IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 1332/09 Unique Case ID No. 02403R0325722009 Date of Institution: 14.09.2009 Date of reserving judgement: 20.02.2017 Date of pronouncement: 04.03.2017 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 ... Complainant versus Sh. Satish Sharma S/o. Sh. Subedar Sharma R/o. WZ-3275, Mahendra Park, Rani Bagh, New Delhi-110034 ... 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 is stated to be the vendor-cum-proprietor of M/s. Shri Mahalaxmi Dairy & Store, from where the food article, that is, ‘Dal Arhar’ was lifted for sampling.
2. As per the complaint, on 06.07.2009, the food officials consisting of Food Inspector (FI) Gian Chand and Food Assistant (FA) Manohar Lal under the supervision of Local Health Authority (LHA)/SDM Sh. Naveen Kumar Saxena reached along with their staff at the premises of M/s. Shri Mahalaxmi Dairy & Store at 3275, Mahindra Park, Near Fountain Chowk, Rani Bagh, Delhi-110034, where the accused 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 Dal Arhar from the vendor lying in open tin 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. The vendor also failed to disclose the name of the supplier of such commodity. 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 16.07.2009, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter ‘Tartrazine’. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the 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 by FI on 14.09.2009 alleging violation of section 2(ia)(a), (j) and (m) of PFA Act as well as Rules 23 and 29 of PFA Rules, as punishable section 7/16(1A) ofPFA Act, and also violation of section 14A of the PFA Act as punishable under section 16(1C) of the 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 14.09.2009. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI Gian Chand. On the basis of his deposition, charge was framed against the accused on 20.04.2010 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (j) and (m) of PFA Act, to which he pleaded not guilty and claimed trial. It is noted that no charge was framed for violation of section 14A of the PFA Act as punishable under section 16(1C) of the Act, as alleged in the complaint. At the trial, the witness already examined in pre-charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 Sh. Naveen Kumar Saxena (SDM/LHA) and PW-3 FA Manohar Lal in post-charge stage.
4. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 06.07.2009 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 Dal Arhar from the tin bearing no label declaration, thoroughly mixing it using a clean and dry jhaba, separately sealing, packing and marking the samples in clean and dry sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, statement of accused Ex. PW-1/D and raid report Ex. PW-1/D1. On the same day, that is 06.07.2009, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, further investigation was carried out by PW-1 who sent letter Ex. PW-1/H to the STO to ascertain constitution of the business concern. After completion of the investigation, sanction Ex. PW- 1/I was taken from the Director PFA and the complaint Ex. PW-1/J was filed in the court. After this, intimation letter Ex. PW-1/K with copy of PA report was sent to the accused through registered post vide postal receipt Ex. PW-1/L.
5. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they deposed that the jhaba and bottles used were already clean and dry and therefore they were not made further clean and dry at the spot. They denied that only 1.5 or 2 kg of dal was lying in the tin which was meant for personal use and not for sale. They denied that the sample was not mixed/homogenised properly.
6. Statement of the accused under section 313 CrPC was recorded on 21.09.2015 wherein he denied the allegations and pleaded innocence. He claimed that the food article was for his personal use and not meant for sale, that no efforts were made to join public witnesses and that no payment was made to him. He questioned the correctness of PA report and stated that the sample was not homogenized. He did not lead any evidence in defence despite opportunity.
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 PA report dated 16.07.2009. It is pointed out that the accused has failed to exercise his right under section 13(2) PFA Act and failed to get the sample analysed from Central Food Laboratory (CFL). It is submitted that all the witnesses have supported its case and no major 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 missing links in the testimony of witnesses. It is submitted that the PA report and intimation letter were never served upon the accused and he was prevented from exercising his right under section 13(2) PFA Act. It is pointed out that no AD Card or proof of service has been placed in record by the complainant. Ld. Counsel has then contended that percentage or extent of synthetic colour Tartrazine has not been mentioned in the report of the chemical expert and it might be possible that only traces of colour were present. Relying upon the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320], it is contended that paper chromatography test used by the PA for detecting food colours is not a sure test and thus, the report of PA becomes unreliable. It is further submitted that Tartrazine is not a harmful colouring matter as its use is permitted in many food articles. Ld. Counsel has submitted that tartrazine is a water soluble colour and when the dal arhar is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is reiterated that the food article was not meant for sale but was only for personal use of the accused at his home. It is finally contended that the laboratory in which the sample was analysed and the testing method were not notified under the Rules and therefore the prosecution is bad in law.
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 charge framed against the accused is for violation of section 2(ia)(a), (j) and (m) of the PFA Act read with Rule 23 of PFA Rules 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)(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. 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 which does not render the food article injurious to health.
11. The commodity in the present case is Dal Arhar (split pulse) which is food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.09 of Appendix B to the PFA Rules. It is pertinent to note that the PA has found the presence of the synthetic colouring matter Tartrazine in the sample analysed.
12. The present case is based on the findings of PA as given in report Ex. PW-1/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, though it is claimed that such findings are wrong on account of incorrect sampling methodology. It is nowhere the defence of the accused that there was some mistake in the report (though it is claimed that the method of analysis adopted by PA was not a sure and reliable test). No request was made by the accused to cross-examine the PA when this option was available, so as to question her on her report or to seek any clarification.
13. The accused has also not exercised his 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 him.
14. As per the scheme of the 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.
15. At the outset, there is no merit in the contention that the PA report was not received by the accused. PW-1 deposed about sending the copy of PA report with intimation letter Ex. PW-1/K through registered post vide receipt Ex. PW-1/L. It is in his testimony that the “office file containing documents seen and returned”. Apparently, no objection was ever raised by the defence when this document was exhibited. Such evidence has never been rebutted by the defence. Not even a single suggestion was given to any witness that the postal receipt Ex. PW-1/L was a forged or fabricated document or that no such letter was sent or that it was sent at an incorrect address. No witness was asked to produce the originals again, in case the accused had any issues with the same. Thus, accused cannot take benefit on this count.
16. Once this fact is so established, section 27 of the General Clauses Act would come into play. It is not the case of the accused that the said letter Ex. PW-1/K was sent at an incorrect address. No such stand has been taken by the accused at any stage of trial including prosecution evidence, statement of accused or defence evidence. Rather in his statement under section 313 CrPC, when this fact was put to him, the accused simply stated it to be “a matter of record” instead of denying the receipt of the intimation letter. Neither during the cross-examination of any PW nor in his statement the accused ever took stand that the letter was not received by him. In such a position, when a letter had been sent through registered post at a correct and proper address, there would be a presumption of service under section 27 of the General Clauses Act in favour 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 to show that the letter was not so delivered despite having been sent at a correct address through registered post. But the accused has not led any evidence to this effect. No attempt was made by him to summon the records of postal department to show as to whom the letter was delivered or if it remained undelivered. There is no evidence to show that the letter was not delivered to the accused. Accused has not claimed that he was not staying at that address or was staying at some other address or that it could not have been served upon him at the relevant time. It is not his claim that he was not available at the said address or had shifted from that address. Thus, accused has failed to rebut the presumption under section 27 of the General Clauses Act. As PW-1 deposed that the registered letter was not received back undelivered, the burden would be upon the accused to prove anything to the contrary, even if the AD card was never filed on record, if it is assumed to have come back. By not leading any evidence to support his stand, the version of the accused remains unsubstantiated. Therefore, it has to be held that the intimation letter and PA report were delivered upon the accused in due course. The accused cannot therefore opt to simply deny the things and claim that PA report was not received by him. Thus, it is clear that the court would not assume that the right of the accused stood frustrated just like that. The accused deliberately and voluntarily forgave his right under section 13(2) of the Act. It is not a case where the right of the accused got frustrated due to any delay in filing the prosecution. The nature of synthetic colours is such that no period of delay would change its nature, quality or quantity. Such argument is liable to be rejected.
17. There is nothing for the court to disbelieve the PA report wherein artificial synthetic colour tartrazine has been detected in the food article. 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 that no colour was detected, or was detected wrongly, or that any such colour 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.
18. There is no force in the stand that the sample was not taken properly. 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. There is no evidence to show that the jhaba or bottles used by the food officials were not clean or dry as argued. All the witnesses maintained and deposed on oath that the said implements/bottles were clean and dry when used. It is nowhere the defence of the accused that the jhaba or bottles were contaminated or that some colour was therein them or that the colour was mischievously added by the food officials. In view of the corroborative testimony of the PWs on this point and also in view of the fact that there is no evidence to establish anything to the contrary, it is clear that the jhaba/bottles/implements were all clean and dry.
19. As per Rule 23 of PFA Rules, addition of a colouring matter to any article of food except as specifically permitted by the Rules is prohibited. Rule 28 provides the details of colours permitted for use and Rule 29 enlists the food in which synthetic colours are permitted. A bare perusal of this list would show that it does not mention food grains as the food in which any such synthetic colour is permitted. The obvious inference is that use of such synthetic food colour is totally prohibited for use in food grains, though they are permitted in specified food articles within the prescribed limits. Thus, there is no force in the stand of the accused that this colour is permitted for use in other food articles. When the use of any such colour is absolutely prohibited for this product, no such colour can be used.
20. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of dal arhar. It would not make any difference if the analysts have not given the percentage of colour used. Even if the said quantity was in traces, asbeing contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted upto certain prescribed limits and not where it is totally prohibited. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matter in traces in food article in question. The burden would upon be him to show how even traces of colour could have entered the food article being sold by him. But no evidence has been led by the accused to establish this fact.
21. Again, there is no merit in the contention that Tartrazine is a water soluble colour and no prejudice would be caused to any customer because dal arhar would be washed before preparation. As per section 19(1) of PFA Act, it shall be no defence that the food article sold had not caused any prejudice to the purchaser. Just because some synthetic colour is water soluble and the food article is generally washed before being cooked, that gives no right to anyone to use prohibited synthetic colours in food articles in violation of statutory provisions. Thus, it is clear that the food article dal arhar was adulterated within the meaning of section 2(ia) of PFA Act being in violation of Rule 23 read with Rules 28 and 29. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, dated 18.02.2013] which are squarely applicable to this case.
22. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused to apply and cross-examine the PA as to the validity and intricacies of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.
23. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab[1979(II) PFA Cases 202], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon’ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply. Similar is the case with judgements titled as Raj Kumar v. State Union Territory, Chandigarh [1998 All India PFA Journal 541], State v. Subhash Chand [2012(2) KCC 1052], and Giriraj Parshad v. State of Haryana [1995 All India PFA Journal 127] as these all pertain to food articles where colours upto 100 ppm are permitted to be used. But where the colours are absolutely prohibited, these judgements would not apply.
24. 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.
25. 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 synthetic food article tartrazine is concerned, its very presence is incriminating and even the best possible distribution of dal arhar would have not made any difference. When the sample of dal arhar is to be tested for presence of synthetic colour, which is a prohibited substance for use in this product, then any homogenization would be immaterial. Even if properly homogenized, such colour 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 claimed by the accused, as even the best possible homogenisation would have given no benefit to the accused.
26. All the PWs have corroborated the stand of each other on facts. All deposed about attempt made to join public persons as witnesses. All deposed about steps taken during sample proceedings. There is no contradiction in their statements that can be said to be material enough so as to go to the root of the matter. There is nothing to disbelieve them or to shake their credibility. It is not a case of non-compliance of any Rule or procedure. Rather the witnesses categorically deposed about compliance of due procedure and there is nothing in their cross-examination so as to attach any falsity to their version.
27. 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.
28. Again, it is no defence available to the accused to claim that the food article was for his personal/domestic use and not for sale. Though suggestions to this effect had been given to all the PWs and such a stand also taken by the accused in his statement under section 313 CrPC, but interestingly, no evidence in defence has been led to prove this fact.
Putting of bald suggestions and giving explanation under section 313 CrPC, are not evidences so as to prove any particular fact. There is not even a single witness who could step into the witness and face the test of cross-examination to establish the stand of the accused that only 1.5 to 2 kg of dal was there or that the dal was for personal use of the accused or that it was not for sale or that the accused never dealt in sale of such food articles. This is as against the corroborative evidence of the three PWs given on oath in the court, wherein they all deposed that the food article was lying for sale, that about 7-8 kg of dal was available, and that the accused was selling such items in addition to dairy products. There is no reason for the court to disbelieve these witnesses just on account of bald suggestions put to them which have never been proved on record. Such a defence of the accused has remained not proved.
29. Sale of adulterated food article is prohibited. The definition of ‘sale’ under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which the accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him. In the present case, the accused neither disclosed the source of purchase nor showed any bill/invoice so as to cover himself under a warranty. Therefore, in the absence of any bill, the court cannot assume that the accused had purchased the Dal Arhar from any other person or had been selling the same in the same condition as purchased by him so as to give him benefit under section 19(2) of the Act.
30. Again, there is no merit in the stand that there was unexplained delay of six days in signing the PA report. Apparently, the sample was analysed by PA from 06.07.2009 to 10.07.2009 and the PA report was signed on 16.07.2009. This delay of six days cannot be said to be ‘unexplained’ when the PA was never given an opportunity to explain the said ‘delay’. Such delay might have been on account of leaves, or administrative reasons, or discussions to form opinion, or absence of PA, or any other unforeseen exigency. But as already stated, the PA should have been called by the accused by exercising his option under section 293 CrPC to explain the things if desired but by not opting so, he cannot say that the delay remained unexplained.
31. Moving ahead, the defence 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 14.09.2009 on the basis of the Public Analyst’s report dated 16.07.2009. 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 has 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.
32. However, Ld. SPP has pointed out that the said judgement would not apply to this case because the methods of analysis to be adopted had been specified with effect from 25.03.2008 after clause 9 was inserted in Rule 4. Even otherwise, 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 or methods 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.
33. 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. There is nothing to show that the PA Smt. Mohini Srivastava was not validly appointed as Public Analyst or could not have analyzed the sample. 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. Even her report also mentions that she had been duly appointed and this fact was never disputed at the time of trial.
34. 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.”
35. 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.
36. 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. 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 293CrPC on this point.
37. 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.”
38. 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. 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 prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is for violation of section 2(ia)(a) and (j) of the Act. The present case would be squarely 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 (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico’s case would not help the accused.
39. No other stand has been taken by the accused at the trial or during the arguments advanced.
40. The case in hand 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” to be as per PFA Rules. The case would fall under section 2(ia)(j) as there is presence of colour which is not permitted in this article, and under section 2(ia)(m) of PFA Act as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited. Obviously, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was affecting injuriously its nature, substance or quality thereof or that the same rendered the food article injurious to health. And that is precisely the reason why no charge had been framed for violation of section 2(ia)(b) or 2(ia)(l) of the Act. Violation of section 2(ia)(j) is punishable undersection 16(1A) and violation of section 2(ia)(a) and (m) is punishable under section 16(i)(a) of PFA Act. But being graver offence, his conviction can be under section 16(1A) of PFA Act.
41. 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), (j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules, and has committed the offence punishable under section 7/16(1A) of PFA Act.
42. The accused is accordingly held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.
43. Let the matter be listed for arguments on sentence.
Announced in the open court this 4th day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL-0355