Delhi District Court
Da vs . Mansa Ram Etc. Page 1 Of 58 on 17 September, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 143/03
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........... Complainant
Versus
1. Mansa Ram S/o Sh. Ishwar Das
M/s Kadimi Sweets Pvt. Ltd
C5 A, Market, Janakpuri,
New Delhi58
R/o E13, East Uttam Nagar
New Delhi59
........VendorCumNominee
2. M/s Kadimi Sweets Pvt. Ltd
C5 A, Market, Janakpuri, New Delhi58
...................Firm
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DA Vs. Mansa Ram etc. Page 1 of 58
Serial number of the case : 143/0314
Date of the commission of the offence : 20.11.2002
Date of filing of the complaint : 28.03.2003
Name of the Complainant : Sh. V. P. S. Chaudhary, Food
Inspector
Offence complained of or proved : Section 2 (ia) (a) (b) (j) & (m) of
PFA Act 1954 and Rule 30 r/w Rule
28 & 29 of PFA Rules, 1955
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Both accused Convicted
Arguments heard on : 10.09.2015
Judgment announced on : 17.09.2015
Brief facts of the case
1. In brief the case of the prosecution is that on 20.11.2002 at about 02:30
pm, Food Inspector V. P. S. Chaudhary and FI R. K. Bhaskar under the supervision
and directions of SDM LHA Sh. M.A. Ashraf visited M/s Kadimi Sweets Pvt. Ltd, C5
A, Market Janakpuri, New Delhi58 where accused Mansa Ram who was the Vendor
cumNominee was found present conducting the business of sale of various sweet
articles including Laddoo Motichoor, 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 Ladoo Motichoor.
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2. During the course of investigation it was revealed that Mansa Ram was
the vendorcum nominee of accused no. 2 M/s Kadimi Sweets Pvt Ltd and as such he
is in charge of and responsible for day to day conduct of the business of the said shop.
Further the business was being run at the premises in question by accused no. 2 M/s
Kadimi Sweets Pvt. Ltd. i.e. a Private Limited company.
3. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was found
adulterated because Total Dye content of the synthetic colour used (428.59 ppm)
exceeded the prescribed maximum limit of 100 ppm 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) (j) & (m) of PFA Act 1954 and
Rule 30 r/w Rule 28 & 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w Section 7 of
the Act.
4. After the complaint was filed, the accused were summoned vide orders
dated 28.03.2003. The accused no. 1 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 29.04.2003. The Director, CFL after analyzing the sample
opined vide its Certificate dated 31.05.2003 that "the sample contravenes Rule 30 of
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the PFA Rules 1955". The Director so opined as the total dye content (360.0 ppm) of
the synthetic colours used i.e. Tartrazine and Sunset Yellow FCF exceeded the
maximum prescribed limit of 100 ppm.
5. In pre charge evidence, the prosecution examined one witness i.e. Food
Inspector Sh. V. P. S. Chaudhary as PW1 and pre charge evidence was closed vide
order dated 07.07.2009.
6. Charge for violation of provision of Section 2 (ia) (a) (b) (j) & (m) of PFA
Act 1954 and Rule 30 r/w Rule 28 & 29 of PFA Rules, 1955 punishable U/s 16(1A) r/w
section 7 of the PFA Act were framed against accused persons vide order dated
27.10.2009 to which both the accused pleaded not guilty and claimed trial.
7. Thereafter, in post charge evidence the prosecution examined three
witnesses i.e Food Inspector Sh. V. P. S. Chaudhary as PW1, Food Inspector Sh R.
K. Bhaskar as PW2 and Sh. M. A. Ashraf the then SDM/LHA as PW3 and PE was
closed vide order dated 23.08.2014.
8. Statement of both the accused U/s 313 Cr. P.C. were recorded on
02.01.2015 wherein both the accused claimed themselves to be innocent. Despite
opportunity, they did not lead any defence evidence.
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A brief scrutiny of the evidence recorded in the matter is as under:
9. PW1 Sh. V. P. S. Chaudhary deposed that on 20.11.2002 he along with
FI R. K. Bhaskar under the supervision of LHA/SDM Sh. M. A. Ashraf visited M/s
Kadimi Sweets Pvt Ltd. C5A Market, Janak Puri, New Delhi where the accused
Mansa Ram was found conducting the business of the shop after having stored laddoo
Moti Choor a food article for sale for human consumption which was contained in
open tray with no label declaration. He deposed that he introduced himself to the
accused and intended to purchase sample of laddoo moti choor for analysis for which
the accused agreed. He deposed that he also made efforts to join some public
witnesses in the proceedings by requesting some passersby and customers etc but
none came forward and on his request FI R. K. Bhaskar joined the same. He
deposed that at about 02:30 PM he purchased 1500 gms of said laddoo from accused
Mansa Ram on payment of Rs. 90/ vide Ex. PW1/A. He deposed that before taking
the sample, the laddoo in the tray were properly mixed up after breaking the same with
the help of clean and dry spoon by rotating the same in all possible directions. He
deposed that he divided the sample quantity into 3 equal parts by putting the same in
three separate clean and dry bottles. He deposed that 40 drops of formalin were
added in each bottle while shaking the same gently for proper dispersion of the same.
He deposed that each part was separately packed fastened, marked and sealed as
per law and LHA Slips bearing his code number and signatures were pasted on each
bottle. He deposed that accused Mansa Ram signed the same in a manner that his
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signatures appeared partly on slips as well as on wrappers. He deposed that he
prepared Notice Ex. PW1/B. He deposed that a copy of the notice was received by
the accused upon which he made endorsement at point A to A along with his
signatures. He deposed that he prepared Panchnama Ex. PW1/C. He deposed that
all the aforesaid documents were read over and explained to accused in Hindi and
thereafter he signed at point A on each documents, he signed at point B and witness
signed at point C separately. He deposed that on 21.11.2002 he deposited in the
office of PA one sealed counterpart along with copy of form VII containing specimen
seal impression of the seal used and one more copy of Form VII having same seal
impression in separate seal packet for analysis vide receipt Ex. PW1/D. He deposed
that on the same day the other two counter part along with two copies of Form VII
having same seal impression in sealed packet were deposited with LHA vide receipt
Ex. PW1/E under intimation that one counter part has already been deposited with PA
for analysis. He deposed that PA report Ex. PW1/F revealed that sample was
adulterated because the total dye contents of colouring matter were exceeding the
prescribed maximum limit of 100 ppm. He deposed that he conducted further
investigation and received reply Ex. PW1/G from the STO in which it was revealed that
the firm was a partnership firm having 5 partners namely Virender Kumar Jain, Smt.
Anguri Devi, Smt. Santosh Jain, Smt. Nirmal Jain and Manish Jain. He deposed that
the firm had appointed accused Mansa Ram as nominee and person responsible to
look after the business of the same. He deposed that accused also sent reply Ex.
PW1/H bearing his signatures at point A attaching with same his nomination paper Ex.
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PW1/J, copy of resolution Ex. PW1/K, appointment letter Ex. PW1/M, list of the
Directors Ex. PW1/N and copy of the memorandum of association Ex. PW1/O. He
deposed that after conclusion of the investigation the file was sent to the then Director
PFA through LHA who gave consent order Ex. PW1/P and the complaint Ex. PW1/Q
was filed by him. He deposed that after filing of the complaint intimation letter Ex.
PW1/R along with PA report were sent through registered post vide receipt Ex. PW1/S
having relevant entries at point A and B which were duly served upon the accused.
10. During his cross examination he admitted that the sample was lifted from
the shop of the Restaurant. He stated that some customers were sitting and eating
food articles on that day. He stated that he did note the names of those customers.
He voluntarily stated that they refused to join the sample proceedings. He admitted
that the shop was situated at busy market and there may be around 20 shops. He
stated that there are other provisions store nearby the shop in question. He stated
that he had also lifted some samples from those shops earlier. He stated that he
made request to neighboring shopkeepers but he does not remember the names. He
stated that as a FI he is empowered to lift the sample from entire Delhi including those
shopkeepers. He denied the suggestion that those shopkeepers were bound to assist
him as a witness in the sample proceedings. He stated that he has lifted thousands of
sample in his whole career as a FI. He stated that he cannot tell the exact number of
cases in which public witnesses joined the sample proceedings but in some cases
public witnesses joined the sample proceedings. He stated that he cannot give the
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name of one specific case. He denied the suggestion that he did not associate the
public witness in any case. He denied the suggestion that in the present case he also
did not make request to any public witness to join the sample proceedings. He stated
that they did not offer their search to the accused He stated that he has mentioned in
the Panchnama that 40 drops of formalin were added in the sample commodity and it
was signed by the vendor. He stated that at the stage of putting formalin in the sample
bottles, he assured by showing the accused that he is putting the formalin. He denied
the suggestion that he added the words, "40 drops", at point B to B later on after
obtaining the signatures of accused. He stated that tray was provided by the vendor
on which laddoos were mixed by him. He admitted that workshop of manufacturing
sweets in the same premises. He denied the suggestion that he procured the tray
from the workshop which was used one on his own. He denied the suggestion that
alleged sample was neither uniformly broken nor mixed properly. He denied the
suggestion that tray he used was not clean and dry or that was having cooked the
material. He stated that he cannot comment upon the difference in colour
concentration as analysed by two Analysts. He denied the suggestion that sample
commodity was not properly mixed and used tray was used that is why there is
variation between two reports. He denied the suggestion that he sample was of
standard quality and the different results have come on account of not taking the
sample in proper method.
11. PW2 Food Inspector Sh. R. K. Bhaskar and PW3 the then SDM/LHA Sh.
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M. A. Ashraf 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.
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 both the accused.
15. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector V.P.S. Choudhary coupled with the report of the
Director, CFL dated 31.05.2003 that accused/vendor Mansa Ram was indeed found
selling Laddoo Motichoor at M/s Kadimi Sweets Pvt. Ltd. which was adulterated as it
was containing synthetic food colours namely Tartrazine (335.0 ppm) and Sunset
yellow FCF (25.0 ppm) total 360 ppm which is much above the maximum prescribed
limit of 100 ppm.
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16. The star / the material witness of the prosecution i.e. Food Inspector
V.P.S. Choudhary categorically proved the sample proceedings dated 20.11.2002 as
were conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as proved by prosecution and the answers
given by accused/vendor during his examination under Section 313 Cr. P.C as
recorded on 02.01.2015 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. 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 and Ex. PW1/H to M, no doubt remains that the sample of Laddoo Motichoor was
indeed collected by the Food Inspector for analysis from M/s Kadimi Sweets of which
the accused Mansa Ram was the vendor cum nominee at the time of lifting of the
sample.
17. During the course of arguments, Ld. defence counsel Sh. S.C. Singhal
appearing for accused argued that the prosecution miserably failed to bring home the
guilt against both the accused. It was argued that the prosecution story suffers from
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various loopholes /contradictions.
Public witness
18. At the outset it was also 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 are 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.
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
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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
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.".
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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
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
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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, PW2 and PW3 that FI V.P.S.
Choudhary 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
story inspires confidence and lifting of the sample stands unambiguously proved.
Furthermore, I find no reasons why the Food Inspector or the SDM would falsely
implicate the accused or depose falsely against them. 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 them.
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
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argued that at the time when the sample was collected, the Food Inspector failed to
clean the sample bottles, tray and the spoon with which the sample was mixed and
poured in the bottles. It was argued that the colour was already sticking to the spoon,
tray and the sample bottles and it was this colour which was detected by Director. 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.
26. However I differ with the contentions as raised by the Ld. defence
counsel.
27. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied 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. Reliance may be placed upon Varghese Vs. Food
Inspector, 1989(2) FAC 236.
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28. I have perused the deposition of the Food Inspector i.e. V.P.S.
Choudhary who was examined as PW1. The Food Inspector deposed as under:
" .....At about 2.30 PM I purchased 1500 gms of said laddoo from
accused Mansa Ram on payment of Rs. 90/ vide Ex. PW1/A. Before taking the
sample the laddoo in the tray were properly mixed up after breaking the same with the
help of clean and dry spoon by rotating the same in all possible directions."
29. During his cross examination he stated as under:
"........Tray was provided by the vendor on which Laddoos were mixed by
me....... It is wrong to suggest that I procured the tray from the workshop which was
used one at my own. It is wrong to suggest that alleged sample was neither uniformly
broken nor mixed properly. It is wrong to suggest that tray I used was not clean and
dry or that was having cooked the material..........It is wrong to suggest that sample
commodity was not properly mixed and used tray was used that is why there is
variation between two reports. It is wrong to suggest that the sample was of standard
quality and the different results have come on account of not taking the sample in
proper method."
30. Similarly PW3 the then SDM/LHA Sh. M.A. Ashraf deposed as under:
"........The so purchased quantity of sample commodity was transferred in
another clean and dry tray and was properly mixed with the help of a clean and dry
spoon and then it was divided into three equal parts by putting it into three clean and
dry sample glass bottles."
31. During his cross examination no suggestion was given to him that the
sample bottles, spoon or the tray were not clean or dry or that some colour was
sticking to them.
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32. PW2 Food Inspector R.K. Bhaskar deposed as under:
".......Before taking the sample, laddo motichoor were broken into
smallest possible pieces with the help of clean and dry spoon in a clean and dry tray
and the same were mixed properly in the same tray with the help of same clean and
dry spoon. FI divided the sample into three equal parts by putting them in three clean
and dry glass bottles."
33. During his cross examination he stated as under:
"The spoon and the tray were provided by the accused in which sample
was mixed. It is wrong to suggest that neither vendor was asked to provide tray and
spoon and nor he provided the same. It is wrong to suggest that vendor was not
allowed by the FI to inspect the tray and the spoon which were brought by FI and were
already used one and were not neat and clean. It is wrong to suggest that since used
tray and spoon were used while drawing sample, that is why there is variation in the
test report of Local Laboratory and Central Laboratory."
34. Hence the prosecution witnesses consistently deposed regarding the
spoon, tray as well as the sample bottles being clean and dry. No doubt remains that
the sample proceedings were conducted in a proper manner and that the sample
bottles, the spoon and the tray were clean and dry. As discussed above I find no
reasons why the FI or the SDM would falsely implicate the accused that is to say why
they 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
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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
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
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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
(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.
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
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. In fact from the endorsement made by accused no. 1 on Notice in
Form VI i.e. Ex. PW1/B no doubt remains that the colour was added by the
accused and that all the instruments/ intermediaries used in sampling were
clean and dry and not coloured as is now being agitated. The accused had
himself made an endorsement in the above document to the effect " yeh
motichoor laddoo, besan, cheeni, banaspati, magaz wa rang
daal kar banaya
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DA Vs. Mansa Ram etc. Page 20 of 58
hai"
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 and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there are variations in the report of Public
Analyst and Director, CFL. For example the Public Analyst had reported the total
colour/dye content to be 428.59 ppm, on the other hand the Director found the total
colour/dye content at 360.0 ppm. Also PA found only one colour i.e. tartrazine in the
sample so sent to him for analysis whereas the Director, CFL had found two colours
i.e. Tartrazine and Sunset yellow FCF in the sample. Furthermore the Public Analyst
gave the physical appearance of the sample as Orange coloured sample of sweet with
"magaz" whereas the Director gave the same as orange colour Motichur Laddoo i.e.
he did not find any magaz seeds in the counterpart of the sample so sent to him for
analysis. It was argued that these variations prove that the sample was not
representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219
and State Vs. Rama Ratan Malhotra 2012 (2) FAC 398.
45. However, I find no merits in the contention of the Ld. defence counsel.
Firstly it is evident from the deposition of the prosecution witnesses i.e. the Food
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Inspector and the other complainant witnesses as discussed above that the sample
was taken after proper homogenization/mixing. The witnesses categorically proved
that the laddoo Motichoor were broken/cut into smallest possible pieces with the help
of a spoon in a tray and then properly mixed several times and thereafter the sample
was lifted. Once the laddoos were cut with the spoon and properly mixed in a tray it
was sufficient to make them homogenized. Secondly, it is to be seen that there is no
requirement under the Act or the Rules appended therein to homogenize or make the
sample representative before lifting the same.
46. Thirdly, there is no requirement of mixing or making the sample i.e. the
laddoo Motichoor homogenized as such in view of the law laid down in Dhian Chand
Vs. State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
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DA Vs. Mansa Ram etc. Page 22 of 58
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."
47. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full
Bench of the Hon. Apex Court observed as under:
"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food
inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.
48. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 90/ to the
vendor/accused towards the purchase of sample commodity. In this regard vendor's
receipt Ex. PW1/A was executed which bears the signature of accused at point A. 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
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Section 7 of the Act. It was also observed "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". In MCD Vs. Shri Ail Das & Anr. 1975 FAC 223,
Division Bench of the Hon'ble High Court of Delhi held as "As was laid down by a
Full Bench of this Court in Madan Lal Vs. State 1972 F.A.C. 481.........it must be
held that if the respondents in the two appeals were dealers in toned milk as such,
they would be guilty of an offence under the Act notwithstanding the fact that they did
not agree to sell the toned milk to the Food Inspector or to accept its price from him."
In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133,
it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of
'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis
is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC
322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs.
Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1)
FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it
is immaterial whether the sample purchased by him is a representative sample or not
of the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
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
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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".
49. 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."
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50. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of
sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the
language of the Indian Act does not require mixing and division of sample in every
case regardless of whether the nature of the article requires it or not.
51. In Food Inspector Vs. Karingarappully, 1986 (1) FAC 238 relying upon
the Hon'ble Apex Court's decision in Alassery's case 1978 (1) FAC 145 it was held as
under:
"Neither the Act nor the Rules contain any provision to the effect that the entire
quantity of milk in the container in the possession of the vendor should be stirred
before effecting the sale to the Food Inspector. If the normal mode of serving or
selling a part of the milk contained in a larger container involves stirring the entire
quantity, the vendor should have done it. If that is not the normal mode, that will not
be done when the sale is made to the Food Inspector also."
52. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held
by Hon. High Court of Delhi as under:
" I am of the opinion that in view of the charge having been framed only with
regard to the presence of colouring
matter , the learned MM's finding that the
samples collected were not of representative character cannot be sustained
inasmuch as both the Public Analyst and the CFL have reached a similar
conclusion with regard to the presence of artificial colouring matter."
53. Furthermore, the act has been enacted so as to prevent the adulterated
CC No. 143/03
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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 laddoo motichoor etc. the
vendor does not give the said food article after cutting and mixing the same with the
help of spoon/knife or any other instrument in the vessel/tray in which he has stored
the same in his shop. He does not first rotate the said food article in all possible
directions several times and then sell the same to the customer. If he will do so no
customer will buy laddoo motichoor from him. He merely takes out the food article
with the help of a spoon or any other instrument or may be with his hands and sells it
to the customer. Therefore when this is usual mode of selling the food article to the
customers then why should a different mode be used for the purpose of sale to the
Food Inspector. The act has been enacted for the purpose of protection of the
customers/consumers of food articles and it is not sold to them by the shop owner
after homogenization. Hence no question of making the food article/Motichoor laddoo
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. Still in this case as discussed
above the FI made all possible efforts to homogenize/make the sample
representative and therefore there should not be any reason to complain.
Variations.
54. Coming to the second limb of arguments of the Ld. defence counsel that
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there are variations in the report of Public Analyst qua the report of Director, CFL and
accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219
passed by the Hon'ble High Court of Delhi, the accused are entitled to acquittal as
benefit has to be given to them for the variations in the two reports I find no merits in
the same. No question of variation can be looked into by the court 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.
55. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the
Hon. Apex Court upheld the conviction of the vendor despite the variations in the
total ash content by the PA and the Director being more than 2.28%. In this case the
Public Analyst had reported the total ash at 8.22% against the maximum prescribed
limit of 8.00% whereas on analysis the Director found the same to be 9.72%.
56. In its latest judgment titled as Food Inspector, Department of PFA,
Govt. of NCT of Delhi Vs. Kailash Chand dated 31.08.2015 the Hon'ble Apex
Court remanded back the appeal/file, to the Hon'ble High Court of Delhi, against
acquittal order passed by the Hon'ble High Court of Delhi while making the following
observations:
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"The learned Single Judge has taken note of the fact there were two test
reports which were beyond permissible limit of 0.3%. The reason ascribed by the
learned Single Judge reads as follows:
"In the report of the PA, the moisture was found to be 9.86%, whereas in
the report of the CFL, it was found to be 14.4%. The damaged grain in the report of
the PA was found to be 0.44% and weevilled grains was found to be 'nil', whereas in
the report of the CFL, damaged grain was found to be 03.1% and weevilled grains at
to be 02.2%. While in the report of the PA, the uric acid content was not detected in
the sample, in the report of the CFL, it was found to be 54.45 ppm.
The learned trial Court has rightly granted the benefit of doubt to the
Respondent because of the above variations, which was beyond the permissible limit
of 0.3%.
It is submitted by Mr. Neeraj Kishan Kaul, learned Additional Solicitor
General that the High Court has not kept itself alive to two aspects, namely, the
mandate of Section 13 (3) of the PFA Act and the language employed in Rules 23, 28
and 29 of the 1955 Rules. Section 13 (3) of the PFA Act reads as follows:
"The certificate issued by the Director of the Central Food Laboratory
under subsection (2B) shall supersede the report given by the public analyst under
subsection (1)."
Relying on the same, it is urged by Mr. Kaul that in case of two reports, if
there is a certificate issued by the Director of Central Food Laboratory under Section
13 (2B), the same shall supersede the report given by the public analyist under sub
section (1) of Section 13; and in the case at hand as such, a certificate has been
obtained by the prosecution and, therefore, the High Court has erred in law by
expressing the opinion that there is variation in reports...........
...............On a perusal of the judgment and order passed by the High
Court, it is perceptible that there has been no analysis in this regard.
In view of the aforesaid, we think it appropriate that the judgement and
order passed by the High Court declining to grant leave to appeal, should be set aside
and the matter be remanded to the High Court to consider the case in the light of the
statutory provision and the provisions enshrined under the 1955 Rules.
Resultantly, the appeal is allowed and the judgment and order passed by
the High Court is set aside and the matter is remitted for reconsideration."
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57. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1,
the sample of Toor Dal was lifted and on analysis by the Public Analyst it was found
adulterated as it contained kesari Dal. After the prosecution was launched one
counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in
the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13
as under:
"When the certificate superseded the Report of the Public Analyst the latter
stands sunk to the bottom and in that place the Certificate alone would remain on the
surface of evidence and hence that certificate alone can be considered as for the facts
stated therein regarding the sample concerned".
58. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the
Hon. Apex Court held as "in the present case the certificate of the Director showed
that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the
permissible limit is 3% only. We are not concerned with the Public Analyst's report
since that has been superseded by the certificate of the Director, Central Food
Laboratory and the later certificate has been made conclusive evidence of the facts
mentioned in it.
59. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633,
the Hon. Apex court observed as " the report of the Director Central Food
Laboratory, Calcutta having superseded the report of the Public Analyst the
prosecution must stand or fall on the report of the Director, Central Food Laboratory"
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DA Vs. Mansa Ram etc. Page 30 of 58
60. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC
240 the Hon. Apex Court set aside the order of the High Court which had quashed
the proceedings and the Hon. Apex Court remanded the matter back for trial despite
the fact that there was variation in the "contents and extent of adulteration of the food
articles" in the report of the Director and the PA.
61. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462,
while dealing with case of adulteration of turmeric powder in the Hon. Apex Court
held as:
".............The High Court so far the two reports are concerned held that the
samples sent were unrepresentative. But the fact remains that the said issue was not
at all raised and also considered by the appellant court nor it was raised before the
trial court. It is also settled law that if there is any variation between the two reports,
there would be primacy in the report submitted by the Director, Central Food
Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food
Adulteration Act.
9. Having considered the aforesaid aspect, we feel and order that the order of
the High Court along with the order of appellate court have to be set aside, which we
hereby do."
62. 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
CC No. 143/03
DA Vs. Mansa Ram etc. Page 31 of 58
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."
63. 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.".
64. 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
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Association Vs. Union of India, AIR 1971 SC 246 and Chetumal Vs. State of
M.P., AIR 1981 SC 1387 elaborately discussed the issue of 'variation' and held as
under:
"Proviso to S. 13(5) also indicates that what is stated in the later certificate issued by
the Director would be final and conclusive evidence of the facts stated in the said
certificate. It is obvious that the facts stated would be with respect to the result of the
analysis by the Director and the findings reached therein regarding relevant
ingredients of the part of the sample sent for analysis and analysed by the Director of
the Central Food Laboratory. Once this type of conclusive evidence emerges on
record, whatever might have been contraindicated regarding the concerned
ingredients of the sample as found in the prior report of the public analyst would be
totally pushed out of the arena of contest and cannot be looked at. If that is so, there
would be no question of considering any variance between the results of the
tests carried out by the public analyst on the one hand and the Director of the
Central Food Laboratory on the other visavis two parts of 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."
65. 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
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DA Vs. Mansa Ram etc. Page 33 of 58
that once the report of Director is received the earlier report given by the Public
Analyst is rendered ' obsolete
' and stands '
wiped out
'.
66. 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.".
67. 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
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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.".
68. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 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.".
69. 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.".
70. In MCD Vs. Ram Swarup 1976 (2) FAC 201, the Hon'ble High Court of
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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."
71. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134,
the Division Bench of the Hon'ble High Court of Delhi held in para 11 as under:
"11. 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.".
72. 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."
73. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204,
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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
certificate of the Director.".
74. 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".
75. 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.
76. 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
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Section and as per proviso appended to subsection (5) is final and conclusive
evidence of the facts stated therein.".
77. 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
proceeded entirely on wrong premises in comparing the reports.".
78. 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.".
79. 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.
80. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr
1999(1) FAC 8, the Hon'ble Apex Court observed as under:
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"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
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.".
81. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984
(1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public
Analyst is superseded by the certificate of the Director which has conclusive effect
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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 the Act".
82. 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.
83. 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. In this case on analysis the PA had reported that the Moong Dal
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sample contained 0.28% of talc as foreign matter whereas the Director reported the
same to be 1.363%. The court also did not find any merits in the contentions of the Ld.
Defence counsel that talc was not a harmful substance as it was used only to prevent
sticking of grains of Dal.
84. 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.
85. In Bishan Sarup's case as referred above despite the variation being
much more than .3%, the accused was convicted.
86. 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. Moreover, merely because there is a
variation no presumption can be drawn that the sample which was sent to Director,
CFL was not representative. In fact no question of "variation" or the 'sample
being not representative' can arise or be looked into by the court. As already
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discussed above that it is the mode in which the sample is sold to the
customer/consumer which has to be kept in mind by the court. The sample is
not made representative when it is sold to a consumer/customer by the
vendor/shopkeeper. Hence he cannot complain that a representative sample
was not taken by the Food Inspector or else if the said plea is allowed it will
defeat the very purpose of the PFA Act. The court cannot legitimately make
such a comparison and conclude that there are divergences and therefrom draw
an inference that the sampling must have been done improperly or that the
sample was not representative.
87. Nonetheless though no question of variations in the quantity of colour
detected by the two experts can be looked into by the court still as far as variations in
the quantity of colour detected by the two experts is concerned I find merits in the
submissions of Ld. SPP who pointed that the colour is added in food article like
motichoor laddoo at the time of its manufacturing. At that time mixing unless done by
machine or by any mechanical process the colour cannot be uniformly mixed in food
articles and there will always be a case where in some portion of the final product the
quantity of the colour may be more as compared to the other portion or piece. Ld.
SPP pointed out that the mixing of the colour is done by the laborers/halwai etc. with
the hands and they cannot ever mix it evenly/ uniformly. This also explains for the
additional colour i.e. sunset yellow FCF found by the Director which the PA had not
reported. Nonetheless it is to be remembered that dominant colour found by both the
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experts was Tartrazine. As far as sunset yellow FCF is concerned it was found by the
Director at a very minuscule quantity i.e. only 25 ppm.
88. Regarding the magaz seeds found by the PA which the Director did not
report it is to be seen that firstly, merely because the Director did not state that the
laddoo contained magaz seeds does not mean that the laddoos were indeed not
containing magaz seeds. It is to be seen that the Director in his report merely gave
the physical appearance of the sample and not the ingredients of the sample.
Furthermore he was only required/directed by the court to give his report/finding as to
whether the sample is adulterated or not as per the memorandum of the Director, CFL
as per Form 1 Rule 4 (1). Therefore there was no occasion for him to test for or report
the presence of Magaz seeds. Secondly, it is not disputed that the laddoos contained
magaz because the accused himself had mentioned/disclosed the same in notice in
Form VI. He had made an endorsement on Notice in Form VI wherein one of the
ingredients used in preparation of laddoos was magaz seeds. Thirdly, as discussed
above mixing of colour as well as the Magaz is done by the workers/labourers and
therefore there can be an occasion where in one part of the laddoo there are more
magaz seeds than the other whereas the third part may not have any. Fourthly, if the
Food Inspector with all the expertise available at his disposal takes the sample after
properly mixing/ homogenization still there will be slight difference/variation in the
sample which is divided into/put into three different sample bottles/counterparts. One
part of the sample may have more Magaz seeds then the other and may be the third
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may not have any at all. One counterpart went to PA and other was sent to the
Director by the court. Upon division into three parts the Magaj seeds might have
remained more in one part then the other and not in the third part. This cannot be
ruled out and might have happened in this case as well. At the time of the lifting of the
sample the Food Inspector is not expected to detect the adulteration in the sample.
His role is merely to lift the sample, divide it into three counterparts for the purpose of
analysis. He is not expected to and practically also cannot divide the sample into
three equal parts so that all the three counterparts have the same amount of
adulteration/ the ingredients of the sampled product. It is humanly/ practically
impossible. He cannot pick and choose the adulterants/ ingredients which vary
according to size, nature etc. and place them in all the three counterparts. Therefore
no question of variation should be raised or should be allowed to be agitated in the
court. Fifthly, it is a matter of common knowledge that halwai/labourers mix/add
only/hardly 45 magaz seeds in the laddoos at the time of its preparation. It is merely
done as a toping/decorative on the laddoo and there are chances that few pieces of
laddoo may not have any magaz seeds or they fall while being stored at the shop or at
the time of giving to the customers.
89. Moreover, 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
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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 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 i.e. a different sample being put in different sample bottles arises.
Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass
1978(1) FAC 211.
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DA Vs. Mansa Ram etc. Page 45 of 58
90. Furthermore, it can not be the intention of the legislature that the person
who has been found selling, offering for sale, manufacturing etc food articles which
have been found to be adulterated upon examination by a Public Analyst as well as by
Director, CFL i.e. two independent authorities be allowed to go scot free merely
because there is a difference or variation in the report of the Public Analyst & Director,
CFL. It does not appeal to a prudent mind that once a food article has been found to
be adulterated by two different agencies the accused may go unpunished solely on
account of variance in the amount of / extent of adulteration. Doing so would defeat
the entire purpose of the Act and shall have drastic consequences as adulteration of
food is a menace to public health as the Prevention of Food Adulteration Act has been
enacted with the aim of eradicating that anti social evil and for ensuring purity in the
articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs.
State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of
Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under:
"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".
Delay in filing the complaint
91. The Ld. Defence counsel had also argued that delay in filing the
complaint had violated the right of the accused u/s 13 (2) as though the accused had
exercised his right u/s 13 (2) for sending the counterpart to the Director, CFL however
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DA Vs. Mansa Ram etc. Page 46 of 58
the right could be exercised only after 4 months of the lifting of the sample and the
counterpart of the sample was analyzed by the Director after 6 months of its lifting. It
was also argued that the sample could not have remained fit for analysis that long and
therefore no reliance can be placed upon the report of the Director. The Ld. Defence
counsel relied upon judgment of MCD Vs. Bishan Sarup 1972 FAC 273 in support of
his arguments. However I do not agree with the arguments of the Ld. Defence
counsel. Firstly, as far as the judgment of Bishan Sarup (supra) is concerned same
is not applicable to the facts of the present case as no prejudice has been caused to
the accused in this case because sample on analysis was found fit by the Director and
it is only if the sample is rendered unfit for analysis or becomes decomposed etc. then
the accused is entitled to acquittal on ground of prejudice and not otherwise.
Secondly, no doubt the complaint was filed after 4 months of lifting of the sample and
the sample was analyzed after more than 6 months of its lifting however this delay did
not prejudice the accused in any manner. To begin with the prosecution witnesses
categorically stated that 40 drops of formalin were added in the sample bottles as a
preservative. The defence could not prove that the sample would have deteriorated
despite addition of formalin. Therefore I find no reasons to believe or agree to their
contentions more so when the Director categorically reported that the sample was in
condition fit for analysis. The certificate/report of the Director which otherwise as per
section 13 has been made final and conclusive as to the facts stated therein remained
unchallenged during the trial and I find no reasons to doubt the same. The accused
would have been prejudiced only if the Director had reported that the sample was
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rendered unfit for analysis/the sample had been decomposed. 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
that a sample must have got
against the same. How can there be a presumption (
decomposed, deteriorated or rendered 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 only contrary to the law but also in contrary to well established principles of jurisprudence. As far as delay in filing the complaint is concerned, there is no time limit prescribed under the Act for filing of the complaint. Reliance may be placed upon the law laid down in T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry AIR 1994 AIR SC 1818, wherein 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 CC No. 143/03 DA Vs. Mansa Ram etc. Page 48 of 58 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 .
92. Further reliance may be placed upon the Hon. Apex Court's ruling in Ajit Prasad Ramkishan Singh 1972 FAC 545 and Charanji Lal Vs. State of Punjab 1983 (2) FAC 186.
93. As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution. 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, Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 and G.S. Prasad (2003 Cri LJ NOC 231, Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, Babu Lal Vs. State of Gujarat 1972 FAC 18, 2008 (1) FAC 17, 2007 (1) CC No. 143/03 DA Vs. Mansa Ram etc. Page 49 of 58 FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P, Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 Tillo Ram Vs. State 1975 (2) FAC 36, Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, Shambhu Dayal Vs. State of U.P., decided on 21.11.1978, State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, Haryana Vs. Amar Nath 1983 (1) FAC, 235 Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455, Krishan Lal v. MCD 1984 (2) FAC 89 and Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206).
94. In Ram Dayal Vs. MCD, 19481997 FAC (SC) 11 the Hon. Apex Court while dealing with a case of unpermitted colour in laddoo sample of which was collected on 01.09.1965 observed as "there is nothing to show that either the laddus or the colour would have deteriorated even if he had moved his application u/s 13(2) when he made the application u/s 510(2) on 29.08.1966.
95. 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 CC No. 143/03 DA Vs. Mansa Ram etc. Page 50 of 58 for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
8. Whether sample collected would be decomposed after a certain time would depend on the nature of commodity. As observed by the Apex Court in State of Tamilnadu V. Shanmugham Chettiar and Ors, 1980 (2) FAC 187: Dhahu Behera V. Puri Municipality and Anr, 1992 (1) FAC 101; and Chamurulal Agarwala V. State of Orissa, 1992(1) FAC 173 no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis.".
96. 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:
"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 CC No. 143/03 DA Vs. Mansa Ram etc. Page 51 of 58 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." .
97. The report of the Director that the laddoos remained fit for analysis was not challenged. It attained finality as far as the findings therein are concerned. 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 cross examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
Injurious to health.
98. It was further argued by the Ld. defence counsel that there is nothing on record to show that mere excess of the synthetic colours i.e. Tartrazine and Sunset yellow FCF would make the laddoo Motichoor injurious to health. However I differ with the contentions of the Ld. Defence counsel in view of the law laid down in Jai Narain Vs. MCD 19481997 FAC (SC) 415. The Hon'ble Apex Court observed as under:
" ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to CC No. 143/03 DA Vs. Mansa Ram etc. Page 52 of 58 health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".
99. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:
"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. As pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".
100. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:
"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)
(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"
(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." CC No. 143/03 DA Vs. Mansa Ram etc. Page 53 of 58
101. In Mani Bai Vs. State of Maharashtra 1973 FAC 349 the Apex Court held as under:
" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".
102. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".
103. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:
"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".CC No. 143/03 DA Vs. Mansa Ram etc. Page 54 of 58
104. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.
105. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration. The judgment passed by the Hon'ble High Court of Delhi in Ashwani Kumar's case (supra) was challenged vide SLP no. 5014/2013 however the SLP was dismissed by Hon'ble Apex court vide orders dated 11.07.2014.
106. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.
107. Hence whether the excess colour used is injurious to health or not is not the criteria to be looked into by the court and the court has only to see whether the CC No. 143/03 DA Vs. Mansa Ram etc. Page 55 of 58 food article is adulterated or not. Still it is a matter of common knowledge that excess of tartrazine and Sunset yellow FCF and other synthetic colours can lead to major health problems like blindness and even cancer.
108. In the case at hand synthetic food colours or a mixture there of could be added to laddoo Motichoor only to the extent of 100 ppm. Laddoo Motichoor falls under the category of sweets. As per Rule 29 (b) r/w Rule 30 synthetic food colours as per Rule 28 could be added only to the extent of 100 ppm. However as is evident from the report of the Director the total quantity of the colour/dye content was found at 360 ppm which is much more than the permissible/maximum limit. This makes laddoo Motichoor adulterated.
Paper Chromatography Test.
109. It was further argued that the usual method used for analysis is paper chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon the law laid down in State Vs. Subhash Chand 2012 (2) JCC 1052. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used DGHS Manual method. Paper Chromatography is just one of the method prescribed in DGHS manual which provides for the methods which the Analyst can use for detecting the colours in food products. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report CC No. 143/03 DA Vs. Mansa Ram etc. Page 56 of 58 based upon chromatography test. It was observed as under:
"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh (Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ), where it was held as under:
"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act."
19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."
110. As discussed above, the judgment passed by the Hon'ble High Court of CC No. 143/03 DA Vs. Mansa Ram etc. Page 57 of 58 Delhi in Ashwani Kumar's case (supra) was challenged vide SLP no. 5014/2013 however the SLP was dismissed by Hon'ble Apex court vide orders dated 11.07.2014.
111. In view of my above discussion, as the total dye/colour quantity/content in the sample of Laddoo Motichoor so collected was found at 360 ppm which was in excess of the maximum prescribed limit which is 100 ppm as per Rule 30, accused Mansa Ram being the vendor of the sampled commodity as well as the Nominee and accused no. 2 M/s Kadimi Sweets Pvt. Ltd. being the company running the business in question, stand convicted under Section 2 (ia) (a) (b) (j) & (m) of PFA Act 1954.
112. Let both accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 17th September 2015 ACMMII/ New Delhi CC No. 143/03 DA Vs. Mansa Ram etc. Page 58 of 58