Delhi District Court
Da vs . Manoj Kumar Goel Page 1 Of 48 on 19 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 8/10
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
Manoj Kumar Goel
S/o Sh. Lakhmi Chand
M/s Aggarwal Store,
4572/15, Darya Ganj,
Delhi.
........ VendorcumProprietor
Serial number of the case : 08/10/14
Date of the commission of the offence : 31.03.2009
Date of filing of the complaint : 06/01/10
Name of the Complainant : Sh. Shyam Lal, Food Inspector
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DA Vs. Manoj Kumar Goel Page 1 of 48
Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act
1954 and 49 (24) of PFA Rules
1955, punishable U/s 16(1) (a) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 19.08.2014
Judgment announced on : 19.08.2014
Brief facts of the case
1. In brief the case of the prosecution is that on 31.03.2009 at about 04.30
p.m., Food Inspector Shyam Lal and FA Sh. Bhramanand, under the supervision and
directions of SDM / LHA Sh. N.K. Sharma visited M/s Aggarwal Store, 5472/15, Darya
Ganj, New Delhi, where accused Manoj Kumar Goel who was the vendorcum
proprietor was found present conducting the business of various food articles including
Mirch powder 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 Mirch Powder.
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 not
conforming to the standards of Chillies because total ash and ash insouble in dilute
HCL on dry basis exceeded the prescribed maximum limit of 8.0% and 1.3%
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respectively as well as it was coloured with unpermitted foreign soluble synthetic
coluring matter and accordingly after obtaining the necessary Sanction / Consent
under Section 20 of the Act the present complaint was filed for violation of provisions
of Section 2 (ia) (a) & (m) of PFA Act 1954 and Rule 49 (24) of PFA Rules 1955,
punishable U/s 16 (1) (a) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders
dated 06.01.2010. The accused after filing his appearance moved an application
under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample
from Central Food Laboratory and consequent thereto second counterpart of the
sample as per the choice of the accused was sent to Director, CFL (Pune) for its
analysis vide orders dated 30.01.2010. The Director, CFL after analysing the sample
opined vide its Certificate dated 11.02.2010 that " the above sample does not conform
to the standards of Chillies (Mirchi) Powder as per PFA Rules 1955 ". The Director so
opined as Non Volatile Ether Extract on dry basis was found less than the minimum
prescribed limit of 12%.
4. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act
1954, r/w Rule 49 (24) of PFA Rules, punishable U/s 16 (1) (a) r/w section 7 of the Act
was framed against the accused vide order dated 01.05.2010 to which accused
pleaded not guilty and claimed trial.
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5. The prosecution/complainant examined three witnesses including the
then SDM/LHA Sh. N.K. Sharma as PW1, Food Inspector Shyam Lal as PW2 and
Field Assistant Sh. Bhramanand as PW3 and PE was closed vide order dated
04.08.2012.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 20.02.2013
wherein the accused claimed himself to be innocent. Despite opportunity accused
failed to examine any witness in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1Sh. N.K. Sharma deposed that on 31.03.2009 he was posted as
SDM/LHA, Darya Ganj, Delhi and on that day he along with FI Sh. Shyam Lal and FA
Sh. Bhramanand under his supervision visited the premises of M/s Aggarwal Store,
5472/15, Darya Ganj, New Delhi where accused Manoj Kumar Goel was found
conducting the business of above mentioned kiryana shop/general store where various
food articles including Mirch Powder were found stored for sale. He deposed that first
of all FI disclosed his identity and intention to purchase a sample of Mirch Powder from
the accused for analysis to which he agreed. He deposed that before starting the
sample proceedings FI tried to associate some public witness in the sample
proceedings but none agreed then on request of FI FA Sh. Bhramanand joined as
witness in sample proceedings. He deposed that thereafter at about 04.30 p.m. FI
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purchased from the accused 750 gms of Mirch Powder which was lying in an open
plastic bag, bearing no label or declaration. He deposed that before taking the sample
Mirch Powder was mixed properly with the help of a clean and dry JHABA by rotating it
in all possible directions. He deposed that the so purchased quantity of sample
commodity was divided into three equal parts by putting it in three clean and dry glass
bottles. He deposed that all the three glass bottles containing the sample of Mirch
powder were separately fastened and sealed after affixing LHA slip thereon, bearing
his signature and code number. He deposed that vendor's signatures were obtained
on each counterpart in such a manner so as to appear partly on the LHA slip and
partly on the wrapper of the counterpart. He deposed that an amount of Rs. 45/ was
paid to the vendor towards the price of the sample commodity vide vendor's receipt
Ex. PW1/A, bearing signature of vendor at point A. He deposed that notice in form VI
was also prepared vide Ex. PW1/B and a copy of the same was given to the vendor as
per his endorsement at portion X to X, bearing his signature at point A. He deposed
that panchnama Ex. PW1/C was also prepared. He deposed that all these documents
were read over and explained to the vendor in Hindi and then he signed at point A,
witness signed at point B and FI signed the same at point C. He deposed that two
counterparts of the sample were deposited in a sealed packet with him on 01.04.2009
vide LHA receipt Ex. PW1/D under intimation that one counterpart had already been
sent to PA. He deposed that PA report was received vide Ex. PW1/E which revealed
that sample was not conforming to the standards. He deposed that accordingly on his
directions FI Sh. Shyam Lal conducted the investigation and after conclusion of
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investigation he put the case file before him and he forwarded the same to Sh. D.P.
Dwivedi, the then Director PFA who after going through the same gave his consent for
prosecution vide Ex. PW1/F. He deposed that thereafter FI Sh. Shyam Lal filed the
complaint in the court on his directions vide Ex. PW1/G. He deposed that intimation
letter along with copy of PA report was sent to accused through registered post on his
business as well as residential premises and the same was not received back
undelivered. He deposed that photocopy of intimation letter is Mark X and photocopy
of postal registration receipts are Mark X1 and X2.
8. During his cross examination he stated that there was approximately 2
Kg of Mirch powder lying in that plastic bag. He denied the suggestion that the
variation in two reports if any is indicative of the fact that sample was not taken
properly so as to form a representative one. He stated that the sample bottles were
not made clean and dry at the spot as they were already clean and dry. He stated that
he does not know as to when these sample bottles were issued by the PFA
Department to the FI. He denied the suggestion that some Mirch powder was already
there in the sample bottles when they were used in the sample proceedings. He
admitted that the Director, PFA had not directly instructed the FI to launch the
prosecution and that the FI was so directed by him. He voluntarily stated that same
was permissible to do so as the language used in the consent itself is indicative of the
same. He denied the suggestion that sanction was bad in law.
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9. PW2 Food Inspector Sh. Shyam Lal and PW3 FA Sh. Bhramanand have
deposed on the same lines as deposed by PW 1 in his examination in chief. In addition
PW2 Sh. Shyam Lal deposed that report under rule 9(e) was prepared vide Ex.
PW2/A. He deposed that during investigation he sent a letter to the accused vide Ex.
PW2/C and received his reply vide Ex. PW2/D along with photocopy of electricity bill
which is Mark X3 and photocopy of Voter I Card which is Mark X4. He further
deposed that he also sent a letter to ZHO, MCD vide Ex. PW2/E and a letter to VAT
Officer, Ward no. 11 vide Ex. PW2/F but did not receive any reply from those
departments. He deposed that on conclusion of investigations, it was found that
accused/vendor Manoj Kumar Goel was the proprietor of M/s Aggarwal Store and was
responsible for running its day to day affairs.
10. This so far is the prosecution evidence in the matter.
11. 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.
12. 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.
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13. It stands unambiguously proved from the deposition of the prosecution
witnesses especially Food Inspector Shyam Lal coupled with the report of the Director,
CFL dated 11.02.2010 that accused Manoj Kumar Goel was indeed found selling
Mirch powder which was not conforming to the standards as the Non Volatile Ether
Extract on dry basis was found at 11.37% against the minimum prescribed limit of
12%.
14. The star / the material witness of the prosecution i.e. Food Inspector
Shyam Lal categorically proved the sample proceedings dated 31.03.2009 as were
conducted in the presence of SDM/LHA. From the deposition of the prosecution
witnesses who duly corroborated each other, documents Ex. PW1/ A to C i.e. Vendor's
receipt, Notice Form VI and panchnama as well as 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 20.02.2013 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
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258, State of H.P. V. Wazir Chand AIR 1978 SC 315 coupled with document Ex.
PW2/D which is in handwriting of accused no doubt remains that the sample of Mirch
Powder was indeed collected by the Food Inspector for analysis from M/s Aggarwal
Store of which the accused is the proprietor cum vendor.
15. During the course of arguments, Ld. defence counsel appearing for
accused argued that the prosecution miserably failed to bring home the guilt against
the accused. It was argued that the prosecution story suffers from various
loopholes /contradictions.
Public witness
16. 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.
17. 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,
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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
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.
18. 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
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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.".
19. In Food Inspector Vs. G. Satyanarayan 2002 (2) FAC 102, the Hon.
Apex Court held as under:
".......Corroboration of the statement of main witness is not the requirement of
law but is only a rule of prudence.................
6. In the instant case, there was sufficient corroboration of the testimony of
PW1 as is evident from the seizure memo and the receipt obtained for sale besides
the report of the public analyst. The mere fact that the other witnesses cited by the
prosecution had not supported the case of the prosecution was no ground to reject the
testimony of PW1. In this case courts below have adopted a hyper technical
approach to hold that there was no corroboration because there were minor
discrepancies in the statement of PW1 and the other witnesses. It is not the number
of witnesses but it is the quality of evidence which is required to be taken note of by
the courts for ascertaining the truth of the allegations made against the accused.
Section 134 of The Evidence Act provides that no particular number of witnesses is
required for proof of any fact. If the statement of PW1 itself inspired confidence and
the sample was found to be adulterated, the courts below should have returned a
finding on merits and not to dismiss the complaint allegedly on the ground of non
corroboration of the testimony of PW1.
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State
20. 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.".
21. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:
"In our system of administration of justice no particular number of witnesses is
necessary to prove or disprove a fact. If the testimony of a single witness is found
worth reliance, conviction of an accused may safely be based on such testimony. In
our system we follow the maxim that evidence is to be weighed and not counted. It is
the "quality" and not the "quantity" of the evidence which matters in our system. This
cardinal principle of appreciation of evidence in a case has been given a statutory
recognition in Section 134 of the Evidence Act of 1872."
22. It is writ large from the deposition of PW1, PW2 and PW3 that FI Shyam
Lal 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
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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
23. 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 instrument i.e. jhaba with which the sample
was poured in the bottles. It was argued that Rule 14 of the Act is mandatory and not
directory and in case there is no strict adherence to Rule 14, benefit has to be given to
the accused. Reliance was placed on the law laid down in State of Gujarat Vs.
Harumal Retumal and others 2008 FAJ 292 (Guj), Koyakutty Vs. Food Inspector
2000 (2) FAC 238 and Shew Chander Mathur and anr Vs. State of Assam and
anr., 1991 (1) FAC 9.
24. However I differ with the contentions as raised by the Ld. defence
counsel.
25. I have heard the Ld. defence counsel, gone through Rule 14 and the
case laws relied upon by the Ld. defence counsel and perused the deposition of the
Food Inspector and other complainant witnesses. After going through the material
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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. Furthermore he should
sample the article in hygienic conditions. Reliance may be placed upon Varghese
Vs. Food Inspector, 1989(2) FAC 236.
26. I have perused the deposition of the Food Inspector i.e. Shyam Lal who
was examined as PW2. The Food Inspector deposed as under:
"........Before taking the sample, Mirch Powder was properly mixed with
the help of a JHABA, which was already lying in the sample commodity, by rotating it
in all possible directions. The so purchased quantity of sample commodity was divided
into three equal parts by putting it into 3 clean and dry sample glass bottles".
27. During his cross examination he stated as under:
"It is wrong to suggest that the variation between PA & CFL Report, if
any, indicates the fact that a representative sample was not taken in this case"
28. Similarly PW1 the then SDM/LHA Sh. N.K. Sharma deposed as under:
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"Before taking the sample Mirch Powder was mixed properly with the
help of a clean and dry JHABA by rotating it in all possible directions. The so
purchased quantity of sample commodity was divided into three equal parts by putting
it in three clean and dry glass bottles"
29. During his cross examination he stated as under:
".......It is wrong to suggest that the variation in two Report, if any, is indicative
of the fact that the sample was not taken properly so as to form a representative one.
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 some Mirch Powder was already there in
the sample bottles when they were used in the sample proceedings".
30. PW3 FA Sh. Brahamnand deposed as under:
" Before taking the sample, Mirch Powder was properly mixed with the
help of a clean and dry JHABA, by rotating it in all possible directions. Thereafter the
required quantity was weighed and it was divided into three equal parts by putting the
same into three clean and dry sample glass bottles."
31. During his cross examination he stated as under:
".....After mixing the sample commodity, it was weighed and then equally put
into three sample bottles. It is wrong to suggest that the variations between PA & CFL
Reports, if any, is due to the sample being unrepresentative"
32. Hence the prosecution witnesses consistently deposed regarding the
jhaba 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 as well as the jhaba were clean and
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dry. I have no reasons to disbelieve them. As discussed above I find no reasons why
the FI or the SDM would falsely implicate the accused that is to say why they would
use contaminated instruments or bottles for sampling. The defence has failed to prove
any motive which could be assigned to the above officials for falsely implicating the
accused. Moreover nothing on record has been proved to the contrary i.e. the
defence has not proved that the Food Inspector did not comply with the provisions of
the Rule 14. Just because the defence is challenging the 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"
33. 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
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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)".
34. In Rattan Lal Aggarwal Vs. State of Assam, 1993 Crl LJ. 2757
(Guh.) it was observed that irregularity is not to be presumed but a party alleging
it may prove it.
35. 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
.].
36. 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.
37. In State of Gujarat Vs. Manna Bhai Hasan Ali, 1999(1) FAC 243, it
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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.".
38. 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.".
39. 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.
40. 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."
Homogenization / Mixing of Sample.
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41. It was also one of the arguments of the Ld. defence counsel that the
sample was not properly mixed / homogenized at the time when it was lifted and
accordingly the sample which were sent to PA and Director, CFL were not
"representative" and this is the reason why there is variations in the report of Public
Analyst and Director, CFL. For example the moisture content in the sample was
detected by the PA as 5.06% whereas the Director found the same to be 6.74%.
Similarly, the PA found the total ash on dry basis at 8.48 % whereas the Director found
the same at 7.67%. Moreover, the PA found the non volatile ether extract on dry basis
at 15.2% whereas the PA found the same to be at 11.37%. Also the PA detected oil
soluble synthetic colour in the sample whereas the Director did not detect any
extraneous colour in the sample. It was argued that these variations prove that the
sample were not representative. Reliance was placed upon Kanshi Nath Vs. State
2005(2) FAC 219, State (Delhi Administration) Vs. Ram Singh 2009 (1) JCC
148,State Vs. Suresh Kumar and ors 2010 (2) FAC 204 and State Vs. Rama Ratan
Malhotra 2012 (2) FAC 2012.
42. 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 was taken after mixing/
rotating the mirch powder thoroughly in all possible directions several times with the
help of a Jhaba in the plastic bag itself. I have no reasons to disbelieve the Food
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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.
43. Thirdly, there was no requirement of mixing or making the sample i.e.
mirch powder homogenized as such in view of the law laid down in Dhian Chand Vs.
State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as
under:
"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
it was taken from the side. Food Inspector has stated that the sample was taken after
the entire chilly powder had been mixed in the tin. In State of Haryana Vs. Hukam
Chand, 1984 (1) FAC 250 it was laid down that the necessity of thoroughly mixing is
of common knowledge so far as milk is concerned as the upper layer of the milk
usually contains more of cream and this principle cannot be extended to the cases of
adulterated Atta. In
1992(1)
FAC 283 (supra)
it was observed that there is no
requirement either of the provisions of the Prevention of Food Adulteration Act or the
rules framed thereunder that the contents of the foodstuff should be made
homogeneous before the sample is drawn. It is only the rule of prudence, which
requires that the contents of the foodstuff should be made homogeneous before the
sample is drawn but this rule of prudence does not apply to each and every foodstuff.
So this argument that the red chilly powder had not been homogenized before the
sample was drawn cannot be given any weight.......It cannot be adopted in the face of
a Division Bench judgment reported as 1984(1) FAC 250 (supra), Ajwain is not
required to be made homogeneous."
CC No. 8/10
DA Vs. Manoj Kumar Goel Page 20 of 48
44. 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.
45. In the case at hand sale to Food Inspector stands proved. The Food
Inspector categorically proved that he had made a payment of Rs. 45/ 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 SDM/LHA as well as the other FI which is on the same lines have 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
CC No. 8/10
DA Vs. Manoj Kumar Goel Page 21 of 48
of Delhi held as "As was laid down by a Full Bench of this Court in Madan Lal Vs.
State 1972 F.A.C. 481.........it must be held that if the respondents in the two appeals
were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him." In Food Inspector, Corporation of Cochin Vs. UKK Hasan anr. 1982 (2) FAC 133, it was observed in para 5 as under:
"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock. "A person who stores or sells such sample is liable to be punished under S. 16 (1) (a) (i) of the Act" (see State of Kerela vs. Alassery Mohammad (supra).
It was further observed at para 6 as under:
"Therefore the question whether the sample taken by the Food Inspector is representative sample does not arise for consideration at all. How a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the food stuff concerned is sold to 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 22 of 48 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".
46. In The Food Inspector Corporation of Cochin Vs. T.V. Hameed 1984 (1) FAC 47, while relying upon the law laid down by the Hon. Apex court in State of Kerela vs. Alassery Mohammad it was observed as under:
"It has to be remembered that any person, not necessarily the Food Inspector and not necessarily a government officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in Section 12 of the Act. If a private person purchases a portion of ice cream from the respondent under Section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of the ice cream in the container or for not taking a section and stirring i before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint.
It was further observed:
"if the rule making authority backed by the expertise of such a committee (Central Committee for Food Standard) has not prescribed any particular manner of taking a sample of ice cream, I do not think it is for the court to lay down any such manner particularly a manner which is contrary to the ordinary course of business."
47. In MCD Vs. Sunder Lal & Anr. 1976 (1) FAC 57, which was a case of sample of Hing the Division Bench of the Hon'ble High Court of Delhi held that the language of the Indian Act does not require mixing and division of sample in every CC No. 8/10 DA Vs. Manoj Kumar Goel Page 23 of 48 case regardless of whether the nature of the article requires it or not.
48. 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."
49. 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 Mirch powder, 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 24 of 48 it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Mirch powder 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
50. 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. 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.
51. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 25 of 48 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%.
52. In State of Tamil Nadu Vs. S.S. Chettiar 19481997 FAC (SC) 627, the Hon. Apex Court held as "in the present case the certificate of the Director showed that the sample of Gingelly oil contained 6.2% of free fatty acid whereas the permissible limit is 3% only. We are not concerned with the Public Analyst's report since that has been superseded by the certificate of the Director, Central Food Laboratory and the later certificate has been made conclusive evidence of the facts mentioned in it.
53. 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"
54. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 26 of 48 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".
55. In D.L. Chatterjee Vs. Kailashpati Oil Mill and others 2003 (2) FAC 240 the Hon. Apex Court set aside the order of the High Court which had quashed the proceedings and the Hon. Apex Court remanded the matter back for trial despite the fact that there was variation in the "contents and extent of adulteration of the food articles" in the report of the Director and the PA.
56. 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."
57. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. M/s CC No. 8/10 DA Vs. Manoj Kumar Goel Page 27 of 48 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."
58. In Shriram Rikh Vs. State & MCD 1978(1) FAC 253, it was held by the Hon'ble High Court of Delhi as under:
"The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977(1) F.A.C page 141 and Gyasi Ram Vs. The State, 1976 (II) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under: "that there is no doubt that the Public Analyst had reported that the sample contained 75% foreign extraneous matter, which constituted adulteration. On the other hand, there was the candid opinion of the Director of the Central Food Laboratory that the sample of Dhania powder was not adulterated. It is correct that there is wide variation in the two reports, but according to subsection (3) of Section 13 of the Act, the report of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director......"
It was further observed in para 3 as under:
"Under Section 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only.".CC No. 8/10 DA Vs. Manoj Kumar Goel Page 28 of 48
59. 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 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 29 of 48 certificate of the Director of the Central Food Laboratory."
60. 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 '.
61. In the above referred case while discussing and relying upon the Apex Court decision as reported in AIR 1981 SC 1387, the Hon'ble Full Bench further held as under:
"It was further observed that once supersession take effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public anlyast and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director.".
62. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 30 of 48 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.".
63. Similarly in State Vs. Kutubuddin Isafali, 1980 21(2) Guj LR 167 was also observed as under:
"It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with.".
64. 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.CC No. 8/10 DA Vs. Manoj Kumar Goel Page 31 of 48
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.".
65. 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.".
66. 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.".
67. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:
"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a CC No. 8/10 DA Vs. Manoj Kumar Goel Page 32 of 48 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."
68. In Municipal Committee Amritsar Vs. Amrik Singh 1972 FAC 204, the Division Bench of the Punjab & Haryana High Court, held as under:
"Therefore, having regard to sub section (3) and subsection (5) of Section 13 of the Act it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of Section 13. Consequently, it would not be correct to say that there was variation between the reports of the Public Analyst and the Director as the first report of the public analyst stands completely wiped out by the certificate of the Director.".
69. 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".
70. 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.
71. In MCD Vs. Shri Manohar Lal & Anr., 1975 (1) FAC 182, the Division Bench of Hon'ble High Court of Delhi held as under:
CC No. 8/10 DA Vs. Manoj Kumar Goel Page 33 of 48
"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.".
72. Similarly in Municipal Committee Amritsar Vs. Baldev Raj 1975 (1) FAC 363, the Hon'ble Division Bench of Punjab & Haryana High Court observed at para 10 as under:
"The finality and conclusiveness is attached to the report of the Director, Central Food Laboratory, Calcutta and, therefore, the learned Additional Sessions Judge proceeded entirely on wrong premises in comparing the reports.".
73. 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.".
74. So once there is a report of Director, CFL on record, no reference can be made to the report of the Public Analyst. The report can not be looked into at all for the purpose of comparison and thus to show the variations, if any. In Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr 1999(1) FAC 8, the Hon'ble Apex Court observed as under:
CC No. 8/10 DA Vs. Manoj Kumar Goel Page 34 of 48
"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.
13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:
"Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory.........shall be final and conclusive evidence of the facts stated therein."
14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is "conclusive proof". "When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".
15. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.".
75. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:
"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect CC No. 8/10 DA Vs. Manoj Kumar Goel Page 35 of 48 also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".
76. 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.
77. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 36 of 48 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.
78. The Full Bench of the Hon'ble High Court of Delhi in MCD Vs. Bishan Sarup which was decided on 11.03.1970 held as under:
"It is thus patent that according to the proviso to subsection (5) of the section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive as to the state of the sample on the date on which the analysis was made. Under subsection (3), this certificate supersedes the report of the Public Analyst given under subsection (1) of the section 13 of the Act.
79. In Bishan Sarup's case as referred above despite the variation being much more than .3%, the accused was convicted.
80. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 37 of 48 customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.
81. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 38 of 48 not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative i.e. a different sample being put in different sample bottles arises. Reliance may be placed upon Municipal Committee Amritsar Vs. Lachman Dass 1978(1) FAC 211.
82. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 39 of 48 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".
Marginal deficiency
83. It was also one of the argument of the Ld. Defence counsel that marginal deficiencies have to be ignored as they may occur on account of analytical error. It was argued that in the case at hand the Director found the Non Volatile Ether Extract on dry basis at 11.37% against the minimum prescribed of 12% by weight i.e. only 0.63% short. Reliance was placed upon the law laid down in Ram Singh Vs. State of Haryana 2009 (1) RCR Cri. 692 and Sakeel Vs. State of Haryana 2008 (1) FAJ 506.
84. In Babu Lal Hargovindas Vs. State of Gujarat 19481997 FAC (SC) 1084 the conviction was maintained by the Hon. Apex Court though the sample of milk was found containing non solids fat at 7.4% as against minimum of 8.5%. Similarly in Khem Chand Vs. State of Himachal Pradesh 19481997 FAC (SC) 981 the Hon. Apex Court upheld the conviction though there was deficiency only in milk solids not CC No. 8/10 DA Vs. Manoj Kumar Goel Page 40 of 48 fat. In Amatha Bai Arjan Bhai Vs. C.D. Patel and ors 1982 (2) FAC 113 the Hon. Apex Court upheld the conviction despite the variation/ deficiency from the standard being 0.5 percent only.
85. In Navratan Vs. State of Rajasthan 19481997 FAC (SC) 921 the Hon. Apex Court upheld the conviction though the sample of Chilly powder was found adulterated on account of it containing ash only marginally above the prescribed standard i.e. 1% excess than the prescribed limit.
86. In Umed Mal and Lalta Prasad Vs. State of Maharashtra, 19481997 FAC (SC) 553, the Hon. Apex Court upheld the conviction though the PA found "very marginal nature of adulteration".
87. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court convicted the accused cum vendor though the sample of cumin (jeera) contained only 9% of foreign seeds as against the permissible limit of 7%.
88. In Umrao Singh Vs. State of Haryana 19481997 FAC (SC) 774 the Hon Apex Court upheld the conviction despite the deficiency in the fat contents of the milk was only 0.4%.
89. In Bhagwan Dass Motu Vs. State of Maharashtra 19481997 FAC CC No. 8/10 DA Vs. Manoj Kumar Goel Page 41 of 48 (SC) 912, the Hon. Apex Court upheld the conviction despite the total ash percentage in the sample of Dhaniaa was only "little above" the standard prescribed for Dhania.
90. In Haripada Das vs. State of West Bengal, 1998 (2) FAC 187, the Hon'ble Apex Court while upholding the conviction in a case of Mustard Oil wherein the saponification value was found only marginally above the prescribed standard i.e. 178.8 against 177. The court also observed "Though Mr. Jethmalani, learned Senior Counsel appearing for the appellant, has strongly contended that such minor variation was likely to take place on account of natural process and it was the duty of the prosecution to establish that there was no such chance of little variation in the saponification value on account of natural process, we are not inclined to accept such contention for want of proper evidence to that effect."
91. The Division Bench of Hon'ble High Court of Delhi in MCD Vs. Peela Ram 1975 FAC 249 held that even marginal and bottom line variations of the prescribed standards under the Act are matters of serious concern for all. It was observed in para 8 as under:
"It was remarked in a recent Full Bench judgment of the Kerala High Court cited as State of Kerala Vs. Vasudevan Nair, 1975 FAC 8, as under:
"The act does not make a distinction between cases coming under it on the basis of the decree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, CC No. 8/10 DA Vs. Manoj Kumar Goel Page 42 of 48 would adversely affect the health of every man, woman and child in the country. Hence, even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, law does not concern itself about trifles, does not apply to them."
92. Similar observations were made in another Division Bench judgment of the Hon'ble High Court of Delhi titled as MCD Vs. M/s Nestle Products India Ltd 1975 FAC 242 as under:
"While fixing the standards due allowance must have been given for probable errors in analysing articles of food. It, therefore, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent of 1.30% in total milk solids, it was rightly reported to be adulterated and it would not be correct to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis."
93. In State of Kerala Vs. P.K. Chamu 1975 (2) FAC 417, it was held as under:
"It was after due deliberations and taking into consideration various factors and after giving due allowance for probable errors that the standard for different articles of food was fixed under statute. When on analysis, it is found that an article of food does not conform to the standard prescribed, the sale of such an article is an offence under the Act which does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. To condone such variations on the ground that they are negligible will amount to altering the standard itself prescribed by the statute.".
94. In MCD Vs. Kishan Lal 1975 (2) FAC 31, it was held by the Division Bench of Hon'ble High Court of Delhi as under:
"The sample was taken in accordance with the rules and as the milk solids were CC No. 8/10 DA Vs. Manoj Kumar Goel Page 43 of 48 deficient by 0.37 per cent the sample was rightly reported to be adulterated. The small excess found in milk fat cannot lead to the conclusion that the milk was not adulterated or there was some defect in taking the sample.".
95. In MCD Vs. Nand Lal & Anr. 1976 (1) FAC 23, the conviction was upheld though the variations from the prescribed standard was marginal / borderline. While holding so, the Hon'ble Division Bench relied upon the judgments of the Hon'ble Apex Court M.V. Joshi Vs. M.U. Shimpi & Anr AIR 1961SC 1494 and Malwa Co operative Milk Union Ltd. Vs. Bihari Lal & Anr. 1973 FAC 375.
96. In State of Haryana Vs. Dayanand 2004 (2) FAC 90, the Hon'ble Apex Court held as under:
"Considering the facts and circumstances of said case and especially considering the marginal difference in percentage of fat and nonsolid fat in the sample of cow milk, came to the conclusion that mere marginal difference may not be sufficient to raise an inference that the milk was not stirred properly before collecting the sample.".
97. The Full Bench of the Punjab & Haryana High Court in The State of Punjab Vs. Teja Singh 1976 (2) FAC 42 held that " food pollution even it be only to the slightest extent would adversely affect the health of every man, woman and child in the country. Hence even marginal or borderline deviation/ variation from the prescribed standard under the Act are matter of serious concerns for all................ a negligible or marginal deviation from the prescribed standard as laid down by the Act can not be ignored and an acquittal can not be recorded on any basis."
98. Similarly was held in Kishori Lal Vs. State of Punjab, 1981 (1) FAC 172 and Municipal Corporation Vs. Nestle's Products 1975 (1) FAC 42.
99. In Kartar Singh Vs. State of Punjab 1983 (1) FAC, 170 the conviction was upheld despite the variation from the prescribed standard being marginal. The CC No. 8/10 DA Vs. Manoj Kumar Goel Page 44 of 48 Court relied upon the Full Bench Judgment of State of Punjab Vs. Teja Singh, 1976 (2) FAC 44 wherein it was held "that negligible or marginal deviations from prescribed standard laid down by the Act cannot be ignored and acquittal recorded on that basis.
100. In Roshan Lal Vs. State of UP 1982 (1) FAC 180 it has been held as under:
The wisdom of the legislature is not to be questioned and when certain standards have been prescribed for any food articles under the Food Adulteration Act and the Rules, the sample should come to such standard.
Deficiency of Non Volatile Ether Extract
101. As per the report of Director the sample of Mirch powder did not conform to the standards as the Non Volatile Ether Extract on dry basis was less than the minimum prescribed limit of 12%. This makes the sample of mirch powder adulterated.
102. 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 CC No. 8/10 DA Vs. Manoj Kumar Goel Page 45 of 48 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."
103. In State of Orissa Vs. K. Rajeshwar Rao, 19481997 FAC (SC) 956 the Hon. Apex Court observed at para 3 as under:
"Section 2 of the Act defines 'adulterated' that if the articles sold by a vendor is not of the nature, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated. If the quality or variety of the articles fall below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, is also adulterated. It would, therefore, be clear that the word 'adulterated' was used widely. If the food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof"
104. 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.".
105. 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:
CC No. 8/10 DA Vs. Manoj Kumar Goel Page 46 of 48
"it is clear that an article of food may be adulterated once it does not meet the specifications and exceed the limit prescribed under the PFA Act. As pointed out above, the presence of salt, that is, Sodium Chloride by 2.5% weight as well as presence of total ash exceeding the prescribed limit is sufficient to hold that the sample drawn was adulterated, even if one was to proceed on the basis that mere addition of common salt to the chilly powder did not render it injurious to health".
Violation of Rule 49 (24)
106. In the case at hand it stands proved from the deposition of prosecution witnesses coupled with Ex. PW1/B and C that sample of Mirch Powder was lifted from an open plastic bag which was bearing no label declaration. This is violation of Rule 49 (24) which prohibits the sale of powdered spices and condiments except in packed conditions. The provisions/Rule 49 is reproduced hereunder: "49. Conditions for Sale (24) No person shall sell powdered spices and condiments except under packed conditions."
107. Though Ld. Defence counsel argued that the food Inspector had opened the plastic bag which was tied with a rubber band and then taken the sample however I find no merits in the said contentions. The prosecution witnesses consistently deposed that sample was lifted from open plastic bag. They categorically denied that the bag was tied with the a rubber band or was in a stitched condition as the sample was taken after opening the plastic bag. I have no reasons to disbelieve them. As CC No. 8/10 DA Vs. Manoj Kumar Goel Page 47 of 48 already discussed above I find no reasons why the Food Inspector or the SDM/LHA would falsely/wrongly implicate the accused. The defence could not prove any motive which could be assigned to the prosecution witnesses for falsely implicating the accused.
108. In view of my above discussion, as Non Volatile Ether Extract on dry basis was found deficient/not as per the prescribed standard by the Director, CFL and the sample was stored in an open plastic bag, the accused stands convicted under Section 2 (ia) (a) & (m) of PFA Act 1954 r/w Rule 49 (24) of PFA Rules 1955.
109. Let the accused be heard separately on point of sentence.
Announced in the open Court (Gaurav Rao) on 19th August 2014 ACMMII/ New Delhi CC No. 8/10 DA Vs. Manoj Kumar Goel Page 48 of 48