Delhi District Court
Da vs . Girish Sharma Etc. Page 1 Of 60 on 1 May, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 264/06
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
1.Girish Sharma
S/o Sh. Khyali Ram Sharma
M/s ShangriLa Hotel
New Delhi
(A unit of Hotel Excelsior Ltd)
19, Ashok Road,
New Delhi110001.
........ VendorcumRoom
Service Manager/Nominee of
accused no. 2.
2. M/s Hotel Excelsior Ltd.
Regd Office :S1, American Plaza,
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DA Vs. Girish Sharma etc. Page 1 of 60
International Trade Tower Nehru Place,
New Delhi. ............Company
3. M/s Anjali Anand d/o Sh. S.K. Anand,
M/s Anand Enterprises
G10, Dewan House Ajay Enclave,
New Delhi110018
Regd. Office: 2377, Barshah Bulla,
Chawri Bazar, Delhi06. ..........Proprietor of supplier unit
4. Harsh Anand
M/s Anand Enterprise,
G10, Dewan House, Ajay Enclave,
New Delhi18 ............Incharge of Unit.
5. S.K. Chopra (Dy. Manager Sales cum Nominee)
M/s Gujarat Cooperative Milk Marketing Federation Ltd.
24/1D, Block Institutional Area,
Janakpuri, New Delhi. ...........Nominee of Delhi Sales Depot
of accused no. 6
6. M/s Gujarat Cooperative Milk Marketing Federation Ltd.,
Head Office Amul Dairy Road PB No. 10,
Anand388001
Sales Depot 24/1D, Block Institutional
Area Janakpuri, New Delhi ............Company
7. Dr. Kallol Kumar Pramanik,
Dy. Manager (QA), M/s Mother Dairy,
(A Unit of Gujarat Cooperative Milk Marketing Federation Ltd.)
Plot no. 35, near Indira Bridge,
Ahmadabad,Gandhi Nagar,
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Highway Village, Bhat Distt.
Gandhi Nagar. .........Nominee of Manufacturing Unit
of accused no. 6
Serial number of the case : 264/06
Date of the commission of the offence : 03/06/06
Date of filing of the complaint : 18.12.2006
Name of the Complainant : Sh. Bal Mukund, Food Inspector
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Accused no. 6 and 7 Convicted
Accused no. 1 to 4 Acquitted.
Proceedings against accused no. 5
already abated.
Arguments heard on : 01/05/14
Judgment announced on : 01/05/14
Brief facts of the case
1. In brief the case of the prosecution is that on 03.06.2006 at about 3:00
p.m, Food Inspector Bal Mukund and Field Assistant S.N. Jindal, under the
supervision and directions of SDM / LHA Sh. I.D. Pandey visited at M/s Shangrila
Hotel, 19 Ashoka Road, New Delhi which was a unit of M/s Hotel Excelsior Ltd.,
having its registered office at S1, American Plaza, International Trade Tower, Nehru
Place, New Delhi (accused no. 2) where accused Girish Sharma (accused no. 1)
who was the Managercum nominee was found present conducting the business of
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various food articles in the Hotel including Low Fat cream, 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 Low Fat cream.
2. During the course of investigation it was revealed that the sample
commodity was supplied by to M/s Shangrila Hotel by M/s Anand Enterprises of which
Ms. Anjali Anand (accused no. 3) is the proprietor and Sh. Harsh Anand (accused
no. 4) is the Incharge of the sale office and therefore responsible for the day to day
conduct of the business.
3. Investigation further revealed that M/s Anand Enterprises had itself
purchased the sampled food product from M/s Gujarat Cooperative Milk Marketing
Federation Ltd. (accused no. 6) of which Sh.S.K. Chopra (accused no. 5) was the
Deputy Director and Nominee as per the provisions of PFA Act and Rules and
responsible for/Incharge of day to day conduct of the sales Depot of the company.
4. The sample commodity was manufactured for M/s Gujarat Cooperative
Milk Marketing Federation Ltd. by M/s Mother Dairy of which Dr. Kallol (accused no.
7) is the Deputy Manager and Nominee under the provisions of PFA Act and Incharge
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of and responsible for day to day conduct of the business of the manufacturing unit.
5. 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 the milk fat was found to be less than the minimum prescribed standard of
25%.
6. 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) & (m)
of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
7. After the complaint was filed, the accused persons was summoned vide
orders dated 18.12.2006.
8. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act
1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the
accused persons vide order dated 26.06.2009 to which accused persons pleaded not
guilty and claimed trial.
9. Thereafter, the prosecution examined three witnesses including the then
SDM/LHA Sh. I.D. Pandey as PW1, Food Inspector Bal Mukund as PW2 and Field
Assistant S.N. Jindal as PW3 and PE was closed vide order dated 15.05.2010.
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10 Statement of the accused persons U/s 313 Cr. P.C. was recorded on
30.08.2010 wherein the accused persons claimed themselves to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
11. PW1 Sh. I.D. Pandey, SDM/LHA deposed that on 03.06.2006 he was
posted as SDM/LHA Connaught Place and on that day under his supervisions and
direction FI Bal Mukund, FA S.N. Jindal along with other staff visited M/s ShangriLa
Hotel, New Delhi (A Unit of Hotel Excelsior Ltd.) 19, Ashoka Road, New Delhi where
accused Girish Sharma, Room ManagercumNominee was found conducting the
business of the Food articles in that hotel including "Low Fat Cream" meant for sale for
human consumption. He deposed that FI Bal Mukand disclosed his identity and
intention to lift the sample of Low Fat Cream in sealed tetra pack of 1 litre bearing
identical label declaration for analysis for which accused agreed. He deposed that
before taking the sample FI Bal Mukand tried his best to procure some public
witnesses by requesting some customers to join the sample proceedings but as none
agreed and on his request FA S.N. Jindal agreed and joined as witness. He deposed
that at about 03.00 p.m. FI Bal Mukund purchased one tetra pack of Low Fat Cream of
1 litre bearing identical label declaration and an amount of Rs. 72/ was offered but
was not accepted by the vendor while making endorsement on Ex. PW1/A at point A
to A that low fat cream is not for sale as such but it is used for preparation of food
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articles for sale. He deposed that tetra pack was shaken properly and it was cut and
poured in a clean and dry jug and then it was again mixed with the help of clean and
dry spoon in the Jug. He deposed that FI Bal Mukund divided the sample quantity into
three equal parts by putting the same in three separate clean and dry bottles. He
deposed that 27 drops of formalin were added in each bottles while shaking. He
deposed that each part was separately packed fastened, marked and sealed as per
PFA Act and Rules and LHA slips bearing his code number and signatures were
pasted on each bottle. He deposed that vendor signed the same in a manner that his
signature appeared partly on the slips as well as on the wrappers. He deposed that
notice in form VI Ex. PW1/B was prepared and a copy was given to the accused as
per his endorsement at portion A to A bearing his signature at point A. He deposed
that Panchnama Ex. PW1/C was prepared. He deposed that vendor also disclosed in
the Notice in Form VI that he purchased tetra pack of low fat cream from Anand
Enterprise, G10, Deewan House, Ajay Enclave, New Delhi. He deposed that
accordingly a notice u/s 14A Ex. PW1/D addressing to Anand Enterprise, G10,
Deewan House, Ajay Enclave, New Delhi was prepared at the spot, also provided the
photocopy of bill of purchase Mark X. Report under Rule 9 (e) Ex. PW1/D1 was also
prepared at the spot. He deposed that all the documents Ex. PW1/A to D were read
over and explained to the accused in Hindi and after understanding the same, accused
signed at point A, witness signed at point B and FI signed at point C. He deposed that
the remaining two counterparts of sample in intact condition along with two copies of
Memo of Form VII in a sealed packet were deposited on 05.06.2006 i.e. next working
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day with him vide Ex. PW1/E with the intimation that one counterpart of the sample in
intact condition was already deposited with the PA. He deposed that all the copies of
memo of Form VII were marked with the impression of seal which was used to seal the
sample counterpart. He deposed that PA receipt is Ex. PW1/F. He deposed that on
receipt of PA report Ex. PW1/G according to which the sample does not conform to the
standard of low fat cream because milk fat is less than the prescribed minimum limit of
25% as mentioned therein at portion X. He deposed that after completion of
investigation by FI the complete case file along with all statutory documents were sent
to the Director Sh. K.S. Wahi through him who after going the entire case file applied
his mind and gave the sanction for prosecution Ex. PW1/H against the accused
persons. He deposed that complaint Ex. PW1/I was filed in the court by FI Bal
Mukund. He deposed that intimation letter Ex. PW1/J along with PA report was sent to
the accused persons by registered post by SDM/LHA which were not received back
undelivered. He deposed that the postal registration receipt copy is Ex. PW1/K.
12. During his cross examination he stated that except his code slip and
report under Rule 9(e) he did not sign on any other documents prepared at the spot as
a witness. He stated that he has refreshed his memory from official record. He stated
that sample tetra pack was in intact condition and there was no tampering and it was
stored in kitchen in the refrigerator. He stated that vendor was present in the kitchen of
the Hotel at the time of sampling. He denied the suggestion that in tetra pack there is
no space so that it contents may mixed. He admitted that it is not mentioned in the
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Notice in Form VI that how many times spoon was rotated and how it was used. He
denied the suggestion that some contents remained stuck with the Jug or tetra pack.
He stated that it is not mentioned on the documents that the tetra pack was brought in
room temperature. He denied the suggestion that minor deficiency was due to
improper sampling. He stated that he cannot comment that it is only the fatty portion
of cream or other milk products which get struck to a cold surface.
13. PW2 Food Inspector Bal Mukand and FA S.N. Jinal have deposed on the
same lines as deposed by PW 1 in his examination in chief. In addition PW2 FI Bal
Mukund deposed that during investigation he sent a letter Ex. PW2/A to the vendor
and received its reply Ex. PW2/B along with list of Directors, photocopy of Nomination,
photocopy of sales tax registration, photocopy of license of MCD. He deposed that he
also sent a letter Ex. PW2/C to the LHA to confirm the nomination of vendor and the
LHA confirmed the nomination and also attached the photocopy of the format of form
VIII and copy of resolution. He deposed that he also sent a letter Ex. PW2/D to STO
ward no. 59 in respect of constitution of M/s Anand Enterprises and as per its reply at
portion A Ms. Anjali Anand is the proprietor of M/s Anand Enterprises. He deposed
that he also sent a letter Ex. PW2/E to M/s Anand Enterprises and received reply Ex.
PW2/F stating that Harsh Anand is the Incharge of the business and Anjali is the
proprietor and also confirmed the sale of the sample commodity to the vendor and
disclosed that they are the distributor of GCMMF. He deposed that he also sent a
letter Ex. PW2/G to MCD but no reply was received. He deposed that he also sent a
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letter Ex. PW2/H to STO Ward no. 60 but as per its reply at portion A, GCMMF was
not found registered with the Sales Tax. He deposed that he also sent a letter Ex.
PW2/I to GCMMF, Institution Area Office Janakpuri and received its replies Ex. PW2/J
and J1 along with photocopy for Form VIII of Nominee Sh. S.K. Chopra along with
copy of resolution. He deposed that he also sent a letter Ex. PW2/K to Mother Dairy (a
unit of GCMMF) and received its reply Ex. PW2/K1 along with photocopy of Form VIII.
He deposed that a reply Ex. PW2/K2 was received from GCMMF, sales Office,
Janakpuri, Delhi. He deposed that during investigation it was revealed that the sample
commodity was supplied by M/s Anand Enterprises and Anjali Anand was the
proprietor and Harsh Anand was Incharge and supplier. He further deposed that
during investigation it was revealed that the sample commodity was manufactured by
GCMMF at their unit at Gandhi Nagar and Dr. Kallol Kumar was Nominee of the
manufacturing unit and Sh. S.K. Chopra was nominee for Delhi Sales Depot of
GCMMF.
14. This so far is the prosecution evidence in the matter.
15. 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.
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16. 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 no. 6 and 7.
17. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Bal Mukund coupled with the report of PA dated
27.06.2006 that accused Girish Sharma (accused no. 1) was indeed found selling Low
Fat cream at M/s Shangrila Hotel, a Unit of Hotel Excelsior Ltd. (accused no. 2) which
on analysis by the PA was found adulterated on account of the fat contents being less
than the minimum prescribed limit of 25%.
18. The star / the material witness of the prosecution i.e. Food Inspector Bal
Mukund categorically proved the sample proceedings dated 03.06.2006 as were
conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution which bears the
signature of the accused as well, the admissions made by accused no. 1 Girish
Sharma during his examination under Section 313 Cr. P.C as recorded before the Ld.
Predecessor of this Court on 30.08.2010 which are admissible in evidence against the
accused in view of sub clause (4) of Section 313 Cr. P.C as well as the law laid down
in Benny Thomas Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh
V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of
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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 the document Ex. PW2/A and its reply Ex. PW2/B dated
11.07.2006 written by accused no. 1 Girish Sharma to the Director, PFA along with
form VIII (Rule B) and Ex. PW2/C no doubt remains that the sample of Low Fat Cream
was indeed collected by the Food Inspector for analysis from M/s Shangrila Hotel of
which accused no. 1 Girish Sharma was the ManagercumNominee on the day of
lifting of the sample.
19. During the course of arguments, Ld. defence counsel Sh. M.K. Gupta
appearing for all the accused persons had argued that the prosecution miserably failed
to bring home the guilt against the accused persons. It was argued that the
prosecution story suffers from various loopholes /contradictions.
Public witness
20. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings/lifting of the sample which is in violation of
section 10 (7) and therefore the accused persons are entitled to be acquitted on this
ground alone. It was argued that the FI despite the mandate of section 10 (7) did not
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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.
21. 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. Narayanasamy 1997 (2) FAC 203.
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22. 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.".
23. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
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discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
24. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
25. 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."
26. It is writ large from the deposition of prosecution witnesses that FI Bal
Mukund made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
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administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
story inspires confidence and lifting of the sample stands admitted/unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused persons or depose falsely against them. There is
nothing on record to suggest that the FI, the SDM were inimical to the accused
persons or had any grudge or enmity to falsely implicate them.
Rule 14 and Homogenization of sample
27. 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, the jug and the spoon with which the sample was allegedly
mixed by the Food Inspector. It was further argued that the sample was not taken in a
proper manner. It was argued that it is apparent from the prosecution story that the
sample was taken after opening the sealed tetra pack which itself a violation of Rule
22 of the PFA Rules 1955. It was further argued that the contents of the tetra pack
were put in the jug and thereafter from the jug the contents/ cream was poured into the
sample bottles. The Ld. Defence counsel argued that some content of the cream
remained stuck in the jug as well as the tetra pack and it was on account of this that
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the sample did not conform to the standards. The Ld. Defence counsel further argued
that deposition of the SDM/LHA makes it amply clear that the cream/tetra pack at the
time of sampling was taken out from a refrigerator and same was not brought to room
temperature. The ld. counsel argued that it is a matter of common knowledge that the
fat sticks to the colder surface and accordingly as the tetra pack/sample commodity
was not brought to the room temperature the fat content remained stuck to the tetra
pack as well as the jug and because of this improper method of sampling the sample
did not conform to the standards. 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 of Gujarat
Vs. Harumal Retumal and others 2008 FAJ 292 (Guj), Koyakutty Vs. Food
Inspector 2000 (2) FAC 238 and Shew Chander Mathur and anr Vs. State of
Assam and anr., 1991 (1) FAC 9.
28. However I differ with the contentions as raised by the Ld. defence
counsel.
29. 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
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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.
30. I have perused the deposition of the Food Inspector i.e. Bal Mukund, who
was examined as PW2. The Food Inspector deposed as under:
"......Tetra pack was shaken properly and it was cut and poured in a
clean and dry jug and then it was again mixed with the help of clean and dry spoon in
the jug. I divided the sample quantity into three equal parts by putting the same in
three separate clean and dry bottles."
31. During his cross examination he stated as under:
"......... It is wrong to suggest that the sample was kept in a freezer........ It
is wrong to suggest that there was no space in the tetra pack to shake it and even
after shaking, same was mixed with the help of spoon. The procedure adopted by me
for mixing was mentioned in the Notice in form VI. The contents of the jug was taken
out as far as possible........It is wrong to suggest that some contents remained struck
with the jug and in the side of the tetra pack.......It is wrong to suggest that minor
deficiency due to improper sampling"
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32. Similarly PW1 the then SDM/LHA Sh. I.D. Pandey deposed as under:
" Tetra pack was shaken properly and it was cut and poured in a clean
and dry jug and then it was again mixed with the help of clean and dry spoon in the
jug. F.I. Bal Mukund divided the sample quantity into three equal parts by putting the
same in three separate clean and dry bottles"
33. During his cross examination he stated as under:
"......It is wrong to suggest that in tetra pack, there is no space so that it
contents may mixed......It is wrong to suggest that some contents remained stuck with
the jug or tetra pack........It is wrong to suggest that minor deficiency was due to
improper sampling"
34. PW3 FA S.N. Jindal deposed as under:
" Tetra pack was shaken properly and it was cut and poured in a clean
and dry jug and then it was again mixed with the help of clean and dry spoon in the
jug. F.I. Bal Mukund divided the sample quantity into three equal parts by putting the
same in three separate clean and dry bottles"
35. During his cross examination he stated as under:
" Sample was not kept in the refrigerator...........After mixing the sample
commodity was poured into the sample bottles from the jug. All the cream was poured
into the sample bottles and nothing remained in the jug, even traces of low fat cream
were not in the jug".
36. Hence the prosecution witnesses consistently deposed regarding the jug
as well as the sample bottles and the spoon being clean and dry. From their
deposition/statement no doubt remains that the sample proceedings were conducted
in a proper manner and that the sample bottles, the jug as well as the spoon used for
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mixing the cream was 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. 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"
37. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
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DA Vs. Girish Sharma etc. Page 20 of 60
38. 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.
39. 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
.].
40. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
(2002) 5 FAC 234.
41. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
CC No. 264/06
DA Vs. Girish Sharma etc. Page 21 of 60
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.".
42. 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.".
43. 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.
44. I also do not find any merits in the defence arguments that the sample
failed due to bad sampling. The sample of cream was taken after putting the contents
of the tetra pack i.e. cream in the jug and from the jug it was poured into the sample
bottles. This was a proper procedure. Though Ld. Defence counsel argued that by
opening/cutting the tetra pack the Food Inspector violated Rule 22 of the PFA Rules
1955 however I do not agree with his contentions. Rule 22 only contemplates that
food sold in packaged condition should be sent for analysis in its original condition,
without opening the packets as far as practicable. In the case at hand, the tetra pack
was opened by the Food Inspector for the purpose of adding formalin (preservative) in
the sample of cream so collected so as to preserve it till the time the sample was
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DA Vs. Girish Sharma etc. Page 22 of 60
analyzed by the Director upon the application of the accused as at the time of
sampling the FI could not have contemplated as to how much time it will take to file the
complaint, summoning of the accused by the court and when the sample would be
sent to the Director for analysis upon the application of the accused (Though it is a
different matter that accused did not prefer to exercise his right contemplated u/s 13
(2). The Food Inspector thus acted bonafide in opening the tetra pack and taking the
samples in bottles. There was thus no violation of Rule 22
45. As far as the contents of the jug and tetra pack are concerned the Food
Inspector categorically stated that the contents of the jug were taken out as far as
possible and he categorically denied the suggestion that some cream remained stuck
with the jug or in the tetra pack. Even the Field Assistant categorically stated that all
the cream was poured into the sample bottles and nothing, not even the traces of the
cream remained in the jug. Even the SDM/LHA under whose supervision the
proceedings were conducted categorically denied that some contents of the cream
remained with the jug or the tetra pack. Hence it stands established that the entire
contents of the tetra pack i.e. the cream was poured into the sample bottles and
nothing remained stuck to the tetra pack or the jug. Nonetheless even if for argument
sake it is believed (though not proved by the defence) that some traces of the cream
remained stuck to the tetra pack or the jug I fail to understand how it prejudiced the
accused persons or discredits the prosecution case. It stands proved from the
deposition of the prosecution witnesses that before opening the tetra pack it was
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DA Vs. Girish Sharma etc. Page 23 of 60
shaken properly so as to mix/ homogenize the cream/the contents of the tetra pack.
Again after cutting/opening the tetra pack the cream was mixed in the jug with the help
of a spoon in the jug in which it was poured. Thus the sample of cream was taken after
proper mixing. It is to be remembered that the sample was of "low fat cream" and not
of milk. It being the sample of "low fat cream" the fat content in every traces, every part
i.e. to say every gram/ml of the cream ought to have the same fat percentage/ content
as per the standards prescribed for "low fat cream". In fact there was no need for the
cream to be mixed or homogenized as the cream no matter in what quantity it is taken
for the purpose of sampling/ analysis, it has to conform to the standards of "low fat
cream" in every part.
46. As far as the defence arguments that the cream was taken out from the
refrigerator as stated by the SDM/LHA, I find no merits in the same. It stands proved
from the testimony of the Food Inspector who had conducted the sample proceedings
that the cream was lying in the kitchen and was not stored in the refrigerator. The food
Inspector categorically denied that the same was kept in a refrigerator and he went on
to state that it was not brought to room temperature as it was not kept in a freezer. His
testimony was duly corroborated by the Field Assistant who also denied that the
sample/cream at the time of its lifting was kept in a refrigerator. The testimony of the
Food Inspector has to be given more weightage as compared to the SDM/LHA as it
was the Food Inspector who had collected the sample and the SDM/LHA had only
played supervisory role. Moreover the SDM/LHA had not deposed in his examination
CC No. 264/06
DA Vs. Girish Sharma etc. Page 24 of 60
in chief that the sample was taken from a refrigerator. Even in the documents prepared
at the spot i.e. Ex. PW1/A to C it is nowhere reflected that the sample/cream was
taken out from the refrigerator. In fact when accused no. 1 Girish Sharma made
endorsement on Ex. PW1/A he nowhere stated that the sample was taken out from the
refrigerator. Furthermore in all the subsequent correspondences between him and the
FI or the SDM/LHA he nowhere claimed/it was not his stand that the sample/cream
was taken out from the refrigerator. Hence I am of the firm opinion that the plea of
sample being taken out from the refrigerator is an after thought.
Even otherwise the discrepancy in the statement of the SDM/LHA on one hand
and the Food Inspector and the Field Assistant on the other hand is too trivial in nature
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 2006
and the deposition/cross examination of the SDM/LHA was recorded in the year 2009
i.e. after a gap of more than 3 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.
47. By and large a witness cannot be expected to possess a photographic
memory and to recall the minute 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 and reproduce the very words used by them or heard by them. They can
CC No. 264/06
DA Vs. Girish Sharma etc. Page 25 of 60
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 .
48. 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
evidence. One cannot come across a witness whose evidence does not contain some
CC No. 264/06
DA Vs. Girish Sharma etc. Page 26 of 60
exaggeration or embellishments. Sometimes there could even be a deliberate attempt
to offer embellishment and sometime in their overanxiety they may give slightly exag
gerated account. Court can sift the chaff from corn and find out truth from the testimo
ny 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.
49. Moreover, officials like Food Inspector and the SDM/LHA are involved in
collecting 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 it stands proved that the sample was taken from the kitchen and not from
the refrigerator lying in the kitchen.
50. Ld. Defence counsel has also argued that the method/procedure for mix
ing as adopted by the FI was not proper. However the said line of arguments do not
inspire confidence and are meritless. As already discussed above the method adopted
by the Food Inspector for sampling was a proper one. He had shaken the tetra pack
properly before opening it and after it was opened and the cream was poured in the
jug it was again mixed with the help of a spoon in the jug. Furthermore it being a sam
ple of "low fat cream" it was not required to be homogenized as already discussed
above.
CC No. 264/06
DA Vs. Girish Sharma etc. Page 27 of 60
51. Moreover in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,
the Full Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
52. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had tendered a payment of Rs. 72/ to accused
Girish Sharma but the same was not accepted by him. In this regard vendor's receipt
Ex. PW1/A was executed which bears the signature of accused at point A along with
his noting. The testimony of the Food Inspector has gone unrebutted on this material
particular. The testimony of the SDM/LHA as well as the FA which is on the same lines
have also remained unchallenged. Hence sale to FI stands proved. The Hon. Apex
Court in The food Inspector, Calicut Corporation vs. C. Gopalan & another
CC No. 264/06
DA Vs. Girish Sharma etc. Page 28 of 60
19481997 FAC (SC) 73 observed as "........when there is a sale to the Food
Inspector under the Act of an article of food, which is found to be adulterated, the
accused will be guilty of an offence punishable under Section 16 (1) (a) (i) read with
Section 7 of the Act. In MCD Vs. Shri Ail Das & Anr. 1975 FAC 223, Division
Bench of the Hon'ble High Court of Delhi held as "As was laid down by a Full
Bench of this Court in Madan Lal Vs. State 1972 F.A.C. 481.........it must be held
that if the respondents in the two appeals were dealers in toned milk as such, they
would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 29 of 60 usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling"
53. 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 30 of 60 manner particularly a manner which is contrary to the ordinary course of business."
54. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as under:
"Neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in the possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that is not the normal mode, that will not be done when the sale is made to the Food Inspector also."
55. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy cream the vendor does not give the said food article/ cream after mixing the same with the help of some instrument/spoon etc in the container in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the cream with the help of a measure or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of CC No. 264/06 DA Vs. Girish Sharma etc. Page 31 of 60 making the food article 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. Sale
56. It was argued by the Ld. Defence counsel that cream was not meant for sale as such but it was meant only for use in/ preparation of food articles for sale and hence the low fat cream being not meant for direct sale, the accused cannot be held guilty. However, I do not agree with the contentions of Ld. Defence counsel. As per the endorsement of accused no. 1 on vendor's receipt Ex. PW1/A the low fat cream was meant for use in/ preparation of food articles meant for sale. The place from where the sample was lifted is a Hotel. Even if the defence arguments are accepted that the cream was not meant for direct sale the fact remains that the cream was to be used in the preparation of food articles meant for sale. A person cannot sell a poison mixed in sweet/candy and then claimed that he did not directly sell the poison but the poison was used/mixed in preparation of the sweet/candy which was ultimately sold. In Mohd. Yamin Vs. State of UP, 19481997 FAC (SC) 280 the Hon. Apex Court held "That if shakkar is an article of food, it does not matter whether the Appellant kept it for sale or for manufacturing rab out of it........A Sale to the Food Inspector is a sale for the purpose of Section 16 of the Act".
57. The Hon. Apex Court in Food Inspector, Calicut Corporation Vs. CC No. 264/06 DA Vs. Girish Sharma etc. Page 32 of 60 Charukattil Gopalan 19481997 FAC (SC) 73, while dealing with the case of sample of sugar lifted from a tea vendor observed at para 12 as under:
"There is no controversy that sugar with which we are concerned in this case is an article used as food for human consumption or at any rate it is an article which ordinarily entered into or used in the composition or preparation of human food. Even according to the respondents the sugar so kept in their tea stall was intended to be used in the preparation of tea which was sold to the customers.
It was further observed in para 26 as under:
"To sum up we are in agreement with the decision reported in Municipal Board, Faizabad vs. Lal Chand Surajmal and another AIR 1964 All 199 and the Public Prosecutor vs. Palanisami Nadar AIR 1965 Mad. 98 to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under Section 16(1) (a) (i) read with Section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article".
58. In MCD Vs. Kewal Ram 1975 FAC 335, the Division Bench of the Hon'ble High Court of Delhi held that butter kept at the bakery not for sale as such but for use in preparation of bakery products still offence under Section 7/16 of the Prevention of Food Adulteration Act has been committed because "food" as defined by the Prevention of Food Adulteration Act has a very wide connotation and covers any article used as food and every component which enters into it. Reliance may also be placed upon M/s P.K. Tejani Vs. M.R. Dange, 1974 FAC 74.
CC No. 264/06 DA Vs. Girish Sharma etc. Page 33 of 60
59. In MCD Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court of Delhi held that "where a sample of butter was taken from a Halwai who did not sell butter as such but kept it for use in the preparation of samosas and the butter was found adulterated it was held that "if the butter of which sample was taken can be regarded to be adulterated, then the vendor will have to be held guilty of selling an adulterated article of food to the Food Inspector even though the butter was kept not for sale but was to be used in preparing samosas to be sold to customers.".
It was further held in para 7 that "As was laid down by a Full Bench of this Court in Madan Lal Vs. State (1972 F.A.C. 481) it would not make any difference even if the vendor was not a dealer in the article of which sample was taken, if the article was to be used in preparation of any other article which would have been then sold to customers. In that connection, the following observations were made: "It must be held that if the respondents in the two appeals were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him. The position will be the same even if the respondents were not dealers in toned milk as such but were using the toned milk in the preparation of tea or coffee which they were selling to the customers.".
60. In MCD Vs. Ajit Pershad, 1975 (2) FAC 60, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:
"The fact that paneer of which sample was taken was not meant for sale in that very form but was to be used for preparation of sweets and could not make any difference when the sweets so prepared would have been sold at the shop.".CC No. 264/06 DA Vs. Girish Sharma etc. Page 34 of 60
61. In MCD Vs. Moti Ram & Anr. 1975 (2) FAC 41, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:
"The Ghee used, therefore, did not conform to the prescribed standard and the quality or purity of the Ghee used in the preparation of the AluTikkis greatly fell below the prescribed standard. The AluTikkis sold by Moti Ram have, therefore, to be regarded to be adulterated under clause (1) of section 2(i) of the Prevention of Food Adulteration Act."
62. In NDMC Vs. Shri Hardev Singh 1980 (1) FAC 472, a sample of Atta was lifted from a restaurant and Atta as such was not meant for sale but only the chapattis were sold. It was held that the Food Inspector has power to collect the same.
63. Similarly was held in Food Inspector, Calicut Corporation Vs. Charukattil Gopalan 1972(2) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978 (1) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978(1) FAC 1 , Gajender Kumar Vs. State of Haryana 2010 (1) FAC 158 , 1981 (1) FAC 181 and Madan Lal Vs. State 1972 (2) FAC 481.
PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.
64. It was also one of the arguments of Ld. Defence counsel that PA's report along with intimation letter as per the provisions of section 13 (2) of the Act was not supplied/delivered to the accused persons and accordingly the accused persons could not exercise their right as contemplated u/s 13 (2) i.e. sending the second counterpart CC No. 264/06 DA Vs. Girish Sharma etc. Page 35 of 60 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 persons as their right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in Rameshwar Dayal Vs. State of UP 1996 (II) FAC 197, State of Haryana Vs. Munim 2006 (2) FAC 93 and Kirtan Bhoi Vs. State of Orissa, 1997 (2) FAC 300.
65. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 18.12.2006 and the next date of hearing before the court was 03.08.2007. On 03.08.2007 all the accused persons/ARs/Nominees of the accused company appeared in the court and the accused persons were enlarged on bail. On that day the accused persons did not move any application u/s 13(2) for reasons best known to them. Hence once the accused persons themselves does not exercise the right u/s 13(2) PFA Act they cannot be allowed to complain later on regarding violation of the right as envisaged u/s 13(2) of the PFA Act.
66. In Sukhmal Gupta and anr Vs. The Corporation of Calcutta, 19481997 FAC (SC) 93 the Hon. Apex Court held "in this case no prejudice of the defence has been shown..........He never utilized the right u/s 13(2) of the Act of sending the sample to the Director of Central Food Laboratory". CC No. 264/06 DA Vs. Girish Sharma etc. Page 36 of 60
67. 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 (2), since he did not make any application to the Court for sending it."
68. 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:
"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."
69. 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.
70. 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.
CC No. 264/06 DA Vs. Girish Sharma etc. Page 37 of 60
71. In Babu Lal Hargovind Dass Vs. State of Gujarat 1972 FAC 18, it was held "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. "
72. 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.............. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right."
73. 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........
74. As far as the service of the intimation letter and the PA report to the accused persons is concerned firstly as discussed above the accused persons did CC No. 264/06 DA Vs. Girish Sharma etc. Page 38 of 60 not exercise the right under section 13 (2) as is evident from the records. Hence whether the intimation letter along with PA's report was served upon them or not looses much of its significance. Secondly, PW1 SDM/LHA categorically deposed that the intimation letter along with PA's report was sent to all the accused persons by registered post and the same was not received back undelivered. He proved the intimation letter and the postal receipt by which the same was sent as Ex. PW1/J and K. On similar lines was the deposition of Food Inspector. Not even a single suggestion was given to them that they were deposing falsely or that the PA's report and the intimation letter were not sent to the accused persons. Their testimony thus remained unchallenged/ unrebutted on this material particular and I have no reasons to disbelieve them. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:
"........it is further contended that the accused was prejudiced inasmuch as there is nothing to show that the report of the Analyst was sent by registered post to the accused as required under Rule 9(j).......... When the Food Inspector was examined, he deposed in his chiefexamination that the report of the Analyst was sent to the accused by registered post. He was not crossexamined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise does not assume importance".
75. Thirdly, I have perused Ex. PW1/J and K. The addresses appearing on the same is the same address as appearing in the complaint as well as on which the summons sent by the court were duly served upon the accused persons. If the summons were served on the same address I fail to understand why the intimation CC No. 264/06 DA Vs. Girish Sharma etc. Page 39 of 60 letter and the PA's report sent vide Ex. PW1/J and K would not be received by them. It is nowhere the defence claim/plea that the address is incorrect.
76. Section 114 of the Evidence Act and 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"
77. It is now well settled that sending by post, means sending by post to the addressees proper address. Where a notice has to be served through post, all that a sender can do to comply with the provisions is to post the prepaid registered letter containing addressees correct address. Once he does this and the letter is delivered to the post office, he has no control over it. In that event, under Section 27 of the General Clauses Act, the letter shall be presumed to have been delivered to the addressee. There is no obligation upon the sender to prove the service of notice upon the addressee if he send the notice by registered post, properly addressed. 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)]
78. 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 40 of 60 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.)
79. 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).
80. 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)].
81. In Basudev Pandey Vs. State of Orissa, 1999 (2) FAC 412 the 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 41 of 60 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"
82. 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."
83. 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.".
84. 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 42 of 60 returned to the sender as unserved.".
85. 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.
86. 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."
87. In the case at hand in view of categorical deposition of the Food Inspector and SDM/LHA which has gone unrebutted coupled with Ex. PW1/J and K as discussed above a presumption tenable in the eyes of law can be drawn that the PA's CC No. 264/06 DA Vs. Girish Sharma etc. Page 43 of 60 report along with intimation letters were duly delivered/received by the accused persons.
Delay
88. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in filing the complaint as though the sample was collected/lifted on 03.06.2006 the complaint was filed only on 18.12.2006 i.e. after a gap of almost 6 months. It was argued that as is evident from Ex. PW1/B the date of manufacture of the sample product was 16.05.2006 and complaint was filed after the expiry of best before period of 120 days which expired on 15.09.2006. Therefore even if the accused persons had moved the application u/s 13(2) the sample would have become deteriorated/decomposed by that time and no purpose would have been served by moving the application. It was argued that on account of the lapses/laches on the part of the prosecution the accused's right u/s 13 (2) was prejudiced. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However I do not agree with the contentions of Ld. Defence counsel. Firstly the prosecution witnesses categorically stated that at the time of sampling 27 drops of formalin were added in the sample bottles as a preservative. Once formalin was added in the sample bottles and the bottles shaken properly for proper dispersion of formalin in the sample bottles/cream, the defence CC No. 264/06 DA Vs. Girish Sharma etc. Page 44 of 60 plea that the sample must have deteriorated looses merit. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample would have deteriorated due to lapse of 6 months despite addition of formalin. Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 .
89. Secondly, the accused persons should have moved application u/s 13 (2)/should have exercised the right therein and only if the Director had opined that sample was decomposed they would have been entitled to the benefit or could have claimed prejudice. Reliance may be placed upon Ajit Prasad's case (supra) as well as MCD Vs. Ghisa Ram 19481997 FAC (SC) 265 and Babu Lal Hargovind Das Vs. State of Gujarat 19481997 FAC (SC) 1083. They did not exercise their right for reasons best known to them.
90. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 7 months the sample would have decomposed/rendered unfit for analysis.
91. In Babu Lal Hargovind Das Vs. State of Gujarat, 19481997 FAC (SC) 1084, the Hon. Apex Court observed at para 6 as under:
"There is also in our view to justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food CC No. 264/06 DA Vs. Girish Sharma etc. Page 45 of 60 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 filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi vs. Ghisa Ram 1967 (2) S.C.R. 116 :
19481997 FAC (SC) 93 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. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative..................No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory".
92. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
93. In Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264 the Hon. Apex court observed "the accused could have availed of the valuable right given to him u/s 13(2) but he did not do so, nor did he put any question in cross examination that the tea was liable to deterioration and could not be analyzed by the Director of CFL". In these circumstances the report of the PA was accepted in CC No. 264/06 DA Vs. Girish Sharma etc. Page 46 of 60 maintaining the conviction.
94. In Magal Dass Raghavji vs. State 19481997 FAC (SC) 239 the Hon. Apex Court held that the accused had not done anything to call the Public Analyst and the court could legally act on the report of the Public Analyst.
95. The "delay in sending the article to Director, CFL for analysis" on account 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. It was 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 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:
CC No. 264/06 DA Vs. Girish Sharma etc. Page 47 of 60
"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 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?"
The court concluded / summed up its observation / findings in para 103 as under:
"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 :CC No. 264/06 DA Vs. Girish Sharma etc. Page 48 of 60
(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.".
96. 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 accused so 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 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 49 of 60 particular time after which sample would not be sent for analysis.".
97. 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.".
98. 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.".
99. 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."
100. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a CC No. 264/06 DA Vs. Girish Sharma etc. Page 50 of 60 certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
101. 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:
" 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." .
102. 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 occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis."
103. 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 CC No. 264/06 DA Vs. Girish Sharma etc. Page 51 of 60 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".
104. 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.
105. Hence I find no merits in the contentions of Ld. Defence counsel that the delay of around 6 months in launching prosecution prejudiced the right of the accused persons.
Marginal deficiency
106. It was also one of the argument of the Ld. Defence counsel that CC No. 264/06 DA Vs. Girish Sharma etc. Page 52 of 60 marginal deficiencies have to be ignored. It was argued that marginal deficiencies can be attributed to analytical error or defective sampling. It was argued that in the case at hand PA found the milk fat content at 24.57% as against the minimum of 25.00% i.e. only 0.43% short. Reliance was placed upon the law laid down in 1995 (1) FAC 126 (SC), 2002 (2) FAC 224 (SC) and 1999 (1) FAC 15 (Delhi).
107. However I do not agree with the contentions of Ld. Defence counsel. In Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
108. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.
109. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 CC No. 264/06 DA Vs. Girish Sharma etc. Page 53 of 60 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".
110. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%.
111. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.
112. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.
113. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the CC No. 264/06 DA Vs. Girish Sharma etc. Page 54 of 60 saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."
114. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."
115. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was CC No. 264/06 DA Vs. Girish Sharma etc. Page 55 of 60 rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
116. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".
117. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
118. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
119. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, CC No. 264/06 DA Vs. Girish Sharma etc. Page 56 of 60 came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".
120. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."
121. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
122. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
123. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
124. In the case at hand the sample did not conform to the prescribed CC No. 264/06 DA Vs. Girish Sharma etc. Page 57 of 60 standards of low fat cream as the milk fat was found at 24.57% against the minimum limit of 25%. Hence it is adulterated or else the plea of the defence is allowed it will amount to altering the standard which will be unlawful. Warranty
125. As discussed in para 18 above it stands proved/established that the sample of low fat cream was lifted/collected from M/s Shangrila Hotel from Girish Sharma (accused no. 1). It also stands proved on record that the sample of Low Fat Cream which was so collected was supplied to M/s Shangrila Hotel which was a unit of M/s Hotel Excelsior Ltd. (accused no. 2) by M/s Anand Enterprises of which Ms. Anjali Anand (accused no.3) is the proprietor. At the time of supply of the sampled commodity Sh. Harsh Anand (accused no. 4) was the Incharge of business of M/s Anand Enterprises. From documents Ex. PW2/D to G it stands established that it was accused no. 3 who through her nominee/Incharge had sold the sample commodity to accused no. 1. The bill/invoice no. 6846 dated 02.06.2006 Ex. DA, the testimony of the Food Inspector and other prosecution witnesses and the fact that the supply of the sample commodity to accused no. 1 was not disputed during the trial by accused no. 3 and 4 (admitted during their examination u/s 313 Cr.P.C as well as the testimony of food Inspector remained unchallenged on this aspect) leaves no doubt whatsoever that the commodity was indeed supplied to accused no.1 by accused no. 3 and 4.
126. It stands further established/proved in view of document i.e. Ex. PW2/H, CC No. 264/06 DA Vs. Girish Sharma etc. Page 58 of 60 I, K2, Form VIII (Rule B) dated 08.11.2004 that accused no. 3 had itself procured the sample commodity from accused no. 6 i.e. M/s Gujarat Cooperative Milk Marketing Federation Ltd. of which accused no. 5 S.K. Chopra (since deceased) was the Deputy Manager cum Nominee. The fact that the sample commodity was supplied to accused no. 3 by accused no. 6 stands duly established in view of document i.e. bill/invoice Ex. DB and Ex. K2. The said fact was also admitted/not disputed during the trial by accused no. 6 (admitted during their examination u/s 313 Cr.P.C as well as the testimony of food Inspector remained unchallenged on this aspect)
127. The fact that Mother Dairy is a unit of M/s Gujarat Cooperative Milk Marketing Federation Ltd. and had manufactured the Cream in question stands established in view of documents Ex. PW2/K, K1, J and bill Ex. DC dated 22.05.2006.
128. The documents Ex. DA, DB and DC were produced by the accused persons during their examination u/s 313 Cr.P.C. as recorded before the Ld. Predecessor on 30.08.2010. The testimony of the Food Inspector regarding the above sale and supply of the sample commodity by accused no. 7 the manufacturing unit of accused no. 6 to accused no. 1 through accused no. 3 and 4 has gone unrebutted/unchallenged. Furthermore it stands duly established that at the time when the sample was lifted it was taken after opening a duly sealed tetra pack with label declaration as reproduced by the Food Inspector in Ex. PW1/B i.e. Notice in Form VI. Therefore when the sample commodity was stored and sold in the same condition as it CC No. 264/06 DA Vs. Girish Sharma etc. Page 59 of 60 was purchased, accused no. 1 to 4 are entitled to the benefit of warranty. Reliance may be placed on the law laid down on AIR 1960 SC 12, AIR 1984 SC 192, Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22, State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1, P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25,H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22
129. Accordingly in view of my above discussion accused no. 1 to 4 are acquitted of the charges in the present case being entitled to the benefit of warranty. Accused no. 6 i.e. M/s Gujarat Cooperative Milk Marketing Federation Ltd. and accused no. 7 Dr. Kallol Kumar Pramanik, Deputy Manager and Nominee of M/s Mother Dairy, the manufacturing unit of accused no.6 are convicted of the charges in the present case.
130. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 1st May 2014 ACMMII/ New Delhi CC No. 264/06 DA Vs. Girish Sharma etc. Page 60 of 60