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47. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colours used in the sample of Rice. Even if the said quantity is in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as these colours are not permitted within any limits for use in this food article. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matter in traces in food article in question. The burden would upon be him to show how even traces of colours could have entered the food articles being sold by him. But no evidence has been led by the accused to establish this fact. Both the colours have been duly identified by the CFL and in conformity to the PA. It is not that one colour was identified by the PA but more colours or different colours were identified by the CFL. Once such ingredients are found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to their quantity present. Thus, even if the samples were not properly homogenized, 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 is able to show that such presence of prohibited material was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused 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 even in his statement 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 has to take, the burden would be upon him 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 is 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.

57. Further, there is no force in the stand of the accused that the method of testing as adopted by the experts was not proper. PA had used paper chromatography test and CFL had used DGHS prescribed method. Well, no attempt was made by the accused to apply and cross-examine these experts under section 293 CrPC to ascertain the details, applicability, validity, reliability and intricacies of the methods applied. Without even cross-examining the experts when this option was available to the accused, he cannot dispute their reports on hypothetical grounds. They would have been the best persons to explain the things as they had analysed the sample. It to be noted that the reports on record are not the only documents to show the testing details. All the details of the tests performed, including the exact method used and the values / figures determined as well the calculations thereof are maintained in the concerned offices of the PA and CFL and the reports so given are only the final reports with opinion based on the analysis conducted and are given as per the format prescribed under the PFA Rules. If the accused was seriously disputing any particular report or wanted any clarification on any point on which the report was silent, he should have called the analyst under section 293 CrPC and also have summoned the detailed records as available and to question the analysts thereupon. But by not giving them any opportunity to explain the things, the court cannot find fault in the reports on the basis of mere assumptions and surmises. And not only the PA or CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.

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 analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.

69. 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.