PFA – Delhi Court – Food Inspector Vs Khurana Bros – Adulterated and Misbranded Mustard – June -26-2017

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

CC No. 90/06
Unique Case ID No. 02403R0175422006

Date of Institution:           24.03.2006
Date of reserving judgement:   29.05.2017
Date of pronouncement:         27.06.2017

In re:

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

               versus

A-1) Sh. Vikas Khurana
S/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005

A-2) Sh. Chandan Khurana
S/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005

A-3) Smt. Neelam Khurana
W/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005




CC No. 90/06                                               Page 1 of 67
 A-4) M/s. Khurana Departmental Store
432, Bhera Enclave, Paschim Vihar,
New Delhi-110063                             ...      Accused Persons


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 persons have violated the provisions of the PFA Act and Rules. The accused no.1 Vikas Khurana is stated to be the vendor-cum-partner of accused no.4 Firm M/s. Khurana Departmental Store, from where the food article, that is, ‘Rai Whole’ was lifted for sampling. Accused no.2 Chandan Khurana and accused no.3 Neelam Khurana are stated to be the other two partners of accused no.4 Firm stated to be in-charge of and responsible to it for its affairs.

2. As per the complaint, on 30.08.2005, the food officials consisting of Food Inspector (FI) Hukum Singh and Field Assistant (FA) Om Prakash under the supervision of Local Health Authority (LHA) / SDM Sh. B. M. Jain reached along with their staff at the premises of accused no.4 Firm at 432, Bhera Enclave, Paschim Vihar, New Delhi-63, where the accused no.1 was found conducting the business of various food articles, which were lying stored / exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Rai Whole from the vendor lying in sealed packets of 100 grams each bearing same label declarations. A sample of nine such sealed packets of the same lot 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 vide vendor’s receipt. 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 30.09.2005, the PA found the sample to be adulterated on the ground that it was coloured with unpermitted oil soluble colouring matter and it was also found to be misbranded being in violation of Rule 32(a), (d), (e) and Rule 42(zzz)(17). Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was found that accused no.4 was a partnership firm of which accused no.1, 2 and 3 were its partners. 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 24.03.2006 alleging violation of section 2(ia)(a), (b), (j) and

(m) of PFA Act as well as Section 2(ix)(k) of PFA Act read with Rule 32 and 42 of PFA Rules, as punishable under 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 persons were summoned vide order dated 24.03.2006. The accused persons appeared and filed an application under section 13(2) of PFA Act thereby exercising the 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 29.05.2006, opining the sample to be not conforming to the standards of Rai (Mustard) Whole as per PFA Rules due to presence of synthetic Red oil soluble colour and also misbranded being in contravention of Rule 32(a) and (e) as well as Rule 42(zzz)(17) of PFA Rules.

4. On the basis of CFL report, pre-charge evidence was recorded, wherein the complainant examined PW-1 FI Hukum Singh and PW-2 FI Arun Kumar Gupta. On the basis of their depositions, charges were framed against all the accused persons on 12.11.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation ofsection 2(ia)(a), (b), (j) and (m) read with Rules 23, 28 and 29 of PFA Rules, as well as section 2(ix)(k) of PFA Act read with Rules 32(a), (d) and (e) as well as Rule 42(zzz)(17) of PFA Rules, to which they pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross-examination in post- charge stage and additionally, the prosecution examined PW-3 Sh. B.M. Jain (SDM/LHA), PW-4 FI O. P. S. Ahlawat and PW-5 FA Om Prakash in post-charge stage.

5. PW-1 was the FI, PW-3 was the SDM/LHA and PW-5 was the FA, who were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 30.08.2005 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 nine sealed packets of 100 gms each of Rai Whole bearing identical label declaration, dividing it in three parts by putting three sealed packets as one counterpart, sealing 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 vide which price of sample was paid to the vendor, 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 Ex. PW-1/G was received and upon direction of the SDM/LHA, investigation was carried out by PW-4. During investigation, letter Ex. PW-4/A was sent to VATO to ascertain the constitution of accused no.4 and its reply was taken. PW-4 collected the partnership deed Ex. PW-4/B from the vendor upon which he again sent letter Ex. PW-4/C to VATO and received its reply. Thereafter, sanction Ex. PW-2/A was taken from the Director PFA and the complaint Ex. PW-2/B was filed in the court by PW-2 being in-charge of the Sub Division. Copy of PA report and intimation letter Ex. PW-2/C were sent to the accused persons vide postal receipts Ex. PW-2/D.

6. These witnesses were duly cross-examined by the Ld. Defence Counsel. PW-1 accepted that Rai Whole contained different natural colours such as Red and Yellow but could not tell if it was due to presence of inherent colour cartinonts. He denied that the colour found in the sample was natural colour of Rai Whole and not added colour. He also accepted that at that time there was a policy of the department to issue warning for first violation of Rule 32 only. PW-2 denied that the complaint was filed in routine manner. PW-3 deposed that the label was reproduced by the FI on Form VI and stated that the vendor had informed that the sample packets were of Rai Whole and of same lot. He stated that the packets were transparent and its contents could be seeing. He denied that the endorsement on Form VI was made by the accused at the instance of the FI or that the sample was taken in contravention of Rule 22A. PW-4 accepted that only the names of partners had been given in reply to his letter and it was not mentioned as to who was the partner in-charge of and responsible for the business of the firm. PW-5 stated that the labels of the packets were identical which were reproduced by the FI on Form VI. He denied that identical packets were not taken as sample.

7. Statements of the accused persons under section 313 CrPC were recorded on 13.12.2014 wherein they denied the allegations and pleaded innocence. Though accused no.1 (also representing accused no.4 Firm) admitted the proceedings dated 30.08.2005, yet he claimed that no efforts were made to join public witnesses, no payment was made to him, the proceedings were conducted in official vehicle and not in his presence, his signatures were obtained after the proceedings, he signed the documents upon directions of the FI. Accused no.2 and 3 expressed ignorance about the sample proceedings as they were not present at the spot. They denied their liability on the ground that they were not working partners and were not looking after its business. The accused persons claimed that there was no adulteration or misbranding. They asserted that the colour detected in the CFL report was its natural colour. They took stand that the firm had purchased the food article of very good variety from the market and after packing the same, it had stored for sale in the shop. They chose to lead evidence in defence.

8. The accused persons summoned one Sh. S. N. Mahendru and examined him as DW-1 as the only witness. He was a Food Chemical Expert and author of several books on Food Quality and Laws. Upon going through the PA and CFL reports, he stated that the reports did not show but variety of Rai was analysed. He stated that Rai contains natural colour which is oil soluble. According to him, the analyst must identify and mention the colour found in his report. He stated that added synthetic colours can be identified through proper testing methods like TLC method and subsequent comparison with the RF value. He opined that the CFL report does not show the chemical name of the Red colour found and thus, it could not be ascertain if it was synthetic or natural colour. During cross- examination, he accepted that the analyst gives specific report as to if the colour is natural or added. He accepted that DGHS method was used by the CFL in the present case, though claimed it to be incomplete. He accepted that the Direct, CFL is expert in his field and his opinion is based on established principles and methods.

9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against all the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the CFL report dated 29.05.2006. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

10. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended that no percentage or extent of colour 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 Rai has its own natural colour which is also oil soluble in nature, as deposed by DW-1. It is submitted that since the sealed packets were not bearing the name of commodity or any batch number, there was nothing to show that they were of the same lot. It is submitted that there was violation of Rule 22-A of PFA Rules and the FI was required to open the sealed packets, transfer the contents to a single container, mixing all the contents together to homogenize the same and then to divide the same in three parts. It is then submitted that the PA had adopted chromatography method to determine food colour. Ld. Counsel has relied upon the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] to argue that paper chromatography test used for detecting unpermitted food colours is not a reliable test. It is pointed out that the CFL has also not mentioned the exact method of DGHS manual used by it and in the absence of any such details of the test, the report of CFL becomes unreliable. It is further submitted that the PA and CFL reports are at variance with respect to the extraneous matter and also the fact that the shade of the colour was not identified by the PA but the CFL identified it to be of Red colour. It is also argued that the accused persons were not the manufacturers of the article but were only retailers who had purchased the commodity from another seller, for which they should not be held liable. It is then submitted that no role has been attributed to accused no.2 and 3, and they cannot be held liable just because they were the partners of the accused no.4 Firm. 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. On misbranding, reliance has been placed on a policy of the department existing at that time which required only a warning to be issued to first time violators of Rule 32 of PFA Rules, as recognized in the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132].

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

12. It is to be understood that the charges framed against the accused persons are for violation of section 2(ia)(a), (b), (j) and (m) of the PFA Act read with Rules 23, 28 and 29 of PFA Rules with respect to ‘adulteration’ and for violation of section 2(ix)(k) read with Rule 32(a), (d) and (e) as well as Rules 42(zzz)(17) of PFA Rules with respect to ‘misbranding’. This is important to note because the ingredients of these offences are different and distinct.

13. 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)(b)applies when the article contains any other substance which injuriously affects its nature, substance or quality. 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. Rule 23 of PFA Rules prohibits the addition of colouring matter to any article of food except as specifically permitted by the rules. Rule 28 of PFA Rules enumerates the synthetic food colours which can be used in food articles and Rule 29 provides the food articles in which such permitted food colours can be used. Rule 30 provides for the maximum limits upto which the permitted food colours can be used in permitted food articles. On the other hand, Section 2(ix)(k) provides that an article of food shall be deemed to be misbranded if it is not labelled in accordance with the requirements of the Act or Rules made thereunder. Rule 32 and 42 applies to the packaging and labelling of foods. Rule 32(a), which existed at the relevant time (before it was amended in 2006 vide G.S.R.491(E) dated 21.08.2006 w.e.f 20.02.2008) required that the name, trade name or description of food contained in the packet should be mentioned on the label). Rule 32(d) provides the net weight or number or measure or volume of contents to be declared on the label. Rule 32(e) requires a batch number or code number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, to be given on the label. Rule 42(zzz)(17) provides that every package of vegetarian symbol in green colour on the principal display panel just close in proximity to the name or brand name of the food.

14. The commodity in the present case is Rai Whole (mustard whole) which falls in the category of Spices and Condiments and has to be tested as per the standards prescribed for the same. This commodity falls under Item No. A.05.15 of Appendix-B of PFA Rules, under which both the PA and CFL have analysed the article. Minimum standards have been prescribed under the Rules for this food article.

15. To begin with, it is important to understand that the 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.”

16. 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.

17. 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 theaforementioned 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. This certificate 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.”

18. Thus, the above provisions do 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.

19. 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 persons were genuinely feeling aggrieved by mentioning or non-mentioning of any details in the reports, there was no reason why they did not opt to cross- examine the CFL analyst and ask him/her about anything on which the report was 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 persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them, 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.”

20. In the case at hand, 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, extraneous organic matter was 0.068%, extraneous inorganic matter was 0.081% and the colour found was stated to be oil soluble without any further identification. As against this, as per CFL report, extraneous organic matter was found to be Nil, extraneous inorganic matter was found to be 1.26% and the colour found was stated to be synthetic red oil soluble colour. It is specifically pointed out that PA report did not specify or identify which colour was present and even the CFL did not ascertain the chemical name or identity of such colour. Ld. Defence Counsel has also questioned the CFL report where the word ‘synthetic’ had been added by hand before the typed words ‘red oil soluble colour detected’, arguing that the same was an afterthought sufficient to create doubt as to its veracity.

21. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is ‘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 persons.

22. 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].

23. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, the position is not as simple as it appears. It is necessary to understand the concept of reports of PA and CFL and variations therein.

24. 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.

25. 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.

26. 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.”

27. 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 [ILR 1970 (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”.

28. 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.

29. 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.

30. 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”.

31. 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 the Director 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.”.

32. 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.

33. 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”.

34. 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].

35. 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.

36. 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.

37. 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 Act or 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 (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.

38. 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.

39. 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.

40. 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.

41. 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 (or any other prohibited substance) 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, or detects a specific kind of poison, or fails to identify the said poison, and CFL detects such poison, or detects an additional poison, or is able to identify the said 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.

42. 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. Again, if there is variation in content of any permitted ingredient which has been added in excess of prescribed maximum limits, then merely because there is variation in two reports, that would not lead to inference that the samples were not representative. It would be for the accused to establish what would be the variation that can be called as substantive enough to give benefit to him and further that such variation was a result of sample being not representative. 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 or would render the food article as free from adulteration. 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 persons 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, which is against the scheme of the Act.

43. 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]].

44. 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.

45. 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.

46. 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.

47. 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%.

48. 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.

49. 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.

50. In any case, as far as the extraneous colour is concerned, there is no variation whatsoever in the two reports. There is no reason for the court to doubt the findings of the CFL certificate, which confirms the PA reports with respect to the incriminating ingredient. The PA detected ‘oil soluble colour’ when the chromatography method gave positive result with respect to ‘added colouring matter’. There is specific opinion of the PA that the sample was adulterated because it was coloured with ‘unpermitted oil soluble synthetic colouring matter’. The words ‘added’, ‘unpermitted’ and ‘synthetic’ would clarify that it was not a natural colour, as claimed by the defence. Similarly, the CFL also detected ‘synthetic red oil soluble colour’. It confirms the PA report with respect to the ‘synthetic’ and ‘oil soluble’ colour, though it also noted the red shade of such colour. Merely noting down the shade of the colour by the CFL which the PA did not note, would not nullify the CFL report by terming it to be at variance with the PA report. Similarly, addition of the word ‘synthetic’ by the Director CFL by hand would not create any doubt by calling it as an ‘afterthought’, as the said addition was duly initialled by him at the time of preparation of report itself. It is not that some manipulation or unauthorized addition / modification was done by some mischievous person subsequent to preparation of the report. Had it been only a case of natural colour, there was no occasion for the PA and the CFL to have failed the sample on this ground.

51. The present case pertains to Rai Whole which falls in item no. A.05.15 of Appendix-B of PFA Rules, which categorically specifies that “the product shall be free from … added colouring matter”. As already noted, Rule 29 deals with the food articles in which synthetic food colours can be added. Rai Whole is not a food article falling under Rule 29 wherein the food articles in which the synthetic colours as listed in Rule 28 are permitted to be added. Hence, no colour could be added to Rai Whole and use of any such synthetic colour is absolutely prohibited. The obvious inference is that use of such synthetic food colour is totally prohibited for use in Rai whole, though use of some prescribed colours is permitted in specified food articles within the prescribed limits. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] which pertains to food grains and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] which are squarely applicable to this case as well.

52. Further, the incriminating ingredient in this case is artificial synthetic oil soluble colour, the chemical name or identity of which was not or could not be detected by the analysts. But it may be understood that the CFL report and the opinion of Director CFL cannot be nullified on the ground that the chemical name or identity of extraneously added oil soluble synthetic colour was not mentioned. Not all the colours available in the world may be chemically identifiable or their exact nature could be identified with available means / tests / apparatus. It is not known if the red synthetic colour as detected by the CFL in the present case was identifiable or identified or not. When the accused persons have chosen not to exercise their right to apply under section 293 CrPC and cross examine the Director CFL, they cannot claim that the report is incomplete being silent in some aspect. The court cannot hypothetically conclude that there was no synthetic colour in the food article on the ground that the Director CFL did not identify or could not identify or did not mention its chemical name. As already noted, the report on record is only a final report given as per the format prescribed under the PFA Rules. The other details of analysis, including the exact method used, the values derived, calculations made and possibly the identity of colour as well, would have been a part of the record maintained separately by the CFL office but no attempt was made by the defence to summon such record or to seek clarifications or explanations from the Director CFL on any point on which the report is silent, despite his being the best witness to do so. The fact remains that even if the colour has not been chemically identified, it was still found to be synthetic, oil soluble and extraneously added colour which was prohibited under the PFA Rules. Absence of chemical name of the colour in the final report would not render the food article unadulterated or free from such colour. Therefore, the opinion of DW-1 that the report is incomplete, would also not affect the report for the purposes of determining if the food article was adulterated or not, being in violation of the PFA Act and Rules. The specific opinion of the CFL, being the competent authority recognized by the State, would negate the defence version that the said colour was natural.

53. 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 Rai Whole. 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 this food article. In any case, it would be for the accused persons to show as to on what basis they claim presence of such colouring matter in traces in food article in question. The burden would upon be them to show how even traces of colour could have entered the food article being sold by them. But no evidence has been led by the accused persons to establish this fact and their stand throughout trial has been that no such colour was there and the colour detected by the analysts was only the natural colour.

54. The further question is if the so called variations in the two reports were a result of the sample being not representative. For that, it is first to be seen if the sample was required to be representative. In my considered view, once such incriminating ingredient is found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to the quantity present. Thus, even if the samples were not homogenized properly or were not homogenized at all (homogenization was not done in the present case as the sealed packets were lifted as such without opening the seal), that would not make any difference as even its smallest quantity of incriminating substance would be violative of the provisions. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused persons at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused persons never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused persons have to take, the burden would be upon them to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused persons are required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve their purpose.

55. There is nothing to show that the variations as pointed out by the Ld. Defence Counsel is the result of sample being not representative. The certificate of Director CFL is final and conclusive which cannot be disregarded or disbelieved on mere assumptions. There is no evidence on record to show that variations in two reports are a natural consequence of time gap or something which was beyond the control of the accused persons. There is nothing to show that time gap between the two reports, being called as ‘delay’ has caused any prejudice to the accused persons, as the sample did not decompose in the meanwhile and was not rendered unfit for analysis by the CFL but was duly analysed by it. Even otherwise, the nature of synthetic colours is such that there is no change in its nature or content despite lapse of long period. Synthetic colours if present would not vanish with the passage of time and such colours if absent would not develop with the passage of time. Therefore, no benefit can be given to the accused persons on this count.

56. There is nothing for the court to disbelieve the said report wherein synthetic oil soluble colour 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 and by claiming that it was natural colour that was detected. It is not the defence of the accused persons that no colour was detected, or was detected wrongly, or was added by the food officials at the time of sampling or subsequently. In this case, no stand has been taken by the accused persons at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused persons in their statements under section 313 CrPC or even in defence evidence.

57. At this atage, the defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused persons in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no rule prescribed anywhere that the sealed packets of rai whole to have been first opened, then transferred to another container, then mixed together and homogenized, and then divided into three parts, as contended by the accused. Rule 22 only provides the quantity of sample of food to be sent to public analyst. As per Item 18 in Table therein, quantity of 200 gms of Spices and Condiments (whole) are to be sent to analyst. Thus, the FI was required to lift 600 grms of rai whole as per Rule 22 if lying open. This Rule only provides the minimum quantity of food article that would be required to be sent to the analyst for analysis. There is no bar in sending quantity in excess to these prescribed values and if any excess quantity is lifted, that would not make sampling proceedings bad in law. As per Rule 22-B, notwithstanding Rule 22, the quantity of sample lifted would be considered ‘sufficient’ unless the analyst reports to the contrary. This rule therefore deals with sufficiency of sample and nothing more.

58. Rule 22-A on which the defence is strongly relying, has to read only in such perspective. It mere prescribes that where food is sold or stored in sealed container having identical label declaration, the contents of one or more such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated as part of the sample. It nowhere deals with opening the sealed packets or homogenizing them as being contended. For instance, if rai was in sealed packets of 100 gm each, one counterpart would consist of 2 such packets. As per Note to Rule 22 (as inserted in 2005), food sold in packaged condition (sealed container or package) shall be sent for analysis in its original condition, without opening the package as far as practicable, to constitute approximate quantity along with original label. Thus, even by this provision, the FI was required not to open the seals of the packets. This rule is applicable not only to sealed containers but also to other packages as in the present case. There is no requirement that such packets had to be compulsorily opened and mixed. Rather it was a better method to take the sealed samples as counterparts even in the absence of the Note to Rule 22, as it would rule out the possibility of contamination of the sample during the sample proceedings.

59. 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 notso 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.

60. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk contains deadly poison which is a prohibited substance, then any minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.

61. In this perspective, if the sample of Rai whole was failing on account of ash content, moisture, damaged seeds, etc, then homogenization would have been required and failure to do so moght have given some benefit to the accused persons. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in this product, then any homogenization would be immaterial. Even if homogenized in the best possible manner, such colour would still be there, though evenly distributed, which would be an offence in any case. Thus, there is no merit in the contention that the packets were to be first opened and then mixed before taking the sample, as any such method would have given no benefit to the accused persons.

62. Ld. Defence Counsel then submits that if colour was detected using paper chromatography method by the CFL, then that method is not a sure test. It is pointed out that even the PA used this method, which he asserts to be not reliable, thus arguing that the prosecution was bad in law.

63. Well, the court does not find merit in the said submissions. As already discussed, the accused has an option available to him to apply to the court under section 293 CrPC and cross-examine the analyst and if despite such option being available, he 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 CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him about the exact method used by him to detect synthetic colour, if they were genuinely feeling aggrieved by his failure to name the exact testing method. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them. The CFL would have been the best witness, having analysed the sample and given opinion, as to the name, nature, intricacies, validity, authenticity, reliability etc. of the testing methods applied by him. It is not that the paper chromatography method, even if applied by the CFL (though there is no evidence to this effect), is an invalid test.

64. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused persons. 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, and is also recognised by the DGHS in its Manual. Even the DW-1 examined by the defence never deposed to the effect that the paper chromatography test is not a sure test.

65. 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 otherwise clearly distinguishable on facts of this case. These judgements would apply only to those cases where some synthetic food colour is permitted to be used in a food article (like sweets andconfectionery as covered in Rule 29 of PFA Rules) and the court has to determine if the synthetic colour found in the sample was permitted (as per Rule 28) or unpermitted (the ones not covered by Rule 28). 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.

66. It is then contended by the Ld. Counsel that the nine packets lifted by the food officials were not of the same lot. Well, there is no evidence to this effect. When there was no label declaration on the sealed packets showing the batch number or lot number, as never even denied by the defence, then there was no occasion for the food officials to have guessed that they were of the same lot or not, except to seek the response of the accused vendor. In this regard, the accused no. 1 gave in writing to the food officials by making endorsement on Form-VI Ex. PW-1/B under his signatures, categorically stating that said packets were of the same lot. This declaration by the accused no. 1 in response to the notice in Form-VI has not been rebutted, disputed or retracted, except vaguely claiming that it was made at the instance of the FI. It is nowhere the case of the accused no.1 at the trial and during the cross examination of PW-1, PW-3 or PW-5 that he was forced or pressurized or threatened to make such endorsement. Such stand has not been proved by leading any defence evidence to this effect. No complaint was lodged against any food official in any forum whatsoever, at any stage. Thus, such a claim has no basis.

67. Moving ahead, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 24.03.2006 on the basis of the PA report dated 30.09.2005. 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 persons 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.

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

69. 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 PA in terms of section 811 and 13 of the Act. The PA is appointed by the Central or State government by way of notification in the official gazette. Unless the report of PA is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, that is, 30.09.2005, 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.

70. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers 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 and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.

71. 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.”

72. 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.

73. 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 293 CrPC 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.

74. 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.”

75. 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. It is clear that the food article in question was ‘adulterated’ due to presence of extraneous synthetic oil soluble colour.

76. Now moving on to the offence of ‘misbranding’. It is seen that both the PA and CFL opined about violation of Rules 32(a), 32(e) and 42(zzz) (17) of PFA Rules. The PA had also opined violation of Rule 32(d) which was negated by the CFL report, and correctly so, because the net weight of the food article was duly mentioned on the label, as can be seen from the label declarations reproduced by the FI on Form-VI Ex. PW-1/B.

77. Rules 32 and 42 come under Part-VII of PFA Rules under the heading “Packaging and Labelling of Foods”. It requires “every package” of food to carry a label as provided in Rules and to contain details as mentioned in the Rules. Section 2(ix)(k) makes failure to label such food product an act of misbranding which is an offence punishable under section 16(ia)(a) of the PFA Act.

78. Section 2(x) of PFA Act defines “package” to mean a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper, or other thing in which an article of food is placed or packed. Even a wrapper or ‘other thing’ in which article of food is placed is covered in the definition. Thus, a plastic packet duly sealed by the accused persons would be squarely covered in the definition of “package”. It was used to pack Rai Whole and duly sealed to determine its value.

79. It also qualifies to be called a “prepacked commodity” as per the Explanation VII to Rule 32 (at it existed at the relevant time), being a commodity of food, with or without the purchaser being present, having been placed in a package of ‘whatever nature’ so that the quantity of commodity therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification. Even after amendment, Rule 2(t) defines prepackaged food to be packaged or made up in advance in a container, ready for offer to the consumer. In the case at hand, the polythene packets were duly sealed and were of predetermined value of 100 gm weight which could not have been altered without tearing/cutting of the seal. Individual price of the food article was mentioned on each packet. Thus, such labelling and packaging rules are applicable to such product. It is not even the stand of the accused persons that the packets in question would not come under the purview of Rule 32 or 42 of PFA Rules.

80. Apparently, the accused persons have never denied that the packets being sold by them were not having the label declaration showing the name of the food article (as per Rule 32(a) which existed at that time, and which is now covered by Rule 32(b)(1)) or batch number / lot number / code number (as per Rule 32(e)) or the vegetarian symbol (as per Rule 42(zzz)(17)). It is nowhere the stand of the accused persons that such declarations were in fact there on the label which were not reproduced by the FI on Form VI. No such stand was taken at the trial nor any attempt was made to call for the sample counterparts from the office of LHA to be seen by the court in case the label declarations were disputed.

81. At this stage, though not raised by the defence, the court deems it necessary to also go into the question of validity of Rule 32(e) which is generally raised in such cases, by relying upon the judgement titled as Dwarka Nath v. MCD [1972 FAC 1 (SC)], where the Hon’ble Supreme Court of India struck down the said provision being beyond the rule making power under section 23(1) of the PFA Act.

82. In the said judgement, the decisive factors as observed by the Hon’ble Court can be noticed as under:

(a) There was no definition of the expression “batch number” or “code number” in the Act or in the Rules. No affidavit had been filed on behalf of respondent to show whether any technical meaning in the trade was given to these expressions and the matter was based only on the evidence of the Food Inspector.

(b) No notification issued by the Central Government had been brought to the notice of the Hon’ble court with respect to the food article in question showing the applicability of Section 23(1)(c) of PFA Act.

(c) As per Rule 32(e) [as it is existed at that time (the said judgement was passed on 23.04.1971)], “batch number or code number”, had to be mentioned in Hindi or English or numericals or alphabets or in combination, on every label.

83. In view of this factual position, the Hon’ble Supreme Court held that:

(a) There was nothing in clauses (c), (f) and (g) of section 23(1) of PFA Act which would give power to the Central Government to frame rules requiring the batch number or code number to be given on the labels, particularly there was no notification brought to the notice of the Hon’ble Court under clause (c).

(b) Clause (d) of section 23(1) would also not be applicable as there was no rational or remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.

(c) As there is no definition of the expression “batch number” or “code number” either in the Act or the Rules, and it was admitted that even where batch or code number was to be given, there was no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food had to be utilised, used or consumed, merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. Hence, Rule 32(e) was held to be beyond the rule-making power even under section 25(1)(d) of the Act.

84. Relying upon the said judgement of Dwarka Nath v. MCD, Hon‘ble High Court of Delhi has also upheld the acquittal of an accused in Criminal LP no. 17/2009 filed against the judgement dated 24.01.2009 of the Ld. ASJ-01 (South), Patiala House Courts, New Delhi in Criminal Appeal no. 34/08. Against the said judgement of the Hon’ble High Court of Delhi, the State went in appeal before the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/11] and vide order dated 27.08.2015, the Hon’ble Supreme Court reiterated that since Rule 32(e) of PFA Act had already been declared ultra vires of the constitution, no case could lie in the matter.

85. A careful study of the position would however, negate the said defence. It is to be noted that there has been a lot of difference in the language of Rule 32(e) as it existed at the time when the judgement of Dwarka Nath v. MCD was passed and that as it existed on the day when the sample was lifted and as it existed till the PFA Act was repealed and substituted by new Food Safety and Standards Act, 2006.

86. It is to be noted that after 1971, when the judgement of Dwarka Nath v. MCD was passed holding Rule 32(e) as ultra vires of the Constitution, the said rule was amended. This Rule 32 was last amended in 2006 and clauses (d), (e), (f), (g) and (h) of Rule 32 were substituted by G.S.R. 491(E) dated 21.08.2006 (w.e.f 20.02.2008) as corrected by G.S.R. 518(E) dated 31.07.2007.

87. At the time of Dwarka Nath v. MCD judgement, Rule 32(e) read as: “a batch number or code number either in Hindi or English numericals or alphabets or in combination”.

88. Rule 32(e) as it is existed prior to the G.S.R. 491(E) read as: “a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words “Batch No.”, or “Batch, or Lot No.”, or “Lot” or any distinguishing prefix.”

89. Rule 32(e) as it stood on the day of sampling in the present case read as: “Lot/Code/Batch Identification- A Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label”.

90. An apparent distinction, which can be seen in the language of Rule 32(e) as it existed earlier and its existed at the time of sampling, is that the purpose of giving batch number / code number / lot number has been specified, that is to identify the food article by any identification mark so as to enable it to be traced in the manufacturing and distribution process. Such meaning / purpose was earlier missing from the language of Rule 32(e).

91. Therefore, in view of the present language of Rule 32(e), it cannot be said that there is no definition of these expressions in the Act or in the Rules so as to reveal their purpose, as observed by the Hon’ble Supreme Court of India in Dwarka Nath v. MCD decided in 1971. The purpose of mentioning such batch number / code number/ lot number has now been made clear by the legislature.

92. It cannot be said now that a purchaser would not have any concern with the batch number or code number or lot number on the label artificially given by the manufacturer / packer. It is to be understood that if such a separate number is given to various lots of products prepared, it would be possible to trace the manufacturer/supplier/dealer and to fix their liability for selling adulterated or misbranded food. Under PFA Act, not only the seller but distributors / supplier and manufacturers are also liable for prosecution. Therefore, unless it is established that any particular product lifted from the vendor was purchased from a particular supplier/ distributor, it shall not be possible to apprehend any such person and fix his responsibility. In the absence of any such mark of identification, it would be very easy for any distributor/supplier to deny/disown the lifted incriminating food product to be the one sold by him through a particular invoice.

93. At this stage, it is also to be seen that the Hon’ble Supreme Court of India had held Rule 32(e) as it existed at that time, ultra vires. Thus, upon passing of the said judgement, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language at its exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. There is force in the stand of Ld. SPP for the complainant that Rule 32(e) which had been declared ultra vires, has now been completely changed and the modified Rule 32(e) as it existed when the sample was lifted has never been declared unconstitutional by any court of law. The said provision inserted / substituted by G.S.R. 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.

94. In view of this position, judgement in Dwarka Nath v. MCD would not help the accused persons. For that matter, even the order dated 27.08.2015 passed by the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/2011] would not be applicable, because that order also pertained to a sample lifted on 23.08.1993 (copy of the pleadings to this effect has been shown by the Ld. SPP). Since Rule 32(e) stood amended and substituted in 2006 /2007, the said Rule would be applicable to the present case where the sample was lifted on 14.05.2008. The said rule has not been declared unconstitutional or ultra virus and is therefore binding.

95. Finally, there is no force in the stand of the defence that at the relevant time, there was policy no. F6(228)/85/ENF/PFA dated 23.09.1985, which provided that in case of misbranding under Rule 32 of PFA Rules, only a written warning was to be issued for the first offence and the prosecution had to be instituted only upon a subsequent offence.

This policy was subsequently withdrawn vide office order no. 5/07 dated 14.09.2007. The policy has been relied upon by the Hon’ble high Court in various cases where this policy was in existence at the relevant time, like in the judgement titled as S. S. Gokul Krishnan v. State[2009(1) FAC 132], which was followed in Hindustan Unilever Ltd. v. State [2011(1) FAC 183], Jaykal Exports v. NCT of Delhi [(2011)122 DRJ 432], Pepsi Food Pvt. Ltd. v. State [(2012)194 DLT 468] and Gupta Tea Traders v. State [2012(2) FAC 415]. However, a careful perusal of this policy no. F6(228)/85/ENF/PFA dated 23.09.1985 would show that it was to apply only to those cases where the prosecution was to be launched for violation of “only” Rule 32. It was specifically and expressly mentioned in the policy itself that this benefit will not be given to those cases where there is some violation in addition to Rule 32 as well. Thus, where the prosecution has been launched for violation of various provisions including Rule 32, this policy would not help the accused. For that matter, even on those cases where the prosecution has been launched under various provisions but the complainant is not able to prove the other violations except Rule 32, or the court frames charges only under Rule 32 or the subsequent CFL report negates the other violations, even then this policy would not help the accused, as it applies only till the stage of launching of prosecution. Therefore, the accused persons cannot seek benefit of such policy in this case, because the prosecution here had been launched not only for violation of Rule 32, but also for the offence of adulteration. When the prosecution was not for Rule 32 ‘only’, the policy would not apply. Thus, the food article in this case would also be misbranded.

96. Moving ahead, there would be no defence available to the accused persons to claim that they were not the manufacturers of the commodity in question or that they were only retailers 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 an accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him.

97. In the present case, the accused persons never disclosed from where they had purchased the commodity or that they were selling the same in the same condition as had been purchased. Neither such details were disclosed at the time of sample proceedings nor during the investigation, nor at the trial while cross-examining the witnesses, while recording statements of accused persons or even by way of defence evidence. Except stating for the first time in their statements under Section 313 CrPC that they had purchased the food article from market, there is no material which could be called as evidence to establish and identify the supplier from whom any such food article was purchased. No bill was produced or proved on record. No witness has been examined by the accused persons who could establish that any such food article was purchased by them from any third person. No such bill was ever submitted to the PFA department even during the investigation. No such bill was shown to the FI at the time of sampling. No endorsement was made by the accused no.1 on the documents prepared at the spot claiming that he had purchased the same from any third person or that was having any such bill / invoice / cash memo. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the sealed packets as lifted from possession of the accused persons were containing the same rai as was purchased by them from any other place. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused persons. Such a defence is also liable to be rejected.

98. 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. No contradiction whatsoever can be seen in the testimony of witnesses which could go to the root of the matter so as to shake their credibility.

99. But as far as accused no.2 and 3 are concerned, it is an admitted position that they were not the vendors from whom the food article was lifted nor they were present at the time of sampling. In case of a company (which includes partnership firm, as per Explanation (a) to section 17 of PFA Act), its directors (which includes partners of a firm, as per Explanation (b) to section 17 of PFA Act), officers or other employees can be held vicariously liable with the aid of section 17 of PFA Act (which is pari materia to section 141 NI Act). However, it is well settled that any and every director (or partner), officer or employee of a company (or a firm) cannot be held liable just because he happens to be a director (or partner) of the said company (or firm). All such persons cannot be held to be responsible for every act of the company (of firm) just because of the reason that they hold a particular post. The burden would be upon the complainant only to aver and prove by leading positive evidence to show that such a director (or partner) was in charge of or responsible for the day to day affairs of the accused company (firm) so as to hold him vicariously liable. In the absence of such a role specifically attributed to them, any or every director of a company (or firm) cannot be held liable. It is also well settled that the complainant has to explain by bringing on record the necessary facts that how and in what manner such person can be held liable and a bald averment that he was so responsible for the conduct of affairs of the company (or firm), would not serve the purpose.

100. While dealing with section 141 NI Act in the case of a company, the Hon’ble Supreme Court of India in SMS Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89] has laid down that it is necessary for the complainant to specifically aver in the complaint that at the time when the offence was committed, the person accused was in charge of or responsible for the conduct of business of the company. Without this averment being made, requirements of section 141 NI Act would not be satisfied. All the directors in a company (or other officers or employees) cannot be deemed to be in charge of or responsible for the conduct of business of the company. With the exception of a Managing Director or the signatory of the cheque, to implicate any other person as vicariously liable, there has to be specific averment and proof of his role.

101. The Hon’ble Supreme Court of India subsequently in the case titled as National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [167 (2010) DLT 143] held that vicarious liability on the part of a person must be pleaded and proved and not inferred. The said liability does not arrive merely on the basis of designation or office which a person holds in a company and a bald cursory statement in a complaint that a director made an accused was in charge of or responsible to the company for the conduct of its affairs, without anything more as to his role, would not be sufficient.

102. The said position would be applicable in case of PFA Act as well. Reliance can be safely placed on the judgements titled as Raghav Gupta v. Food Inspector [Crl. MC No. 1488/2011, Delhi High Court, dated 30.01.2012] and Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(1983) 1 SCC 1] that pertain to PFA Act only. It has been laid down that that mere averment, that an accused being director or partner would ‘as such’ be liable for the acts of the company/firm, would not be sufficient.

103. Relying upon the law so laid down, it becomes clear that every director of a company or partner of a firm cannot be held liable for the affairs of the company or firm just because of his being a director or partner ‘as such’. There can be any number of directors of a company or partners of a firm but any and all of them cannot be held vicariously liable for the offence committed by the company or firm. There has to be specific averment in the complaint attributing a specific role to any such person made as an accused so as to proceed against him. Such averment has to be supported by adequate proof of allegations. In the absence of such averment and proof, no liability can be attributed to a partner of a firm, as there is no rule of law that makes every such partner responsible for the affairs of the firm for all its acts which amount to criminal offence.

104. In the present case, it is seen that the complaint is totally silent as to the specific role and involvement of the accused no. 2 and 3 in the offence in question, except making a bald averment that they were the partners of accused no. 4 firm. Thus, there is no material to show the involvement these accused persons. They were not the vendors at the spot and no documents had been signed by them. There is nothing to show that they were involved in purchase, storage, sale or distribution of the food article. No account books, bill books, or other documents were seized which could attribute any role to these accused persons. No document had been collected and placed on record to show if these accused persons had ever participated in any of the day to day activities of the firm. There is nothing to show if any bills were signed by them or any orders were placed by them or if they had sold any article to any customer or purchased any article from supplier or had maintained accounts or had discharged any other routine liability of the firm. No reply was received from the firm disclosing who all were its partners in charge of or responsible to it for its affairs. Therefore, no proceedings can lie against them and vicarious liability cannot be fastened upon them under section 17 of PFA Act. Accused no. 2 and 3 are therefore entitled to be given benefit of doubt.

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

106. The case in hand would be thus covered under section 2(ia)(a) as the Rai Whole sold by the accused no. 4 firm through its vendor-cum-partner accused no. 1 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, and thus would fall in the definition of an adulterated food. However, in the absence of the percentage or extent of colour used, it cannot be said that the colour had injuriously affected the nature, substance or quality of the food article so as to make out violation of Section 2(ia)(b) of PFA Act. Benefit on this score can be certainly given to them. The matter is also covered for violation of Rule 32(a), 32(e) and 42(zzz)(17) resulting in contravention of section 2(ix)(k) for the offence of misbranding. As per section 7 of PFA Act, no person shall ‘himself’ or ‘by any person on his behalf’ manufacture for sale or store, sell or distribute and adulterated and misbranded food. As such, the accused no. 4 firm and its vendor-cum- partner accused no. 1 both would be liable.

107. Violation of section 2(ia)(j) is punishable under section 16(1A), 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.

108. Misbranding under section 2(ix)(k) is also punishable under section 16(i)(a) of PFA Act, but as it is a separate offence than adulteration, which can exist even without adulteration, it has to be punished separately.

109. 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 no. 1 and 4 beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 and 4 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 also misbranded food in violation of section 2(ix)(k) of PFA Act read with Rules 32(a), 32(e) and 42(zzz)(17) of PFA Rules (Rule 32(a) which existed at that time) and thus committed the offences punishable under section 7(i)/16(1A) and 7(ii)/16(1)(a)of PFA Act.

110. Thus, the accused no. 1 and 4 are held guilty and convicted for the offences punishable under section 16(1)(a) as well as 16(1A) of the PFA Act. Accused no. 2 and 3 are however given benefit of doubt and are acquitted of the charges. Their bail bonds shall remain in force for the next six months in terms of section 437-ACrPC.

111. Let the matter be listed for arguments on sentence qua the convicted accused no. 1 and 4.

Announced in the open court this 27th day of June 2017 (ASHU GARG) ACMM-II (New Delhi), PHC Judge Code- DL0355

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