PFA-Delhi District Court / Food Inspector vs Ajaykumar- Substandard Black Pepper – on 30 January, 2017

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

CC No. 142/11
Unique Case ID No. 02403R0049792011

Date of Institution:              28.06.2011
Date of reserving judgement:      02.01.2017
Date of pronouncement:            30.01.2017

In re:

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

               versus

Ajay Kumar
S/o. Sh. Nathuni
R/o. L-18, Railway Colony,
Hamilton Road, Mori Gate,
Delhi-110006                                   ...    Accused


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 has violated the provisions of the PFA Act and Rules. The accused Ajay Kumar is stated to be the vendor-cum-proprietor of a Masala Stall at Pili Kothi Chowk, Bijli Road, Naya Bazar, Delhi-110006, from where the food article, that is, ‘Kali Mirch Whole’ was lifted for sampling.

2. As per the complaint, on 19.04.2011, the food officials consisting of Food Inspector (FI) S. B.Sharma and Field Assistant (FA) D. N. Verma under the supervision of Local Health Authority (LHA) / SDM Sh. Vijay Bharadwaj reached along with their staff at the above mentioned masala stall, where the accused was found conducting the business of various food articles, which were lying stored / exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Kali Mirch Whole from the vendor, as lying in an open woven bag 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 vide vendor’s receipt. 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 19.04.2011, the PA found the sample to be adulterated on the ground that it contained mineral oil and also not conforming to standards as light berries present in the sample exceeded the prescribed maximum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. 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 on 28.06.2011 alleging violation of section 2(ia)(a), (b) and (m) of PFA Act as well as section 2(ix)(d) of PFA Act read with Rule 44-AAA of PFA Rules, as punishable under 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 was summoned vide order dated 28.06.2011. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 11.08.2011, opining the sample to be not conforming to the standards of Black Pepper (Kali Mirch) Whole as per PFA Rules due to presence of mineral oil, presence of light berries in excess of prescribed maximum limit, presence of extraneous matter in excess of prescribed maximum limit, and presence of volatile oil content less than the prescribed minimum limit.

4. On the basis of CFL report, notice of accusation under section 251 CrPC was framed against the accused on 03.08.2012 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (b) and (m) and section 2(ix)(d) of PFA Act read with Rule 44-AAA of PFA Rules, to which he pleaded not guilty and claimed trial.

5. At the trial, the prosecution examined four witnesses in support of its case. PW-2 Sh. Vijay Bharadwaj (SDM/LHA) and PW-4 FA D. N. Verma, were part of the team that had visited the spot for sample proceedings, along with FI S. B. Sharma (since expired). Both these witnesses deposed about the proceedings conducted by them on 19.04.2011 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 1500 gms of Kali Mirch Whole lying in an open woven bag bearing no label declaration, mixing it using a clean and dry jhaba, dividing it in three parts, sealing and marking the samples and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW- 2/A vide which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-2/B, Panchnama Ex. PW-2/C and Raid Report Ex. PW- 2/D. Statement of the vendor Ex. PW-2/E was taken. On the next working day, one counterpart of sample along with Memo as per Form- VII were sent to PA for analysis vide PA Receipt Ex. PW-2/G and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-2/F. PA report Ex. PW-2/H was received and upon direction of SDM/LHA, investigation was carried out by FI S. B. Sharma. Thereafter, sanction / consent was taken by PW-1 FI A. K. Singh from the then Director PFA and the complaint Ex. PW-1/A was filed in the court. Copy of PA report and intimation letter Ex. PW-1/B were sent to the accused through registered post through PW-4 Sh. R. K. Sharma (SDM/LHA). These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sample had not been mixed properly or that the accused had been falsely implicated.

6. Statement of the accused under section 313 CrPC was recorded on 24.10.2016 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 19.04.2011, yet he claimed that price of the sample was not paid to him. He claimed that the reports of PA and CFL were wrong as the sample was not taken properly. He chose not to lead evidence in defence.

7. 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 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 11.08.2011. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. The prime argument of the Ld. Defence Counsel is that there is variation of more than 0.3% in the two reports of PA and CFL which leads to conclusion that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused in view of the judgement titled as Kanshi Nath v. State [2005(2) FAC 219]. Ld. Counsel has then contended that percentage or extent of mineral oil has not been mentioned in the reports of the chemical experts and it might be possible that only its traces were present which would not be an offence in view of the law laid down in judgement titled as Khushi Ram v. State [1984(II) PFA Cases 256].

9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.

10. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(b) is applicable if the article contains any other substance which affects injuriously the nature, substance or quality thereof. 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. On the other hand, section 2(ix)(d)pertains to the offence of ‘misbranding’ which applies when a food article is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged is concealed or when the article is made to appear better or of greater value than it really is.

11. To begin with, it is seen that the accused has never disputed the factum of his being the vendor-cum-proprietor of the stall in question. The accused has not questioned the fact that the shop / stall in question belonged to him and that he was the proprietor of the business and responsible for its affairs. It is not his case that he was not the owner / user of the said stall or that some other person was its owner or that he was only an employee or was otherwise not responsible to ensure compliance of PFA Act and Rules. No such stand has been taken by the accused at the trial or even in his statement under section 313 CrPC.

12. It is then not the case of the defence that the food article in question was not meant for sale for human consumption. It is nowhere the stand of the accused that the food article was not a finished or final product or was not for sale or was for his own use as consumer. The food articles were lying at the shop / stall of the accused and the article was sold to the food officials against monetary consideration as per the vendor’s receipt Ex. PW-1/A.

13. The commodity in the present case is Kali Mirch Whole (Black Pepper Whole) which is a standardized food article falling in Item No. A.05.17 of Appendix-B of PFA Rules. Specific standards have been prescribed statutorily which are required to be complied with by every person selling the said product.

14. The incriminating material in this case is the presence of mineral oil in the food. Though Rule 44-AAA generally provides that “No person shall sell… food articles which have been coated with mineral oil, except where the addition of mineral oil is permitted in accordance with the standards laid down in Appendix-B”, yet Item No. A.05.17 specifically provides “The product shall be free from added colour, mineral oil and other harmful substances”. It is nowhere the case of the defence that the said Rule or standards are not applicable to the food article in question.

15. The prosecution was launched on the basis of PA report, according to which in addition to presence of mineral oil, Light Berries were 6.85% (exceeding the prescribed maximum limit of 5.0%), Extraneous matter was nil, Moisture was 8.24%, Total ash on dry basis was 5.03%, Non- volatile ether extract was 8.33% and Volatile oil content was 2.17%. When the accused exercised his right under section 13(2) PFA Act, the second counterpart of sample was analysed by CFL, which conformed the presence of mineral oil and also the presence of Light Berries upto 7.38% (exceeding the prescribed maximum limit of 5.0%). However, as per CFL report, extraneous matter was 1.32% (exceeding the prescribed maximum limit of 1.0%), Moisture was 8.96%, Total ash on dry basis was 4.89%, Non-volatile ether extract was 6.63% and Volatile oil content was 1.75% (less than the prescribed minimum limit of 2.0%).

16. On the basis of these figures, the prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is ‘Since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative’. Pointing out the above said ‘variations’, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused.

17. In this regard, The defence strongly relies upon the judgement titled as Kanshi Nath v. State[2005(2) FAC 219], informing that the said ruling has been constantly 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] and State v. Rama Rattan Malhotra [2012(2) FAC 398].

18. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, the position is not as simple as it appears. It is necessary to understand the concept of reports of PA and CFL and variations therein.

19. 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.

20. 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.

21. 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.”

22. 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”.

23. 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.

24. 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 been shown by the defence 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.

25. 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”.

26. 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 theDirector 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.”.

27. 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. 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. In Ghisa Ram’s case (supra), the Director, CFL had reported that the sample had become highly decomposed and no analyses was possible. In that case, on the basis of evidence, the court found that sample of curd could not have survived for more that four months. At the same time, there was no rule laid down that in every case of frustration of such right, the vendor cannot be convicted on the basis of PA report and different considerations may arise. Similarly in Ram Mehar v. Delhi Administration (Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969), after the delay of none months, the sample was sent to CFL but the Director reported that the sample had become highly decomposed and its analyses was not possible. Further, in Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal N. 7-D/1966, Delhi High Court, dated 28.07.1969], the evidence had been led in that case to show that the difference between the two reports was mainly due to lapse of time.

(b) The consideration of time-lapse is relevant only for a limited purpose. “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) “If prejudice is caused to the accused on account of the delay in the institution of proceedings, as when the sample is rendered unfit for analyses in the meanwhile, then the accused is entitled to the benefit of doubt… But in case no prejudice is caused to the accused he cannot be allowed to escape the consequences under the law for such anti-social act…”

(d) 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) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

28. This judgment was also relied upon by the Hon’ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [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”.

29. In Municipal Corporation of Delhi 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 Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].

30. 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 analyses 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 or evidence adduced by the prosecution and defence and not a matter or assumptions.

31. 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.

32. 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 the argument 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 tenable.

33. 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.

34. 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.

35. 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.

36. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 5%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. This position would not change even if there is huge delay in analysis by two experts. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. 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.

37. 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 colour) 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. Again, if there is variation in content of any permitted ingredient which has been added in excess of prescribed maximum limits, then merely because there is variation in two reports, that would not lead to inference that the samples were not representative. 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 any one or more ingredients in his case was more than ± 0.3% as opined by an expert in one previous 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 in that case without leading any further evidence whatsoever. 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.

38. As mentioned earlier, this judgment 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]].

39. 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.

40. 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.

41. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State 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.

42. 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%.

43. Even the judgements in State v. Dwarka Dass [2007(1) FAC 229] and State v. Amarjit Singh [Crl. Appeal No. 163/1989, Delhi High Court, dated 01.11.2007] that pertain to presence of mineral oil in Kali Mirch, were appeals against acquittal where the Hon’ble High Court held that the parameters to interfere were different and acquittal by the trial court was not interfered.

44. Thus, the judgements relied upon by the defence 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.

45. 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. In simple terms, the CFL detected what the PA failed to detect.

46. In the present case, the PA failed the sample on two counts, presence of mineral oil and presence of light berries in excess of prescribed limits. The CFL confirmed the said report on both the counts, though the percentage of light berries exceeded a little by the time the sampel reached the CFL. But as far as mineral oil is concerned, the CFL has confirmed the PA report. The question is if the variations in the two reports on various counts can be taken as a result of the sample being not representative and if the accused could be granted benefit even for presence of mineral oil as confirmed by both the reports. For that, it is first to be seen if the sample was required to be representative.

47. As far as moisture, broken berries, ash content, etc. are concerned, they are subject to change with the passage of time. The effect of air, moisture, heat, environment, light etc. cannot be ignored on such perishable food articles when kept for a long period. Where the quality or purity of an article has fallen below the prescribed standards due to natural causes and beyond the control of human agency, then such article may not be said to be adulterated. The CFL in this case had examined the sample from 02.08.2011 to 11.08.2011. Thus, it was so analysed after about 4 months when it was lifted from the possession of the accused. The nature of such food article is such that some changes are bound to happen if sample is kept for a long period. That would explain change in moisture, volatile oil content and extraneous matter. But as far as synthetic colours and mineral oil are concerned, there would not be much change in the nature and quantity of the same even after lapse of long period.

48. The incriminating ingredient in this case, as per the CFL report, is thus, the presence of mineral oil. As per Item no. A.05.17 of Appendix-B of PFA Rules, the product in question has to be free from mineral oil. Hence, no mineral oil could be added to Black Pepper Whole and use of any mineral oil is absolutely prohibited. Reliance can be also placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] which pertains to food grains and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] the law laid down in which are squarely applicable to this case as well.

49. At this stage, it is necessary to delve into the law laid down in the judgement titled as Khushi Ram v. State [1984(II) PFA Cases 256] as strongly relied upon by the defence. In that matter, the Hon’ble Court was dealing with a sample of ‘Bari Elaichi’ where mineral oil was found present. Testing it for violation of sections 2(ia)(a) and (b) of PFA Act, the Hon’ble Court held that since percentage / quantity / proportion of mineral oil was not given, it was possible that the same was negligible so as not to cause prejudice to the purchaser as per section 2(ia)(a) or to injuriously affect the nature, substance or quality of product under section 2(ia)(b).

50. This judgement was passed on 08.10.1984. However, subsequently, Rule 44-AAA was introduced in PFA Rules in the year 1990, which provided that no food article coated with mineral oil can be sold, except as permitted by the Appendix-B.

51. The point however to be noted is, that in the aforesaid judgement, the sample of Badi Elaichi was governed by the standards laid down in Item No. A.05.04 of Appendix-B. As per this Item No. A.05.04, “The product shall be free from added colouring matter and any harmful substances”. This standard is apparently different from Item No. A.05.17 which specifically provides “The product shall be free from added colour, mineral oil and other harmful substances”, in as much as mineral oil has been specifically provided to be a violation.

52. From conjoint reading of these provisions, it would emerge that for Rule 44-AAA to apply, there has to be “coating” of mineral oil, for which quantity / percentage / proportion would be necessary to be mentioned because a negligible quantity may not be sufficient to be called as acoating. Rule 44-AAA is not restricted to any particular food article and applies generally to every food article for sale. This would however not apply to those food articles where use of mineral oil has been permitted by PFA Rules.

53. But Item No. A.05.17 which deals with Black Pepper Whole, specifically provides that the said product shall be free from mineral oil. This provision is not governed by Rule 44-AAA and operates independently. To establish violation of Item No. A.05.17, it is not necessary to establish that there was a “coating” of mineral oil on Black Pepper Whole as required by Rule 44-AAA. No such restriction was there even before Rule 44-AAA came into existence when Item No. A.05.17 was very much there. Thus, no quantity of mineral oil is permitted to be used in case of Black Pepper Whole, though for other food articles it has to be established that there was a coating of mineral oil.

54. Having said so, it is immaterial to go into the question as to what was the percentage or quantity or proportion of mineral oil used in the sample of Black Pepper whole. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as mineral oil is 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 mineral oil in traces in food article in question. The burden would upon be him to show how even traces of mineral oil could have entered the food articles being sold by him. But no evidence has been led by the accused to establish this fact.

55. Ld. Defence Counsel has also contented that the analysts have not categorised mineral oil as food grade or non food grade. It is submitted that food grade mineral oil is permitted to be used as against non food grade which is prohibited. Well, even if such a stand is accepted (though there is no evidence to this effect because neither the PA or CFL analysts have been opted to be cross-examined by applying under section 293 CrPC, nor any expert witness has been examined in defence), still it would be clear that such a distinction would not apply in case of Black Pepper Whole. As clear from the language of Rule 44-AAA, mineral oil is permitted to be used in some food articles as provided in Appendix-B. It is only in those articles that food grade mineral oil would be permitted. Non food grade mineral oil would not be permitted even in those food articles. And neither food grade nor non food grade mineral oil would be permitted for use in case of Kali Mirch in view of Item No. A.05.17 of Appendix-B. Therefore, there was no necessity for the analysts to have mentioned such details in their reports as mere presence of mineral oil in Kali Mirch would be a violation, irrespective of the fact if it was food grade or non food grade. In any case, if the accused still required clarification, he should have applied under section 293 CrPC and opted to cross-examine the PA or Director CFL who had examined the sample on any point on which their reports are silent. The reports only show the final results as per the format prescribed under the Rules and the detailed steps, procedures adopted, calculations and detailed figures are maintained separately by the analysts in their records which can always be summoned. When the accused has not exercised the option as available to him, he cannot choose to question the reports on hypothetical assumptions without affording any opportunity to the scientific experts to explain or deny his stand.

56. Thus, there is nothing to show that the variations as pointed out by the Ld. Defence Counsel is the result of sample being not representative. The certificate of Director CFL is final and conclusive which cannot be discharged or disbelieved on mere assumptions. There is no material on record to show that variations in two reports are a natural consequence of time gap or something which was beyond the control of the accused, except the changes in extraneous matter, moisture, ash content or broken heads. There is nothing to show that time gap between the two reports, being called as ‘delay’ has caused any prejudice to the accused, as the sample did not decompose in the meanwhile and was not rendered unfit for analysis by the CFL but was duly analysed by it. Therefore, no benefit can be given to the accused on this count.

57. There is nothing for the court to disbelieve the said report wherein mineral oil has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no mineral oil was detected, or was detected wrongly. In this case, no stand has been taken by the accused at the trial that any such oil was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused in his statement under section 313 CrPC or even in defence evidence.

58. Now the defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them.

59. The requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and condiments, it is necessary to mix and homogenise the samples so as to evenly distribute there ash content, moisture, broken grains, etc. If it is not so done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling. In this case as well, it ma be argued that the sample had not have been homogenised properly in view of the different quantities of light berries, extraneous matter, broken berries, volatile and non-volatile oil content by PA and then by CFL.

60. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk contains deadly poison which is a prohibited substance, then any minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect. Thus, as far as mineral oil is concerned, its very presence is incriminating and even the best possible distribution of mineral oil would have not made any difference. When the sample of Kali Mirch Whole is to be tested for presence of mineral oil, which is a prohibited substance for use in this product, then any homogenization would be immaterial. Even if properly homogenized, such mineral oil would still be there, though evenly distributed, which would be an offence in any case. Thus, there is no merit in the contention that the sample was not properly homogenised, as any such method would have given no benefit to the accused.

61. In the present case, the witnesses have deposed in one voice and have corroborated the version of each other on material particulars. 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. 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. Both PW-2 and PW-4 deposed about their presence at the spot, sampling proceedings, preparation of documents, etc. Both stated during cross-examination that about 6-7 kg of food article was lying in the bag. There is nothing in their cross-examination that may help the accused.

62. Both PW-2 and PW-4 deposed that they went together at the spot with FI S. B. Sharma (since expired). They deposed about use of clean and dry jhaba for mixing and lifting the sample. It is not a case where there is no evidence that clean and dry utensils were used. Rather all the witnesses have corroborated each other by stating on oath that the utensils were clean and dry.

63. It is no defence of the accused that some mineral oil was there on the jhaba or in the sample bottles. There is no witness who could depose that any such mineral oil was there on the utensils or impliments. No such stand was taken by the accused in his statement under section 313 CrPC. In the absence of any evidence, the court cannot assume that the proceedings were not proper. Such a stand is liable to be rejected.

64. No other stand has been taken by the accused at the trial or during the arguments advanced.

65. The case in handTags would be covered under section 2(ia)(a) of PFA Act as there is evidence to show that it was not of the nature, substance or quality which it is purported or represented to be, and under section 2(ia)

(m) of PFA Act as the content of mineral oil is present in quantities not within the prescribed limits, being totally prohibited. However, in the absence of quantity or percentage of mineral oil, it cannot be said that the extent of mineral oil was affecting injuriously its nature, substance or quality thereof and thus, violation of section 2(ia)(b) has not been proved. Again, there is no evidence to show that the food article in this case was so coated or polished that the fact that the article was damaged was concealed or that the article had been made to appear better or of greater value than it really was, for section 2(ix)(d) to apply. There is no material to establish that there was any damage to the kali mirch whole or it was of a poor quality that had been concealed by presence of mineral oil.

66. 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 beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of section 2(ia)(a) and (m) of PFA Act and has committed the offence punishable under section 7/16(1)(a) of PFA Act.

67. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act.

68. Let the matter be listed for arguments on sentence.

Announced in the open court this 30th day of January 2017 ASHU GARG ACMM-II (New Delhi), PHC

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