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11. The commodity in the present case is Dal Arhar (Split Pulse) which is a food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.09 of Appendix B of the PFA Rules. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter tartrazine in the sample analysed. On this point, the reports are conforming to each other and not at variance.

12. To begin with, the court does not find itself in agreement with the contention of Ld. Defence Counsel that the reports of PA and Director CFL cannot be relied upon as they have not been examined in the court. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC read with section 13(5) of PFA Act. As per section 13(5) of PFA Act, "Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code: 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."

13. But that does not mean that such reports cannot be questioned on any point on which they are silent. If an 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 analyst. 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 views and refuse to disbelieve a report of PA or CFL, without giving the analyst 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 In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. In such a case, if the accused was genuinely feeling aggrieved by mentioning or non-mentioning of any details, there is no reason why he did not opt to cross-examine the CFL analyst and ask him/her about anything on which the report is silent. The CFL (and even PA) maintains all the details of the tests conducted, calculations made, values derived and methods used on the basis of which final results are given as mentioned in its certificate. The report and certificate on record are only the final figures as given in the formats prescribed under the PFA Rules. They do not contain all the details of the entire analysis from beginning to end and such data can always be called by the accused if desired. 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, and then to raise the issue at final hearing on something on which the final report may be silent. This was obviously not the responsibility 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."

57. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is pointed out that as per PA report, chromatography method was used to detect artificial colouring matter, which Ld. Counsel claims is not a sure test. Similarly, it is submitted that the CFL has not specifically mentioned as to what test was adopted out of various tests prescribed under DGHS manual.

58. Well, the court does not find merit in the said submissions. As already discussed, the report of chemical experts is admissible in evidence without formal proof under section 293 CrPC and if the accused wishes such report 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 analyst. But as the accused has failed to exercise the same, he cannot chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. 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 method had been used by the analyst to determine the presence of synthetic food colour. In such a case, there is no reason why the accused did not opt to cross-examine the CFL analyst and ask him/her about the method used to detect synthetic colour, if he was genuinely feeling aggrieved by his/her failure to name the test method. This is particularly when even the accused has virtually accepted that such colour was there in the sample, attributing the presence of such colour to incorrect sample proceedings.

69. 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, that is, 12.07.2004, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/G also mentions that she has been duly appointed and this fact was never disputed at the time of trial.