Delhi District Court
Da vs . Pankaj Aggarwal Page 1 Of 63 on 21 March, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 93/06
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. Pankaj Aggarwal
S/o Sh. Mahavir Parsad
M/s Aggarwal Sweet
Opp. Shardhanand College,
Alipur, Delhi
........ VendorcumProprietor
Serial number of the case : 93/06
Date of the commission of the offence : 26.10.2005
Date of filing of the complaint : 28.03.2006
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DA Vs. Pankaj Aggarwal Page 1 of 63
Name of the Complainant : Ms. Suniti Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954 and Rule 23, 28, 29 of
PFA Rules, 1955, punishable U/s
16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 21/03/14
Judgment announced on : 21/03/14
Brief facts of the case
1. In brief the case of the prosecution is that on 26.10.2005 at about 08.15
p.m, Food Inspector Sh. Suniti Kumar Gupta and FA Satish Kumar Gaur under the
supervision and directions of SDM / LHA Vijay Dogra visited M/s Aggarwal Sweets,
Opposite Sharadhanand College, Alipur, Delhi, where accused Pankaj Aggarwal was
found present conducting the business of various food articles including Imli ki chatni,
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 Imli ki chatni.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was adulterated
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because it was found "coloured with synthetic colour matter viz. sunset yellow fcf"
and accordingly after obtaining the necessary Sanction / Consent under Section 20 of
the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a)
(j) and (m) of PFA Act 1954 r/w Rule 23, 28 and 29 of PFA Rules 1955, punishable
U/s 16 (1A) r/w Section 7 of the Act.
3. The complaint was filed in the court on 28.03.2006. In pre charge
evidence, the prosecution examined one witness i.e. the FI Suniti Kumar Gupta as
PW1 and pre charge evidence was closed vide order dated 13.07.2009.
4. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act
1954 punishable U/s 16 (1) r/w Rule 23, 28 and 29 of PFA Rules 1955, punishable
U/s 16 (1A) r/w Section 7 of the Act was framed against the accused vide order dated
22.12.2009 to which accused pleaded not guilty and claimed trial.
5. Thereafter, in post charge evidence the prosecution examined three
witnesses including the Food Inspector Suniti Kumar Gupta as PW1, Field Assistant
Satish Kumar Gaur as PW2 and the then SDM Sh. Vijay Dogra as PW3 and PE was
closed vide order dated 01.12.2010.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 19.11.2011
wherein the accused claimed himself to be innocent. Despite opportunity given
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accused failed to examine any witness in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Suniti Kumar Gupta deposed that on 26.10.2005 he along with FA
Satish Kumar Gaur under the supervision and directions of SDM/LHA Sh. Vijay Dogra
visited the premises of M/s Aggarwal Sweets opposite Sharadhanand College, Alipur,
Delhi where accused Pankaj Aggarwal was found conducting the business of food
articles stored there in the shop for sale for human consumption including Imli ki
Chatni. He deposed that he disclosed his identity and intention to lift the sample of Imli
ki chatni (ready for sale) which was lying in an open tin bearing no label declaration for
analysis after inspection of the shop along with SDM/LHA to which accused agreed.
He deposed that before taking the sample he tried his best to procure some public
witnesses by requesting some neighborers, customers and passersby to join the
sample proceedings but as none agreed and on his request FA Satish Kumar Gaur
agreed and joined as witness. He deposed that at about 08.15 p.m. he purchased
1500 grams of Imli ki Chatni after mixing the entire Imli ki Chatni kept in the open tin
bearing no label declaration with the help of clean and dry stainless steel spoon by
rotating it in all possible directions several times on payment of Rs. 45/ vide vendor's
receipt Ex. PW1/A. He deposed that then he divided the so purchased sample of Imli
ki Chatni into three equal parts by putting them in three clean and dry glass bottles
separately and 40 drops of formalin were added in each counterpart with the help of
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clean and dry glass dropper. He deposed that then each sample bottle containing the
sample was separately packed, fastened, marked and sealed according to PFA Act
and Rules. He deposed that LHA slips bearing code number and signature of LHA
was affixed on all the three counterparts of the bottles and thereafter vendor
signatures were obtained on LHA slip in such a manner that a portion of his signature
were on the wrapper as well as on the LHA slips. He deposed that then notice in Form
VI Ex. PW1/B was prepared at the spot and copy of it was given to the accused as per
his endorsement at portion A to A. He deposed that panchnama Ex. PW1/C was
prepared. He deposed that vendor also furnished his statement Ex. PW1/D at the spot
wherein he disclosed the ingredients of Imli ki Chatni that same is prepared with Imli,
sugar, jeera, Dhania, mirch and Salt and was ready for sale. He deposed that report
under Rule 9(e) Ex. PW1/D1 was prepared at the spot. He deposed that vendor also
provided the photocopy of the DL Mark X as a proof of identity. He deposed that all
these documents Ex. PW1/A to Ex. PW1/C were read over and explained to the
accused in Hindi thereafter accused signed at point A, witness signed at point B and
he signed at point C respectively. He deposed that one counterpart of the sample was
deposited with the PA on 27.10.2005 vide receipt Ex. PW1/E in a sealed packet
containing one copy of Memo in Form VII and another sealed envelop containing one
copy of another memo in Form VII separately. He deposed that the two counterparts
of the sample along with two copies of memo of Form VII in a sealed packed were
deposited in intact condition with the LHA on 27.10.2005 vide receipt Ex. PW1/F with
the intimation that one counterpart of the sample has already been deposited in intact
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condition with the PA and all the copies of Memo of Form VII bore the same seal
impression with which the sample in question was sealed. He deposed that on receipt
of PA report Ex. PW1/G the sample was found adulterated as mentioned therein at
portion X. He deposed that during investigation he sent a letter Ex. PW1/H to the
STO Ward no. 71 and reply received at portion A, according to which the said firm was
not registered with the Sales Tax. He deposed that he also sent a letter Ex. PW1/I to
the Deputy Health Officer, MCD, Narela and as per its reply at portion A father of
vendor was licensee as well as the proprietor of the said shop. He deposed that he
also sent a letter Ex. PW1/J to the vendor and received its reply Ex. PW1/J1 according
to which Pankaj Aggarwal was sole owner of the said shop. He deposed that on
completion of the investigation the file along with all statutory documents were sent to
the then director PFA Sh. Deewan Chand through LHA who gave his consent Ex.
PW1/K and complaint Ex. PW1/L was filed by him. He deposed that intimation letter
Ex. PW1/M along with PA report was sent to accused through SDM/LHA by registered
post vide receipt Ex. PW1/N which were not received back undelivered.
8. During his cross examination he admitted that copy of his gazette
notification as FI is not on judicial file. He admitted that as per notification he was
appointed as FI for whole Delhi but no separate posting area is given. He stated that
on the day of sampling he was posted as FI in sub division Narela. He stated that he
does not know whether the Govt. of NCT of Delhi, PFA Department has not declared
the subdivision as local area. He stated that the tin from which the sample of Imli ki
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Chatni was lifted was old one and approximately 8 Kg of Imli ki Chatni was lying in the
tin. He stated that the capacity of the tin was about 15 Kg. He stated that Imli ki Chatni
was mixed by him with the help of clean and dry stainless steel big spoon by rotating
in all possible directions several times. He stated that Imli ki Chatni after mixing
properly was put into a clean and dry stainless steel jug and then it was weighed and
thereafter Imli ki Chatni was put into the clean and dry glass bottles. He stated that
bottles were already dry and clean and the same were not made again dry and clean
at the spot. He stated that the stainless steel spoon was provided by the vendor. He
denied the suggestion that the vendor was not having any stainless steel spoon or the
sample commodity was not mixed by him. He stated that the colour of Imli ki Chatni
was dark reddish. He stated that the colour of Imli was dark brown. He denied the
suggestion that no added colour was found by the PA. He voluntarily stated that FCF
synthetic colouring matter was found by the PA. He admitted that the name of test has
not been given in the PA report but it is mentioned that PA applied the method
provided by the DGHS manual. He stated that PA receipt was signed by the Clerk in
the office of PA. He stated that he cannot tell the name of that Clerk. He stated that
four copies of Form VII in original were prepared at the spot. He stated that he also put
his seal impression on the copies of Form VII. He stated that one copy of Form VII was
sent along with counterpart of the sample to the PA and another copy of Form VII with
seal impression was sent in separate seal envelope to Public Analyst. He stated that
Report under Rule 9 (e) was prepared at the spot and SDM/LHA signed on
27.10.2005. He denied the suggestion that report under Rule 9 (e) was not prepared
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at the spot but it was prepared on the next day. He stated that the ingredients as
disclosed by vendor were mentioned by him on the notice in Form VI Ex. PW1/B and
the colour was not disclosed as one of the ingredients by the vendor. He denied the
suggestion that the ingredients were declared by the vendor on his instructions. He
voluntarily stated that vendor also furnished his statement Ex. PW1/D in his own
handwriting at the spot disclosing the ingredients. He denied the suggestion that
intimation letter along with PA report was not received by the accused. He voluntarily
stated that same was sent through the registered post which was not received back
undelivered. He stated that he can produce the original receipt if so directed as same
is with the dispatch clerk of the PFA Department. He stated that the postal receipt
usually remain in the possession of the dispatch clerk so he did not bring the same. He
stated that complaint was filed by him. He stated that he cannot comment whether the
PA was legally and validly appointed as PA on the day of sampling. He voluntarily
stated that she was working as PA as for the analysis of the sample as she had signed
the PA report in the capacity of Public Analyst.
9. PW2 Satish Kumar Gaur, Field Assistant and PW3 the then SDM/LHA
Sh. Vijay Dogra deposed on the same lines as deposed by PW1 in his examination in
chief.
10. This so far is the prosecution evidence in the matter.
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11. 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.
12. 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.
13. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Suniti Kumar Gupta coupled with the report of the
PA dated 07.11.2005 that accused Pankaj Aggarwal was indeed found selling Imli ki
Chatni which was adulterated on account of it containing synthetic colour viz. sunset
yellow fcf whereas it ought to have been free from any synthetic colouring material.
14. The star / the material witness of the prosecution i.e. Food Inspector
Suniti Kumar Gupta categorically proved that on 26.10.2005 he along with Field
Assistant Satish Kumar Gaur and SDM / LHA Sh. Vijay Dogra visited M/s Aggarwal
Sweets, where accused Pankaj Aggarwal who was the vendorcumproprietor was
found conducting the business of sale of various food articles including Imli ki Chatni,
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
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(hereinafter referred to as the Act & Rules) he collected / purchased the sample of Imli
ki Chatni. He proved the sample proceedings vide Ex. PW 1/A to Ex. PW 1/C. He
further proved the deposit of the sample with the Public Analyst and deposit of the
counterparts of the sample with the Local Health Authority vide Ex. PW 1/E and F. He
further proved that the Imli ki chatni on analysis by the public analyst vide his report
Ex. PW1/G was found adulterated as it was containing synthetic colour sunset yellow
fcf. He proved the letter written to STO Ward no. 71 along with reply vide Ex. PW1/H
and I. The Sanction / Consent for prosecution was proved as Ex. PW1/K and the
complaint was proved as Ex. PW1/L.
15. The deposition of the Food Inspector was duly corroborated by the
remaining prosecution witnesses i.e. PW2 FA Satish Kumar Gaur and Sh. Vijay Dogra
the then SDM/LHA (PW3).
16. Furthermore the fact that the sample was collected/lifted by the Food
Inspector on 26.10.2005 from M/s Aggarwal Sweets as well as that the accused was
the vendor/ proprietor of M/s Aggarwal Sweets was not disputed during the trial and
was also admitted by the accused during his examination under Section 313 Cr. P.C
as recorded before the Ld. Predecessor of this Court on 19.11.2011. From the
answers given by the accused to question no. 1 & 2 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),
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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 Ex. PW1/A, B and C which bears the signature
of the accused as well as Ex. PW1/D and Ex. PW1/J1 which is in the handwriting of
the accused and also bears his signatures, no doubt remains that the sample of Imli ki
Chatni was indeed collected by the Food Inspector for analysis from M/s Aggarwal
Sweets 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.
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
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person i.e. customers, neighbourers etc. in the 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 , decided on
26.02.1974 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. Similarly in Babu Lal Vs. State, AIR 1971, SC 1277 It has been
held that there is no rule of law that a conviction can not be based on the sole
testimony of Food Inspector. Reliance may also be placed upon Prem Ballabh Vs.
State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of Assam, 1999(2) FAC
180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare Lal 1972 FAC 679 ,
Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339, Laxmidhar Saha Vs.
State of Orissa 1989 (1) FAC 364, Food Inspector Vs. Satnarian 2002 (5) SCC
373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs. Narayanasamy 1997
(2) FAC 203.
State
20. 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. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
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to take action as per law. He discharges public duty. 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.".
21. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".
22. It is writ large from the deposition of PW1, PW2 and PW3 that FI Suniti
Kumar Gupta 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
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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 unambiguously admitted/proved.
23. 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 or the SDM were inimical to the accused or had any
grudge or enmity to falsely implicate him.
Rule 14
24. It was 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
container/bottles as well as the instrument i.e. stainless spoon with which the sample
was poured in the bottles. It was argued that Rule 14 of the Act is mandatory and not
directory and in case there is no strict adherence to Rule 14, benefit has to be given to
the accused. Reliance was placed on the law laid down in Sri Ram Swaroop Vs.
State 1978 (1) FAC 76, State of Maharashtra Vs. Bhaskar Rajeshwari, Koyakutty
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Vs. FI 2001 (1) RCR 340, Jagdish Chand Vs. State 1980 (II) FAC 323 and M.
Mohammad vs. State 1978 (1) FAC 114.
25. However I differ with the contentions as raised by the Ld. defence
counsel.
26. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to make the same. Furthermore he
should sample the article in hygienic conditions. Reliance may be placed upon
Varghese Vs. Food Inspector, 1989(2) FAC 236.
27. I have perused the deposition of the Food Inspector i.e. Suniti Kumar
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Gupta who was examined as PW1. The Food Inspector deposed as under:
"At about 08.15 p.m. I purchased 1500 gms of Imli ki Chatni kept in the
open tin bearing no label declaration, with the help of clean and dry stainless steel
spoon by rotating it in all possible directions several times...........Then I divided the so
purchased sample of Imli ki Chatni into three equal parts by putting them in three
clean and dry glass bottles separately......."
28. During his cross examination he stated as under:
".....Imli Ki Chatni was mixed by me with the help of clean and dry
stainless still big spoon by rotating in all possible directions several times. Imli Ki
Chatni after mixing properly was put into a clean and dry stainless steel jug and then it
was weighed and thereafter Imli Ki Chatni was put into the clean and dry glass bottles.
Bottles were already dry and clean and the same were not made again dry and clean
at the spot. .......It is wrong to suggest that the vendor was not having any stainless
steel spoon or the sample commodity was not mixed by me"
29. Similarly PW3 the then SDM/LHA Vijay Dogra deposed as under:
" Before taking the sample, the Imli Ki Chatni was mixed in the said Tin
with the help of a clean and dry spoon and then it was transferred in a clean and dry
steel Jug for weighing purpose. The so purchased sample of Imli Ki Chatni was
divided then and there by FI by putting it into 3 clean and dry glass bottles.........."
30. During his cross examination he stated as under:
"The Chatni was mixed by FI with the help of a spoon......The Jug was not made clean
and dry at the spot as it was already clean and dry. The sample bottles were not made
clean and dry at the spot as they were already clean and dry...........It is wrong to
suggest that there was some colour sticking with sample bottles and Jug at the time
when they were used in sample proceedings.
31. PW2 Satish Kumar Gaur, Field Assistant deposed as under:
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" Before taking the sample, the Imli Ki Chatni was properly mixed in the
said Tin with the help of a clean and dry spoon by rotating it in all possible directions
several times. The so purchased Imli Ki Chatni was divided then and there by FI into
three equal parts by putting it into three clean and dry glass bottles.........."
32. Hence the prosecution witnesses consistently deposed regarding the
spoon as well as the sample bottles being clean and dry. I have no reasons to
disbelieve them. 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. As
already discussed above, I find no reasons why the Food Inspector would depose
falsely or falsely implicate the accused, there being no previous enmity against him. I
have also gone through Section 114 (e) of the Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
33. The above provisions and the legislation is based upon the maxim
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"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)".
34. 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.
35. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,
1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,
Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].
36. 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
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suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
37. 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.".
38. 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.".
39. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
Discrepancies
40. It was argued by Ld. Defence counsel that there is major discrepancy in
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the deposition of PW1 FI Suniti Kumar Gupta and PW3 SDM/LHA Vijay Dogra which
itself proves that the prosecution story is a false one. It was argued that though the FI
claimed that the colour of Chatni was dark reddish however the SDM claimed that the
same to be yellowish. The Ld. Defence counsel argued that this discrepancy itself
proves that the prosecution witnesses were deposing falsely. Reliance was placed on
the law laid down in AIR 2001 SC 3976 and 2012 (1) FAC 384.
41. No doubt the Ld. Defence counsel pointed out the above discrepancy in
the deposition of Food Inspector on one hand and the SDM on the other hand
however the discrepancy as pointed out by Ld. Defence counsel is too trivial in nature
to be given any weightage. The discrepancy as above is natural and bound to occur
on account of passage of time and lapse of memory. Human memories are apt to blur
with passage of time. The sample was lifted in the year 2005 and the deposition/cross
examination of witnesses were recorded in the year 2010 i.e. after a gap of around 5
years. After such a long time/ period a person cannot be expected to give a parrot like
version or depose with mathematical precision. Only a tutored witness can depose so.
Error due to lapse of time/lapse of memory have to be given due weightage/ due
allowance.
42. By and large a witness cannot be expected to possess a photographic
memory and to recall the details of an incident. It is not as if a video tape is replayed
on the mental screen. By and large people cannot accurately recall a conversation
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and reproduce the very words used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic to expect a witness to be a human
tape recorder. Ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when interrogated later on. A witness,
though wholly truthful, is liable to be overawed by the court atmosphere and the
piercing cross examination made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from imagination on the spur
of the moment. The subconscious mind of the witness sometimes so operates on
account of the fear of looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort
of a psychological defence mechanism activated on the spur of the moment. Reliance
may be placed upon the observations made by the Hon'ble Apex Court in case titled
as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir
Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of
Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada
Bhoginbhai Hirjibhai v.
State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972
SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
43. The law is well settled that discrepancies which do not go to the root of
the matter and shake the basic version of the witnesses cannot be annexed with un
due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable
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evidence. One cannot come across a witness whose evidence does not contain some
exaggeration or embellishments. Sometimes there could be even be a deliberate at
tempt to offer embellishment and sometime in their overanxiety they may give slightly
exaggerated account. Court can sift the chaff from corn and find out truth from the tes
timony of witnesses. Evidence is to be considered from the point of trustworthiness. If
this element is satisfied they ought to inspire confidence in mind of the court.
44. Moreover, officials like Food Inspector and the SDM are involved in col
lecting samples/witnessing sample proceedings almost daily and sometimes more
than one sample is collected in a day. During their stint as Food Inspector and
SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the
facts being mixed up due to passage of time. Same has to be given due allowance. In
case at hand the Food Inspector's testimony was duly corroborated by the FA and it
was para materia with the complaint. The difference in the colour as discussed above
does not affect the prosecution case at all.
Homogenization / Mixing of Sample.
45. 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.
46. However, I find no merits in the contention of the Ld. defence counsel.
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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 mixing the Imli ki Chatni properly. The witnesses categorically stated
that the Chatni was mixed several times with the help of a spoon which was inserted
deep into the container/the tin and rotated several times. I have no reasons to
disbelieve the Food Inspector or the other complainant witnesses in this regard.
Secondly, there was no requirement of mixing or making the sample i.e. the Imli ki
Chatni homogenized as such in view of the law laid down in Dhian Chand Vs. State
of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In 1992(1) FAC 283 (supra) it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous." .
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47. Furthermore, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,
the Hon. Apex Court observed as under:
"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".
48. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982
(2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
usual mode of supply to the customer when he comes to purchase. If there is
normally a practice of stirring and mixing when the food stuff concerned is sold to
customers from time to time representative sample would be that which is taken after
such stirring and mixing. If on the other hand the usual mode of sale is to take portions
by portions without any such stirring or mixing there can be no complaint that the
sample sold is not a representative sample. Ice cream is a commodity which is not
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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.
49. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984
(1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of
Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food
Inspector and not necessarily a government officer, is entitled to purchase an article of
food from a vendor and send it for analysis provided he follows the procedure
mentioned in Section 12 of the Act. If a private person purchases a portion of ice
cream from the respondent under Section 12 of the Act and causes the sample to be
analysed and if the sample is found to be adulterated, the vendor cannot turn round
and find fault with the purchaser for not stirring the entire mass of the ice cream in the
container or for not taking a section and stirring i before purchasing it. Equally so, at
any rate, in the case of sale to the Food Inspector the vendor cannot come forward
with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee
(Central Committee for Food Standard) has not prescribed any particular manner of
taking a sample of ice cream, I do not think it is for the court to lay down any such
manner particularly a manner which is contrary to the ordinary course of business."
50. 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
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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.
51. 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."
52. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held
by Hon. High Court of Delhi as under:
" I am of the opinion that in view of the charge having been framed only with
regard to the presence of colouring
matter , the learned MM's finding that the
samples collected were not of representative character cannot be sustained
inasmuch as both the Public Analyst and the CFL have reached a similar
conclusion with regard to the presence of artificial colouring matter."
53. In the case at hand not only from the deposition of the Food Inspector
and the other prosecution witnesses it stands duly established that the Imli ki Chatni
was properly mixed at the time of sampling but in view of the above discussion, I am of
the opinion that there was no requirement to homogenize the same. The act has been
enacted so as to prevent the adulterated food article being sold to the
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customers/consumers. It is a matter of common knowledge that when any customer
goes to a shop to buy a food article or when any Chatni, Ketchup, Sauce etc. are
provided to the customer along with the main food article as a add on/taste enhancer
by the vendor, the vendor does not give the same i.e. Chatni, Ketchup etc. after mixing
the same with the help of any spoon/jhaba etc. He does not first rotate it in all possible
directions several times and then sell the same to the customer. The Chatni, Sauce,
Ketchup etc. are kept in a bottle or jar and the customer takes it from the same without
mixing or rotating it. If it is provided by the vendor from a container with him then he
merely takes it out with the help of spoon etc. from top most layer and sells it to the
customer. Therefore when this is usual mode of selling/providing the same 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/Imli ki Chatni
homogenized should arise or else the entire purpose of act will be defeated. This is
the reason why the PFA Act or the Rules nowhere provides for mixing of the food
articles at the time when the sample is lifted by the FI.
PA's Report/intimation letter not received hence right u/s 13 (2) could not be
exercised thus prejudice caused to the accused.
54. It was also one of the arguments of Ld. Defence counsel that PA's report
along with intimation as per the provisions of section 13 (2) of the Act was not
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supplied/delivered to the accused and accordingly the accused could not exercise his
right as contemplated u/s 13 (2) of sending the second counterpart of the sample kept
with the LHA to be analyzed by the Director, CFL. It was argued that this caused
serious prejudice to the accused as his right to get the counterpart of the sample
analyzed by the Director was defeated. Reliance was placed upon the law laid down
in Shiv Dutt Singh Vs. Ram Dass AIR 1980 Allahabad 280, State of Orissa Vs.
G. Sahu 2003 Cri. LJ 3077 and Jagat Ram Vs. Bantu Mal, AIR 1976, Delhi 113.
55. However the said plea of Ld. Defence counsel is meritless and contrary to
the records. Firstly, as per records the prosecution was launched on 28.03.2006 and
the next date of hearing before the court was 08.04.2006. In between the dates of
hearing accused appeared before the court on 07.04.2006 and sought bail from the
court. On that day the accused did not move any application u/s 13 (2) for reasons
best known to him. It is a settled law that once he does not move the application he
cannot complain later on. Moreover the very fact that he appeared in the court on
07.04.2006 on his own i.e. without any summons or notice of court proves that he was
very well aware about the filing of the complaint against him which was in all likelihood
conveyed/intimated by the PFA officials. Hence it was a deliberate act of not moving
the application u/s 13 (2).
56. Secondly, PW1 FI Suniti Kumar Gupta had categorically deposed that
the intimation letter along with PA's report was sent to the accused by registered post
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by the SDM/LHA which was not received back undelivered. He proved the intimation
letter along with postal registration receipt as Ex. PW1/M and N respectively. Similarly
was deposed by the SDM/LHA. In fact it was the SDM/LHA who had sent the same to
the accused by registered post. Not even a single suggestion was given to this
witness (SDM) during his cross examination that he was deposing falsely or that no
intimation letter with the PA's report was ever sent to the accused. Hence the SDM's
testimony remain unchallenged on this aspect and there is no reason for me to
disbelieve him. No doubt the FI did not produce the original postal receipt but during
his cross examination he categorically stated that he can produce the same if
required/directed. However the defence not even once sought any direction from the
court for the witness to produce the original receipt. I fail to understand the said
conduct of defence. The FI was more than willing to produce the original document
(copy of which is on record as Ex. PW1/N) if required by the court but it was the
defence which was hesitant/ desisted from seeking such directions for the FI. Hence
when the defence did not impliedly challenged the deposition of the FI and the SDM I
simply find no reason to disbelieve the FI or the SDM regarding their claims that the
intimation letter with the PA's report was sent to the accused by registered post.
Further reliance may be placed upon Section 114 of the Evidence Act. The
presumption which Section 114 raises has been discussed above. Clause (f) of
Section 114 reads as under:
"That the common course of business had been followed in particular cases"
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57. Furthermore, where a letter is sent under certificate of posting a
presumption arises under Section 114 of the Indian Evidence Act that there has been
due service of notice/letter. [Amrit Lal Sharma Vs. Narainder Sharotri, 200 (1)
PLJR 806 (P&H); M.A. Ghani Vs. P. Rama Reddy, 2003(3) Andh. LT 120 (AP)]
58. Once the evidence discloses that the letter was addressed at a proper
address by registered post then unless it is rebutted or the contrary is proved to have
been effected at the time at which the letter would be delivered in the ordinary course
of post it is presumed that there is a proper service. If the addressee either can not be
met or refused to take delivery there appears to be no reason why the letter should not
be considered as properly served upon the addressee ( State Vs. Bhag Chand
Sadhu Mal, 1999 (3) Guj. LR 2220.).
59. In the absence of anything indicating that such letters were not posted or
concocted the presumption under Section 114 (f) comes into play (Vandavasi
Kartikaya Vs. S. Kamalanna, A 1994 AP 102).
60. A bare denial with no reliable evidence is not sufficient to rebut the
presumption (Pakharsingh Vs. Kishan Singh, A 1974 Raj. 112). Simple denial
without reliable evidence, without further rebuttal, the presumption continues [Fazal
Ahmad Vs. K.N. Jain, 2000 All LJ 3106 (All)].
61. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the
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prosecution did not prove any postal acknowledgment signed by the accused to prove
about the service of copy of the report of the Public Analyst which had been sent by
registered post. While discussing Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC
300 the court held as under:
"In the present case the petitioner in his examination under section 313 Cr. P.C has
merely denied to have received the copy of the report of the Public Anlayst. However,
no evidence has been adduced on behalf of the accused persons to rebut the
presumption available under the General Clauses Act as well as Section 114 of
the Evidence Act. As observed by the Division Bench of this Court, when it is proved
that registered letter has been posted after being duly stamped in the address of a
person, a presumption arises that such letter must have been served on the
addressee. The evidence adduced on behalf of the prosecution to the effect that the
report of the Public Analyst had been posted by registered post as per the postal
receipt has not been successfully challenged by the petitioner in any manner in cross
examination. The mere denial of the accused in his statement under Section 313,
Code of Criminal Procedure, cannot have the effect of rebutting the statutory
presumption available under the provisions of the General Clauses Act.".
62. In State of Himachal Pradesh Vs. Madan Lal, 1999 (2) FAC 214, it
was held "admittedly there is presumption in law that a communication sent by post on
the correct address of the addressee is presumed to have been received by him if it is
not received back by the sender.".
63. In Ismali Khan Vs. Nagar Palika Parishad, 1997 (2) FAC 13 while
relying upon the observations made by the Apex Court in Babu Lal Hargovind Dass
Vs. State of Gujarat 1972 FAC 18 and Ajit Prasad Ram Kishan Vs. State of
Maharashtra, 1972 FAC 545, it was held as under:
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"where no application under Section 13(2) of the Act is made by the accused, he can
have no grievance that he could not avail of his right under Section 13(2) of the Act.
In view of the aforesaid position of law in the case at hand, the accused/applicant
cannot complain that a prejudice is caused to him due to late filing of the complaint
and thereby he has been deprived of his right given under Section 13(2) of the Act.".
64. Similarly in Food Inspector Vs. James 1998 (1) FAC 320, it was held
as under:
"Once a notice is sent by registered post in the correct address no burden is cast upon
the sender or the postman to arrange that notice to be served upon the addressee. If
a letter is posted prepaid and registered with a acknowledgment due or otherwise to
the correct address of the addressee and delivered to the post office, there is
presumption under Section 27 of the General Clauses Act that the letter is delivered to
the addressee.".
65. While referring to M/s Madan & Company Vs. Wazir Jaivir Chand
AIR 1989 SC 630 it was observed by the Hon'ble Apex Court "if the contention of the
respondent that in order to comply with the requirement of Section 13(2) of the Act
actual delivery of the notice or deliberate refusal to accept the same by the addressee
is necessary, it will lead us to anomalous and very dangerous situations. A cunning
and unscrupulous accused can effectively thwart the delivery of the notice to him by
staying away from his house for some time knowing the arrival of the notice and get it
returned to the sender as unserved.".
66. In Ganesh Chander Kala Vs. State of U.P. 1998(1) FAC 63, it was held
that prosecution is not required to prove that the applicant has acknowledged the copy
of the Public Analyst's Report.
67. In Basudev Pandev Vs. State of Orissa 1998(1) FAC 345, it was
observed as under:
"The mere denial of the accused in his statement under Section 313, Code of Criminal
Procedure, cannot have the effect of rebutting the statutory presumption available
under the provisions of the General Clauses Act."
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68. In Chote Lal Vs. State of M.P. 2010 (1) FAC 230, it has been held that
where extract of the relevant entries in the register maintained in the office also
indicated that the notice under section 13(2) of the Act alongwith the report of the
Public Analyst was sent to the applicant by registered post on the address available on
record and it is not the contention that the accused / addressee / vendor did not reside
at the address on which the notice was sent then "The mere fact, that A/D receipt was
not filed or received back, was not sufficient to rebut or dislodge the presumption of
service of notice sent by registered post in absence of any evidence to the contrary.".
Further reliance may be placed upon 2010 (1) FAC 332 wherein reliance was placed
upon Rajakumari Vs. P. Subhrama Naidu AIR 2005 SC 2009 wherein the Apex
Court has held "the notice dispatched by sender by post with correct address on it,
can be deemed to be served on sendee unless he proves that he is not really served.
This principle was propounded keeping in view the provisions of section 27 of the
General Clauses Act."
69. In the case at hand in view of categorical deposition of the Food
Inspector and the SDM coupled with Ex. PW1/M and N as discussed above a
presumption tenable in the eyes of law can be drawn that the PA's report along with
intimation letter was duly delivered/received by the accused/the vendor.
70. As far as the prejudice is concerned suffice would be to say that once the
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accused does not exercise the right u/s 13 (2) he cannot complain later on. Though
Ld. counsel relied upon 2012 (2) FAC 435, 1996 (2) FAC 197, 2012 (2) JCC 1004
and 2006 (2) FAC 93. However none of the case laws come to the rescue of the
accused for the reasons as discussed above as well as the law hereinafter discussed.
71. In Chandrika Proshad Rai Vs. State of Assam 1976 (1) FAC 27, it
was held that as the petitioner did not exercise his right under section 13(2) and no
sample was sent to Director, CFL, the petitioner can make no grievance.
72. In Jai Singh Vs. State 1976 (1) FAC 207, it was held as under:
"the delay in the submission of the report cannot be said to be inordinatethe vendor
accused cannot himself decide that no useful purpose will be served by the sample
being sent for test by the Director of Central Food Laboratory. He has to move an
application and get sample tested and if it is found deteriorated by the Director, he can
claim that the prejudice was caused to him and he was deprived of the right by reason
of laches on the part of the prosecution."
73. In Kishan Narain Vs. State of U.P. 1976 (1) FAC 131, it was held that
if a person does not voluntarily takes advantage of Section 13 he can not complaint
about the loss of any right.
74. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it
was one of the contentions of the Ld. defence counsel that since the complaint was
launched after lapse of more than 4 months from the date of taking sample the
accused could not utilize his right to send the sample to Director, CFL. As a matter of
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fact the accused had not moved any application under Section 13(2) of the Act
claiming that as there was delay in launching of the prosecution / supply of the PA's
report, no purpose would have been served by resorting to an application under
Section 13(2) of the Act as on account of delay the article of food would not have
retained its quality for examination. Repelling the contentions their lordship held
as under:
" 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 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 decision of
this Court in Municipal Corporation Delhi V. Ghisa Ram: 1975 (1) FAC 186, has no
application to the facts of this case. In that case the sample of the vendor had in fact
been sent to the Director of the Central Food Laboratory on his application but the
Director had reported that the sample had become highly decomposed and could not
be analysed.".
75. In Babu Lal's case as above, Hon'ble Mr. Justice Jagmohan Reddy,
J speaking for the court said "unless an application to send the sample to the Director
is made the vendor cannot complaint that he was deprived of his right to have the
sample analysed by the Director." The similar view as above was taken by their
lordship in Ajitprasad Ram Kishan Singh Vs. State of Maharashtra, 1972 FAC
545. It was held as under:
".....appellant should have made an application after paying the prescribed fee if he
wanted the part of the sample available with him to be sent to the Director for analysis.
If he had made the application after paying the prescribed fee, the Magistrate would
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have had no option but to send the part of the sample for analysis by the Director. 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 appellant could perhaps, have contended 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, since the appellant
never applied under section 13(2) of the Act, he cannot complain that he has been
deprived of any right.".
76. Same view was taken in Sukhmal Gupta Vs. The Corporation of
Calcutta 1974 FAC 207, Hypercity Retail (India) Ltd. and Ors. Vs. State of
Punjab and Anr. 2013(1) FAC 392, MCD Vs. Ajit Pershad 1975 (2) FAC 60 and
Pitabasa Bisi Vs. State 1996 (1) FAC 145.
77. In Charan Singh Vs. State of Punjab 1978 (2) FAC 243, it was held as
under:
"The right to get the sample tested by the Director, Central Food Laboratory, has been
given to the accused person as a measure of abundant caution so that the mistake, if
any, committed by the Chemical Analyst may be rectified and the persons, who are
really innocent, be not punished. It is also provided that this right has to be exercised
by the accused person within a reasonable time. If he sleeps himself over this right
and does not make a prayer that the sample given to him should be sent to the
Director, Central Food Laboratory, then he cannot make any grievance about the
delay caused in the examination of the sample by the Director. Furthermore, under
section 510, Criminal Procedure Code, the report made by the Director, Central Food
Laboratory, can be received in evidence even when the Director does not enter into
the witnessbox. If the accused person wants to show certain infirmities in the process
of chemical examination performed by the Director, then he has to make an
application to the trial Court to have the Director summoned as a witness. This
procedure was not adopted by the petitioner and he has not brought any material on
the record to show why the report submitted by the Director should not be relied
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upon.".
78. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it
was held as under:
"There is no doubt that in the present case the prosecution was launched after nearly
five months but the petitioner did not submit any application under subsection (2) of
section 13 of the Prevention of Food Adulteration Act, 1954, requesting the court to
get the sample of milk analysed by the Central Food Laboratory. There is no material
on the record to show that the sample of milk taken from the petitioner, to which
formalin was duly added, was either decomposed or was in such a condition that it
could not be analysed.".
79. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was
held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State
of Gujarat 1972 FAC 18 that the question of deprivation of the right even to the
accused under section (2) of Section 13 of the aforesaid Act, does not arise until the
accused makes an application to the Court for having the sample analysed by the
Central Food Laboratory, Calcutta. Until such an application is made no right can be
said to have accrued to the accused. In this case also no such application was made.
Until there is evidence on record to show that the article of food had deteriorated by
lapse of time or by addition of preservative in quantity of less than the one prescribed,
it is very difficult for the court to say that the sample must have decomposed and
become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong
when he observed that even if the accused had made an application as aforesaid it
would only be a fruitless venture.".
80. In Prabhu Vs. State of Rajasthan 1994 (1) FAC 194, the Hon'ble
Supreme Court held as under:
"The accused had an opportunity to make an application to the Court for sending the
sample to the Central Food Laboratory for analysis. He did not avail the same.
Therefore, it was no longer open to him to contend that he had no opportunity to send
the sample in his custody to the Director, Central Food Laboratory under Section 13
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DA Vs. Pankaj Aggarwal Page 37 of 63
(2), since he did not make any application to the Court for sending it.".
81. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319
and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P.
It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2)
FAC 249 .........held that it is for the accused to establish as to how the prejudice has
been caused to him either because of delay in launching the prosecution or for any
other reason."
82. Further the Hon'ble Apex in Dalchand Vs. Municipal Corpn, 15 (1984)
2 SCC 486 held that, "where the effect of noncompliance with the rule was such as
to wholly deprive the right of the person to challenge the Public Analyst's report by
obtaining the report of the Director of the Central Food Laboratory, there might be just
cause for complaint, as prejudice would then be writ large. Where no prejudice was
caused there could be no cause for complaint."
83. In Ganga Bishun Vs. State of U.P., 1982 (1) Prevention of Food
Adulterations cases 195, it was held that if the report of the Public Analyst is served
upon the accused after two years and the accused does not make any application for
sending the sample to Director, CFL no prejudice is caused to him.
84. In Ram Bilas Vs. State 1997(1) 141, while dealing with delay in
sending the PA's Report to the accused it was held :
"Be that as it may, the petitioner did not choose to challenge the report by moving an
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DA Vs. Pankaj Aggarwal Page 38 of 63
application for sending of the other sample bottle for analysis of the Central Food
Laboratory. (Reliance placed upon Tulsi Ram Vs. State of Madhya Pradesh 1984
(2) FAC 146, wherein it has been held that "it is a question of prejudice").
in the above case it was discussed in para 6 as under:
"Similarly, the Hon'ble Supreme Court in another decision in Jagdish Prasad Vs.
State of West Bengal, 1972 FAC 127: 19481997 FAC (SC) 55, observed that
"where no application is made under subsection (2) for sending the sample to the
Director of the Central Food Laboratory, and the report of the Public Analyst is not
superseded under subsection (3) by the certificate of the Director, a conviction of the
accused on the basis of the report of the Public Analyst and on his evidence would be
proper". The petitioner could very well establish the denial of his right under Section
13(2) on account of delay in forwarding the report of the Public Analyst to him, if on an
application the other sample bottle had been examined and a report of the Director of
Central Food Laboratory had confirmed that the sample has become unfit for analysis.
As such, it is not a case of any prejudice caused to the petitioner by delay, if any, in
forwarding the report of the Public Analyst to him."
Delay
85. The Ld. Defence counsel also argued that the prosecution was launched
after more than 5 months since the lifting of the sample and therefore even if the
accused had moved the application the sample would not have remained fit for
analysis by the Director and hence moving the application u/s 13 (2) would have been
an exercise in futility. However, the said defence is unsustainable. Firstly, as already
discussed above once no application u/s 13 (2) is moved the accused is no longer
entitled to claim the loss of the right u/s 13 (2). Secondly prosecution witnesses
categorically stated that 40 drops of formalin were added in each of the
CC No. 93/06
DA Vs. Pankaj Aggarwal Page 39 of 63
counterpart/sample bottle as a preservative so as to preserve the sample so collected.
Therefore, when Formalin was added, I have no reasons to presume or agree with the
contention of the Ld. defence counsel that the sample if sent to Director would have
been rendered unfit for analysis on account of the delay. No presumption can be
drawn by the Court that the sample if sent for analysis to the Director after the
institution of the case would have decomposed/rendered unfit for analysis on account
of delay of more than 5 months in launching of the prosecution.
86. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,
Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under
which provision the accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the sample is found by the said
Central Food Laboratory unfit for analysis due to decomposition by passage of time or
for any other reason attributable to the lapses on the side of prosecution, that valuable
right would stand denied. This would constitute prejudice to the accused entitling him
to acquittal but mere delay as such will not per se be fatal to the prosecution
case even in cases where the sample continues to remain fit for analysis in
spite of the delay because the accused is in no way prejudiced on the merits of
the case in respect of such delay. Therefore it must be shown that the delay has
led to the denial of right conferred u/s 13(2) and that depends on the facts of each
case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a
ground for the prosecution case being thrown out.". Further reliance may be placed
upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179
.
87. The "delay in sending the article to Director, CFL for analysis" on account CC No. 93/06 DA Vs. Pankaj Aggarwal Page 40 of 63 of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........
.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be CC No. 93/06 DA Vs. Pankaj Aggarwal Page 41 of 63 decomposed and was incapable of being analysed.".".
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory.CC No. 93/06 DA Vs. Pankaj Aggarwal Page 42 of 63
When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."
It was further observed in para 76 as under:
"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.CC No. 93/06 DA Vs. Pankaj Aggarwal Page 43 of 63
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the accused cannot, by itself, be said to have caused prejudice to the accused.".
88. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases CC No. 93/06 DA Vs. Pankaj Aggarwal Page 44 of 63 plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
89. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed.".
90. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
91. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. CC No. 93/06 DA Vs. Pankaj Aggarwal Page 45 of 63 It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
92. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".
93. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not CC No. 93/06 DA Vs. Pankaj Aggarwal Page 46 of 63 adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."
94. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, the Hon'ble Apex Court observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis." .
95. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have CC No. 93/06 DA Vs. Pankaj Aggarwal Page 47 of 63 occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act.".
96. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:
"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the CC No. 93/06 DA Vs. Pankaj Aggarwal Page 48 of 63 accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.
97. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
98. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.CC No. 93/06 DA Vs. Pankaj Aggarwal Page 49 of 63
99. Hence, I find no merit in the contention of Ld. Defence counsel that solely on account of delay the right of the accused was prejudiced. Rule 18
100. It was also one of the arguments of the Ld. defence counsel for the accused that there was violation of Rule 17 and 18, benefit of which must be given to the accused. It was argued that it has not been proved that the specimen impression of the Seal used for sealing the sample as provided in Rule 17 was sent to the Public Analyst separately as per the mandate of Rule 18. It was argued that in these circumstances the sample being tampered with during its transit to the PA cannot be ruled out. Reliance was placed upon State of Orissa Vs. Rabindru Sahu 2006 (1) FAC 200 (SC), State Vs. Banwari Lal 2011 (1) FAC 149, Delhi High Court and Gian Chand Vs. State of Haryana 1982 (I) FAC 8.
101. I have perused the deposition of the Food Inspector i.e. PW 1, the report of the Public Analyst as well as Rule 18 of the Prevention of Food Adulteration Rules, 1955. Rule 18 provides that the copy of Memorandum and a specimen impression of the Seal used to seal the packet shall be sent to the Public Analyst separately by post. In Kassim Kunju Pookunju and Anr. Vs. K.K. Ramakrishna Pillai and Anr., Crl. Appeal No. 29 of 1968, decided on 02.12.1968, the Hon'ble Apex Court observed as CC No. 93/06 DA Vs. Pankaj Aggarwal Page 50 of 63 under:
"The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7 of the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.
We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied.".
102. Similarly in N. Sukumaran Nair Vs. Food Inspector, Mavelikara, Crl. Appeal No. 343 of 1989, decided on 31.01.1995, the Hon'ble Apex Court held as under:
"The Food Inspector as PW1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in crossexamination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in crossexamination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence.".
103. In Srinagar Municipal Corporation Vs. Sonna Ullah Malik 1978(2) CC No. 93/06 DA Vs. Pankaj Aggarwal Page 51 of 63 FAC 99, it was held as under:
"The object of Rule 17 and 18 is to prevent the possibility of tampering with the sample before it reaches the public analyst and it is with this object that it is provided that the specimen impression of the seal used should be sent separately to the public analyst so that he can compare it with the seal used on the container of the sample to find out if it tallied or not. In case the seal does not tally with the specimen, it would show that the sample had been tampered with...........the statement of the Food Inspector that he had sent specimen of the seal to the public analyst read with the report of the public analyst that he had received the specimen separately sent, leaves no manner of doubt that rules 17 and 18 were duly complied with by the Food Inspector and the grievance made by the respondent is untenable."
104. It is also not necessary that the sample along with the memorandum should be sent with one person and a copy of the memorandum and the specimen impression of the seal should be sent along with another person or that if they are sent with the same person they should be sent at different times (1978 (1) FAC 167, 1978 (1) FAC 246 and 1976 (2) FAC 61).
105. Reliance may also be placed upon on law laid down by Hon. Supreme Court in Kasim Kunju O Kunju vs. Ramakrishna Pillai 1976 (2) FAC 68 and Gyan Chand Vs. MCD 1979 (2) FAC 320 and 1981 (1) FAC 290.
106. In the case at hand the Food Inspector categorically deposed during his deposition that one counterpart of the sample was deposited in intact condition with the PA on 27.10.2005 i.e. next working day vide receipt Ex. PW1/E in a sealed packet and a memo in form VII in another sealed packed separately. The sample was CC No. 93/06 DA Vs. Pankaj Aggarwal Page 52 of 63 collected at around 08.15 p.m. on 26.10.2005 and deposited with the PA on the next working day/next morning. There was thus no undue delay in depositing the sample with the PA. This itself rules out any tampering with the sample. Moreover, the Food Inspector was not even once cross examined that he had not sent the same separately. Moreover it is reflected from Ex. PW1/E which is the receipt of the sample at the PA's office that the same was sent separately in a sealed packet and the PA categorically stated that seals were intact and identical to the specimen impression of the seal received from the Food Inspector. Hence there is no violation and nothing on record to even remotely suggest that the accused was prejudiced or the sample tampered with before its analysis by the PA. Regarding the contentions that the FI had put the seal impression in form VII which was put in the sealed packet deposited with the PA which he should not have done so as to avoid tampering suffice is to say that after the copy of memo in Form VII was put with the sample in the packet, the packet was sealed and the same was opened by the PA only after comparing it ( seal impression on the packet) with the seal impression sent in a separate packet. Hence there is no force in the argument that the FI should not have sent/put seal impression in form VII with the sample as no prejudice can be said to have been caused to the accused. There is no chance/ reason/remotest of proof of any tampering. Moreover if the accused had any apprehension/reasons to believe that the sample was tampered with than nothing stopped him from exercising the right available with him u/s 13 (2) of PFA Act which as already discussed above he did not exercise for reasons best known to him.
CC No. 93/06 DA Vs. Pankaj Aggarwal Page 53 of 63 Sale of Chatni
107. It was also one of the argument that it is matter of common knowledge that the shopkeeper who sell articles like Samola, Pakoda etc. give Chatni to the customers free of cost with the main food article. Chatni as such is not sold. It was argued that hence no offence under PFA is made out.
108. However, I do not agree with the contentions of Ld. Defence counsel. Nothing in this commercial world comes for free. Everything has its cost. No doubt shopkeeper selling pakodas, Samoas etc. do not charge any extra amount/money for the Chatni they provide with the pakodas and Samosas but the fact is the cost of the chatni is already included in the cost of Samosa/pakoda. The shopkeeper would not burden himself with the extra cost of manufacturing the chatni. He naturally takes out the cost from the main food article i.e. Samosa/pakoda. Furthermore whether he charged any extra money for the Chatni or whether he provided it as an add on to the main food article free of cost becomes irrelevant, the moment he provides or offers the Chatni to the customers. Liability under the PFA Act is strict. Adulterated food articles have far reaching consequences upon human health. A person cannot give a poison and then claim that he did not charge for it. The moment the accused provided the Chatni to the customers/consumers and it is found adulterated he cannot avoid the liability under the PFA Act. Reliance in this regard may be placed upon Food Inspector Vs. Madhavan 1997 (2) FAC 57. It was held:
CC No. 93/06 DA Vs. Pankaj Aggarwal Page 54 of 63
"merely because the article was taken from the kitchen of the canteen, it cannot be said that the article was not intended for sale. The learned counsel for the accused also contended that in the canteen, tomato sauce was not sold as a food item but it was being served only as a sidedish for cutlet and other food material. The fact that tomato sauce was not specifically charged or that no bill was prepared for it is of no consequences when it is proved that the same was served, sold or distributed to the customers."
109. Further reliance may be placed upon the law laid down in MCD Vs. Kewal Ram 1975 FAC 335,M/s P.K. Tejani Vs. M.R. Dange, 1974 FAC 74, MCD Vs. Shri Ail Das & Anr. 1975 FAC 223, MCD Vs. Ajit Pershad, 1975 (2) FAC 60 and NDMC Vs. Shri Hardev Singh 1980 (1) FAC 472
110. Moreover it is now well settled law that sale to FI is sale for the purpose of the Act. Sale to Food Inspector is a sale within the definition of section 2 of the Act and if the article so sold is found to be adulterated then offence under the PFA Act, 1954 is made out. In the case at hand the article i.e. Imli ki Chatni was duly sold to the Food Inspector vide documents Ex PW1/A and B. The FI had tendered the price of Chatni i.e. Rs. 45/ to the accused/vendor. It is not the case of defence that the FI had not paid the price. During the cross examination of PW1, PW2 and PW3 not even a single suggestion was given that no price was paid by the FI or that the accused/vendor did not accept the price of the same. The testimony of all the prosecution witnesses remained unchallenged on this material aspect. Hence the sale to FI stands proved. The case law i.e. 2012 (2) FAC 435 relied upon by the Ld. CC No. 93/06 DA Vs. Pankaj Aggarwal Page 55 of 63 Defence counsel differs with the facts of the present case as in that case it was proved that no price was paid. Reliance may be placed upon The food Inspector, Calicut Corporation vs. C. Gopalan & another, 1972 FAC 9, The State of Tamilnadu vs. R. Krishnamurthy, 1980 (1) FAC 7, Mohammad Yamin Vs. The State of Uttar Pradesh, 1972 FAC 375 and Ram Labhaya Vs. Municipal Corporation of Delhi 1974 FAC 102.
Use of colour.
111. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Suresh Kumar and anr. 2012 (2) FAC 435, chatni being a confectionery item colour could be added to it. It was argued that as sugar was one of the ingredient of Chatni and in view of the law laid down in Suresh Kumar's case (supra) sunset yellow fcf could be added to it as per Rule 29 (b). It was also argued that there is nothing on record to show that mere addition of sunset yellow fcf would make the Chatni injurious to health.
112. However, I differ with the contentions raised by the Ld. defence counsel. Merely because sugar was one of the ingredient of Chatni it cannot fall within the definition of Chatni. If such interpretation of the Ld. Defence counsel is accepted it will defeat the entire purpose of the Act. Chatni by no stretch of imagination fall within the definition of confectionery. I have perused Form VI i.e. Ex. PW1/B. The imli ki Chatni CC No. 93/06 DA Vs. Pankaj Aggarwal Page 56 of 63 i.e. the sample was stated to be prepared with Imli, Jeera, Dhaniya, Mirch and salt apart from sugar. Sugar was merely one of the ingredient of the Chatni/sample in question. Merely because the food article has sugar as one of its ingredient it will not bring it within the definition of confectionery. If that is permitted a miscreant may add sugar to a food article in which adding of colour is prohibited and then claim that as sugar was an ingredient of food article it becomes a confectionery and he is permitted to add colour to the same as per Rule 29 (b). As far as adding of the colour is concerned the same could not be permitted in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:
"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case CC No. 93/06 DA Vs. Pankaj Aggarwal Page 57 of 63 where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".
113. Imli ki Chatni is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. Hence no colour could be added to Imli ki Chatni.
Injurious to health.
114. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:
" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".CC No. 93/06 DA Vs. Pankaj Aggarwal Page 58 of 63
115. 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.".
116. 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.
117. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.
118. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 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."CC No. 93/06 DA Vs. Pankaj Aggarwal Page 59 of 63
Percentage of colour
119. It was further argued that in the report of the PA the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Imli ki Chatni as Imli ki chatni does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was CC No. 93/06 DA Vs. Pankaj Aggarwal Page 60 of 63 held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.
Paper Chromatography Test
120. It was further argued that the PA did not not specify the test used by him to analyse the sample which itself is fatal to the prosecution case. However I find no merit in the said contention of the Ld. defence counsel. 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."
PA's report
121. It is well settled proposition of law that unless superseded the report of CC No. 93/06 DA Vs. Pankaj Aggarwal Page 61 of 63 Public Analyst remained effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43.
In the case at hand PA vide his report Ex PW/1/G found sunset yellow colour in the sample of the Imli ki Chatni so collected which is not permitted/ in violation of Rule 28 and 29. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 26.05.2005 bearing no. F.41/51/05H&FW and F.7 (151)/05/PFA/Admn/1345558 dated 26.10.2005 whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 01.10.2000 till 30.06.2005 and again 01.07.2005 to 31.12.2005 or till such time the post is filled up on regular basis or whichever is earlier. The fact the Mohini Srivastava analyzed the sample on 07.11.2005 itself proves that she was duly appointed PA on the day of analysis. Even otherwise the defence could not prove anything to the contrary.
122. In view of my above discussion, as colour sunset yellow fcf was found by the PA in the sample of Imli ki Chatni so analysed which is not permitted under / is in violation of Rule 23, 28 and Rule 29 of PFA Rules 1955, the accused stands convicted under Section 2 (ia) (a) (j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules CC No. 93/06 DA Vs. Pankaj Aggarwal Page 62 of 63 1955.
123. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 21th March 2014 ACMMII/ New Delhi CC No. 93/06 DA Vs. Pankaj Aggarwal Page 63 of 63