered by the judgement of the Hon'ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico's CC No. 53/00 Page 36 of 38 case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to some other standards as clearly specified under the rules, and not something like pesticides in carbonated water for which rules were framed subsequently, the ruling in Pepsico's case would not help the accused.

60. The judgments cited by the accused also would not come to his rescue. The judgment titled as Hansraj v. State of Punjab [1980(II) PFA Cases 396] dealt with the sample of milk and not milk products in the present case. The facts in the case at hand are entirely different from that case which pertained to adulteration by water in milk. Similarly, in the case State v. Kamlesh Chand [2002(2) FAC 315], the evidence was doubtful due to contradictions and infirmities in the case and it revolved around its own set of facts. The law laid down in Rameshwar Dayal v. State of U.P [1996(2) FAC 197], Laxmi v. State [1996(2) FAC 198], State v. Subhash Chand [2012(2) JCC 1004] and State of Haryana v. Munim [2006(2) FAC 93] is well settled with respect to right of the accused under section 13(2) PFA Act, but they would not apply to this case as there is nothing in the present case to show that there has been any violation of such a right of the accused. Therefore, no help can be taken by the accused through these judgments.

61. No other stand has been taken by the accused at the trial or during the arguments advanced.

CC No. 53/00 Page 37 of 38

62. Having said so, it is clear that the khoa lying in possession of accused meant for sale for human consumption was adulterated within the meaning of section 2(ia)(a) and (m) of PFA Act. It has been established on record that the khoa was not of the nature, substance or quality which it purported to be as per section 2(ia)(a). It is also established that quality or purity of khoa was below the prescribed standard as per Item No. A.11.02.17 (now renumbered as A.11.02.12) of Appendix-B of PFA Rules, as per section 2(ia)(m) of PFA Act.

63. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had stored / exposed for sale adulterated food in violation of section 2(ia)(a) and (m) of PFA Act, and has committed the offence punishable under section 7/16(1)(a) of PFA Act.

64. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.

65. Let the matter be listed for arguments on sentence.

Announced in the open court this 22nd day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 53/00 Page 38 of 38