Da vs . Rajesh Batra Page 1 Of 50 on 24 February, 2014

[Cites 73, Cited by 0]

Delhi District Court

Da vs . Rajesh Batra Page 1 Of 50 on 24 February, 2014

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

C.C. No. 168/04

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. Rajesh Batra
S/o Sh. Ishwar Das Batra,
M/s Tandoori Nights,
153, Main Road Jheel, Delhi51.
R/o 520, Jheel Kurenja, Delhi
........ VendorcumProprietor

Serial number of the case : 168/04
Date of the commission of the offence : 26.05.2004
Date of filing of the complaint : 08/09/04
Name of the Complainant : Sh. Ranjeet Singh, Food Inspector
Offence complained of or proved : Section 2 (ia) (a) (j) & (m) of PFA
Act 1954, r/w Rule 23, 28 & 29
punishable U/s 16(1A) r/w section
7 of the PFA Act.

CC No. 168/04
DA Vs. Rajesh Batra Page 1 of 50
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 24/02/14
Judgment announced on : 24/02/14

Brief facts of the case

1. In brief the case of the prosecution is that on 26.05.2004 at about 03.30

p.m., Food Inspector Ranjeet Singh and Field Assistant Mitrapal under the supervision

and directions of SDM / LHA Sh. C.P. Sharma visited at M/s Tandoori Nights, 153,

Main Road, Jheel, Delhi, where accused Rajesh Batra who was the vendorcum

proprietor was found present conducting the business of various food articles in the

above restaurant including Dal Arhar (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 Dal Arhar.

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 Dal Arhar as per PFA rules 1955 as per tests performed

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

the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a)

(j) & (m) of PFA Act 1954 r/w Rule 23, 28 and 29 of PFA Rules, punishable U/s 16

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

CC No. 168/04
DA Vs. Rajesh Batra Page 2 of 50
3. After the complaint was filed, the accused was summoned vide orders

dated 08.09.2004. 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 30.09.2004. The Director, CFL after analysing the sample

opined vide its Certificate dated 01.11.2004 that "sample bearing No. 21/LHA/6225

does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955.

4. In pre charge evidence, the prosecution examined one witness i.e. the

Food Inspector Ranjeet Singh as PW1 and pre charge evidence was closed vide

order dated 02.02.2009.

5. Charge for violation of provision of Section 2 (ia) (a) (j) & (m) of PFA Act

1954 r/w Rule 23, 28 and 29 of the PFA Rules, punishable U/s 16 (1A) r/w section 7 of

the Act was framed against the accused vide order dated 11.05.2009 to which

accused pleaded not guilty and claimed trial.

6. Thereafter, in post charge evidence the prosecution examined three

witnesses including the Food Inspector Ranjeet Singh as PW1, the then SDM Sh. C.P.

Sharma as PW2 and Field Assistant Mitrapal as PW3 and PE was closed vide order

dated 27.04.2011.

CC No. 168/04
DA Vs. Rajesh Batra Page 3 of 50
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 28.07.2011

wherein the accused claimed himself to be innocent. Accused examined himself as

defence witness.

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

8. PW1 Food Inspector Ranjeet Singh deposed that on 26.05.2004 he

along with FA Mitrapal under the supervision and direction of SDM/LHA Sh. C.P.

Sharma with staff went to M/s Tandoori Nights, 153, Main Road, Jheel, Delhi where

accused Rajesh Batra was found conducting the business of food articles in that

restaurant including Dal Arhar (ready for use) meant for human consumption. He

deposed that he disclosed his identity and intention to take sample of said Dal Arhar to

which the accused agreed. He further deposed that before taking the sample he tried

his best to procure some public witnesses by requesting passerby customers and

neighboring shopkeepers to join the sample proceedings but as none agreed and on

his request FA Mitrapal joined the proceedings. He further deposed that at about

03.30 p.m. he purchased 1500 gms of Dal Arhar, ready for use which was taken from

an open aluminum container bearing no label declaration on payment of Rs. 45/ but

the vendor did not accept the same. He further deposed that the purchase sample was

mixed properly with the help of a big size steel spoon in all possible directions. He

deposed that he divided the sample into 3 equal parts by putting them in three clean

and dry glass bottles separately and each sample bottle was separately packed,

CC No. 168/04
DA Vs. Rajesh Batra Page 4 of 50
fastened, marked and sealed as per law. He further deposed that then the vendor's

signatures were obtained on LHA slips bearing LHA number and signature and the

wrapper of the sample bottles in such a manner that a portion of his signature were on

the wrapper as well as on the LHA Slip. He deposed that vendor's receipt Ex. PW1/A

was prepared and Rs. 45/ was offered to the vendor but he refused to accept the

same as per his endorsement at portion A. He further deposed that the Notice in Form

VI Ex. PW 1/B was given to the accused with his endorsement at portion A to A

bearing his signature at point A. He deposed that Panchnama vide Ex. PW 1/C was

prepared. He deposed that all the aforesaid documents Ex. PW1/A to Ex. PW1/C

were read over and explained to the accused in Hindi. He deposed that accused also

given copy of Form VI vide his signatures and endorsement at point A. He deposed

that accused put his signature on all the aforesaid three documents at point A and he

signed at point C and by witness at point B.

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

with the PA on 27.05.2004 vide receipt Ex. PW1/D in intact condition along with one

copy of memo in Form VI in a separately sealed cover. He deposed that two

counterparts of the sample were deposited in intact condition with the LHA on

27.05.2004 vide receipt Ex. PW1/E bearing his signature at point A and that of LHA at

point B with the intimation that one counterpart of the sample has already been

deposited with Public Analyst. He further deposed that Public Analyst's report Ex. PW

1/F was received according to which, the sample was found adulterated as mentioned

CC No. 168/04
DA Vs. Rajesh Batra Page 5 of 50
therein at portion X. He further deposed that during investigation, he sent a letter Ex.

PW1/G to vendor and a reply Ex. PW1/H was also received along with photocopy of

MCD license and Sale Tax registration copy. He deposed that he also sent a letter Ex.

PW1/I to STO Ward No. 79 and received its reply at portion A, the firm was registered

with Sales Tax and the vendor was sole proprietor of M/s Tandoori Nights, 153, Main

Road, Jheel, Delhi. He deposed that on the completion of investigation by him, the

complete file including all statutory documents were sent to the then Director PFA Sh.

V.K. Singh through LHA who after going through the case file, applied his mind and

gave consent vide Ex. PW1/J for prosecution of accused. He deposed that he filed

complaint Ex. PW1/K in the court. He deposed that intimation letter Ex. PW1/L

bearing the signature of LHA at point A was sent along with the PA report by

registered post to accused as mentioned therein which was not received back

undelivered by the accused. The photocopy of the postal registration receipt is Ex.

PW1/M bearing the relevant entry at point A.

10. During his cross examination he denied the suggestion that the quantity

was for personal use that is why the price was not accepted. He stated that the colour

of Dal was yellowish and tartrazine also appears yellowish colour. He stated that he is

B.Sc. in Chemistry. He stated that he cannot comment that a paper chromatography

test is prescribed by the DGHS in a book which is circulated to all the Public Analysts

and the Directors, CFL or that the Public Analysts follows that book. He stated that he

cannot comment that the paper chromatography test can only show the presence of

CC No. 168/04
DA Vs. Rajesh Batra Page 6 of 50
colour. He denied the suggestion that accused was compelled to make endorsement

on Ex. PW1/A on his dictation. He denied the suggestion that Dal was not for sale

even after cooking. He denied the suggestion that vendor informed that Dal was to be

consumed by his employee. He stated that no insects were visible with naked eyes

during sample proceeding. He stated that no damage insects grains of Dal Arhar were

observed with naked eyes at the time of sampling. He stated that he cannot say that

insects can damage the Dal Arhar if the sample is analyzed after a period of 16

months. He admitted that as per report of the PA, damage grains and uric acid is

waste of insects. He denied the suggestion that colour found in the sample commodity

was due to contamination in the instrument.

11. PW 2 C.P. Sharma, the then SDM/LHA and PW3 Mitrapal deposed on

the same lines as deposed by PW 1 in his examination in chief.

12. This so far is the prosecution evidence in the matter. The accused led the

defence evidence and examined himself as under:

13. DW1 Rajesh Batra deposed that the sample of Dal Arhar was taken from

his hotel. He deposed that the price of the sample commodity was not accepted as

the Dal in question was not for the purpose of selling the same as such. He deposed

that the writing as appearing on Ex. PW1/A at portion A to A was made by him as

dictated by FI. He deposed that the commodity in question had been brought by the

CC No. 168/04
DA Vs. Rajesh Batra Page 7 of 50
labourers working/employed there for their own use. He deposed that he made oral

complaints to the aforesaid effect to the SDM concerned as well as Deputy

Commissioner of the area however no written complaint had been lodged with any

authorities at any point of time. He again said that he had sent a written

representation to the aforesaid effect to the Deputy Commissioner concerned however

he was not having any copy thereof with him.

14. During his cross examination he admitted that the vegetarian food was

also being served to the customers besides the nonvegetarian food at the relevant

time. He stated that at that time there were approximately 15 employees at his shop.

He stated that Dal in question was brought by the worker Satish who was employed

for home delivery of the cooked food to the customers. He stated that Satish was

getting Rs. 3000/ salary per month. He stated that the no register was being

maintained by him so as to show how many workers were working at that time and

how much salary they were getting. He stated that no employment letters were issued

to the workers. He stated that no board was displayed by him to show that Dal in

question was not for sale to the customers but was for the personal use of

workers/employees. He stated that he did not call the PCR to inform them that the FI

was insisting him to make an endorsement on vendor receipt appearing at portion A to

A. He voluntarily stated that FI threatened him to seal his shop. He stated that he did

not inform the PCR that FI was further threatening him to seal his shop. He stated that

he did not make the above said endorsement. He stated that the PFA team went away

CC No. 168/04
DA Vs. Rajesh Batra Page 8 of 50
from his shop at about 05.00 p.m. He stated that he did not inform the concerned

police station that the FI had obtained the above mentioned endorsement from him

under threat. He stated that he does not have any receipt of the representation

submitted by him with PFA department. He stated that he had mentioned in that

representation about the above mentioned endorsement existing on vendor's receipt

forcibly obtained from him. He produced the copy of representation Ex. DW1/X1

addressed to the Public Analyst, Department of PFA, Lawrence Road, Delhi which

were sent to him by the Director PFA and SDM Gandhi Nagar through registered post.

He also produced postal registration receipt Ex. DW1/X2. in this regard. He deposed

that he did not file any compliant against the FI and this fact is mentioned in above

mentioned representation Ex. DW1/X1. He denied the suggestion that he was

deposing falsely.

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

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

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

prosecution in this case.

16. 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.

CC No. 168/04
DA Vs. Rajesh Batra Page 9 of 50
17. It stands unambiguously proved from the deposition of the prosecution

witnesses especially Food Inspector Ranjeet Singh coupled with the report of the

Director, CFL dated 01.11.2004 that accused Rajesh Batra was indeed found selling

Dal Arhar which was adulterated on account of it containing synthetic colour viz.

Tartrazine as well as the Weevilled grains being more than the permissible limit.

18. The star / the material witness of the prosecution i.e. Food Inspector

Ranjit Singh categorically proved that on 26.05.2004 he along with Field Assistant

Mitrapal and SDM / LHA Sh. C.P. Sharma visited M/s Tandoori Nights, where

accused Rajesh Batra who was the vendorcumproprietor was found running the

restaurant and he was conducting the business of sale of various food articles

including Dal Arhar, 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 Dal Arhar. He proved the sample proceedings vide Ex. PW 1/A to Ex. PW

1/C. He further proved the deposit of the sample with the Public Analyst and deposit

of the counterparts of the sample with the Local Health Authority vide Ex. PW 1/D and

E. He further proved that the Dal Arhar on analysis by the public analyst vide his

report Ex. PW1/F was found adulterated as it was containing synthetic colour

tartrazine. He proved the letter written to STO and MCD along with their reply vide

Ex. PW1/H and I. The Sanction / Consent for prosecution was proved as Ex. PW 1/J

and the complaint was proved as Ex. PW 1/K.

CC No. 168/04
DA Vs. Rajesh Batra Page 10 of 50
19. The deposition of the Food Inspector was duly corroborated by the

remaining prosecution witnesses i.e. Sh. C.P. Sharma, the then SDM/LHA and

Mitrapal, Field Assistant (PW3).

20. Furthermore the fact that the sample was collected/lifted by the Food

Inspector on 26.05.2004 from M/s Tandoori Nights as well as that the accused was the

vendor/ proprietor of M/s Tandoori Nights 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 28.07.2011. 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 (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 no dispute remains that the sample of Dal Arhar was indeed

collected by the Food Inspector for analysis from M/s Tandoori Nights of which the

accused is the proprietor cum vendor.

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

CC No. 168/04
DA Vs. Rajesh Batra Page 11 of 50
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 30.09.2004 and the Director vide its report / certificate dated 01.11.2004 opined

as " sample bearing No. 21/LHA/6225 does not conform to the standards of Split

Pulse (Dal) Arhar as per the PFA Rules 1955". The Director so opined as above as as

per the analysis of the sample it was found containing synthetic food colour Tartrazine

whereas the same ought to have been free from any colouring material and the

Weevilled grains were found at 8.6% by count against the maximum permissible limit

of 3%.

22. During the course of arguments, Ld. defence counsel appearing for

accused argued that the prosecution miserably failed to bring home the guilt against

the accused. It was argued that the prosecution story suffers from various

loopholes /contradictions.

Public witness

23. At the outset it was argued that no public witness was joined by the FI

during the alleged sample proceedings which is in violation of section 10 (7) and

therefore the accused is entitled to be acquitted on this ground alone. It was argued

that the FI despite the mandate of section 10 (7) did not deliberately join any public

CC No. 168/04
DA Vs. Rajesh Batra Page 12 of 50
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 Shriram Labhaya
Vs. MCD , decided on 26.02.1974

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. 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
24. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground. He discharges the public
function in purchasing an article of food for analysis and if the article of food so
purchased in the manner prescribed under the Act is found adulterated, he is required
to take action as per law. He discharges public duty. His evidence is to be tested on
its own merits and if found acceptable, the Court would be entitled to accept and rely
on it to prove the prosecution case.".

CC No. 168/04
DA Vs. Rajesh Batra Page 13 of 50
25. 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.".

26. It is writ large from the deposition of PW1, PW2 and PW3 that FI Ranjeet

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,

CC No. 168/04
DA Vs. Rajesh Batra Page 14 of 50
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. 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.

Sale

27. It was argued by Ld. Defence counsel that the sample of Dal Arhar was

not meant for sale to the customers as such but was for the consumption of the

employees/labourers after cooking. It was argued that the sample was lifted from the

restaurant and not a kiryana/provision store and the Dal was not meant for sale for

human consumption as such.

28. However I find no merits in the submissions of Ld. Defence counsel.

Firstly, it is the admitted case that the sample of Dal was lifted from M/s Tandoori

Nights of which the accused is the proprietor. There is no dispute to the same. In the

above restaurant i.e. Tandoori Nights the accused was admittedly serving vegetarian

as well as non vegetarian food to the customers as admitted by him during his cross

examination. It is a matter of common knowledge that Dal Arhar is also a vegetarian

dish/food item which is served in all the restaurants. Hence there is no merit in the

defence plea that the Dal was not meant for sale for the customers. Secondly, the

CC No. 168/04
DA Vs. Rajesh Batra Page 15 of 50
accused did not lead any defence evidence i.e. did not examine any of his employee

to substantiate his claim that the Dal was meant for their consumption and not for the

customers/the public coming to his restaurant. Thirdly, it is now well settled principle

of law that sale to Food Inspector is a sale within the definition of section 2 of the Act

and if the article so sold to the FI is found to be adulterated then offence under the

PFA Act, 1954 is made out. Reliance may be placed on law laid down in State of

Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, 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.

29. Fourthly, as far as lifting of sample from restaurant is concerned it has
been held in Food Inspector Vs. Madhavan 1997 (2) FAC 57, that "merely because
the article was taken from the kitchen of the canteen, it cannot be said that the article
was not intended for sale"

30. In MCD Vs. Kewal Ram 1975 FAC 335, the Division Bench of the
Hon'ble High Court of Delhi held that butter kept at the bakery not for sale as such
but for use in preparation of bakery products still offence under Section 7/16 of the
Prevention of Food Adulteration Act has been committed because "food" as defined by
the Prevention of Food Adulteration Act has a very wide connotation and covers any
article used as food and every component which enters into it. Reliance may also be
placed upon M/s P.K. Tejani Vs. M.R. Dange, 1974 FAC 74.

31. In MCD Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the
Hon'ble High Court of Delhi held that "where a sample of butter was taken from a

CC No. 168/04
DA Vs. Rajesh Batra Page 16 of 50
Halwai who did not sell butter as such but kept it for use in the preparation of samosas
and the butter was found adulterated it was held that "if the butter of which sample
was taken can be regarded to be adulterated, then the vendor will have to be held
guilty of selling an adulterated article of food to the Food Inspector even though the
butter was kept not for sale but was to be used in preparing samosas to be sold to
customers.".

It was further held in para 7 that "As was laid down by a Full Bench of this
Court in Madan Lal Vs. State (1972 F.A.C. 481) it would not make any difference
even if the vendor was not a dealer in the article of which sample was taken, if the
article was to be used in preparation of any other article which would have been then
sold to customers. In that connection, the following observations were made:
"It must be held that if the respondents in the two appeals were dealers

in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him. The position will be the same even if the respondents were not dealers in toned milk as such but were using the toned milk in the preparation of tea or coffee which they were selling to the customers.".

32. In MCD Vs. Ajit Pershad, 1975 (2) FAC 60, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:

"The fact that paneer of which sample was taken was not meant for sale in that very form but was to be used for preparation of sweets and could not make any difference when the sweets so prepared would have been sold at the shop.".

33. In MCD Vs. Moti Ram & Anr. 1975 (2) FAC 41, it was held by the Division Bench of the Hon'ble High Court of Delhi as under:

"The Ghee used, therefore, did not conform to the prescribed standard and the quality or purity of the Ghee used in the preparation of the AluTikkis greatly fell below the prescribed standard. The AluTikkis sold by Moti Ram have, therefore, to be regarded CC No. 168/04 DA Vs. Rajesh Batra Page 17 of 50 to be adulterated under clause (1) of section 2(i) of the Prevention of Food Adulteration Act.".

34. Similarly was held in Food Inspector, Calicut Corporation Vs. Charukattil Gopalan 1972(2) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978 (1) FAC 9, Municipal Corporation of Delhi Vs. Ashok Kumar 1978(1) FAC 1 , Gajender Kumar Vs. State of Haryana 2010 (1) FAC 158 , 1981 (1) FAC 181 and Madan Lal Vs. State 1972 (2) FAC 481.

35. Further reliance may be placed upon the three judge bench of the Hon'ble High Court of Delhi NDMC Vs. Shri Hardev Singh 1980 (1) FAC 472, wherein the sample of Atta was lifted from a restaurant and Atta as such was not meant for sale but only the chapattis were sold. It was held that the Food Inspector has power to collect the same.

36. Hence it being a restaurant where Dal Arhar is normally sold after cooking, it stands duly proved that the Dal Arhar was used for the purpose of sale to the customers in the restaurant after cooking but even otherwise also the sale of Dal Arhar to the Food Inspector was sale as per section 2 of PFA Act. Rule 14

37. It was further argued that even otherwise there was violation of Rule 14 of the Prevention of Food Adulteration Rules, 1955 at the time of sampling. It was argued that at the time when the sample was collected, the Food Inspector failed to clean the container as well as the instrument i.e. steel spoon with which the sample was poured in the container. It was argued that the colour was already sticking to the CC No. 168/04 DA Vs. Rajesh Batra Page 18 of 50 steel spoon when the Dal was taken out from the open almunium container for sampling. It was argued that Rule 14 of the Act is mandatory and not directory and in case there is no strict adherence to Rule 14, benefit has to be given to the accused. Reliance was placed on the law laid down in Shew Chander Mathur Vs. State of Assam, 1991 (1), FAC 9, State of Gujarat Vs. Laghadhirbhai, 2009 (2) CCC 134 and Rajender Kumar Vs. State of Haryana, RCR Cri. 2008 (3) 422.

38. However I differ with the contentions as raised by the Ld. defence counsel.

39. I have heard the Ld. defence counsel, gone through Rule 14 and the case laws relied upon by the Ld. defence counsel and perused the deposition of the Food Inspector and other complainant witnesses. After going through the material available on record and the law cited by the Ld. defence counsel, I am of the opinion that there was no violation of Rule 14 in this case. Rule 14 of the Act envisages that at the time when the Food Inspector collects the sample, he shall ensure that not only the container is clean but it is also dried. Furthermore the container should be such so as to prevent any leakage, evaporation and in case of dry substance entrance of moisture. The container should be sealed carefully to avoid the above. While sampling the various types of articles of food, the Food Inspector should make use of clean and dry appliances. He should use clean and dry spoon or other instruments for sampling and avoid using his own hands to make the same. Furthermore he CC No. 168/04 DA Vs. Rajesh Batra Page 19 of 50 should sample the article in hygienic conditions. Reliance may be placed upon Varghese Vs. Food Inspector, 1989(2) FAC 236.

40. I have perused the deposition of the Food Inspector i.e. Ranjeet Singh who was examined as PW1. The Food Inspector deposed as under:

"The so purchased sample was mixed properly with the help of a big size steel spoon in all possible directions. I divided the sample into three equal parts by putting them in three clean and dry glass bottles separately.

41. Similarly PW2 C.P. Sharma deposed as under:

" FI Ranjit Singh purchased 1500 gms of Dal Arhar ready for use taken from an open aluminum container bearing no label declaration after mixing properly with the help of a big size steel spoon in all possible directions......... FI divided the sample into three equal parts by putting them in three clean and dry glass bottles separately.

42. During his cross examination he stated as under:

"It is wrong to suggest that some colour was sticking with the spoon"

43. PW3 FA Mitrapal deposed as under:

"Before taking the sample, dal arhar was properly mixed with the help of a clean and dry big size SPOON in the open aluminum container by rotating it in all possible direction i.e. upward, downward, clockwise and anticlockwise. The so purchased dal arhar was divided then and there by FI into three equal parts by putting them in three clean and dry glass bottles......".

44. During his cross examination he stated as under:

CC No. 168/04 DA Vs. Rajesh Batra Page 20 of 50

"The spoon by which the Dal Arhar was mixed was provided by the vendor. The spoon was not made clean and dry at the spot by any of us as the same was provided by the vendor after making it clean and dry in our presence."

45. Hence the prosecution witnesses consistently deposed regarding the spoon as well as the sample bottles being 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.

46. 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"

47. The above provisions and the legislation is based upon the maxim CC No. 168/04 DA Vs. Rajesh Batra Page 21 of 50 "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)".

48. 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.".

49. 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 .].

CC No. 168/04 DA Vs. Rajesh Batra Page 22 of 50

50. 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.

51. 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.".

52. 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.".

53. 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.

CC No. 168/04 DA Vs. Rajesh Batra Page 23 of 50

54. Apart from the bald suggestion that the bottles as well as the steel spoon were not clean or dry the defence has been unable to prove that the sample proceedings were indeed bad or conducted in violation of Rule 14. Thus, there is no force in the averments made by the Ld. defence counsel. Homogenization / Mixing of Sample.

55. 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 is variations in the report of Public Analyst and Director, CFL. It was further argued that there was variations in the report of the Public Analyst for example the Public Analyst found the 'moisture' as 8.84 % , on the other hand, the Director found the same to be 09.2 %. Weevilled grains were found by the PA as 0.87% whereas the Director found the same to be 8.6%. The PA did not detect any uric acid content in the sample whereas the Director found the same to be 685.4 ppm. It was argued that this variation being more than 0.3% which is the permissible limit proves that the sample were not representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Rama Ratan Malhotra 2012 (2) FAC 2012.

56. However, I find no merits in the contention of the Ld. defence counsel. CC No. 168/04 DA Vs. Rajesh Batra Page 24 of 50

57. Firstly the Food Inspector and the other complainant witnesses categorically stated that the sample was taken after mixing the Dal Arhar properly. I have no reasons to disbelieve the Food Inspector or the other complainant witnesses in this regard. Moreover, there was no requirement of mixing or making the sample i.e. the Dal 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 required to be made homogeneous." .

58. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Hon. CC No. 168/04 DA Vs. Rajesh Batra Page 25 of 50 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".

59. In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause

(xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221).

If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when CC No. 168/04 DA Vs. Rajesh Batra Page 26 of 50 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.

60. 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."

61. 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 CC No. 168/04 DA Vs. Rajesh Batra Page 27 of 50 case regardless of whether the nature of the article requires it or not.

62. 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."

63. 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."

64. In the case at hand not only from the deposition of the Food Inspector and the other prosecution witnesses it stands duly established that the Dal was properly mixed at the time of sampling but in view of the above discussion, I am of the opinion that it being the case of Dal Arhar it was not required to homogenize the Dal Arhar.

CC No. 168/04 DA Vs. Rajesh Batra Page 28 of 50 Variations.

65. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation of more than 0.3% 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 is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same 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.

66. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors, decided on 01.04.1980 observed as under:

"Section 13(3) of the Prevention of Food Adulteration Act says that the certificate of the Director shall supersede the report of the Public Analyst. That being so no support can be taken from the report of the Public Analyst to content that there was a variation in the report of the Public Analyst and that of Director, CFL in his certificate. By this wholly erroneous approach the Ld. Additional Sessions Judge went wrong in holding that the sample lifted was not a representative sample."

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

CC No. 168/04 DA Vs. Rajesh Batra Page 29 of 50

"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.".

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

"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 CC No. 168/04 DA Vs. Rajesh Batra Page 30 of 50 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.".

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

70. 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 CC No. 168/04 DA Vs. Rajesh Batra Page 31 of 50 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.".

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

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

72. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:

CC No. 168/04 DA Vs. Rajesh Batra Page 32 of 50

"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.".

73. 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.".

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

"in the instant case whereas the public analyst found the presence of milk fat to the extent of 4.5% in the toned milk the report of the Director of the Central Food Laboratory shows the milk fat as only 0.4%........Since under the law the report of the Director, CFL is conclusive and binding the case has to be decided on the basis of CC No. 168/04 DA Vs. Rajesh Batra Page 33 of 50 that report only.".

75. 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".

It was further held in para 11 to 14 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.".

76. 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 CC No. 168/04 DA Vs. Rajesh Batra Page 34 of 50 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."

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

"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".

78. 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".

79. 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.

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

CC No. 168/04 DA Vs. Rajesh Batra Page 35 of 50

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

81. 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.".

82. 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.".

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

CC No. 168/04 DA Vs. Rajesh Batra Page 36 of 50

"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.".

84. 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 CC No. 168/04 DA Vs. Rajesh Batra Page 37 of 50 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".

85. 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.

86. 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.

CC No. 168/04 DA Vs. Rajesh Batra Page 38 of 50

87. 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.

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

89. 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. I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public CC No. 168/04 DA Vs. Rajesh Batra Page 39 of 50 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 arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

90. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely CC No. 168/04 DA Vs. Rajesh Batra Page 40 of 50 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".

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

"the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to CC No. 168/04 DA Vs. Rajesh Batra Page 41 of 50 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."

Use of colour.

92. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. 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.

93. 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 CC No. 168/04 DA Vs. Rajesh Batra Page 42 of 50 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 prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

Injurious to health.

94. Regarding the defence plea that the addition of the colour did not make the sample injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held CC No. 168/04 DA Vs. Rajesh Batra Page 43 of 50 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.".

95. 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.".

96. 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.

97. 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.

CC No. 168/04 DA Vs. Rajesh Batra Page 44 of 50

98. 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.".

Paper Chromatography Test.

99. It was also argued that the Director and the PA did not specify in their report as to what tests/method was used for the analysis of the sample and to give the report. It was argued that the they should have specifically mentioned the nature of tests conducted/method used in the report. Reliance was placed upon 2012 (2) JCC 1052 and 1987 (2) FAC 320. 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 a method prescribed in the 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 upon a report 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 CC No. 168/04 DA Vs. Rajesh Batra Page 45 of 50 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.".".

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

100. It was further 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 CC No. 168/04 DA Vs. Rajesh Batra Page 46 of 50 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 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as mentioned in Rule 28 could be added. Therefore 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, 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.

Weevilled grains CC No. 168/04 DA Vs. Rajesh Batra Page 47 of 50

101. Apart from the colour Tartrazine the Director had also reported that the sample commodity contained Weevilled grains at 8.6% as against the maximum limit of 3%. Weevilled grains are grains damaged by Weevills i.e. grain kernels that are partially or wholly bored by insects injurious to the grain.

102. It was argued by Ld. Defence counsel that the percentage of Weevilled grains was found by the PA within the permissible limit but the Director found them to be in excess of the permissible limit. The Ld. Defence counsel argued that the reason for the same was the fact that the glass bottles were not properly closed/sealed which allowed the weevills/ beetles to grow as moisture/air must have entered the bottles otherwise the weevills/beetles could not have survived which is evident from the fact that the percentage of damaged grains increased considerably over the period of time i.e. when they were analyzed by the Director. However I do not agree with the contention of Ld Defence counsel. It stands ambiguously proved from the deposition of the prosecution witnesses that the sample bottles were duly closed and sealed. As already discussed above the accused/ proprietor cum vendor has affixed his signatures on the bottles so sealed and seized by the FI. Furthermore when the bottles were produced in the court on 30.09.2004 statement of the accused was recorded to the effect "I have seen both the counterparts of sample which are properly packed, fastened, marked and sealed. My signatures are appearing on each counterpart of sample, sealed are intact" . Hence not only were the sample CC No. 168/04 DA Vs. Rajesh Batra Page 48 of 50 proceedings conducted in a proper manner and the bottles sealed properly as proved by prosecution witnesses but also from proceedings dated 30.09.2004 and the above statement of the accused recorded on the even date no doubt remains that the bottles were duly and properly sealed.

103. As far as the submissions regarding the increase in the quantity/percentage of Weevilled grains is concerned, it is to be seen that Firstly, the method used by the PA to give the percentage of Weevilled grains was physical examination whereas the method used by the Director was Gravimetric which is a more advanced/technical/more accurate method. Secondly, the sample was collected/lifted on 26.05.2004 and it was analyzed by the Public Analyst in between 01.06.2004 to 03.06.2004 and the report prepared on 10.06.2004. That is the sample were analyzed within a week of its lifting and the report given within 15 days. The PA had reported that the Weevilled grains were 0.87%. This proves that the sample of Dal Arhar was damaged and it was obviously/necessarily damaged by the Weevills/beetles which might have been alive at the time when the sample was lifted. There is all likelihood that the insects grew over a period of time and more food grains/Dal Arhar was damaged. For what period they remained alive i.e. how long they kept on damaging the grains cannot be ascertained as it cannot be laid down that they would have remained alive for a week, a month, two months etc.

104. Though the Ld. Defence counsel had also argued that the FI had not CC No. 168/04 DA Vs. Rajesh Batra Page 49 of 50 noticed any damaged grains/insect damaged grains or insects with naked eyes at the time of sampling and therefore the report of the PA and the Director are incorrect. However the said submission has no merits as when the sample is being lifted the Food Inspector is not impressed upon to see/observe/ to make note of as to what kind of adulteration is there in the sample as it is not part of his duty. Same is the job of the PA and the Director. Moreover when around 1500 grams of Dal i.e. 1.5 Kg is lifted there is impossible at the time of sampling to find out or calculate the percentage of damaged grains or the insects which are too minute and hardly visible with naked eyes.

105. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955, as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed as well as the sample was having excess quantity of Weevilled grains i.e. at 8.6% against the permitted 3%, the accused stands convicted under Section 2 (ia) (a)

(j) & (m) of PFA Act 1954 r/w Rule 23, 28 & 29 of PFA Rules 1955.

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

Announced in the open Court                                      (Gaurav Rao)
on 24th February, 2014                                           ACMMII/ New Delhi



CC No. 168/04
DA  Vs. Rajesh Batra                                                          Page 50 of 50

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Da vs . Rajesh Batra Page 1 Of 50 on 24 February, 2014