PFA – Delhi District Court – Food Inspector Vs SK Mehta and Others – Misbranded Vanaspathi case – Feb-18-2017

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

CC No. 189/03
Unique Case ID No.

Date of Institution:           09.04.2003
Date of reserving judgement:   05.10.2016
Date of pronouncement:         18.02.2017

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) Sh. Satish Kumar Mehta
S/o. Sh. Laxmi Dass Mehta
R/o. J-6A, Vishnu Garden,
New Delhi-110018

A-2) Sh. Anil Kumar Gupta
S/o. Sh. Radhey Shyam
R/o. WZ-134A, Hanuman Market,
Hastsal Road, Uttam Nagar, New Delhi-110059

A-3) Sh. Ritender Kumar Garg
S/o. Sh. Pushpender Kumar Garg
R/o. 4/1, Rishi Apartment,
Civil Lines, Delhi

A-4) Smt. Kanta Garg
W/o. Sh. Pushpender Kumar Garg
R/o. 4/1, Rishi Apartment,
Civil Lines, Delhi




CC No. 189/03                                             Page 1 of 35
 A-5) M/s. P. R. Food Product Pvt. Ltd.
1264, Katra Husain Mirza,
Farash Khana, Delhi-110006

A-6) M/s. Bhatinda Chemicals Ltd.
Hazi Rattan Link Road,
P. Box No. 71, Bhatinda, Punjab

A-7) Sh. Sushil Kumar Srivastava
S/o. Sh. Muteshwar Dayav Shrivastava
Hazi Rattan Link Road,
P. Box No. 71, Bathinda, Punjab               ...     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. Accused no. 1 Satish Kumar Mehta is stated to be the vendor-cum-proprietor of M/s. Mehta Store from where the food article, that is, ‘Vanaspati’ was lifted for sampling. Accused no. 2 Anil Kumar Gupta is stated to be the Proprietor of M/s. Shree Ganesh Trading Company from whom the food article had been purchased by accused no. 1. Accused no. 5 Company is stated to the supplier of the food article to accused no. 2, of which accused no. 3 is stated to be the Managing Director and accused no. 4 to be the Joint Managing Director. The food article is stated to have been manufactured by accused no. 7 Company M/s. Bhatinda Chemicals Ltd. that supplied it to accused no. 5 company, of which accused no. 7 Sushil Kumar Srivastav had been appointed as the Nominee.

2. As per the complaint, on 26.07.2002, the food officials consisting of Food Inspector (FI) Hukam Singh and FI R. K. Bhaskar under the supervision of Local Health Authority (LHA)/SDM Sh. Vijay Khanna reached along with their staff at the premises of accused no. 1 at M/s. Mehta Store at J-6A, Vishnu Garden, New Delhi, where the 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 Vanaspati from the vendor lying in sealed poly packets of one litre each (897 grams) bearing identical label declaration, to which he agreed. A sample of three such sealed poly packets 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 28.08.2002, the PA found the sample to be not conforming to the standards because it gave negative baudoin test for presence of sesame oil. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. At the time of sampling, accused no. 1 had informed that he had purchased the food article from accused no. 2 vide bill no. 105 dated 09.07.2002. During the course of investigation, the said accused no. 2 admitted this fact and also the bill, though stated that he had purchased the said food article from accused no. 5 company against the bill no. 1293 dated 10.07.2002. Accused no. 5 in its reply informed that it had procured the food article from accused no. 6 company vide its bill no. 10054 dated 04.07.2002, thus completing the chain. Additionally, accused no. 5 informed the FI that accused no. 3 and 4 were its directors and also claimed that one Sh. Sushil Kr. Garg was its nominee. The FI however found that the nomination of the said Sh. Sushil Kumar Garg had been accepted only on 29.08.2002 and thus, there was no nominee of the company on the day of sampling. Accused no. 3 and 4 were found to be Managing Director and Joint Managing Director of the said company, respectively. Further, accused no. 6 informed the FI that accused no. 7 was its nominee. The label declaration also showed that the food article had been manufactured / packed by accused no. 6 Company. 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 the FI on 09.04.2003 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 09.04.2003. Appearance was put by the accused persons but they chose not to file any application under section 13(2) PFA Act for exercising their right to get the counterpart of the sample analysed through the Central Food Laboratory (CFL), as also observed in orders dated 13.02.2004 and 18.01.2005.

4. Though the allegations in the complaint pertain to violation of section 2(ia)(a) and (m) of PFA Act which are punishable under section 16(1)(a) of the Act which is summons triable in nature, yet vide order dated 10.04.2007, the court directed the matter to be listed for pre charge evidence, which is a procedure in trial of warrant cases. It appears that the court at that time was of the view that the matter ought to be tried as a warrant case.

5. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI V. P. S. Chaudhary and PW-2 FI Hukam Singh. On the basis of their deposition, charge was framed against all the accused persons on 03.03.2010 for commission of the offence punishable under section 7/16(1) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, PW-2 was recalled for further cross-examination in post-charge stage. Vide order dated 23.08.2010, the court observed that lifting of sample was not disputed and all the statutory documents had been proved by the main FI. Thus, at request of the Ld. SPP, PE was closed.

6. At the trial, PW-2 who was part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by him on 26.07.2002 and narrated the steps undertaken by him during the sample proceedings, including disclosing his identity, expressing intention to purchase sample for analysis, lifting the sample of three sealed poly packets of Vanaspati bearing identical label declaration, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. He also proved the necessary documents including the vendor’s receipt Ex. PW-2/A, Notice as per Form-VI Ex. PW-2/B and Panchnama Ex. PW-2/C. The vendor accused no. 1 had disclosed the name of the supplier and on its basis, notice under section 14A of PFA Act Ex. PW-2/D was prepared. On the next working day, that is, 29.07.2002 one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-2/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide LHA receipt Ex. PW-2/F. PA report Ex. PW-2/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-2. During investigation, PW-2 received reply Ex. PW-2/H from the vendor accused no. 1 informing that he was the sole proprietor of M/s, Mehta Stores. FI sent letter Ex. PW-1/H1 to the STO and received its reply. He also received reply Ex. PW-2/I from the accused no. 2 who confirmed the sale of food article to accused no. 1 but stated that he had purchased it from accused no. 5. FI sent letter Ex. PW-1/I1 to the STO and received its reply. He also received reply Ex. PW-2/J from the accused no. 5 which stated that the supply had been received by it from accused no. 6, that it had two directors and that Sh. Sushil Kumar Garg was its nominee. The FI however found that the said nomination was accepted by the LHA only on 29.08.2002. FI sent letter Ex. PW-1/J1 to the STO and received its reply. He also sent letters Ex. PW-2/K1 and Ex. PW-2/K2 to the CMO, Bhatinda which were not replied. He also sent letters Ex. PW-2/K3 and Ex. PW-2/K4 to the ROC, Jalandhar which were also not replied. He then received replies Ex. PW-2/K5 and Ex. PW-2/K6 from the accused no. 6 informing about nomination of accused no. 7. Upon completion ofinvestigation, sanction Ex. PW-1/A was taken from the Director PFA and the complaint Ex. PW-1/B was filed in the court subsequently by PW-1 FI V. P. S. Chaudhary. After this, intimation letter Ex. PW-1/C was sent to the accused persons with copy of PA report through registered post vide postal receipts Ex. PW-1/D.

7. Both these witnesses were duly cross-examined by respective Ld. Defence Counsel for accused persons, during which the original bills Ex. PW-1/D1, Ex. PW-1/D2 and Ex. PW-1/D3 were produced by the accused persons. The witnesses accepted that copies of the bills were furnished by the respective accused persons.

8. Statements of the accused persons under section 313 CrPC were recorded on 19.05.2011 wherein they denied the allegations and pleaded innocence. Accused no. 1 admitted the proceedings dated 26.07.2002 but claimed that he had given the sample in sealed condition without tampering the same. He relied upon the bill issued by accused no. 2 Ex. PW-1/D1. Accused no. 2 denied the sample proceedings for want of knowledge but claimed that he had supplied the food article in sealed condition as was purchased by him from accused no. 5 vide bill Ex. PW- 1/D2. Accused no. 3, 4 and 5 also denied the sample proceedings for want of knowledge but claimed that they had supplied the food article in same condition as was purchased by them from accused no. 6 vide bill Ex. PW- 1/D3. Accused no. 6 and 7 also denied the sample proceedings for want of knowledge but claimed that they had used imported til oil/til seeds and also from Mediterranean region which gave good yield. They denied receiving the intimation letters. They however chose not to lead any evidence in defence.

9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against all the accused persons beyond reasonable doubt, on the ground that they have has not been able to rebut the findings of the PA report dated 28.08.2002. It is submitted that both the witnesses have supported its case and no contradiction can be seen in their testimony.

10. On the other hand, the Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links and inherent defects in the testimony of witnesses. Ld. Counsel submits that accused no. 1, accused no. 2 as well as accused no. 3 to 5, had sold the food article in the same condition as was purchased by them, and therefore, they would be covered under the benefit of warranty as per Section 19(2) of PFA Act. On behalf of accused no. 6 and 7, it is submitted that the presence or absence of sesame oil (Til oil) in Vanaspati does not affect its nature or quality. Relying upon judicial precedents, it is submitted that Til oil obtained from seeds of Mediterranean region do not respond to Baudouin test and even if sesame oil of such seeds is added in vanaspati, the same may still give negative Baudouin test.

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

12. It is to be understood that the charge framed against the accused persons is for violation of section 2(ia)(a) and (m) of the PFA Act with respect to ‘adulteration’. 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)(m) specifically deals with situation where the quality or purity of the food article falls below the prescribed standards or its constituent are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.

13. The commodity in the present case is Vanaspati which is a standardized food article falling in Item No. A.19 of Appendix B to the PFA Rules. It is nowhere the stand of the accused persons that the food article does not fall under this head or that it falls under some other head. None of the accused persons have claimed that the food article was not Vanaspati or was some other oil.

14. As per Item No. A.19, clause (x) mandates that such food article shall contain raw or refined sesame (Til) oil in sufficient quantity so that when the vanaspati is mixed with refined groundnut oil in the proportion of 20:80, the colour produced by the Baudouin test shall not be lighter than 2.0 red unit in a 1 cm cell on a Lovibond Scale. Thus, negative Baudouin test would show absence of sesame oil in sample of vanaspati, as also opined by the PA in her report.

15. The prosecution case is thus based on the findings of PA as given in report Ex. PW-2/G. Report of chemical expert is admissible in evidence under section 293 CrPC without formal examination of such expert. As far as this report is concerned, the contents and findings therein have not been disputed by the defence. It is nowhere the stand of the defence that the findings are wrong on account of incorrect sampling methodology, or that the PA had adopted an incorrect method of analysis or there was some other mistake in the report. The accused persons never applied under section 293 CrPC to cross-examine the PA when this option was available to them, so as to question her on the testing methodology adopted by her or to explain other findings in her report. The report shows that Baudoin Test was negative on the basis of which it was opined that the sample did not contain sesame oil.

16. The accused persons have also not exercised their right under section 13(2) PFA Act for getting the sample analysed through CFL. For this, the arguments are that PA report with intimation letter were never served upon them. Ld. Defence Counsel have relied upon judgements titled as Rameshwar Dayal v. State of UP [1996(2) PFA Cases 197], State of Orissa v. Gouranga Sahu [2002 (2) FAC 110] to impress that right under section 13(2) PFA Act is valuable right and it is the duty of the complainant to ensure that such right is not frustrated.

17. As per the scheme of the Act, after a sample (in three counterparts) is lifted by the FI, he is required as per section 11 to send, by the immediately succeeding working day, one counterpart of sample to PA for analysis and deposit the remaining two counterparts with the LHA. The PA analyses the sample and delivers report to the LHA under section 13 of Act. Under section 13(2)of the Act, after institution of prosecution against the accused, the LHA is required to forward a copy of the PA report to the accused, informing that he may apply to the Court, within 10 days of receipt of report, for getting the sample (second counterpart) analysed by CFL. Thus, this provision mandates sending of PA report to the accused by the LHA. It is a settled law that if the report is not so sent, it would cause prejudice to the accused and his right cannot be frustrated by the prosecution. The point to be noted is, that such forwarding of report has to be after the institution of the prosecution in the court and not prior to filing of the case. Also, the accused has 10 days time from the date of receipt of report to apply to the court. Again, if so applied, the court requires the LHA to produce counterpart of the sample before it, and upon receipt of such requisition, LHA is required to produce it within 5 days (section 13(2-A) of Act) before the court. The court then sends the said counterpart to the CFL for analyses, and the Director, CFL is required to send report of analysis within 1 month.

18. The sample of vanaspati in this case was lifted on 26.07.2002 and it was analysed by PA who gave report dated 28.08.2002. The complaint was filed on 09.04.2003, that is, after about 8 months from lifting the sample.

19. At the outset, there is no merit in the contention that the PA report was not received by the accused persons. PW-1 deposed about sending the copy of PA report with intimation letter Ex. PW-1/C to the accused persons through registered post vide receipt Ex. PW-1/D. When the postal receipt was exhibited during the evidence of PW-1, it was never objected to and the court also observed that “office file containing documents seen and returned”. There was no cross-examination on this point from the side of defence. No suggestion was given to PW-1 that no such receipt was in existence or that the receipts proved on record were forged documents. It is not the case where no such receipt exists. If the accused persons had any issue about the existence of the original documents, they should have asked the PW-1 or the complainant department to produce the documents. But no such attempt was made by the accused persons. Thus, there is no reason for the court to disbelieve the version of PW-1 that the letters were sent to the accused persons through registered post which did not return undelivered.

20. Once this fact is so established, section 27 of the General Clauses Act would come into play. It is nowhere the stand of the accused persons that the addresses at which the letters had been sent were incorrect or incomplete. No such stand has been taken at the trial or during statement of accused persons. No other addresses have been disclosed by them which they may claim to be correct and proper. When a letter had been sent through registered post at correct and proper addresses, there would be a presumption of service under section 27 of the General Clauses Act infavour of the complainant. The burden would not be upon the complainant to show delivery of the letter and such burden would now shift upon the accused persons to show that the letters were not so delivered despite having been sent at correct addresses through registered post. But the accused persons have not led any evidence to this effect. No attempt was made by them to summon the records of postal department to show as to whom the letters were delivered or if they remained undelivered. There is no evidence to show that the letters were not delivered to the accused persons. Accused persons have not claimed that they were not staying / working at the given addresses or were staying / working at some other addresses or that the letters could not have been served upon them at the relevant time. It is not their claim that they were not available at the said addresses or had shifted from those addresses. Thus, accused persons have failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 deposed that the registered letters did not receive back undelivered, the burden would be upon the accused persons to prove anything to the contrary. By not leading any evidence to support their stand, the version of the accused persons remains unsubstantiated. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused persons in due course. The accused persons cannot therefore opt to simply deny the things and claim that PA report was not received by them. This is particularly qua accused no. 2 and 6 (through its AR accused no. 7) who never denied receipt of such intimation letter even in their statements under section 313 CrPC and simply stated it to be a ‘matter of record’ (though accused no. 7 in his individual capacity denied the receipt of letter).

21. Therefore, it cannot be said that the complainant had frustrated the right of the accused persons under section 13(2) PFA Act. It was upon the accused persons to have taken steps to send the second counterpart to CFL after service of the intimation letter. They cannot simply choose to deny the things at the trial without leading any evidence to support such a stand.

22. Similarly, even the time taken by the complainant to file the complaint would not make any difference. Delay in filing the complaint would be taken in favour of the accused in those cases where the sample sent to CFL is reported to be decomposed, rendering it unfit for analysis, in which case the right of an accused can be said to have been frustrated. If an accused is able to show on concrete grounds that any such delay in filing the prosecution has caused prejudice to him or frustrated his rights, only then the delay can be said to be fatal.

23. In the case at hand, any delay whatsoever would not have made any difference as far as the incriminating ingredient is concerned. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance or on account of absence of mandatory ingredient (as in the present case), the offence would still be made out, irrespective of such natural changes on account of delay. The nature, quality and quantity of sesame oil would not have changed in any manner on account of any time gap, though there might be some changes in natural ingredients. Had sesame oil been present in the sample, it would not have disappeared even after lapse of time. Thus, even if there was some time gap in filing the complaint, the accused persons were still having a right under section 13(2) PFA Act and it never stood frustrated. This is particularly when the accused no. 6 and 7 in their statements undersection 313 CrPC took a defence that til oil from seeds from Mediterranean regions had been used (which the Ld. Counsel argues that do not respond to the Baudouin test, as per the judicial precedents). If such a stand is to be believed, then there was no purpose in sending the sample even to the CFL as Baudoin Test would still have been negative. From this angle as well, the right of the accused persons under section 13(2) PFA Act never got frustrated.

24. As a corollary, the accused persons cannot choose to forgo their right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused persons cannot claim that after lapse of any specific time period, their right would automatically get frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analyses. It is only when an accused exercises such right and the CFL opines that the sample was rendered unfit for analyses that he can get benefit of the delay. In judgement titled asBritannia New Zealand Foods Pvt. v. Director (PFA) [Crl.MC No. 2069/2008, Delhi High Court, dated 01.06.2012], the Hon’ble High Court was dealing with a matter of ‘Cheddar Cheese’ which was found not conforming to the standards by the PA. The complaint was filed after 18 months of procurement of the sample and it had been argued that the sample was a perishable item and had a shelf life of 9 months, after which filing of the complaint had deprived the accused of his right under section 13(2) of the Act. However, observing that the accused had not applied under section 13(2) of the Act for analysis of second sample by CFL, it was held that the accused could not claim any benefit on that score. The Hon’ble court relied upon the precedent titled as Babu Lal Hargovinddas v. State of Gujarat [AIR 1971 SC 1277], where it was held that “There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed”. The Hon’ble Court also considered that in Municipal Corporation of Delhi v. Ghisa Ram [1967 CriLJ 939] as well, where the Director had reported that the sample had become highly decomposed and could not be analysed. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the accused could perhaps contend that he was deprived of his right to have the sample analysed by the Director on account of the latches of the complainant and that he should be acquitted. But, where the accused never applies under section 13(2) of the Act, he cannot complain that he had been deprived of any right. It has been categorically laid down that if the accused would have applied to get the sample analysed by the CFL and on analysis, the CFL would have concluded that the sample was decomposed or not fit for analysis, prejudice could be said to have been caused to him as his valuable and statutory right under section 13(2) of the Act would have been denied to him.

25. Thus, it is clear that the court would not assume that the right of the accused persons stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when they exercise their right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. Thus, the matter would depend on case to case basis.

26. In view of this proposition, the accused persons in this case cannot claim that their right under section 13(2) PFA stood automatically frustrated when the complaint was filed after about eight months of lifting the sample so as to give them an option not to file application to send the sample for analysis to CFL. Such argument is liable to be rejected. The judgements relied upon by the Ld. Defence Counsel would therefore not help them in any manner.

27. In the present case, the PW-1 deposed about the sample proceedings and his cross-examination to a very limited extent would show that the correctness of such proceedings have never been disputed by the defence. 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.

28. The incriminating factor in this case is absence of sesame oil as ascertained through Baudouin Test. As per Item No. A.19 of Appendix-B of PFA Rules, such sesame oil is necessary to be added in quantity more than the minimum prescribed. This is primarily to detect adulteration in ghee and vanaspati. Such a requirement is mandatory and has to be followed, in the absence of which the adulteration in ghee and vanaspati and food articles prepared through them would be difficult to be detected. Hence, no vanaspati can be sold without conforming to such standards.

29. The accused persons have relied upon judgements titled as Municipal Committee Amritsar v. Mehar Singh [1972 PFA Cases 603 (P&H)] and State v. Mahavir Prasad [2005(1) CCC (HC) 307] and have contended that vanaspati oil or til seeds imported from Mediterranean region do not respond to Baudouin Test and thus they cannot be held responsible. But in my considered view, it would be for the accused persons to take a specific defence and prove it. No such stand was taken by the accused persons at the trial and no suggestion was put to any PW to this extent. Though PW-2 was given a suggestion that oil obtained from Tripura variety of seeds or those imported from Mediterranean countries do not respond to Baudoin test, but he stated that he was not aware of the same. Similarly, PW-2 expressed ignorance to the suggestion that the til oil was not an ingredient of vanasapati or that it evaporates when vanasapati is heated up to 200 degrees. There was no positive statement anywhere during the trial to the effect that the manufacturers had actually imported any such til seeds or till oil from Tripura or Mediterranean region or if they had used such til oil or til seeds in their food article. Such a stand was taken for the first time by the accused no. 6 (though its AR accused no. 7) and accused no. 7 in their statements under section 313 CrPC at the fag end of the trial when the evidence was already over, when they claimed that they had used imported til seeds from Mediterranean regions.

30. However, it is to be understood that not even a single witness has been examined by the accused persons to establish this fact. No witness stepped into the witness box and faced the test of cross-examination and deposed that the accused no. 6 had imported any such seeds, from where in the Mediterranean region, when were they purchased, what was their quality and against what bill/invoice. No chemical expert witness has been examined in defence in this case so as to afford the prosecution any opportunity to cross-examine him on such a point. The chemical expert was never called under section 293 CrPC to clarify this point. In the absence of any evidence to this effect, the court cannot just assume a hypothetical defence. If such a view could be taken, then the specific standards laid in Item No. A.19 would be left redundant and even cognizance of offence could not be taken if any sample of any vanaspati fails on account of negative Baudouin Test. Such interpretation would give the vanaspati sellers freedom to violate the provisions of Item No. A.19 and not to add sesame oil in vanaspati as required. Unless such a defence is taken and proved, the accused cannot be granted benefit on account of a hypothetical possibility. It cannot be said that because the seeds from Tripura or Mediterranean region do not respond to Baudoin Test, then all the cases of adulteration where absence sesame oil is detected, would fail. It is only when an accused raises a specific defence and is able to prove it by leading suitable evidence that he can get such a benefit. Just because there are judicial precedents where it was opined on the basis of evidence therein that certain til seeds from Mediterranean region may not respond to Baudoin test, the accused persons have been baldly taken a stand that they had used til seeds/oil from Mediterranean region, without even disclosing the particulars of any such Mediterranean region from where they had allegedly obtained any such oil/seeds. No invoice has been show disclosing any such import of oil/seeds. No details of supplier have been shown. Thus, there is no evidence that sesame oil had been put in the sample by using the til seeds obtained from Tripura or Mediterranean region, as claimed. Mere bald averments without any evidentiary support would not help the accused persons. The submissions made in statements under section 313 CrPC are only in the nature of explanation to the incriminating evidence and cannot be said to be proof of any fact.

31. In Municipal Corporation of Amritsar v. Mehar Singh [supra], the Hon’ble High Court of Punjab & Haryana had relied upon and appreciated the evidence of Public Analyst as examined by the court in that case. The said Public Analyst had admitted that there were certain varieties of sesame oil imported from Mediterranean region which would not give red colour in Baudouin Test. However, no evidence of such nature has been led by the defence in the present case. It is not understood how the Ld. Defence Counsel wishes this court to rely upon the testimony of that witness examined in one particular case of Punjab and Haryana decided in 1972, without leading any evidence whatsoever in the case in hand. The Public Analyst is only an expert witness who gives his opinion. Opinion of one such expert given in one case in 1972 cannot be treated as binding on all other opinions of all such experts in the country for all times to come in future. No such witness has been examined or subjected to cross-examine in this case and thus, his opinion given 45 years ago in one case would not be sufficient to nullify the prescribed standards given in Item no. A.19 of PFA Rules which have statutory force. Similarly, the judgement Sohan Lal v. State of Punjab [1983(I) PFA Cases 48 (P&H)] will not help the accused persons.

32. The judgement in State v. Mahavir Prasad [supra] would also not come to the rescue of the accused persons in which the Hon’ble High Court relied upon the case of Municipal Corporation of Amritsar v. Mehar Singh [supra]. It was appeal against an acquittal in which the scope of interference is much different and the Hon’ble High Court was of the view that there was nothing shown by the State to hold a contradictory view or to show that the judgement under challenge was perverse. In the present case, there is no material in the form of evidence to show that the vanaspati was obtained from til seeds imported from Mediterranean region.

33. There is nothing for the court to disbelieve the PA report wherein the sample was failed due to negative Baudouin Test. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of report on other technical grounds. It is not the defence of the accused persons at the trial that the result of Baudouin Test was wrongly given or sesame oil was present in vanaspati or that absence of sesame 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 specifically raised by the accused persons even in their statements under section 313 CrPC. Thus, the court cannot be now at the stage of final arguments made to believe the assumption that something might have happened or that some remote possibility has not been ruled out. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused has to take, the burden would be upon him to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused persons are required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve their purpose. But when no such stand has been taken at the trial, the court cannot assume presence or absence of certain facts.

34. The case in hand would be therefore covered under section 2(ia)(a) of PFA Act as there is evidence to show that the vanaspati was not of the nature, substance or quality which it is purported to be as per PFA Rules. The case would also fall under section 2(ia)(m) of the Act as the quality or purity of vanaspati was below the specified and prescribed standard as per Item A.19 of Appendix-B of PFA Rules.

35. Now coming to the role of accused persons. Accused no. 1 is stated to be the vendor, accused no. 2 the supplier to accused no. 1, accused no. 5 to be the supplier to accused no. 2 and accused no. 6 to be the manufacturer/packer of the food article and supplier to the accused no. 5.

36. As per the accused no. 1, he had purchased the commodity from accused no. 2 vide invoice Ex. PW-1/D1. As per the accused no. 2, he had purchased the commodity from accused no. 5 vide invoice Ex. PW-1/D2. As per the accused no. 5, it had purchased the commodity from accused no. 6 vide invoice Ex. PW-1/D3. Copies of these invoices had been furnished to the FI during the course of proceedings promptly and the originals have been produced in the court. It is important to note that the prosecution has never questioned or disputed the stand of accused no. 1 to 5 as taken in their replies. It is nowhere the case of the prosecution that the bills furnished on record were invalid or forged or do not pertain to the food article in question. In all the bills, the food article, that is, Rishi Brand (brand of accused no. 6) poly packets (poly bags) of Vanspati Oil of 1 litre can be seen. The bill Ex. PW-1/D1 as issued by accused no. 2 in favour of accused no. 1 even mentions that the commodity had been purchased by accused no. 2 from accused no. 5 through bill Ex. PW-1/D2. A copy of this bill was furnished to the FI by the accused no. 1 even at the time of sampling. Thus, there was hardly any scope of manipulation or creating of a fabricated document. The vendor and supplier could not have anticipated in advance about the lifting of sample of vanaspati so as to give them a reason to prepare such document in advance. Similarly, accused no. 2 confirmed the supply to accused no. 1 through the bill Ex. PW-1/D1 in his reply. He relied upon bill Ex. PW-1/D2 as issued by accused no. 5, which even the accused no. 5 confirmed to be correct. This bill even mentions the specific language of warranty in writing as given in Form-VI-A of PFA Rules, as required by Rule 12-A of PFA Rules. Accused no. 5 then relied upon bill Ex. PW-1/D3 as issued to it by accused no. 6. The genuineness of this bill has never been questioned by the prosecution or the accused no. 6 and 7. It is nowhere the defence of the accused no. 6 and 7 to the effect that the said bill was not issued by them, or was a fabricated document, or that it did not pertain to the lifted commodity. When this bill has also not been disputed, then the chain of transactions is complete. The product has been identified to bemanufactured/packed the accused no. 6, which was supplied to accused no. 5, to accused no. 2 and finally to accused no. 1.

37. It is an admitted position that the product was in originally sealed condition and there was no tampering in the same. As per the concept of warranty under section 19(2) of the Act, a person is not deemed to have committed an offence if he establishes that he had purchased a food article against a warranty in writing and also that the product was sold in the same state as purchased. As per section 14 of the PFA Act, a cash memorandum, bill or invoice shall be deemed to be a warranty in writing. Thus, accused no. 1 shall be protected under warranty, having purchased the same from accused no. 2 against the bill Ex. PW-1/D1 and having sold it to FI in same state in which it was purchased. Similarly, accused no. 2 shall also be protected under warranty, having purchased the same from accused no. 5 against the bill Ex. PW-1/D2 and having sold it to accused no. 1 in same state in which it was purchased. To the same effect, accused no. 5 (and consequently accused no. 3 and 4) shall also be protected under warranty, having purchased the same from accused no. 6 against the bill Ex. PW-1/D3 and having sold it to accused no. 2 in same state in which it was purchased.

38. But as far as accused no. 6 and 7 are concerned, there cannot be any such benefit of warranty as it they were the manufacturers/packers of the food article. They never disputed the fact that the food article had been manufactured by them. Of course, duplicate products exist in the market but that it by itself would not exonerate all the manufacturers from the purview of PFA Act with respect to all the food articles. Of course, if a particular manufacturer is able to establish at a trial that the product in question was a spurious or duplicate product being sold under its name, it may get the benefit. But vaguely claiming that duplicate products are available in the market, would certainly be not enough to establish that the product in question was also a duplicate or spurious product. In the present case, there is no positive material on behalf of accused no. 6 or 7 that the sampled commodity was not their product. No attempt was made to summon the record from the PA / LHA to produce the original labels or counterparts of the food article so as to enable the court to observe them and to ascertain if they were genuine products or duplicate products.

39. The benefit of warranty under section 19(2) of PFA Act is only available to the vendor / distributor / supplier and not to the manufacturer of the food article. If it is established that an adulterated or misbranded food article had been manufactured / packed by it, it would be liable for prosecution.

40. Similarly, the accused no. 7 has never disputed the fact that he was the nominee appointed by accused no. 6 company as per section 17 of PFA Act. The nomination papers were obtained by the FI from the concerned LHA, the genuineness of which has never been disputed. Accused no. 7 never claimed that he had not been so appointed or that he ceased to be a nominee from any particular date or that he was not the nominee of Delhi region. Being a nominee, as per section 17 of the PFA Act, such person is deemed to be in charge of or responsible for the affairs of the company. The accused never attempted to take defence that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of the offence, as available to him under the Proviso to section 17(1) of the PFA Act.

41. Thus, the accused no. 6 and 7 can be said to be the persons responsible for the offence of manufacturing/selling/supplying/distributing the adulterated food article. Of course, the absence of sesame oil would not be harmful or injurious to health, but that would not mean that there was no adulteration. That is the reason why there is no prosecution under section 2(ia)(b) or 2(ia)(l) of the PFA Act. As far as the charges framed are concerned, it is not required to be proved that the food article was injurious to health. There is apparent violation of section 2(ia)(a) and 2(ia)

(m) of the PFA Act and thus, the food article can be safely said to be an “adulterated” food.

42. The defence finally claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 29.11.2002 on the basis of the Public Analyst’s report dated 24.08.2001. Relying upon the judgement of the Hon’ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel have argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.

43. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

44. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the Public Analyst in terms of section 8, 11 and 13 of the Act. The Public Analyst is appointed by the Central or State government by way of notification in the official gazette. Unless the report of Public Analyst is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel have also argued that PA Smt. M. Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/F also mentions that she has been duly appointed and this fact was never disputed at the time of trial.

45. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix ‘B’ of the Prevention of Food Adulteration Rules.

The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned.”

46. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

47. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. And it is not a case where the PA applied some unknown or unspecified method. The PFA Rules in Item No. A.19 of Appendix-B clearly specified that the Baudoin test had to be applied to test presence of sesame oil in vanaspati. Also, there is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross- examined by applying under section 293 CrPC on this point.

48. As far as Pepsico’s case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

“34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.

35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution.”

49. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by duly appointed PA who applied specified tests as prescribed by the PFA Rules only. Again, in Pepsico’s case, the Hon’ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico’s case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to use of sesame oil in vanaspati so as to test it positive on Baudoin test. The present case would be covered by the judgement of the Hon’ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico’s case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to absence of a necessary ingredient and not presence of pesticides in carbonated water, the ruling in Pepsico’s case would not help the accused persons.

50. The other judgements relied upon the accused persons would not be in their support and are clearly distinguishable from the present case.

51. The judgements titled as Rameshwar Dayal v. State [1996(2) FAC 197], State v. Subhash Chand [2012(2) JCC 1004], State of Haryana v. Unique Farmaid Pvt. Ltd. [1999(II) FAC 399], Rohit Mull v. State of Goa [2006(1) FAC 57], Hindustan Lever Ltd. v. State of Punjab [2011(1) FAC 192], Marico Ltd. v. State of Delhi [2015(1) FAC 40], State of Orissa v. Gouranga Sahu [2002 (2) FAC 110] and Pepsico India Holdings P. Ltd. v. State of Gujarat [Crl. LP No. 539/11, High Court of Gujarat, dated 27.04.2012] deal with the right of an accused to get sample analysed through the CFL by applying under section 13(2) PFA Act and frustration of such right by delayed filing of complaint. But in the present case, it has already been observed that such a right of the accused persons was never frustrated as even delayed filing of the complaint would not have resulted in disappearance of til / sesame oil in the sample which was found absent. If the sample did contain sesame oil, no amount of delay would have mattered and the sample would have still be fit for analysis to ascertain presence of such oil. Even if it is assumed that after expiry of its best before date, the product had been rendered “unfit for consumption”, but still the product was never “unfit for analysis” as far as the Baudouin test is concerned to establish presence of til / sesame oil in the sample.

52. No other stand has been taken or any point raised by the defence at the trial or during the course of arguments.

53. In view of the above discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 6 and 7 beyond the shadow of reasonable doubt. It has been proved that the accused no. 6 had sold and manufactured / packed an 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. Accused no. 7 being nominee of accused no. 6 would also be liable by virtue of section 17 of PFA Act for commission of the said offence. However, on account of existence of a proper bills/invoices with warranty in writing as per section 19(2) PFA Act, the accused no. 1, 2, 3, 4 and 5 are entitled to be given the benefit.

54. Having said so, the accused no. 6 and 7 are held guilty and are convicted for the offence punishable under section 16(1)(a) of the PFA Act. Accused no. 1, 2, 3, 4 and 5 are however acquitted of the charges.

Bail bonds of accused no. 1, 2, 3 and 4 shall remain in force for the next six months in terms of section 437-A, CrPC.

55. Let the matter be listed for arguments on sentence qua the convicted accused no. 6 and 7.

Announced in the open court this 18th day of February 2017 ASHU GARG ACMM-II (New Delhi), PHC

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