Da vs . Mukesh Kumar Page 1 Of 62 on 13 February, 2015

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Delhi District Court

Da vs . Mukesh Kumar Page 1 Of 62 on 13 February, 2015

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

C.C. No. 137/02

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

Mukesh Kumar s/o Sh. Damodar Prasad
M/s Mukesh Provision Store,
A44, Tigri State Bank Road,
Tigri, Delhi62.

........ VendorcumProprietor
Serial number of the case : 137/02
Date of the commission of the offence : 10.01.2002
Date of filing of the complaint : 14.11.2002
Name of the Complainant : Sh. Raj Pal Singh, Food Inspector

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Offence complained of or proved : Section 2 (ia) (j) & (m) of PFA Act
1954 and Rule 23 r/w Rule 28 & 29
of PFA Rules, 1955, punishable
U/s 16(1A) r/w section 7 of the PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 13.02.2015
Judgment announced on : 13.02.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 10.01.2002 at about 06.30

p.m., Food Inspector Ranjeet Singh and FI B.P. Saroha, under the supervision and

directions of SDM/LHA Sh. A.K. Singh visited M/s Mukesh Provision Store, A44, Tigri

State Bank Road, Tigri, Delhi 62, where accused Mukesh Kumar who was the

vendorcumproprietor was found present conducting the business of various food

articles including Dal Arhar, 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 adulterated

because it was found "coloured with synthetic colour matter viz. Tartrazine" and

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

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Act the present complaint was filed for violation of provisions of Section 2 (ia) (j) & (m)

of PFA Act 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules 1955, 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 14.11.2002. 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 15.01.2003. The Director, CFL after analysing the sample

opined vide its Certificate dated 18.02.2003 that "sample does not conform to the

standards of Arhar Dal as per PFA Rules 1955 ". The Director so opined as the

sample was adulterated because it was found "coloured with synthetic colour matter

viz. Tartrazine"

4. In pre charge evidence, the prosecution examined two witnesses i.e. FI

Ranjeet Singh as PW1 and FI B.P. Saroha as PW2 and pre charge evidence was

closed vide orders dated 03.07.2007.

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

1954, r/w Rule 23, 28 and 29 of PFA Rules 1955, punishable U/s 16 (1A) r/w section 7

of the Act was framed against the accused vide order dated 08.04.2009 to which

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accused pleaded not guilty and claimed trial.

6. In the post charge evidence the prosecution examined four witnesses

i.e. Food Inspector Sh. Ranjeet Singh as PW1, FI B.P. Saroha as PW2, FI Rajpal

Singh as PW3 and the then SDM/LHA Sh. A.K. Singh as PW4 and PE was closed vide

order dated 18.01.2012.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 27.06.2012

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

not lead any defence evidence.

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

8. PW1 Food Inspector Ranjeet Singh deposed that on 10.01.2002 he

along with Sh. A.K. Singh, SDM/LHA and FI Sh. B.P. Saroha visited premises of M/s

Mukesh Provision Store, A44, Tigri State Bank Road, Tigri, Delhi62 with staff where

accused Mukesh Kumar was found conducting the business of food articles stored

there for sale for human consumption including Arhar Dal. He deposed that he

disclosed his identity and intention for purchasing Arhar Dal (ready for sale) for

analysis to which accused agreed. He deposed that the sample of 750 gms of Arhar

Dal was taken from an open gunny bag bearing no label declaration after proper

mixing with the help of clean and dry Jhaba by rotating in all possible directions. He

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deposed that he tried to join some public witnesses to join the sample proceedings but

as none came forward on his request FI B.P. Saroha agreed and joined as a witness.

He deposed that the sample was taken under the direction and supervision of

SDM/LHA at about 06.30 p.m. He deposed that he divided the sample then and there

into three equal parts by putting them into three separate clean and dry bottles. He

deposed that each bottle containing the sample was separately packed, marked,

fastened and sealed according to PFA Act and Rules. He deposed that the sample

price Rs. 18/ was accepted by the accused. He deposed that then vendor receipt Ex.

PW1/A was prepared. He deposed that notice in Form VI Ex. PW1/B was prepared

and a copy was given to the accused as per his endorsement at portion A to A bearing

his signatures at point A. He deposed that then the panchnama Ex. PW1/C was

prepared. He deposed that the vendor's signatures were obtained on the LHA slip

and on the wrappers of the sample bottles in such a manner that a portion of his

signatures was appearing on the LHA slip as well as on the wrapper of the sample

bottles. He deposed that the documents were read over and explained to the accused

in Hindi and after understanding the same accused signed at point A, witness signed

at point B and he signed at point C. He deposed that accused gave his statement Ex.

PW1/D bearing his signatures at point A. He deposed that one counterpart of the

sample was deposited in intact condition with the PA on 11.01.2002 vide receipt Ex.

PW1/E along with one copy of Memo in Form VII and another copy of Memo Form VII

in a separately sealed envelope. He deposed that remaining two counterparts of the

sample in intact condition along with two copies of Memo of Form VII in a sealed

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packet were deposited with the LHA vide receipt Ex. PW1/F with the intimation that

one counterpart of the sample in intact condition has already been deposited with the

PA. He deposed that all the copies of memo of form VII were marked with the

impression of seal which was used to seal the sample counterparts. He deposed that

PA report Ex. PW1/G was received according to which sample was found adulterated

being coloured with synthetic colouring matter Tartrazine as mentioned therein at

portion X. He deposed that he further investigated and sent a letter to STO Ward no.

93 Ex. PW1/H to which the STO replied at portion A according to which the said firm

was registered in the said ward and accused was the proprietor. He deposed that

thereafter the complete case file along with all the statutory documents were sent to

the then Director Sh. K.S. Wahi through the SDM/LHA who after going through the

entire case file applied his mind gave the sanction for prosecution Ex. PW1/J against

the accused who was found to be the vendor cum proprietor of the said firm. He

deposed that complaint was filed in court by FI Sh. R.P. Singh Ex. PW1/K bearing his

signatures at point A. He deposed that intimation letter Ex. PW1/L along with PA

report was sent to the accused by registered post through the LHA which bears his

signatures at point A. He deposed that copy of postal registration receipt is Ex.

PW1/M.

9. During his cross examination he denied the suggestion that the bill Mark

A was produced or shown to him at the time of sampling or thereafter. He stated that

he does not remember if he received any letter Ex. DB. He stated that there was

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about 810 Kg of Dal Arhar in the open gunny bag and the capacity of the gunny bag

was about approximate 35 Kg. He stated that there was one Jhaba with the vendor at

the time of sampling which was clean and dry. He stated that Jhaba was made of tin.

He stated that Jhaba was not made clean at the spot as it was already clean and dry.

He denied the suggestion that some colouring material was sticking to the Jhaba

before it was used for mixing. He stated that Dal was weighed on an electronic

balance by putting on a brown envelope and thereafter it was put into the sample

bottles directly by approximation. He denied the suggestion that some colouring

material was sticking to the brown envelope before Dal was put. He stated that 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 exact date when the bottles were

issued by the department. He denied the suggestion that bottles were containing

some material. He denied the suggestion that sample failed due to bad sampling. He

stated that 34 customers were present at the spot but he cannot tell their names and

addresses as they did not disclose the names and addresses. He denied the

suggestion that he intentionally did not try to associate the public witnesses. He

admitted that he had not mentioned this fact on the document Ex. PW1/A to C that he

tried to associate the public witnesses but they refused, it was mentioned in the report

under rule 9 (e).

10. PW2 FI B.P. Saroha, PW3 FI Rajpal Singh and PW4 the then SDM/LHA

Sh. A.K. Singh have deposed on the same lines as deposed by PW 1 in his

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examination in chief.

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

12. 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.

13. 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.

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

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

Director dated 18.02.2003 that accused Mukesh Kumar was indeed found selling Dal

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

Tartrazine.

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

Mukesh Kumar categorically proved the sample proceedings dated 10.01.2002 as

were conducted in the presence of SDM/LHA. From the deposition of the prosecution

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witnesses who duly corroborated each other coupled with documents Ex. PW1/ A to C

i.e. Vendor's receipt, Notice Form VI and panchnama as proved by the prosecution,

the admissions made by the accused during his examination under Section 313 Cr.

P.C, specifically question no. 1 and 2 as recorded before the Ld. Predecessor of this

Court on 27.06.2012 which are admissible in evidence against the accused in view of

sub clause (4) of Section 313 Cr. P.C as well as the law laid down in Benny Thomas

Vs. Food Inspector, Kochi 2008 (2) FAC 1 (SC), Mohan Singh V. Prem Singh,

(SC) 2002 (4) R.C.R. (Criminal) 842, Rattan Singh V. State of Himachal Pradesh,

(SC) 1997 A.I.R. (SC) 768, Sh. Mith Kalitha V. State of Assam 2006 Cr. L.J. 2570,

State of Rajasthan V. Ganesh Dass 1995 Cr. L.J. 25 (Raj.), Bishwas Prasad

Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V. State of

Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315 and

document Ex. PW1/D which is in the handwriting of accused and bears his signature

as well as Ex. PW1/H i.e. the report of Sales Tax Officer, no doubt remains that the

sample of Dal Arhar was indeed collected by the Food Inspector for analysis from M/s

Mukesh Provision Store of which the accused is the proprietor cum vendor.

16. 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

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

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

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

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

person i.e. customers, neighbourers etc. in the sample proceedings and hence no

reliance can be placed on the alleged sample proceedings.

18. However I do not agree with the contentions raised by the Ld. Defence

counsel. The Hon'ble Apex Court in Shriram Labhaya Vs. MCD 19481997 FAC

(SC) 483 has categorically held that testimony of the Food Inspector alone, if believed,

is sufficient to convict the accused and there is no requirement of independent

corroboration by public persons unless the testimony suffers from fatal

inconsistencies. The Apex Court observed as "as stated earlier the Food Inspector

was unable to secure the presence of independent persons and was therefore driven

to take the sample in the presence of the members of his staff only. It is easy enough

to understand that shopkeepers may feel bound by fraternal ties............ Similarly in

Babu Lal Vs. State of Gujarat, 1972 FAC 18 it has been held that there is no

requirement of independent corroboration by public persons unless the testimony

suffers from fatal inconsistencies. Further reliance may be placed upon the law laid

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

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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.

19. In Rajinder Kumar Vs. State of Himachal Pradesh and anr. 2002 (1)

FAC 230, the Hon. Apex Court held as under:

".......9. Mr. Pradeep Gupta, learned counsel for the appellant adopted an
alternative contention that there was noncompliance with Section 10(7) of the Act
inasmuch as the Food Inspector failed to procure the signatures of independent
persons when he took the sample. The said contention is not available to the defence
as the Food Inspector has given evidence that he really called the persons who were
present in the canteen to affix their signatures after witnessing the sample but none of
them obliged. A three Judge Bench of this Court has laid down the legal position
concerning Section 10(7) of the Act in the case of Shri Ram Labhaya vs. Municipal
Corporation of Delhi and Another 1974 FAC 102 : (1974) 4 Supreme Court Cases
491. We may profitably extract the observations made by Hon'ble Y.V. Chandrachud,
J. (as His Lordship then was):
"The obligation which Section 10(7) casts on the Food Inspector is to 'call' one
or more persons to be present when he takes action. The facts in the instant case
show that the Food Inspector did call the neighbouring shopkeepers to witness the
taking of the sample but none was willing to cooperate. He could not certainly
compel their presence. In such circumstances, the prosecution was relieved of its
obligation to cite independent witnesses.".

20. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.

Apex Court held as under:

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".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.

State
21. In Vs. Mohd. Hanif, 1992 (2) FAC 175 the Hon'ble Supreme
Court held as under:
"It is not the law that the evidence of Food Inspector must necessarily need
corroboration from independent witnesses. The evidence of the Food Inspector is not
inherently suspicious nor be rejected on that ground........... His evidence is to be
tested on its own merits and if found acceptable, the Court would be entitled to accept
and rely on it to prove the prosecution case.".

22. 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

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cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."

23. It is writ large from the deposition of PW1, PW2 and PW4 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,

nobody from public is prepared to suffer any inconvenience for the sake of society.

Absence of public witness in this case is not fatal to the prosecution as the prosecution

story inspires confidence and lifting of the sample stands admitted/unambiguously

proved. Furthermore, I find no reasons why the Food Inspector or the SDM would

falsely implicate the accused or depose falsely against him. There is nothing on

record to suggest that the FI, the SDM were inimical to the accused or had any grudge

or enmity to falsely implicate him.

Rule 14

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

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

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

clean the sample bottles as well as the jhaba with which the sample was lifted and

poured in the sample bottles. It was argued that the colour was already sticking to the

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Jhaba, brown envelope/polythene bag used for weighing the dal and the sample

bottles and it was this colour which was detected by the Director. It was argued that

Rule 14 of the Act is mandatory and not directory and in case there is no strict

adherence to Rule 14, benefit has to be given to the accused. Reliance was placed

upon the law laid down in State of Himachal Pradesh Vs. Hans Raj 1981 (1) FAC

457 and State of Gujarat Vs. Laghadhirbhai Vaghjibhai Prajapati 2009 (2) CCC

134.

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

counsel.

26. I have heard the Ld. defence counsel, gone through Rule 14 and perused

the deposition of the Food Inspector and other complainant witnesses. After going

through the material available on record and the law cited by the Ld. defence counsel,

I am of the opinion that there was no violation of Rule 14 in this case. Rule 14 of the

Act envisages that at the time when the Food Inspector collects the sample, he shall

ensure that not only the container/bottle is clean but it is also dried. Furthermore the

container should be such so as to prevent any leakage, evaporation and in case of dry

substance entrance of moisture. The container should be sealed carefully to avoid the

above. While sampling the various types of articles of food, the Food Inspector should

make use of clean and dry appliances. He should use clean and dry spoon or other

instruments for sampling and avoid using his own hands to mix the same.

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Furthermore he should sample the article in hygienic conditions. Reliance may be

placed upon Varghese Vs. Food Inspector, 1989(2) FAC 236.

27. 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 sample of 750 gms of Arhar Dal was taken from an open
gunny bag bearing no label declaration, after proper mixing with the help of clean and
dry Jhaba by rotating in all possible directions.......I divided the sample then and there
into three equal parts by putting them into three separate clean and dry bottles."

28. During his cross examination he stated as under:

".......Jhaba was not made clean at the spot as it was already clean and
dry. It is wrong to suggest that some colouring material was sticking to the Jhaba
before it was used for mixing.........It is wrong to suggest that some colouring material
was sticking to the brown envelope before the Dal was put. Bottles were already dry
and clean and the same were not made again dry and clean at the spot......It is wrong
to suggest that bottles were containing some material. It is wrong to suggest that
sample failed due to bad sampling."

29. Similarly PW4 the then SDM/LHA Sh. A.K. Singh deposed as under:

"......Thereafter, at about 06.30 P.M. FI Shri Ranjeet Singh purchased
from the accused, 750 gms of Dal Arhar, which was taken from the above mentioned
gunny bag after properly mixing the same with the help of a dry JHABA, which was
lying the sample commodity at that time, by rotating it in all possible directions. The
so purchased quantity of the sample commodity was divided into three equal parts by
putting it into three clean and dry sample glass bottles."

30. During his cross examination he stated as under:

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".....The JHABA in question was not made clean at the spot as it was
already clean. The Dal was weighed by putting it in a clean and dry transparent
polythene bag with the help of the JHABA in question....The sample bottles were not
made clean and dry at the spot as they were already clean and dry. It is wrong to
suggest that the JHABA & bottles were not clean and dry or that some yellow colour
was sticking with them at the time of sample proceedings."

31. PW2 FI B.P. Saroha deposed as under:

".........The sample was taken at 6:30 p.m. by proper mixing it with help of
clean and dry jhaba by rotating it in all possible direction i.e. Downwards, upwards,
clockwise and anticlockwise several times. The FI divided the sample then and there
into three equal parts by putting them in three clean and dry glass bottles."

32. During his cross examination he stated as under:

"It is wrong to suggest that the bottles were not clean and dry."

33. Hence the prosecution witnesses consistently proved regarding the

jhaba, the polythene bag/brown envelope as well as the sample bottles being clean

and dry. From their deposition/statement no doubt remains that the sample

proceedings were conducted in a proper manner and that the sample bottles,

polythene bag/brown envelope as well as the jhaba were clean and dry. I have no

reasons to disbelieve them. As discussed above I find no reasons why the FI or the

other members of raiding team would falsely implicate the accused that is to say why

they would use contaminated or colored instruments or bottles for sampling. The

defence has failed to prove any motive which could be assigned to the above officials

for falsely implicating the accused. Moreover nothing on record has been proved to

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

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

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

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

testimony of the Food Inspector. I have also gone through Section 114 (e) of the

Indian Evidence Act.

Section 114 reads as under:

" The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to facts of
the particular case."

Clause (e) of the above provision reads as under:
" That judicial and official acts have been regularly performed"

34. The above provisions and the legislation is based upon the maxim

"omnia praesumuntor rite esse acta" i.e. all acts are presumed to have been rightly

and regularly done. This presumption chiefly applied to official acts. It means that an

official act is proved to have been done, it would be presumed to have been regularly

done. The presumption under Section 114 (e) could only be nullified by clear and

cogent evidence to the contrary (State of Haryana Vs. Anil Kumar, 2004 (1)

Punj. LR 69 ,
Zeenat Vs. Prince of Wales & c, A 1971 P 43, Sheo Darshan Vs.

Assessar, 5 OLJ 179)".

35. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757

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(Guh.) it was observed that irregularity is not to be presumed but a party alleging

it may prove it.

36. 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
.].

37. 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.

38. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it

was observed as under:

"The Food Inspector and the Public Analyst are public servants.......once it is
satisfactorily established that the Food Inspector after taking the sample divided in into
three parts, sealed the same, forwarded one of the parts to the Public Analyst, for
analysis, it can be safely said that the procedure details as to the prescribed manner
of doing these Acts has been followed...The court would be justified in drawing a
presumption that the procedure has been followed.".

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39. 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.".

40. 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.

41. In Lalji Bhai Amrit Lal Vs. State of Gujarat 2010 (2) FAC 163, it has

been held as under:

"it is the question of fact in each case as to whether it has been proved that the
bottles were dried and cleaned in which samples were taken. It must be noted that it
is not requirement of law even of Rule 14 that bottles should be made clean and dry
by Food Inspector himself or bottle should be made clean and dry in the presence of
Food Inspector."

42. The Ld. Defence counsel had also argued that the FI had stated that he

had used a brown envelope for the purpose of weighing the Dal. It was argued by the

Ld. Defence counsel that it was the colour of the brown envelope which was detected

by the Director/Analyst. However I find no merits in the above arguments of Ld.

Defence counsel. Mere use of brown envelope by the FI for measuring the Dal at the

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time of sampling did not prejudice the accused in any manner nor entitles him to

acquittal. The witnesses consistently deposed that the brown envelope was clean and

dry. They denied the suggestion that some colour was sticking to the brown envelope.

During the cross examination of the prosecution witnesses not even a single

suggestion was given to them that this brown envelope was not dry or that it was wet

or emitting some colour which might have stuck to the sample of dal. I have no

reasons to disbelieve the prosecution witnesses or doubt that they did not use a

proper method or instruments and other intermediaries for the purpose of taking the

sample. Furthermore the Director had detected Tartrazine colour and not brown as

was the colour of the envelope. Moreover, the defence did not lead any evidence to

substantiate their claims that it was the colour of the brown paper which got stuck with

the Dal/sample and was detected by the Director/ Analysts. No evidence was led by

the defence to prove that the brown envelope was made up of/one of the colour used

in manufacturing brown envelope was Tartrazine.

43. Though it was also argued by the Ld. Defence counsel that in view of the

deposition of SDM/LHA it stands proved that an unclean jhaba was used (jhaba was

already lying in the gunny bag) for sample proceedings and hence the sample

proceedings were bad, however I find no merit in the same. Firstly, the prosecution

witnesses consistently proved that the jhaba was clean and dry. They categorically

denied that it was coloured or contaminated or used in some other food product prior

to the lifting of the sample. Secondly, as far as the statement that the Jhaba was

CC No. 137/02
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lying in the gunny bag which came up only during the deposition of SDM/LHA is

concerned, mere fact that the jhaba was lying in the same gunny bag from which the

sample was lifted does not render the sample proceedings bad or does not prejudice

the accused in any manner. It is to be seen that the SDM/LHA deposed that the Jhaba

was lying in the same gunny bag i.e. bag containing Dal Arhar from which the sample

was lifted. It is neither the prosecution case nor claimed by the defence that the jhaba

was lying in some other commodity/bag and it was used without cleaning it to take out

the sample of Dal Arhar which was lying in another bag. Had that been the case it

would have been open for the defence to claim prejudice or that the sample

proceedings were bad in law. But once the Jhaba was lying in the bag containing the

sample commodity/Dal Arhar itself and it is used to take out the sample commodity I

fail to understand how prejudice is caused to the accused because it is the same jhaba

with which the accused is selling the Dal to the customers and hence whether the

Jhaba got coloured while lying in the bag containing the sample commodity i.e. Dal or

the Dal/sample commodity got coloured because of the Jhaba does not make a

difference because the fact remains that on analysis Dal was found

coloured/adulterated. The Act has been enacted for the protection of the

customers/consumers and if the Food Inspector uses the Jhaba lying in the gunny bag

containing the commodity of which the sample is lifted and the sample when sent for

analysis is found adulterated then the accused/vendor cannot agitate that the jhaba

was not cleaned before the sample was lifted because the very fact that the jhaba was

lying in the bag containing the sample commodity proves that he was using the same

CC No. 137/02
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Jhaba for selling the sample/dal to the customers. Two different standards cannot

apply i.e. one for the customer or the consumer and the other for the Food Inspector.

Discrepancies

44. It was argued by Ld. Defence counsel that there are major discrepancies

in the deposition of PW1, PW2 and PW4 qua the sample proceedings. It was argued

that though FI Ranjeet Singh had claimed that there was around 810 KG of Dal at the

time of sampling however PW2 and PW4 claimed that it to be around 1520 Kg and

2530 Kg respectively. Furthermore the FI stated that the Dal was weighed after

putting it on a brown envelope, on the other hand the the SDM/LHA stated that the dal

was weighed after putting in a polythene bag. The Ld. Defence counsel argued that

these discrepancies itself proves that the prosecution witnesses were deposing falsely

and sample proceedings were bad and there was violation of Rule 14.

45. No doubt the Ld. Defence counsel pointed out the above discrepancies in

the deposition of PW1, PW2 and PW4 however the discrepancies as pointed out by

Ld. Defence counsel are too trivial in nature to be given any weightage. The

discrepancies as above are 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 2002 and the deposition/cross examination of witnesses

were recorded in the year 2006, 2007 and 2012 i.e. after a gap of around 410 years.

CC No. 137/02
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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.

46. By and large a witness cannot be expected to possess a photographic

memory and to recall the minute 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 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

CC No. 137/02
DA Vs. Mukesh Kumar Page 23 of 62
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 .

47. 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 even be a deliberate attempt

to offer embellishment and sometime in their overanxiety they may give slightly exag

gerated account. Court can sift the chaff from corn and find out truth from the testimo

ny 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.

48. Moreover, officials like Food Inspector and the SDM/LHA are involved in

collecting samples/witnessing sample proceedings almost daily and sometimes more

than one sample is collected in a day. During their stint as Food Inspector and

SDM/LHA they collect/witness hundreds of sample proceedings and accordingly the

facts being mixed up due to passage of time. Same has to be given due allowance. In

case at hand the discrepancies as above does not effect the prosecution story at all.

It does not render it unreliable or untrustworthy. Due to lapse of time a witness may

not be able to recollect the exact facts with mathematical precision. In the case at

CC No. 137/02
DA Vs. Mukesh Kumar Page 24 of 62
hand more weightage has to be given to the deposition of the Food Inspector as it was

he who had lifted the sample and the other officials had assisted him/ merely played

supervisory role. Also his deposition was recorded almost 8 years prior to that of the

SDM/LHA. Furthermore whether there was 10 Kg or 25 Kg Dal in the gunny bag at the

time of lifting is immaterial as the quantity lifted by the Food Inspector was found suffi

cient for analysis. Similarly whether the polythene bag or the brown envelope was

used is also of not much importance. Nonetheless it stands proved that it was clean

and dry like the other instruments/ intermediaries used in lifting the sample by the FI.

Homogenization / Mixing of Sample.

49. It was also one of the arguments of the Ld. defence counsel that the

sample was not properly mixed / homogenized at the time when it was lifted and

accordingly the sample which were sent to PA and Director, CFL were not

"representative" and this is the reason why there are variations in the report of Public

Analyst and Director, CFL. For example the PA found weevilled grains at 0.27%

whereas the Director found them at 1.0%. The PA did not find any uric acid in the

sample whereas the Director found the same at 32 ppm. It was argued that these

variations proves that the sample were not representative. Reliance was placed upon

Kanshi Nath Vs. State 2005(2) FAC 219, State Vs. Suresh Kumar and another

2010 (2) FAC 204, State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 State Vs.

Mahender Kumar and ors decided on 24.01.2008.

CC No. 137/02
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50. However, I find no merits in the contention of the Ld. defence counsel.

Firstly it is evident from the deposition of the Food Inspector and the other

complainant witnesses as discussed above that the sample of Dal was lifted after

proper mixing/ homogenization. The witnesses proved that the dal/sample was taken

after mixing/ rotating the Dal thoroughly in all possible directions several times with the

help of a Jhaba in the gunny bag itself. This was sufficient to make the Dal

homogenized. Not even a single suggestion was given to any of the prosecution

witnesses that the Dal was not properly mixed before lifting the sample of the same.

Their testimony has thus remained unchallenged/unrebutted on this material aspect

and I have no reasons to disbelieve the Food Inspector or the other complainant

witnesses in this regard. Secondly, there is no requirement of homogenization or

making the sample representative prior to its lifting either under the Act or the Rules

appended therein.

51. Thirdly, there was no requirement of mixing or making the sample i.e.

Dal Arhar 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

CC No. 137/02
DA Vs. Mukesh Kumar Page 26 of 62
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."

52. In State of Kerela Vs. Alassery Mohd. 1978 (1) FAC 145, the Full

Bench of the Hon. Apex Court observed as under:

"It was argued with reference to food analysis second edition by Manard
A. Joslyn that the sample must be a representative
sample ..........
are not
We
impressed by this argument at all . Representative sample has got a different
connotation, meaning and purpose in commercial transactions.......In our statue the
ingredient of offence is as mentioned in the 7th section of the Act, manufacturing for
sale, storing, selling or distributing any adulterated food. If the food sold to the food

inspector is proved to be adulterated, it is immaterial whether the sample
purchased by him is a representative sample or not of the entire stock in
possession of the person. A person who stores or sell such sample is liable to
be punished under section 16 (1) (a) (i) of the Act.

53. In the case at hand sale to Food Inspector stands proved. The Food

CC No. 137/02
DA Vs. Mukesh Kumar Page 27 of 62
Inspector categorically proved that he had made a payment of Rs. 18/ to the

accused/vendor towards the purchase of sample commodity. In this regard vendor's

receipt Ex. PW1/A was executed which bears the signature of accused at point A. The

testimony of the Food Inspector has gone unrebutted on this material particular. The

testimony of the other prosecution witnesses which is on the same lines has also

remained unchallenged. Hence sale to FI stands proved. The Hon. Apex Court in The

food Inspector, Calicut Corporation vs. C. Gopalan & another 19481997 FAC

(SC) 73 observed as "........when there is a sale to the Food Inspector under the Act of

an article of food, which is found to be adulterated, the accused will be guilty of an

offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. In MCD

Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court

of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.

State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals

were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:

"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not CC No. 137/02 DA Vs. Mukesh Kumar Page 28 of 62 of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).

It was further observed at para 6 as under:

"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice 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".

54. 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 29 of 62 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."

55. 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.

56. 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."

57. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held CC No. 137/02 DA Vs. Mukesh Kumar Page 30 of 62 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."

58. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations CC No. 137/02 DA Vs. Mukesh Kumar Page 31 of 62

59. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation 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. Firstly, no question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

60. In Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court upheld the conviction of the vendor despite the variations in the total ash content by the PA and the Director being more than 2.28%. In this case the Public Analyst had reported the total ash at 8.22% against the maximum prescribed limit of 8.00% whereas on analysis the Director found the same to be 9.72%.

61. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the CC No. 137/02 DA Vs. Mukesh Kumar Page 32 of 62 permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.

62. In Nebhraj Vs. State (Delhi Administration) 19481997 FAC (SC) 633, the Hon. Apex Court observed as " the report of the Director Central Food Laboratory, Calcutta having superseded the report of the Public Analyst the prosecution must stand or fall on the report of the Director, Central Food Laboratory"

63. In Food Inspector, Ernakulam Vs. P.S. Sreenivasa 2000 (2) FAC 1, the sample of Toor Dal was lifted and on analysis by the Public Analyst it was found adulterated as it contained kesari Dal. After the prosecution was launched one counterpart of the sample was sent to Director, CFL who did not find any Kesari Dal in the sample but found synthetic coal tar dye (tartrazine). The court held at para no. 13 as under:

"When the certificate superseded the Report of the Public Analyst the latter stands sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate alone can be considered as for the facts stated therein regarding the sample concerned".

64. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite CC No. 137/02 DA Vs. Mukesh Kumar Page 33 of 62 the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.

65. In State Delhi Administration Vs. Mahender Kumar 2012 (2) FAC 462, while dealing with case of adulteration of turmeric powder in the Hon. Apex Court held as:

".............The High Court so far the two reports are concerned held that the samples sent were unrepresentative. But the fact remains that the said issue was not at all raised and also considered by the appellant court nor it was raised before the trial court. It is also settled law that if there is any variation between the two reports, there would be primacy in the report submitted by the Director, Central Food Laboratory (CFL), which is clearly laid down under Section 13(3) of the Food Adulteration Act.

9. Having considered the aforesaid aspect, we feel and order that the order of the High Court along with the order of appellate court have to be set aside, which we hereby do."

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. 137/02 DA Vs. Mukesh Kumar Page 34 of 62

"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. 137/02 DA Vs. Mukesh Kumar Page 35 of 62 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. 137/02 DA Vs. Mukesh Kumar Page 36 of 62 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. 137/02 DA Vs. Mukesh Kumar Page 37 of 62

"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 that report only.".

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

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

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 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 39 of 62 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:

"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:

CC No. 137/02 DA Vs. Mukesh Kumar Page 40 of 62

"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:

"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 CC No. 137/02 DA Vs. Mukesh Kumar Page 41 of 62 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 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 42 of 62 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. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.

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 CC No. 137/02 DA Vs. Mukesh Kumar Page 43 of 62 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. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the CC No. 137/02 DA Vs. Mukesh Kumar Page 44 of 62 sample was not representative.

90. Moreover, I have perused the procedure / the rules laid down in the Prevention of Food Adulteration Act to be followed by the Food Inspector at the time and after the sample is collected by him. As per Section 11 1(b), the Food Inspector has to divide the sample then and there in three parts and mark and seal or fasten upon each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken. As per Section 11 1(c) (i) & (ii) he has to send one of the part for analysis to the Public Analyst and the remaining two parts to the Local Health Authority. As per Section 13 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking CC No. 137/02 DA Vs. Mukesh Kumar Page 45 of 62 the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.

91. Secondly, it is also to be seen that the variation in the two reports is only in respect of the Weevilled grains and uric acid content in the sample. As far as the variation in the above is concerned it is to be seen that the sample conformed to the standards in the analysis by the PA as well as by the Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the above contents becomes insignificant. Furthermore, in heterogeneous food products like Dal the adulteration can never be uniform and even if the Food Inspector with all the expertise available at his disposal takes the sample after properly mixing/ homogenization still there will be slight difference/variation in the sample which is divided into/put into three different sample bottles/counterparts. One part of the sample may have more Weevilled grains/uric acid content then the other and may be the third does not have any at all. The FI had purchased 750 gms of Dal Arhar and it was divided into three counterparts/put into three different bottles. One counterpart went to PA and other was sent to the Director by the court. Upon division into three parts the Weevilled grains/uric acid content went more in one part then the CC No. 137/02 DA Vs. Mukesh Kumar Page 46 of 62 other and may be not in the third part. This is practically possible and that is what happened in this case.

92. Moreover, it can not be the intention of the legislature that the person who has been found selling, offering for sale, manufacturing etc food articles which have been found to be adulterated upon examination by a Public Analyst as well as by Director, CFL i.e. two independent authorities be allowed to go scot free merely because there is a difference or variation in the report of the Public Analyst & Director, CFL. It does not appeal to a prudent mind that once a food article has been found to be adulterated by two different agencies the accused may go unpunished solely on account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been 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".

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93. 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.

94. 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 48 of 62 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) ".

95. In Jai Narain Vs. MCD 19481997 FAC (SC) 415 the Hon'ble Apex Court observed as under:

" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... 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.".

96. Rule 23 prohibits addition of colouring matter in food articles other than CC No. 137/02 DA Vs. Mukesh Kumar Page 49 of 62 those specifically permitted. Rule 29 deals with the food articles in which the colour can be added and Rule 28 lists the artificial/synthetic colours which can be added to the food articles. Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours as listed in Rule 28 are permitted to be added. The standard of Dal Arhar as given in item A.18.06.09 has to be read with the general standard of food grains as given in item A.18.06 of Appendix B. Item A.18.06 specifically prohibits the use of colouring matter as it says they shall be free from added colouring matter. As per the standard of Dal Arhar no colour can be added to it. Hence no colour could be added to Dal Arhar.

97. The observations made by the Hon. Apex Court in Jagdish Prasad Vs. State of West Bengal 19481997 FAC (SC) 56, may be noted. The Hon. Apex Court observed in Para 9 and 10 as under:

"(9) ............. In Andhra Pradesh Grain and Seeds Merchants Association Vs. Union of India and anr. 19481997 FAC (SC) 283.............. Under Section 23 (1)

(b) the Central Government makes rules prescribed the standards of quality and the limits of variability permissible in any article of food. The Rules are made after consultation with the Committee for Food Standards. The Standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for standards"

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health CC No. 137/02 DA Vs. Mukesh Kumar Page 50 of 62

98. Regarding the defence plea that the addition of the colour did not make the Dal 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 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.".

99. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".

100. Similarly in Mithilesh Vs. State of NCT of Delhi decided on 28.05.2014 the Hon. Apex Court while dealing with a case of addition of salt to chillies the Hon. Apex court observed as under:

"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act.

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AS pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".

101. 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.".

102. When a prohibited/foreign matter is discovered in the the article of food the accused must be held to have contravened the provisions of the Act and the prosecution in such a case is not expected to go further and enlighten the court as to the quantity, quality, genesis etc. of the extraneous matter irrespective of whether it is injurious or not. Reliance may be placed upon In Re Abdul Azeez 1963 KLT 698 and Abdul Hameed Vs. Mohd. Khanifa 1962 KLT 405.

103. 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 52 of 62 the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

104. 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.

Report on old Proforma

105. It was also argued by Ld. Defence counsel that report of Director cannot be relied upon as the same is on old proforma. It was argued that the proforma/Form II on which the report is to be furnished by the Director was amended w.e.f. 29.01.2003, still the Director gave his report on the old proforma and hence no reliance can be placed on the same. Reliance was placed on Administrator, Silliguri Municipality Vs. Hira Lal Goala 1974 FAC 44. However I do not agree with the averments of Ld. Defence counsel. No doubt the Director's report dated 18.02.2003 is on old proforma however the same is merely an irregularity and not illegality so as to completely wash off the report of the Director. It is merely a procedure lapse/ technical error which has not caused any prejudice whatsoever to the accused. Moreover, I agree with the contentions of the Ld. Defence counsel that the amendment came only 20 days back i.e. the report is of 18.02.2003 and amendment came on 29.01.2003 and may be the amended proforma was not ready/printed or not available with the CC No. 137/02 DA Vs. Mukesh Kumar Page 53 of 62 Director at such a short notice/time being. As far as the case law relied on by the Ld. Defence counsel is concerned same is not applicable to the facts of the present case as in that case the Court was not satisfied regarding the seals on the sample remaining intact till the time of analysis.

Paper Chromatography Test

106. It was further argued that as the Director did not give his report on the new proforma wherein it had been made incumbent upon the Director to give the name of the test method applied for analysis of the food sample it seriously prejudiced the accused as the usual method for analysis is paper chromatography method which is not a reliable method to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. The Director's report has been made conclusive and final as per section 13 of the Act. The report having remained unchallenged I find no reasons to disbelieve the same. Reliance may be placed upon the law laid down in Magal Dass Raghavji vs. State 19481997 FAC (SC) 239, Sukamal Gupta Vs. Corporation of Calcutta 19481997 FAC (SC) 264, Richpal Vs. State (Delhi Administration) 1988 (2) DL 422 and Mohd. Hussain Vs. State (Delhi) 1989 (1) FAC 206.

CC No. 137/02 DA Vs. Mukesh Kumar Page 54 of 62

107. Furthermore, Paper Chromatography is just one of the method prescribed in the manual for analysis of the food products. There are many other method available with the Director for the analysis of the sample and he has the absolute discretion to use any of the permitted method. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

"18. Another ground for reversing the judgment of conviction taken by the learned A.S.J. ws the photochromatic test was not a reliable test to conclude presence of colouring matter. The learned ASJ relied on a a judgment of Punjab and Haryana High Court in Bansi Lal V. State of Haryana, 1993 (1) FAC 117. The observations about the authenticity of photochromatic test are only relevant where the Public Analyst is to determine the presence of a permitted or unpermitted coal tar dye. In Balmukand Singh V. State of Punjab, 2008 (2) FAC 104 : 2008 Crl. L.J., 1084, the learned single judge of Punjab and Haryana High Court held that paper chromatography test is not sufficient to conclude whether permitted or unpermitted colouring matter has been used in the sampled food article. To the same effect, are the observations of the learned Single Judge of this Court in State V. Subhash Chand, 2012 (2) JCC 1052. In the instant case, the artificial colour permitted by Rule 28 were also prohibited by virtue of the standard laid down in Item No. A.18.06 and 18.06.09. If the Respondent was not satisfied with the report of the Public Analyst, he had the option to get it analysed by Director CFL. The method of analysis or the ways applied could not be challenged by the Respondent in view of the judgment of the Supreme Court in Dhian Singh ( Dhian Singh Vs. Municipal Board Saharanpur, 1973 FAC 404 and ) , where it was held as under:

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under CC No. 137/02 DA Vs. Mukesh Kumar Page 55 of 62 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."

108. The judgment passed by the Hon'ble High Court of Delhi in Ashwani Kumar's case (supra) was challenged vide SLP no. 5014/2013 however the SLP was dismissed by Hon'ble Apex court vide orders dated 11.07.2014. Percentage of colour

109. It was further argued that in the report of 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 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 CC No. 137/02 DA Vs. Mukesh Kumar Page 56 of 62 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 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.

Warranty

110. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor/retailer had purchased the article from M/s Ashok Kumar Sanjay Kumar, Grain Merchants & Commission Agents, vide no. 14536 dated 29.12.2001 and therefore he was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued on behalf of accused that he had purchased the article from the above manufacturer / CC No. 137/02 DA Vs. Mukesh Kumar Page 57 of 62 dealer and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused.

111. However I differ with the contentions of the Ld. defence counsel. In order to seek the benefit of Section 19(2) r/w Section 14 of the Act, the vendor was obliged to prove that he had purchased the article of food in question from a manufacturer / distributor or dealer with a written warranty in the prescribed form and that the article of food so purchased was properly stored while it was in his possession and he sold it in the same state as it was purchased by him. Proviso of Section 14 creates a fiction that a bill, cash memo or invoice given by distributor or dealer to the vendor shall be deemed to be a warranty. Hence, even if the vendor is unable to produce a warranty in Form VIA, the bill or cash memo given to him by the manufacturer or distributor will be enough to satisfy the requirements of sub section (2) of Section 19 of the Act. Reliance may be placed upon AIR 1960 SC 12 and AIR 1984 SC 192.

112. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of CC No. 137/02 DA Vs. Mukesh Kumar Page 58 of 62 Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.

113. In P. Unnikrishnan Vs. Food Inspector, Palaghat Municipality, Kerla, 1996 (2) FAC 25, the Hon'ble Apex Court emphasized that the article should be sold in the same condition by the vendor as it was purchased by him. It was held in para 6 as under:

"..........................admittedly the article was in sealed tins which were not tempered, with a label to the effect that it was a product of M/s Tajus Productions. The accused sold it in the same manner and condition in which it was purchased by him."

114. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.

CC No. 137/02 DA Vs. Mukesh Kumar Page 59 of 62

115. In the case at hand, benefit of warranty cannot be granted to the accused for numerous reasons. Firstly, the genuineness/ authenticity of the claim of the accused of having purchased Dal from M/s Ashok Kumar Sanjay Kumar remained highly doubtful. He did not prove the authenticity/ genuineness of the above bill during the trial. No evidence was led by the accused to prove that the bill on the basis of which he was claiming warranty was genuine/authentic. No defence evidence was led by the accused in this case. Though on his request summons were issued to M/s Ashok Kumar Sanjay Kumar however the process was received back in the court with the report that no such firm exists on the address appearing on the bill. The bill could not be proved as per the Rules of evidence. The author/executor of the bill was never examined, it does not bear the signatures of the accused and therefore its genuineness could not be established. The proprietor/owner/partner of M/s Ashok Kumar Sanjay Kumar was never brought in the witness box/produced in the court by the accused to substantiate his claim that he had purchased the sampled dal from him/ M/s Ashok Kumar Sanjay Kumar vide the above bill. Secondly, it is not disputed that when the sample of Dal was lifted it was lifted from an open gunny bag. Hence even if it is assumed that the accused had purchased the Dal from M/s Ashok Kumar Sanjay Kumar (though not proved by the accused) still he is not entitled to warranty as the accused could not prove that he had stored the Dal in the same condition in which he had purchased it. To claim the benefit of warranty, it was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but further that they were sold in the same condition/state. Once the bag is CC No. 137/02 DA Vs. Mukesh Kumar Page 60 of 62 opened and sold loose at his shop the warranty itself lapses. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode/condition in which he purchased" without interfering with its package i.e. without opening it. For example tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the manufacturer/supplier who no longer has control over CC No. 137/02 DA Vs. Mukesh Kumar Page 61 of 62 the articles so sold. In the case at hand the accused claims to have purchased around 100 KG of Dal in stitched bag however when the sample was lifted it was lifted from an open gunny bag having a capacity of 3035 KG as deposed by the prosecution witnesses and there was only 1015 KG of dal in the bag. Hence he is not entitled to any warranty.

116. 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, the accused stands convicted under Section 2 (ia) (j) & (m) of PFA Act 1954.

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

Announced in the open Court                                      (Gaurav Rao)
on 13 February 2015                                          ACMMII/ New Delhi




CC No.  137/02
DA  Vs. Mukesh Kumar                                                              Page 62 of 62

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