PFA – Delhi Dt.Court -Food Inspector Vs Jindal – Full cream milk – conflicting test results – Jan 13 – 2017

                IN THE COURT OF SH. ASHU GARG,
         Addl. Chief Metropolitan Magistrate - II (New Delhi),
                   Patiala House Courts, New Delhi

CC No. 01/02
Unique Case ID No. 02403R0004692002

Date of Institution:           07.01.2002
Date of reserving judgement:   13.01.2017
Date of pronouncement:         13.01.2017

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                    ... Complainant

               versus

A-1) P. D. Jindal
[Since Expired]

A-2) M/s. Jindal Stores
11, Prithvi Raj Lane, Khan Market,
New Delhi.
[Ex-parte]

A-3) Roop Narain Jindal
S/o. Late Sh. Babu Lal
R/o. B-7/86/1, Safdarjang Enclave,
New Delhi - 110029

A-4) M/s Nanak Food Industries
Karawal Nagar, Delhi-110094
[Ex-parte]




CC No. 01/02                                               Page 1 of 37
 A-5) A. K. Kaushik
S/o. Late Sh. K. D. Kaushik,
Karawal Nagar, Delhi-110094
[Since P. O.]

A-6) M/s Nanak Dairy Plant
G.T. Road, Hodal, Haryana
[Ex-parte]

A-7) Arun Kumar Kaushik
S/o. Late Sh. K. D. Kaushik
G.T. Road, Hodal, Haryana
[Since P. O.]                                       ... Accused Persons


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 2 is a partnership firm from whose premises the food article, that is, Full Cream Milk, was lifted for sampling. Accused no. 1 (since expired) and 2 are stated to be its partners, out of whom accused no. 1 was the vendor in whose presence the sample was taken. Accused no.4 (since ex-parte) is stated to the supplier firm of which accused no. 5 (since P.O.) was the nominee and accused no. 6 (since ex-parte) is stated to be the manufacturer / packer firm of which accused no. 7 (since P.O.) is stated to be the nominee.

2. As per the complaint, on 19.05.2000, food officials consisting of Food Inspectors (FI) Usha Kiran and Hukam Singh Meena under the supervision of Local Health Authority (LHA)/SDM Sh. H. K. Remthang reached along with their staff at the premises of accused no. 2 at 11, Prithvi Raj Lane, Khan Market, New Delhi where accused no. 1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Full Cream Milk (ready for sale) from the vendor lying in sealed poly packets of 500 ml each bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 29.05.2000, the PA found the sample to be not conforming to the standards because milk fat and milk solids not fat were found to be less than the prescribed minimum limits. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. It was found that accused no. 1 and 3 were the partners of accused no. 2 Firm and had not appointed any nominee. It was also found that the food article had been purchased by accused no.2 from accused no.4 vide bill no. 1746 dated 19.05.2000 and that the food article had been manufactured / packed by accused no.6 as gathered from the label thereupon. Accused no. 5 and 7 were found to be the nominees of accused no.4 and 6 respectively. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by FI on 07.01.2002 alleging violation of section 2(ia)(a) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 07.01.2002.

4. In the meanwhile, accused no. 1 expired and proceedings against him stood abated vide order dated 21.07.2004. Further, none appeared for accused no.2 Firm and it was proceeded against ex-parte vide order dated 02.07.2003. Subsequent order sheet dated 21.07.2004 shows that accused no. 3 had appeared on behalf of accused no. 2 but this fact was later denied by accused no. 3 on 02.05.2005 and the accused no.2 Firm was again proceeded against ex-parte. Accused no.4 and 6 appeared on 18.05.2005 through their partners / AR and ld. counsel. In the meanwhile, the presence of accused no. 5 and 7 (appearing to be the one and the same person, considering their parentage) could not be secured even through coercive measures and he / they was / were declared proclaimed offender vide order dated 25.04.2008. Ld. Counsel and AR continued to appear on behalf of accused no. 4 and 6 and participate at the trial till 12.11.2010 but stopped appearing thereafter. These firms were subsequently proceeded against ex-parte vide order dated 27.09.2013. Therefore, the trial was faced only by accused no. 3 in his individual capacity.

5. Upon appearance, accused no. 1 (since expired) moved an application under section 13(2) of PFA Act for exercising his right to get the second counter part analysed through the Central Food Laboratory (CFL). The counterpart was sent to the CFL and vide certificate dated 03.04.2002, the Director (CFL) opined the sample to be adulterated on the ground that the milk fat was less than the prescribed minimum limit.

6. On the basis of the complaint and CFL report, notices were framed against the accused no.3, 4 and 6 on 01.07.2009 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which they pleaded not guilty and claimed trial.

7. At the trial, the prosecution examined two witnesses in support of its case. PW-1 Usha Kiran and PW-2 FI Hukam Singh Meena were part of the team that had visited the spot for sample proceedings along with Sh. H. K. Renthang (SDM/LHA) (since expired). Both these witnesses deposed about the proceedings conducted by them on 19.05.2000 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of Full Cream Milk of 1 litre by taking two sealed polypackets bearing identical label declaration kept inside a refrigerator, bringing the packets to room temperature by keeping them outside the refrigeration, shaking the packets, cutting open the same and transferring its contents into to a plastic mug, thoroughly mixing / homogenizing it using another plastic mug, dividing it into three parts by putting in three clean and dry sample glass bottles, putting 27 drops of formalin in each bottle using a clean and dry glass dropper, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C, Notice under section 14A Ex .PW1/D addressed to accused no.4 on the basis of the bill Mark – A. On the next working day, that is 22.05.2000, one counterpart of sample along with Memo as per Form-VII were sent to Public Analyst (PA) for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW- 1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-1. PW-1 issued letters Ex. PW1/H and Ex. PW1/I to the STO and received its reply along with partnership deed Ex. PW1/J informing that accused no.1 and 3 were the working partners of accused no. 2. She sent letters Ex. PW-1/K to Ex. PW-1/M to the vendor accused no. 1 and received his reply Ex. PW-1/N. She sent letters Ex. PW-1/O and Ex. PW1/P to the NDMC and received reply Ex. PW1/Q alongwith documents Ex. PW-1/H and Ex. PW-1/J. She sent letter Ex. PW-1/R to accused no.4 and received reply Ex. PW-1/R-1 informing that accused no.5 was its nominee. This fact was confirmed even from CMO, Faridabad vide its reply Ex. PW-1/S. Letter Ex. PW-1/T was sent to accused no.6 and the reply Ex. PW-1/R1 was taken. Subsequently, the vendor accused no.1 sent a reply Ex. PW-1/U informing that he was the sole proprietor of accused no.2. Reply Ex. PW-1/V was received from one Khajan Chand Ved Prakash at the address of the vendor. PW-1 also sent letter Ex. PW- 1/W to the CMO, Palika Kendra and received reply Ex. PW-1/Q. Thereafter upon completion of investigation, sanction Ex. PW-1/Y was taken from the Director PFA and complaint Ex. PW-1/Z was filed in the court. After this, intimation letter Ex. PW-1/Z1 along with copy of PA report was sent to the accused persons through postal receipts Ex. PW- 1/Z2. PW-1 was cross examined on behalf of accused no.3 wherein he denied that accused no.3 was dealing in stationary items. He was cross examined on behalf of accused no.4 and 6 wherein he stated that the original bill was shown to him at the spot and photocopy was provided to him. He however denied that the bill was a forged one. PW-2 was never cross examined by any accused.

8. Statement of the accused no. 3 under section 313 CrPC was recorded on 13.10.2014 wherein he denied the allegations and pleaded innocence. He claimed that he was not present at the spot and sample was not lifted in his presence. He took stand that he used to carry on stationary business at the premises in question and had nothing to do with the sample commodity. He stated that accused no. 1 (since expired) used to carry and was in-charge of the perishable food items and even the license was issued in his name as proprietor of M/s. Jindal Store. He denied receiving any intimation letter. He questioned the PA and CFL reports. No defence evidence was however led by the accused no.3.

9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused no. 3 as well as the accused no. 2, 4 and 6 firms (since ex-parte) on the ground that they have not been able to rebut the findings of the CFL report dated 03.04.2002. It is submitted that both the witnesses have supported its case and no major contradiction can be seen in their testimony.

10. On the other hand, ld. Counsel for accused no. 3 has argued that no case is made out against him, primarily on the ground that no specific role has been attributed to him on the basis of which he can be said to be a person in-charge of or responsible to the accused no. 2 firm for conduct of his affairs. It is contended that accused no. 3 had no role to play at the then existing business concern with respect to the food article in question.

11. I have heard the arguments advanced by Ld. SPP for the complainant and ld. counsel for accused no. 3 and have carefully perused the material available on record. Since accused no. 2, 4 and 6 are ex-parte, no arguments have been advanced on their behalf by anyone.

12. Before proceeding with the merits of the case, it is to be understood that the present case involves partnership firms which are not participating at the trial.

13. The matter is governed by Section 17 of the PFA Act which is pari materia to the Section 141 of Negotiable Instruments Act. As per the Explanation (a) to Section 17, “company” means anybody corporate and includes a firm or other association of individuals. As per Explanation (b), “Director” in relation to a firm, means a partner in the firm.

14. Going by this provision, Section 17 lays down that in case of a company (which also includes a partnership firm), any person incharge of and responsible to the company for the conduct of its business can also be held liable in addition to the company. Therefore, a partnership firm has also been given the status of a company for the purposes of Section 17 of PFA Act, despite the fact that it is otherwise not a separate and distinct legal entity as per the Companies Act. Going by the language of Section 17, even a partnership firm can be proceeded against in the same manner as in case of a company. Therefore, even if its partners are not facing the trial, the matter can still proceed against the partnership firm.

15. Section 305 CrPC prescribes the procedure when a corporation is an accused. Section 305(2)CrPC states that when a corporation is one of the accused persons, it may appoint a representative for the purpose of inquiry or trial. Section 305(3) CrPC further provides when such a representative appears, any requirement that anything shall be done in the presence of the accused shall be construed as a requirement that that thing shall be done in the presence of the said representative. Therefore, a company (which includes a partnership firm in terms of Section 17 of PFA Act) has to participate at the trial only through a representative appointed by it undersection 305(2) CrPC. Obviously, appointment of such a representative is the prerogative of the company or the firm. It may or may not appoint a representative to participate at the trial on its behalf. The question is what would be the consequences if no such representative is appointed by a company.

16. As per section 305(4) CrPC, where a representative of a corporation does not appear, the requirement in section 305(3) CrPC shall not apply. Thus, if no such representative is appointed by a company or firm to appear on its behalf, the requirement that any act has to be done in the presence of the accused would not apply. Since a corporation or firm is only a fictitious entity created by law, no coercive steps can be taken to secure its presence. The court cannot compel the company or firm to appoint a representative on its behalf. Therefore, the only option is to proceed with the matter against the company or firm in absentia. If a company or firm chooses not to participate at the trial, the matter has to proceed against the company or firm in its absence. If the matter finally results in conviction against the company or firm, such a conviction would be binding on the company or firm, though the said company or firm being a juristic entity cannot be sentenced to imprisonment and only sentence of fine can be imposed and/or compensation awarded.

17. In the present case, no such representative was appointed by the accused no. 2 firm and one representative had been appointed by accused no. 4 firm but he stopped appearing. There was no representative appearing for accused no. 6, though Ld. Counsel appeared on its behalf for some period. Obviously, the responsibility and prerogative to appoint a representative was on the firms themselves and the court could not have directed them to necessarily appoint any person as its representative. Since such firms are only fictitious entities, no coercive measure could have been taken against the firms and the only course open to the court was to proceed against the firms in absentia / ex-parte. In the present case, the said three firms have already been proceeded against ex-parte and therefore, they have to face the consequences accordingly.

18. At this stage, it is pertinent to note that the material on record is sufficient to ascertain the legal status of accused no. 2 and 4. As per the reply of the Sales Tax Office Ex. PW-1/17, the firm M/s Jindal Stores was a partnership firm. The claim of accused no. 1 that he was proprietor of the said concern, has remained not proved. Similarly, accused no. 4 M/s Nanak Food Industries has also been established to be a partnership firm. Reply of the firm Ex. PW-1/R-1 as given to the IO would clearly show that it was a partnership firm having four partners. Since a nominee had been appointed by the firm, the said partners were not implicated. The material on record in the form of document Mark Z-2 and Z-3 would also show that Nanak Food Industries was a business concern, the head office of which was at A-10/6, Vasant Vihar, New Delhi and its Admn. Office was at Karawal Nagar, Delhi-110094. Being partnership firms, accused no. 2 and 4 have to be treated as separate entities in view of the Explanation to Section 17 of PFA Act.

19. However, as far as accused no. 6 is concerned, the material on record does not disclose its legal status. There is nothing to show if M/s Nanak Dairy Plant Hodal was a company or a partnership firm or an association of individuals or a society or otherwise a proprietorship concern. The legal status of accused no. 6 is necessary to be established because if it was a proprietorship concern, it had no separate identity distinct from its proprietor. There is nothing to show that any attempt has been made by the FI to ascertain the legal status of accused no. 6. Even the response of LHA Faridabad Ex. PW-1/S does not show legal status of accused no. 6 nor the nomination form sent to it is on record. Accused no. 6 could have been prosecuted in its own name only if it was a company within the meaning of Section 17 of PFA Act. But in the absence of any material, the court cannot proceed against it by assuming that it was a company or a firm and not proprietorship concern.

20. On merits, it is to be understood that the notice framed against the accused persons is for violation of section 2(ia)(a) and (m) of the PFA Act. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.

21. The commodity in the present case is Full Cream Milk which is a standardized food article falling in Item A.11.01.10A of Appendix B of the PFA Rules. As per the standards laid down in Item No. A.11.01.11 with respect to Full Cream Milk, the milk fat should be minimum 6.0% and the milk solids not fat should be minimum 9.0%. In the present case, the PA found the milk fat content to be 4.3% and milk solids not fat content to be 6.95% (not conforming to standards on both the parameters). However, when the sample was analyzed by CFL, the milk fat content wasfound to be 5.3% (not conforming to standards) but the milk solids not fat content was found to be 10.2% (as per standards). It is also seen that as per PA, the BR reading was 42 but as per CFL, the BR reading was 44.8.

22. Though no arguments have been advanced in this regard by accused no. 3 or by accused no. 2,4 and 6 who are ex-parte, yet the court has to consider the possible defence that the samples were not representative due to ‘variations’ in PA and CFL report.

23. The court is well aware of the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], which has been followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta[2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302],State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] andState v. Rama Rattan Malhotra [2012(2) FAC 398].

24. However, it is necessary to understand the concept of reports of PA and CFL and variations therein. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

25. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

26. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.”

27. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR1970 (1) Delhi 518], the full bench of Hon’ble High Court of Delhi observed that “According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13“. The Hon’ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a “greater expert whose certificate is to be accepted by court as conclusive evidence”.

28. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.

29. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath’s case (supra) has come to notice of the court where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.

30. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that “It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act”.

31. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon’ble High Court of Gujarat while relying upon the decision of the Hon’ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of ‘variation’ and held that “Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.”.

32. In the case of MCD v. Bishan Sarup [supra], the Hon’ble High Court of Delhi (Full Bench) was dealing with a sample of milk (as in the present case). The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon’ble Court reversed the acquitted into conviction and observed as under:

(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.

(b) “Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.”

(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) wouldbe attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

33. This judgement was also relied upon by the Hon’ble High Court of Delhi in Salim and Co. v. MCD [1978 Cri LJ 240], where it was observed that “It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director”.

34. In MCD v. Zahiruddin [ILR (1972) 1 Del 630], the Hon’ble High Court of Delhi held that “It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded.” Similar was the observation of Hon’ble High Court in MCD v. Manohar Lal [1975 (1) FAC 182].

35. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be “unfit for analysis” in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.

36. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in Bishan Sarup’s case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.

37. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be “substantial enough” to be considered in favour of the accused. The Actor Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant’s witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be “substantial enough”, then certainly he would be given benefit. But to say that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not a correct approach.

38. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.

39. In Kanshi Nath’s case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon’ble Court ruled in favour of the accused and acquitted him.

40. Thus, the point to be noted is, that the law laid down in Bishan Sarup’s case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath’s case, the accused was able to adduce evidence to the effect that ‘in ideal conditions’, the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon’ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup’s case, the Hon’ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.

41. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.

42. As mentioned earlier, this judgement has been relied upon time and again by the Hon’ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami[2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].

43. At this stage, it is not out of place to mention that the Hon’ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath’s judgement, but at the same time, expressly ordered the question of law to be kept open.

44. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon’ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.

45. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] andState v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar[2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon’ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.

46. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.

47. Thus, the above judgements have to be considered in right perspective. The Hon’ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon’ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.

48. 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.

49. There is nothing for the court to disbelieve the CFL report in this case which clearly shows that the milk fat content was less than the minimum prescribed limits. When the CFL gave report that the milk solids not fat content was more than the prescribed minimum limits, the benefit of the same would certainly go to the accused persons and they cannot be prosecuted on the basis of findings of PA on this point. But the CFL report cannot be accepted only in part. The milk fat content was found to be in violation of the PFA Rules.

50. The accused no. 2,4 and 6 have never participated at the trial to dispute any fact proved by the witnesses or to put forth their stand. PW-2 was never cross examined by these accused persons on any point whatsoever and his evidence has remained unrebutted. Even the PW-1 cross examined on behalf of accused no. 4 and 6 only to a very limited extent by alleging that the bill in question was a forged one, which the witness denied. Apparently, as far as accused no. 2,4 and 6 are concerned, they have never questioned the findings of CFL. They have never cross- examined the PWs or gave suggestions that the said findings were incorrect or on account of invalid methods of testing or on account of improper sampling or due to lapse of time. It is nowhere a defence that unclean or contaminated utensils / implements had been used or that the sample was not homogenised properly. These accused persons never appointed any AR whose statement could be recorded under Section 313 CrPC and they never led any evidence in defence.

51. It is to be understood that report of chemical experts is admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such reports cannot be questioned on any point on which it is silent. If the accused persons wished such reports to be clarified or questioned, they had an option available to them to apply to the court under section 293 CrPC and cross-examine the analysts. Despite such option being available, if an accused fails to exercise the same, he cannot then chose to question the reports 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. The accused no. 2,4 and 6 did not participate at the trial and never opted to call or examine the analysts.

52. Record shows that as per the accused no.2, that the commodity had been purchased by it from accused no.4. During the cross-examination of PW-1, Ld. Counsel for accused no. 4 and 6 suggested to the PW that the bill relied upon by accused no. 2 was a forged document, which he denied. The said bill dated 19.05.2000, copy of which is Mark -A, was submitted to the FI on the day of sampling by accused no. 1. A copy of the same bill was supplied by him in response to the letter of the FI vide his reply dated 26.06.2000 Ex. PW-1/M. The accused no.4 on the other hand, in its reply sent to the FI Ex. PW-1/R-1 denied any sale to the accused no. and claimed that no milk was sold to the said accused no. 2.

53. However, it is seen that except bare denial of the things, no substantive material has been brought on record on behalf of accused no. 4 and 6 on the basis of which the court may conclude that the bill was a forged document. These accused persons left the trial mid way. No defence evidence was lead by them to show what so the format of their bills and on what basis the bill in question has been claimed to be forged. It is nowhere the stand of the prosecution or the PWs that the bill in question did not pertain to the food article in question. In any case, the label declarations on the sample would show that the food article had been manufactured / packed by accused no. 6. It is nowhere its stand that the food article was a duplicate or spurious food article being sold under their name.

54. There would be no defence available an accused to claim that he was not the manufacturer of the commodity or that he was only a retailer selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of ‘sale’ under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which an accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a written warranty and had been selling the product in the same manner as purchased by him.

55. In the present case, the accused no.1 (also for accused no.2) claimed that he had purchased the commodity from accused no. 4. It is to be understood that the benefit of warranty under section 19(2) of PFA Act would be available only when there is a written warranty from the supplier/seller in addition to the fact that it has been sold in the same condition as was purchased. Both the conditions have to be fulfilled simultaneously. Only fulfilling one condition that the commodity was sold in the same manner as was purchased from the supplier, would remain incomplete in the absence of other condition of a “written warranty”. Such a written warranty can be in the form of a bill or invoice or label or separately given. But it is important to note that such a written warranty has to be as per Rule 12-A of PFA Rules which provides that the same should be as per Form-VIA therein. Unless there is a written warranty, that too in the prescribed format, mentioning all the necessary details, the vendor cannot seek benefit. If a misbranded food article is purchased by a vendor through an incomplete invoice which does not satisfy the requirement of Rule 12A read with Form VIA, such a vendor cannot seek the benefit of warranty under Section 19 of PFA Act. If the accused has chosen to proceed with the transaction without a written warranty as required under the law, it did so at its own risk and consequences and had therefore lost the benefit under section 19(2) of PFA Act. The bill placed on record gives no such warranty as required under the Act and Rules. When there was no written warranty at the time of sale of the product by the supplier to the accused vendor, even the accused would be liable for selling adulterated food to the food officials, in addition to the supplier / distributor.

56. Therefore, in this case, even if it is accepted that the accused no.2 had purchased milk from accused no. 4, there is no evidence to show that there was a written warranty in the prescribed form. Therefore, such a position would not help either the accused no. 2 or 4.

57. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon’ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc.

58. Therefore, it is clear that accused no. 2, through accused no. 1 (since expired) had stored for sale food article which was adulterated within the meaning of Section 2(ia)(a) and (m) of PFA Act. It is also clear that the food article was supplied by accused no. 4 firm and manufactured by accused no. 6 business concern.

59. As far as accused no. 3 is concerned, it is an admitted position that he was not the vendor from whom the food article was lifted. In case of a company, its directors, officers or other employees (and in case of partnership firm, its partners) can be held vicariously liable only with the aid of section 17 of PFA Act (which is similar to section 141 NI Act). However, it is well settled that any and every director (or partner in case of a partnership firm), officer or employee of a company or firm cannot be held liable just because he / she happens to be a director or partner of the said company or firm. All such persons cannot be held to be responsible for every act of the company or firm just because of the reason that they hold a particular post. The burden would be upon the complainant only to aver and prove by leading positive evidence to show that such an director or partner was in charge of or responsible for the day to day affairs of the accused company or firm so as to hold him vicariously liable. In the absence of such a role specifically attributed to them, any or every director of a company or partner of a firm cannot be held liable. It is also well settled that the complainant has to explain by bringing on record the necessary facts that how and in what manner such person can be held liable and a bald averment that he was so responsible for the conduct of affairs of the company or firm, would not serve the purpose.

60. While dealing with section 141 NI Act in the case of a company, the Hon’ble Supreme Court of India in SMS Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89] has laid down that it is necessary for the complainant to specifically aver in the complaint that at the time when theoffence was committed, the person accused was in charge of or responsible for the conduct of business of the company. Without this averment being made, requirements of section 141 NI Act would not be satisfied. All the directors in a company (or other officers or employees) cannot be deemed to be in charge of or responsible for the conduct of business of the company. With the exception of a Managing Director or the signatory of the cheque, to implicate any other person as vicariously liable, there has to be specific averment and proof of his role.

61. The Hon’ble Supreme Court of India subsequently in the case titled as National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [167 (2010) DLT 143] held that vicarious liability on the part of a person must be pleaded and proved and not inferred. The said liability does not arrive merely on the basis of designation or office which a person holds in a company and a bald cursory statement in a complaint that a director made an accused was in charge of or responsible to the company for the conduct of its affairs, without anything more as to his role, would not be sufficient.

62. The said position would be applicable in case of PFA Act as well. Reliance can be safely placed on the judgements titled as Raghav Gupta v. Food Inspector [Crl. MC No. 1488/2011, Delhi High Court, dated 30.01.2012] and Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(1983) 1 SCC 1] that pertain to PFA Act only. It has been laid down that that mere averment that an accused being director or partner would ‘as such’ be liable for the acts of the company/firm would not be sufficient.

63. Relying upon the law so laid down, it becomes clear that a partner cannot be held liable for the affairs of a firm just because of his being a partner ‘as such’. There can be any number of partners of the firm dealing in all kinds of transactions, but any and all of them cannot be held vicariously liable for the offence committed by a firm. There has to be specific averment in the complaint attributing a specific role to any such partner made as an accused so as to proceed against him. Such averment has to be supported by adequate proof of allegations. In the absence of such averment and proof, no liability can be attributed to a partner of a firm, as there is no rule of law that makes ever partner of a firm responsible for the affairs of the firm for all its acts.

64. In the present case, it is seen that the complaint is totally silent as to the specific role and involvement of the accused no. 3 in the offence in question, except making a bald averment that since no nominee had been appointed by the firm, ‘as such’ both the partners the firm (accused no. 1 and 3), and were incharge of and responsible for the conduct of the business of the accused no. 2 firm.

65. Without going into the stand taken by the accused no. 3, that he was not a partner in charge or that he was looking after the stationery business of the firm, the fact remains that there is no material to show his involvement. He was not the vendor at the spot and no documents had been signed by him. There is nothing to show that he was involved in purchase, storage, sale or distribution of the food article. No account books, bill books, or other documents were seized which could attribute any role to the accused no. 3. No document had been collected and placed on record to show if the accused no. 3 had ever participated in any of the day to day activities of the firm. There is nothing to show if any bills were signed by him or any orders were placed by him or if he had sold any article to any customer or purchased any article from supplier or had maintained accounts or had discharged any other routine liability of the firm. In the absence of any such material, vicarious liability cannot be fastened upon accused no. 3 under section 17 of PFA Act. He deserves to be given benefit of doubt.

66. Similarly, in the absence of any material on record to establish the legal status of accused no. 6, the court is not in a position to proceed against it, despite the fact that it has been established to be the manufacturer / packer of the food article.

67. The case in hand would be thus covered under section 2(ia)(a) as the accused no. 2 firm through accused no. 1 vendor (since expired) sold the food article which was not of the nature, substance of quality which it purported to be. The case would also be covered under Section 2(ia)(m) as quality or purity of the food article fell below the prescribed standard and its constituents were present in quantities not within the prescribed limits of variability. Similarly, the accused no. 4 firm would be liable under these provisions being the supplier of the food article in question.

68. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 2 and 4 firms beyond the shadow of reasonable doubt. It has been proved that the accused no.2 and 4 had stored or distributed for sale for human consumption an adulterated food article in violation of section 2(ia)(a) and

(m) of PFA Act, and have committed the offence punishable under section 7/16(1)(a) of PFA Act. At the same time, accused no. 3 is entitled to be given benefit of doubt in the absence of specific role attributed to him. Further, accused no. 6 is given benefit of doubt due to absence of material defining its legal status and identity.

69. Having said so, the accused no.2 and 4 firms are held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 3 and 6 stand acquitted of the charges. Bail bond of accused no. 3 shall however remain in force for the next six months in terms of section 437-A, CrPC.

70. Let the matter be listed for arguments on sentence qua convicted accused no. 2 and 4 firms. Accused no. 5 and/or 7 continue to be proclaimed offenders.

Announced in the open court this 13th day of January 2017 ASHU GARG ACMM-II (New Delhi), PHC

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