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9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against all the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the CFL report dated 29.05.2006. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

10. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended that no percentage or extent of colour has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that Rai has its own natural colour which is also oil soluble in nature, as deposed by DW-1. It is submitted that since the sealed packets were not bearing the name of commodity or any batch number, there was nothing to show that they were of the same lot. It is submitted that there was violation of Rule 22-A of PFA Rules and the FI was required to open the sealed packets, transfer the contents to a single container, mixing all the contents together to homogenize the same and then to divide the same in three parts. It is then submitted that the PA had adopted chromatography method to determine food colour. Ld. Counsel has relied upon the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] to argue that paper chromatography test used for detecting unpermitted food colours is not a reliable test. It is pointed out that the CFL has also not mentioned the exact method of DGHS manual used by it and in the absence of any such details of the test, the report of CFL becomes unreliable. It is further submitted that the PA and CFL reports are at variance with respect to the extraneous matter and also the fact that the shade of the colour was not identified by the PA but the CFL identified it to be of Red colour. It is also argued that the accused persons were not the manufacturers of the article but were only retailers who had purchased the commodity from another seller, for which they should not be held liable. It is then submitted that no role has been attributed to accused no.2 and 3, and they cannot be held liable just because they were the partners of the accused no.4 Firm. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law. On misbranding, reliance has been placed on a policy of the department existing at that time which required only a warning to be issued to first time violators of Rule 32 of PFA Rules, as recognized in the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132].

49. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.

50. In any case, as far as the extraneous colour is concerned, there is no variation whatsoever in the two reports. There is no reason for the court to doubt the findings of the CFL certificate, which confirms the PA reports with respect to the incriminating ingredient. The PA detected 'oil soluble colour' when the chromatography method gave positive result with respect to 'added colouring matter'. There is specific opinion of the PA that the sample was adulterated because it was coloured with 'unpermitted oil soluble synthetic colouring matter'. The words 'added', 'unpermitted' and 'synthetic' would clarify that it was not a natural colour, as claimed by the defence. Similarly, the CFL also detected 'synthetic red oil soluble colour'. It confirms the PA report with respect to the 'synthetic' and 'oil soluble' colour, though it also noted the red shade of such colour. Merely noting down the shade of the colour by the CFL which the PA did not note, would not nullify the CFL report by terming it to be at variance with the PA report. Similarly, addition of the word 'synthetic' by the Director CFL by hand would not create any doubt by calling it as an 'afterthought', as the said addition was duly initialled by him at the time of preparation of report itself. It is not that some manipulation or unauthorized addition / modification was done by some mischievous person subsequent to preparation of the report. Had it been only a case of natural colour, there was no occasion for the PA and the CFL to have failed the sample on this ground.

62. Ld. Defence Counsel then submits that if colour was detected using paper chromatography method by the CFL, then that method is not a sure test. It is pointed out that even the PA used this method, which he asserts to be not reliable, thus arguing that the prosecution was bad in law.

63. Well, the court does not find merit in the said submissions. As already discussed, the accused has an option available to him to apply to the court under section 293 CrPC and cross-examine the analyst and if despite such option being available, he 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 views and refuse to disbelieve a report of CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him about the exact method used by him to detect synthetic colour, if they were genuinely feeling aggrieved by his failure to name the exact testing method. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them. The CFL would have been the best witness, having analysed the sample and given opinion, as to the name, nature, intricacies, validity, authenticity, reliability etc. of the testing methods applied by him. It is not that the paper chromatography method, even if applied by the CFL (though there is no evidence to this effect), is an invalid test.