PFA – Delhi Dt.Court – Food Inspector Vs Arjun Mehto – Mirchi powder case – March 16th-2017

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

CC No. 142/06
Unique Case ID No. 02403R0343292006

Date of Institution:             09.06.2006
Date of reserving judgement:     07.10.2016
Date of pronouncement:           16.03.2017

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. Arjun Mehto
S/o. Late Sh. Murat Mehto
R/o. Jhuggi No. A-100, Raja Vihar
Samaypur Badali,
Delhi-110042                                  ...      Accused


JUDGEMENT:

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. Mehto Masala Chakki, from where the food article, that is, ‘Mirch Powder’ was lifted for sampling.

2. As per the complaint, on 24.11.2005, the food officials consisting of Food Inspector (FI) S. B. Sharma and Field Assistant (FA) J. S. Bisht under the supervision of Local Health Authority (LHA)/SDM Sh. B. S. Thakur reached along with their staff at the premises at M/s. Mehto Masala Chakki at K-2/65-66, Jahangirpuri, Delhi-110033, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Mirch Powder from the vendor lying in an open gunny bag bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 19.12.2005, the PA found the sample to be adulterated on the ground that it was coloured with unpermitted oil soluble synthetic colouring matter. The PA report also shows that the ash insoluble in dilute HCL was found to be 1.44% which was in excess of the prescribed maximum limit. It was also clear that the accused was selling Mirch Powder, which falls in the category of Spices and Condiments, in loose and unpacked condition, which was prohibited under Rule 49(24) of PFA Rules. 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 the FI on 09.06.2006 alleging violation of section 2(ia)(a), (b), (h), (j), (l) and (m) of PFA Act read with Rules 23, 28, 29 and 49(24) of PFA Rules, as punishable section 7/16(1A) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 09.06.2006. The accused appeared but never opted to file an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from Central Food Laboratory (CFL).

4. On the basis of PA report, pre-charge evidence was recorded, wherein the complainant examined PW-1 FI S. B. Sharma. On the basis of his deposition, charge was framed against the accused on 20.05.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (h) and (l) of PFA Act and Rules 23, 28, 29 and 49(24) of PFA Rules, to which he pleaded not guilty and claimed trial. The charge was later amended on 31.03.2015 as certain sections were not mentioned therein. Without objection from the defence, amended charge was framed on 31.03.2015 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (h), (j) and (m) of PFA Act and Rules 23, 28, 29 and 49(24) of PFA Rules, to which he pleaded not guilty and claimed trial. 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 FA J. S. Bisht and PW-3 Sh. B. S. Thakur SDM in post-charge stage.

5. PW-1 was the FI, PW-2 was the FA and PW-3 was the SDM/LHA, who were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 24.11.2005 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 750 gms of Mirch Powder (ready for sale) lying in an open gunny bag bearing no label declaration, mixing the same properly in the said bag itself with the help of a clean and dry jhaba, dividing it in three parts and putting in clean and dry glass bottles, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A vide which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. Accused gave his statement Ex. PW-1/D at the spot. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and two such 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. During investigation, letter Ex. PW-1/H was sent to STO and its reply was received. Thereafter, sanction Ex. PW-1/I was taken from the Director PFA and the complaint Ex. PW-1/J was filed in the court. Copy of PA report and intimation letter Ex. PW-1/K were sent to the accused through registered post vide receipt Ex. PW-1/L. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the accused had told them that he used to grind spices of other customers or that he was not dealing in sale of food articles. They denied that some colouring matter was there on the jhaba or on the brown envelope on which the commodity was weighed or in the sample bottles. They denied that the accused was not the owner of the shop or was only an employee. They accepted that there was one chakki found installed at the shop of the accused for grinding purposes. They denied deposing falsely.

6. Statement of the accused under section 313 CrPC was recorded on 22.06.2012 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 24.11.2005, yet he stated that he had reached at the spot later. He questioned the PA report and also the fact that he was selling the food article in loose / unpacked condition. 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 19.12.2005. 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 contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that the PA report and intimation letter were never received by the accused and thus, the right of the accused under section 13(2) PFA Act stood frustrated. It is then contended that the PA has not mentioned as to which test of ICMR Manual had been applied by her, arguing that if paper chromatography test had been applied by the PA, the same was not a sure test to detect adulteration. It is further submitted that the prosecution has failed to show that the accused had actually sold any such food article to any customer, contending that he was only an employee at the Masala Chakki where he used to grind the food articles brought by various customers.

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), (b), (h), (j) and (m) of the PFA Act. This is important to note because the ingredients of these offences are different and distinct. 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.

Under section 2(ia)(b) of PFA Act, it has to be established that the food article contained any substance affecting injuriously the nature, substance or quality thereof. Section 2(ia)(h) deals with an article that contains any poisonous or other ingredients which renders it injurious to health. 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 injurious to health. Rule 49(24) of PFA Rule requires that no person shall sell powdered spices and condiments except under packed conditions.

11. The commodity in the present case is Mirch Powder which falls in the category of “Spices and Condiments” and has to be tested as per the standards prescribed for the same. The said commodity falls under Item No. A.05.05.01 of Appendix-B of PFA Rules. Minimum standards have been prescribed under the Rules for this food article. It is nowhere the stand of the accused that the food article was not Mirch Powder or was not covered under this Item of Appendix-B or was covered in some other provision. No dispute has been raised by the accused as to the identity of the food article and the applicable standards on which it was 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 the PA had adopted an incorrect method of analysis (except claiming that the test applied by her may not be a sure test) or there was some other mistake in the report or that some other method had been prescribed under the Rules to detect presence of synthetic colour. The defence never applied under section 293 CrPC to cross-examine the PA when this option was available to him, so as to question her on the testing methodology adopted by her or to explain other findings in her report. The report shows that unpermitted oil soluble synthetic colour was found in the sample which was not permitted, and also that the ash insoluble in dilute HCL content was 1.44% which was in excess of the prescribed maximum limit of 1.3%.

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. Ld. Defence Counsel has relied upon judgements titled asRameshwar Dayal v. State of UP [1996(2) PFA Cases 197], Lakshmi v. State [1996(2) PFA Cases 198], State v. Subhash Chand [2012(2) JCC 1004], Vishnu Swarup v. State [1986 AIPFA Journal 257] and State of Haryana v. Munim [2006(2) FAC 93] 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.

14. 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.

15. At the outset, there is no merit in the contention that the PA report was not received by the accused. PW-1 and PW-3 both deposed about sending the copy of PA report with intimation letter Ex. PW-1/K through registered post vide receipt Ex. PW-1/L. Ld. Defence Counsel has pointedout that he had objected to exhibition of the postal receipts as they were only photocopies. It is contented that the original receipts were never produced in the court and thus, the material is not sufficient to establish that the letter was sent to the accused for enabling him to exercise his right under section 13(2) of PFA Act. But what has not been pointed out is that there is specific observation of the court during the examination in chief of PW-1 to the effect that “office file containing documents seen and returned”. Thus, no request was made by the defence to call for such record and no witness was ever asked to produce it, if the defence was raising a genuine dispute or was questioning the existence of any such receipt. No suggestion was given to any PW to the effect that no such receipt was in existence or that the copy of receipts filed on record were forged and fabricated documents. Even PW-3 during his cross- examination was asked only about the AD Card, which he accepted that no such AD card had been placed on record. But apparently, no suggestion was ever given even to PW-3 to the effect that no intimation letter was sent to or received by the accused. It is not the case where no original receipt exists. Despite taking a general objection while exhibiting Ex. PW-1/L, the correctness of the postal receipt has not been questioned during cross-examination of the PWs. Not even a single suggestion was given to the witnesses 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. Thus, accused cannot take benefit on this count. It is important to note that when this fact was put to the accused in his statement under section 313 CrPC, the accused never denied issuance or receipt of the intimation letter and merely stated it to be “a matter of record”. Thus, the stand now being taken by the accused has never been raised at the trial and no witness was asked to rebut any such proposed defence.

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. 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 upon be 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 and PW-3 deposed that the registered letter was not received back undelivered, the burden would be upon the accused to prove anything to the contrary. By not leading any evidence to support his stand, the version of the accused remains unsubstantiated. Therefore, even if there is no AD Card received back or filed on record, 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.

17. Upon this, the accused claims that the delay in filing the complaint had frustrated his right under section 13(2) PFA Act. The question is whether can the delay of six months be called as an unexplained delay so as to automatically frustrate his right?

18. As per the scheme of the PFA Act, a sample is lifted and is sent to PA for analysis on next working day. PA would require few days to analyse the sample (three days were taken in the present case), to prepare his report and then communicate report to the LHA which would take a few more days. The LHA would take time to peruse the report and will direct investigation. Such investigation would include sending of notices to accused seeking information (by post or by hand), sending notices to suppliers/packers/manufacturers as disclosed by vendor (through post), seeking their replies mostly through post for which they will also take time, sending notices to VAT office/ Sales Tax office/ LHA office/ ROC ascertaining the composition of firm/proprietorship/company and finding if they have nominees, and then sending notices to them. After completion of investigation, file is required to be sent to the office of Director PFA who takes time in granting sanction and orders filing of case. As noted earlier, a notice under section 13(2) can be only after filing of case. For filing of a case, the investigation has to be complete in all respects as there is no provision under PFA Act akin to section 173(8) CrPC permitting further investigation in police cases. Then service on accused through post may take 3 to 7 days. If served, the accused has 10 days time to file application to court. If filed and taken up on the same day, the court would require LHA to produce sample in 5 days (from date of service of summons which would again take some time). If sample is so produced, the sample would take time in reaching the CFL (CFL Pune is the authorized Lab for the state of Delhi). It would be only then that CFL can examine the sample. All this is impossible to achieve in short span of time. The court will have to appreciate the law and procedure as it stands today. Thus, the fate of the case would depend on its own set of facts and circumstances and as per the evidence led by the parties.

19. At this stage, it is also necessary to observe that in those cases where the right was observed to have been frustrated, the sample sent to CFL was reported to be decomposed, rendering it unfit for analysis. The defence has not filed any precedent where despite any delay, the CFL finds the sample to be fit for analysis, or where the accused chooses not to send sample for analysis to CFL (as in the present case).

20. In my considered view, mere time taken in filing the prosecution would not give automatic benefit to the accused. If the 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. The situation largely depends on various factors, including if the delay has been explained or not and whether the delay has resulted in frustration of right of the accused. Again, this would always be a matter of evidence adduced on record and not of hypothesis, assumptions or presumptions. If there is evidence that delay has frustrated the right of the accused, he would certainly be given benefit, but if the accused nowhere takes stand at the trial that he was prejudiced and no question is asked from any witness asking for reason of delay, he cannot simply raise the matter at the time of arguments and claim that any particular delay had frustrated his right.

21. In the case at hand, no question was put to any PW seeking explanation as to why a period of six months was taken in filing the complaint, so as to enable them to explain the circumstances. In such position, six months period cannot be said to be “unexplained delay”.

22. It is pertinent to note that in the landmark judgement titled as MCD v. Bishan Sarup [ILR1970 (1) Delhi 518], full bench of the Hon’ble High Court of Delhi had reversed the acquittal into conviction despite the fact that there was huge delay, holding that the there was no occasion for the trial court to have felt surprised or intrigued over it, as the report of CFL was final and conclusive. It is in those cases where the sample is sent for analyses to the CFL and the Director CFL finds that the sample was rendered unfit for analysis or it is proved that the sample deteriorated in the meanwhile that benefit can be granted to the accused. In that case, there was no evidence that the sample of milk (a perishable article) was unfit for analysis, despite the analysis having been done by CFL after about 3 years and thus, accused was convicted. The Hon’ble Court discussed the position held in precedent titled as Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] where the Director CFL had reported the sample to be highly decomposed and analysis impossible. Even in that case, the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated and he could not be convicted on the report of PA, though as principle, where the right of the accused is denied, benefit should be given to him. The Hon’ble also distinguished the position in judgement titled as Shri Ram Mehar v. Delhi Administration [Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969] where again, the Director CFL reported the sample to have become highly decomposed and unfit for analysis. Of course, if the accused is able to show that difference in two reports of PA and CFL was due to lapse of time, he can be given benefit, but again, that would be only in those cases where there is marginal difference, as in case of Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal No. 7-D/1966, Delhi High Court, dated 28.07.1969], as discussed in Bishan Sarup’s case. If despite the delay and differences, the food continues to be adulterated, no benefit could be given to the accused on that count.

23. The arguments advanced by Ld. Defence Counsel would be distinguishable from those cases where evidence comes on record that the sample had not become unfit for analysis and also where no evidence is there on record to show that delay had in fact frustrated the right of theaccused to get the sample analysed from CFL. To my mind, the time after which the sample would be rendered unfit for analysis is a matter of evidence and not assumptions or presumptions. If there is adequate evidence, including that of testimony of an expert witness subjected to cross-examination by the opposite side, then certainly accused would get the benefit. But the court cannot take a hypothetical view and discard the report of CFL despite its being final and conclusive, as observed in Bishan Sarup’s case, only on the assumption that any particular delay would have frustrated the right of the accused. That would depend on how the sample was lifted, what preservative was used, in what quantity the preservative was used, where it was kept during the intervening period, at what temperature, and what possible chemical variations were possible in such situation. If the delay causes some variation in natural ingredients but the article still fails on account of presence of a prohibited substance, the offence would still be made out, irrespective of such chemical changes on account of delay. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

24. As a corollary, the accused cannot choose to forgo his right to get the sample analysed from CFL under section 13(2) of the Act, citing a particular period of delay. The accused cannot claim that after lapse of any specific time period, his right would automatically get frustrated or deemed to have been frustrated and would have certainly rendered the sample unfit for analysis. It is only when the 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 as Britannia 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, 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 onaccount of the laches 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 stood frustrated just because of some delay in filing the prosecution. The right would get frustrated only when he exercises his right under section 13(2) of the Act and the CFL finds the sample to be decomposed or unfit for analysis. But when the sample is not found unfit for analysis by the CFL, the court cannot then substitute its own view on the basis of any hypothesis or assumptions and conclude that the sample would have rendered unfit for analysis. However, it would still be open for the accused to establish at evidence that the changes/variations on account of delay had resulted in causing prejudice to him. For instance, if a sample of milk is lifted and prosecution is filed after one year, then the accused cannot choose not to apply for sending the sample to CFL on the ground that his right stood frustrated after lapse of shelf life of milk. He would get benefit only if he applies for analysis for CFL and CFL finds the sample unfit for analysis. But where the CFL finds the milk sample to be fit for analysis and gives it report, the accused cannot get benefit onground of delay. The accused can still, however, show that on account of such delay, there were certain possible changes in the sample of milk that resulted in variation in the reports of PA and CFL, for which benefit can be given to him. But this rule too would apply where there are natural variations and not where the natural consequences had no effect on adulteration like addition of synthetic colours or poisonous material. Thus, the matter would depend on case to case basis.

26. In view of this proposition, the accused in this case cannot claim that his right under section 13(2) PDFA stood automatically frustrated when the complaint was filed after six months of lifting the sample so as to give him an option not to file application to send the sample for analysis to CFL. This is particularly when the incriminating material in this case is artificial synthetic colouring matter, the nature, quality or quantity of which is not prone to substantial change despite lapse of long period, as against the natural ingredients which have tendency to change with the passage of time. If the sample had failed on account of any natural ingredient, the benefit could have been given to the accused but when it failed due to presence of artificial synthetic colour, it cannot be said that the right of the accused to get the sample analysed through CFL stood automatically frustrated on account of delay because no period of delay would have developed synthetic colours if they were absent or would have made synthetic colours to disappear if they were present. Going a step further, even if it is assumed that the accused had not received the PA report and intimation letter, he could have exercised his right after receiving the summons of the court which are sent along with the complete set of documents including the PA report. But no attempt was made by the accused even at that time. Thus, there is no merit in the stand of the accused and it can be said that the accused voluntarily chose not to exercise his right despite opportunity.

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

28. All the witnesses deposed that they went together at the spot. All deposed about use of clean and dry jhaba for mixing and lifting the sample. PW-1 and PW-2 both corroborated each other and deposed that the food article was weighed in a clean and dry brown paper. Both stated that about 10 kg of Mirch Powder was there in the gunny bag in question, which PW-3 stated to be approximately 15 – 20 kg. All the three witnesses vehemently denied that the jhaba or brown paper or sample bottles were not clean and dry or that some colouring material was present therein.

29. Thus, it is not a case where there is no evidence that clean and dry utensils / implements / bottles were used. Rather all the witnesses have corroborated each other by stating on oath that the utensils / implements / bottles / cloths were clean and dry when used. Ld. Defence Counsel has failed to explain as to what other evidence could have been there to establish this fact in addition to the unblemished and corroborative oral testimony of three witnesses.

30. Again, there is nothing on record to show that some colour was there on the jhaba used (as suggested to PW-1 and PW-2) or in the bottles used (as suggested to PW-1, PW-2 and PW-3) or on the brown paper on which the food article was put for weighing (as suggested to PW-1) or the cloth used (as suggested to PW-3). Similarly, there is nothing to show that the FI had used his hands in lifting the sample or that some colouring matter was sticking to his hands, as suggested to PW-1. There is no witness who could depose that any such colouring matter was there on the jhaba or cloth or brown paper or sample bottles. In the absence of any evidence to this effect, mere putting bald suggestions would not serve any purpose. All such suggestions were vehemently denied by the witnesses. Putting suggestions cannot be taken as a positive proof of any fact unless admitted. It is further seen that no such stand has been taken by the accused in his statement under section 313 CrPC and no witness in defence was examined who could support the defence version to this extent. Such defences have remained not proved.

31. At the same time, certain contradictions can also be seen in the evidence of witnesses. While PW-1 and PW-2 deposed that the jhaba was already clean and dry and therefore not made further clean and dry, PW-3 stated that the jhaba was cleaned by the vendor with the help of a clean cotton cloth. Similarly, PW-1 and PW-2 stated that about 10 kg of Mirch Powder was lying in the gunny bag but PW-3 stated that about 15-20 kg of Mirch Powder was lying therein. But in my considered view, such contradictions are minor contradictions which do not go to the root of the matter, particularly in view of the defence taken by the accused. The witnesses were cross-examined from 2009 to 2011 that is after 3 to 6 years of the incident. As human memory is liable to fade, such minor variations are bound to appear with the passage of time. The witnesses cannot be expected to remember such minute details with mathematical precession and scientific accuracy even after lapse of several years. Unless there is a contradiction that is substantial and material enough so as to go to the root of the matter, such variations are to be ignored. There is no major contradiction as to the quantity of food article available in the gunny bag. The deposition of PW-3 that the jhaba was cleaned at the spot, would not negate the corroborative testimony of PW-1 and PW-2. In any case, the evidence of all the three witnesses would show that all the implements were clean and dry and any such difference in their versions would not establish the defence that the implements were contaminated or were having colour in them, as contended by the defence.

32. Similarly, it is seen that PW-1 stated that no customer came to the spot during the sample proceedings but PW-2 stated that 2-3 customers and PW-3 stated that 3-4 customers were present at the shop at the time of visit. Again, such variation cannot be called as material contradiction so as to negate the entire testimony as a whole. PW-1 stated about absence of customers for the period “during” the sample proceedings but PW-3 stated about presence of customers at the time of visit, whereas PW-2 was never asked about the period for which he deposed about presence of customers.

33. Now coming to the defences of the accused. By putting specific suggestions to the PWs, the defence has claimed that some colour was there on the jhaba/bottles/cloth/brown paper used by the food officials. Well, by putting such suggestions, the accused has lost the right to claim that there was no artificial or synthetic colour as detected by the PA. By taking such a stand, the accused has rather accepted that colour had been detected in the sample, though has taken stand that it was not added by him but by the food officials at the time of lifting the sample.

34. Apparently, there is no evidence on record to establish such a defence of the accused. No witness has been examined in defence to prove that any such colour was added by the food officials. On the contrary, such defence was never taken by the accused in his statement recorded under section 313 CrPC. He has stated nothing with respect to the PA report and merely termed the same as wrong. He nowhere claimed in his statement that any such colour was added by the food officials. Further, the stand taken by him during his statement under section 313 CrPC that he was not present at the spot or came there later, was never raised during the trial and no such suggestion was given to any witness enabling him to rebut or deny or explain the same. In the absence of any evidence to this effect, the court cannot assume that the proceedings were not proper or some colour had been added to the sample by the food officials. Such a stand is liable to be rejected.

35. Ld. Defence Counsel has now questioned the method of testing as adopted by PA, that is, ICMR Manual which mentions paper chromatography test to be one of the tests to detect synthetic colouring matter. It is also submitted by Ld. Counsel that no such colour has been identified and mentioned by the PA in her report. Relying on the judgement titled as Maya Ram v. State of Punjab [1987(II) PFA Cases 320], it is argued that if paper chromatography test had been adopted, then it was not a sure test to determine presence of unpermitted synthetic colour.

36. However, I do not find myself in agreement with such an argument. As already stated, the accused never opted to apply and call the PA to question her on any aspect including the exact method adopted by her or validity of the method applied or to identify the colour. It is to be understood that the PA report Ex. PW1/G is not the complete result of analysis and is only the final report which is required to be given as per the PFA Rules. All the details of analyses including the method adopted, steps in testing, values derived, calculations made etc., are maintained separately by the office of PA and such record can always be called if desired. Similarly, if the PA has not mentioned the colour in her report, only she would have been the best person to explain the reason thereof. Not all the colours in the world are identifiable. Again, there might not be any need at all to identify synthetic colours because no such colours are permitted to be used in the food article in question. Identification of colours would be required in those cases where permitted colours are allowed to be used and the PA is required to opinie if the colour used was permitted or unpermitted.

37. Similarly, even if paper chromatography test had been used, there is nothing to show that it was an invalid test. It is an internationally recognized test to determine presence of colouring matter. For that matter, as the accused has taken a defence that utensils/bottles/cloth/brown paper used by food officials were having colouring matter, it is clear that even he accepts presence of colour in the sample. There is no evidence to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is recognised and accepted in the Manual of Indian Council of Medical Research as well. No attempt was made by the accused to apply and cross-examine the PA under section 293 CrPC and to question her as to the validity of the method adopted by her. And if not the PA, the accused also chose not to examine any other expert witness to establish his stand that the paper chromatography test is not a sure test.

38. The judgements in Maya Ram v. State of Punjab [1987(II) PFA Cases 320] and Daulat Ram v. State of Punjab [1979(II) FAC 202] are clearly distinguishable on facts of this case. These judgements would apply only to those cases where some synthetic food colour is permitted to be used in a food article (like sweets and confectionery) and the court has to determine if the synthetic colour found in the sample was permissible or not. 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 this judgement would not apply to those cases where use of such colours is absolutely prohibited and not permitted to any extent. In case 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 present or not (as all such colours are prohibited), these judgements would not apply.

39. Rule 23 of PFA Rules prohibits addition of colouring matter in food articles other than those specifically permitted. Rule 28 lists the artificial/synthetic colours which can be added to the food articles and Rule 29 deals with the food articles in which synthetic food colours can be added. Mirch Powder or for that matter, any article falling under the head of Spices and Condiments is not a part of any clause of Rule 29 wherein the food articles in which the synthetic colours as listed in Rule 28 are permitted to be added. Hence, no colour could be added to Mirch Powderand use of any such synthetic colour is absolutely prohibited. The obvious inference is that use of such synthetic food colour is totally prohibited for use in Mirch Powder, though they are permitted in specified food articles within the prescribed limits. 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 as well.

40. 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 Mirch Powder. Even if the said quantity is in traces, as being 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 this food article. 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 articles being sold by him. But no evidence has been led by the accused to establish this fact.

41. As far as the contention of the Ld. Defence counsel that the PA did not specify the names of colours detected is concerned, that would not make any difference as every such colour would lead to adulteration. The PA report clearly shows that the colour detected by her was “unpermitted”, oil soluble, “synthetic” colour. Had it been natural colour, there was no occasion for her to mention that the colour detected was synthetic. During analyses, natural colour fades away and only the synthetic colour remains. In any case, if the accused had any genuine doubt on this point, he should have cross-examined the PA and asked her about the details of her report. She would have been the best witness to explain her report and depose about the reason for giving opinion that the sample was found containing synthetic colouring matter. There may be many colours which have not yet been identified or put under any specific head but still unpermitted. Only specific colours as per Rule 29 are permitted and other such colours or admixtures thereof are unpermitted. Now without examining the PA on any such point, her report cannot be discarded on any hypothetical ground by assuming existence or non- existence of any fact. No stand has been taken by the accused at the trial that any such colour was a result of natural use or the food article exposed to natural environment. It is also clear that the ash insoluble in dilute HCL was 1.44% which was in excess of the prescribed maximum limit. Thus, in view of the accused opting not to question the PA report as such, it is clear that the food article was adulterated within the meaning of section 2(ia) of PFA Act being in violation of Rule 23 read with Rules 28 and 29.

42. The stand of the accused that he did not engage in sale of the food articles and only used to grind the spices brought by the customers, has also remained unsubstantiated. Though it is an admitted fact that the premises in question was having a Chakki / grinder installed, yet this fact by itself would not lead to direct conclusion that there was no sale going on at the premises. PW-1 stated that two bags of Lal Mirch Powder, one bag of Haldi Powder and one bag of Dhania Powder were there at the shop. PW-2 also confirmed this fact and stated that Haldi, Mirch and Dhania Powder were also lying at the shop. PW-3 during cross- examination also stated that other gunny bags were lying at the spot in open as well as in sealed condition. If the accused was only grinding the spices as brought by the customers, there was no occasion of him to store and exposed such articles at his shop.

43. There is no evidence to the effect that the food article at the spot was not for sale or for some use other than sale. No witness has been examined by the accused who could depose that the accused did not engage in sale transaction and only used to grind the spices of others. It is also important to note that the accused had accepted the price of the sample vide vendor receipt Ex. PW1/A and never objected to the same by claiming that the food article did not belong to him or belonged to some customer or that it was not for sale. Rather on Ex. PW1/B, some endorsement was made by the accused in his own handwriting, which has not been explained. The said endorsement is not clear and its meaning could not be ascertained, though a few words therein can be deciphered. No witness stepped into the witness box to explain what the said endorsement meant. As such, the court has to rely upon the evidence of the three PWs to establish that the food article had been stored for sale.

44. It is also seen that the definition of “sale” as per Section 2(xiii) is very wide which includes sale for analysis, an agreement for sale, an offer for sale, exposing for sale, having in possession for sale and even attempt to sell. Since the food article was exposed for sale and was actually soldto the FI for analysis, the matter would be governed by PFA Act. There is no merit in the stand that the food article was never sold to any customer. There is no such requirement under the act that the food article can be lifted only when it is actually being sold to some customer. The sale of food article to the FI for analysis would also come within the definition of sale.

45. Moving ahead, 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 09.06.2006 on the basis of the Public Analyst’s report dated 19.12.2005. 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. 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.

46. However, I do not find myself in agreement with the said contention or to the interpretation sough 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.

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

48. 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 StandardsInstitution, 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.”

49. 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.

50. 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.

51. 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.”

52. 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. 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 prohibition of use of artificial synthetic colours in spices and condiments. In this case, prosecution is for violation of section 2(ia)(a), (b), (j) and (m) 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.

53. It has come in evidence that the accused was selling the food article in open, loose and unpacked condition and thereby violated Rule 49(24) of PFA Rules which mandates that such powdered spices and condiments have to be sold only in packed condition.

54. There is no evidence to establish the defence of the accused that he was not the owner of Mehto Masala Chakki or that he was an employee only. He has not examined any witness to this effect nor taken such stand even in his statement under section 313 CrPC. He has not disclosed the name of any person who is claimed to be the owner. No account books, telephone bill, electricity bill, water bill, etc. has been placed on record to establish that some person other than the accused was the owner of the said premises. No evidence, whether documentary or oral, has been led to show that accused was an employee of the said premises. Such a stand taken during the evidence of PW-2 in his cross examination was never taken at any other stage of the trial. The accused has also not produced any stock register, the existence of which he claimed to have informed the FI (as suggested to PW-3, though never suggested to PW-1 FI). Even if it is assumed that the FI did not accept the stock register, nothing had stopped the accused from producing it in the court and to prove the contents thereof to establish any relevant fact. In the absence of any evidence, such a stand has remained a bald averment without any proof and thus liable to be rejected.

55. The case law relied upon by the accused would also not come to his rescue. The judgements titled as Rameshwar Dayal v. State of U.P [1996(2) FAC 197], State v. Subhash Chand [2012 (2) JCC 1004], State of Haryana v. Munim [2006(2) FAC 93], Kirtan Bhoi v. State of Orissa [1997(2) FAC 300] pertain to the right under section 13(2) of PFA Act. The law laid down in these judgements is well settled and recognised but is not applicable to the present case wherein it has already been observed that no such right of the accused had been frustrated by any act of the prosecution. The witnesses have deposed about sending of the letter through registered post and also about presumption of service (as per Section 27 of the General Clauses Act), which fact was never disputed by the defence at the trial.

56. The judgement in Khushi Ram v. State [1984 (II) FAC 256] pertains to the presence of mineral oil in the sample of Badi Illaichi where the quantity of mineral oil had not been mentioned. But the present case would be different as no quantity of synthetic colour is permissible and even negligible quantity of incriminating material would be sufficient to make out the violation as per the prescribed standards. Similar is the position in Nagar Palika Parishad, Khilchipur v. Rajendra Kumar [1988 (II) FAC 3] which pertained to presence of Kesari Dal in Besan wherein it was held that such presence merely in traces would not affect the food article. But in the present case, the court is not to go into the fact if the presence of synthetic colours would be affecting the food article and has to only see if the ingredients of the offence under which the accused is facing trial are made out.

57. The judgements in Rajender Kumar v. State of Haryana [2008 (3) RCR (Crl) 422] and Jagdish Chander v. State of Punjab [1980 (II) FAC 323] would also be on different footing. In those cases, there was no evidence that the utensils / implements / envelops / bottles were clean. But in the present case, there is clear evidence that all such material were ensured to be clean and dry.

58. Similarly, the judgements titled as State of Orissa v. Rabindra Sahu [2006 (1) FAC 200], State v. Banwari Lal [2011 (1) FAC 149], and Gian Chand v. State of Haryana [1982 (I) FAC 8] pertain to violation of some PFA Rules during the sample proceedings. But in this case, no such violation can be seen particularly when no such defence was raised and put to any PW at the trial.

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

60. 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, (synthetic colour being totally prohibited and Ash insoluble content beyond the prescribed maximum limits). Also, there is violation of Rule 49(24) of PFA Rule, which requires that such powdered spices and condiments cannot be sold in loose or unpacked condition. However, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used or the excess ash content were affecting injuriously its nature, substance or quality thereof, or that the article contained any poisonous or other ingredient which rendered it injurious to health, so as to make out violation of section 2(ia)(b) or 2(ia)(h) of PFA Act. Violation of section 2(ia)(j) is punishable under section 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.

61. In view of this discussion, 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, 29 and 49(24) of PFA Rules, and has committed the offence punishable under section 7/16(1A) of PFA Act.

62. Having said so, the accused is held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.

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

Announced in the open court this 16th day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355

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