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31. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colours) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. It would be for the accused to establish what would be the variation that can be called as substantive enough to give benefit to him and further that such variation was a result of sample being not representative. The accused cannot simply rely upon the Kanshi Nath's case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath's judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert examined in that case without leading any further evidence whatsoever in this case. The experts who have actually analysed the samples in this case have not been cross-examined by the accused by applying under section 293 CrPC.

(e) of Rule 44-A of PFA Rules. In this case, it is not the case of the prosecution that a mixture of Kesari dal flour and Bengal-gram dal flour was found present. Its case is therefore not falling in clauses (d), (e) or (f) of Rule 44-A, but is falling under clause (c) of the said Rule. For clause

(c) to apply, there is no requirement that to constitute a violation, there has to be a 'mixture' of Kesari dal flour with any other ingredient. Such mixtures are covered only under clauses (d), (e) and (f). If there is presence of Kesari dal flour as an ingredient in any food product, it would be violative of Rule 44-A (c). Once such ingredient is found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to the quantity present. Thus, even if the samples had not been properly homogenized, that would not make any difference as presence of even the smallest quantity of a prohibited substance would be violative of the provisions. 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 persons never chose to apply and cross-examine the Director CFL when this option was available to him under section 293 CrPC, which otherwise makes its report admissible in evidence without formal proof. No expert witness was examined in defence. No such defence was raised by the accused persons even in their statements under scetion 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. Thus, the report of CFL cannot be discarded on this count.

(b) or (c) of Rule 44-A which nowhere require kesari dal to be a mixture for use with any commodity other than Bengal-gram/dal/flour. Similar was the position in judgement titled as Nagapalika Parishad Khilchipur v. Rajender Kumar [1988(II) FAC 4]. But the present case would stand on different footing altogether. There is nothing to show that the case is not falling under clause (e) of Rule 44-A.

44. Further in the present case, there is no finding of the CFL that the presence of Kesari dal flour was only in traces or negligible or not to be considered as adulteration. If the quantity was so insignificant, the Director CFL must have mentioned it so, as in above referred case. Though it is correct that no percentage or quantity of Kesari dal flour has been mentioned in the report, yet that would not give automatic benefit to the accused by concluding that it was only present in traces as contended. If the accused wanted any clarification, he should have exercised the option under section 293 CrPC by applying and calling the analyst for cross-examination. It was not the job of the prosecution as the report of CFL is otherwise admissible in evidence without formal proof. But nothing had prevented the accused from putting questions in this regard to the analyst in his report which is silent in any particular point. Now without even examining the export who had analysed the sample, this court cannot hypothetically assume that the quantity must have been in traces or negligible. Had it been so, the analyst would have mentioned so. Therefore, no benefit can be drawn by the accused on this count. Even if the said presence was in traces, the offence would be made out.

45. Moving ahead, Ld. Defence Counsel has questioned the method of testing as adopted by the CFL. Relying on the judgement titled as Maya Ram v. State of Punjab [1987(II) PFA Cases 320], it is argued that paper chromatography test as adopted by the CFL is not a sure and reliable test.

46. However, I do not find myself in agreement with such arguments. Paper chromatography test is a recognized test to determine presence of food colours and Kesari dal. For that matter, even the accused has nowhere gave any suggestion to any witness at the trial that no such Kesari dal was present. Rather PW-2 was given suggestion that only an insignificant quantity of kesari dal was present, which the witness could not affirm or deny. Apparently, such a question was supposed to be put to a chemical expert or the analyst who had analysed the sample and not to the PW-1, PW-2 or PW-3 as they were not experts in this field. In any case, it is clear that even the accused accepts presence of Kesari dal flour in the sample, though has claimed that it was only in negligible quantities. Even otherwise, there is nothing to show that this paper chromatography test is not a sure or reliable test to detect presence of Kesari dal in food articles. This test is internationally recognised and accepted method. As earlier stated, no attempt was made by the accused to apply and cross- examine the Director CFL under section 293 CrPC and to question the analyst or Director as to the validity and intricacies of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the Director 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.