IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 137/05 Unique Case ID No. 02403R0260722005 Date of Institution: 09.06.2005 Date of reserving judgement: 18.02.2017 Date of pronouncement: 27.03.2017 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 ... Complainant versus Deep Chand S/o. Sh. Prem Chand R/o. E-3/485, Nand Nagri, Delhi. ... 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. Arora General Store, from where the food article, that is, ‘Dal Dali Masoor’ was lifted for sampling.
2. As per the complaint, on 15.03.2005, the food officials consisting of Food Inspector (FI) R.K.Bhaskar and Field Assistant (FA) Naubat Singh under the supervision of Local Health Authority (LHA)/SDM Sh. Anil Banka reached along with their staff at the premises of M/s. Arora General Store at E-3/485, Nand Nagri, Delhi, 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 Dali Masoor 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 08.04.2005, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter ‘Sunset Yellow FCF’. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was found that the accused was the proprietor of the business concern M/s. Arora General Store. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 09.06.2005 against the accused in the capacity of vendor-cum-proprietor, and alleging violation of section 2(ia)(j) and (m) of PFA Act read with Rules 23, 28 and 29 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 09.06.2005. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 17.08.2005, opining the sample to be not conforming to the standards of Dal Masoor as per PFA Rules due to presence of synthetic colour ‘Sunset Yellow FCF’, presence of weevilled grains and uric acid in excess of the prescribed the maximum limits and also due to presence of abundant small living insects.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 FI R.K.Bhaskar. On the basis of his deposition, charge was framed against the accused initially on 05.09.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (j) and (m) of PFA Act, 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 Naubat Singh and PW-3 Sh. Anil Banka (SDM/LHA) in post-charge stage. However, the charge was subsequently amended vide order dated 23.06.2015 and it was now framed for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (e), (f), (j) and (m) of PFA Act, to which he pleaded not guilty and claimed trial. As desired by the accused, all the witnesses were recalled for further cross-examination post amendment of the charge.
5. 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 15.03.2005 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 1500 gms of Dal Dali Masoor lying in an open gunny bag bearing no label declaration, mixing the same with the help of a clean and dry jhaba, weighing them in a clean and dry transparent new polythene bag, dividing the same in three equal parts by putting in three clean and dry sample glass bottles, separately sealing, packing 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, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. Accused furnished his statement Ex. PW-1/D. On the next working day, that is, 16.03.2005, 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 and received its reply. He also sent a letter Ex. PW-1/I to the DHO, MCD and received reply. Thereafter, sanction Ex. PW-1/J was taken from the Director PFA and complaint Ex. PW-1/K was filed in the court. After this, intimation letter Ex. PW-1/L with copy of PA report was sent to the accused through registered post vide postal receipt Ex. PW-1/M. All these witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the accused had informed the food officials that he had purchased the food article from M/s Chetan Goel Brokers or also showed the bill dated 08.03.2005 Mark PW-1/DA. The witnesses affirmed the use of clean and dry jhaba, bottles, polythene bag and denied that the accused had been falsely implicated despite being a petty shopkeeper.
6. Statement of the accused under section 313 CrPC was recorded on 19.12.2013 wherein he denied the allegations and pleaded innocence. He admitted the proceedings dated 15.03.2005, but claimed that no efforts were made to join public witnesses, that no payment was made to him, that the sample was not mixed properly, that the jhaba was not cleaned before using, that the relevant documents were not read over or explained to him. He disputed the PA and CFL reports and stated that he made no adulteration. He further asserted that the presence of insects was a subsequent growth. He however 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 CFL report dated 17.08.2005 which as per section 13(3) and (5) of PFA Act is final and conclusive, and which has confirmed the findings given by the PA. 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 reports of PA and CFL are not reliable being at variance which would show that the sample was not representative. It is then contended that no percentage or extent of synthetic colour Sunset Yellow FCF has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that the jhaba/polythene bag used by the FI was not made clean and dry at the spot and possibility of contamination cannot be ruled out. It is then contended that Sunset Yellow FCF is not a harmful colouring matter as its use is permitted in many food articles. Ld. Counsel has submitted that the said colour is a water soluble colour and when the Dal Dali Masoor is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is also argued that the accused was not the manufacturer of the article but was only a retailer who had purchased the commodity from another seller M/s. Chetan Goel Brokers, which was not implicated by the FI despite his showing the bill dated 08.03.2005 to the food officials which was not accepted by them. It is finally contended that the laboratories in which the samples wereanalysed 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), (e), (f) (j) and (m) of the PFA Act read with Rules 23, 28 and 29 of PFA Rules with respect to the offence of ‘adulteration’. Section 2(ia)(a) deals with a situation where an article of food sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. Section 2(ia)(e) applies if the food article had been prepared, packed or kept under insanitary condition whereby it has become contaminated or injurious to health. Section 2(ia)(f) deals with situation where the food article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption. 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 but not rendering the food article injurious to health.
11. The commodity in the present case is Dal Masoor / Masur (Split Pulse) which is a food grain and has to be tested as per the standards prescribed for food grains. The article falls in Item A.18.06.13 Appendix B of the PFA Rules. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter Sunset Yellow FCF in the sample analysed. On this point, the reports are conforming to each other and not at variance.
12. But the defence is seeking to claim that the samples were not representative due to ‘variations’ in PA and CFL report. It is pointed out that as per PA report, moisture content was 8.46%, extraneous matter was nil, other edible grains were 0.34%, weevilled grains were nil, uric acid was not defected and there was no insect or fungus detected. However, according to the CFL report, moisture content was 8.62%, extraneous / foreign matter was 0.31%, other edible grains were nil, weevilled grains were 4.0%, uric acid was 700 mg/kg and there were abundant small living insects detected.
13. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, ‘since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative’. Pointing out the above said variations in the moisture content, foreign /extraneous matter, other edible grains, weevilled grains, uric acid and living insects, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused.
14. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State[2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli[2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].
15. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
16. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
17. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
18. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.”
19. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR1970 (1) Delhi 518], the full bench of Hon’ble High Court of Delhi observed that “According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13“. The Hon’ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a “greater expert whose certificate is to be accepted by court as conclusive evidence”.
20. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
21. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath’s case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.
22. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that “It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act”.
23. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon’ble High Court of Gujarat while relying upon the decision of the Hon’ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P, [AIR 1981 SC 1387] discussed the issue of ‘variation’ and held that “Proviso to section 13(5) also indicates that what is stated in the later certificate issued by theDirector would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.”.
24. In the case of MCD v. Bishan Sarup [supra], the Hon’ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon’ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) “Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.”
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
25. This judgement was also relied upon by the Hon’ble High Court of Delhi in Salim and Co. v. MCD [1978 Cri LJ 240], where it was observed that “It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director”.
26. In MCD v. Zahiruddin [ILR (1972) 1 Del 630], the Hon’ble High Court of Delhi held that “It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded.” Similar was the observation of Hon’ble High Court in MCD v. Manohar Lal [1975 (1) FAC 182].
27. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, thepossibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analysis carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be “unfit for analysis” in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter of evidence adduced by the prosecution and defence and not a matter or assumptions.
28. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in Bishan Sarup’s case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.
29. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be “substantial enough” to be considered in favour of the accused. The Actor Rules do not prescribe that any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross- examination of complainant’s witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be “substantial enough”, then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.
30. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.
31. In Kanshi Nath’s case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon’ble Court ruled in favour of the accused and acquitted him.
32. Thus, the point to be noted is, that the law laid down in Bishan Sarup’s case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath’s case, the accused was able to adduce evidence to the effect that ‘in ideal conditions’, the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon’ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup’s case, the Hon’ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.
33. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 45% and CFL to be 44%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 45%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
34. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the Kanshi Nath’s case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the Kanshi Nath’s judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL.
35. As mentioned earlier, this judgement has been relied upon time and again by the Hon’ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].
36. At this stage, it is not out of place to mention that the Hon’ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath’s judgement, but at the same time, expressly ordered the question of law to be kept open.
37. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon’ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.
38. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar[2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon’ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
39. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.
40. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon’ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon’ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.
41. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.
42. Even otherwise, if the variations are noticed, they are certainly due to time gap between the analysis by PA and CFL. The sample was lifted on 15.03.2005 and was analyzed by the PA from 23.03.2005 to 31.03.2005. It was analysed by CFL from 16.08.2005 to 17.08.2005, that is after about 5 months of lifting the sample. Change in moisture content is always expected due to impact of internal heat of the food article, outside atmosphere, presence of light, pressure and air, storing conditions etc. For that matter, even the insects can certainly develop during this period. Presence of uric acid and weevilled grains are a consequence of development of insects in a food article. Therefore, as far as the uric acid is concerned which was found to be 700 mg/kg (which is in excess of prescribed maximum limit of 100 mg/kg), the presence of weevilled grains upto 4.0% (which is in excess of prescribed maximum limit of 3.0%) and presence of abundant small living insects (which should be nil), the same can be attributed to the time gap after which the sample was analyzed by the CFL. Had it been violation of provisions only on these counts, the accused would have got benefit as he could have certainly taken stand that such violations arose due to lapse of time.
43. But when the prosecution is not on account of presence or absence of insects or weevilled grains or uric acid only but on account of presence of synthetic colouring matter in the food article, which would not develop due to any passage of time, no benefit can be granted to the accused. Even if the moisture content has undergone a change or the insects have developed during the intervening period which also resulted in consequent development of weevilled grains and uric acid, the sample would still fail due to presence of synthetic colouring matter, the use of which is absolutely prohibited in food grains. As far as the variation in moisture content or extraneous matter or other edible grains are concerned, the same is very marginal and even qualifies to be put within permissible range even as per the law laid down in Kanshi Nath’s judgement. As development of insects, weevilled grains and uric acid can be safely attributed to the lapse of time, it cannot be said that the two samples were analysed by the PA and CFL in ‘ideal’ circumstances and therefore, variation on these counts would not invite the permissible range as per Kanshi Nath’s judgement so as to give benefit to the accused.
44. There is nothing for the court to disbelieve the PA and CFL reports wherein artificial synthetic colour Sunset Yellow FCF has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no colour was detected, or was detected wrongly. In this case, no stand has been taken by the accused at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. He never took stand that the food colour was mischievously added by the food officials at the time of sampling or by the lab officials at the time of testing. It is not his case that there was some colour in the sample bottles or jhaba or polythene bag (though he claimed that these were not clean and dry) which might have been transferred to the food article during sampling. No suggestion to this effect was given to any witness during cross- examination. No such defence was raised by the accused in his statement under section 313 CrPC or even in defence evidence. Rather his stand throughout the trial has been that he was not concerned with the same as he had purchased the same from another supplier. At the same time, he claimed that the sampling method was not proper as there was no proper mixing and that the jhaba / bottles were not clean and dry.
45. All the witnesses categorically deposed on oath about use of clean and dry implements / utensils including clean and dry jhaba, clean and dry bottles and clean and dry polythene bag. Not even a single suggestion was given to any of the three witnesses to the effect that the jhaba or bottles or bag were not clean and dry or that they were contaminated or that some colour was present therein. It was only in his statement under Section 313 CrPC that the accused claimed that the jhaba was not cleaned before using. Even such a defence has not been proved by leading any evidence to this effect. There is no witness who could step into the witness box and face cross examination to establish that the jhaba (or bottles or polythene bag) was not clean and dry. In view of the unrebutted testimony of the three witnesses given on oath in the court on this point, coupled with the fact that there is no evidence to prove any contrary fact, it has been established that all such implements / instruments were clean and dry when used. Ld. Defence Counsel has failed to explain what other positive evidence was required in addition to the corroborative testimony of three witnesses to establish the use of clean and dry implements.
46. 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 articles in which synthetic colours are permitted. A bareperusal 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.
47. 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 Masoor. 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, 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 food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted up to 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.
48. Similarly, there is no merit in the contention that Sunset Yellow FCF is a water soluble colour and no prejudice would be caused to any customer because Dal Masoor 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 Dali Masoor 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.
49. 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.
50. 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 or spices contains deadly poison which is a prohibited substance, then presence of even 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.
51. In this perspective, if the sample of Dal Dali Masoor was failing on account of ash content, moisture, weevilled grains, etc, then proper homogenization would have been required. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in food grains, then any homogenization would be immaterial. Even if homogenized in best possible manner, such colour would still be there, though evenly distributed, which would still be an offence in any case. In the present case, even if it is assumed that the sample had not been properly homogenized (though there is no evidence to this effect), that would have no bearing on the test results. Even if the synthetic colours are evenly distributed, that would still make out the offence of adulteration because such colours are totally prohibited for use in food grains.
52. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is pointed out that the PA report mentions the use of chromatography test adopted by her, which Ld.Counsel claims to be not a sure or reliable test. Similarly, it is submitted that the CFL has not specifically mentioned as to what test was adopted out of various tests prescribed under DGHS manual.
53. Well, the court does not find merit in the said submissions. It is to be understood that report of chemical experts is admissible in evidence without formal proof under section 293 CrPC. But that does not mean that such reports cannot be questioned on any point on which it is silent. If the accused wishes such report to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross- examine the analyst. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that DGHS method had been used by the analyst to determine the presence of synthetic food colour. In such a case, there is no reason why the accused did not opt to cross-examine the CFL analyst and ask him/her about the method used to detect synthetic colour, if he was genuinely feeling aggrieved by his/her failure to name the test method. The CFL (and even PA) maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The report and certificate on record are only the final figures as given in the format prescribed under the PFA Rules. They do not contain all the details of the entire analysis from beginning to end and such data can always be called by the accused if desired. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously not the responsibility of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that “the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect.”
54. 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 as aforesaid to ask the PA or CFL Director as to the name and validity of the method adopted by them. They would have been the best persons to explain the things as they had analysed the sample. And not only the PA or Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that paper chromatography test is not a sure test.
55. 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 or confectionery or sauces) 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.
56. Now coming to the defences raised by the accused. The prime defence the accused has taken is, that the commodity had been purchased from a third party M/s Chetan Goel Brokers through a bill dated 08.03.2005. Accused suggested to all the PWs that he had shown the bill to them which they refused to accept, though such suggestions were vehemently denied by all the witnesses. It is then submitted that the accused was not a manufacturer of the commodity in question and was only a retail shopkeeper. It is pointed out that the witnesses have accepted that they did not find any instrument or machine at the shop for mixing colour in Dal and no such process was going on at the shop of the accused.
57. Well, there would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of ‘sale’ under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which 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 written warranty and had been selling the product in the same state as purchased by him.
58. In the present case, the accused claimed that he had purchased the commodity from one M/s. Chetan Goel Brokers. In this regard, he produced a bill dated 08.03.2005 Mark PW-1/DA during the evidence of PW-1, which he denied. This bill was never specifically put to PW-2 or PW-3, though it was suggested that the accused had disclosed the source of purchase.
59. It would be therefore seen that except putting this bill to PW-1 (which he did not prove and rather denied), no evidence has been led by the accused to prove this bill as per law. No witness has been examined by the accused who could depose that the food article as lifted in this case had been purchased by the accused through this bill. Despite opportunity, the accused never summoned any witness from M/s Chetan Goel Brokers so as to prove the genuineness of this bill. He would have been the best witness to establish or to deny this bill. As per Section 19(3) of PFA Act, any person by whom a warranty as per Section 14 (the proviso to which states that a bill, cash memo or invoice shall be deemed to be a warranty) is alleged to have been given shall be entitled to appear at the hearing and give evidence. But the accused has not explained as to why no such witness was summoned to prove this bill.
60. Even otherwise, it is seen that no such bill was shown to the food officials at the time of sampling. All the witnesses have denied that any such bill was shown to them. No endorsement was made by the accused on any document prepared at the spot claiming that he had purchased the food article from some other person against any bill. Even if it is accepted that the food officials did not accept the bill on the day of sampling, nothing had stopped the accused from submitting the bill to the PFA Department during the course of investigation, so as to enable the FI to investigate into the correctness or falsity of the bill. This bill Mark PW- 1/DA does not bear any signatures of the person issuing the same. It is not known as to who issued this bill, in what capacity and whether he was authorized or not. The bill book of the said supplier has not been summoned for this purpose. Again, even if it is assumed that the accused had purchased the commodity from a third party, that by itself would not help the accused in any manner. It is to be understood that the benefit of warranty under section 19(2) of PFA Act would be available only when there is a written warranty from the supplier/seller in addition to the fact that it has been sold in the same condition as was purchased. Both the conditions have to be fulfilled simultaneously. Only fulfilling one condition that there was a written warranty, that would remain incomplete in the absence of other condition that the commodity was sold in the same state as was purchased from the supplier. It is also important to note that such a written warranty has to be as per Rule 12-A of PFA Rules which provides that the same should be as per Form-VIA therein. Unless there is a written warranty, that too in the prescribed format, mentioning all the necessary details, the vendor cannot seek benefit. Again, in the absence of any mark of identification on the gunny bag and in the absence of any evidence (oral or documentary) to establish that the Dal lifted from open gunny bag in loose condition was a part of the same Dal as was purchased by the accused from the said supplier, such benefit of warranty cannot be extended to the accused. No witness from the said supplier has been examined to even question or rebut or deny or dispute or explain the said bill. Selling, manufacturing, distributing, etc. all operate in different domains and all sellers, manufacturers or distributors are liable if the product is found adulterated. The benefit of warranty under section 19(2) is the only escape, but for that, necessary conditions have to be fulfilled. If the accused has chosen to proceed with the transaction without a written warranty, he did so at his own risk and consequences and had therefore lost the benefit under section 19(2) of PFA Act. The bill placed on record does not give any warranty as required by the language of Form VIA read with Rule 12A of PFA Rules. When there was no written warranty at the time of sale of the product by the supplier to the accused vendor, even the accused would be liable for selling adulterated food to the food officials, if such adulteration is proved.
61. Therefore, irrespective of the fact if the supplier was implicated or not, the court is concerned as to if the offence is made out against the accused herein or not. Since the accused was selling an adulterated product, he is liable for prosecution as a seller. He cannot get away from his liability on the ground that he had purchased the product from some other supplier. The only escape available to him is under section 19(2) of PFA Act, under which he is required not only to establish that he had purchased the product from another supplier, but also that there was a written warranty in the prescribed form, and also that he had stored and sold the product in the same manner as was purchased by him. There is nothing to show, except bald averment of the accused (in the form of suggestions given to PWs which have been denied by them) without any evidenciary support, that the dal lifted from his possession was the same as was purchased by him through the bill in question.
62. Therefore, in this case, even if it is accepted that the accused had purchased some dal from a third party, there is no evidence to show that there was a written warranty in the prescribed form and also that he had stored and sold the dal in the same state as was purchased by him. Therefore, such a position would not help the accused.
63. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon’ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc., and there is no contradiction in their testimony which could go to the root of the matter so as to shake their credibility.
64. Moving ahead, the defence lastly 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 09.06.2005 on the basis of the Public Analyst’s report dated 08.04.2005. 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.
65. However, I do not find myself in agreement with the said contention or to the interpretation sought to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.
66. 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 to the court the order dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of analysis of the sample, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/G also mentions that she has been duly appointed and this fact was never disputed at the time of trial.
67. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13 (2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time, CFL Pune had been specified to be the laboratory for Delhi region.
68. 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.”
69. 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.
70. 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. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.
71. 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.”
72. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico’s case, the Hon’ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico’s case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is primarily for violation of section 2(ia)(a), (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 persons.
73. There is also no merit in the submission that no offence under section 2(ia)(j) is made out. In view of Rules 23, 28, 29 and 30 of PFA Rules, it is clear that the presence of colour in food grains like Dal Dali Masoor should be nil. It cannot be said that no standards have been prescribed. As such, the presence of synthetic colours would be covered under section 2(ia)(j) and it is not a simple case of misbranding. Had it been a case where colours were permitted and the presence of such colour had not been mentioned on the label, only in that case it would have been a case of misbranding simplicitor.
74. It has come on record that the business concern in question was a proprietorship concern of which accused was the proprietor. Accused was also the vendor at the time of sale. The accused never denied these facts. It is never his case that he was not the proprietor or that some other person was the proprietor of the business concern.
75. No other stand taken has been taken by the defence hitting on merits of the case.
76. The case in hand would be covered under section 2(ia)(a) as the Dal sold by the accused persons was not of the nature, substance or quality which it purported and represented to be, 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.
77. As far as violation of Section 2(ia)(e) and (f) are concerned under which charge was framed on account of presence of abundant living insects and uric acid, the accused is entitled to be given benefit of doubt because of the intervening time between analysis by PA and CFL. When the PA report did not find any such violation and such violations were noticed by the CFL after lapse of five months, it can be said that such development of insects, uric acid and weevilled grains were a result of time gap. The material is not sufficient to show that the food article had been prepared or packed or kept under insanitary condition on the date of sale or was insect infested or unfit for human consumption or that day. Attributing such violations to the intervening time period during which such insects or uric acid or damaged grains may develop, it can be said that the prosecution has not been able to establish beyond reasonable doubt the violations under Section 2(ia)(e) and (f) of PFA Act.
78. 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, the conviction can be under section 16(1A) of PFA Act.
79. 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 an 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.
80. Having said so, the accused is held guilty and convicted for the offence punishable under section 16(1A) of the PFA Act.
81. Let the matter be listed for arguments on sentence.
Announced in the open court this 27th day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355