Da vs . Manoj Kumar Page 1 Of 50 on 17 February, 2014

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Delhi District Court

Da vs . Manoj Kumar Page 1 Of 50 on 17 February, 2014

IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI

C.C. No. 1988/09

COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954

Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant

Versus

Sh. Manoj Kumar
S/o Sh Rampal
M/s Rattan Dairy,
S. No. CA/108/1, Tagore Garden,
New Delhi
R/o ED 141/2, Tagore Garden,
New Delhi
........ VendorcumProprietor

Serial number of the case : 1988/09
Date of the commission of the offence : 27.04.2009
Date of filing of the complaint : 17.11.2009
Name of the Complainant : Sh. S.K. Sharma, Food Inspector

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DA Vs. Manoj Kumar Page 1 of 50
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA
Act 1954, punishable U/s 16(1a)
r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 17/02/14
Judgment announced on : 17/02/14

Brief facts of the case

1. In brief the case of the prosecution is that on 27.04.2009 at about 07.00

p.m., Food Inspector S.K. Sharma and Field Assistant Ranjeet Singh under the

supervision and directions of SDM / LHA Sh. Rajesh Goyal visited at M/s Ratan Dairy

Shop no. CA/108/1, Tagore Garden, New Delhi, where accused Manoj Kumar who

was the vendorcumproprietor was found present conducting the business of sale of

various dairy articles including toned milk (ready for sale) for sale for human

consumption and in compliance of the provisions of the Prevention of Food

Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955

(hereinafter referred to as the Act & Rules) the Food Inspector collected / purchased

the sample of toned milk.

2. It is further the prosecution's case that the sample was sent to Public

Analyst for analysis and as per the report of Public Analyst the sample was found not

conforming to the standard of toned milk as per PFA rules 1955 as per tests performed

and accordingly after obtaining the necessary Sanction / Consent under Section 20 of

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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 (1a) r/w Section 7 of the Act.

3. After the complaint was filed, the accused was summoned vide orders

dated 17.11.2009. The accused after filing his appearance moved an application

under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample

from Central Food Laboratory and consequent thereto second counterpart of the

sample as per the choice of the accused was sent to Director, CFL (Pune) for its

analysis vide orders dated 04.12.2009. The Director, CFL after analysing the sample

opined vide its Certificate dated 23.12.2009 that "sample bearing No. 93/LHA/24394

does not conform to the standard of Toned Milk.

4. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act

1954 punishable U/s 16 (1a) r/w section 7 of the Act was framed against the accused

vide order dated 23.02.2010 to which accused pleaded not guilty and claimed trial.

5. In support of its case the complainant/prosecution examined three

witnesses i.e. Sh. S.K. Sharma, the Food Inspector as PW1, Sh. Rajesh Goyal, the

then SDM/LHA as PW2, and Field Assistant Ranjeet Singh as PW3 and PE was

closed vide order dated 12.02.2013.

6. Statement of the accused U/s 313 Cr. P.C. was recorded on 08.05.2013

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wherein the accused claimed himself to be innocent. Despite opportunity accused

failed to lead any DE in his defence.

A brief scrutiny of the evidence recorded in the matter is as under:

7. PW1 Sh. S.K. Sharma, Food Inspector, who is the complainant in the

present case deposed that on 27.04.2009 he alongwith FA Ranjeet Singh and other

officials of PFA Department, under supervision and directions of SDM / LHA Sh.

Rajesh Goyal visited the premises of M/s Ratan Dairy, Shop no. CA/108/1, Tagore

Gatden, New Delhi where accused Manoj Kumar was found conducting the business

of said dairy there for sale for human consumption including Toned Milk. He deposed

that he disclosed his identity and intention to the accused for purchasing the sample of

Toned Milk lying in the open container bearing label declaration as toned milk for

analysis, to which accused agreed. He further deposed that before taking the sample

he tried to procure some public witnesses by requesting some neighbourers,

customers and passerby to join the sample proceedings but as none agreed, then on

his request FA Ranjeet Singh joined as witness in sample proceedings. He further

deposed that at about 07.00 p.m. he purchased 1500 ml of toned milk taken from an

open container bearing label declaration as toned milk, after proper mixing the milk

with the help of clean and dry plunger by rotating it in all possible directions several

times on payment of Rs. 30/ vide vendor's receipt Ex. PW 1/A. He further deposed

that he divided the sample then into three equal parts by putting them in three clean

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and dry glass bottles. He deposed that 40 drops of formalin were added to each of the

sample bottle with help of clean and dry dropper and was properly shaken for its

uniform distribution. He further deposed that each bottle containing the sample was

separately packed, fastened, marked and sealed according to PFA Act & Rules. He

further deposed that LHA slips bearing his code number and signatures were affixed

on each counterpart and the vendor's signatures were obtained on the LHA slips

bearing his signature and code number and on the wrappers of the bottles. He further

deposed that Notice in Form VI was prepared at the spot vide Ex. PW 1/B and a copy

of the same was given to the vendor having his endorsement at portion A to A. He

further deposed that Panchnama Ex. PW 1/C was prepared and all the documents Ex.

PW 1/A to Ex. PW 1/C were read over and explained to the vendor and after

understanding the same, signed at point A, witness at point B and he himself signed

the same at point C respectively.

8. He further deposed that one counterpart of the sample was deposited

with Public Analyst on 28.04.2009 vide Ex. PW1/D along with one copy of Memo VII

in a sealed packed packet and another copy of Memo Form VII in a separately sealed

envelope. He further deposed that two counterparts of the sample alongwith two

copies of Memo in Form VII in a sealed packet in intact condition were deposited with

LHA on 28.04.2009 vide receipt Ex. PW 1/E, bearing his signature at point A, under

intimation that one counterpart of the sample has already been deposited with Public

Analyst. He further deposed that all the copies of Memo in Form VII bore the same

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Seal impression with which the sample in question was sealed. He further deposed

that Public Analyst's report Ex. PW 1/F was received according to which, the sample

does not conform to the standards, as mentioned therein at portion X.

9. He further deposed that during investigation, he sent a letter Ex. PW1/G

to vendor and received reply Ex. PW1/G1 that he is the proprietor of the said dairy and

incharge and responsible for day to day affairs of the said dairy and gave photocopy of

his DL Mark X. He deposed that he also sent a letter to STO Ward No. 57 and

received its reply at portion A thereof, according to which the firm in question was

found not registered with Sales Tax. He further deposed that on completion of

investigation, the complete case file alongwith all statutory documents were sent to

Director (PFA) Sh. Mohan Lal through LHA, who after going through the case file gave

his Consent Ex. PW 1/I and accordingly he filed the complaint Ex. PW 1/J in the court.

He further deposed that intimation letter Ex. PW 1/K alongwith PA's report was sent to

accused by registered post through SDM / LHA, which was not received back

undelivered. He has also placed on record copy of postal registration receipt Ex. PW

1/L, bearing relevant entry at portion A.

10. During his cross examination he stated that the sample was taken from

an open drum and the capacity of the drum was about 4050 liters and it contained 35

liters of toned milk at the time of sampling. He stated that plunger was with him. He

stated that he had not mentioned the number of times the plunger was rotated on the

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documents prepared at the spot. He voluntarily stated that he mentioned several

times. He admitted that as per standard of toned milk the required fat percentage is

3%. He stated that when the PA report was received declaring fat content 6.1% it did

not strike to him that the report was wrong. He stated that he has studied chemistry.

He stated that he cannot comment that in a representative sample of milk it is not

chemically possible that one Analyst found milk fat 6.1% and one another Analyst

found 4.7%. He stated that same is his reply in respect of milk solids not fat. He

admitted that the complaint was filed after a period of seven months from the date of

lifting the sample. He stated that he cannot say that the shelf life of milk after adding

preservative is four months. He denied the suggestion that a representative sample

was not taken and due to delay correct analysis could not be obtained by the CFL

11. PW 2 Sh. Rajesh Goyal, SDM/LHA and PW3 Ranjeet Singh, Field

Assistant have deposed on the same lines as deposed by PW1 in his examination in

chief.

12. This so far is the prosecution evidence in the matter.

13. I have heard the arguments advanced at bar by the Ld. defence counsel

as also the Ld. SPP for complainant. I have also carefully gone through the evidence

recorded in the matter and perused the documents placed on record by the

prosecution in this case.

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14. After hearing the rival contentions raised at bar as well as on careful

scrutiny of the material on record, I am of the considered opinion that the prosecution

has successfully brought home the guilt against the accused.

15. It stands unambiguously proved from the deposition of the prosecution

witnesses especially Food Inspector S.K. Sharma coupled with the report of the

Director, CFL dated 23.12.2009 that accused Manoj Kumar was indeed found selling

toned milk which was adulterated on account of the milk solids not fat being less than

the minimum prescribed standard of 8.5% i.e. 7.5%.

16. The star / the material witness of the prosecution i.e. Food Inspector S.K.

Sharma categorically proved that on 27.04.2009 he along with Field Assistant Ranjeet

Singh and SDM / LHA Rajesh Goyal visited at M/s Ratan Dairy, Shop no. CA/108/1,

Tagore Garden, New Delhi, where accused Manoj Kumar who was the vendorcum

proprietor was found present conducting the business of dairy including toned milk, for

sale for human consumption and in compliance of the provisions of the Prevention of

Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955

(hereinafter referred to as the Act & Rules) he collected / purchased the sample of

toned milk. He proved the sample proceedings vide Ex. PW 1/A to Ex. PW 1/C. He

further proved the deposit of the sample with the Public Analyst vide Ex. PW1/D and

deposit of the counterparts of the sample with the Local Health Authority vide Ex. PW

1/E. He further proved that the toned milk on analysis was found adulterated as same

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was found not conforming to standards. The Sanction / Consent for prosecution was

proved as Ex. PW 1/I and the complaint was proved as Ex. PW 1/J.

17. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. Sh. Rajesh Goyal, the then SDM/LHA (PW2) and

Sh. Ranjeet Singh Field Assistant (PW3).

18. Furthermore the fact that the sample was collected by the Food Inspector

on 27.04.2009 and that the accused was the vendorcum proprietor of M/s Ratan

Dairy was not disputed during the trial and was also admitted by the accused during

his examination under Section 313 Cr. P.C as recorded before the Ld. Predecessor of

this Court on 08.05.2013. From the answers given by the accused to question no. 1 &

2 which are admissible in evidence against the accused in view of sub clause (4) of

Section 313 Cr. P.C as well as the law laid down in Benny Thomas Vs. Food

Inspector, Kochi 2008 (1) 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. 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 no

dispute remains that the sample of toned milk was indeed collected by the Food

Inspector for analysis from M/s Ratan Dairy of which accused Manoj Kumar was the

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vendorcum proprietor.

19. The two counterparts of the sample so seized by the Food Inspector and

deposited with the Local Health Authority were produced in the court upon the

application of the accused and after the accused and the court was satisfied that the

seals were intact and the sample counterparts were not temperated with, one

counterpart as per the choice of the accused was sent to Director, CFL vide orders

dated 04.12.2009 and the Director vide its report / certificate dated 23.12.2009 opined

as " sample does not conform to the standards of Toned Milk as per the PFA Rules

1955".

20. 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

21. 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.

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customers, neighbourers etc. in the sample proceedings. However I do not agree with

the contentions raised by the Ld. Defence counsel. The Hon'ble Apex Court in

decided on 26.02.1974 has
Shriram Labhaya Vs. MCD , categorically held that

testimony of the Food Inspector alone, if believed, is sufficient to convict the accused

and there is no requirement of independent corroboration by public persons unless the

testimony suffers from fatal inconsistencies. Similarly in Babu Lal Vs. State, AIR

1971, SC 1277 It has been held that there is no rule of law that a conviction can not be

based on the sole testimony of Food Inspector. Reliance may also be placed upon

Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of

Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare

Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,

Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.

Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State

Vs. Narayanasamy 1997 (2) FAC 203.

State
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. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

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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.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".

24. It is writ large from the deposition of PW1, PW2 and PW3 that FI S.K.

Sharma 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. I

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find no reasons why the Food Inspector or the SDM would falsely implicate the

accused or depose falsely against him. Moreover, once the accused admits

unambiguously that the Food Inspector had taken the sample the plea that no public

person was joined looses much of its significance as the sample proceedings/lifting of

sample is not disputed/is admitted.

Rule 14 & Homogenization / Mixing of Sample.

25. It was one of the arguments that there was violation of Rule 14 of the

Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued

that at the time when the sample was collected, the Food Inspector failed to properly

mix the toned milk and accordingly representative sample was not taken by the Food

Inspector. 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 Sardarmal Jain Vs. Nagar Nigam &

Anr 1996 (2) 203, Vasantry Jai Kham Khati Vs. State of Gujarat 2004 FAJ 148,

State of Gujarat Vs. Kamlesh Bhai Ram Bhai 2005 (1) FAC 107 and State Vs.

Suresh Kumar 2010 (2) FAC 204

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.

28. I have perused the deposition of the Food Inspector PW1. The Food

Inspector deposed as under:

" I purchased 1500 Ml of toned milk.........after proper mixing the milk with the help of
clean and dry plunger by rotating it in all possible directions several times............I
divided the sample then and there into three equal parts by putting them in three clean
and dry glass bottles".

29. PW2 the then SDM Rajesh Goyal deposed as under:

"Before taking the sample, Toned Milk was properly homogenized with the help of a
clean and dry PLUNGER, by rotating it several times in all possible directions..... The
so purchased quantity of sample commodity was divided into three equal parts by FI
then and there vide putting it in three clean and dry sample bottles."

30. During his cross examination he stated as under:

.........It is incorrect to suggest that the sample commodity was not properly mixed'.

31. PW3 Field Assistant Ranjeet Singh during his cross examination stated as

under:

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"Before taking the sample, Toned Milk was properly mixed with the help of a
clan and dry PLUNGER by rotating it in the container itself several times in all possible
directions. Thereafter the required quantity was taken out and was equally put into
three clean and dry sample glass bottles".

32. During his cross examination he stated as under:

"I do not remember as to how many times the PLUNGER was rotated in the sample
commodity but it was rotated several times.

33. Hence all material prosecution witnesses consistently deposed regarding

the proper mixing of the toned milk with the help of a plunger several times before the

sample was taken by the Food Inspector. Furthermore, the plunger as well as the

sample bottles as categorically deposed by all the prosecution witnesses were clean

and dry. I have no reasons to disbelieve them. Nothing on record has been proved to

the contrary i.e. the defence has not proved that the Food Inspector did not comply

with the provisions of the Rule 14. Just because the defence is challenging the

sampling process conducted by the Food Inspector / asserting that Rule 14 was

violated is not sufficient to either disbelieve or throw away / outrightly reject the

testimony of the Food Inspector. I find no reasons why the Food Inspector would

depose falsely or falsely implicate the accused, there being no previous enmity against

him. I have also gone through Section 114 (e) of the Indian Evidence Act.

34. 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,

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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

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 partly alleging

it may prove it. It was observed that, "The Local (Health) Authority is a public official.

The act of the Local (Health) Authority in despatching a copy of its report of analysis of

a food article with necessary intimation or information is an official act. When the act

has been shown to have been performed, it is open to the court in its discretion to

draw the presumption that the act has been performed regularly. If there is acceptable

evidence to show that the Local (Health Authority) has forwarded the document, by

virtue of illustration (e) to section 114, the court may presume that it was forwarded

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regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,

1954 and Rule 9A of the Rules.".

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 sample proceedings were duly conducted [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

(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.".

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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.

Hence I am of the firm opinion that sample of the milk was taken after it was

properly mixed and homogenized by the Food Inspector with the help of a plunger.

Variations.

42. It was argued that toned milk was not properly mixed / homogenized at

the time when it was lifted and accordingly the sample which were sent to PA and

Director, CFL were not "representative" and this is the reason why there is variations in

the report of Public Analyst and Director, CFL. It was further argued that there was

variations in the report of the Public Analyst for example the Public Analyst found the

'milk fat' as 6.1 %, on the other hand, the Director found the same to be 4.7 %.

Similarly though the Public Analyst found the milk solids not fat at 8.26%, the Director

found the same to be 7.5%. It was argued that this variation being more than 0.3%

which is the permissible limit proves that the sample were not representative.

Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219, State Vs.

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Suresh Kumar, 2010 (2) FAC 2004, State Vs. Ram Singh 2009 (1) JCC 148, and

K.D. Yadav Vs. State 2012(2) FAC 524.

43. However, I find no merits in the contention of the Ld. defence counsel

that merely because there is variation in the report of the PA and the Director the

sample cannot be held to be representative. As already discussed above, the Food

Inspector and the other complainant witnesses categorically stated that the sample

was taken after mixing the toned milk several times with the plunger. I have no

reasons to disbelieve the Food Inspector or the other complainant witnesses in this

regard. Furthermore in State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the

Hon. Apex Court observed as under:

"If the food sold to the food inspector is proved to be adulterated, it
is

immaterial whether the sample purchased by him is a representative sample or not of

the entire stock in possession of the person".

44. Similarly 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

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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
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.

45. 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

CC No. 1988/09
DA Vs. Manoj Kumar Page 20 of 50
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."

46. Moreover, the plea of "variation" cannot be sustained in view of law the

laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan

K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of

Delhi in MCD Vs.
M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full

Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs.

State of Gujarat, 1984 (2) FAC 26 .

47.
The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s

Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of
the Director shall supersede the report of the Public Analyst. That being so no
support can be taken from the report of the Public Analyst to content that there was a
variation in the report of the Public Analyst and that of Director, CFL in his certificate
.

By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample." CC No. 1988/09 DA Vs. Manoj Kumar Page 21 of 50

48. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:

"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"

It was further observed in para 3 as under:

"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".

49. In Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26, the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as under:

CC No. 1988/09 DA Vs. Manoj Kumar Page 22 of 50

"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contraindicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other visavis two parts of the sample sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory.".

50. In the above case while discussing the word 'supersede' which means to 'annul, to render void, obliterate, to repeal / to obliterate', the Hon'ble Full Bench held that once the report of Director is received the earlier report given by the Public Analyst is rendered ' obsolete ' and stands ' wiped out '.

CC No. 1988/09 DA Vs. Manoj Kumar Page 23 of 50

51. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:

"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".

52. Similar view was taken in case law laid down in V.B. Shukla Vs. Prakash, 1973 14 Guj LR 381 wherein it was held as under:

"According to S. 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in S. 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate.".

53. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 it CC No. 1988/09 DA Vs. Manoj Kumar Page 24 of 50 was also observed as under:

"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".

54. In Salim and Co. Vs. Municipal Corporation of Delhi 1978 Cri LJ 240, it was observed by the Hon'ble High Court of Delhi as under:

"It is correct that there is wide variation in the two reports, but according to subsec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".

In para 15 it has been further observed as under:

"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".

55. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of Delhi held as under:

"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of that report only."

CC No. 1988/09 DA Vs. Manoj Kumar Page 25 of 50

56. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi it was held in para 11 as under:

"It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be disregarded."

57. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:

"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."

58. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:

"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the CC No. 1988/09 DA Vs. Manoj Kumar Page 26 of 50 certificate of the Director.".

59. In Mangal Das Raghav Ji & Anr. Vs. State of Maharashtra 1976 (1) FAC 43, the six judge bench of the Hon'ble Apex Court held as under:

"The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under Sub Sec. (5) but is given finality to the facts contained therein by the proviso to that Sub Section".

60. In Hargo Lal Vs. State 1972 FAC 699, the Hon'ble High Court of Delhi, it was held that merely because there is a discrepancy between the report of the Public Analyst and the Director, CFL, it is no ground for rejecting the report of the Director, CFL as it completely wipes out the report of the Public Analyst.

61. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:

"This report was different in its import from the report of the Public Analyst but the variation in the two reports is of no consequence because the certificate issued by the Director of the Central Food Laboratory under subsection (2) of section 13 supersedes the report of the Public Analyst given under subsection (1) of the said Section and as per proviso appended to subsection (5) is final and conclusive evidence of the facts stated therein.".

62. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:

"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge CC No. 1988/09 DA Vs. Manoj Kumar Page 27 of 50 proceeded entirely on wrong premises in comparing the reports.".

63. In Municipal Committee Amritsar Vs. Shadi Lal 1975 (2) FAC 411, it was observed at para 5 as under:

"Subsection (5) of section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of any facts stated therein.".

64. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:

"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final CC No. 1988/09 DA Vs. Manoj Kumar Page 28 of 50 and conclusive evidence of the facts stated therein."

14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".

65. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41 regarding the variability in the reports it was observed as under:

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories.

It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of CC No. 1988/09 DA Vs. Manoj Kumar Page 29 of 50 the Act".

66. In Subhash Chander Vs. State, Delhi Administration 1984 (1) FAC 113 it was observed as under:

"For all purposes the report of the public analyst is replaced by teh certificate of the Director. Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186, Chetmal v. State of M.P., 1981 (11) FAC 280 and Jagdish Prasad v. State of Delhi, 1982 (I) FAC 345. Supersede is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. the Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.

67. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded.

68. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:

"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.

CC No. 1988/09 DA Vs. Manoj Kumar Page 30 of 50

69. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.

70. Hence, once the report of the Public Analyst becomes annulled / obliterated how can any reference be made to the same. No defence lying on the report is tenable in the eyes of the law. That is the mandate of the statute as well as the law laid down by the Hon'ble Apex Court and the Hon. High Court of Delhi as discussed above. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The CC No. 1988/09 DA Vs. Manoj Kumar Page 31 of 50 sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

71. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been CC No. 1988/09 DA Vs. Manoj Kumar Page 32 of 50 enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

72. Nonetheless, if the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:

"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of crossexamination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

Delay

73. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in the testing / analysis of the sample by the Director, CFL CC No. 1988/09 DA Vs. Manoj Kumar Page 33 of 50 because though the sample was collected/lifted on 27.04.2009 it was analyzed by the Director, CFL after a gap of more than 8 months. It was argued that this delay occurred because of the lapses on the part of the prosecution as the complaint was filed in the court only on 17.11.2009 i.e. after 7 months. It was argued that if the report of the Director, CFL is only to be seen / relied upon as per the mandate of Section 13(3) of the PFA Act then no reliance can be placed upon the same because after a lapse of 8 months the sample of toned milk so collected by the Food Inspector would/must have been rendered unfit for analysis thereby causing grave prejudice to the accused. Reliance was placed upon the law laid down in State vs. Raj Kumar 2012 (2) FAC 351 and Gian Chand Vs. State 1978 (1) FAC 15.

74. However, I differ with the Ld. defence counsel. No doubt the sample was collected on 27.04.2009 and the same was analyzed / tested by Director, CFL after 8 months, however, the fact remains that when the sample was sent for analysis the Director, CFL categorically opined that "the sample was in condition fit for analysis". Moreover, the Food Inspector and the other prosecution witnesses have categorically stated that at the time of sampling, the necessary preservative i.e. 40 drops of Formalin were added in each of the sample bottles. Therefore, when Formalin was added and there is a categorical finding / opinion of the Director, CFL that the sample was fit for analysis, I have no reasons to presume or agree with the contention of the Ld. defence counsel that the sample when analyzed would have been rendered unfit for analysis on account of the delay.

CC No. 1988/09 DA Vs. Manoj Kumar Page 34 of 50

75. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:

"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred u/s 13(2) and that depends on the facts of each case and violation of the time limit given in subrule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.". Further reliance may be placed upon Sarwan Singh Vs. State of Punjab 2006 (1) FAC 179 .

76. 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.

In para 63 of the judgment it was observed as under:

"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for CC No. 1988/09 DA Vs. Manoj Kumar Page 35 of 50 which a stored thing remains usable...........

.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".

It was further observed in para 66 as under:

"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."

It was further observed in para 67 as under:

"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."

It was further observed in para 68 as under:

"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".

It was further observed in para 71 as under:

"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for CC No. 1988/09 DA Vs. Manoj Kumar Page 36 of 50 analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."

It was further observed in para 72 as under:

"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".

It was further observed in para 73 as under:

"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."

It was further observed in para 74 as under:

"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"

CC No. 1988/09 DA Vs. Manoj Kumar Page 37 of 50

It was further observed in para 75 as under:

"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."

It was further observed in para 76 as under:

"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."

The court concluded / summed up its observation / findings in para 103 as under:

"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.

6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.

10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.

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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."

77. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:

"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.

CC No. 1988/09 DA Vs. Manoj Kumar Page 39 of 50

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.".

78. 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."

79. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:

"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".

80. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:

" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any CC No. 1988/09 DA Vs. Manoj Kumar Page 40 of 50 other reason."

81. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:

"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".

82. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:

"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."

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83. 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, observed as under:

"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis."

84. 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".

85. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed CC No. 1988/09 DA Vs. Manoj Kumar Page 42 of 50 as under:

"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act."

86. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:

"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only CC No. 1988/09 DA Vs. Manoj Kumar Page 43 of 50 then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.

87. 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".

88. 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 CC No. 1988/09 DA Vs. Manoj Kumar Page 44 of 50 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.

89. In the case at hand it is apparent from the report of Director, CFL that the sample when sent for analysis / at the time of its examination was fit for analysis / examination. It being not unfit for examination / analysis no prejudice can be presumed to have been caused to the accused merely on account of delay. Thus, it is only in cases where prejudice is caused to the accused on account of delay in institution of the prosecution that is to say the sample is decomposed / deteriorated or is rendered unfit for analysis by the Director, CFL then the benefit has to be given to the accused (Reliance may be placed upon The Apex Court's Judgment in Girish Bhai Dahya Bhai Vs. C.C. Jani 2009 (2) FAC 195). But in other cases the accused is not entitled to any such benefit. To avail the benefit the accused is bound to prove on record that the sample was not a representative. If the accused person wants to show certain infirmities in the process of chemical examination performed by the Director, then he has to make an application to the trial Court to have the Director summoned as a witness. This procedure was not adopted by the accused / vendor and he has not brought any material on the record to show why the report submitted by the Director should not be relied upon.

CC No. 1988/09 DA Vs. Manoj Kumar Page 45 of 50

90. The very fact that the Director, CFL opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the Director, CFL. The Director's report that the sample was fit for analysis is a fact and there can not be any contrary presumption against the same. How can there be a presumption ( that a sample must have got decomposed, deteriorated or unfit for analysis on account of delay ) contrary to a fact in existence (Director's Certificate that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis has to prove that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the Director or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not on the contrary to the law as well as the principle of jurisprudence.

Marginal Deficiency

91. Lastly it was argued by Ld. Defence counsel that even if the report of the Director is admitted to be correct still it is apparent from the report of Director that the sample only marginally did not conform to the standards of Milk solids not fat. It was CC No. 1988/09 DA Vs. Manoj Kumar Page 46 of 50 argued that the prescribed standard was not less than 8.5% and the Director found the same to be 7.50% i.e. only 1% less than the prescribed limit. It was argued that this marginal variation/ deficiency from the standards could have occurred on account of wrong/inaccurate analysis. The Ld. Defence counsel argued that such marginal non conformity to the standards should be easily ignored. However I do not agree with the Ld. Defence counsel.

92. 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.

93. 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 CC No. 1988/09 DA Vs. Manoj Kumar Page 47 of 50 Lex, law does not concern itself about trifles, does not apply to them."

94. 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."

95. 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.".

96. 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.".

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97. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.

98. 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.".

99. 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."

100. 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.

101. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard/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. 1988/09 DA Vs. Manoj Kumar Page 49 of 50

102. 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.

103. In view of my above discussion, as the "milk solids not fat" were found by the Director in the sample of Toned Milk so analysed at 7.5% as against the prescribed standards of minimum 8.5%, the accused stands convicted under Section 2 (ia) (a) & (m) of PFA Act 1954.

104. Let the accused be heard separately on point of sentence.

          Announced in the open Court                                           (Gaurav Rao)
           on 17th February, 2014                                              ACMMII/ New Delhi




      CC No. 1988/09
      DA  Vs. Manoj Kumar                                                                      Page 50 of 50

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