Delhi District Court
National Dairy Development Board vs . on 24 January, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
NATIONAL DAIRY DEVELOPMENT BOARD VS.
DELHI ADMINISTRATION
CA No. 182/2017
CNR No. DLND01-011017-2017
National Dairy Development Board
Registered Office at:
Anand, Gujarat
......Appellant
Versus
Delhi Administration
(Department of Food, Govt. Of Delhi
......Respondent
Date of Institution: 21.08.2017
Date of decision : 24.01.2023
JUDGMENT (ORAL)
Cr Appeal No. 182/2017 Page 1 of 17
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction under the provisions of Prevention of Food Adulteration Act, dated 19.07.2017 and order on sentence dated 27.07.2017 passed by Ld. ACMM, Patiala House Courts, New Delhi.
Brief Facts:
2. That on 22.08.1998, Food Inspector (FI) Sh. Baljeet Singh alongwith Local Health Authority Sh. K.G. Rao and other officials visited Booth No.21, L-2 Block DDA Mini Market, Delhi-110019, where the vendor was found conducting business of various food articles. The FI disclosed his identity and expressed his intention to purchase a sample of "double filtered mustard oil" lying in sealed packets (tetrapack) of 1 litre each (910 grams) having label declaration as "Dhara". It is claimed that the sample of mustard oil was taken as per procedure prescribed under the PFA Act. During the investigation, the FI came to a conclusion that the oil had been manufactured by the appellant i.e. National Dairy Development Board.
3. As per complaint, one sample of mustard oil was sent to Public Analyst (PA) who vide his report dated 27.08.1998 found that the sample did not conform to the standards laid down under item no. A.17.06 of Appendix B of PFA Rules, 1955 because sample showed presence of argemone oil. Accordingly, Sanction/Consent under Section 2 (ia) (a), (b), (c), (f) (h) and (l) of PFA Act, as punishable under Section 16 (1) (1A) read with Section 7 of the Act was obtained and complaint was filed, arraying the appellant herein as accused no.6 as the manufacturer.
4. The non bailable warrants were issued vide order Cr Appeal No. 182/2017 Page 2 of 17 dated 31.08.1998. An application under Section 13(2) of the Act was filed by the appellant. The second counter part of the sample, as selected by the appellants in the Court, was sent to Central Food Laboratory for analysis. The Director CFL after analyzing the sample gave his report vide certificate dated 10.11.1998 opining that the sample of Mustard Oil is adulterated.
5. It may be pertinent to refer to the two reports at this stage itself for sake of clarity. The PA's report dated 27.08.1998 does not indicate the test used for detecting argemone oil but only gives the finding as positive.
6. The CFL report dated 10.11.1998 on the other hand indicates that the TLC test was carried out to detect the presence of argemone oil. No percentage of the argemone oil present in the sample is indicated by either of the reports.
7. A charge for violation of provisions of the Act punishable under Section 7/16 (1) of PFA Act, read with Section
(a), (b) & (m) of Section 2 (ia) of PFA Act was framed against the appellant, to which appellant pleaded not guilty.
8. The prosecution examined 3 witnesses namely, PW1 LHA Sh. K.G. Rao, PW2 Food Inspector Sh. D.V. Singh and PW3 Retired DO Sh. Baljeet Singh.
9. The statement of the accused/appellant was recorded under Section 313 Cr.PC in which appellant claimed innocence.
10. Briefly stated that main arguments put forth by the counsel for the appellant/accused are that:
Firstly, there was no bill or invoice produced by the vendor so as to link the appellants with the sample product. The sole basis for prosecuting the appellant no.1 Board was the label declaration allegedly appearing on the tetrapack "packed and Cr Appeal No. 182/2017 Page 3 of 17 marketed by National Dairy Development Board, Anand 388001, India". As per the Ld. Counsel, no evidence was led to show that the product was not a spurious product but actually manufactured/marketed by the appellant.
Secondly, that the method of analysis to be adopted and the labs which could have analysed the sample were not notified at the time when the sample was lifted and examined; and Thirdly, the PA's report does not mention any test and the CFL report relied on TLC as method of analysis but no material has been produced to show that the said test was the notified/approved method of test on the date of analysis.
11. Before, going into the arguments addressed, I am constrained to note that the conviction could not have been under Section 2 (ia) (a) & (m) of PFA Act, simultaneously, in the facts and circumstances of the present case. Upfront, it may be pertinent to refer to the definition of the term "adulterated" as contained in Section 2 (ia) of the Act, 1954, which is extracted hereinbelow:
[(ia) ] "adulterated"--an article of food shall be deemed to be adulterated--
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;Cr Appeal No. 182/2017 Page 4 of 17
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, 1[***], rotten, decomposed or diseased animal or vegetable substance or is insect-
infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
[(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
[(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health;]
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
Cr Appeal No. 182/2017 Page 5 of 1712. I have noticed that the Charge in the present case was framed for violation of Section 16 but the relevant clause from the definition of word adulterated invoked were clause (a),
(b) and (m) of Section 2 (ia) of the Act. However, at the time of convicting the accused, the court came to the conclusion that clause (a) and (m) were both made out and clause (b) was not made out. In the judgment, the Trial Court drew distinction between clause (a) and (m). However, at the time the final conclusion was drawn, the court has not reasoned as to how the case at hand was covered under sub-clause (a) and (m) simultaneously.
13. In my view, the same is not possible as when the Legislature has taken pains to define the word "adulterated" by providing 13 different sub clause from (a) to (m), none of the clause can be treated as implying the same meaning or corresponding with each other.
14. It is noteworthy that sub-clause (a) uses the expression "if the article sold by the vendor", no other clause deals with the aspect of sale by a vendor and are open ended and apply to manufacturing as well as sale. Further, for sub-clause (a) to be applicable, it has to be established that a product was asked for by description or buyer relied on the judgment of the vendor as also that the product supplied was to the detriment of the purchaser or it was not of the nature, substance or quality which it purports to be.
15. At this stage, it may be pertinent to refer to the allegations made in the complaint. The complaint signed by Sh. K.G. Rao, LHA records that the PA gave a report that sample does not conform to the samples laid down in Item no. 17.06 of Cr Appeal No. 182/2017 Page 6 of 17 Appendix B. It is injurious to health and also likely to cause death. However, as far as clause (m) is concerned, it need not be shown that the product was injurious to health but the same may be relevant for clause (a), since injurious to health would be to the prejudice of the purchaser. Further, for clause (m) to come into operation, all that has to be shown is that standards have been laid down under the rules and the food article does not conform to the same. Clause (a) therefore, would be attracted in cases where no standards are prescribed or the food item is not of the nature or quality it purports to be. However, no such finding was recorded by the Trial Court, inasmuch as, the percentage of argemone oil was never given by either of the report. Therefore, unless the court had come to a conclusion that sale of the product was to the prejudice of the purchaser, conviction could not have been made under clause (a) of the definition of adulterated in the facts and circumstances of the present case.
16. I shall deal with the first argument raised by the counsel.
17. It is vehemently argued by the Ld. Senior Counsel for the appellant that the entire case against the National Dairy Development Board is based on the Form VI prepared by the Food Inspector Ex.PW1/B, where the alleged label declaration of the tetrapack has been described by the Food Inspector. No bill or warranty under Section 14 Rule 12 (a) has been produced or proved by the prosecution to show that the sample actually lifted belonged to National Dairy Development Board.
18. Admittedly, the product was not purchased from the National Dairy Development Board directly by the Food Inspector but was rather purchased from a small vendor, who Cr Appeal No. 182/2017 Page 7 of 17 claimed to have purchased the same from a third party. There was no bill, invoice or warranty within the meaning of the Act and Rules or even otherwise, to link the sample commodity with the appellant.
19. It was the label declaration on the tetra pack, which formed the basis of complaint, prosecution and conviction of the appellants.
20. Ld. Counsel has submitted that it is possible that the tetrapack that was picked by the Food Inspector was a spurious product and this defence seems to have been taken by the accused during trial and more specifically during the cross examination of the officials, where it was put that whether spurious products were available in the market and if the Food Inspector could vouch for the genuineness or the product being fake. The Food Inspector had admitted that spurious products were available in the market but he expressed his inability to make a definite statement as to whether the samples seized in the present case was spurious or not.
21. I have gone through the record. I shall first refer to the cross examination of PW-3 Sh. Baljeet Singh dated 01.06.2016 on this aspect:
I did not visit the office of NDDB after lifting the sample and before filing the complaint. I had not sent any communication to NDDB. Vol. The LHA had done so. There was no bill issued by NDDB to show that the sample commodity was sold by it to the vendor. Vol. The supplier Fruit and Vegetable Project, Mangolepuri, which was a pilot project of NDDB had supplied invoices that were issued by Gujarat Cooperative Milk Marketing Federation which was the sole distributor of NDDB, and Cr Appeal No. 182/2017 Page 8 of 17 even the payment was being made by the supplier Fruit and Vegetable Project, Mangolepuri, directly to NDDB.
The complaint was not filed against Gujarat Cooperative Milk Marketing Federation as its involvement came to notice only after filing of the complaint. There was no record seized by me to show that NDDB had received the payment with respect to the product in question. There was no document seized by me to show that this product had been supplied by NDDB to Gujarat Cooperative Milk Marketing Federation.
There was direction given to me to conduct further investigation even after filing of the complaint by the LHA who was so instructed by the Director PFA. The instructions were given as the disease dropsy was rampant at that time due to which several deaths had taken place and instructions were given that the complaints be filed on the basis of available material and that investigations be continued.
I am having the office noting to this effect. The same is PW-3/D-1 (OSR). I was given instructions as per point A (illegible) ...document dated 11.09.1998.
There was no document placed by me on record to show that specific deaths took place due to dropsy at that time. I have not filed any subsequent / supplementary complaint on the basis of further investigation conducted. It is wrong to suggest that any such further investigation was illegal.
It is wrong to suggest that accused no. 4 has been falsely implicated despite absence of any evidence against it. It is Cr Appeal No. 182/2017 Page 9 of 17 wrong to suggest that there is nothing to connect the accused no. 4 to the offence in question. It is wrong to suggest that I am deposing falsely.
22. I cannot say with any surety that the mere production of the box/packaging, could have been sufficient to conclude that the same belonged to the appellants. There was an additional duty on the complainant, who had also investigated the present case, to link that box with the accused Board before making a complaint. Since, no bill was produced by the vendor, there cannot be any certainty in a conclusion that the box, in fact, belonged to the Board. To conclude the same on mere production of a box would be presuming that there are no counterfeit or spurious products available and merely because the box is available in the market with a declaration, it must be presumed to have been manufactured by the person, whose name appears on the box.
23. In criminal trial such relevant facts require proof beyond what is visible on the box and that also seems to be the scheme of the Act which insists on issuance of bills and warranties, as also, absolves from bottom to top, a person producing the bill, with a vendor being at the bottom of the chain and the manufacturer being at the top of the chain. The intent of such a provision is obvious, that every individual selling a product must insist on receiving a bill, invoice, warranty of its purchase so that the Local Health Authority can link the product with the person who had introduced the same in the market.
24. At this stage, it may be pertinent to refer to Section 14 and 19 (2) of the PFA Act:Cr Appeal No. 182/2017 Page 10 of 17
Section -14: [14. Manufacturers, distributors and dealers to give warranty.--No [manufacturer or distributor of, or dealer in] any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
[Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.] Explanation.--In this section, in sub- section (2) of section 19 and in section 20A, the expression "distributor" shall include a commission agent.] Section 19 (2): [(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves--
(a) that he purchased the article of food--
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.]
25. Similarly, Rule 12 A of PFA Rules may also be referred to at this stage:
[12A. Warranty.--Every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or a [label] a warranty in Form VIA.]
26. The want of bill or invoice itself should be taken as a suspicious fact, which can cast a doubt on the genuineness of the source of the product. A big organization such as National Dairy Cr Appeal No. 182/2017 Page 11 of 17 Development Board cannot be presumed to be selling products in the gray market without any bills and invoices.
27. When I was looking at all these aspects, of course, another aspect which weighed on my mind is that in the report of the CFL, there is no percentage of the adulterant i.e. Argemone Oil, declared and there is evidence to indicate that its presence in more than 1% causes dropsy. There is no evidence nor material to conclude that the quantity which was found in the sample was injurious to health.
28. In these circumstances, I am of the view that the prosecution in the present case must fail.
29. As far as second contention is concerned i.e. that the method of analysis to be adopted and the labs which could have analysed the sample were not notified at the time when the sample was lifted and examined;
30. The main argument that has been addressed on behalf of the Appellant is based on Section 23(ia) (ee) and (hh) of PFA Act. It has been argued that the Laboratories where the samples of food for adulteration were to be analyzed, had not been defined within the meaning of these Sections. Further, the method of analysis for evaluating the food articles adherence to prescribed standards had also not been prescribed on the date of the analysis in the present case. Therefore, the Report of the Public Analyst or of CFL cannot be looked into.
31. For this it would be relevant to refer to the provisions of Section 23(1A)(ee) and (hh) which read as follows:
"23(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-Cr Appeal No. 182/2017 Page 12 of 17
............................
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this act;
.......................
(hh) defining the methods of analysis."
32. The said provisions were incorporated in the Prevention of Food Adulteration Act, 1954 with effect from 01.04.1976 only through Act 34 of 1976.
33. Through notification dated 25.03.2008 of the Ministry of Health and Family Welfare published in the Gazette of India (Extraordinary), in exercise of the powers conferred by Section 23 of the 1954 Act, the Central Government has incorporated Rule 4(9) in the Prevention of Food Adulteration Rules, 1955, through Prevention of Food Adulteration (Second Amendment) Rules, 2008.
34. The present Rule 4(9) reads as follows:
"The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analysing the samples food articles. However, in case the method for analysing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Person's/JACOB/IUPAC/FoodChemicalsCodex/B IS/Woodmen/Winton-Winton/Joslyn shall be adopted. Further, in case of non-availabiltiy of method of analysis in these manuals, the method prescribed in other standard published literature of publication shall be adopted."
35. It has to be noted that the said notification has come into force only on 25.03.2008.
36. These aspects were considered by the Apex Court in the case of Pepsico India Holdings Pvt. Ltd. vs. Food Inspector & Anr. (2011) 1 SCC (Cri) 8. In the said case, the point raised for Cr Appeal No. 182/2017 Page 13 of 17 consideration was whether in the absence of any prescribed and validated method of analysis u/s 23 (1a) (hh) of the Act, could a prosecution be launched against the appellants based on the reports submitted by the Public Analyst using the method of the Director General of Health Services (DGHS). This point was answered in the judgment wherein it was observed that these Sections were not enabling provisions but were mandatory and could be resolved by the Central Government by framing the Rules thereunder, by which specified tests to be held in designated laboratories could be spelled out. It was further noted that in the absence of such discriminated laboratories and specified tests, it can lead to a pick and choose method to suit the prosecution, which cannot be permitted. The non-formulation of Rules under these provisions of the Act is, therefore, fatal for the prosecution. In the Pepsico case (Supra), it was further noted that once there is no information in regard to discriminated reports of the validated methods of analysis, the exercise of sending the second sample to Central Food Laboratory for analysis would be an exercise in futility.
37. This judgment of the Apex Court was followed by the Kerala High Court in the case of R. Gopalakrishnan Vs. Food Inspector in Criminal Revision Petition No.671/2002 decided on 17.07.2013. It was observed that the observations made in the Pepsico case were not limited to the food article i.e. the sample of pepsi that was the subject matter in the said appeal, but it laid down the general preposition of law to be followed in all the cases. Special Leave Petition against the said judgment was preferred in Supreme Court of India, vide Criminal Appeal No. 2476 of 2014, but the same was dismissed.
Cr Appeal No. 182/2017 Page 14 of 1738. In a recent judgment of M/s Nestle India Ltd. Vs. the Food Safety and Standards Authority of India and Ors. 2015 (2) FAC 56 the Bombay High Court has again followed the Pepsico case (supra) to observe that in the absence of designated laboratories and validated methods of analysis, the reports of the Public Analyst and the Director, CFL, cannot be relied upon.
39. Reliance is also placed upon the decision of the Hon'ble Kerala High Court in Mohanan P. & Others Vs. State of Kerala and Another, Crl. Rev. P.No. 66 of 2011, decided on 25th November, 2021 where the earlier decision in R. Gopalakrishnan (supra) has again been followed.
40. As far as third contention is concerned i.e. the PA's report does not mention any test and the CFL report relied on TLC as method of analysis but no material has been produced to show that the said test was the notified/approved method of test on the date of analysis.
41. In the present case, it is noteworthy that the PA's report did not mention any test name for detecting the presence of argemone oil. On the other hand, the CFL adopted "TLC" method to determine the presence argemone oil. On the dates of examination of the samples, there were no rules framed notifying the laboratories or validating the methods of analysis, which had to be followed. Perhaps, this is the reason why the PA's report did not mention any test name and CFL adopted "TLC" method to determined the presence of argemone oil in the sample. The abovesaid TLC method adopted by the CFL was not the valid method of analysis on the date of analysis. No notification under Rule 4(a) existed till the said date. The report of the Public Analyst as well as the report of the CFL cannot be considered to Cr Appeal No. 182/2017 Page 15 of 17 conclude that the sample collected was adulterated.
42. It needs to be emphasized that while on one hand, adulterated food has rampant ramification as it can cause injury and harm to public at large and in order to prevent such adulteration of food, stringent punishments have been prescribed under the Act, but at the same time stringent procedures have also been laid down for determining if the food was adulterated. Since the punishments are severe, it is incumbent upon the prosecution to abide with the procedures meticulously. In case the proper procedure had not been followed, it would not be safe to rely on the report to hold the accused guilty.
43. In Dhian Singh Vs. Municipal Board Saharanpur, AIR 1970 SC 318, the Hon'ble Supreme Court was of the view that the report of the PA need not contain the mode or particular of analysis nor the test applied. This decision was rendered before the amendment in the statute, whereby the Parliament decided to incorporate the two sub clauses (ee) and (hh) to Section 23 (1A). The intention of the legislature seemed to be that to obviate any discrepancies in the reports solely on count of the laboratory to which articles were sent or the different test methods adopted by different labs, the said provisions were incorporated. Therefore, what was not significant prior to 1976, became relevant and important. The decision in Dhian Singh (Supra), most respectfully, would cease to be the applicable law on the aspect in view of the specific legislative mandate introduced by way of amendment. Any subsequent decision, for a case instituted on a sample taken after the amendment of 1976, which fails to note the statutory amendment and follows the aforesaid decision in Dhian Singh (Supra), can be treated as a Cr Appeal No. 182/2017 Page 16 of 17 decision rendered sub silentio.
44. In the absence of method of examination, it would not be safe to rely on any of the report to conclude that the sample was adulterated.
45. The benefit of the same has to be extended to the appellant. The conviction and sentence is set aside. Appellants are acquitted. Bail bond cancelled. Surety bond discharged. Bail bond u/s 437-A Cr.P.C. be furnished.
46. The present criminal appeal is disposed off accordingly.
47. TCR be sent back with the copy of this order.
48. Appeal File be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 24.01.2023 ASJ-04, New Delhi
Cr Appeal No. 182/2017 Page 17 of 17