Da vs . Subhash Garg Page 1 Of 62 on 29 January, 2015

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Delhi District Court

Da vs . Subhash Garg Page 1 Of 62 on 29 January, 2015

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

C.C. No. 225/03

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

Subhash Garg S/o Sh. Baru Mal Gupta,
M/s Shri Balaji Trading Co.,
D Block Main Market,
3rd Pushta, Sonia Vihar,
Delhi.

........ VendorcumProprietor

Serial number of the case : 225/03
Date of the commission of the offence : 29.01.2003
Date of filing of the complaint : 05.05.2003

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DA Vs. Subhash Garg Page 1 of 62
Name of the Complainant : Sh. Suniti Kumar Gupta, Food
Inspector
Offence complained of or proved : Section 2 (ia) (j) of PFA Act 1954,
punishable U/s 16(1A) r/w section
7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 29.01.2015
Judgment announced on : 29.01.2015

Brief facts of the case

1. In brief the case of the prosecution is that on 29.01.2003 at about 06.00

p.m., Food Inspector Suniti Kumar Gupta along with FA Manohar Lal, under the

supervision and directions of SDM/LHA Sh. P.C. Jain visited M/s Shri Balaji Trading
rd
Co., D Block, Main Market, 3 Pushta, Sonia Vihar, Delhi, where accused Subhash

Garg who was the vendorcumproprietor was found present conducting the business

of various food articles including Dal Arhar, for sale for human consumption and in

compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the

Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Act &

Rules) the Food Inspector collected / purchased the sample of Dal Arhar.

2. It is further the prosecution's case that the sample was sent to Public

Analyst for analysis and as per the report of Public Analyst the sample was adulterated

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

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

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

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

Section 7 of the Act.

3. After the complaint was filed, the accused was summoned vide orders

dated 05.05.2003. 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 10.06.2003. The Director, CFL after analysing the sample

opined vide its Certificate dated 14.07.2003 that " the sample No. PCJ/LHA/3986 does

not conform to the standards of split pulse (dal) Arhar as per PFA Rules 1955". The

Director so opined as the sample was "coloured with synthetic colouring matter viz.

Tartrazine".

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

then SDM/LHA Sh. P.C. Jain as PW1 and Food Inspector Suniti Kumar Gupta as PW2

and pre charge evidence was closed vide order dated 23.03.2007.

5. Charge for violation of provision of Section 2 (ia) (j) of PFA Act 1954,

punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide

order dated 17.11.2008 to which accused pleaded not guilty and claimed trial.

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

i.e. the then SDM/LHA Sh. P.C. Jain as PW1, Food Inspector Suniti Kumar Gupta as

PW2 and FA Manohar Lal as PW3 and PE was closed vide order dated 24.12.2010.

7. Statement of the accused U/s 313 Cr. P.C. was recorded on 21.07.2011

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

Gupta and Shasi Bala Singh as DW1 and DW2 respectively in his defence.

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

8. PW1 P.C. Jain deposed that on 29.01.2003 he being the SDM/LHA of
rd
Seelampur went to M/s Shri Balaji Trading Co., D Block, Main Market, 3 Pushta,

Sonia Vihar, Delhi along with FI Suniti Kumar Gupta and FA Manohar Lal along with

staff and found accused Subhash Garg conducting the business of the food articles

including Dal Arhar stored for sale for human consumption. He deposed that FI Suniti

Kumar Gupta disclosed his identity and intention to purchase the sample of Dal Arhar

for analysis to which accused agreed. He deposed that before taking the sample FI

S.K. Gupta made efforts to join public witnesses but none came forward and thereafter

on his request Manohar Lal, FA joined as a witness. He deposed that at about 06.00

p.m. the sample of 1.5 Kg of Dal arhar was taken from an open gunny bag bearing no

label declaration on his supervision and direction, after proper mixing the Dal Arhar

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with the help of clean and dry Jhaba by rotating it inside the Dal Arhar in all possible

directions. He deposed that thereafter FI divided the sample commodity into three

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

deposed that each sample bottle was separately packed, marked, fastened and sealed

according to PFA Act and rules. He deposed that vendor's signatures were taken on

his LHA slip and on the wrapper of the sample bottles in such manner that a portion of

his signatures was visible on the LHA slip as well as on the wrappers. He deposed that

Rs. 45/ was given to the accused towards the sample price vide vendor receipt Ex.

PW1/A which bears the signature of accused at point A, that of witness at point B and

of the FI at point C. He deposed that notice in Form VI Ex. PW1/B was given to the

accused which has his endorsement and signatures at portion A, that of witness at

point B and of FI at point C. He deposed that the panchnama Ex. PW1/C was also

prepared which was signed by accused at point A, by witness at point B and by FI at

point C. He deposed that accused also produced a photocopy of his ration card Ex.

P1. He deposed that the two counterparts of the sample were deposited in intact

condition with Form VII on 30.01.2003 with him in his office vide LHA receipt Ex.

PW1/D with the intimation that one counterpart of the sample has already been

deposited with the PA vide receipt Ex. PW1/E on 30.01.2003 for analysis. He deposed

that PA report Ex. PW1/F was received, according to which the sample was

adulterated because of synthetic colouring matter i.e. tartrazine. He deposed that

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

PFA Sh. K.S. Wahi who after going through the same applied his mind and gave the

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consent Ex. PW1/G for prosecution of accused. He deposed that FI Suniti Kumar

Gupta lodged the complaint in court. He deposed that intimation letter Ex. PW1/H

along with copy of the PA report was sent to the accused by registered post which was

not received back undelivered. Photocopy of registration certificate is Ex. PW1/J.

9. During his cross examination he stated that except his raid report and

LHA slip he did not sign any of the documents prepared at the spot. He stated that FI

prepared notice u/s 14A at the spot. He stated that he does not remember if the

vendor/accused disclosed at the spot to the FI that he had purchased the sample

commodity from M/s Makhan Lal Suresh Kumar, Naya Bazar, Delhi. He stated that he

does not remember whether there was only one Jhaba or more than one Jhaba in the

shop of the accused at that time. He stated that accused was a retail shopkeeper. He

deposed that he does not remember if the Jhaba which was used in sample

proceedings was provided by the vendor/accused. He stated that he does not

remember if the Jhaba was made clean and dry by the vendor or by the FI. He stated

that dal was weighed in the weighing scale which was lying in the shop of the accused.

He stated that it took them about 4560 minutes in completing the sample

proceedings. He denied the suggestion that after completion of sample proceedings FI

tried to join public witnesses. He voluntarily stated that it was done before starting the

sample proceedings. He stated that he does not remember as to whose shops were

situated on the left and right side of the shop of the accused. He stated that he did not

ask the FI to join him as a witness. He denied the suggestion that entire sample

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proceedings were conducted in his absence. He denied the suggestion that he

remained seated in his official vehicle or that he did not visit the spot at all.

10. PW2 Food Inspector Suniti Kumar Gupta and FA Manohar Lal deposed

on the same lines as deposed by PW 1 in his examination in chief. In addition PW2 FI

Suniti Kumar Gupta deposed that during investigation he sent a letter to Sales Tax

Officer Ward no. 74 vide Ex. PW2/A and according to reply at portion A the firm was

not registered. He further deposed that he also sent a letter to MCD Shahdara North

Zone vide Ex. PW2/B and as per his reply no license was issued by the MCD to the

said firm. He deposed that he also sent a letter to the vendor on 20.03.2003 copy of

same is Ex. PW2/C but got no reply.

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

defence evidence as under:

12. DW1 Rajesh Gupta deposed that he is the sole proprietor of M/s

Makkhan Lal Suresh Kumar & Bros., 3968C, Naya Bazar, Delhi and he is engaged in

the wholesale business of all types of grains and pulses including Dal Arhar. He

deposed that on the shop he and his employees used to sit during the course of the

day on all working days. He deposed that sometimes he and sometimes his

employees raised the bills. He deposed that he does not know the accused. He

deposed that he does not remember the name of any person in the name of Sh.

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Sarvan Bansal, the Broker, operating in the Naya Bazar area as such. Thereafter a

laminated bill bearing no. 41563 dated 08.01.2003 was shown to the witness and was

asked if the same was issued by his firm to which he deposed that he does not

remember if it pertains or not pertains to his firm. He deposed that he has not brought

any sort of record pertaining to the said firm. He deposed that he cannot produce the

record of the said firm for more than 7 years old however record pertaining to the last 7

years is available with him. He deposed that he has not brought the summoned record

i.e. record of invoices Nos. 43354 dated 10.04.2003, 44106 dated 10.05.2003, 44808

dated 11.06.2003, 45612 dated 22.07.2003, 49388 dated 06.11.2003, 48175 dated

04.12.2003, 48287 dated 12.12.2003 and copy of Account Statement of Financial Year

200304 (AY200405) and copy of Account Statement of Financial Year 200203 (AY

200304) as the same is not available. He deposed that to that effect he has brought a

certificate given by his Chartered Accountant which is being marked as Mark X. He

deposed that he does not own any Dal Mill and use to purchase it on consignment

basis from the places wherever it may be available. He deposed that he cannot say if

the accused used to purchase various food articles including the food articles in

question from their firm. He deposed that the record as mentioned above has been

weeded out. He deposed that they used to sell the food articles in packed condition

only.

13. DW2 Shasi Bala Singh deposed that she knows the accused for the last

1517 years as he is running a shop near his house. She deposed that she is

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purchasing Dal, Rice and other kiryana items from accused and never had any

complaint. She deposed that he is a retail shopkeeper and not the manufacturer of the

dal and other items. She deposed that he bears a good moral character.

14. During her cross examination she stated that she has no knowledge that

any sample of food article was lifted from the shop of the accused.

15. This so far is the evidence in the matter.

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

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

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

prosecution in this case.

17. After hearing the rival contentions raised at bar as well as on careful

scrutiny of the material on record, I am of the considered opinion that the prosecution

has successfully brought home the guilt against the accused.

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

witnesses especially Food Inspector Suniti Kumar Gupta coupled with the report of the

Director dated 14.07.2003 that accused Subhash Garg was indeed found selling Dal

Arhar which was adulterated as it was containing synthetic colour viz. Tartrazine.

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

Suniti Kumar Gupta categorically proved the sample proceedings dated 29.01.2003 as

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

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

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

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

P.C, specifically question no. 1, 4 and 5 as recorded before the Ld. Predecessor of this

Court on 21.07.2011 which are admissible in evidence against the accused in view of

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

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

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

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

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

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

Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315 no

doubt remains that the sample of Dal Arhar was indeed collected by the Food

Inspector for analysis from M/s Shri Balaji Trading Co. of which the accused is the

proprietor cum vendor.

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

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

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

loopholes /contradictions.

Public witness

21. 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.

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

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

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

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

corroboration by public persons unless the testimony suffers from fatal

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

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

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

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

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

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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.

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

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

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

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obligation to cite independent witnesses.".

24. 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.

State
25. 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.".

26. In Ram Karan Vs. State of Rajasthan, 1997 (2) FAC 131, it was held
as under:

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"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."

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

Kumar Gupta 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 would falsely implicate the accused or depose falsely against him.

There is nothing on record to suggest that the FI or the other members of raiding team

including the SDM were inimical to the accused or had any grudge or enmity to falsely

implicate him.

Rule 14

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

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

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

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

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

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

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

that FI used his hands to lift the Dal which was not a proper method. 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.

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

counsel.

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

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

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

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

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

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

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

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

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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.

31. I have perused the deposition of the Food Inspector i.e. Suniti Kumar

Gupta who was examined as PW2. The Food Inspector deposed as under:

"........At about 6 pm the sample of 1.5 Kg. of Dal Arhar was taken from
an open Gunny bag bearing no label declaration under the supervision and direction
of LHA Shri PC Jain, after proper mixing the Dal Arhar with the help of clean and dry
jhaba by rotating it inside the Dal Arhar in all possible directions. Thereafter I divided
the sample commodity into three equal parts then and there by putting them into three
clean and dry bottles."

32. During his cross examination he stated as under:

".......Jhaba was already clean and dry and the same was not made
clean and dry at the spot.......It is wrong to suggest that sample was not taken
properly."

33. Similarly PW1 the then SDM/LHA Sh. P.C. Jain deposed as under:

"....At about 6 pm the sample of 1.5 Kg. of Dal Arhar was taken from an
open Gunny bag bearing no label declaration on my supervision and direction, after
proper mixing the Dal Arhar with the help of clean and dry jhaba by rotating it inside
the Dal Arhar in all possible directions. Thereafter FI divided the sample commodity
into three equal parts then and there by putting them into three clean and dry bottles."

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34. PW3 FA Manohar Lal deposed as under:

".........The sample was taken by proper mixing it with help of clean and
dry jhaba by rotating it in all possible direction several times. The FI Suniti Kumar
Gupta divided the sample then and there into three equal parts by putting them in
three clean and dry glass bottles."

35. During his cross examination he stated as under:

"..........Jhaba was clean and lying in the gunny bag of Dal Arhar and
same was not made clean in my presence.......It is wrong to suggest that procedure of
taking sample was wrong."

36. Hence the prosecution witnesses consistently proved regarding the

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

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

were conducted in a proper manner and that the sample bottles, polythene bag/brown

sheet as well as the jhaba were clean and dry. I have no reasons to disbelieve them.

As discussed above I find no reasons why the FI or the other members of raiding team

would falsely implicate the accused that is to say why they would use contaminated or

colored instruments or bottles for sampling. The defence has failed to prove any

motive which could be assigned to the above officials for falsely implicating the

accused. Moreover nothing on record has been proved to 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

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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"

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

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

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

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

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

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

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

Assessar, 5 OLJ 179)".

38. 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.

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39. 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
.].

40. 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.

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

was observed as under:

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

42. In Babu Bhai Hargovind Das Vs. State, 1970 GLR 530, it was

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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.".

43. 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.

44. 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."

45. Though Ld. Defence counsel had also argued that the FI had used his

hands for lifting the Dal which was not a proper method and therefore the sample

proceedings were bad in law. However, I find no merits in the same. Firstly, during

cross examination none of the prosecution witnesses it was even once suggested to

them that the FI had lifted the Dal with his hands. This came up for the first time during

recording of statement of accused. Hence it appears to be merely an afterthought

having no basis whatsoever. Secondly, the prosecution witnesses consistently

CC No. 225/03
DA Vs. Subhash Garg Page 20 of 62
deposed that the Jhaba was used for mixing and lifting the sample of Dal. Thirdly,

though not proved that FI had used his hands still if it is believed that the FI had used

his hands I fail to understand how it could have prejudiced the accused or rendered

the sample proceedings bad. The defence could not prove as to how use of hands by

the FI could have prejudiced the accused that is to say would have resulted in the

sample of Dal being found coloured with Tartrazine. It is to be seen that not only none

of the prosecution witnesses were even once suggested during their cross

examination that the FI had used hands for lifting the sample but it was also not even

once suggested that the FI's hands or that of any other member of the raiding team

coloured/smeared with Tartrazine. Furthermore, in Food Inspector, Municipal

Corporation Baroda Vs. Madan Lal Ram Lal 832, SC on PFA (19481997) the Hon.

Apex Court while dealing the case of curd held that there is nothing in the Act or the

Rules which requires churning/mixing with the help of any instrument. The Court held

that there is nothing in the Act to suggest that churning by hand would not meet the

requirements of the making the sample homogeneous and representative. Hence in

the case at hand from the deposition of prosecution witnesses no doubt remains that

the sample proceedings were conducted in a proper manner.

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

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

Defence counsel that it was the colour of the brown sheet which was detected by the

analyst. However I find no merits in the above arguments of Ld. Defence counsel.

CC No. 225/03
DA Vs. Subhash Garg Page 21 of 62
Mere use of brown paper/sheet by the FI for measuring the Dal at the time of

sampling did not prejudice the accused in any manner nor entitles him to acquittal.

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

suggestion was given to them that this brown paper was either not clean or not dry or

that it was wet or emitting some colour which might have stuck to the sample of dal. I

have no reasons to disbelieve the prosecution witnesses or doubt that they did not use

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

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

was the colour of the paper/sheet. Moreover, the defence did not lead any evidence to

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

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

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

brown sheet was Tartrazine.

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

deposition of prosecution witnesses it stands proved that an unclean jhaba was used

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

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

prosecution witnesses consistently proved that the jhaba was clean and dry.

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

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

prejudice the accused in any manner. It is to be seen that the witnesses deposed that

CC No. 225/03
DA Vs. Subhash Garg Page 22 of 62
the Jhaba was lying in the same gunny bag i.e. bag containing Dal Arhar from which

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

that the jhaba was lying in some other commodity/bag and it was used without

cleaning it to take out the sample of Dal Arhar which was lying in another bag. Had

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

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

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

commodity I fail to understand how prejudice is caused to the accused because it is

the same jhaba with which the accused is selling the Dal to the customers and hence

whether the Jhaba got coloured while lying in the bag containing the sample

commodity i.e. Dal or the Dal/sample commodity got coloured because of the Jhaba

does not make a difference because the fact remains that on analysis Dal was found

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

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

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

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

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

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

Jhaba for selling the sample/dal to the customers. Two different standards cannot

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

CC No. 225/03
DA Vs. Subhash Garg Page 23 of 62
Discrepancies

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

in the deposition of PW2 and PW3 qua the sample proceedings. It was argued that

though FI Suniti Kumar Gupta had claimed that there was around 35 KG of Dal at the

time of sampliong however the FA claimed that it was around 20 Kg. Furthermore the

FI stated that the Dal was weighed after putting it on a brown sheet on the other hand

the FA stated that the dal was weighed after putting in a polythene bag. The Ld.

Defence counsel argued that these discrepancies itself proves that the prosecution

witnesses were deposing falsely and sample proceedings were bad and there was

violation of Rule 14.

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

the deposition of PW2 and PW3 however the discrepancies as pointed out by Ld.

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

discrepancies as above are natural and bound to occur on account of passage of time

and lapse of memory. Human memories are apt to blur with passage of time. The

sample was lifted in the year 2003 and the deposition/cross examination of witnesses

were recorded in the year 2010 i.e. after a gap of around 7 years. After such a long

time period a person cannot be expected to give a parrot like version or depose with

mathematical precision. Only a tutored witness can depose so. Error due to lapse of

time/lapse of memory have to be given due weightage/ due allowance.

CC No. 225/03
DA Vs. Subhash Garg Page 24 of 62

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

memory and to recall the minute details of an incident. It is not as if a video tape is

replayed on the mental screen. By and large people cannot accurately recall a

conversation and reproduce the very words used by them or heard by them. They can

only recall the main purport of the conversation. It is unrealistic to expect a witness to

be a human tape recorder. Ordinarily a witness cannot be expected to recall

accurately the sequence of events which take place in rapid succession or in a short

time span. A witness is liable to get confused, or mixed up when interrogated later on.

A witness, though wholly truthful, is liable to be overawed by the court atmosphere and

the piercing cross examination made by counsel and out of nervousness mix up facts,

get confused regarding sequence of events, or fill up details from imagination on the

spur of the moment. The subconscious mind of the witness sometimes so operates

on account of the fear of looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is

a sort of a psychological defence mechanism activated on the spur of the moment.

Reliance may be placed upon the observations made by the Hon'ble Apex Court in

case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v.

Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State

of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972

SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .

CC No. 225/03
DA Vs. Subhash Garg Page 25 of 62
51. The law is well settled that discrepancies which do not go to the root of

the matter and shake the basic version of the witnesses cannot be annexed with un

due importance. Trivial discrepancies ought not to obliterate an otherwise acceptable

evidence. One cannot come across a witness whose evidence does not contain some

exaggeration or embellishments. Sometimes there could even be a deliberate attempt

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

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

ny of witnesses. Evidence is to be considered from the point of trustworthiness. If this

element is satisfied they ought to inspire confidence in mind of the court.

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

collecting samples/witnessing sample proceedings almost daily and sometimes more

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

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

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

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

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

not be able to recollect the exact facts with mathematical precision. The fact remains

that a clean and dry jhaba as well as other instruments were used for sampling.

CC No. 225/03
DA Vs. Subhash Garg Page 26 of 62
Homogenization / Mixing of Sample.

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

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

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

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

Analyst and Director, CFL. For example the PA found the foreign organic matter at

0.02% and nil inorganic matters, the Director found the same at 0.31%. Similarly the

PA found weevilled grains at 0.30% whereas the Director found them as Nil. The PA

did not find any damaged grains in the sample whereas the Director found the same at

0.98%. It was argued that these variations proves that the sample were not

representative. Reliance was placed upon Kanshi Nath Vs. State 2005(2) FAC 219

and State Vs. Mahender Kumar and ors decided on 24.01.2008.

54. However, I find no merits in the contention of the Ld. defence counsel.

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

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

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

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

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

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

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

CC No. 225/03
DA Vs. Subhash Garg Page 27 of 62
Their testimony has thus remained unchallenged/unrebutted on this material aspect

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

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

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

appended therein.

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

Dal Arhar homogenized as such in view of the law laid down in Dhian Chand Vs.

State of Haryana, 1999 (1) FAC 272. It was laid down in the above said case as

under:

"In my opinion, the sample of lal mirch powder was not required to have been taken
after the entire red chilly powder contained in the tin had been made homogeneous. It
would bear repetition that red chilly powder was the same in the tin. It would not make
any different whether the sample was taken from the upper layer or from the bottom or
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

CC No. 225/03
DA Vs. Subhash Garg Page 28 of 62
required to be made homogeneous."

56. 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.

57. 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 other prosecution witnesses which is on the same lines has also

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

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

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

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

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

CC No. 225/03
DA Vs. Subhash Garg Page 29 of 62
Vs. Shri Ail Das & Anr. 1975 FAC 223, Division Bench of the Hon'ble High Court

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

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

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

"It is now well settled law and is also clear from the special definition of 'sale' in clause (xiii) of S.2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act (See Food Inspector Vs. Charkathil Gapalan 1971 (2), SCC 322, M.R. Ruparel vs. State of Maharashtra, AIR 1966 SC 128, State of U.P. vs. Kartar Singh, AIR 1964 SC 1135 and Sarjoo Prasad vs. State of U.P., 1975 (1) FAC 221). If an article of food sold to a Food Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not 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 CC No. 225/03 DA Vs. Subhash Garg Page 30 of 62 expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer ice cream then. It is too unreasonable therefore to expect that a representative sample of Ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any rule of representative sampling".

58. 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."

59. 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 CC No. 225/03 DA Vs. Subhash Garg Page 31 of 62 language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

60. 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."

61. In State (Delhi Admn) Vs. Satinder Kumar 2009 (1) JCC 258, it was held by Hon. High Court of Delhi as under:

" I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter , the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter."

62. The act has been enacted so as to prevent the adulterated food article being sold to the customers/consumers. It is a matter of common knowledge that when any customer goes to a shop to buy Dal, besan etc. the vendor does not give the said food article after mixing the same with the help of Jhaba in the gunny bag/bag in which he has stored the same in his shop. He does not first rotate the said food article CC No. 225/03 DA Vs. Subhash Garg Page 32 of 62 in all possible directions several times and then sell the same to the customer. He merely takes out the food article with the help of Jhaba or any other instrument from top most layer and sells it to the customer. Therefore when this is usual mode of selling the food article to the customers then why should a different mode be used for the purpose of sale to the Food Inspector. The act has been enacted for the purpose of protection of the customers/consumers of food articles and it is not sold to them by the shop owner after homogenization. Hence no question of making the food article/Dal homogenized should arise or else the entire purpose of act will be defeated. This is the reason why the PFA Act or the Rules nowhere provides for mixing of the food articles at the time when the sample is lifted by the FI. Variations

63. Coming to the second limb of arguments of the Ld. defence counsel that there is a variation in the report of Public Analyst qua the report of Director, CFL and accordingly in view of the law laid down in Kanshi Nath Vs. State 2005 (2) FAC 219 passed by the Hon'ble High Court of Delhi, the accused is entitled to acquittal as benefit has to be given to him for the variation in the two reports I find no merits in the same. Firstly, no question of variation can be looked into by the court in view of law the laid down by the Hon'ble Apex Court in Calcutta Municipal Corporation Vs. Pawan K. Saraf & Anr. 1999 (1) FAC 8, the Division Bench of the Hon'ble High Court of Delhi in MCD Vs. M/s Lahsa Restaurant & Ors., 1980 (II) FAC 1991, the CC No. 225/03 DA Vs. Subhash Garg Page 33 of 62 Full Bench of the Hon'ble High Court of Gujarat in Pralhad Bhai Amba Lal Patel Vs. State of Gujarat, 1984 (2) FAC 26.

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

65. 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.

66. 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" CC No. 225/03 DA Vs. Subhash Garg Page 34 of 62

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

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

68. 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.

69. 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 CC No. 225/03 DA Vs. Subhash Garg Page 35 of 62 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."

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

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

71. 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......"

CC No. 225/03 DA Vs. Subhash Garg Page 36 of 62

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.".

72. 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 CC No. 225/03 DA Vs. Subhash Garg Page 37 of 62 comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.".

"Once subsecs. (3) and (5) of S. 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non existing report of the public anlayst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory."

73. 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 '.

74. 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.".

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

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

76. 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.".

77. 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.

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(3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.".

In para 15 it has been further observed as under:

"It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the same.".

78. 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.".

79. 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.".

80. In Municipal Corporation of Delhi Vs. Jai Chand 1972 651, the Hon'ble Delhi High Court observed as under:

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"According to subsection (3) of section 13 of the Act, the certificate issued by the Director regarding the result of analysis shall supersede the report given by the Public Analyst. In view of the above provision, the discrepancy in the report of the Public Analyst and the certificate of the Director loses much of its significance. It also cannot be said that the constituents of the milk had undergone a change because of the discrepancy regarding the result of analysis between the certificate of the Director and the report of the Public Analyst. It is precisely to meet such a contingency wherein the certificate of the Director differs from the report of the Public Analyst that the legislature has provided that certificate of the Director shall supersede the report of the Public Analyst."

81. 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.".

82. 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".

83. 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 CC No. 225/03 DA Vs. Subhash Garg Page 41 of 62 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.

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

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

85. 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.".

86. 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 CC No. 225/03 DA Vs. Subhash Garg Page 42 of 62 used as evidence of any facts stated therein.".

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

"12. When the statue says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word "supersede" in law, means "obliterated, set aside, annul, replace, make void or inefficacious or useless, repeal" (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it.

13. In the above context the provisio to subsection (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below:

"Provided that any document purporting to be a certificate signed 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 CC No. 225/03 DA Vs. Subhash Garg Page 43 of 62 stated therein are concerned.".

88. In The Food Inspector, Corporation of Cochin Vs. T.V. Habeeb, 1984 (1) FAC 41, it was observed as under:

"It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of subsections (3) and (5) of Section 13 of the Act".

89. 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.

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90. In C. Mohammed Vs. State of Kerala, 2007 (2) FAC 275, the Hon'ble Supreme Court upheld the conviction despite the variation in the report of the PA and the Director, CFL being more than 1.083% as the court held that the report of the PA stood superseded. In this case on analysis the PA had reported that the Moong Dal sample contained 0.28% of talc as foreign matter whereas the Director reported the same to be 1.363%. The court also did not find any merits in the contentions of the Ld. Defence counsel that talc was not a harmful substance as it was used only to prevent sticking of grains of Dal.

91. 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.

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

93. 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 CC No. 225/03 DA Vs. Subhash Garg Page 45 of 62 the law laid down by the Hon'ble Apex Court. Moreover, merely because there is a variation no presumption can be drawn that the sample which was sent to Director, CFL was not representative. In fact no question of "variation" or the 'sample being not representative' can arise or be looked into by the court. As already discussed above that it is the mode in which the sample is sold to the customer/consumer which has to be kept in mind by the court. The sample is not made representative when it is sold to a consumer/customer by the vendor/shopkeeper. Hence he cannot complain that a representative sample was not taken by the Food Inspector or else if the said plea is allowed it will defeat the very purpose of the PFA Act. The court cannot legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly or that the sample was not representative.

94. 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 CC No. 225/03 DA Vs. Subhash Garg Page 46 of 62 (2 A) upon an application by the accused, the court directs the sample kept by the Local Health Authority to be produced before him for its onward transmission to the Director, CFL for its examination / analysis as contemplated in Section 13 (2B). Once the sample is produced before the court, the court meticulously scrutinizes the sample to check whether the seal, thumb impression or signature on the same are intact or not. The sample is shown to the accused and upon his satisfaction it is sent to the Director, CFL. Hence, there arises no question of changing the sample because of the above mentioned counter checks as enumerated in the Act. Furthermore, when the sample is sent to the Director, CFL it is under the seal of the court and the Director in his certificate reports that the sample has been received by him intact as send by the court. Therefore, once the sample has been collected by the Food Inspector remains duly sealed, is inspected by the court and the accused for counter checking the seal and signatures of the accused and thereupon send to the Director, CFL under the seal of the court no question of the sample being changed or not being representative 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.

95. Secondly, it is also to be seen that the variation in the two reports is only in respect of the Weevilled grains, damaged grains and foreign matters content in the sample. As far as the variation in the above is concerned it is to be seen that the sample conformed to the standards in the analysis by the PA as well as by the CC No. 225/03 DA Vs. Subhash Garg Page 47 of 62 Director. Accordingly the accused is not facing trial for the same. He is facing trial on account of the colour detected by both the experts as it was not permissible. Hence the varying reports regarding the above contents becomes insignificant. Furthermore, in heterogeneous food products like Dal the adulteration can never be uniform and even if the Food Inspector with all the expertise available at his disposal takes the sample after properly mixing/ homogenization still there will be slight difference/variation in the sample which is divided into/put into three different sample bottles/counterparts. One part of the sample may have more Weevilled/damaged grains/foreign matters then the other and may be the third does not have any at all. The FI had purchased 1.5 kg of Dal Arhar and it was divided into three counterparts/put into three different bottles. One counterpart went to PA and other was sent to the Director by the court. Upon division into three parts the Weevilled/ damaged grains/foreign matters went more in one part then the other and may be not in the third part. This is practically possible and that is what happened in this case.

96. 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 CC No. 225/03 DA Vs. Subhash Garg Page 48 of 62 account of variance in the amount of / extent of adulteration. Doing so would defeat the entire purpose of the Act and shall have drastic consequences as adulteration of food is a menace to public health as the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food (Isharpash Vs. State of Punjab 1972 CriLJ 874, Dayal Chand Vs. State of Rajasthan 2004 CriLJ 2102.). In Murlidhar Meghraj Loya Vs. State of Maharashtra 1976 CriLJ 1527 the Hon'ble Apex Court observed as under: "any narrow and pedantic, literal construction likely to leave loopholes for the dangerous criminal tribe (adulterator) to sneak out of the meshes of the law should be discouraged".

Use of colour

97. It was further argued by the Ld. defence counsel that in view of the law laid down in Delhi Administration Vs. Amar Chand 2013 (1) FAC 136, upon a harmonious construction of Rule 23, 28 & 29 coupled with article A.18.06 tartrazine though a synthetic food colour would not fall in the category of added colouring material which are prohibited in food grains. It was also argued that there is nothing on record to show that mere addition of tartrazine would make the Dal injurious to health more so when it is a matter of common knowledge that Dal is used only after washing. Reliance was placed upon Khushi Ram Vs. State, 1984 (2) FAC 256, Shiv Narain Vs. State of Haryana, 1996 (2) FAC 313, Daulat Ram Vs. State of Punjab 1979 (2) FAC 202 and State of Punjab Vs. Prem Kumar 1992 (1) FAC 60. CC No. 225/03 DA Vs. Subhash Garg Page 49 of 62

98. However, I differ with the contentions raised by the Ld. defence counsel in view of the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976. In the above judgment, the Hon'ble Apex Court while dealing with Rule 23, 28 & 29 has held as under:

"Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the rules shall be prohibited. The only artificial dyes which were permitted to be used in food, were those set out in Rule 28 and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule. Linseed oil was admittedly not one of the articles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil. It does not appear from the report of the Public Analyst as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dyes. Even so, by reason of Rules 23 and 29, it could not be added to linseed oil. In the circumstance, the linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.

When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter............................................................................................................................... ....where no colouring matter is permitted to be used in the article of food, what is prescribed in respect of the article is that no colouring matter shall be used CC No. 225/03 DA Vs. Subhash Garg Page 50 of 62 and if any colouring matter is present in the article in breach of that prescription, it will clearly involve violation of clause (j) of Section 2(i) ".

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

" Under Rule 2 (i) (j) the patisa in the preparation of which a non persmissible colouring matter has been used, is an adulterated article...... Under Rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited ....... Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed or be so form the fact that it is not one of the permitted coal tar dyes enumerated in rule 28.".

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

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

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

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

(10) It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder." Injurious to health

102. Regarding the defence plea that the addition of the colour did not make the Dal injurious suffice is to say that the same is not tenable in view of the law laid down in Mani Bai Vs. State of Maharashtra 1973 FAC 349. The Apex Court held as under:

" In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated.".

103. Reliance may be placed on the Hon. Apex Court's judgment in Jai Narain's case (supra) as well as on Sharif Ahmed Vs. State of UP 19481997 FAC CC No. 225/03 DA Vs. Subhash Garg Page 52 of 62 (SC) 626, wherein the Hon. Apex Court while dealing with case of colour having mixed with chillies powder observed "It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst's report to be injurious to human life. It does not follow that because it is not specially mentioned to be injurious, it is noninjurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health".

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

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

105. In Moses & Anr. Vs. State 1975 (2) FAC 271, the Hon'ble Division Bench of the Madras High Court held as under:

"The only defence, on the facts was that the adulteration was not prejudicial to health and would not injure anybody, but only added colour to the substance and made it attractive to the buyer. That, of course, was an untenable plea. It is well settled that under the Prevention of Food Adulteration Act, the adulterated substance need not be CC No. 225/03 DA Vs. Subhash Garg Page 53 of 62 poisonous or injurious. Indeed, it may even be conducive to health.......The object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law... But the offence is complete, because a substance not recognised by law has been used for mixing.".

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

107. Similar are the observations of the Hon'ble High Court of Delhi in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 and Delhi Administration Vs. Ashwani Kumar 2013 (1) FAC 284. In Ashwani Kumar's case it was held that the prosecution was not bound to prove that the added colour was injurious to health. Mere presence of the colour amounts to adulteration.

108. In Mohinder Paul Singh Vs. State of Punjab 1997 (2) FAC 263, it was held that in Dal no coaltar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence.

Paper Chromatography Test

109. It was further argued that the usual test for detecting colour is paper CC No. 225/03 DA Vs. Subhash Garg Page 54 of 62 chromatography test which is not a reliable test to conclude the presence of any colouring matter. Reliance was placed upon State Vs. Subhash Chand 2012 (2) JCC 1052 and K.B. Devassikutty Vs. Food Inspector decided on 05.12.2008. However I find no merit in the said contention of the Ld. defence counsel. As per the report of the Director he used the method as per the DGHS Manual. Paper Chromatography is just one of the method prescribed in the manual. Nonetheless in Delhi Administration Vs. Manohar Lal, 2013 (1) FAC 186 the Hon'ble High Court of Delhi upheld the conviction of the vendor upon a report based upon chromatography test. It was observed as under:

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

CC No. 225/03 DA Vs. Subhash Garg Page 55 of 62

"The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur V. Sri Ram wherein it is observed: "that the report of the public analyst under Section 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in S. 2(1) of the Act.".".

19. In this view of the matter, the learned ASJ fell into grave error in reversing the judgment of conviction passed by the learned M.M."

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

111. It was further argued that in the report of the Director the percentage of colour has not been mentioned hence it cannot be concluded as to what was the exact quantity of the colour detected to make it adulterated. Reliance was placed upon Bhagwan Dass Vs. State of Haryana 1984 (2) FAC 261 and Nagar Palika Parishad Vs. Rajender Kumar 1988 (2) FAC 3. However, I do not agree with the above contentions of Ld. Defence counsel. On combined reading of Rule 23 and 29 it becomes amply clear that no colour could be added to the Dal Arhar as Dal Arhar does not find mention in Rule 29 which deals with the food articles in which colours as CC No. 225/03 DA Vs. Subhash Garg Page 56 of 62 mentioned in Rule 28 could be added. Therefore mere presence of colour whatever may be the traces amounts to adulteration. The percentage is of significance only when the colour is permitted to be added to a certain quantity/standard and it is in excess or less than that prescribed quantity/standard. But where no colour is permitted in food articles no question /argument can be raised that the Director did not mention the percentage of colour as the mere presence of colour amounts to adulteration. Reliance may be placed upon the law laid down in Prem Ballab and Anr. Vs. The State (Delhi Admn.), Crl. Appeal No. 287 of 1971, decided on 15.09.1976 as discussed above. Furthermore In Ram Nath Vs. State 1981 (1) FAC, 204 it has been held that omission to specify the percentage of organic or inorganic extraneous matters is immaterial and this omission in the report cannot be regarded as a defect in it. In State of Gujarat Vs. Kutubuddin and ors 1981 (II), 264 it was held that on perusal of section 13 (2B) of the PFA Act it would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis.

Warranty

112. Last pitched attempt was made by the Ld. defence counsel to wriggle out the accused from the clutches of law by arguing that the accused who was a vendor/retailer had purchased the article from M/s Makhan Lal Suresh Kumar & Brothers, Naya Bazar, Delhi vide bill no. 41563 dated 08.01.2003 and therefore he CC No. 225/03 DA Vs. Subhash Garg Page 57 of 62 was protected in view of Section 19(2) r/w Section 14 of the Act. It was argued on behalf of accused that he had purchased the article from the above manufacturer / dealer and the said fact was also made known to the Food Inspector however the Food Inspector did not bring the said fact on record and falsely implicated the accused. It was argued that in view of the categoric deposition of DW1 i.e. Rajesh Gupta and DW2 Shasi Bala Singh coupled with the above bill, accused cannot be held liable for the adulteration detected in the sample.

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

114. In Pothuri Ananda Venkta Shubha Rao Gupta Vs. State of Andhra Pradesh 1991 FAC 79, it was held that the burden is on the accused to produce the CC No. 225/03 DA Vs. Subhash Garg Page 58 of 62 warranty and prove that he purchased the food article under warranty from a particular person. Mere filing of the photocopy of the bill / the warranty without filing the original in the court will not be of any help of the accused / the vendor. Further reliance may be placed upon the law laid down in Raja Das G. Pemnani Vs. State of Maharashtra AIR 1975 SC 189, A. Ghosh Vs. State of Rajasthan 2006 FAJ 229, Sham Sunder Maheshwari Vs. State of Assam 2006 (1) FAC 14, Apurba Poddar Vs. State of Assam 2006 (1) FAC 22 and State of Gujarat Vs. M/s Ashok Kumar Sheetal Das Firm 2006 (1) FAC 1.

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

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

116. Hence, not only the accused has to prove that he has purchased the article from a particular manufacturer / distributor but further that the article was sold by him in the same manner / state / condition as it was purchased by him. Unless there is material to show that he was selling in the same state in which it was purchased, the petitioner can not get benefit of Section 19(2) of the Act. Reliance may be placed upon law laid down in H.A. Rasheed Vs. State of Andhra Pradesh 1996 CC No. 225/03 DA Vs. Subhash Garg Page 59 of 62 (1) FAC 78, Inderjit Vs. State of Haryana FAJ 370, Swapan Kumar Vs. Anil Kumar 1988 CrLJ 60, 1981 (1) FAC 275, and Apurba Poddar Vs. State of Assam 2006 (1) FAC 22.

117. In the case at hand, benefit of warranty cannot be granted to the accused for numerous reasons. Firstly, as far as deposition of DW2 is concerned the same has no significance whatsoever. Secondly, the genuineness/ authenticity of the claim of the accused of having purchased Dal from M/s Makhan Lal Suresh Kumar remained doubtful in view of deposition of DW1 Rajesh Gupta who stated as " ....... I do not know the accused, present in the court. I do not remember the name of any person in the name of Shri Sarvan Bansal, the Broker, operating in the Naya Bazar are as such." He further stated during his deposition as ".....I cannot say if the accused, present in the court used to purchase various food articles, including the food article in question, from our firm. the record as maintained above ha been weeded out. We use to sell the food articles in packed condition only." The bill could not be proved as per the Rules of evidence. In fact there is no bill on record at all. Therefore no question of granting of benefit arises. The deposition of DW1 Rajesh Gupta proved to be of no help to the accused. Thirdly, it is not disputed that when the sample of Dal was lifted it was lifted from an open gunny bag. Hence even if it is assumed that the accused had purchased the Dal from M/s M/s Makhan Lal Suresh Kumar & Brothers (though not proved by the accused) still he is not entitled to warranty as the accused could not prove that he had stored the Dal CC No. 225/03 DA Vs. Subhash Garg Page 60 of 62 in the same condition in which he had purchased it. To claim the benefit of warranty, it was necessary for the accused to prove that not only he stored the articles in the same condition in which he had purchased but further that they were sold in the same condition/state. Once the bag is opened and sold loose at his shop the warranty itself lapses. Once the retailer purchases the article from the particular manufacturer/distributor in bulk quantity in a sealed container/bag etc. and for the purpose of sale he opens the container/the bag, keeps it in loose condition with him and sells it in pieces/small quantity over a period of time then in all likelihood the article gets adulterated at his end/ adulteration taking place at his shop/premises appears more probable and cannot be ruled out because he being a retailer/ Kiryana shop owner selling numerous food articles spices etc. which have different standards and their getting mixed up and adulterating the other food articles in numerous ways is quite natural. That is why the legislation has envisaged in section 19 that to avail the warranty the article must be stored properly and sold in the same condition as was purchased by the vendor. To hold the supplier/ manufacturer guilty on the basis of warranty claimed by the vendor when the vendor sells the food article after opening the sealed package/packet/bag will amount to travesty of justice as once the article is sold by the supplier or manufacturer he looses/seizes to have control over the food article/the article so sold to the vendor so as to maintain its purity and prevent it from being adulterated. Section 19(2) is intended to cover cases where the retailer/the vendor sells the food articles in "as it is basis/in the same mode/condition in which he purchased" without interfering with its package i.e. without opening it. For example CC No. 225/03 DA Vs. Subhash Garg Page 61 of 62 tins/cans/polypacks of juices, ghee, milk etc. Once he opens the package/packing and sells the articles in small quantity or loosely over a period of time he does it at his own peril and if it is found adulterated it is he who is liable and not the manufacturer/supplier who no longer has control over the articles so sold.

118. In view of my above discussion, as colour tartrazine was found by the Director in the sample of Dal Arhar so analysed which is not permitted under / is in violation of Rule 23, 28 and 29 of PFA Rules 1955 as Dal Arhar is not a food article falling under Rule 29 wherein the food articles in which synthetic colours are permitted are listed, the accused stands convicted under Section 2 (ia) (j) of PFA Act 1954.

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

Announced in the open Court                                         (Gaurav Rao)
on 29th January 2015                                            ACMMII/ New Delhi




CC No.  225/03
DA  Vs. Subhash Garg                                                                    Page 62 of 62

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