Delhi District Court
Da vs . Ashish Mittal Page 1 Of 51 on 18 February, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 242/05
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Ashish Mittal
S/o Late Sh. Sudesh Mittal,
M/s New Haryana Dairy,
Shop No. 29/10, New Govind Pura,
Rashid Market Chowk,
Delhi51.
R/o House no. A6, Gali no. 9,
New Govind Pura,
Delhi51.
........ VendorcumProprietor
Serial number of the case : 242/05
Date of the commission of the offence : 22.08.2005
Date of filing of the complaint : 26.10.2005
Name of the Complainant : Sh. S.P. Singh, Food Inspector
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Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, punishable U/s 16(1A)
r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 18/02/14
Judgment announced on : 18/02/14
Brief facts of the case
1. In brief the case of the prosecution is that on 22.08.2005 at about 06.15
p.m., Food Inspector S.P. Singh and Field Assistant Jagdish under the supervision
and directions of SDM / LHA Sh. V.P. Singh visited at M/s New Haryana Dairy, Shop
no. 29/10, New Govind Pura, Rashid Market Chowk, Delhi, where accused Ashish
Mittal who was the vendorcumproprietor was found present conducting the business
of sale of various dairy articles including soyabean chap (ready for sale) for sale for
human consumption and in compliance of the provisions of the Prevention of Food
Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as the Act & Rules) the Food Inspector collected / purchased
the sample of Soyabean Chap.
2. It is further the prosecution's case that the sample was sent to Public
Analyst for analysis and as per the report of Public Analyst the sample was found not
conforming to the standard of Soyabean Chap as per PFA rules 1955 as per tests
performed and accordingly after obtaining the necessary Sanction / Consent under
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Section 20 of the Act the present complaint was filed for violation of provisions of
Section 2 (ia) (a) (j) & (m) of PFA Act 1954 punishable U/s 16 (1A) r/w Section 7 of
the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 26.10.2005. The accused after filing his appearance moved an application
under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample
from Central Food Laboratory and consequent thereto second counterpart of the
sample as per the choice of the accused was sent to Director, CFL (Pune) for its
analysis vide orders dated 11.11.2005. The Director, CFL after analysing the sample
opined vide its Certificate dated 14.12.2005 that "sample bearing No. 22/LHA/11992
contravenes rule 28 of PFA Rules 1955.
4. In pre charge evidence, the prosecution examined two witnesses i.e. the
the then SDM/LHA Sh. V.P. Singh as PW1 and Food Inspector S.P. Singh as PW2
and pre charge evidence was closed vide order dated 21.07.2008.
5. Charge for violation of provision of Section 2 (ia) (j) & (m) of PFA Act
1954 punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused
vide order dated 23.03.2009 to which accused pleaded not guilty and claimed trial.
6. Thereafter, in post charge evidence the prosecution examined three
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witnesses including the then SDM Sh. V.P. Singh as PW1, Food Inspector S.P. Singh
Kumar as PW2 and Field Assistant Jagdish as PW3 and PE was closed vide order
dated 01.02.2012.
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 24.09.2012
wherein the accused claimed himself to be innocent. Accused did not lead DE despite
opportunity given.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 V.P. Singh deposed that on 22.08.2005 he was posted as
SDM/LHA Preet Vihar and under his supervision and directions FI S.P. Singh and FA
Jagdish with staff visited the premises of M/s New Haryana Dairy, Shop no. 29/10,
New Govind Pura, Rashid Market Chowk, Delhi where accused Ashish Mittal was
found conducting the business of said dairy there for sale for human consumption
including Soyabean Chap. He deposed that they disclosed their identity and intention
to the accused for purchasing the sample of Soyabean Chap (ready for sale) for
analysis to which accused agreed. He further deposed that FI tried to join some public
witnesses to join the sample proceedings but as none agreed, then on his request FA
Jagdish joined as witness in sample proceedings. He deposed that the sample of 1.5
Kg of Soyabean chop (ready for sale) was taken from an open tray bearing no label
declaration. He deposed that sample was taken after cutting into small pieces 13
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soyabean chap in each of the sample bottles with the help of clean and dry knife and
properly mixed with the help of clean and dry knife in the same tray. He deposed that
sample was taken at about 06.30 p.m. He deposed that FI S.P. Singh then and there
divided the sample equally in three parts by putting them in three clean and dry
bottles and same were separately packed, fastened, marked and sealed according to
PFA Act & Rules. He deposed that price of Rs. 60/ was given to the accused and
same was accepted by the accused vide vendor's receipt Ex. PW1/A. He further
deposed that Notice in Form VI was prepared vide Ex. PW 1/B and a copy of the same
was given to the vendor as per his endorsement at portion A to A. He further
deposed that Panchnama Ex. PW 1/C was prepared. He deposed that accused also
furnished his statement Ex. PW1/D at the spot bearing his signature at point A. He
deposed that all the documents Ex. PW 1/A to Ex. PW 1/C were read over and
explained to the vendor and after understanding the same, signed at point A, witness
at point B and FI signed at point C respectively.
9. He further deposed that two counterparts of the sample alongwith two
copies of Memo in Form VII in a sealed packet in intact condition were deposited with
him on 23.08.2005 vide receipt Ex. PW 1/E, bearing his signature at point A, under
intimation that one counterpart of the sample has already been deposited with Public
Analyst. He further deposed that all the copies of Memo in Form VII were marked
with the impression of seal which was used to seal the sample counterparts. PA
receipt is Ex. PW1/F. He further deposed that Public Analyst's report Ex. PW 1/G was
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received according to which, the sample was found adulterated because it is coloured
with unpermitted synthetic colouring matter viz. OrangeII as mentioned therein at
portion X.
10. He further deposed that on completion of investigation, the complete
case file alongwith all statutory documents were sent to Director (PFA) Sh. Diwan
Chand through him, who after going through the case file, applied his mind and gave
his Consent Ex. PW 1/H for prosecution against the accused and accordingly FI filed
the complaint Ex. PW 1/J in the court. He further deposed that intimation letter Ex.
PW 1/K alongwith PA's report was sent to accused by registered post through SDM /
LHA Sh. S.P. Bhardwaj which was not received back undelivered. He has also
placed on record copy of postal registration receipt Ex. PW 1/L, bearing relevant entry
at portion A.
11. During his cross examination he stated that he was posted on
22.08.2005 in Sub Division Preet Vihar. He admitted that he was posted in Sub
Division and his working area was sub division. He denied the suggestion that sub
division Preet Vihar has not been notified under PFA Act. He stated that he has not
been notified as LHA for the whole of NCT of Delhi by Govt. of NCT of Delhi. He
admitted that the notification copy is not in the file. He stated that he had not counted
the number of soyabean chap lying the open tray. He stated that the weight of those
soyabean chap might be of 34 Kg. He stated that the capacity of the tray might be of
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56 Kg. He stated that the chaps of 1.5 Kg were cut into pieces in the same tray in
which those were lying. He stated that the chaps were weighed by the vendor in the
pan scale. He stated that he does not remember who cut pieces of chaps were put into
bottles either with the hand or with the spoon or with some other instrument. He stated
that the formalin was added into these bottles. He stated that about 40 drops of
formalin were put into bottles. He stated that the formalin was put into bottles with the
help of cap of the bottles. He stated that at the spot there were about 57 people. He
stated that FI requested them to become witness. He stated that he cannot tell the
names, addresses of those persons to whom the FI made request to become witness.
He stated that the FI did not give any specific note on the document Ex. PW1/A to Ex.
PW1/C that he tried to join public witness but they refused. He stated that FI requested
him to become witness. He stated that he did not sign on the documents, notice,
vendor receipt and panchanama as it was not necessary for him to be a witness as he
was working as supervisor by issuing the LHA slips. He stated that the sample got
deposited by the FI to him on 22.08.2005 in the evening. He stated that the bottles
were already dry and clean. He stated that there were approximately 34 KG of sample
commodity lying in the open tray which was available with the accused at the time of
their visit. He stated that first of all sample was lifted by the FI by weighing it 1.5 KG
and then the sample commodity was cut into small pieces with the help of a clean and
dry knife. He stated that he does not remember as to in what container the sample
commodity was put for weighing the same. He stated that however the container
wherein the sample commodity was put for the purpose of weighing was clean and
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dry. He stated that the sample bottles were not made clean and dry at the spot. He
denied the suggestion that some yellow colour was sticking in the said container or in
the sample bottles when they were used in sample bottles. He stated that as per the
report of the PA three words have been mentioned i.e. (1) unpermitted (2) synthetic
and (3) colour and in the instant case the colour is there that too is synthetic. He stated
that the synthetic colour is injurious to health which is also mentioned by the PA as un
permitted. He denied the suggestion that he was not present at the spot at the time of
sample proceedings.
12. PW2 Food Inspector S.P. Singh deposed on the same lines as deposed
by PW1. In addition he deposed that he sent a letter Ex. PW2/A to STO ward no. 84
and as per reply at portion A no such firm was found registered with the Sales Tax.
He deposed that during investigation accused was found to be the vendorcum
proprietor of M/s New Haryana Dairy.
13. In his cross examination he stated that there was only one tray of
Soyabean chap but he does not remember what was the metal of the tray. He stated
that there was about 45 Kg of Soyabean chap in the tray. He stated that there were
13 Soyabean chap. He denied the suggestion that Soyabean chap was not of same
lot. He stated that Soyabean chap was mixed into another clean and dry tray. He
stated that soyabean chap was put into another tray after weighing in a clean and dry
steel container. He denied the suggestion that steel container was having colour. He
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stated that knife was provided by the vendor. He stated that soyabean chap after
mixing was put into the sample bottles with the help of clean and dry spoon which was
provided by the vendor. He stated that spoon was already clean and dry as such
same was not made against clean and dry at the spot. He denied the suggestion that
some material was sticking with the spoon. He stated that the bottles were already dry
and clean and the same were not made again dry and clean at the spot. He stated
that he does not remember the date when the bottles were issued to him by the
department. He denied the suggestion that there was some colouring material in the
bottles. He denied the suggestion that sample failed due to bad sampling. He stated
that 6/7 public persons were present at the spot but he cannot tell their names and
addresses. He admitted that he had not mentioned this fact on the documents Ex.
PW1A to C except Report under rule 9 (e) that he tried to associate the public
witnesses but they refused. He denied the suggestion that Report under Rule 9(e) was
prepared later on.
14. PW3 Jagdish, Field Assistant has deposed on the same lines as
deposed by PW1 and PW2 in their examination in chief.
15. This so far is the prosecution evidence in the matter.
16. 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
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recorded in the matter and perused the documents placed on record by the
prosecution in this case.
17. After hearing the rival contentions raised at bar as well as on careful
scrutiny of the material on record, I am of the considered opinion that the prosecution
has successfully brought home the guilt against the accused.
18. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector S.P. Singh coupled with the report of the Director,
CFL dated 14.12.2005 that accused Ashish Mittal was indeed found selling Soyabean
Chap which was adulterated on account of it contravening Rule 28 of the PFA Rules
1955 as it contained non permitted synthetic colour "Orange II".
19. The star / the material witness of the prosecution i.e. Food Inspector S.P.
Singh categorically proved that on 22.08.2005 he along with Field Assistant Jagdish
and SDM / LHA V.P. Singh visited at M/s New Haryana Dairy, Shop no. 29/10, New
Govind Pura, Rashid Market Chowk, Delhi51, where accused Ashish Mittal who was
the vendorcumproprietor was found present conducting the business of dairy
including Soyabean Chap, for sale for human consumption and in compliance of the
provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of
Food Adulteration Rules, 1955 (hereinafter referred to as the Act & Rules) he collected
/ purchased the sample of Soyabean Chap. He proved the sample proceedings vide
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Ex. PW 1/A to Ex. PW 1/C. He further proved the deposit of the sample with the
Public Analyst vide Ex. PW1/F and deposit of the counterparts of the sample with the
Local Health Authority vide Ex. PW 1/E. He further proved that the Soyabean Chap on
analysis was found adulterated as same was found not conforming to standards. The
Sanction / Consent for prosecution was proved as Ex. PW 1/H and the complaint was
proved as Ex. PW 1/J.
20. The deposition of the Food Inspector was duly corroborated by the
remaining prosecution witnesses i.e. Sh. V.P. Singh, the then SDM/LHA (PW1) and
Sh. Jagdish Field Assistant (PW3).
21. Furthermore the fact that the sample was collected by the Food Inspector
on 22.08.2005 and that the accused was the vendorcum proprietor of M/s New
Haryana Dairy was not disputed during the trial and was also admitted by the accused
during his examination under Section 313 Cr. P.C as recorded before the Ld.
Predecessor of this Court on 24.09.2012. From the answers given by the accused to
question no. 1 & 2 which are admissible in evidence against the accused in view of
sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas
Vs. Food Inspector, Kochi 2008 (1) FAC 1 (SC), Mohan Singh V. Prem Singh,
(SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal Pradesh,
(SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570,
State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad
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Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of
Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315
coupled with Ex. PW1D which is in his own handwriting no dispute/doubt remains that
the sample of Soyabean Chap was indeed collected by the Food Inspector for analysis
from M/s New Haryana Dairy of which accused Ashish Mittal was the vendorcum
proprietor.
22. The two counterparts of the sample so seized by the Food Inspector and
deposited with the Local Health Authority were produced in the court upon the
application of the accused and after the accused and the court was satisfied that the
seals were intact and the sample counterparts were not temperated with, one
counterpart as per the choice of the accused was sent to Director, CFL vide orders
dated 11.11.2005 and the Director vide its report / certificate dated 14.12.2005 opined
as "sample bearing No. 22/LHA/11992 contravenes rule 28 of PFA Rules 1955. The
director so opined as Orange II is not one of the permitted colours appearing in Rule
28 which could be mixed/added to the food article in question.
23. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various loopholes /
contradictions.
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Public witness
24. It was argued that no public witness was joined by the FI during the
alleged sample proceedings which is in violation of section 10 (7) and therefore the
accused is entitled to be acquitted on this ground alone. It was argued that the FI
despite the mandate of section 10 (7) did not deliberately join any public person i.e.
customers, neighbourers etc. in the sample proceedings. However I do not agree with
the contentions raised by the Ld. Defence counsel. The Hon'ble Apex Court in
decided on 26.02.1974 has
Shriram Labhaya Vs. MCD , categorically held that
testimony of the Food Inspector alone, if believed, is sufficient to convict the accused
and there is no requirement of independent corroboration by public persons unless the
testimony suffers from fatal inconsistencies. Similarly in Babu Lal Vs. State, AIR
1971, SC 1277 It has been held that there is no rule of law that a conviction can not be
based on the sole testimony of Food Inspector. Reliance may also be placed upon
Prem Ballabh Vs. State, AIR 1979, SC 56 , Madan Lal Sharma Vs. State of
Assam, 1999(2) FAC 180, MCD Vs. Banwari Lal 1972 FAC 655, MCD Vs. Pyare
Lal 1972 FAC 679 , Ram Gopal Aggarwal Vs. S.M. Mitra 1989(2) FAC 339,
Laxmidhar Saha Vs. State of Orissa 1989 (1) FAC 364, Food Inspector Vs.
Satnarian 2002 (5) SCC 373, Sukhbir Singh Vs. State 2002 (2) JCC 9 and State
Vs. Narayanasamy 1997 (2) FAC 203.
State
25. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
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Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".
26. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held as
under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872.............................There is no
rule of law that the uncorroborated testimony of a single witness cannot be believed
and relied upon. The only rule applicable in the cases of single testimony is that of
prudence and care and caution and such rule requires that such cases must be
approached with the views as to whether the evidence of the witness, when read as a
whole, appears to be having a ring of truth in and around it. The maxim "Falsus in
Uno. Falsus in Omnibus" does not apply criminal trials as it is the duty of the Court to
separate the grain from chaff and to disengage the truth from falsehood. The easy
course of rejecting the evidence in its entirety on nonfoundational infirmities and
discrepancies cannot be adopted in the search of truth in the evidence. The real test
to be applied in the appreciation of evidence in a given case is as to how consistent
the story is with itself, how it stands the test of crossexamination and how far it fits in
with rest of the evidence and the circumstances of the case. The veracity of a witness
is to be judged not solely from his individual statement but from his testimony taken in
conjunction with all their facts brought in the course of his testimony.".
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27. It is writ large from the deposition of PW1, PW2 and PW3 that FI S.P.
Singh made sincere efforts to join the public persons in the sample proceedings but
none agreed. I have no reason to disbelieve them. It is very hard these days to get
association of public witnesses in criminal investigation/implementation of
administrative powers/enforcement of law seeking to curb anti social evils. Normally,
nobody from public is prepared to suffer any inconvenience for the sake of society. I
find no reasons why the Food Inspector or the SDM would falsely implicate the
accused or depose falsely against him. Moreover, once the accused admits
unambiguously that the Food Inspector had taken the sample the plea that no public
person was joined looses much of its significance as the sample proceedings/lifting of
sample is not disputed/is admitted.
Rule 14
28. It was one of the arguments that there was violation of Rule 14 of the
Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued
that at the time when the sample was collected, the Food Inspector failed to properly
mix the Soyabean Chap and accordingly representative sample was not taken by the
Food Inspector. It was also argued that the colour was already sticking to the sample
bottles brought by the FI and therefore the accused cannot be held liable. It was
argued that Rule 14 of the Act is mandatory and not directory and in case there is no
strict adherence to Rule 14, benefit has to be given to the accused. Reliance was
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placed on the law laid down in Sardarmal Jain Vs. Nagar Nigam & Anr 1996 (2)
203, Vasantry Jai Kham Khati Vs. State of Gujarat 2004 FAJ 148, State of
Gujarat Vs. Kamlesh Bhai Ram Bhai 2005 (1) FAC 107 and State Vs. Suresh
Kumar 2010 (2) FAC 204
29. However I differ with the contentions as raised by the Ld. defence
counsel.
30. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
available on record and the law cited by the Ld. defence counsel, I am of the opinion
that there was no violation of Rule 14 in this case.
31. I have perused the deposition of the Food Inspector PW2. The Food
Inspector deposed as under:
" The sample was taken after cutting the soyabean chap into smallest pieces in a
clean and dry tray with the help of a clean and dry knife and mixed the same properly
with the help of same knife. Then and there I divided the sample equally in three
clean and dry glass bottles.
32. During his cross examination he stated as under:
"It is wrong to suggest that soyabean chap was not of same lot. Soyabean chap was
mixed into another clean and dry tray. It is wrong to suggest that steel container was
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having colour.............It is wrong to suggest that some material was sticking to the
spoon. Bottles were already dry and clean and same were not made again dry and
clean at the spot. It is wrong to suggest that there was some colouring material in the
bottles"
33. PW1 the then SDM V.P. Singh deposed as under:
"The sample was taken after cut into small piece 13 soyabean chap in each of the
sample bottle with the help of clean and dry knife and properly mixed with the help of
clean and dry same knife in the same tray...........The FI S.P.Singh then and there
divided the sample equally in three parts vide putting them in three clean and dry
bottles."
34. During his cross examination he stated as under:
"However the container wherein the sample commodity was put for the purpose of
weighing was clean and dry.........It is wrong to suggest that some yellow colour was
sticking in the said container or in the sample bottles........"
35. PW3 Field Assistant Jagdish Prasad deposed as under:
"Before taking the sample, the Soyabean Chaps were cut into smallest possible
pieces with the help of a clean and dry knife and were mixed properly.......The so
purchased quantity of sample commodity was divided then and there by the FI into
three equal parts by putting it three clean and dry sample bottles."
36. During his cross examination he stated as under:
"It is wrong to suggest that some yellow colour was sticking with the polythene packet
when it was used in sample proceedings.......It is wrong to suggest that sample bottles
were contaminated with colour when they were used in sample proceedings."
37. Hence all material prosecution witnesses consistently deposed regarding
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the proper mixing of the Soyabean Chap and cutting it into smallest pieces with the
help of a clean knife before the sample was taken by the Food Inspector.
Furthermore, the knife as well as the sample bottles as categorically deposed by all
the prosecution witnesses were clean and dry. I have no reasons to disbelieve them.
Nothing on record has been proved to the contrary i.e. the defence has not proved that
the Food Inspector did not comply with the provisions of the Rule 14. Just because
the defence is challenging the sampling process conducted by the Food Inspector /
asserting that Rule 14 was violated is not sufficient to either disbelieve or throw away /
outrightly reject the testimony of the Food Inspector. I find no reasons why the Food
Inspector would depose falsely or falsely implicate the accused, there being no
previous enmity against him. I have also gone through Section 114 (e) of the Indian
Evidence Act.
38. 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"
39. 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
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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)".
40. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a partly alleging
it may prove it. It was observed that, "The Local (Health) Authority is a public official.
The act of the Local (Health) Authority in despatching a copy of its report of analysis of
a food article with necessary intimation or information is an official act. When the act
has been shown to have been performed, it is open to the court in its discretion to
draw the presumption that the act has been performed regularly. If there is acceptable
evidence to show that the Local (Health Authority) has forwarded the document, by
virtue of illustration (e) to section 114, the court may presume that it was forwarded
regularly, i.e. as required in section 13(2) of the Prevention of Food Adulteration Act,
1954 and Rule 9A of the Rules.".
41. In the face of clear statement of the Food Inspector that he has taken the
proceedings of taking sample and sealing according to Rules, a presumption can be
drawn that the sample proceedings were duly conducted [Nagar Parishad Alwar Vs.
Ganga Lahiri, 1982 Cri LJ 2325, State of Assam Vs. Purammal Agarwalla, 1985
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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
.].
42. 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.
43. 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.".
44. 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."
45. 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
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P.A. Anil Vs. Food Inspector 2009 (2) FAC 43.
Homogenization / Mixing of Sample.
46. Hence I am of the firm opinion that sample of the soyabean chap was
taken after it was properly mixed and homogenized by the Food Inspector with the
help of a knife. Moreover, there was no requirement of mixing or making the sample
i.e. the Soyabean Chap 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
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
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required to be made homogeneous." .
47. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Hon.
Apex Court observed as under:
"If the food sold to the food inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
the entire stock in possession of the person".
48. Sale to Food Inspector is a sale within the definition of section 2 of the
Act and if the article so sold is found to be adulterated then offence under the PFA Act,
1954 is made out. The food Inspector, Calicut Corporation vs. C. Gopalan &
another, 1972 FAC 9, The State of Tamilnadu vs. R. Krishnamurthy, 1980 (1) FAC
7, Mohammad Yamin Vs. The State of Uttar Pradesh, 1972 FAC 375 and Ram
Labhaya Vs. Municipal Corporation of Delhi 1974 FAC 102.
49. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982
(2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause
(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under
the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R.
Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar
Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).
If an article of food sold to a Food Inspector is proved to be adulterated, it is
immaterial whether the sample purchased by him is a representative sample or not of
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the entire stock. "A person who stores or sells such sample is liable to be punished
under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad
(supra).
50. It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector
is representative sample does not arise for consideration at all. How a sample would
be representative must necessarily depend on the nature of the goods sold and the
usual mode of supply to the customer when he comes to purchase. If there is
normally a practice of stirring and mixing when the food stuff concerned is sold to
customers from time to time representative sample would be that which is taken after
such stirring and mixing. If on the other hand the usual mode of sale is to take portions
by portions without any such stirring or mixing there can be no complaint that the
sample sold is not a representative sample. Ice cream is a commodity which is not
expected to lose its shape and form when the sale is effected. Ice cream when
liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream
then. It is too unreasonable therefore to expect that a representative sample of Ice
cream could be taken by the Food Inspector only by stirring the entire mass of ice
cream available for sale and taking the sample thereafter. Hence there is no
justification to apply any rule of representative sampling.
51. 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
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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."
52. 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.
53. 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."
54. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by
Hon. High Court of Delhi as under:
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"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."
Discrepancies
55. It was argued by Ld. Defence counsel that there are major discrepancies in the
deposition of the SDM/LHA and the Food Inspector and the Field Assistant qua the
sample proceedings. It was argued that the SDM/LHA PW1 claimed that the weight of
soyabean chat might have been 34 Kg and that of tray 56 Kg. On the other hand the
Food Inspector claimed that about 45 Kg of Soyabean chap was lying the tray.
Similarly the Field Assistant claimed that the Soyabean chap were weighed by putting
it in a white polythene packet with the help of hands by FI by picking up the sticks and
that the polythene was provided by the vendor. On the other hand SDM/LHA claimed
that he does not remember who had cut the pieces of chap and whether they were put
in the bottles with the hand or spoon or other instrument. FI on the other hand claimed
that the soyabean chap after mixing was put in the sample bottles with the help of
spoon. The Ld. Defence counsel argued that these discrepancies themselves prove
that the sample proceedings were bad and there was violation of Rule 14.
56. No doubt the Ld. Defence counsel pointed out the above discrepancies in
the deposition of PW1, PW2 and PW3 however the discrepancies as pointed out by
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Ld. Defence counsel are too trivial in nature to be given any weightage. The
discrepancies as above were natural and bound to occur on account of passage of
time and lapse of memory. Human memories are apt to blur with passage of time. The
sample was lifted in the year 2005 and the cross examination of the witnesses was
conducted in the year 2007, 2010 and 2011 i.e. after a gap of around 26 years. After
such a long time period a person cannot be expected to give a parrot like version or
depose with mathematical precision. Only a tutored witness can depose so. Error due
to lapse of time/lapse of memory have to be given due weightage/ due allowance.
57. By and large a witness cannot be expected to possess a photographic
memory and to recall the details of an incident. It is not as if a video tape is replayed
on the mental screen. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic to expect a witness to be a human
tape recorder. Ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when interrogated later on. A witness,
though wholly truthful, is liable to be overawed by the court atmosphere and the
piercing cross examination made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from imagination on the spur
of the moment. The subconscious mind of the witness sometimes so operates on
account of the fear of looking foolish or being disbelieved though the witness is giving
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a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort
of a psychological defence mechanism activated on the spur of the moment. Reliance
may be placed upon the observations made by the Hon'ble Apex Court in case titled
as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir
Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of
Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada
Bhoginbhai Hirjibhai v.
State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972
SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
58. The law is well settled that discrepancies which do not go to the root of
the matter and shake the basic version of the witnesses cannot be annexed with un
due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable
evidence. One cannot come across a witness whose evidence does not contain some
exaggeration or embellishments. Sometimes there could be even be a deliberate at
tempt to offer embellishment and sometime in their overanxiety they may give slightly
exaggerated account. Court can sift the chaff from corn and find out truth from the tes
timony of witnesses. Evidence is to be considered from the point of trustworthiness. If
this element is satisfied they ought to inspire confidence in mind of the court.
59. Moreover, officials like Food Inspector and the SDM are collecting sam
ples/witnessing sample proceedings almost daily and sometimes more than one sam
ple is collected in a day. During their stint as Food Inspector and SDM/LHA they col
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DA Vs. Ashish Mittal Page 27 of 51
lect/witness hundreds of sample proceedings and accordingly the facts being mixed up
due to passage of time. Same has to be given due allowance. Moreover during their
examination in chief the witnesses duly corroborated each other as there was no dis
crepancy/contradiction.
60. Despite the discrepancies which otherwise also are too trivial it was con
sistently deposed by prosecution witnesses that the instrument with which the sample
was taken i.e. the spoon and the knife used for cutting soyabean chap into small
pieces as well as sample bottles were clean and dry and no colour was sticking with
them.
Delay
61. It was also one of the arguments of the Ld. defence counsel that there
was an inordinate delay in the testing / analysis of the sample by the Director, CFL
because though the sample was collected/lifted on 22.08.2005 it was analyzed by the
Director, CFL after a gap of almost 4 months. It was argued that this delay occurred
because of the lapses on the part of the prosecution as the complaint was filed in the
court only on 26.10.2005 i.e. after more than 2 months. It was argued that if the report
of the Director, CFL is only to be seen / relied upon as per the mandate of Section
13(3) of the PFA Act then no reliance can be placed upon the same because after a
lapse of 4 months the sample of Soyabean Chap so collected by the Food Inspector
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would/must have been rendered unfit for analysis thereby causing grave prejudice to
the accused. Reliance was placed upon the law laid down in State vs. Raj Kumar
2012 (2) FAC 351 and Gian Chand Vs. State 1978 (1) FAC 15.
62. However, I differ with the Ld. defence counsel. No doubt the sample was
collected on 22.08.2005 and the same was analyzed / tested by Director, CFL after
almost 4 months, however, the fact remains that when the sample was sent for
analysis the Director, CFL categorically opined that "the sample was in condition fit for
analysis". Moreover, the Food Inspector and the other prosecution witnesses have
categorically stated that at the time of sampling, the necessary preservative i.e. 40
drops of Formalin were added in each of the sample bottles. Therefore, when
Formalin was added and there is a categorical finding / opinion of the Director, CFL
that the sample was fit for analysis, I have no reasons to presume or agree with the
contention of the Ld. defence counsel that the sample when analyzed would have
been rendered unfit for analysis on account of the delay.
63. In T.V. Usman Vs. Food Inspector, Tellicherry Municipality,
Tellicherry AIR 1994 AIR SC 1818, the Hon'ble Apex Court observed as under:
"No doubt, subsec (2) of S. 13 of the Act confers valuable right on the accused under
which provision the accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get the samples of food
analysed in the Central Food Laboratory and in case the sample is found by the said
Central Food Laboratory unfit for analysis due to decomposition by passage of time or
for any other reason attributable to the lapses on the side of prosecution, that valuable
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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
.
64. The "delay in sending the article to Director, CFL for analysis" on account of delay in filing of the complaint, the issue of 'shelf life of the sample product', the issue of 'best before and expiry period' has been elaborately dealt with in M/s Hyderabad Beverages Pvt. Ltd. Etc. Vs. State of A.P. 2007 (1) FAC 110.
In para 63 of the judgment it was observed as under:
"Best before means that in all weathers it is to be used before six months. It is only recommendatory but not mandatory. Therefore, it cannot be said that the shelf life of the said beverage expires after the date of best before. Shelf life means the time for which a stored thing remains usable...........
.............The Public Analyst in all the cases after analyzing the sample bottle opined that the samples are adulterated, as they do not conform to the norms prescribed to the standards of quality. Therefore, I am of the opinion that it is for the accused to question the said reports or lead evidence before the Court below as to how prejudice has been caused to them either because of the delay in launching the prosecution or for any other reasons.....".
It was further observed in para 66 as under:
"Whether the sample remains fit for analysis or has become unfit can only be ascertained when it is, in fact, sent for analysis to Central Food Laboratory and it is certified as to whether the sample is fit or unfit for analysis. Rule 4(5) of the CC No. 242/05 DA Vs. Ashish Mittal Page 30 of 51 Prevention of Food Adulteration Rules, read with Form II of Appendix A thereof, requires the Central Food Laboratory to certify, in its report, as to whether the sample of the food sent for analysis is fit or unfit for analysis and the reasons therefor. Whether a sample has, on expiry of its "Best Before" date or its shelf life, become unfit for analysis on account of its being decomposed is a matter of evidence and not a matter of inference........."
It was further observed in para 67 as under:
"In Ajit Prasad Ramkishan Singh 1972 FAC 545, the Supreme Court held thus: ......... "...........The Learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed."
It was further observed in para 68 as under:
"In Charanji Lal Vs. State of Punjab 1983 (2) FAC 186 , the Supreme Court held "Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis.... (Emphasis supplied)".
It was further observed in para 71 as under:
"An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food Laboratory and not for this Court, in proceedings under Section 482, Cr. P.C. to presume that every case of delay in furnishing a copy of the Public Analyst's report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused."
It was further observed in para 72 as under:
"As held by the Apex Court in Ajit Prasad Ramkishan Singh 1972 FAC 545, Sukhmal Gupta, Charanji Lal 1983 (2) FAC 186 and T.V. Usman and this Court in G.S. Prasad 2002 (1) FAC 110 and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor CC No. 242/05 DA Vs. Ashish Mittal Page 31 of 51 are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.".
It was further observed in para 73 as under:
"As held in T.V. Usman (1994 (1) FAC 1), there is no time limit prescribed for launching prosecution....................................................................................All these statutory provisions were held in Tulsiram 1984(2) FAC 146, Dalchand Vs. Municipal Corporation, Bhopal 1982 (2) FAC 29: AIR 1983 SC 303, State of Kerala vs. Alassery Mohammed, 1978 (1) FAC 145 : 1978 (2) SCC 386 and T.V. Usman 1994 (1) FAC 1: AIR 1974 SC 1818, to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timelimit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without anything more, is fatal to the prosecution."
It was further observed in para 74 as under:
"On what basis can Courts presume that expiry of the "best before" date of expiry of the shelflife of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis?"
It was further observed in para 75 as under:
"Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused."
It was further observed in para 76 as under:
"In Dalchand 1982 (2) FAC 29 , the Supreme Court held thus: ".....It is well to remember that quite often many rules, though couched in language which appears to CC No. 242/05 DA Vs. Ashish Mittal Page 32 of 51 be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute........."
The court concluded / summed up its observation / findings in para 103 as under:
"5. "Best Before date", under Rule 32 of the PFA Rules, merely requires the manufacturer to indicate the period during which the product would remain fully marketable and retain its specific qualities. Explanation VIII (i) thereunder provides that beyond the "Best Before date", the food may still be perfectly satisfactory.
6. Expiry of the "Best Before" date or the shelf lift of the product would only enable a manufacturer to disclaim liability regarding marketability and the specific qualities of the product. Expiry of the shelf life would not automatically render the sample unfit for analysis.
10. Whether the sample is fit for analysis or has decomposed to such an extent as to render it incapable of analysis are all matters to be examined by the Central Food Laboratory.
11. It is only if the Central Laboratory certifies that the sample is unfit for analysis and this has resulted due to the delay on the part of the prosecution to furnish a copy of the report of the public analyst to the accused, can the accused be said to have suffered prejudice. (Ajit Prasad Ramakishan Singh 1972 FAC 545: (1972 Cri LJ 1026), Sukhmal Gupta, Charanji Lal 1984 Cri LJ 15, T.V. Usman 1994 (1) FAC 1 :
(AIR 1994 SC 1818), G.S. Prasad (2003 Cri LJ NOC 231) and Gangaiahnaidu Ramakrishna).
12. If the sample has not been sent for analysis to the Central Laboratory and the Central Laboratory has not certified that the sample has decomposed, rendering it unfit for analysis, mere delay in furnishing the report of the public analyst to the CC No. 242/05 DA Vs. Ashish Mittal Page 33 of 51 accused cannot, by itself, be said to have caused prejudice to the accused."
65. In Nestle India Ltd. Vs. A.K. Chand, Food Inspector, Kalahandi, 1996 (1) FAC 307, it was observed in para 7 as under:
"Section 13(2) of the Act confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory. It is the choice of the accused either to accept the Public Analyst's report or to get the sample analysed by the Central Food Laboratory. Under Section 13(3) of the Act, the certificate issued by the Central Food Laboratory supersedes the report given by the Public Analyst. In case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition, due to passage of time or any other reason attributable to the conduct of the prosecution, the valuable right as referred to above would stand denied. That would constitute in itself sufficient prejudice to the accusedso as to entitle him to acquittal. The Apex Court held so in Municipal Corporation of Delhi V. Ghisa Ram, 1975 (1) FAC 186. Delay in such cases plainly comes to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis inspite of the delay, the accused is certainly not prejudice notwithstanding such delay. Food adulteration is one of the most heinous crimes. It affects public health and no stones should be left untouched to prevent escape of any member of the adulterator tribe from the net of law.
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.".
66. In Kan Singh Purohit Vs. State of Rajasthan 1978 (2) FAC 151, it was held as under:
"There is no material on the record to show that the sample of milk taken from the CC No. 242/05 DA Vs. Ashish Mittal Page 34 of 51 petitioner, to which formalin was duly added, was either decomposed or was in such a condition that it could not be analysed."
67. In Municipal Council Jaipur Vs. Bhuramal 1978(2) FAC 225, it was held in para 5 as under:
"It has now well settled by the decisions of the Supreme Court in Babu Lal Vs. State of Gujarat 1972 FAC 18 .............. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture.".
68. Reliance may also be placed upon 2008 (1) FAC 17, 2007 (1) FAC 319 and 2007 (1) FAC 59 titled as M/s Handi Instant Foods, Chennai Vs. State of A.P. It was observed in para 12 as under:
" 12. In Gangaiahnaidu Rama Krishnan and others vs. State of A.P., 2005(2) FAC 249 .........held that it is for the accused to establish as to how the prejudice has been caused to him either because of delay in launching the prosecution or for any other reason."
69. In Tillo Ram Vs. State 1975 (2) FAC 36, it was held by the Hon'ble High Court of Delhi as under:
"Delay in the test by the Public Analyst is the next point pressed. Here again, except for the bald assertion at the bar, it is not shown how this delay has prejudicially affected the trial. There is no evidence and not even a suggestion that the oil in question could, in the ordinary course, have deteriorated in quality during the few days that elapsed between the taking of the sample and its examination by the Public Analyst.".CC No. 242/05 DA Vs. Ashish Mittal Page 35 of 51
70. In the judgment delivered by the Division Bench of Hon'ble Gujarat High Court in Mohanlal Chhaganlal Mithaiwala Vs. Gipanchandar R. Gandhi & Anr, was observed as under:
"The certificate of the Director Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test: Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food..............., or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."
71. In Shambhu Dayal Vs. State of U.P., decided on 21.11.1978 the Hon'ble of Apex Court while dealing with the case of adulteration in milk, observed as under:
"In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned in this case it is admitted that formalin was added to the milk by the Food Inspector...................... The CC No. 242/05 DA Vs. Ashish Mittal Page 36 of 51 High Court of Allahabd in Babboo Vs. State AIR 1970 All. 122 held that in the case of cow's milk to which the necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstances, it retains its character and is capable of being usefully analysed for a period of about ten months. It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with analysis."
72. In Municipal Corporation of Delhi Vs. Zahiruddin, 1972 FAC 134, the Division Bench of the Hon'ble High Court of Delhi held "the question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate. If the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence it was his duty to have led evidence as to the matter in which the sample had been kept during the period it was sent to the Director".
73. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was observed as under:
"No hard and fast rule can be laid down that after the expiry of a certain period, a certain food stuff, even after the addition of formalin or other preservatives, becomes decomposed and unfit for analysis. It is not proper for a court to presume or conclude, unless there are relevant materials on record, that some change might have occurred to the sample due to long delay in sending a sample for analysis or the delay in the analysis. In the present case, the delay was in sending the sample to the Central Food Laboratory for analysis. Requisite preservatives are added to the samples for preserving their constituents. Delay in sending a sample for analysis or the delay in the analysis is not per se a ground for doubting the correctness of the CC No. 242/05 DA Vs. Ashish Mittal Page 37 of 51 result of analysis. But where there has been delay, laches or negligence on the part of the prosecution in launching the prosecution and by reason of that delay the sample get deteriorated and decomposed to such an extent as to have become incapable of analysis, the accused must be deemed to have been seriously prejudiced and deprived of a valuable right conferred on him under section 13 of the Act. On the other hand, if there was no such delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under section 13 of the Act."
74. In state of Haryana Vs. Amar Nath 1983 (1) FAC, 235 the Hon. Division Bench of Punjab and Haryana High Court held as under:
"If the person from whom the sample has been taken, has been prevented from applying to the Court within the prescribed period of 10 days for sending the second sample for analysis, by some default on the part of the Local (Health) Authority or by the conduct of the prosecution then it does not mean that he cannot later on apply for exercising his right of having the sample analysed by the Director of Central Food Laboratory. If the report is received from the Director that on account of lapse of time the sample has deteriorated or was not fit for analysis only then the accused can be heard to say that he has been prejudiced. Of course, we agree that the samples of some food articles like milk, curd etc. are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act because in that case his right would be an illusory one but every case will depend on its own facts. Every infraction of section 13 (2) of the Act would not automatically cause prejudice to the accused and he would not become entitled to acquittal on that ground alone. He has to show that prejudice has been caused to him.
75. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the CC No. 242/05 DA Vs. Ashish Mittal Page 38 of 51 sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
76. he hon. High Court of Delhi In Krishan Lal v. MCD 1984 (2) FAC 89 t after discussing in detail the Hon. Apex Court judgment in Ajit Prasad, Sukhmal Gupta and Ghisa Ram as well as the Full Bench Judgment of the Hon. High Court of Delhi in Bishan Swaroop and the Division Bench in Nand Lal's case observed at para 14 as under:
"From the aforesaid authorities what emerges out to be the legal position on this matter is that the defence can prove the deterioration or decomposition of the sample either by making an application for sending the same to the Director of Central Food Laboratory who can report about the same, or by proving otherwise by some satisfactory material that the sample had deteriorated or could otherwise deteriorate in normal course before he could exercise his right of sending the same to the Director of Central Food Laboratory for analysis in which case it would be unnecessary to send the sample to the Director.
77. In the case at hand it is apparent from the report of Director, CFL that the sample when sent for analysis / at the time of its examination was fit for analysis / examination. It being not unfit for examination / analysis no prejudice can be CC No. 242/05 DA Vs. Ashish Mittal Page 39 of 51 presumed to have been caused to the accused merely on account of delay. Thus, it is only in cases where prejudice is caused to the accused on account of delay in institution of the prosecution that is to say the sample is decomposed / deteriorated or is rendered unfit for analysis by the Director, CFL then the benefit has to be given to the accused (Reliance may be placed upon The Apex Court's Judgment in Girish Bhai Dahya Bhai Vs. C.C. Jani 2009 (2) FAC 195). But in other cases the accused is not entitled to any such benefit. To avail the benefit the accused is bound to prove on record that the sample was not a representative. If the accused person wants to show certain infirmities in the process of chemical examination performed by the Director, then he has to make an application to the trial Court to have the Director summoned as a witness. This procedure was not adopted by the accused / vendor and he has not brought any material on the record to show why the report submitted by the Director should not be relied upon.
78. If the accused wants to prove that the report of the Director, CFL was incorrect i.e. the sample was unfit at the time of its analysis/ decomposed/ deteriorated or that his report or the method used by him for analysis were faulty nothing stopped him from calling the Director for cross examination. Once he does not exercise the right he cannot complain. In Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206, it was held as under:
"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of crossexamination CC No. 242/05 DA Vs. Ashish Mittal Page 40 of 51 to enable the defence to prove that the contents of CFSL report are in any manner incorrect."
79. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free. 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".
80. The very fact that the Director, CFL opined the sample fit for analysis is sufficient safeguard for the court to convict the person upon the report of the Director, CFL. The Director's report that the sample was fit for analysis is a fact and there can not be any contrary presumption against the same. How can there be a presumption ( that a sample must have got decomposed, deteriorated or unfit for analysis on account of delay ) contrary to a fact in existence (Director's Certificate CC No. 242/05 DA Vs. Ashish Mittal Page 41 of 51 that the sample remained fit for analysis). The fact can only be disapproved or rebutted by way of positive concrete evidence. Otherwise any such presumption is contrary to the statute. The party who alleges that the sample was not fit for analysis has to prove that the sample was unfit by way of positive evidence and not by merely agitating that the sample was unfit or would have been unfit without even prima facie or basic proof of the same will not be sufficient to disbelief either the Director or his report. Unless the fact i.e. "sample was fit for analysis" is rebutted there can not be any presumption that it would have been unfit on account of the delay. Holding such / presuming such is not on the contrary to the law as well as the principle of jurisprudence.
Use of colour.
ORANGE II whether a permitted colour?
81. It was further argued by the Ld. defence counsel that as per the report of the Director the sample commodity was found containing synthetic colour Orange II. Ld. counsel vehemently argued that being the case Orange II is a permitted colour as per Rule 28 r/w article A.26.02. It was argued that Rule 28 provides/lists the synthetic colours which can used in food/food articles and one of the permitted colour is Sunset Yellow FCF. It was argued that Article A.26.02 makes it amply clear that Orange 2 is one of the synonyms for Sunset Yellow and accordingly there was no violation of Rule
28. Reliance was placed upon Subhash Vs. State of Haryana 2009 (2) FAC 546 and Prem Chandra Vs. State of UP 1983 (1) FAC 183.
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82. However, I do not agree with the contentions of the Ld. Defence counsel. As per rule 28 and Article A.26.02 one of the synonyms of 'Sunset Yellow' is 'Orange 2'. The colour which was detected by the Director was 'Orange II'. 'Orange 2' and 'Orange II' are two different colours. Ld. SPP during the course of arguments placed on record certain material from the text books as well as generated from internet to prove that both colours are totally different. As per the material placed on record the Ld. SPP pointed out as under:
(a) The CAS numbers of 'Orange 2' and 'Orange II' are totally different. CAS number of 'Orange 2' being a synonyms of Sunset Yellow FCF is 2783940 whereas the CAS number of 'Orange II' is 633965. CAS Registry Numbers also referred to as CAS RNs and CAS Numbers, are unique numerical identifiers assigned by the Chemical Abstracts Service to every chemical substance described in the open scientific literature (currently including those described from at least 1957 through the present), including organic and inorganic compounds, minerals, isotopes, alloys and nonstructurable materials (UVCBs, of unknown, variable composition, or biological origin).
(b) Similarly the Colour Index Number i.e. CI Number of Orange II and Orange 2 are totally different. The CI number of 'Orange 2' is 15985 and that of 'Oragne II' is 15510.
(c) Both have different melting point, that of Orange 2 being 300C and Orange II being 164C.CC No. 242/05 DA Vs. Ashish Mittal Page 43 of 51
(d) Both have different classification. The classification of Orange 2 is that is a colouring agent, food additive food colouring agent and Orange II being Acid Dye, stain.
(e) The Chemical formula/ composition is totally different.
(f) The molecular formula of both the colours are totally different.
83. I agree with the contentions of Ld. SPP for the complainant. Moreover the defence has failed to negate/nullify the submissions of Ld. SPP. Furthermore if both the colours had the same chemical composition and were synonyms of Sunset Yellow or permitted in Rule 28 then in my opinion the legislature would have mentioned in A.26.02 that 'Orange II' is also one of the synonyms of Sunset Yellow. The very fact that the creators of the legislation/statute did not mention 'Orange II' in A.26.02 but only mentioned 'Orange 2' necessary implies that 'Orange II' is not one of the permitted colours. That is why the Director CFL also opined that there was violation of Rule 28. As already discussed above the defence did not either examine any expert to contradict the Director's report/stand nor they called the Director to the witness box to cross examine him and therefore there is nothing on record to doubt the report of the Director.
84. Moreover I am of the firm opinion that Soyabean Chap is not a food article as per Rule 29 in which synthetic colours permitted under Rule 28 could be added. Ld. Defence counsel tried to bring in his case under Rule 29 (b) by claiming CC No. 242/05 DA Vs. Ashish Mittal Page 44 of 51 that Soyabean Chap falls under the head "Savouries" and hence colours as listed in Rule 28 could be added to the same. I find no merit at all in the above contentions of the Ld. Defence counsel. Rule 29 (b) reads as under:
"Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dal moth, mongia, phululab, sago, papad, dal biji only)
85. It is writ large from the above that food articles falling under the category of savouries have been limited by use of word "only" as appearing in the end of above rule. Once the Legislature in his wisdom has used the word "only" it necessarily implies that apart from the savouries i.e. Dal moth, Mongia, Phululab, Sago papad, Dal biji no other food articles falls under the category of "savouries". The fact that Soyabean Chap does not find mention in Rule 29 (b) as above I am of the firm opinion that no colour could be added to the same.
Injurious to health
86. It was also argued that there is nothing on record to show that mere addition of colour Orange II would make the soyabean chap injurious to health. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60. CC No. 242/05 DA Vs. Ashish Mittal Page 45 of 51
87. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:
"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that CC No. 242/05 DA Vs. Ashish Mittal Page 46 of 51 prescription, it will clearly involve violation of clause (j) of Section 2(i) ".
88. 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.".
89. 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.".
90. 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.
CC No. 242/05 DA Vs. Ashish Mittal Page 47 of 51
91. 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.
92. In Jai Narain Vs. MCD, Crl. Appeal No. 172 of 1969 decided on 23.08.1972 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 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.".
93. As already discussed above not only Orange II is not a permitted colour as per Rule 28 that it is not one of the colours which could be added to the food articles as mentioned in Rule 29 but otherwise also Soyabean chap is not a food article appearing in Rule 29 to which the colours as mentioned in Rule 28 could be added.
Paper Chromatography Test.
94. It was also argued that neither the PA nor the Director CFL specified in their reports as to the tests used for the analysis of the sample. 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. However I find no merit in the said contention of the Ld. defence counsel. Paper chromatography is one of the CC No. 242/05 DA Vs. Ashish Mittal Page 48 of 51 tests mentioned in DGHS Manual. In Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor though the test used for finding the colour in food article was 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 days 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.".".CC No. 242/05 DA Vs. Ashish Mittal Page 49 of 51
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."
Percentage of colour
95. Lastly, it was argued that in the report of the PA as well as the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 28 and 29 it becomes amply clear that Orange II could not be added to soyabean chap as it is not one of the permitted colours. Moreover as discussed above soyabean chap is not one of the savouries to which colours as mentioned in Rule 28 could be added. Therefore in either case mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the PA or the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, CC No. 242/05 DA Vs. Ashish Mittal Page 50 of 51 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.
96. In view of my above discussion, as the colour Orange II was found by the Director in the sample of Soyabean Chap so analysed, the accused stands convicted under Section 2 (ia) (j) & (m) of PFA Act 1954.
97. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao)
on 18th February, 2014 ACMMII/ New Delhi
CC No. 242/05
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