Delhi District Court
Da vs . Joginder Singh Etc Page 1 Of 52 on 19 May, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 202/06
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. Sh. Joginder Singh
S/o Sh. Ranjit Singh
M/s Chapati Restaurant,
A124/8, Katwaria Sarai,
New Delhi16. ........ VendorcumProprietor
2. Tayyab Khan s/o Sh. Fazru Khan
M/s Roopa Dairy and Paneer Bhandar,
F22/109, Katwaria Sarai,
New Delhi ........... supplier cum proprietor
Serial number of the case : 202/06
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DA Vs. Joginder Singh etc Page 1 of 52
Date of the commission of the offence : 28.11.2005
Date of filing of the complaint : 29.05.2006
Name of the Complainant : Sh. B.P. Saroha, 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. 1 Joginder acquitted.
Accused no. 2 is PO.
Arguments heard on : 19.05.2014
Judgment announced on : 19.05.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 28.11.2005 at about 05.30
p.m, Food Inspector Sh. Arun Kumar and FA Sh. S Messy under the supervision and
directions of SDM / LHA Sh. Manish Garg visited M/s Chaptai Restaurant, A124/8,
Katwaria Saria, New Delhi, where accused Joginder Singh who was the vendorcum
proprietor was found present conducting the business of various food articles having
stored the same for preparation of food articles for sale for human consumption
including Paneer 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 Paneer.
2. It is further the prosecution case that the sample was sent to Public
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Analyst for analysis and as per the report of Public Analyst the sample was found not
conforming to the standard because milk fat of dried matter was less than the
prescribed minimum limit of 50% and accordingly after obtaining the necessary
Sanction / Consent under Section 20 of the Act the present complaint was filed for
violation of provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16
(1) (a) r/w Section 7 of the Act.
3. It is further the prosecution's case that it was revealed during the
investigation that paneer in question was supplied to accused no. 1 by accused no. 2
Tayyab Khan, who was the vendor cum proprietor of M/s Roopa Dairy and Paneer
Bhandar.
4. After the complaint was filed, the accused were summoned vide orders
dated 29.08.2006. Accused no. 2 Tayyab Khan evaded the process of law and vide
orders dated 15.02.2010 passed by Ld. Predecessor of this court, accused Tayyab
Khan was declared a Proclaimed Offender.
5. 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 served against accused
Joginder vide order dated 06.04.2010 to which accused pleaded not guilty and claimed
trial.
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6. In support of its case the prosecution examined four witnesses including
Food Inspector Arun Kumar as PW1, Food Inspector B.P. Saroha as PW2, the then
SDM / LHA Sh. Manish Garg as PW3 and Field Assistant S. Messy as PW4 and PE
was closed vide order dated 03.03.2012.
7. Statement of the accused Joginder U/s 313 Cr. P.C. was recorded on
02.04.2013 wherein the accused claimed himself to be innocent. Despite opportunity
given the accused did not lead any defence evidence.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Food Inspector Arun Kumar deposed that on 28.11.2005 he was
posted at the office of SDM/LHA Sub Division Hauz Khas and on that day he alongwith
FA S. Messy and Sh. Manish Garg, SDM/LHA, under supervision and directions of
SDM / LHA visited the premises of M/s Chapati Restaurant, A124/8, Katwaria Sarai,
New Delhi16 where accused Joginder Singh was found present and conducting the
business of food articles including Paneer which was stored there for preparation of
food articles. He deposed that he disclosed his identity and intention to purchase a
sample of Paneer for analysis from the accused/vendor to which he agreed. He
deposed that before taking sample he tried to join some public witnesses by
requesting customers, passersby and neighboring shopkeepers, but none agreed and
then on his request FA Sh. S. Messy agreed and joined as a witness in sample
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proceedings. He further deposed that thereafter he purchased 750 gms of Paneer
from the accused/vendor, which was lying in an open tray bearing no label declaration.
He deposed that the sample of Paneer was cut into smallest possible pieces with the
help of clean and dry knife in a clean and dry tray and the said pieces were mixed up
properly with the help of said knife in the said tray. He deposed that then the sample
was divided into three equal parts then and there by putting the same in three clean
and dry glass bottles. He deposed that 20 drops of formalin were added in each
sample bottles. He deposed that then all these three sample bottles were properly
packed, fastened, marked and sealed according to PFA Act and Rules. He deposed
that LHA slips bearing the code number and signature of LHA were affixed on the
three sample counterparts from top to bottom and vendor signed upon all three
counterparts in such a manner that his signature partly appeared on LHA slip and
partly on wrapper of the bottle. He deposed that a payment of Rs. 50/ was offered to
the vendor towards price of sample commodity vide vendor's receipt Ex. PW1/A but
vendor refused to accept the same while making an endorsement on Ex. PW1/A at
portion A to A bearing signature of vendor's at point A as "we do not sale Paneer but
use it in food preparation for sale so price not accepted". He deposed that notice in
form VI vide Ex. PW1/B was prepared and the copy of the same was given to the
accused as per his endorsement at portion A to A and accused mentioned on Ex.
PW1/B at portion B to B that the Paneer was ready for use in food preparation. He
deposed that panchnama Ex. PW1/C was also prepared. He further deposed that all
these documents were read over and explained to the accused in Hindi and after
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understanding the same, accused signed at point A, witness at point B and he himself
signed the same at point C respectively.
9. He further deposed that one counterpart of the sample along with one
copy of memo in Form VII in intact condition in a sealed packet was deposited with PA
on 29.11.2005 vide receipt Ex. PW1/D and one more copy of memo in Form VII was
separately sent to PA in a sealed cover. He further deposed that remaining two
counterparts along with two copies of memo in Form VII in intact condition in a sealed
packet were deposited with LHA on 29.11.2005 vide LHA receipt Ex. PW1/E, bearing
his signature at point A and signature of LHA at point B, under intimation that one
counterpart of the sample has already been deposited with PA. He further deposed
that PA's report Ex. PW 1/F was received according to which the sample was not
found conforming to the standard as milk fat of dried matter was less than the
prescribed minimum limit of 50%. He deposed that after receipt of PA report he was
directed by SDM/LHA to conduct the investigation and he sent a letter dated
06.01.2006 to STO Ward No. 101 vide Ex. PW1/G for seeking information of M/s
Chapti Restaurant and received its reply at portion X according to which no such firm
was found registered in that ward. He deposed that thereafter he was transferred and
the file was handed over to other concern SDM/LHA.
10. During his cross examination he admitted that the place of occurrence is
a restaurant and paneer is not manufactured there. He stated that he is not aware if
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during investigation the accused no. 1 informed that all the supply of milk products was
received from Rupa Dairy and also produced bills of purchase. He stated that the
paneer was cut into small pieces in a tray which to the best of his memory was of
stainless steel. He admitted that some pieces of paneer got stuck to the tray after the
paneer was cut into pieces in the same. He denied the suggestion that minor
deficiency in the fat percentage is due to the fact that some fat stuck to the tray. He
stated that the procedure of taking the sample was mentioned by him on notice Ex.
PW1/B. He admitted that it is not specifically mentioned in Ex. PW1/B that the tray
was also clean and dry. He admitted that the accused had not used this paneer to
prepare any dish in his presence.
11. PW2 B.P. Saroha, Food Inspector deposed that on 24.02.2006 he was
posted as FI in sub division Hauz Khas, Delhi and on that day the file of the present
case was marked to him for further investigation. He deposed that vendor joginder
Singh personally handed over to him the photocopies of cash memos bearing nos.
1338 dated 28.11.2005, 1331 dated 27.11.2005 and 1335 dated 28.11.2005 issued by
Rupa Dairy & Paneer Bhandar in favour of Chaptai Restaurant, same are Mark Y1
(collectively). He deposed that vendor further disclosed to him that he had already
handed over the photocopies of Mark Y1 to Sh. Arun Kumar. He deposed that he
sent a letter to STO Ward no. 101 for seeking information on the constitution of Rupa
Dairy & Paneer Bhandar vide Ex. PW2/A and received its reply at portion X, according
to which no such firm was registered in that ward. He deposed that the vendor also
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handed over to him the photocopies of bank statement which are Mark Y2. He
deposed that after completion of investigation he sent the entire case file to SDM/LHA
who forwarded the same to Sh. K.S. Wahi, the then Director, PFA who gave his
consent Ex. PW2/B. He deposed that thereafter he filed the complaint before the court
on the directions of SDM/LHA vide Ex. PW2/C. He deposed that after filing the
complaint intimation letter along with copy of PA report were sent to both the accused
persons but they were received back unserved and thereafter he personally served the
intimation letter upon accused Joginder Singh vide his endorsement at portion X to X
on intimation letter Ex. PW2/D. He deposed that accused Tayyab Khan refused to
accept the intimation letter and PA report. Photocopy of postal registration receipt is
Mark Y3. He deposed that when he received the file from FI Sh. Arun Kumar there
was a reply of vendor on record which is Ex. PW2/E and photocopy of request letter of
the vendor along with MCD receipt and Eating House License from Delhi Police were
also on record which are Mark Y4, Mark Y5 and Mark Y6 respectively.
12. During his cross examination he admitted that during investigation when
he met accused Tayyab Khan at his residence he neither admitted nor denied the sale
of paneer to the vendor. He stated that he had carried photocopies of bill Mark Y1 to
accused Tayyab Khan, when he went to visit him but he refused to meet him. He
stated that while filing the complaint accused Tayyab Khan had supplied the sample
commodity to the accused no. 1 i.e. vendor.
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13. PW3 Sh. Manish Garg, the then SDM/LHA and PW4 FA Sh. S Messy
have deposed on the same lines as deposed by PW 1 in his examination in chief.
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.
16. From the deposition of the prosecution witnesses especially PW1 Food
Inspector Arun Kumar whose testimony was duly corroborated by remaining
prosecution witnesses i.e. SDM/LHA and Field Assistant coupled with documents Ex.
PW1/ A to C i.e. Vendor's receipt, Notice Form VI and panchnama which bears the
signature of the accused as well as the admissions made by the accused during his
examination under Section 313 Cr. P.C while answering question no. 1 and 2 in
specific as recorded before the Ld. Predecessor of this Court on 02.04.2013 which are
admissible in evidence against the accused in view of sub clause (4) of Section 313
Cr. P.C as well as the law laid down in Benny Thomas Vs. Food Inspector, Kochi
2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh, (SC) 2002 (4) R.C.R. (Criminal)
842, Rattan Singh V. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh.
Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570, State of Rajasthan V.
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Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam
2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of Karnataka AIR 2003 SC
258, State of H.P. V. Wazir Chand AIR 1978 SC 315 coupled with document Ex.
PW2/E and Mark Y4 which are in the handwriting of accused and bears his
signatures, no doubt remains that the sample of paneer was indeed collected by the
Food Inspector for analysis from M/s Chapati Restaurant of which the accused is the
proprietor cum vendor.
17. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
18. At the outset it was argued that no public witness was joined by the FI
during the alleged sample proceedings which is in violation of section 10 (7) and
therefore the accused is entitled to be acquitted on this ground alone. It was argued
that the FI despite the mandate of section 10 (7) did not deliberately join any public
person i.e. customers, neighbourers etc. in the sample proceedings and hence no
reliance can be placed on the alleged sample proceedings.
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19. However I do not agree with the contentions raised by the Ld. Defence
counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC
(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,
is sufficient to convict the accused and there is no requirement of independent
corroboration by public persons unless the testimony suffers from fatal
inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector
was unable to secure the presence of independent persons and was therefore driven
to take the sample in the presence of the members of his staff only. It is easy enough
to understand that shopkeepers may feel bound by fraternal ties............ Similarly in
Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no
requirement of independent corroboration by public persons unless the testimony
suffers from fatal inconsistencies. Further reliance may be placed upon the law laid
down in Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State
of Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
20. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)
FAC 230, the Hon. Apex Court held as under:
".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
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alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".
21. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
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the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
State
22. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".
23. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
24. It is writ large from the deposition of PW1, PW3 and PW4 that FI Arun
Kumar made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society.
Absence of public witness in this case is not fatal to the prosecution as the prosecution
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story inspires confidence and lifting of the sample stands admitted/unambiguously
proved. Furthermore, I find no reasons why the Food Inspector or the SDM would
falsely implicate the accused or depose falsely against him. There is nothing on
record to suggest that the FI, the SDM were inimical to the accused or had any grudge
or enmity to falsely implicate him.
Rule 14
25. It was also one of the arguments that there was violation of Rule 14 of
the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was
argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles as well as the instrument i.e. knife with which the sample was
cut and mixed as well as the tray. 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.
26. However I differ with the contentions as raised by the Ld. defence
counsel.
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27. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at
the time when the Food Inspector collects the sample, he shall ensure that not only the
container/bottle is clean but it is also dried. Furthermore the container should be such
so as to prevent any leakage, evaporation and in case of dry substance entrance of
moisture. The container should be sealed carefully to avoid the above. While
sampling the various types of articles of food, the Food Inspector should make use of
clean and dry appliances. He should use clean and dry spoon or other instruments
for sampling and avoid using his own hands to mix the same. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
28. I have perused the deposition of the Food Inspector i.e. Arun Kumar, who
was examined as PW1. The Food Inspector deposed as under:
"The sample of paneer was cut into the smallest possible pieces with the
help of clean and dry knife in a clean and dry tray and the said pieces were mixed up
properly with the help of said knife in the said tray. Then the sample was divided into
three equal parts then and there by putting the same in three clean and dry glass
bottles..........."
29. During his cross examination he stated as under:
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"...... It is wrong to suggest that minor deficiency in the fat percentage is
due to the fact that some fat stuck on the tray.
30. Similarly PW3 the then SDM/LHA Sh. Manish Garg deposed as under:
" The brick of paneer was cut into small pieces in another clean and dry
tray with the help of a clean and dry knife. Thereafter, the so purchased quantity of
sample commodity was divided then and there into three equal parts by the FI and
was put into three clean and dry sample bottles"
31. During his cross examination he stated as under:
".......The FI weighed the same in a Weighing Machine and then cut it
into small pieces in a clean and dry tray and from there he put the sample commodity
into three sample bottles. It is wrong to suggest that during the process of weighing
some fat was wasted and stuck to the Pan Scale and also to the tray.
32. PW4. Field Assistant S. Messy deposed as under:
" After taking the required quantity of the sample commodity, it was cut
into small pieces with the help of a clean and dry knife and then it was equally put into
three clean and dry sample bottles"
33. During his cross examination he stated as under:
"The sample commodity was weighed by putting it on a Weighing Pan,
which was already clean and dry hence, was not made clean and dry at the spot. The
paneer was cut into pieces by putting it in another clean and dry Tray with the help of
a clean and dry Knife and the same was put into sample bottles with the help of the
same knife. It is wrong to suggest that some fat remained stuck with the intervening
utensils and knife, while conducting the sample proceedings".
34. Hence the prosecution witnesses consistently deposed regarding the
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knife as well as the sample bottles and the tray being clean and dry. From their
deposition/statement no doubt remains that the sample proceedings were conducted
in a proper manner and that the sample bottles, the knife as well as the tray was clean
and dry. I have no reasons to disbelieve them as discussed above I find no reasons
why the FI or the SDM would falsely implicate the accused that is to say would use
contaminated or colored instruments or bottles for sampling. The defence has failed to
prove any motive which could be assigned to the above officials for falsely implicating
the accused. Moreover nothing on record has been proved to the contrary i.e. the
defence has not proved that the Food Inspector did not comply with the provisions of
the Rule 14. Just because the defence is challenging the sampling process conducted
by the Food Inspector / asserting that Rule 14 was violated is not sufficient to either
disbelieve or throw away / outrightly reject the testimony of the Food Inspector. I have
also gone through Section 114 (e) of the Indian Evidence Act.
Section 114 reads as under:
" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."
Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"
35. The above provisions and the legislation is based upon the maxim
"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly
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and regularly done. This presumption chiefly applied to official acts. It means that an
official act is proved to have been done, it would be presumed to have been regularly
done. The presumption under Section 114 (e) could only be nullified by clear and
cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)
Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.
Assessar, 5 OLJ 179)".
36. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.
37. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the bottles were dry and clean [Nagar Parishad Alwar Vs. Ganga Lahiri,
1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985 Cri LJ 46,
Food Inspector, Tellicherry Municipality Vs. Abdulla Haji, (1986) Cri LJ (Ker) 1
and Nirmal Kumar Vs. State, 1987 Cri LJ 46, 51
.].
38. In Jitendera Vs. State of M.P., 2002 (2) MPLJ 157 while dealing with
Section 114 (e) of the Evidence Act, the Apex Court observed that it is not a proper
approach to proceed with doubt or disbelief unless there is something to excite
suspicion. Same was observed in Devender Pal Singh Vs. State of NCT of Delhi
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(2002) 5 FAC 234.
39. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
was observed as under:
"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".
40. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was
observed as under:
"It would not be unreasonable to assume that they would exercise those powers and
discharge those duties in accordance with these provisions.".
41. In Pyare Mohan Vs. The State 1972 FAC 79, it was further observed
by the Hon'ble High Court as under:
"there is no provision or requirement of law that the bottles must be sterilized at the
time of taking of the sample in the presence of the witnesses.". Similarly was held in
P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
42. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has
been held as under:
"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
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is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."
43. It was also one of the defence argument that the sample did not conform
to the standards/ marginally remained deficient as the sample proceedings were bad.
It was argued that the Food Inspector admitted during his cross examination that some
piece of the paneer got stuck to the tray after the paneer was cut into pieces in the
same. It was argued that as some paneer remained stuck to the tray the sample failed
solely on this account. However I find no merits in the contentions of the Ld. Defence
counsel. Merely because some paneer remained stuck to the tray I am not inclined to
agree with the Ld. Defence counsel that the minor deficiency as detected by the PA in
the fat percentage occurred on account of the paneer which remained stuck to the
tray. Sample being of paneer it ought to have contained the same percentage of fat in
every gram, every piece/every bit of the paneer so collected by the Food Inspector. It
is to be seen that FI purchased 750 gms of paneer and it was divided into three
counterparts and was put in three different sample bottles. If the contention of Ld.
Defence counsel is agreed to then it will be open for the defence to also allege that the
sample did not conform to the standards because 2/3rd of the paneer was put in other
sample bottles and the sample put in one bottle only marginally did not conform to the
standards as bulk part of the paneer was put in those bottles. The paneer/ the sample
of paneer which was sent to the PA has to conform to the standards of paneer as per
the quantity sent to the PA for analysis. The Act has been enacted for the protection
CC No. 202/06
DA Vs. Joginder Singh etc Page 20 of 52
of the customers/consumers. A customer might purchase 100 gms or 200 gms or 500
gms of paneer. No matter what quantity he purchases the milk fat percentage in the
paneer should be as per the standards prescribed for it. It will not be open to a
vendor/shopkeepr to agitate/claim that because the consumer had only purchased 100
gms, 200 gms or 500 gms of paneer and remaining part of the paneer remained with
him, he cannot be held liable if on analysis the sample does not conform/contain the
milk fat percentage as per the standards prescribed.
Homogenization / Mixing of Sample
44. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted.
45. However, I find no merits in the contention of the Ld. defence counsel.
Firstly the Food Inspector and the other complainant witnesses categorically stated
that the sample was taken after cutting the paneer into smallest possible pieces with
the help of a knife in a tray and thereafter the pieces were properly mixed in the tray
with the help of same knife. I am of the opinion that it was the proper method of
mixing/ homogenizing the paneer.
46. Secondly, in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145,
the Full Bench of the Hon. Apex Court observed as under:
CC No. 202/06
DA Vs. Joginder Singh etc Page 21 of 52
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
47. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he tendered a payment of Rs. 50/ to the
accused/vendor towards the purchase of sample commodity however the vendor
refused to accept the same vide his endorsement on Ex. PW1/A at point A to A.
Hence sale to FI stands proved. The Hon. Apex Court in The food Inspector, Calicut
Corporation vs. C. Gopalan & another 19481997 FAC (SC) 73 observed as
"........when there is a sale to the Food Inspector under the Act of an article of food,
which is found to be adulterated, the accused will be guilty of an offence punishable
under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD Vs. Shri Ail Das
& Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court of Delhi held as
"As was laid down by a Full Bench of this Court in Madan Lal Vs. State 1972 F.A.C.
CC No. 202/06
DA Vs. Joginder Singh etc Page 22 of 52
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 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 CC No. 202/06 DA Vs. Joginder Singh etc Page 23 of 52 cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling"
48. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
49. In 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 CC No. 202/06 DA Vs. Joginder Singh etc Page 24 of 52 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."
50. Thirdly, 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 paneer the vendor does not give the said food article/ paneer after mixing the same with the help of a knife in the tray in which he has stored the same in his shop. He does not first cut the said food article/paneer into smallest possible pieces and then mix it and thereafter sells it because if he will do so nobody will purchase paneer from him. He merely cuts the paneer with the help of a knife from either side of the brick and sells it to the customer as per the desired/demanded quantity. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article 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. CC No. 202/06 DA Vs. Joginder Singh etc Page 25 of 52 PA's Report/intimation letter not received hence right u/s 13 (2) could not be exercised thus prejudice caused to the accused.
51. 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 and accordingly the accused could not exercise his right as contemplated u/s 13 (2) i.e. sending the second counterpart of the sample kept with the LHA to be analyzed by the Director, CFL. It was argued that this caused serious prejudice to the accused as his right to get the counterpart of the sample analyzed by the Director was defeated. Reliance was placed upon the law laid down in 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.
52. However the said plea of Ld. Defence counsel is meritless and contrary to the records. As per records the prosecution was launched on 29.08.2006 and the next date of hearing before the court was 16.05.2007. On 16.05.2007 the accused failed to appear in the court despite service of process and accordingly his warrants were issued by the court for 27.02.2008. However in between the dates of hearing i.e. 12.09.2007 the accused appeared in the court, his warrants were cancelled and he was enlarged on bail. On that day the accused did not move any application u/s 13(2) for reasons best known to him. Hence once he himself does not exercise the right u/s 13(2) PFA Act he cannot be allowed to complain later on regarding violation of the CC No. 202/06 DA Vs. Joginder Singh etc Page 26 of 52 right as envisaged u/s 13(2) of the PFA Act.
53. 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".
54. 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."
55. 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."CC No. 202/06 DA Vs. Joginder Singh etc Page 27 of 52
56. 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.
57. 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.
58. 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. "
59. 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."
60. 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 CC No. 202/06 DA Vs. Joginder Singh etc Page 28 of 52 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........
61. Thus not only he did not move any application u/s 13(2) but even his conduct/ approach as discussed above remained lackadaisical and negligent. The denial of statutory right to him was because of his own conduct. He did not appear in the court on 16.05.2007 i.e. the first date of hearing/appearance nor did he move any application on the said date or the subsequent date i.e. 12.09.2007.
62. As far as the service of the intimation letter and the PA report to the accused is concerned firstly as discussed above the accused did 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 him or not looses much of its significance. Secondly, PW2 FI B.P. Saroha categorically deposed/proved that the intimation letter along with PA's report was personally served by him upon the accused. Not even a single suggestion was given to him that he was deposing falsely or that the PA's report and the intimation letter were not served by him personally upon the accused. His testimony thus remained unchallenged/unrebutted. In Khem Chand Vs. State of Himachal Pradesh 1993 (2) FAC 131 the Hon'ble Supreme Court observed as under:
CC No. 202/06 DA Vs. Joginder Singh etc Page 29 of 52
"........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".
63. Thirdly, during his examination u/s 313 Cr.P.C. the accused while answering question no. 15 regarding service of the PA's report along with intimation letter answered as "It is a matter of record". He did not state at that time that report was not received by him or that the prosecution witnesses were deposing falsely regarding the same. Hence it stands unambiguously proved that the intimation letter along with PA's report were duly served upon accused no. 1 i.e. Joginder Singh. Delay
64. 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 28.11.2005 the complaint was filed only on 29.08.2006 i.e. after a gap of almost 9 months. It was argued that the shelf life of the paneer is only 1 month and even if the accused 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 CC No. 202/06 DA Vs. Joginder Singh etc Page 30 of 52 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 20 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/paneer the defence 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 9 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 .
65. Secondly, the accused 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 he 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. He did not exercise his right for reasons best known to him.
CC No. 202/06 DA Vs. Joginder Singh etc Page 31 of 52
66. Thirdly, no presumption can be drawn by the Court that merely on account of the delay of 9 months the sample would have decomposed/rendered unfit for analysis despite addition of formalin.
67. 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 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".
68. 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) CC No. 202/06 DA Vs. Joginder Singh etc Page 32 of 52 when he made the application u/s 510(2) on 29.08.1966.
69. 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 maintaining the conviction.
70. 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.
71. 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.CC No. 202/06 DA Vs. Joginder Singh etc Page 33 of 52
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:
"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?"CC No. 202/06 DA Vs. Joginder Singh etc Page 34 of 52
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 :
(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.".
72. 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 CC No. 202/06 DA Vs. Joginder Singh etc Page 35 of 52 for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
73. 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.".
74. 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.".
75. 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:
CC No. 202/06 DA Vs. Joginder Singh etc Page 36 of 52
" 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."
76. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the 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".
77. 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." .
78. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have CC No. 202/06 DA Vs. Joginder Singh etc Page 37 of 52 occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis."
79. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
80. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.CC No. 202/06 DA Vs. Joginder Singh etc Page 38 of 52
81. Hence I find no merits in the contentions of Ld. Defence counsel that the delay of around 9 months in launching prosecution prejudiced the right of the accused. Sale
82. It was argued by the Ld. Defence counsel that paneer was not meant for sale as such but it was meant only for use in/ preparation of food articles for sale and hence the paneer 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/vendor Joginder Singh on vendor's receipt Ex. PW1/A the paneer was meant for use in preparation of food articles meant for sale. The place from where the sample was lifted is a Restaurant. Even if the defence arguments are accepted that the paneer was not meant for direct sale the fact remains that the paneer 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".
83. The Hon. Apex Court in Food Inspector, Calicut Corporation Vs. CC No. 202/06 DA Vs. Joginder Singh etc Page 39 of 52 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".
84. 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. 202/06 DA Vs. Joginder Singh etc Page 40 of 52
85. 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.".
86. 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. 202/06 DA Vs. Joginder Singh etc Page 41 of 52
87. 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."
88. 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.
89. 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.
Marginal deficiency
90. It was also one of the argument of the Ld. Defence counsel that marginal deficiencies have to be ignored. It was argued that in the case at hand PA found the milk fat content in the dry matter at 43.64% against the minimum of 50% i.e. only 6.36% short. It was argued that this shortfall could also be attributed to improper CC No. 202/06 DA Vs. Joginder Singh etc Page 42 of 52 sampling or analytical errors. Reliance was placed upon the law laid down in Ram Singh Vs. State of Haryana 2009 (1) RCR Cri. 692 and Sakeel Vs. State of Haryana 2008 (1) FAJ 506.
91. However I do not agree with the contentions of Ld. Defence counsel. Firstly, it has already been discussed above that the sample proceedings were conducted in a proper manner and hence I am not inclined to agree with the defence contention that the shortfall was on account of improper sampling. Secondly, as far as the doubts raised by the defence regarding the method of analysis the defence should have summoned the PA/cross examined him to substantiate their claims that the marginal error detected by the PA was on account of analytical error or improper method of analysis. That being not done the defence cannot now agitate/challenge the PA's report on the grounds that he had erred in analyzing the sample.
92. Thirdly, 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.
CC No. 202/06 DA Vs. Joginder Singh etc Page 43 of 52
93. 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.
94. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".
95. 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%.
96. 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%.
97. 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. CC No. 202/06 DA Vs. Joginder Singh etc Page 44 of 52
98. 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 saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."
99. 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."CC No. 202/06 DA Vs. Joginder Singh etc Page 45 of 52
100. 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 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."
101. 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.".
102. 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.".
103. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was CC No. 202/06 DA Vs. Joginder Singh etc Page 46 of 52 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.
104. 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, 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.".
105. 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."
106. 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.
107. 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. CC No. 202/06 DA Vs. Joginder Singh etc Page 47 of 52
108. 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.
Warranty
109. However, I do find merits in the defence contention/argument that accused no. 1 is entitled to the benefit of warranty as contemplated u/s 19 of the Act as admittedly he was not the manufacturer of the sample commodity and in fact he had procured the same for use in his restaurant from M/s Roopa Dairy and Paneer Bhandar of which accused no. 2 Tayyab Khan is the vendor cum proprietor.
110. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) CC No. 202/06 DA Vs. Joginder Singh etc Page 48 of 52 of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.
111. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in 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 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.
112. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:
"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."CC No. 202/06 DA Vs. Joginder Singh etc Page 49 of 52
113. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in 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
114. In the case at hand, it stands proved on record that the accused no. 1 had purchased the paneer in question from M/s Roopa Dairy and Paneer Bhandar of which accused no. 2 is the proprietor cum vendor. The sample was lifted on 28.11.2005 at about 05.30 p.m. PW2 B.P. Saroha, Food Inspector during his deposition placed on record cash memos bearing no. 1331, 1335 and 1338 dated 27.11.2005 and 28.11.2005 as Mark Y1 to Y3. Apart from the cash memos the vendor also handed over to the Food Inspector documents Mark Y2 which are the statement of account of the proprietorship of accused no. 1 to corroborate his claims that he had made payments to M/s Roopa Dairy and Paneer Bhandar towards purchase of the paneer. The fact that paneer was supplied by M/s Rupa Dairy was made known to Food Inspector Arun Kumar ( PW1) at the time of sampling itself as was admitted by the Field Assistant during his cross examination. Even B.P. Saroha CC No. 202/06 DA Vs. Joginder Singh etc Page 50 of 52 (PW2) stated that the vendor had informed him that he had given the photocopies of the bill to FI Arun Kumar at the time of sampling though it is a different matter that FI Arun Kumar gave evasive answers when confronted he was supplied the copies of the bill. B.P. Saroha (PW2) further stated that he had visited/met accused Tayyab Khan at his residence and he neither admitted nor denied the sale of paneer to the vendor. Furthermore when he went to accused Tayyab Khan along with photocopies of bill he refused to meet him. Tayyab Khan (accused no. 2) even refused to accept the intimation letter as stated by B.P. Saroha. Furthermore, the bill in question having invoice no. 1335 is of the same date on which the sample was lifted from accused no.
1. It is not the prosecution case that the accused no. 1 is the manufacturer of sample/paneer. In fact the investigation was conducted by the Food Inspector once he was prima facie satisfied that the paneer was supplied to accused no. 1 by accused no. 2. The documents on record coupled with testimony of PW2 B.P. Saroha thus leaves no doubt whatsoever that the paneer in question was not manufactured by accused no. 1 but was supplied to him by accused no. 2 and he had kept/stored the same in the same condition because he had to use it for the preparation of food articles and had no other use of the same.
115. In view of my above discussion the accused no. 1 is given the benefit of warranty and is accordingly acquitted of the charges in the present case. CC No. 202/06 DA Vs. Joginder Singh etc Page 51 of 52
116. File be consigned to record room with liberty to prosecution to revive the same as and when accused no. 2 Tayyab Khan is arrested/apprehended.
Announced in the open Court (Gaurav Rao) on 19th May 2014 ACMMII/ New Delhi CC No. 202/06 DA Vs. Joginder Singh etc Page 52 of 52