Delhi District Court
Da vs . Anil Chopra & Ors. Page 1/35 on 2 February, 2016
IN THE COURT OF PRIYA MAHENDRA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 337/03
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1. Sh. Anil Chopra S/o Sh. R. L. Chopra
M/s Anupam Sweets,
M60, Greater kailashII, New Delhi48
............VendorCumPartner.
2. M/s Anupam Sweets
M60, Greater KailashII, New Delhi48
.....Firm
3. Sh. Darshan Kumar S/o Late Sh. Madan Lal
M/s Anupam Sweets,
M60, Greater KailashII, New Delhi48
R/o HS21, Kailash Colony, New Delhi.
CC No. 337/03
DA Vs. Anil Chopra & Ors. Page 1/35
......Partner of accused no. 02
Serial number of the case : 337/03/14
Date of the commission of the offence : 13/01/03
Date of filing of the complaint : 17/10/03
Name of the Complainant : Sh. Om Pal Singh Ahlawat, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954 and Rule 30 r/w Rule
23, 28 & 29 of PFA Rules 1955,
punishable u/s 16 (1A), read with
Section 7 of the PFA Act, 1954.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 02.02.2016
Judgment announced on : 02.02.2016.
Brief facts of the case :
1. In brief, the case of the prosecution is that on 13.01.2003 at about 06:00 p.m., Food
Inspector Raj Pal Singh and Field Assistant Sh. Samuel Messi, under the supervision and
directions of SDM/LHA Sh. Satnam Singh visited the premises of M/s Anupam Sweets,
M60, Greater Kailash, Part II, New Delhi, where accused Anil Chopra who was the
vendorcumpartner, was found present conducting the business of sale of various sweet
articles including Tiranga Burfi, 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 PFA Act & PFA Rules) the Food
Inspector collected/ purchased the sample of Tiranga Burfi.
2. During the course of investigation, it was revealed that Sh. Anil Chopra S/o Sh. R.L.
Chopra was the vendor CumPartner of M/s Anupam Sweets, M60, Greater KailashII,
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New Delhi48 at the time of sampling. M/s Anupam Sweets is a partnership firm having
four partners namely, Sh. Charan Dass, S/o late Sh. Rattan Lal, Sh. Anil Kumar Chopra
S/o Late Sh. Rattan Lal, Sh. Darshan Kumar S/o Late Sh. Madan Lal and Smt. Usha
Chopra widow of Sh. Surinder Kumar Chopra. Smt. Usha Chopra is a sleeping partner in
the firm, as she never attends the business of the shop and other partner Sh. Charan Dass
also does not attend the business as he remains ill. Since no nominee has been
appointed by the said firm, Sh. Anil Chopra S/o Sh. R. L. Chopra (vendorcumpartner) and
Sh. Darshan Kumar S/o Late Sh. Madan Lal (partner) are in charge of and responsible to
day to day conduct of the business of the said shop. Being a partnership firm M/s Anupam
Sweets is also liable. So, the complaint was filed against accused M/s Anupam Sweets,
Anil Chopra and Darshan Kumar.
3. It is further the prosecution's case that the sample was sent to Public Analyst for
analysis and as per the report of Public Analyst the sample was adulterated because Total
Dye content of the synthetic colour (Tartrazine, Sunset Yellow FCF , Brilliant blue ) used
was found to be 269.98 ppm in sample Tiranga Burfi, which exceeded the prescribed
maximum limit of 100 ppm. 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) (j) & (m) of PFA Act 1954 and also violated the Rule 30 read with Rule 28 &
29 of the PFA Rules, 1955 which is punishable under Section 16 (1A).
4. After the complaint was filed, the accused were summoned. The accused after
filing his appearance moved an application under Section 13(2) of PFA Act to get analyzed
the second counterpart of the sample from Central Food Laboratory and consequent
thereto second counterpart of the sample as per the choice of the accused was sent to
Director, CFL (Pune) for its analysis vide orders dated 31.10.2003. The Director, CFL after
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analysing the sample opined vide its Certificate dated 09.12.2003 that "sample no.
SS/LHA/3917 contravenes Rule 30 of the PFA Rules 1955". The Director so opined as the
sample was adulterated because Total Dye content of the synthetic colour (Tartrazine,
Sunset Yellow FCF , Brilliant blue ) used was found to be 193.93 ppm which exceeded the
prescribed maximum limit of 100 ppm.
5. In pre charge evidence, the prosecution examined two witness i.e. Sh. Raj Pal
Singh, Food Inspector as PW1 and Sh. O. P. S. Ahlawat, Food Inspector as PW2, pre
charge evidence was closed vide order dated 21.07.2009.
6. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954
and Rule 30 r/w Rule 23, 28 & 29 of PFA Rules 1955, punishable u/s 16 (1A), read with
Section 7 of the PFA Act, 1954 were framed against accused persons i.e Anil Chopra, M/s
Anupam Sweets and Darshan Kumar vide order dated 20.11.2007 to which accused
pleaded not guilty and claimed trial.
7. In the post charge evidence the prosecution examined four witnesses i.e. Sh. Raj
Pal Singh, Food Inspector as PW1, Sh. O.P. S. Ahlawat, Food Inspector as PW2, Sh.
Satnam Singh, the then SDM/LHA as PW3, Sh. S. Messy Field Assistant as PW4. PE was
closed vide order dated 22.02.2013.
8. Statement of accused Anil Chopra, Darshan Kumar and M/s Anupam Sweets U/s
313 Cr. P.C. were recorded on 14.05.2013 wherein the accused persons claimed
themselves to be innocent. Despite opportunity given to accused persons, they did not
lead any defence.
A brief scrutiny of the evidence recorded in the matter is as under:
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9. PW1 Sh. Raj Pal Singh deposed that on 13.01.2003 he along with FA Samul Mesi
under the supervision/direction of SDM/LHA, Sh. Satnam Singh along with staff went to
M/s Anupam Sweets, M60, Greater Kailash, Part II, New Delhi where accused Anil
Chopra was found conducting the business of the food articles in that shop including
"Tirangi Barfi" meant for human consumption. He deposed that he disclosed his identity
and intention for taking the sample of Tirangi Burfi which was lying in an open tray having
no label declaration, to which accused agreed. He deposed that before taking the sample,
he tried his best to procure some public witnesses by requesting customers, passersby
and neighboring shopkeepers to join the sample proceedings but as one agreed for the
same, on his request FA Samul Messi agreed and joined as witness. He deposed that at
about 06:00 pm, he purchased 1500 gms of Tirani barfi, ready for sale was taken from an
open tray bearing no label declaration, on payment of Rs. 210/ vide vendor's receipt Ex.
PW1/A. He deposed that the sample was taken after cutting the Tirangi Burfi into smallest
possible pieces with the help of a clean and dry spoon and mixed properly with the same
spoon by rotating it in all possible directions. He deposed that then so purchased he
divided the sample then and there into three equal parts by putting them in three clean and
dry glass bottles separately. He deposed that 40 drops of formalin was added to each
sample bottles with a clean and dry dropper and mixed properly/thoroughly for its uniform
dispersion. He deposed that each sample bottle containing the sample separately
packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that
LHA slips bearing his code number and signature were affixed on each counter part. He
deposed that the vendor signatures were obtained on LHA Slip bearing his code number
and signature and the wrapper of the sample bottles in such a manner that a portion of his
signature were on the wrapper as well as on the LHA Slip. He deposed that Notice in
Form VI Ex. PW1/B was prepared and the copy of the same was given to the accused with
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his endorsement at portion A to A bearing his signature at point A wherein he disclosed
that Tirangi Burfi is prepared by Khoya, Sugar and Bush Colour. He deposed that
Panchnma Ex. PW1/C was prepared at the spot. He deposed that all these documents
Ex. PW1/A to Ex. PW1/C were read over and explained to the accused in Hindi and after
understanding the same accused signed at point A and witness signed at point C and he
signed at point B, respectively. He deposed that one counter part of the sample was
deposited with the PA on 14.01.2003 vide receipt Ex. PW1/D in a sealed packet containing
one copy of Memo in Form VII and another sealed envelope containing one copy of
another memo in Form VII. He deposed that the remaining two counter parts of the
sample were deposited in intact condition with the LHA on 14.01.2003 vide receipt Ex.
PW1/E bearing his signature at point B with the intimation that one counter part of the
sample has already been deposited in intact condition with the PA along with two copies of
memo of Form VII in a sealed packet. He deposed that all the copies of Memo in Form VII
were marked with the impression of seal which was earlier used to seal the sample
counter parts. He deposed that PA Report Ex. PW1/F was received according to which
the sample was found adulterated because total dye synthetic colour used exceeded the
prescribed maximum limit of 100 ppm ( 269.98 ppm).
10. Further, he deposed that he investigated the matter and sent a letter to the vendor
to disclose the constitution the firm and received their reply Ex. PW1/G wherein he
informed that M/s Anupam Sweets is a partnership firm having four partners, namely,
Charandas, Anil Chopra, Darshan Kumar and Smt. Usha Chopra and Smt. Usha Chopra is
a sleeping partner and another partner Charan Dass is not attending the shop due to ill
health and also annexed along with a cop of sales tax, copy of license of MCD, photocopy
of partnershipdeed and illness certificate of Sh. Charan Dass Chopra. He deposed that as
per investigation Anil Chopra and Darshan Kumar were found incharge of and responsible
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for day to day affairs of M/s Anupam Sweets. He deposed that he further sent a letter Ex.
PW1/H to STO, Ward No. 95 and as per its reply at point A, Ms Anupam Sweets is a
partnership firm having four partners as mentioned there and they had not appointed any
Nominee under Section 17(2) of PFA Act. He deposed that then on completion of the
investigation, the complete case file along with all statutory documents were sent through
LhA/SDM to the Director (PFA), Sh. S. L. Bansal who after going through the case file,
applied his mind and gave his consent for prosecution Ex. PW1/I which bears his signature
at point A.
11. During his cross examination, he admitted that his Gazetted Notification as FI is not
on judicial file. He stated that he was posted as FI in Sub Division Hauz Khas on the day
of sampling. He stated that his working area was SubDivision Hauz Khas on the day of
sampling. He stated that he cannot say whether the Govt of NCT of Delhi, PFA
Department has declared sub division as local area or not. He denied the suggestion that
he could not work as FI on the day of sampling. He stated that there was only one tray of
Tirangi Burfi lying in the shop. He stated that the burfi was mixed by him with the help of a
clean and dry steel spoon in the clean and dry tray. He stated that the spoon was near
about 78 inches. He stated that Burfi was weighed by the vendor in the pan scale in the
same tray in which it was mixed. He stated that there was about 2 & ½ kg of Tiranga Burfi
in the tray from which the sample was lifted. He stated that there was no silver leaves in
the Burfi at the time of sampling. He stated that he cannot comment about the report of
the PA to the effect that the test for silver leaves was found positive. He stated that prior to
taking this sample, he had visited the shop of the vendor at one occasion. He stated that
he again vsited the shop of the accused during investigation after 13.01.2003, when he
lifted the sample from his shop. He stated that he does not remember the date when he
visited the shop of the accused during investigation.
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12. He further stated in his cross examination that he has impleaded Darshan Kumar as
an accused in this case on account of him being a partner of M/s Anupam Sweets as well
as at the time of sampling and during investigation when he visited the shop in question,
he was also found conducting the business of the shop. He admitted that the accused
Darshan Lal did not sign on any of the documents i.e Ex. PW1/A to Ex. PW1/C which were
prepared at the spot. He stated that he did not obtain the signature of accused Darshan
Lal on these documents as accused Anil Chopra was found the vendor of the shop at that
very moment. He denied the suggestion that the accused Darshan Lal was not present
at the spot a the time of sample proceedings or due to this reason he has not obtained his
signature on the above mentioned documents. He denied the suggestion that he never
visited the shop of the accused during investigations. He denied the suggestion that he
has conducted all the proceedings in his office. He stated that he cannot comment as to if
there is variation in the PA and CFL Report then the samples are not representative or that
the opinion of the experts may be wrong. He stated that the sample bottles were already
clean and dry hence, they were not made clean and dry at the spot. He stated that he
does not remember the date when these sample bottles were issued to him by the
department. He stated that 34 customers were present at the shop when they reached for
taking the sample. He stated that he does not remember the names and addresses of
those customers. He denied the suggestion that he did not make efforts to join public
witnesses.
13. PW2 Sh. O. P. S. Ahlawat deposed that Director PFA, Sh. S. L. Bansal accorded the
sanction Ex.PW1/I and directed the Food Inspector incharge of the concerned Sub
Division to institute the complaint. He deposed that he accordingly being incharge of the
concerned SubDivision filed the complaint Ex. PW2/A bearing his signature at point A.
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He deposed that the intimation letter already Ex. PW2/B bearing his signature at point A
was sent along with the PA report by registered post through SDM /LHA to accused and
was not received back undelivered. He deposed that intimation letter along wit PA Report
was also personally served by him upon the accused persons as per their endorsement on
Ex. PW2/B.
14. PW3 Sh. Satnam Singh, the then SDM /LHA and PW4 Sh. S. Messy Field Assistant
deposed on the same lines as deposed by PW 1 in his examination in chief.
15. This so far is the evidence in the matter.
16. After hearing the rival submissions at bar and on careful appreciation of the material
on record, I am of considered view that prosecution has succeeded in proving the guilt of
the accused persons beyond reasonable doubt.
17. Its stand clearly proved from the deposition of prosecution witnesses especially
Food Inspector Sh. Raj Pal Singh, corroborated by documentary evidence produced by
the prosecution i.e Vendor's Receipt Ex. PW1/A, Notice in Form VI Ex.PW1/B, Panchnama
Ex.PW1/C coupled with Certificate of Director CFL dated 09.12.2003 that on 13.01.2003
accused Anil Chopra was indeed selling Tiranga Burfi for human consumption at M/s
Anupam Sweets, M60, Greater Kailash, part II, New Delhi being its VendorcumPartner
and the sample of Tiranga Burfi was lifted from his shop i.e M/s Anupam Sweets. The
Tiranga Burfi were adulterated on account of it containing synthetic colour viz. Tartrazine
more than permissible limit of 100 ppm.
18. Ld. Counsel for the accused has raised following issues to contend that prosecution
has miserably failed to bring home the guilt of accused and are entitled to benefit of doubt.
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Public Witness
19. At the outset, it was argued that that no public witness was joined by the FI during
the alleged sample proceedings which is in violation of section 10 (7) and therefore the
accused is entitled to be acquitted on this ground alone. It was argued that the FI despite
the mandate of section 10 (7) did not deliberately join any public person i.e. customers,
neighbourers etc. in the sample proceedings and hence no reliance can be placed on the
alleged sample proceedings.
20. However, I do not agree with the contentions raised by the Ld. Defence counsel.
The Hon'ble Apex Court in Shriram Labhaya
Vs. MCD 19481997 FAC (SC) 483 has
categorically held that testimony of the Food Inspector alone, if believed, is sufficient to
convict the accused and there is no requirement of independent corroboration by public
persons unless the testimony suffers from fatal inconsistencies. The Apex Court observed
as "as stated earlier the Food Inspector was unable to secure the presence of independent
persons and was therefore driven to take the sample in the presence of the members of
his staff only. It is easy enough to understand that shopkeepers may feel bound by
fraternal ties............ Similarly in Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been
held that there is no requirement of independent corroboration by public persons unless
the testimony suffers from fatal inconsistencies. Further reliance may be placed upon the
law laid down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs.
State of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs.
Pyare Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State Vs.
CC No. 337/03
DA Vs. Anil Chopra & Ors. Page 10/35
Narayanasamy 1997 (2) FAC 203.
21. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1) FAC 230,
the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant
adopted an alternative contention that there was noncompliance with
Section 10(7) of the Act inasmuch as the Food Inspector failed to
procure the signatures of independent persons when he took the
sample. The said contention is not available to the defence as the
Food Inspector has given evidence that he really called the persons
who were present in the canteen to affix their signatures after
witnessing the sample but none of them obliged. A three Judge
Bench of this Court has laid down the legal position concerning
Section 10(7) of the Act in the case of Shri Ram Labhaya vs.
Municipal Corporation of Delhi and Another 1974 FAC 102 :
(1974) 4 Supreme Court Cases 491. We may profitably extract the
observations made by Hon'ble Y.V. Chandrachud, J. (as His Lordship
then was):
"The obligation which Section 10(7) casts on the Food
Inspector is to 'call' one or more persons to be present when he takes
action. The facts in the instant case show that the Food Inspector did
call the neighbouring shopkeepers to witness the taking of the sample
but none was willing to cooperate. He could not certainly compel
their presence. In such circumstances, the prosecution was relieved
of its obligation to cite independent witnesses.".
22. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon. Apex
Court held as under :
".......Corroboration of the statement of main witness is not the
requirement of law but is only a rule of prudence.................
6.In the instant case, there was sufficient corroboration of the
testimony of PW1 as is evident from the seizure memo and the
receipt obtained for sale besides the report of the public analyst. The
mere fact that the other witnesses cited by the prosecution had not
supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper
technical approach to hold that there was no corroboration because
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there were minor discrepancies in the statement of PW1 and the
other witnesses. It is not the number of witnesses but it is the quality
of evidence which is required to be taken note of by the courts for
ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number
of witnesses is required for proof of any fact. If the statement of
PW1 itself inspired confidence and the sample was found to be
adulterated, the courts below should have returned a finding on
merits and not to dismiss the complaint allegedly on the ground of
non corroboration of the testimony of PW1.
23. State Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme Court held as
under:
"It is not the law that the evidence of Food Inspector must necessarily
need corroboration from independent witnesses. The evidence of
the Food Inspector is not inherently suspicious nor be rejected on
that ground........... His evidence is to be tested on its own merits and
if found acceptable, the Court would be entitled to accept and rely on
it to prove the prosecution case.".
24. 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."
25. The prosecution witnesses PW1 and PW3 to PW4 have consistently deposed that
Food Inspector Sh. Raj Pal Singh tried his best to involve public witnesses in the sample
proceedings but none agreed. It is a known fact that the general public is wary of being
involved in criminal investigations/implementation of administrative powers/enforcement of
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law seeking to curb antisocial evils. Normally, association of public witnesses is not
possible as public is not prepared to suffer any discomfort/inconvenience for the sake of
society. The prosecution story, which is otherwise credible and trustworthy, cannot be
doubted merely on account of absence of public witnesses. In the present case lifting of
sample is admitted/unequivocally proved and there is nothing on record to doubt
prosecution witnesses. The defence has brought nothing on record to show the motive of
false implication of accused by the Food Inspector and the SDM. The prosecution story
inspires confidence and there is no reason to disbelieve prosecution witnesses.
Breach of Rule 14
26. It was also one of the arguments that there was violation of Rule 14 of the
Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued that at
the time when the sample was collected, the Food Inspector failed to clean the sample
bottles, tray and the spoon with which the sample was mixed and poured in the bottles. It
was argued that the colour was already sticking to the sample bottles and spoon and it
was this colour which was detected by Director CFL. 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 State Vs.
Suresh Kumar and ors 2010 (2) FAC 204.
27. However, I differ with the contentions as raised by the Ld. Defence counsel.
28. 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
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Rule 14 in this case. Rule 14 of the Act envisages that at the time when the Food
Inspector collects the sample, he shall ensure that not only the container/bottle is clean but
it is also dried. Furthermore, the container should be such so as to prevent any leakage,
evaporation and in case of dry substance entrance of moisture. The container should be
sealed carefully to avoid the above. While sampling the various types of articles of food,
the Food Inspector should make use of clean and dry appliances. He should use clean
and dry spoon or other instruments for sampling and avoid using his own hands to mix the
same. Furthermore he should sample the article in hygienic conditions. Reliance may be
placed upon Varghese Vs. Food Inspector, 1989(2) FAC 236.
29. I have gone through the relevant deposition of prosecution witnesses PW1 and
PW3 to PW4. The PW1 (Food Inspector) clearly deposed during his evidence that Tiranga
Burfi was mixed by him with the help of the clean and dry spoon in a clean and dry tray.
He also deposed that the sample bottles were already clean and dry. Hence, they were
not made clean and dry at the spot again. PW3 to PW4 deposed on the same lines. PW4
also clearly deposed in his cross examination that spoon in question was provided by the
vendor in a clean and dry condition, hence it was not made clean and dry at the spot
again. There is no reason for accused to supply coloured or contaminated spoon to the
Food Inspector, especially when he supplied the same with the full knowledge that it is to
be used in the sample proceedings. From the deposition of the prosecution witnesses, it is
established that proper procedure for sampling was adopted and that the sample bottles
as well as spoon and tray used were clean and dry. There is no reason to disbelieve the
prosecution witnesses. The defence has not proved any motive for FI or Field Assistant to
use contaminated or colored instruments or bottles for sampling to falsely implicate the
accused. This defence appears to have been coined by the accused as an afterthought to
save accused.
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30. Moreover as per Section 114(e) of Indian Evidence Act, the judicial and official acts
are presumed to be regularly performed.
"114 Court may presume existence of certain facts 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"
31. The above provisions and the legislation is based upon the maxim "omnia
praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly and regularly
done. This presumption chiefly applied to official acts. It means that an official act is
proved to have been done, it would be presumed to have been regularly done. The
presumption under Section 114 (e) could only be nullified by clear and cogent evidence
to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1) Punj. LR 69
,
Zeenat Vs.
Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs. Assessar, 5 OLJ 179)".
32. 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.".
33. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed by the
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Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be
sterilized at the time of taking of the sample in the presence of the
witnesses.". Similarly was held in P.A. Anil Vs. Food Inspector
2009 (2) FAC 43. In Lalji Bhai Amrit Lal Vs. State of Gujarat
2010 (2) FAC 163, it has been held as under:
"it is the question of fact in each case as to whether it has
been proved that the bottles were dried and cleaned in which
samples were taken. It must be noted that it is not requirement of law
even of Rule 14 that bottles should be made clean and dry by Food
Inspector himself or bottle should be made clean and dry in the
presence of Food Inspector."
34. In the light of the abovesaid provision and law laid down by superior courts, it is
presumed that the Food Inspector complied with Rule 14 as affirmatively stated by him in
his deposition. The defence is required to bring something concrete for rebutting the said
presumption than simple denial that Rule 14 was not followed by Food Inspector while
taking the sample.
35. In fact from the endorsements made by the accused on the Notice in Form VI i.e.
Ex. PW1/B no doubt remains that the colour was added by the accused and that all the
instruments/ intermediaries used in sampling were clean and dry and not coloured. The
accused had himself made an endorsement in the above document to the effect "this
tiranga burfi prepared with Khoya, Sugar and Bush Colour".
No Homogenization/Mixing of Sample
36. It is one of the arguments of Ld. Defence Counsel that the sample was not properly
mixed/homogenized at the time when it was lifted. The sample sent to Public Analyst and
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Director, CFL were not representative and this is the reason for variation in the Report of
Public Analyst and Certificate of Director, CFL. The Public Analyst found the (Tartrazine,
Sunset Yellow FCF , Brilliant blue ) used was found to be 269.98 ppm whereas the
Director, CFL found it to be 193.93. It is argued that this variation in itself proved that the
sample were not representative. Heavy reliance was placed upon Kanshi Nath Vs. State
2005(2) FAC 219, Delhi Administration Vs. Narayan Dass 2012 (1) FAC 272, State Vs.
Mahender Kumar 2008 (1) FAC 177, Nortan Mal Vs. State of Rajasthan 1995 (3) RCR
311 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.
37. I do not agree with the contention of the Ld. Defence Counsel that the sample of
Tiranga Burfi was not properly mixed. Firstly, the Food Inspector as well as Field
assistant clearly stated in their deposition that sample was taken after cutting the burfi in
small possible pieces and properly mixing them with the help of clean and dry spoon.
They also stood the test of cross examination. They consistently deposed in the cross
examination that Tirangi Burfi was lying in an open tray and the Food Inspector got
removed the extra burfi from the tray and purchased 1500 gms of Tiranga Burfi which the
vendor weighed in the Pan Scale in the same tray in which it was mixed. It was mixed with
the help of clean and dry steel spoon. So their testimony establishes that sample was
taken after properly mixing/homogenizing tiranga burfi. Besides putting a bald suggestion
that representative sample was not taken, nothing concrete has been placed on record by
the defence to show that the proper method for sample lifting was not followed or the
representative sample was not taken.
38. Secondly, there is no requirements of homogenization or taking of representative
sample prior to its lifting either under the Act or Rules appended therein. There is no
requirement of mixing or making the sample i.e. the Tirangi Burfi homogenized as such in
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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."
39. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full Bench of the
Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by
Manard A. Joslyn that the sample must be a representative
sample ..........
We
are not impressed by this argument at all .
Representative sample has got a different connotation, meaning and
purpose in commercial transactions.......In our statue the ingredient
of offence is as mentioned in the 7th section of the Act,
manufacturing for sale, storing, selling or distributing any adulterated
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food. If
the food sold to the food inspector is proved to be
adulterated, it is immaterial whether the sample purchased by
him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such
sample is liable to be punished under section 16 (1) (a) (i) of the
Act.
40. 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
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cream is a commodity which is not expected to lose its shape and
form when the sale is effected. Ice cream when liquefied is no longer
treated as ice cream. It will not be taken by a customer ice cream
then. It is too unreasonable therefore to expect that a representative
sample of Ice cream could be taken by the Food Inspector only by
stirring the entire mass of ice cream available for sale and taking the
sample thereafter. Hence there is no justification to apply any rule of
representative sampling".
41. 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."CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 20/35
42. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.
43. From the aforesaid law it is clear that the question whether the sample is a representative sample has to be seen taking into account the nature of goods sold and the usual mode of supply to the customer at the time of sale. When a customer goes to the shop to buy tirangi burfi etc the seller/vendor does not give the tirangi burfi after cutting and mixing the same with the help of spoon, knife or any other instruments in the tray/vessels used for storing the same in the shop. Generally, tirangi burfi is sold in tirangi burfi form and cutting & mixing the same would break the burfi and the purchasers/customer will not buy such tirangi burfi from the vendor. The vendor merely takes out tirangi burfi with the help of spoon or any other instruments or may be sometimes with his hands and sells it to the customers. The mode used for purpose of sale should not be made different only if it is sold to the Food Inspector. The Act has been enacted for giving protection to the customers/consumers of food articles and food articles is not sold to the customer after homogenization. So, insisting on Homogenization will defeat the entire purpose of the Act. Still by way of abundant caution, the Food Inspector has as stated in his deposition, made all possible efforts to make the sample representative and there is nothing on record to disbelieve the Food Inspector.
Variation in Report of Public Analyst and Certificate of Director CFL
44. The Ld. Counsel for accused has vehemently argued that solely on account of the variation in the report of Public Analyst and Certificate of Director, CFL, the accused are entitled to benefit of doubt and acquittal as held in Kanshi Nath judgment (supra). I do not CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 21/35 agree with the said argument.
45. In the present case, there is consistent report of Public Analyst and Certificate of Director, CFL regarding the presence of Tartrazine, Sunset Yellow FCF , Brilliant blue colour more than the permissible limit of 100 ppm. As per the report of Public Analyst it was found it to be 269.98 ppm and Director CFL found it to be 193.93 ppm. So, there is no substantial variation in the report.
46. Moreover, the said argument is untenable on account of Section 13(3) of PFA Act which reads as under:
"13.............
(3) The certificate issued by the Director of Central Food Laboratory (under subsection 2B) shall supersede the report given by the public analyst under subsection (1)........."
47. It is no gainsaying that there is a settled law that once the appellant exercise the right U/Sec. 13 (2) of the Act, the Certificate of the Director, CFL stands completely wiped out by the certificate of the Director, CFL, however, the accused can still show that in the facts of the given case and of concrete objective grounds that the sample sent to the Director, CFL, was not a representative sample as held in number of cases. The same proposition of law was also laid down by our own Hon'ble Delhi High Court in case of MCD Vs. Bishan Sarup, Crl. Appl. No. 48D of 1972 FAC 273. It is observed as under
in the said case :
1.The consideration of the timelapse between the date of the taking of the sample, the launching of the prosecution and the date when the sample was sent to the Director of Central Food Laboratory is relevant CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 22/35 only for this purpose. Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to subsection (5) of Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated therein. The presumption attaching to the certificate again is only in regard to what is stated in it as to the contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on the record the sample sent for analysis to the Director could not be taken to be a representative sample of the article of food from which it was taken and if this contention is found to be correct, conviction based on the certificate will not be sustainable. Reference on this aspect of the question may be made to the observations of the Division Bench of the Punjab High Court in Municipal Corporation of Delhi Vs. Nirajan Kumar & Others (2).
"We would like to clarify that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report, of the Central Food Laboratory was due to certain factors for which an accused could not be held responsible. In short, the finality and conclusiveness are only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed."
11. The same view was taken by the Division Bench of Gujarat High Court in Mohanlal Chhaganlal Mithaiwala V. Vipanchandar R. Gandhi and another (3) where Shelat, J. (as he then was) speaking for the Court observed as under : "The certificate of the Director of 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 CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 23/35 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 adulterated food. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, chemical or otherwise by the ingredients of the ghee used in the preparation being mixed with the other facts, 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."
48. I do not find any substance in the submission of Ld. Counsel for accused that merely on account of divergence in the Certificate of the Director, CFL and Public Analyst, it is to be presumed that the sample was not representative. The Hon'ble High Court of Delhi in the case of Bishan Sarup (supra) clearly laid down that the accused has to prove a concrete objective ground to establish that the sample sent to Public Analyst and Director CFL was not a representative sample. The contradiction in two reports is not such a concrete objective ground in itself to infer that sample was not representative sample. The accused has to show something more for proving that the representative sample was not taken. This proposition finds strength from the following judgments ;
A) D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 24/35 fact that there was variation in the "contents and extent of adulteration of the food articles" in the Certificate of the Director and the PA.
B) The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under :
"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."
C) In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 25/35 the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".
"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."
D) In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was bserved by the Hon'ble High Court of Delhi as under:
"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".
In para 15 it has been further observed as under: :
"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".
E) In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under :
CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 26/35
"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."
F) In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.
G) In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein."
H) In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 27/35 percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
I) In its latest judgment titled as Food Inspector, Department of PFA, Govt. of NCT of Delhi, Vs. Kailash Chand Dated 31.08.2015, the Hon'ble Apex Court remanded back the appeal/ file to the Hon'ble High Court of Delhi against acquittal order passed by the Hon'ble High Court of Delhi in sample commodity, where, the accused was given the benefit of doubt because of variation in report of Public Analyst and Director CFL in moisture, damage grain and weevilled, beyond permissible limit of 0.3%. Taking note of Section 13 (3) of PFA Act providing that the report of Director CFL shall supercede the report given by Public Analyst and Rules 23, 28 & 29 of PFA Rules, which completely prohibits addition of synthetic red colour, the Hon'ble Supreme Court remanded the matter to Hon'ble High Court of Delhi to consider the case in light of the statutory provision and the provisions enshrined under PFA Rules.
49. So, in view of the law discussed above, the prosecution's case cannot be seen with doubt only because of some variation in the report of two experts i.e P. A and Director, CFL regarding the quantity of colour found in sample commodity. It is important to note that both experts found the presence of Tartrazine, Sunset Yellow FCF , Brilliant blue colours. The law gives supremacy and primacy to report of Director,CFL and the report of Public Analyst get effaced from record on receiving report of Director,CFL. Then, merely on account of some divergence in report of Public Analyst and Director, CFL, it cannot be CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 28/35 presumed that the sample sent to Director, CFL is not representative. Such an inference is not in consonance with mandate of statue as well as law laid down by Hon'ble Apex Court.
50. Further, there in merit in the submission of Ld. SPP for the complainant that colour is added to food article like tirangi burfi at the time of its making. Unless the mixing of colour is done by any machine or any mechanical process,the colour is not uniformly mixed. There will always be a situation where the colour of quantity may be more in some pieces of tirangi burf and others. The mixing of tirangi burf is generally done by the labours/Halwai with his hands which results into uneven mixing of colour. This results into the different quantity of colour in two samples sent to two experts. This validly explains the difference of quantity of colour in two samples sent to Public Analyst and Director,CFL.
51. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under:
CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 29/35
"any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".
Prosecution bad in law
52. It was also one of the argument of Ld. Defence counsel that the prosecution itself was bad in law. It was argued that the prosecution was launched on 17.10.2003 on the basis of the Public Analyst's report dated 03.02.2003. It was argued that as per the Public Analyst's report she used Chromatography method to analyze the sample/ detect the presence of artificial colour if any in the sampled product. Relying upon the Hon'ble Apex Court judgment in Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector 2011 (1) RCR (Criminal), the Ld. Defence counsel argued that the prosecution was bad in law and in fact no prosecution could be launched because though Section 23 (which empowers the Central Government to make rules to carry out the provisions of the Act) was amended w.e.f. 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of Section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used however the methods of analysis to be adopted were specified for the first time only w.e.f. 25.03.2008 after clause 9 was inserted in Rule 4. It was argued that therefore any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or for that matter the Director, CFL could adopt for analysis of sampled product.
53. However, I do not agree with the contentions of Ld. Defence counsel. I have perused the provisions of the Prevention of Food Adulteration Act 1954 as well as Food Adulteration Rules 1955.
CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 30/35
54. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the government Central or State by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL the report is final/holds good for all purposes/ remains effective and valid and can be used as evidence of the facts stated therein. Reliance may be placed upon the law laid down in Roshan Lal Vs. State of UP 1982 (1) FAC 180, Naruti Vs. State 1978 (2) FAC 264, B.K. Jain Vs. State 1965 ALJ 182, Municipal Board Kanpur Vs. Mohan Lal 1960 ALJ 419 and Mangal Dass Raghav Vs. State 1976 (1) FAC 43. Though the Ld. Defence counsel argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. However I do not find any merit in the same. Ld. SPP has placed on record order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi appointed Smt. Mohini Srivastava to the post of PA w.e.f. 31.05.1985. Hence on the day of analysis of the sample i.e. 24.04.2003 she was a duly/ validly appointed Public Analyst.
55. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act.
56. As per Section 13 (2) of the Act the Public Analyst's report can be challenged by getting the counterpart of the sample analyzed by the Central Food Laboratory. The analysis at the Central food Laboratory is done by the Director whose report has been CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 31/35 made conclusive and final as far as the results of the analysis is concerned. {Section 13 (3) }
57. As per Rule 3 (a) of PFA Rules one of the most important and primary function of the Central Food Laboratory is to analyze the sample of food and give a certificate of analysis accordingly. As per Rule 3 (2) CFL, Pune was designated/ specified laboratory at the relevant time to analyze the sample of food article lifted from Delhi. Prior to that CFL, Calcutta was assigned the said function/duty and presently CFL, Mysore is doing the same.
58. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same read as:
The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under subclause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix 'B' of the Prevention of Food Adulteration Rules.
The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 32/35 chemists so as to have a uniformity in the reports. A subcommittee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Subcommittee and approved by Central Committee for Food Standards are published for the guidance of all concerned."
59. . The Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee i.e. Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.
60. Therefore, on the day of analysis of the sample in question the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. Furthermore on the day of analysis of the counterpart of the sample in question CFL, Pune was a designated/ specified laboratory as per the Act and Rules appended therein to analyze the sample in question and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
61. As far as Pepsico's case (supra) is concerned, the judgment cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 33/35 food adulteration. The relevant portion of the judgment relied upon by the Ld. Defence counsel read as:
"34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.
35.The High Court also misconstrued the provisions of Section 23(1 A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution."
62. It is to be seen that in that case as observed in para 34 even the laboratories where the tests were to be performed were not specified. But as is the case herein the analysis was done by CFL, Pune which was a specified/ designated laboratory to analyze the sample as per Rule 3 r/w section 13 of the Act. Moreover in Pepsico's case it was held that the percentage of Carbofuran detected in the sample was within the tolerance limits CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 34/35 prescribed for sweetened carbonated water.
63. Regarding the pick and choose method as discussed above the Central Committee for Food Standards, constituted by the Central Government as per Section 3 of the PFA Act to give effect to the scheme and purpose of the Act, considered this aspect and directed and specified the methods to be adopted uniformally for analysis of the food product to remove the anomaly which may occur due to use of different methods by different experts in respect of the same food product. These adopted methods were used prior to their being specifically notified in Rule 4 (9) which came into force w.e.f. 2008 and which had led to the adulterators being prosecuted and punished even by the Hon'ble Apex Court in numerous rulings upto the year 2008 also.
Paper Chromatography Test.
64. It was further argued that the usual test for detecting colour is Paper Chromatography Test which is not a reliable test to conclude the presence of any colouring matter. Reliance is placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and Maya Ram Vs. State of Punjab Criminal Revision No. 705 of 1981 decided on 15.07.1983. It is also argued that as the Certificate of the Director, CFL nowhere specified the method used by him to analyse the sample and he has simply written about using DGHS method, the same cannot be relied on to return the finding of guilt against the accused persons.
65. I do not agree with the contentions raised by Ld. Counsel for defence. In Delhi Administration Vs. Manohar Lal 2013 (1) FAC 404, the Hon'ble High Court of Delhi upheld the validity of Paper Chromatography Test and laid down that the authenticity of Photo Chromatic Test is only relevant in cases where the expert is to determine the CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 35/35 presence of permitted or unpermitted coal tar dye. It was observed as under :
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. was the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL".
66. The present case pertains to sample of tirangi burf. Rule 28 r/w Rule 29 & 30 of PFA Rules, 1955 allows the presence of permitted colour to the tune of 100 ppm in tirangi burf. Hence, even the permitted colours mentioned in Rule 28 of PFA Rules can be added only up to 100 ppm in tirangi burf. So, the expert is not to determine whether the colour present in sample is permitted or unpermitted colour but whether the colour present in sample is exceeding the permissible limit i.e. 100 ppm. So, the judgments relied on by the Ld. Counsel for the defence i.e. Maya Ram and Subhash Chand (supra) are not applicable to the present case.
67. Regarding the second contention of name of test not being mentioned in the Certificate of Director, CFL, the said contention of the Ld. Counsel for defence is not sustainable on account of law propounded by Hon'ble Supreme Court in Dhian Singh Vs. CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 36/35 Municipal Board Saharanpur and Anr. AIR 1970 SC 318. It was observed as follows: "7. The only other question canvassed before us is that the report of the analyst could not have afforded a valid basis for founding the conviction as the data on the basis of which the anlalyst had reached his conclusion is not found in the report or otherwise made available to the court. We are unable to accept this contention as well. It is not correct to say that the report does not contain the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's case referred to earlier. 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, 1963 AII LJ 765 = (AIR 1964 AII 270) wherein it is observed:
"that the report of the pubic analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode of 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 not adulterated as defined in Section 2 (1) of the Act."
Inconsistency in testimony of prosecution witness and Public Analyst Report.
68. It is vehemently argued by Ld. Counsel for the accused that on account of inconsistency in the evidence of prosecution witnesses and report of PA regarding the presence of silver leaves, prosecution case is not worthy of credence and accused are entitled to benefit of doubt. However, I am not in agreement with the plea of Ld. Counsel for the accused. It is correct that both PW1 and PW4 in their cross examination denied observing presence of silver leaves with naked eyes in the burfi at the time of sampling and the Public Analyst found test of silver leaves positive in his report dated 03.02.2003. However it important to note that accused persons are facing prosecution in the present case on account of presence of synthetic colour being more than the permissible limit of CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 37/35 100 ppm in the sample commodity and not for the presence of silver leaves in the sample commodity. Thus, the divergence in the observation of the PWs regarding the presence of silver leaves in sample commodity and PA Report, is of no significance at all. This proposition was also strengthened by looking at the Certificate of Director, CFL. The Director, CFL has not given any finding in respect of presence or absence of silver leaves in his certificate. As pointed out earlier, this was rightly done as it is the presence of colour beyond permissible limit which is the reason for prosecution of accused persons under PFA Act. Moreover, the PA Report has already effaced from record after receiving Certificate of Director, CFL as elaborated earlier and reading the report of PA to find out loopholes in the case of prosecution on insignificant points is not proper, and the contention of Ld. Counsel for accused is of no merit.
Liability of accused no. 03 i.e Darshan Kumar.
69. It is additionally argued by the Ld. Counsel for accused persons that accused Darshan Kumar was not incharge of and was not responsible for conducting the business of partnership on the date of commission of offence. He cannot be made vicariously liable for the act of other accused i.e Anil Chopra merely because he is one of the partner of firm M/s Anupam Sweets. Heavy reliance is placed by Ld. Counsel for accused on judgment of Hon'ble Delhi High Court in MCD Vs Des Raj and another Criminal Appeal No. 337 of 1977 decided on 20 September 1984 and judgment of Hon'ble Supreme Court in Smt. Manibai and another vs State of Maharashtra decided on 10th August 173, in support of his submission.
70. I do not find any merit in the plea of the Ld. Defence Counsel of the accused persons. The accused Darshan Kumar no where in the entire evidence or in his statement u/s 313 Cr.P.C contended that he was not incharge of and was not responsible for the CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 38/35 conduct of business of the partnership firm.
71. Moreover,the prosecution successfully established that accused Darshan Kumar was one of the active partner of M/s Anupam Sweets i.e firm which was carrying the business on the day of sampling. The prosecution has proved reply of the accused no. 01/vendor to the letter of the Food Inspector wherein he disclosed the constitution of the firm. In the said reply Ex. PW1/G he informed that M /s Anupam Sweets is a partnership firm having four partners, namely, Charan Das, Anil Chopra, Darshan Kumar and Smt. Usha Chopra. Smt. Usha Chopra is a sleeping partner and another partner Charan Dass is not attending the shop due to ill health and also provided a copy of sales tax, copy of license of MCD, photocopy of partnershipdeed and illness certificate of Sh. Charan Dass Chopra. The genuineness of the said documents is not disputed by defence during entire trial. As per Clause V of Partnershipdeed, accused Charan Dass, Anil Kumar and Darshan Kumar are to be actively engaged in conducting the affairs of the business of the partnership firm. The accused Darshan Kumar along with accused Charan Dass and Anil Kumar was also entitled to remuneration as per the Clause V of the Partnership Deed. The accused Darshan Lal is to get remuneration to the tune of 30% on the first Rs. 75,000/ of the book profit and 20% on the next Rs. 75,000/ of the book profit and to get 13.13% on the balance of book profit. Moreover, as per Clause VIII of the Partnership Deed the accused Darshan Kumar is also entitled to 25% share both in the profit and loss of partnership firm. This proves that accused Darshan Kumar was not sleeping/dormant partner. He had active role in the partnership business. It is worth mentioning herein that the prosecution was not launched against accused Usha Chopra who was found to be sleeping partner of the firm and another partner Charan Dass who was also found to be not actively engaged in the business of partnership firm on account of his ill health. Thus, the complaint was filed against accused Darshan Kumar who was found to be active CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 39/35 partner of partnership firm, as also successfully proved by the prosecution during trial. Without questioning the proposition of law laid down in the judgments of Deshraj and Manibai (supra) cited by Ld defence counsel, the same are not applicable to the present case.
72. The only perceptible defence of the accused Darshan Lal is that he was not present at the time of lifting of sample. However, PW1 as well as PW4 have clearly sated during their cross examination that accused Darshan Kumar was very much present at the spot at the time of sample proceedings. PW3 has also not denied the presence of accused Darshan Kumar at the spot at the time of sample proceedings and only stated that he does not remember whether accused Darshan Kumar was present at the shop at the time of sample proceedings. It is understandable as the evidence of PW3 was recorded in the matter after around 09 years and it is recognizable fact the human memory tends to fade with time. Moreover, the accused Darshan Kumar the partner of M/s Anupam Sweets cannot be absolved of his liability u/s 17 of PFA Act only because at the time when the FI along with his team reached M/s Anupam Sweets, he was not sitting at the counter and selling tirangi burfi to the customer. Both PW1 and PW4 clearly stated in their cross examination that the accused Darshan Lal was also sitting near the counter when the Food Inspector PW1 reached the premises of M/s Anupam Sweets and the accused Anil Chopra was sitting on the counter. It is a known fact that in the big sweets shops, all the active partners are not necessarily to be found on the counter where the sweets are being sold. They may be present at the different places in the shop supervising the business of the shop or may not be present at all at the shop. As per the deposition of PW1 as well as PW4, the accused Darshan Kumar was sitting near the counter and was very much present at the time of sample proceedings. So, merely the absence of the accused at the counter is not sufficient to hold that he was not incharge and involved in running day to day CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 40/35 business of the firm.
73. Even otherwise, only the absence of accused at the shop at the time of sample lifting, is not sufficient to establish that he was not responsible and incharge of conducting the day to day conduct of the business of the firm. It is a matter of common knowledge that to run shop/store/business is a tedious task. It requires various helping hands and one man alone cannot handle the store/shop/business. If the plea of Ld. Defence counsel is agreed to then a person though also responsible for the affairs/incharge of day to day business of a shop/store may be successful in avoiding his liability on account of mere temporary absence from the store/shop. What if the person had merely gone to attend some urgent work at his home or any urgent work relating to business/shop or for that matter to attend the call of nature? Temporary absence from the store/shop/business when he is a partner as per the partnership deed and he is also found working at the shop during the course of investigation by the FI is not sufficient to avoid the liability. In Bhavirisetti Deva Vs. State of Andhra Pradesh 1986 (1) FAC 12 it was held by Division Bench of Hon. High Court of Andhra Pradesh that "mere temporary absence from the shop at the time of inspection does not mean that the first accused was not incharge of business or that he was not actually conducting the business". Decision
74. In view of my above discussion, as the total dye/colour quantity/content in the sample of Tirangi Burfi so collected was found at 193.13 ppm which was in excess of the maximum prescribed limit which is 100 ppm as per Rule 30, both the accused persons Anil Chopra and Darshan Kumar along with partnership firm i.e. M/s Anupam Sweets (as per mandate of section 17 of the Act) under which name and style the partnership business was being carried on stand convicted under Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954 CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 41/35 and Rule 30 r/w Rule 23, 28 & 29 of PFA Rules 1955.
74.Let, the accused be heard separately on point of sentence.
Announced in the open Court (PRIYA MAHENDRA) on 02.02.2016. ACMMII/ New Delhi CC No. 337/03 DA Vs. Anil Chopra & Ors. Page 42/35