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50. Again, even if the samples were not properly homogenized though there is no evidence to that effect), that would not make any difference as even its smallest quantity would be violative of the provisions. Homogenization would have at the most distributed the ingredients evenly in the entire sample but would have not resulted in absence of that ingredient. Unless the accused persons are able to show that such presence of prohibited material was beyond their control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused persons. In this case, no such stand has been taken by the accused persons at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused persons never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. No expert witness was examined in defence. No such defence was raised by the accused persons even in their statements under section 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused persons have to take, the burden would be upon them to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused persons are required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve his purpose. But when no such stand is taken at the trial, the court cannot assume presence or absence of certain facts.

58. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is argued that the PA report shows that colours were detected using paper chromatography method, which is not a sure and reliable test.

59. Well, the court does not find merit in the said submissions. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such report cannot be questioned on any point on which it is silent. If the accused wishes such reports to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross- examine the experts. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its own views and refuse to disbelieve a report of PA or CFL, without giving the analysts any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that DGHS prescribed method had been used by the analyst to determine the colours. In such a case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him about the method used by him to detect synthetic colour, if they were genuinely feeling aggrieved by his test methodology. The CFL maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously not the job of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that "the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect."

73. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/G also mentions that she had been duly appointed and this fact was never disputed at the time of trial.

77. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.