Delhi District Court
Da vs . Naresh Kumar Page 1 Of 46 on 6 May, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 45/06
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT,
1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Naresh Kumar
S/o Sh. Sita Ram
M/s Matthi Wala,
B1/133, New Moti Nagar,
New Delhi15
........ VendorcumProprietor
Serial number of the case : 45/06
Date of the commission of the offence : 23.10.2005
Date of filing of the complaint : 08/02/06
Name of the Complainant : Sh. V.P. S. Choudhary, Food
Inspector
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DA Vs. Naresh Kumar Page 1 of 46
Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954 and Rule 30 of PFA
Rules, 1955, punishable U/s
16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 06/05/14
Judgment announced on : 06/05/14
Brief facts of the case
1. In brief the case of the prosecution is that on 23.10.2005 at about 12.15
p.m., Food Inspector V.P.S. Choudhary and Field Assistant Balwant Shah, under the
supervision and directions of SDM / LHA K.K. Sharma visited M/s Mathi Wala,
B1/133, New Moti Nagar, New Delhi, where accused Naresh Kumar who was the
vendorcumproprietor was found present conducting the business of various sweet
articles including Boondi, 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 Boondi.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was adulterated
because it was found not containing cotton seed oil as declared under the ingredients
and accordingly after obtaining the necessary Sanction / Consent under Section 20 of
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the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a)
(b) (j) & (m) of PFA Act 1954 and, punishable U/s 16 (1) (a) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 08.02.2006. 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 06.03.2006. The Director, CFL after analysing the sample
opined vide its Certificate dated 05.04.2006 that "sample bearing no. 91/LHA/13687
contravenes Rule 30 of PFA Rules 1955". The director so opined as the colour content
of Tartrazine was found at 142.85 ppm as against the maximum limit of 100 ppm.
4. In pre charge evidence, the prosecution examined one witness i.e. Food
Inspector V.P.S Choudhary and pre charge evidence was closed vide order dated
10.10.2007.
5. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954 r/w Rule 30 of PFA Rules 1955, punishable U/s 16 (1A) r/w section 7 of the
Act was framed against the accused vide order dated 02.05.2009 to which accused
pleaded not guilty and claimed trial.
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6. Thereafter, in post charge evidence the prosecution examined three
witnesses including Food Inspector V.P.S. Choudhary as PW1, Field Assistant
Balwant Shah as PW2 and the then SDM / LHA Sh. K.K. Sharma as PW3 and PE
was closed vide order dated 26.04.2013.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 27.07.2013
wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Food Inspector, V.P.S. Choudhary deposed that on 23.10.2005 he
alongwith FA Balwant Shah under supervision and directions of SDM / LHA Sh. K.K.
Sharma along with staff went to M/s Matthi Wala, B 1/133, New Moti Nagar, New Delhi
where accused Naresh Kumar was found conducting the business of food articles in
that shop including boondi meant for sale for human consumption. He further deposed
that he tried his best to procure some public witnesses to join the sample proceedings
but as none agreed for the same, on his request FA Balwant Shah agreed and joined
as witness. He deposed that he and LHA/SDM disclosed their identity and intention for
taking the sample to which accused agreed. He deposed that then 1500 gms of
boondi ready for sale for human consumption was taken from an open tray bearing no
label declaration. He deposed that the sample was taken at about 12.15 p.m. He
deposed that the sample was taken after cutting into very small pieces with the help of
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clean and dry spoon and in a clean and dry tray and properly mixed with the help of
same spoon and in the same tray. He deposed that then he divided the sample then
and there into three equal parts by putting them in three clean and dry glass bottles
separately. He deposed that 40 drops of formalin was added to each sample bottle
with a clean and dry glass dropper and mixed properly/thoroughly shaked for its
uniform dispersion. He deposed that then each sample bottle containing the sample
separately packed, fastened, marked and sealed according to PFA Act & Rules and
then the vendor signatures were obtained on LHA slip bearing his code number and
signature and the wrapper of the sample bottles in such a manner that a portion of his
signature were on the wrapper as well as on the LHA slip. He deposed that Rs. 72/
was given to the vendor towards the sample price vide vendor's receipt Ex. PW1/A. He
deposed that then notice in form VI Ex. PW1/B was given to the accused with his
endorsement at portion A to A. He deposed that panchnama Ex. PW1/C was
prepared. He further deposed that all these documents Ex. PW 1/A to Ex. PW 1/C
were read over and explained to the accused in Hindi and after understanding the
same, accused signed at point A, witness at point B and he himself signed the same at
point C respectively.
9. He further deposed that one counterpart of the sample was deposited
with PA in intact condition on 24.10.2005 vide receipt Ex. PW1/D in a sealed packet
containing one copy of memo in form VII and another sealed envelope containing one
copy of another Memo in Form VII. He further deposed that two counterparts of the
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sample were deposited in intact condition with LHA on 24.10.2005 vide receipt Ex. PW
1/E, bearing his signature at point A, with the intimation that one counterpart of the
sample has already been deposited in intact condition with Public Analyst along with
two copies of memo of Form VII in a sealed packet. He further deposed that all the
copies of Memo of Form VII were marked with the impression of seal which was used
to seal the sample counterparts. He further deposed that Public Analyst's report Ex.
PW 1/F was received according to which, the sample was found adulterated because
it does not contain cotton seed oil as declared under the ingredients as mentioned
therein at portion X. He further deposed that during investigation, he sent a letter Ex.
PW 1/G to STO Ward No. 52 and received its reply at portion A that said firm was not
registered. He deposed that accused furnished his statement Ex. PW1/H bearing his
signature at point A. He further deposed that on completion of investigation, the
complete case file alongwith all statutory documents were sent to Director (PFA) Sh.
Dewan Chand through LHA, who after going through the case file gave his Consent
Ex. PW 1/J for launching prosecution against the accused and accordingly he filed the
complaint Ex. PW 1/K in the court. He further deposed that intimation letter Ex. PW
1/L alongwith PA's report was sent to accused by registered post which was not
received back undelivered. He also placed on record copy of postal registration
receipt Ex. PW 1/M, bearing relevant entry at portion A and B.
10. During his cross examination he stated that he has studied chemistry
upto M.Sc. He stated that he cannot comment that oil extracted from the prepared
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food cannot be expected to confirm the specification of fresh oil. He admitted that
when other articles are fried in oil they leave their traces in the oil. He stated that he
cannot say that thereby they disturb the analytical values of cooking medium. He
denied the suggestion that test for Baudouin would not be negative if the oil is heated.
He stated that he has not seen the book chemical analysis food by David Pearson. He
stated that he cannot comment that it is provided at page 504 of the Book that if
Vanaspati or seasame oil is heated upto 200 degree c for half an hour, the Baudouin
test becomes negative. He stated that it is not in his knowledge that any circular has
been issued to DGHS that oils extracted from sweet like jalebi, Boondi etc should not
be tested for Baudouin test. He stated that as per his knowledge the values of oil
should not be change by heating. He stated that he had not asked the PA why all the
tests were not conducted as provided for cotton seed oil. He admitted that as per
report of the PA colour was found upto 56.62 ppm i.e. within the permissible limit but it
was found 142.85 ppm by the Director, CFL. He stated that he cannot comment upon
the report of Director CFL that the oil extracted from the boondi did not conform to the
specification of cotton seed oil. He denied the suggestion that sample bottles were not
sealed in the presence of the accused but in their office vehicle. He admitted that
accused is a crippled man and unable to stand. He denied the suggestion that
accused had stated that he was not doing any business but it was being carried out by
several servants. He admitted that there was no sitting space in the shop of the
accused and purchases used to be made while standing on the pavements from
outside the shop of the accused.
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11. PW2 FA Balwant Shah and PW3 K.K. Sharma, the then SDM/LHA have
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.
13. 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.
14. 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.
15. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector V.P.S. Choudhary coupled with the report of the
Director dated 05.04.2006 that accused Naresh Kumar was indeed found selling
boondi which was adulterated as it contained tartrazine much above the maximum
prescribed limit of 100 ppm.
16. The star / the material witness of the prosecution i.e. Food Inspector
V.P.S. Choudhary categorically proved the sample proceedings dated 23.10.2005 as
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were conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution and which bears the
signature of the accused as well, the admissions made by the accused during his
examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of this
Court on 27.07.2013 which are admissible in evidence against the accused in view of
sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas
Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh,
(SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal Pradesh,
(SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570,
State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad
Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of
Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315
coupled with document Ex. PW1/H which is in the handwriting of accused and also
bears his signatures, no doubt remains that the sample of boondi was indeed
purchased/ collected by the Food Inspector for analysis from M/s Matthi Wala of which
the accused is the proprietor cum vendor.
17. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
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Public witness
18. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings and hence no
reliance can be placed on the alleged sample proceedings.
19. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
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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.
20. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
21. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
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".......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
22. 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.".
23. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
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cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
24. It is writ large from the deposition of PW1, PW2 and PW3 that FI V.P.S.
Choudhary 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
25. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles as well as the instrument i.e. spoon with which the sample
was mixed. It was argued that Rule 14 of the Act is mandatory and not directory and
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in case there is no strict adherence to Rule 14, benefit has to be given to the accused.
Reliance was placed on the law laid down in State of Gujarat Vs. Harumal Retumal
and others 2008 FAJ 292 (Guj), Koyakutty Vs. Food Inspector 2000 (2) FAC 238
and Shew Chander Mathur and anr Vs. State of Assam and anr., 1991 (1) FAC 9.
26. However I differ with the contentions as raised by the Ld. defence
counsel.
27. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to mix the same. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
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28. I have perused the deposition of the Food Inspector i.e. V.P.S.
Choudhary, who was examined as PW1. The Food Inspector deposed as under:
"The sample was taken after cutting into very small pieces with the help
of clean and dry spoon and in a clean and dry tray and properly mixed with the help of
same spoon and in the same tray. Then I divided the sample then and there into three
equal parts by putting them in three clean and dry glass bottles separately"
29. The Food Inspector was not cross examined even once on this aspect
i.e. his testimony regarding the bottles as well as spoon and tray being clean and dry
remained unchallenged and I find no reasons to disbelieve him.
30. Similarly PW3 the then SDM/LHA Sh.K.K. Sharma deposed as under:
" Before taking the sample, the entire quantity of Boondi available in the
tray was properly mixed with the help of a clean and dry spoon by rotating it in all
possible directions. Thereafter, 1500 gms of Boondi was taken out of the entire mixed
lot and was divided into three equal parts by putting it into three clean and dry sample
glass bottles."
31. During his cross examination he stated as under:
".......the Boondi was mixed with the help of a clean and dry spoon, which
was already lying in the tray wherein the boondi was lying. However, it was made
clean and dry by the FI before using the same for sample process.........It is incorrect
to suggest that the method adopted in this case was not proper method. It is incorrect
to suggest that that variations between PA and CFL reports, if any, indicates that a
representative sample was not taken in this case."
32. PW2 FA Balwant Shah deposed as under:
" The sample was taken by proper mixing it with help of clean and dry
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spoon. Then FI V.P.S. Chaudhry divided the sample then and there into three equal
parts by putting them in three clean and dry glass bottles....................."
33. Even this witness was not cross examined regarding his claims that the
sample bottles and the spoon were clean and dry. His testimony too remained
unchallenged.
34. Hence the prosecution witnesses consistently deposed regarding the
spoon as well as the sample bottles and the tray being clean and dry. From their
deposition/statement no doubt remains that the sample proceedings were conducted
in a proper manner and that the sample bottles, the spoon as well as the tray was
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
would use contaminated or unclean instruments or bottles for sampling. The defence
has failed to prove any motive which could be assigned to the above officials for
falsely implicating the accused. Moreover nothing on record has been proved to the
contrary i.e. the defence has not proved that the Food Inspector did not comply with
the provisions of the Rule 14. Just because the defence is challenging the sampling
process conducted by the Food Inspector / asserting that Rule 14 was violated is not
sufficient to either disbelieve or throw away / outrightly reject the testimony of the Food
Inspector. I have also gone through Section 114 (e) of the Indian Evidence Act.
Section 114 reads as under:
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" 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"
35. 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)".
36. 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.
37. 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,
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Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].
38. 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.
39. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
40. 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.".
41. 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
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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.
42. 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.
43. 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 is variations in the report of Public
Analyst and Director, CFL. In fact is was argued that different sample of boondi were
put in different bottles and that is why the reports are not only varying but divergent.
For example the Public Analyst reported the colour/dye content to be within the
permissible limit i.e. 56.62 ppm but had found that the sample did not contain cotton
seed oil as declared under the ingredients. On the other hand the Director found the
colour/dye content at 142.85 ppm. It was argued that these variations proves that the
sample were not representative. Reliance was placed upon Kanshi Nath Vs. State
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2005(2) FAC 219 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.
44. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food
Inspector and the other complainant witnesses as discussed above that the sample
was taken after breaking/cutting the boondi into smallest possible pieces with the help
of a spoon and then properly mixed in a tray with the help of same spoon. I have no
reasons to disbelieve the Food Inspector or the other complainant witnesses in this
regard.
45. Secondly, there was no requirement of mixing or making the sample i.e.
the boondi 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
CC No. 45/06
DA Vs. Naresh Kumar Page 20 of 46
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."
46. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
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.
47. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 72/ 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
CC No. 45/06
DA Vs. Naresh Kumar Page 21 of 46
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 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:
CC No. 45/06 DA Vs. Naresh Kumar Page 22 of 46
"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".
48. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:CC No. 45/06 DA Vs. Naresh Kumar Page 23 of 46
"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."
49. 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.
50. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:
"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."
51. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 24 of 46 conclusion with regard to the presence of artificial colouring matter."
52. 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 boondi etc. the vendor does not give the said food article after mixing the same with the help of spoon/Jhaba or any other instrument in the vessel/tray 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 a spoon/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 the shop owner after homogenization. Hence no question of making the food article/boondi homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI.
Variations.
53. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation in the report of Public Analyst qua the report of Director, CFL and CC No. 45/06 DA Vs. Naresh Kumar Page 25 of 46 accordingly in view of the law laid down 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 I find no merits in the same. 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.
54. 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.
55. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 26 of 46 stand or fall on the report of the Director, Central Food Laboratory"
56. 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".
57. 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.
58. 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:
".............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 CC No. 45/06 DA Vs. Naresh Kumar Page 27 of 46 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."
59. 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."
60. 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 in the two reports, but according to subsection (3) of Section 13 of the Act, the report CC No. 45/06 DA Vs. Naresh Kumar Page 28 of 46 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.".
61. 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. 45/06 DA Vs. Naresh Kumar Page 29 of 46 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."
62. 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 '.
63. 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. 45/06 DA Vs. Naresh Kumar Page 30 of 46 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.".
64. 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.".
65. 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. 45/06 DA Vs. Naresh Kumar Page 31 of 46
66. 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.".
67. 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.".
68. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the CC No. 45/06 DA Vs. Naresh Kumar Page 32 of 46 respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
It was further held in para 11 to 14 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 cannot therefore be disregarded.".
69. 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."
70. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 33 of 46 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.".
71. 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 Section".
72. 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.
73. 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.".
74. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) CC No. 45/06 DA Vs. Naresh Kumar Page 34 of 46 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.".
75. 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 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.".
76. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 35 of 46 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 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.".
77. 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, CC No. 45/06 DA Vs. Naresh Kumar Page 36 of 46 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".
78. 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, 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.
79. 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.
80. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. CC No. 45/06 DA Vs. Naresh Kumar Page 37 of 46 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.
81. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
82. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 38 of 46 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.
83. 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 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 CC No. 45/06 DA Vs. Naresh Kumar Page 39 of 46 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 arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211. Therefore the arguments that the different boondies were put in different sample bottles is farce/baseless/without merits. It was only after the satisfaction of the accused as discussed above and as recorded in proceedings dated 06.03.2006 that the sample was sent to the Director, CFL. Hence he cannot now agitate that different boondi was put in sample bottles.
84. Furthermore as far as variations in the quantity of colour detected by the two experts is concerned I find merits in the submissions of Ld. SPP who pointed that the colour is added in food article like boondi at the time of its manufacturing. At that time mixing unless done by machine or by any mechanical process the colour cannot be uniformly mixed in food articles and there will always be a case where in some portion of the final product the quantity may be more as compared to the other portion or piece. Ld. SPP pointed out that the mixing of the colour is done by the laborers with the hands and they cannot ever mix it evenly/ uniformly.
85. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 40 of 46 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 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".
Injurious to health.
86. It was further argued by the Ld. defence counsel that there is nothing on record to show that mere excess of tartrazine would make the boondi injurious to health. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60. CC No. 45/06 DA Vs. Naresh Kumar Page 41 of 46
87. However I differ with the contentions of the Ld. Defence counsel in view of the law laid down in Jai Narain Vs. MCD 19481997 FAC (SC) 415. The Hon'ble Apex Court observed as under:
" ....... 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.".
88. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for 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."
89. 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 CC No. 45/06 DA Vs. Naresh Kumar Page 42 of 46 shown is that the article of food in question was adulterated.".
90. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
91. 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.".
92. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the CC No. 45/06 DA Vs. Naresh Kumar Page 43 of 46 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.
93. 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.
94. In the case at hand tartrazine could be added to boondi only to the extent of 100 ppm. However as is evident from the report of the Director the total quantity of the colour content/tartrazine was found at 142.85 ppm. This makes boondi adulterated.
Paper Chromatography Test.
95. It was further argued that the usual method used for analysis is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. However I find no merit in the said contention of the Ld. defence counsel. The method applied by the Director, CFL was as per the DGHS manual. Paper Chromatography is one of the method. Nonetheless in Delhi Administration CC No. 45/06 DA Vs. Naresh Kumar Page 44 of 46 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 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 CC No. 45/06 DA Vs. Naresh Kumar Page 45 of 46 judgment of conviction passed by the learned M.M."
96. In view of my above discussion, as the total dye/colour quantity/content in the sample of Boondi so collected was found at 142.85 ppm which was in excess of the maximum prescribed limit which is 100 ppm as per Rule 30, the accused stands convicted under Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954.
97. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 06th May 2014 ACMMII/ New Delhi CC No. 45/06 DA Vs. Naresh Kumar Page 46 of 46