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[Cites 30, Cited by 0]

Delhi District Court

Additional Sessions Jugde New Delhi vs State (Delhi Administration) on 1 July, 2008

                                     1

                    IN THE COURT OF SHRI S.K. SARVARIA
                 ADDITIONAL SESSIONS JUGDE NEW DELHI
Criminal Appeal No. 10/03
Rajkumar son of 
Sh Sohan Lal Arora
R/o 32­A, Ramesh Nagar, 
New Delhi.
                                                   Appellant


                           Versus


State (Delhi Administration)



                                                   Respondent



Criminal Appeal No. 2/04

Subey Singh son of Meer Singh
R/o A­12, Sector 56, Noida (UP).


2. M/s Nagar Milk Products
Kuchesar Road,
Chopla, Ghaziabad (UP)
                                                         Appellants
                           Versus
The State ( Delhi Administration )
                                                   Respondent 
                                                 2

Date of Institution                    19.4.03 & 17.4.03

Date when arguments were               04.6.2008

heard

Date of Judgment                       1.7.08



JUDGMENT

By this judgment I shall decide two appeals bearing CA No. 10/03 and CA No. 2/04 as both these appeals arose out of the same judgment dated 6.3.03 passed by learned Metropolitan Magistrate, New Delhi by which he convicted both the appellants under section 7/16 of Prevention of Food Adulteration Act ( in short PFA Act). By subsequent order on sentence dated 21.3.03 the ld trial court has sentenced the appellant Rajkumar to undergo rigorous imprisonment for six months and to deposit fine of Rs 3000/­ and in default of payment of fine he was directed to undergo simple imprisonment for three months. The appellant Subey Singh was sentenced to undergo rigorous imprisonment for a period of nine months and to deposit fine of Rs 2000/­ as fine and in default of payment of fine to undergo simple imprisonment for a period of three months. There was another accused before learned trial court which is M/s Nagar Milk Products which was sentenced to deposit a sum of Rs 10,000/­ as fine and this appellant has not preferred any appeal against the impugned judgment of the learned trial court before this court.

BRIEF FACTS 3 The prosecution case in brief is that on 30.11.92 at about 10.30 am Food Inspector Sh Prem Nath Khatri purchased a sample of full cream milk for analysis from appellant Rajkumar at Royal Bakers, 32­A Ramesh Nagar, New Delhi where the said food article was found stored for sale for human consumption. The appellant was also found conducting the business in the said shop. Out of the sample milk taken after alleged proper homogenization by cutting open poly packs, Food inspector divided the sample into three equal parts and put it in three bottles and 20 drops of formalin were also added in each bottle. One of the counter part of the sample was sent to the Public Analyst who gave his report stating that the milk was adulterated. Thereafter one of the accused persons exercised the right under section 13(2) of PFA Act and the second counter part of the sample was sent to Director CFL Mysore for analysis who also found it to be adulterated. After obtaining the sanction for prosecution from competent authority the complaint was filed against both the appellants as well as against M/s Nagar Milk Products.

NOTICE Separate Notices under section 251 CrPC for the offences punishable under section 7/16 PFA Act were given to the appellants to which they pleaded not guilty.

PROECUTION EVIDENCE In support of its case the prosecution has examined three witnesses in all. PW1 Sh P.N.Khatri, Food Inspector, PW2 L.H.A. S.K. Nanda and PW3 Rajesh Kumar, Food Inspector.

4

PLEA AND DEFENCE OF THE ACCUSED In his statement under section 313 CrPC the appellant Rajkumar admitted that at about 10.30 am Food Inspector Sh. P. N. Khatri purchased 750 M.L. full cream milk vide vendor receipt Ex PW1/A which was signed by the appellant and he divided it equally into three parts by pouring into three clean and dry glass bottles separately and 20 drops of formalin was added in each part and were shaken gently. He also admitted that each counter part of the sample was properly packed, fastened, marked and sealed as per PFA Act. He also admitted that panchnama Ex PW1/C was prepared and was read over and explained to the appellant. He has taken the defence that he had purchased the Nagar Milk in sealed polythene bags for the first time on the date of sampling . Appellant Subey Singh came to his shop and introduced himself as the manager of Nagar Milk and left five carates of Nagar Milk in sealed pouches for sale at his shop. On demanding the bill he stated that he will come in the evening carry back the unsold milk and issue the bill actually sold. In the evening after learning about the sample he evaded to give bill in spite of repeated requests. The appellant Rajkumar has stated that he was innocent. He did not adulterate the milk in any manner and sold the milk in which it was supplied to him by the appellant Subey Singh.

The appellant Subey Singh in his statement under section 313 CrPC has feigned ignorance about the sample taken by the Food Inspector f rom the shop of the appellant Rajkumar. His case is that in the year 1992 there was no standard for full cream milk. The Director CFL Mysore judged the sample by 5 applying wrong standard of buffalow milk. He has stated that he was innocent and has been falsely implicated . HE also stated that during pasturisaton a thin creamy layer separates which can not be homogenized by the process of pouring and repouring the milk.

In the defence evidence appellant Rajkumar got himself examined as DW1 and the other appellant Subey Singh did not lead any defence evidence. FINDINGS:

I have heard the learned counsel for the appellants and the learned Special Public Prosecutor for the respondent State and have gone through the written arguments filed on behalf of the appellant, the trial court record, the appeal files and the authorities produced, carefully.
It is argued on behalf of both the appellants that no standard of the full cream milk was prescribed in the PFA Rules at the time of lifting the sample, i.e., 30/11/1992 and it is only on 20/5/1996 the standard of full cream milk was inserted by way of the amendment in the said Rules. Therefore, the appellants are entitled to be acquitted. This argument is strongly opposed on behalf of the respondent. According to learned Special Public Prosecutor for respondent State, as per Appendix­B of PFA Rules, 1955 at A .11.012 .11 in the last Note (1), it is specifically notified that" when milk is offered for sale without indication of the class, then the standard prescribed for buffalo milk shall apply.".

According to him the word" shall" means "must".

I do not find any Rule A .11 .0 12.11 in the Appendix­B of the PFA Rules, 6 1955 though it is pointed in the written arguments of learned Special Public Prosecutor. As per AppendixB of PFA Act by its item No. A .11 .01 .10­A the full cream milk means the milk or a combination of buffalo or of cow milk or a product prepared by combination of both that has been standardised to fat and solids not fat percentage given under item A .11 .0 1.11, by adjustment/addition of milk solids. The full cream milk shall be pasteurised. It shall show a negative phosphates test. It shall be packed in clean, sound and sanitary containers properly sealed so as to prevent contamination. But this definition and standard for full cream milk was inserted by G. S. R. 223 (E), dated 20/5/1986 and were made effective with effect from 20/11/1996. Therefore, as on 30/11/1992, the date on which the sample was lifted by the food inspector, there was no standard of full cream milk prescribed in Appendix B of the PFA Act. PW2 the Local Held Authority Shri S. K. Nanda has admitted in the cross­examination that it was correct that there was no specified standard for full cream milk at the time when the sample was taken. Therefore, in the light of the above case law, the standard prescribed for buffalo milk or cow milk or other categories of milk could not be applied for analysis of sample of full cream milk prior to 20/11/1996. Therefore, I find great force in the above submissions of learned counsel for the appellants which find support from the following case law:

In Hindustan Lever Ltd v. Food Inspector and another 2006 (1) FAC 237 (SC), it was observed as follows :
"7. ............ Any prosecution in regard to an article for which no standards have been laid, 7 applying the standards for other articles would not be sustainable."

In Lekh Raj v. The State 1980 (II) FAC 166 (P & H), relied on behalf of the appellants, it was observed as follows :

"7. On the other hand, fruit­cream prima facie does not come within the description of ice­ cream, Kulfi or chocolate ice­cream nor can it be basically described as a frozen product. In ordinary parlance fruit­cream does and can mean merely the admixture of fruit with cream and this would be so irrespective of any element of even cooling far from freezing. For example, strawberry with cream, or mixed fruit with cream, and similar products which may be fairly labelled as fruit­cream have no identity with the frozen product implied in the term ice­ cream or Kulfi etc. Therefore, there is no warrant to hold that fruit­cream and ice­cream are either identical or changeable terms. I am conscious of the fact that food adulteration is a great social menace which deserves to be put down with a heavy hand, yet the known canons of interpretation of a penal statute, namely, that it must be strictly construed, cannot be either lost sight of. It must, therefore, be held that fruit­cream being not ice cream would not come within the ambit of the standards prescribed in item A. 11.02.08 of the Prevention of Food Adulteration Rules, 1955."
8

In M.V. Krishna Nambissan v. State of Kerala 1979 (I) FAC 79 (SC), relied on behalf of the appellants it was observed as follows :

"5. It will be seen from the definitions of the various products in Appendix B to the Rules, which we have already extracted, that wherever the rule­making authority intended to prescribe a specific standard fro the contents of a product, it definitely states so. The standards of solids­not­fat are fixed for the milk of cow, buffalo, goat or sheep though standards are fixed for the said milk products, in defining "skimmed milk" "deshi (cooking) butter" and skimmed milk dahi or curd" the standard of quality is prescribed with reference to other products. But when we come to butter­ milk, no standard for its contents either specifically or with reference to other items is prescribed. A comparative study of the said items leaves no room for doubt that rulemaking authority, for reasons, which, we think, are obvious, has not thought fit or feasible to prescribe any such standard in regard to the contents of buttermilk. We cannot by interference read something in the definition of buttermilk which is not there. The reason for this ommission is presumably due to the fact that it is not possible to maintain in butter­milk the same percentage of solids­not fat content as is found in curds or milk, for water will be added in the process of making butter­milk owing to the fact that butter grains in the churn 9 are washed with cold water which will run off into the butter­milk. Anyhow, we would prefer to rest our judgment on the absence of fixation of any standard in respect of butter­milk rather than on the process of conversion of curds into butter ­milk. We should not be understood to have expressed any view on the question whether a prosecution could be launched for adulteration of butter­milk under some other clauses of the definition of "adulterated" in Sec. 2 of the Act, for in the present case the prosecution was only for not maintaining the standard.
6. In the result, the order of the High Court is set aside and that of the District Magistrate is restored. The fine, if it had already been collected shall be refunded.
In Kali Charan v. State of U.P. 1996 (V­VI) All India Prevention of Food Adulteration Journal (AIPFAJ) 259 (All), relied on behalf of the appellants, it was observed as follows :
"5. I find force in the argument of the learned Counsel for the petitioner. Item A.11.01.11 of Appendix­B of the Prevention of Food Adulteration Rules, 1955 did not specify any standard for mixed milk either that of buffalo, cow or goat or that of cow and goat. The standard for mixed milk was prescribed vide Notification No. G.S.R. 55(e), dated 31.1.1979 10 as 4.5% and 2.5% respectively on all India basis. Since on 6.7.1977 when the sample was seized, 2.9.1977 when it was received in the Laboratory and on 13.10.1977 when the report was prepared by the Analyst, no standard for mixed cow and goat milk was prescribed and, therefore, there was no question of the sample being adulterated for the reason that at the relevant time no standard whatsoever for the mixed milk was prescribed. In the above circumstances, it is not possible to sustain the conviction of petitioner for the offence punishable under Section 7/16 of the Prevention of Food Adulteration Act. In holding the above view I am fortified by the ratio laid down in Vakil Uddin v. State of U.P. 1981 UPCLR 426."

It is not disputed that there is variation in the report of the public Analyst and the Certificate issued by Director CFL in this case. As per the report of Public Analyst Ex PW1/G the milk fat contents were found to be 4.7% and milk solids not fat 8.9% while according to the Certificate issued by Director CFL ExPX the milk fat in the sample was 4.2% while milk solids not fat 9%. It is not disputed that the Certificate of Director CFL would supersede the report of Public Analyst. But the question arises whether the difference between these two sample analysis has any other effect or whether this difference or variation conveys some other meaning to be be interpreted for ancillary or collateral purpose to know the representative character of the sample? The answer lies in 11 the following case law:

In State v. Mahender Kumar and ors. 2008 (1) FAC 177 (Del), it was held as follows:
"11. While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than by .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI.
12. In Kanshi Nath v. State even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan 12 Sarup 1972 FAC 273, this Court observed as under (PFA Cases, p. 227):
Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained.
13. Following the said judgment of this Court in Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative. The conviction of the Respondents can, therefore, not be sustained in law. Accordingly, the impugned order of the ASJ acquitting the Respondents calls for no interference."

In MCD v Jawahar Lal 1980 (II) FAC 145 (Del), it was observed as follows:

"6. Without expressing our opinion with regard to the representative nature of the sample, we are inclined to accept the second submission sought to be urged by Shri Soni. From the certificate of the Director it cannot be inferred that any water had been added to the milk. The non­fatty solid falling below the prescribed standard would only justify an inference that because of the excess in fat contents either the cow was not properly fed or the report of 13 the Public Analyst was erroneous. Shri Randhir Jain, however, contends that to accept this contention would amount to holding as enquiry into the certificate of the Director. Further, no ground has been made out by leading evidence to challenge the correctness of the same which, in law, is conclusive of the facts stated therein. That being so, this will be embarking upon the domain of conjectures in accepting the submission of Shri Soni. We do not agree. When asked to explain for the presence of large quantity of fat contents in the sample than the prescribed standard, Shri Jain had no answer. As a matter of fact a question was addressed to Shri .P. Sharma, Public Analyst who was examined as D.W. 1 by asking him to describe reasons for a sample containing 8.14 per cent milk solids not fat and at 5.1 per cent when tested in August 1976. On again being tested on or about 25th January, 1977 would be found to contain 4.8 percent fat and milk solids not fat 7.7 percent. Shri Sharma stated that he could not give any rationable or scientific reasons for such a difference.
7. Admittedly, the sample taken was that of cow's milk and that being so the fat contents ought to be 3.5 percent. Making allowance for marginal difference the fat contents could not be 4.8 percent in cow's milk. There is thus no escape from the inference that either the test conducted was erroneous or that there was imbalance in the fodder fed to the cow which resulted in the high percentage of fat present 14 in it while giving lower percentage in solids not fats. In this view of the matter the question of law, including the one with regard the maintainability of the appeal, are not required be gone into."

In MCD v. Lala Ram and anr, 1980 (II) FAC 147 (Del), it was held:

"3. It is true that the certificate of the Director supersedes the report of the Public Analyst and that the report of the Public Analyst cannot be made the basis for recording conviction or acquittal of an accused person, but in the instant case what has shocked us is that the two samples, one sent to the Public Analyst seeking his opinion and the other counter­part sent to the Director seeking his opinion, appear to be absolutely divergent and different from each other. The Learned counsel for the appellant was unable to explain the circumstances under which the divergent results were given by the two Com­ petent authorities in examining the sample. It is for this reason that we have looked into the report of the Public Analyst more so when the consequences involved are penal and the minimum sentence of imprisonment to be awarded to a delinquent person found guilty of having committed an offence under the Act, is 6 months, Rigorous Imprisonment. As per his certificate dt. Dec. 3 1976, the Director found not only "a few dead and living insects"

but also "excessive amount of foreign seeds"

in the counter­part of the sample. Not only this, the Director did not find any rodent 15 excreta as was found by the Public Analyst. As earlier noted in this judgment, the Public Analyst did not find edible seeds other than cumin seeds in the sample and the remark given in his report against the column "Edible seeds other than cumin seeds" was "Nil".

Similar remark was given by the Public Analyst in his report against the column "Insect infestation per 100 gms." It is really strange as to how, if the sample was the same, the Director was able to find a few dead and living insects besides noticing excessive amount of foreign seeds, more especially when the Director had certified that the seals of the sample sent to him were intact. We are conscious of the fact that in law the certificate of the Director supersedes the report of the Public Analyst and that it is the certificate of the Director alone which has to be taken into consideration for recording acquittal or conviction against an accused person, but in the circumstances noted above, we are compelled to look into the report of the Public Analyst as well. We may warn that this judgment not be taken as a precedent for comparing the certificate of the Director with the report of the Public Analyst, as in the peculiar circumstances of this case, we were, as noted earlier, compelled to look into the report of the Public Analyst, because it was pointed out by the learned Counsel for the respondents that the counter­part of the sample sent to the Director appeared to be sample of another person rather than of the 16 respondent."

In the light of the above case law it is clear that on account of the difference between the report of the Public Analyst and the Certificate issued by the director CFL with regard to counterpart of the two samples analysed by them, the inference arises that the sample lifted by the Food Inspector was not of representative character entitling the appellants to the benefit of doubt in these two appeals.

On behalf of the respondent State it is argued that the difference between the report of the Of the Analyst and that of Certificate issued by Director CFL is immaterial because the Certificate of the Director CFL supersedes the report of Public Analyst. Reliance is placed upon the following authorities:

In "Jagdish Prasad v. State of Delhi" AIR 1982 SC 57, it was observed as follows:
"4. The offence took place nearly eleven years ago and there is no evidence on the record to show what was the extent of insect infestation in the sample when it was taken. A rather interesting feature of this case is that when, on the application of the prosecution, the report of the Director of Central Food Laboratory was brought on the record of the case, the earlier report of the analyst was replaced by that report. The result is that though there is evidence on the record to show that the sample was "highly insect infested" on September 10, 1971 when the 17 Director of the Central Food Laboratory gave his report there is no evidence on the record to show as to what was the state of the sample on October 3, 1970. Shri Bawa Gurcharan Singh argues that in this state of affairs the appellant is entitled to an acquittal but we are not inclined to accept that submission. The evidence on the whole can be accepted as justifying the conclusion that on the date on which the sample was taken, it was insect infested within the meaning of section 2 (ia) (f) of the Act."

In Mathukutty v. State of Kerala , AIR 1988 Kerala 60, it was observed as follows:

"15. We are not impressed by the argument that because there is disparity in the results declared by the public analyst and by the Director of Central Food Laboratory and living insects were present at the time of analysis, it has to be assumed that sample contained only eggs or larvae at the time of the sale or that there was rapid growth of insects after the date of sale or that the sample was not insect infested at the time of sale and the percentage of insect damaged matter could have been below 5% or even negligible at the time of sale. The report of the public analyst is superseded by the certificate of the Director. Even if there is wide variation between the Director's certificate and analyst's report, the former supersedes the latter and the superseded report cannot be revived for any 18 purpose. The difference in the percentage of insect infested matter as reported in Ext. P6 and Ext. D1 cannot be an indication of any steady growth of insects or increase in infestation after the sale. One of us in Food Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224), after considering practically the entire case law on the point, including the decisions in Abdul Hameed v. Food Inspector, 1969 Ker LR 922, State of Kerala v.
Vasudevan Nair, 1974 Ker LT 617 : (1975 Cri LJ 97) (FB), State of Kerala v. P.K. Chamu, 1975 Ker LT 411 and State of Kerala v. K.C. John, 1978 Ker LT 738 : (1979 Cri LJ NOC
48), observed in para 23 :
".....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 analyses. 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 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 19 conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of Sub­Secs. (3) and (5) of S.13 of the Act."

We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the Public Analyst and the Director. Hence we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate."

In Jagdish Prasad's case (supra) both reports of Public Analyst and that of Director CFL were procured by the prosecution. The Certificate of Director CFL was sought by the prosecution as the percentage of the insect infection in the sample of raw mango peals was not given in the report of the Public Analyst. In that case the Certificate of Director CFL was not obtained by sending sample to him on the request of the accused made under section 13 (2) of the PFA Act. The right under this provision of law is exercised by the accused to challenge the report of the Public Analyst. Therefore, the Jagdish Prasad's case (supra) is distinguishable on facts and inapplicable to the present appeals. The observations of Kerala High Court in Mathukutty's case (supra) being in conflict 20 with the consistent view of our Hon High Court in Lala Ram's case (supra), Jawaharlal's case (supra) and the recent Mahender Kumar's case (supra) does not help the respondent State in these appeals.

The next argument on behalf of the appellants is that there was delay in filing the complaint and also in sending the counterpart of the sample to Director CFL. The sample was lifted on 20/11/1992 and the complaint was filed on 10/5/1993 before learned Metropolitan Magistrate and the sample was analysed by Director CFL Mysore on 26/7/1993, i.e., after about eight months of lifting of the sample and by that time it was not fit for analysis.

In Gian Chand v State,1978 (I) FAC 15 (Del), relied on behalf of the appellants it was observed as follows:

"9. The Food Inspector, when he appeared. during the trial did not say that the sample retained by him was kept in a refrigerator. In Municipal Corporation of Delhi vs. Ghisa Ram 195I­77 F.A.C. (SC) 93: 1975 (I) F.A.C. 186 their Lordships of the Supreme Court observed as under:
"The opinion of one of the experts, Dr. Sat Parkash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a. week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand if the sample is kept in a refrigerator, it will, 21 preserve its fat and non­fatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non­fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months."

Normally the sample with the Food Inspector, to which preservative had been added, could not have remained fit for analysis after more than six months even if it had been kept in a refrigerator. There being no evidence to that effect it will have to be presumed that it was not kept in a refrigerator and, therefore, decomposition should have taken 22 place earlier, particularly as the months of August and September are fairly hot.

I am, therefore, inclined to agree with the learned counsel for the petitioner that the genuineness of the sample which had been produced before the trial Magistrate, on January 3, 1966, is not beyond doubt. The seal having remained with the Food Inspector a change of the sample was not impossible. Except on the basis that the sample was changed before being produced on January 3, 1966 it is difficult to explain the fact that it remained in a fit condition for analysis after eight months without being kept in a refrigerator."

In State v. V.K. Muttoo and Ors Criminal Appeal No. 144 of 1996, Decided On: 13.11.2007 (Del), it was observed as follows:

"8. ........Hon'ble Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram 1975 PFA cases 186. In that case complaint was filed in the court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under Section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied 23 to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Learned APP had submitted that this judgment was not applicable to the facts of the present case inasmuch as in that case the Director of Central Food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superceded the report of the Public Analyst so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13(2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the sample which was sent to the Director of Central Food Laboratory was found to be fit for analysis. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kind of cases should 24 be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the sample of the paneer was sent to the Central Food Laboratory after more than seven months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. In these circumstances, if the learned Trial Court has come to the conclusion that the accused's right under Section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable, wholly unjustified or perverse."

In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:

"9. ........Learned Trial Court has relied upon one judgment of the Hon'ble Supreme Court in 'Municipal Corporation of Delhi v. Ghisa Ram 1975 (I) PFA cases 186. In that case the complaint was filed in Court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that 25 in these circumstances, the valuable right available to the accused under section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Mr. Dudeja, learned APP had submitted that this judgment was not applicable to the facts of the present case since in that case the Director of Central food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Directory which, if had been given, would have superseded the report of the Public Analyst and so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13(2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the third counter part of the sample which was sent for analysis, as per the CFL report, did not conform to the prescribed standard. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present 26 case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time frim taking of the samples to sending it to CFL. PW­5 FI, Rajesh Kumar in his cross­examination has categorically stated that their department had not refrigerator in the office and the sample bottles were kept by them at ordinary room temperature in steel Almirah. I these circumstance, if he learned Trial Court has come to the conclusion that the accused's righty under section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable."
27

In Municipal Corporation of Delhi and R.N: Gujral, Asst. Municipal Prosecutor v. Bishan Sarup 1972 FAC 273 (Del), it was held that if on account of delay or lapse on the part of the prosecution to institute a prosecution this valuable right of the accused is in any way impaired the question becomes of paramount importance for the purpose of determining if the defence was prejudiced on this account. If prejudice is caused to the accused on accused on account of the delay in the institution of the prosecution, as when the sample is rendered unfit for analysis in the meanwhile, or deterioration of the sample is proved to have occurred in the meanwhile, then the accused is entitled to the benefit of doubt, as the prosecution itself, in such a case prevents the accused from getting the final verdict to which he is entitled under Section 13 of the Act.

In The State of Punjab v. Balwant Singh 1992 (II) Recent Criminal Report (R.C.R.) 57 (P & H), it was observed as follows:

"8. Another aspect of the matter is that the sample was received by the Public Analyst on 26­6­1985 and it was analysed on 26­7­1985 as is evident from the report Ext. PD. This report was forwarded to Shri S. L. Lamba, Food Inspector on 2­8­1985 for launching prosecution against the accused. Complaint dated 13­8­1985 was filed in the Court. A latter dated 14­8­1985 issued by the local Health Authority was received by the accused along with a copy of the Public Analyst's report wherein a direction was issued to the accused that if he was interested, he could get the second sample tested from the Central Food 28 Laboratory Ghaziabad and if he so desired, he could ask for the same within ten days of the receipt of the letter. On 20­8­19856, the accused moved an application for producing the sample in the Court. The sample was produced in the Court on 18­10­1985 and it was analysed by the Central Food Laboratory on 28­10­1985. Thus the whole process consumed more than four months resulting in violation of the provisions of Section 13(2) of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such requisition from the Court. Where sample of food article like milk which is of perishable nature is kept for such a ling time of more than four months at room temperature (Particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. Had moved the application on 20­8­1985 for production of the sample in the Court but it was produced on 18­10­1985. To add to the miseries of the accused it was analysed on 28­10­1985 i.e., much more than four months from the taking of the sample. Under these circumstances, non­ production of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution."

In Ram Singh v. State of M.P. 2005 (IV) RCR (Criminal) 184 (MP), it 29 was observed as follows:

"11. It is not in dispute that right to examine the remaining sample from Central Food Laboratory was valuable right of the applicant and this could not be destroyed by the prosecution and it is settled position of law that after 6 months preservative mixed with the milk has and lost its strength as deteriorated and the sample does not remain fit for analyses. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice under Section 13(2) was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central food Laboratory. So this cannot be said that the application under Section 13 (2) of the Act was not moved by the applicant even after receiving the said notice Ex.P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an application was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample.

My aforesaid view is supported by the decided case of this Court in the matter of Shiv Dayal Saligrarn Tiwari v State of Madhya Pradesh,1977 MPLJ 169 in which it was held as under :­ "Held, that in any case by the time the 30 accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right under Section 13(2) because of the inordinate delay in launching prosecution and he was entitled to acquittal. 1967 M.P.L.J. 640: AIR 1967 SC 970 and 1974 M.P.L.J. 241, Rel. AIR 1971 SC 1277 and AIR 1972 SC 1631, Dist. AIR 1951 Nag. 191, Ref. (Paras 6.7). Quoted from Pla­ citum."

In view of the aforesaid, it is apparent that the applicant was deprived of his valuable right under Section 13(2) of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was neither examined nor considered by the Courts below and due to this apparent perversity the judgments of the Courts below are not sustainable in law."

In Gopi Ram v. The State of Haryana 1987 (I) FAC 153 (P & H), it was observed as follows:

"4. The petitioner was served on March 21, 1979 for, appearance in Court i e. exactly four months after the date on which, the sample was taken In the wake of, the above finding, it is only after March 21, 1979 that the, Petitioner could be expected to apply to the Court for sending the second sample for re­analysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned counsel has placed 31 reliance upon the observation of Their . Lordship of the Supreme Court in Municipal Corporation of Delhi v, Ghisa Ram, 1975 (I) FAG 186 as followed by this Court in Resham Singh v. The State of PunJab, 1972 FAC 732 that even if a preservative is added in the sample of milk at room .temperature, the percentage of fat and ­non­fatty, solids contents for purposes of analysis will be retained only for about four months. This period having already elapsed, it has been rightly argued that petitioner was deprived of his valuable right causing him serious, prejudice. "

In Makhan Singh v. State of U.P 1988 (II) FAC 62 (All), it was observed as follows:

"3. The contention of the revisionist is that an account of undue delay in filing the Complaint against him for the alleged adulteration and also on account of inordinate delay in sending the report of the Public Analyst to him be was 'deprived of his valuable right to move for obtaining the report of the Director of Central Food Laboratory under Section 13(2) of the Act with regard to the sample of the milk taken. His contention is that as the report of the Public Analyst was sent to him as late as on 12­1­1980 that is to say about 8 months after taking of the sample it was obviously quite useless for him to move far obtaining the, report of the Central Food Laboratory under Section 13 of the Act, 32 because by that time the sample must be decomposed and deteriorated and would not have remained fit for analysis his connection it is material to note that even the complaint against the , revisionist on the basis of the report of the Public Analyst seems to have been reveived in the Court on 10­1­80. The complaint is dated 31­12­79. The revisionist has relied on the cast of Municipal Corporation of .Delhi v. Ghisa Ram 1975(1) FAC 186 and Desh Raj v. State of U.P. 1985(I) FAC 135 in support of his contention. On account of inordinate delay the revisionist was virtually deprived of his valuable right under Section 13 of the Act to get the sample analysed by the Director of Central Food Laboratory. It was of no use to move for obtaining the report of the Director , of Central Food Laboratory as the sample kept in the office of Chief Medical Officer, must have decomposed and deteriorated making it unfit for analysis by the Director. Consequently, the conviction and sentences of the revisionist cannot be upheld in the revision. The revision has to be allowed."

In Sheikh Abdul v. State of Maharashtra 1986 (III) FAC 122 (Bom), it was observed as follows:

"2. ............The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 5­2­1980. The Authority, however, dragged its feet for the full 33 period of 4 months further and did not institute prosecution before 7­6­1980 and thereafter on 9­6­1980 a notice was given by the local authority to the petitioner under section 13 of, the Food Adulteration Act informing him that he was at liberty to send to the Director of Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2nd sample to be sent to the Director, by making an application in that behalf on or before 19­6­1980. The sample would have been thereafter sent to the Director. This means that the sample of the milk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that preservative was added. It has been held by our Court in 1982, Maharashtra Law Journal p.181 that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the sample for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted 34 to prove that the milk had remained in tact even after such a longer period, it was for the prosecution to prove that fact by examining proper experts in that behalf."

It is not disputed that the milk or milk sample is perishable item and by the addition of Formaline the milk sample can be preserved for a limited period. When the milk sample is analysed by Director CFL after more than 7 1/2 months when the sample has lost utility for analysis and was not fit for analysis the valuable right given by the legislature to the appellants under section 13 (2) of the PFA Act is lost and hence denied to them. The sending of sample for analysis to Director CFL after such a long period was a useless exercise with no evidentiary value attached to the Certificate issued by Director CFL. Therefore, in the light of the above case law the appellants are entitled to benefit of the fact that on account of denial of the said right to them for challenging the report of the Public Analyst by exercising the right under section 13 (2) Of the PFA Act the prejudice was caused to them.

In the light of the above discussion of the appellants are entitled to benefit of doubt in these appeals so there is no need for the other arguments raised in these appeals on behalf of the appellant is regarding missing of the link evidence or want of any cash memo or receipt issued by the appellant Rajkumar by the appellant Subey Singh or by Nagar Milk Product etc. RESULT OF APPEAL:

In view of the above discussion both the appeals are allowed. The judgement of conviction and and order on sentence sentence passed by the 35 learned trial court against these two appellants are set­aside. The appellants are acquitted of the charges under sections 7/16 of the PFA Act. A true copy of the judgement be placed on Criminal Appeal No. 2/2004 titled as Subey Singh Nagar versus Delhi Administration, Delhi which is also being disposed by this judgement. The bail bonds furnished in the appeals are cancelled. The fine if paid by these two appellants in terms of order of learned trial court be refunded to them by the learned trial court. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on 1st day of July, 2008 ( S.K. Sarvaria ) Additional Sessions Judge Patiala House Court 36