PFA – Delhi Dt.Court – F I Vs Ashok Kumar – Sub standard Paneer case – April 27-2017

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

CC No. 27/11
Unique Case ID No. 02403R0009082011

Date of Institution:              02.02.2011
Date of reserving judgement:      27.04.2017
Date of pronouncement:            29.04.2017

In re:

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

               versus

Ashok Kumar
S/o. Sh. G. R. Yadav
R/o. C-10, Shastri Park, Main Road,
Delhi-110053                                   ...     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 Ashok Kumar is stated to be the vendor-cum-proprietor of M/s. Ganga Dairy, from where the food article, that is, ‘Paneer’ was lifted for sampling.

2. As per the complaint, on 30.05.2010, the food officials consisting of Food Inspector (FI) Ranjeet Singh and Field Assistant (FA) Bhopal Singh under the supervision of Local Health Authority (LHA) / SDM Sh. Vipin Garg reached along with their staff at the premises of M/s. Ganga Dairy at C-10, Shastri Park, Main Road, Delhi-53, 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 Paneer from the vendor lying in an open steel tray bearing no label declaration, meant for sale, to which he agreed. A sample of 750 grams of Paneer was then lifted as per procedure prescribed under the PFA Act and Rules, and was divided into three parts. 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 24.06.2010, the PA found the sample to be not conforming to the standards on the ground that milk fat of dried matter was less than the prescribed minimum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 02.02.2011 alleging violation of section 2(ia)(a) and (m) of PFA Act, as punishable under section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 02.02.2011. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 03.03.2011, opining the sample to be not conforming to the standards of Chhanna or Paneer as per PFA Rules as milk fat content was less than the prescribed minimum limit.

4. Based on the CFL report, notice of accusation under section 251 CrPC was framed against the accused on 06.06.2011 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m), to which he pleaded not guilty and claimed trial.

5. At the trial, prosecution examined four witnesses in support of its case. PW-1 FI Ranjeet Singh, PW-3 Sh Vipin Garg (SDM/LHA) and PW-3 FA Bhopal Singh were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 30.05.2010 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 Paneer from an open steel tray bearing no label declaration, cutting the same in smallest possible pieces with a clean and dry knife, mixing the same properly in another clean and dry tray with a clean and dry spoon, dividing it in three parts by putting in three separate clean and dry sample bottles, adding 20 drops of formalin in each bottle as preservative, sealing, fastening, packing and marking the samples and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C and raid report Ex. PW-1/D. 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 dated 24.06.2010 was received and further investigation was carried out by PW-4 FI Shyam Lal. During investigation, letters Ex. PW-4/A and PW-4/B were sent to the DHO and reply Ex. PW-4/C was received. Another letter Ex. PW-4/D was sent to VAT Officer. After conclusion of investigation, consent/sanction Ex. PW-4/E was taken from the Director PFA and the complaint Ex. PW-4/F was filed in the court. Copy of PA report and intimation letter were sent to the accused through post. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that proper method was not adopted for taking the samples or that the shelf life of paneer was only one month after adding formalin, or that representative sample was not taken.

6. Statement of the accused under section 313 CrPC was recorded on 06.03.2017 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 30.05.2010, yet he claimed that no payment was made to him, that no formal proceedings were conducted in his presence and that his signatures were obtained on five to six papers. He disputed the CFL and PA reports and asserted that the paneer was as per standards. He chose not to lead evidence in defence.

7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 03.03.2011. 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 complaint was filed after seven months of lifting the sample and on this score, the right of the accused under section 13(2) PFA Act stood frustrated because paneer is a perishable item and by that time, it would have become unfit for consumption. It is also submitted that that sample proceedings were not proper as the knife or tray were not made clean and dry at the spot. Pointing out towards the variations in the PA and CFL reports, it is argued that the reports are not reliable which would show that the sample was not representative. It is finally contended that the laboratories in which the samples were analysed 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. The notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) specifically deals with situation where the quality or purity of the food article falls below the prescribed standards or its constituent are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.

11. The commodity in the present case is Chhenna/Paneer which is a milk product falling under Item No. A.11.02.05 of Appendix-B of PFA Rules. Minimum standards have been prescribed under the Rules for this food article. The case of the prosecution is based on PA and CFL reports which have opined violation of such minimum standards.

12. To begin with, the court does not find itself in agreement with the contention of Ld. Defence Counsel that the reports of PA and Director CFL cannot be relied upon as they have not been examined in the court. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC read with section 13(5) of PFA Act. As per section 13(5) of PFA Act, “Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code: Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.”

13. But that does not mean that such reports cannot be questioned on any point on which they are silent. If an accused wishes such reports 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. In such a case, if the accused was genuinely feeling aggrieved by mentioning or non-mentioning of any details, there is no reason why he did not opt to cross-examine the CFL analyst and ask him/her about anything on which the report is silent. The CFL (and even PA) maintains all the details of the tests conducted, calculations made, values derived and methods used 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 formats 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, and then to raise the issue at final hearing on something on which the final report may be silent. 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.”

14. The said issue was put at rest by the 5-Judge Constitution Bench of the Hon’ble Supreme Court of India long back, in the authoritative judgement titled as Mangaldas Raghavji Ruparel v. State of Maharashtra [(1965)2 SCR 894, AIR 1966 SC 128]. The following extract is worth noting [It may be noted that section 510 CrPC referred to in this judgement pertains to the CrPC of 1898 (as amended in 1955), a part of which is now Section 293 in the currently applicable CrPC of 1973]:

“As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case. Mr Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts. Mr Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is “I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows.” This would show that what was done under the supervision of the Public Analyst and that should be regarded as quite sufficient.

This provision clearly makes the report admissible in evidence. What value is to be attached to such report must necessarily be for the court of fact which has to consider it. Sub-section (2) of Section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under Section 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. Thiscertificate is not only made admissible in evidence under sub- section (5) but is given finality of the facts contained therein by the proviso to that sub-section. It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is to act on the certificate or not, as it thinks fit. …

Sub-section (1) of Section 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-section (2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-section (2) of Section 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may be we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst. Insofar as the report of the Public Analyst is concerned we have the provisions of Section 13 of the Act.”

15. In the case at hand, the defence is then seeking to claim that the samples were not representative due to ‘variations’ in PA and CFL reports. It is pointed out that as per PA report, the BR Reading was 43, moisture was 62.07% and the milk fat content was 46.94% (which should be not less than 50.0% as per Rules). As against this, as per CFL report, the BR Reading was 42.6, moisture was 59.17% and the milk fat content was 42.56% (which should be not less than 50.0% as per Rules).

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

17. In this regard, the defence relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], which has been constantly followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma[2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].

18. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219], which needs detailed discussion. It is necessary to understand the concept of reports of PA and CFL and variations therein.

19. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same (section 4 of the Indian Evidence Act).

20. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

21. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.”

22. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR1970 (1) Delhi 518], the full bench of Hon’ble High Court of Delhi observed that “According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13“. The Hon’ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a “greater expert whose certificate is to be accepted by court as conclusive evidence”.

23. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.

24. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath’s case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.

25. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that “It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act”.

26. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon’ble High Court of Gujarat while relying upon the decision of the Hon’ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of ‘variation’ and held that “Proviso to section 13(5) also indicates that what is stated in the later certificate issued by theDirector would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.”.

27. In the case of MCD v. Bishan Sarup [supra], the Hon’ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon’ble Court reversed the acquitted into conviction and observed as under:

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

(b) The consideration of time-lapse is relevant only for a limited purpose. “Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.”

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

(d) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

28. This judgment was also relied upon by the Hon’ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240], where it was observed that “It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director”.

29. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon’ble High Court of Delhi held that “It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded.” Similar was the observation of Hon’ble High Court in Municipal Corporation of Delhi v. Manohar Lal [1975 (1) FAC 182].

30. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be “unfit for analysis” in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter or evidence adduced by the prosecution and defence and not a matter or assumptions.

31. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in Bishan Sarup’s case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.

32. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be “substantial enough” to be considered in favour of the accused. The Actor Rules do not prescribe that there 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. If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be “substantial enough”, then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.

33. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.

34. In Kanshi Nath’s case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon’ble Court ruled in favour of the accused and acquitted him.

35. Thus, the point to be noted is, that the law laid down in Bishan Sarup’s case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath’s case, the accused was able to adduce evidence to the effect that ‘in ideal conditions’, the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon’ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup’s case, the Hon’ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.

36. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 55% and CFL to be 56%, 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 55%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. This position would not change even if there is huge delay in analysis by two experts. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative.

The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.

37. 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% on any parameter, whether incriminating or not. This would rather give precedence to the report of PA and not CFL.

38. As mentioned earlier, this judgment has been relied upon time and again by the Hon’ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].

39. At this stage, it is not out of place to mention that the Hon’ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath’s judgement, but at the same time, expressly ordered the question of law to be kept open.

40. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon’ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.

41. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar[2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon’ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.

42. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.

43. 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.

44. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report. In simple terms, the CFL detected what the PA failed to detect.

45. As far as moisture content is concerned, its variation would be immaterial because with passage of time, such changes would be natural as the effect of air, water, heat, internal and external atmosphere, pressure, environment, etc. cannot be ignored on this perishable article. The BR reading as determined by the CFL has to be given overriding effect and nullifying the earlier PA report on this count. Had the sample been failed only on account of moisture content by the CFL, the court might have assumed that the sample failed due to natural causes, but when it is not the position, variation in moisture content would not negate the confirming findings of PA and CFL on other parameters.

46. Now to ascertain if seven months time taken in filing the complaint would be fatal to the prosecution or not. Sample in this case was lifted on 30.05.2010 and it was analysed by PA from 10.06.2010 to 16.06.2010. PA gave report dated 24.06.2010. The complaint was filed on 02.02.2011. The accused claims that the “delay” in filing the complaint had frustrated his right under section 13(2) PFA Act.

47. The question is whether can the period of seven months be called as an unexplained delay so as to automatically frustrate his right, despite the fact that he had exercised his right and had sent the counterpart for analysis by the CFL? Ld. Defence Counsel strongly relies upon the testimony of Dr. B. D. Narang, a scientific expert, as given in the judgement of Chanan Lal v. State [1972 PFA Cases 292 (Delhi High Court)], on the basis of which the Hon’ble High Court observed that due to delay in filing the complaint, the sample of paneer was rendered unfit for analysis. This judgement was relied upon by the Hon’ble High Court in State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957].

48. It would be seen that in Chanan Lal’s case, when the accused had applied for sending the sample to CFL under section 13(2) PFA Act, it was reported by the CFL that sample had been decomposed and could not be analysed. In such a position, the Hon’ble Court examined one Sh. P. P. Bhatnagar, Public Analyst and the accused examined Dr. B. D. Narang, a chemical expert. Sh. Bhatnagar deposed that if formalin was added to paneer, the sample would remain fit for analysis for 8 months. But Dr. Narang deposed on the basis of his reasearch that a sample of panir would remain fit only for one month when formalin was added and was kept in refrigerator. The Hon’ble Court evaluated the testimonies of these witnesses and found that more weight was to be given to testimony of Dr. B. D. Narang. It was thus held “On the basis of the above-mentioned evidence, it is safe for me to assume that the sample of Panir to which requisite drops of formalin have been added and which is kept in a refrigerator would remain fit for analysis for about one month”. The Hon’ble High Court relied upon the precedent titled as MCD v. Ghisa Ram [AIR 1967 SC 970] and it was observed that ordinarily, it should have been possible for the prosecution to obtain the report of PA and institute the prosecution within 17 days of taking the sample. It was opined that after such prosecution, FI was required under Rule 9(j) of PFA Rules to send a copy of PA report to accused to enable him to exercise right under section 13(2) of PFA Act.

49. Well, a lot of issues are involved in the arguments advanced on this count. The defence wants the evidence of Dr. B. D. Narang as given in Chanan Lal’s case to be considered as it is, in this case as well as in all cases of paneer/chhenna. But I do not find it correct to do so. An expert deposes only as a witness and his testimony is subject to cross- examination by the opposite side. It would not be proper to say that evidence of one person given in one case would be applicable to all future cases even without his examination or cross-examination. There can be other experts in the same field who might have different opinions based on their own research, experience and experiments. It is a matter of evaluation of testimony of expert witnesses rather than blindly following the evidence of one expert given in one case. The court will have to weigh the evidence led in a case and ascertain which evidence is more credible. The evidence of Dr. B. D. Narang given in Chanan Lal’s case cannot be therefore accepted in all cases of paneer blindly.

50. It is to be noted that in case titled as MCD v. Shanti Prakash [1974 Cri.L.J. 1086], full bench of the Hon’ble High Court of Delhi while dealing in a different matter under PFA Act, made certain observations with respect to testimony of Dr. B. D. Narang (who also gave evidence in Chanan Lal’s case, which the defence wishes wants the court to rely straight away) as under:

“It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defence witness, without caring to scrutinize the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.

It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds.”

51. Thus, when his testimony is required to be scrutinised even when he is examined as a defence witness, this court has serious doubt that his testimony given in one case in 1971 can be blindly relied upon after forty five years without even his examination and without the opposite side getting any opportunity to cross examine him in view of the law as it stands today.

52. Even otherwise, the judgement in Chanan Lal’s case was passed in 1971 when the procedure under PFA Act was different as it exists today. The PFA Act was extensively amended in the year 1976 making far reaching charges in procedure. The view of the Hon’ble Court in that judgement that prosecution should be filed with 17 days of lifting the sample, is now impossible to achieve. Rule 9(j) on which the Hon’ble Court relied in 1971, was deleted in 1977 and instead, Rules 9-A an 9-B were added in 1995. As the law stands today, very detailed procedure has been prescribed.

53. 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 at least 4 days to analyse the sample (as 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. 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 17 days as per the judgement in Chanan Lal’s case. 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. The judgment in Chanan Lal’s case was passed on the basis of the evidence led therein and no rule of law was laid down as such that in every case to come up in future pertaining to a sample to paneer, delay of one month would have to result in acquittal. Thus, this case has to be decided as per the evidence led by the parties in this case.

54. If the interpretation as being given by the Ld. Defence Counsel is to be accepted, then no cognizance can be taken for any adulteration in the any sample of paneer/chhenna, the moment one month lapses from the date of lifting the sample, and if any such case come to the court, the accused would be entitled to be discharged or acquitted straight away without any further evidence whatsoever. Such an interpretation is not logical or probable. No such standard or time frame has been prescribed in the Rules framed under the PFA Act and it is therefore a subject matter of evidence led by the parties.

55. At this stage, it is also necessary to observe that in Chanan Lal’s case, the sample sent to CFL was reported to be decomposed and its contents leaking, rendering it unfit for analysis. Thus, the Hon’ble Court was not dealing with a situation where despite any delay, the CFL finds the sample to be fit for analysis (as in the present case), or those cases where the accused chooses not to send sample for analysis to CFL.

56. 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 the witnesses 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.

57. As mentioned above, in MCD v. Bishan Sarup [supra], 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 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 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.

58. Even in Chanan Lal’s case, the Director CFL had reported that the sample was decomposed and leaking. The judgement 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 the accused to get the sample analysed from CFL. 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. It is quite possible that even if some leverage is given to a product on account of some delay, the product continues to remain sub- standard. To get the benefit, the accused is required to establish that the product was as per standards on the date of taking the sample and the violation observed in the sample by the time it reached CFL was only on account of delay. He has to establish what was the rate of deposition so as to infer that the violation observed by CFL might not be there few months ago when the sample was taken. Thus, mere delay per se would not be fatal unless it is established to have cause prejudice to the accused.

59. In view of this proposition, the accused in this case cannot claim that his right under section 13(2) PFA stood frustrated when the complaint was filed after seven months of lifting the sample. He had exercised his right by moving application under section 13(2) PFA Act and it was only when the CFL report was also in conformity with the PA report that such a defence was raised. Such argument is liable to be rejected.

60. Ld. Defence Counsel has then claimed that the PA report is not reliable on the ground that there has been an unexplained delay of eight days in not signing the same. It is pointed out that the sample was analyzed from 10.06.2010 to 16.06.2010 by the PA but it was signed by him on 24.06.2010.

61. However, there is no merit in the said contention because the said ‘delay’ cannot termed as unexplained when no such explanation has been sought from any witness, particularly the PA. As already stated, if the accused had any genuine grievance or if he wanted to seek any explanation, he had the option to apply under section 293 CrPC and cross- examine the PA, but he never exercised the option. Such delay in signing the PA report could be due to any reason including leave, work-load, official exigencies and even time taken in discussions. But when the PA has not been cross-examined so as to explain any such delay, the said period cannot be termed as ‘unexplained’. In any case, the PA report has been superseded by the certificate of Director CFL and no such irregularity has been pointed out therein. Therefore, no benefit can be given to the accused on this count.

62. If at all it is to be held that the nature of paneer is such that there would be change in its constituents after short period upto one month and it is certain that no sample of paneer, in any circumstances, can be sent for analysis to the CFL under the scheme of PFA Act (as already discussed above), then in that case, the court will have to revert back to the report of PA only which is based on analysis conducted after short duration of lifting the sample. Where due to the nature of food article, it becomes impossible to comply with the statutory provisions, the court should then rely on the report of PA in such extraordinary circumstances when the right of an accused to get sample analysed by CFL cannot be given effect to due to statutory restrictions. In such condition, the leverage given in the judgement of Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] has to be applied, where the Apex Court held that no law was being laid down that every case where the right of the accused stood frustrated that 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. When the right of accused is impossible to be exercised, if such a view if taken due to nature of food article, then in such extraordinary situation, the PA report has to be considered. If there is nothing to disbelieve the PA report and no infirmity can be seen therein, the accused can be held guilty on its basis. Thus, in present case, if it is held that paneer was incapable of analysis by the time it reached CFL, then the court has to rely on the PA report which is also against the accused. The accused has not furnished any reason how the fat content was found to be less than the prescribed minimum limits, to the extent mentioned, even by the PA. Thus, even from this angle, the food article would be not conforming to the standards.

63. Moving ahead, Ld. Counsel argues that the proper method of taking sample was to grate/crush/mash the paneer, which was not done in the present case. Well, there is no such Rule prescribed anywhere. No such method has been shown to be documented in any recognized literature. Grating or crushing method may be one good method but is not the only method of lifting the sample. No fault is shown to exist in method adopted by food officials in this case. The purpose is only to evenly distribute formalin to preserve the sample. When the sample was fit for analysis, no fault can be attached to the method. Reliance can be placed on the judgement titled as State v. Shiv Shankar [2012 (1) FAC 212] where the Hon’ble High Court of Delhi had set aside the acquittal and remanded the matter for fresh consideration.

64. There is no force in the stand of the accused that the utensils / implements were contaminated as they were not cleaned and dried at the spot. It is to be noted that all the relevant witnesses have categorically deposed about use of clean and dry tray, knife, spoon and bottles and stated that they were not made clean and dry at the spot as they were already clean and dry. With such corroborative testimony given on oath in the court, coupled with the fact that there is no evidence to the contrary, there is no material to show that any utensil/implement was not clean and dry or was contaminated so as to reduce the milk fat content of paneer to such an extent. There is not even a single witness who could step into the witness box and face the test of cross examination to establish that the sample proceedings were not proper or that any surface to which the food article came into contact with, was contaminated. For that matter, it would be seen that not even a single suggestion was given to any PW during cross examination to the effect that the knife or spoon or tray or bottles were not clean and dry or were contaminated. No such stand was taken by the accused even in his statement under section 313 CrPC.

65. Next, Ld. Defence Counsel has also questioned the sample proceedings on the ground that 750 gm of paneer was taken from one brick only and not from all the bricks lying at the spot. It is contended that the entire commodity available at the spot was required to be homogenize together and then sample taken and divided in three counterparts.

66. In the regard, suffice it would be to say that the FI was required to take the sample in the manner which was being ‘sold’ by the vendor (such ‘sale’ should be viewed as per the definition under section 2(xiii) of PFA Act). He was required to homogenize the entire sampled quantity of 750 gms and not the entire commodity available at the spot. Therefore, if 10000 kg paneer is lying in a factory, the FI is not required to mix or homogenize the entire quantity of 10000 kg and then to take out a sample of 750 grms. Since the vendor used to sell the food article by taking out the required quantity from one brick, the FI cannot be said to have committed an irregularity by taking the sample in the manner done. In the present case, there is nothing to show that the paneer was otherwise as per the standards which failed only on the account of alleged improper or irregular sample mythology. This defence is also without merit.

67. The accused has not taken defence that the Paneer in this case was not for sale so as to take it out of purview of PFA Act. He has not claimed any benefit of warranty under section 19(2) of PFA Act by asserting that he had purchased the same from some other supplier. As per the definition of “sale” under section 2(xiii) PFA Act, it includes sale of any article of food for analysis, exposed for sale, attempt to sell, agreement to sell, and having in possession for sale of any such article.

68. 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.

69. The witnesses have corroborated each other on material particulars. All deposed about use of clean and dry implements/tray/knife/bottles, preparation of documents at the spot, payment of price to the accused, mixing the food article properly, There is nothing in their cross- examination which can be termed as major contradiction so as to go to the root of the matter and to negate their depositions given on oath in the court.

70. The judgements relied upon by the accused, that is, State v. Deepak Bansal [Crl. Appeal no. 197/2006, Delhi High Court, dated 25.03.2014], State v. Ramesh Chand [2010 (2) JCC 1250], State v. Satish Kumar [2012(4) JCC 2688], State v. Vinod Kumar Gupta [2010(2) JCC 957] were apparently against acquittals in which the standard of evaluation is different from that against conviction. Similarly, in the judgement titled as Delhi Administration v. Suraj [2014(1) FAC 264], the Hon’ble High Court had dismissed the petition after observing that it was keeping in view the principles applicable to appeal against acquittal. This judgement is also different on facts as there was no evidence to show that knife used was clean and dry. In the case at hand, there is positive evidence in the form of testimonies of PWs on oath to show that utensils, knife, tray and bottles were all clean and dry. Ld. Counsel has failed to explain what other evidence could have been there in addition to corroborative evidence given on oath by the PWs to establish that the utensils/implements/bottles were clean and dry.

71. Lastly, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 02.02.2011 on the basis of the Public Analyst’s report dated 24.06.2010. 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 thus argued that any analysis done 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 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.

72. To this, Ld. SPP has pointed out that the methods of analysis to be adopted had already been specified with effect from 25.03.2008 (prior to the day of sampling) after clause 9 was inserted in Rule 4.

73. Even otherwise, 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.

74. As far as analysis by the PA and launching of the prosecution on his 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. Hence on the day of giving report of analysis of the sample, that is, 24.06.2010, he was a duly / validly appointed Public Analyst. Even his report also mentions that he has been duly appointed and this fact was never disputed at the time of trial. In any case, methods of analysis to be adopted have already been specified with effect from 25.03.2008, which fact has not been disputed by Ld. Defence Counsel.

75. 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 analysed 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 and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.

76. 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.”

77. 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.

78. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyse the sample and use the method he deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by him was not a sure or reliable test, particularly when he 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.

79. 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.”

80. 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 analyse 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 standards to be maintained in case of milk products. In this case, prosecution is for violation of section 2(ia)(a) and (m) of the Act. The present case would be covered by the judgement of the Hon’ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico’s case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter and not with pesticides in carbonated water. But when the present case is also with respect to non-compliance of prescribed standards and not pesticides in carbonated water, the ruling in Pepsico’s case would not help the accused.

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

82. Having said so, it is clear that the paneer lying in possession of accused meant for sale for human consumption was adulterated within the meaning of section 2(ia)(a) and (m) of PFA Act. It has been established on record that the paneer was not of the nature, substance or quality which it purported to be as per section 2(ia)(a). It is also established that quality or purity of paneer was below the prescribed standard as per Item A.11.02.05 of Appendix-B of PFA Rules, as per section 2(ia)(m) of PFA Act.

83. 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) and

(m) of PFA Act, and has committed the offence punishable under section 7/16(1)(a) of PFA Act.

84. Thus, the accused is held guilty and convicted for the offence punishable under section 16(1)(a) of the PFA Act. Let the matter be listed for arguments on sentence.

Announced in the open court this 29th day of April 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL0355

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