IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 192/03 Unique Case ID No. 02403R0165672003 Date of Institution: 16.04.2003 Date of reserving judgement: 03.03.2016 Date of pronouncement: [SECTION].03.2016 In re: [ENTITY] / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 Complainant versus [ENTITY] S/o. Lt. Sh. Ram Sukh R/o. C-7/9, Yamuna Vihar, Delhi-53 Accused JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 ([ACT]), alleging that the accused has violated the provisions of the [ACT] and Rules. The accused [ENTITY] is stated to be the vendor-cum-proprietor of M/s. Yogi Provision Store, from where the food article, that is, '[ENTITY]' was lifted for sampling.
2. As per the complaint, on 10.07.2002, the food officials consisting of Food Inspector (FI) [ENTITY], [ENTITY] and FI [ENTITY] under the supervision of Local Health Authority (LHA)/SDM Sh. [ENTITY] reached along with their staff at the premises of M/s. Yogi Provision Store at C-7/9, Yamuna Vihar, Delhi, where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of [ENTITY] from the vendor, to which he had agreed. The sample was then lifted as per procedure prescribed under the [ACT] and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 25.07.2002, the PA found the sample to be adulterated on the ground that it was coloured with synthetic colouring matter 'Tartrazine'. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI [ENTITY]. After completion of investigation, sanction under [SECTION] of the [ACT] was obtained from the Director PFA. The complaint was then filed in the court on 16.04.2003 alleging violation of [SECTION] of [ACT] read [SECTION] and [SECTION] of [ACT], as punishable [SECTION]) of [ACT].
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 16.04.2003. The accused appeared and filed an application under [SECTION] of [ACT] thereby exercising his right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 06.06.2003, opining the sample to be not conforming to the standards of Split Pulse ([ENTITY]) as per [ACT] due to presence of Synthetic Colour 'Tartrazine'.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 [ENTITY] and PW-2 FI [ENTITY]. On the basis of their depositions, charge was framed against the accused on 17.11.2009 for commission of the offence punishable under [SECTION]) [ACT], being violation of [SECTION] of [ACT] and [SECTION] [SECTION] and [SECTION] of [ACT], to which he 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. [ENTITY] and PW-4 [ENTITY] in post-charge stage.
5. PW-1, PW-3 and PW-4 were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 10.07.2002 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 750 gms of [ENTITY] after homogenizing it in the gunny bag in which it was lying using a Jhaba, dividing it in three parts and putting in clean and dry bottles, fastening, sealing and marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW- 1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. 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/D and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and upon direction of SDM/LHA, further investigation was carried out. Upon transfer of PW-1, further investigation was carried out by PW-2 who sent letter Ex. PW-2/A to the accused and received reply Ex. PW-2/B. He also sent letters Ex. PW-2/C and Ex. PW-2/D to Sales Tax Office and MCD office to ascertain constitution of vendor business concern. Thereafter, sanction Ex. PW-2/G was taken from the Director PFA and the complaint Ex. PW-2/F was filed in the court. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they accepted that the accused was a retailer and not manufacturer of the article in question, though denied that the sampling method was not proper or that the jhaba/ bottles used in the proceedings were not clean and dry. They denied that the accused had disclosed to have purchased the article from one M/s. Garg Stores or had shown kachi parti (rough bill) which the officials had refused to accept.
6. Statement of the accused under [SECTION] [ACT] was recorded on 24.03.2012 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 10.07.2002, yet he claimed that no efforts were made to join public witnesses and that the price of sample was not paid to him. He took stand that the sample was not taken properly and sealing and fastening were not conducted at the spot. He stated that reports of chemical experts were wrong due to bad sampling proceedings as representative samples were not taken by the food officials. He reiterated that he was a retailer and had also disclosed the source of purchase by showing kacha bill to the FI. He expressed intention to lead evidence in defence but no such evidence was led by him.
7. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 06.06.2003 which as per [SECTION] of [ACT] is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that percentage or extent of synthetic colour Tartrazine has not been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that the jhaba and bottles were not made clean and dry at the spot it is possible that some colour on the jhaba which was used for other articles at the shop was transferred to the Dal while sampling. It is submitted that in the absence of percentage or colour present, it cannot be said that the Dal was adulterated. It is also submitted that the accused is only a retail shopkeeper who was not involved in manufacturing or packing of Dal and was only selling the same in the condition it was purchased by him.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the notice framed against the accused is for violation of [SECTION] of the [ACT]. This is important to note because the ingredients of these offences are different and distinct.
11. Under [SECTION] of [ACT], the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Under [SECTION] of [ACT], it has to be established that the food article contained any substance affecting injuriously the nature, substance or quality thereof. [SECTION] specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. [SECTION] of [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.
12. The commodity in the present case is [ENTITY] (split pulse) which is food grain and has to be tested as per the standards prescribed for food grains. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colourinf matter Tartrazine in the sample analysed.
13. As per [SECTION] of the [ACT], the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to [SECTION] 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.
14. In [PRECEDENT], 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.
15. In Subhash Chander v. State, [ENTITY] [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."
16. 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 [PRECEDENT], 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 [SECTION]". The Hon'ble Court also took a note of the ruling in [PRECEDENT] 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".
17. Thus, there can be no two views on the proposition that the report of CFL supersedes the report of PA and has the effect of nullifying the same. Upon certificate of CFL, the contents and findings of report of PA cannot be read. However, in view of the judgements titled as [PRECEDENT], as relied upon subsequently in various judgements including [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], State v. Vidya Gupta [2014(1) FAC [SECTION]1], [PRECEDENT], [PRECEDENT], State v. Santosh Sharma [2014(1) FAC [SECTION]6], Raja Ram Seth & Sons v. [ENTITY] [2012(2) FAC 523], [PRECEDENT] and [PRECEDENT], it is clear that despite such finality to the CFL report, 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 into to establish this fact.
18. 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, moisture content was 8.86% and damaged grains were 0.14% but as per CFL report, moisture content was 8.95% and damaged grains were nil. But as can be seen, there is no variation that can be called as substantial enough to conclude that the samples were not representative. Even in the above mentioned precedents, it was opined that variation of 0.3% would be permissible in case two experts examine a sample in ideal conditions. If the present case is tested even on this scale, the said variations would be within permissible limits. Such variations would certainly not conclude that the samples were not representative.
19. Again, it has come on record that the food officials had first mixed the dal arhar in the gunny bag in which it was lying with the help of a jhaba. PW-1 deposed that the commodity was mixed by rotating in all directions, clockwise, anticlockwise, upwards and downwards several times. His stand was confirmed even by PW-3 and PW-4. Thus, it was thoroughly homogenised. There is nothing to show that the sample lifted was not representative of the dal arhar lying in the bag.
20. As per [SECTION] of [ACT], addition of a colouring matter to any article of food except as specifically permitted by the Rules is prohibited. [SECTION] provides the details of colours permitted for use and [SECTION] enlists the food in which synthetic colours are permitted. A bare perusal of this list would show that it does not mention food grains as the food in which any such synthetic colour is permitted. The obvious inference is that use of such synthetic food colour is totally prohibited for use in food grains, though they are permitted in specified food articles within the prescribed limits. Reliance can be safely placed on the precedents titled as [ENTITY] v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] and [ENTITY] v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] which are squarely applicable to this case.
21. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of dal arhar. Even if the said quantity is in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matter in traces in food article in question. The burden would upon be him to show how even traces of colour could have entered the food articles being sold by him. But no evidence has been led by the accused to establish this fact. Thus, it is clear that the food article dal arhar was adulterated within the meaning of [SECTION] of [ACT] being in violation of [SECTION] and [SECTION].
22. In this case, no stand has been taken by the accused at the trial that any such colour was a result of natural use or the food article exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused even in his statement under [SECTION] [ACT].
23. The defence now claims that the sample was not taken properly. But no irregularity has been pointed out by the accused in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no evidence to show that the jhaba or bottles used by the food officials were not clean or dry as testified by them on oath. There is no evidence to establish that the said jhaba was being used for lifting other food articles lying at the shop as claimed. All the PWs have rather corroborated each other that the jhaba was clean and dry when used. Mere bald suggestions would not serve the purpose of the accused., He never led any evidence to establish his defence that the jhaba was already used for lifting any other food article prior to sampling proceedings. Mere suggestion is not an evidence and would not be sufficient to falsify depositions given on oath by the PWs.
24. Again, there is no merit in the contention that Tartrazine is a water soluble colour and no prejudice would be caused to any customer because dal arhar would be washed before preparation. Such a contention has been rejected by the Hon'ble High Court in [ENTITY] v. Ashwani Kumar [supra]. Again, as per [SECTION] of [ACT], it shall be no defence that the food article sold had not caused any prejudice to the purchaser.
25. The CFL report shows that DGHS method was used to determine the colour in the sample. No questions have been raised by the defence with respect to the test methodology. For that matter, it is not even the stand of the accused that no such colour was detected in the sample. No such stand was taken at any stage of the trial. Similarly, no dispute has been raised with respect to sanction given by the Director PFA.
26. PWs have corroborated the stand of each other even on other facts. PW-3 during cross-examination stated that the capacity of gunny bag in which the dal was lying was about 25-30 kgs and approximately 8-10 kg of dal was available in it. PW-4 also corroborated this fact by deposing that the capacity of gunny bag was about 30 kgs and about 8-10 kg of dal was available in it. All the witnesses deposed that attempt was made to join public persons as witnesses but none had joined. There is nothing to disbelieve them or to shake their credibility.
27. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused. The Hon'ble Supreme Court in [PRECEDENT] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence.
28. Again, it is no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of 'sale' under [SECTION] is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which the accused can claim on this ground is under [SECTION] of [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.
[SECTION]. In the present case, the accused vaguely claimed that the kachi parchi / rough bill was given to the food officials at the time of sampling proceedings which they had refused to accept. However, such a stand has remained bald allegation without any evidentiary support. No such bill has been produced or proved on record. No witness has been examined by the accused who could establish that any such food article was purchased by the accused from any third person. No such bill was ever submitted to the PFA department even during the investigation when letter was written to the accused and duly replied by him. No endorsement was made by the accused 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. In the absence of any such document duly proved in record, or even testimony to this effect, mere bald averment of the accused would not qualify his case to get the benefit of warranty under [SECTION] of [ACT]. Therefore, in the absence of any such bill, the court cannot assume that the accused had purchased the [ENTITY] from any other person or had been selling the same in the same condition as purchased by him. Such a defence is liable to be rejected.
30. The case in hand would be covered under [SECTION] of [ACT] as there is evidence to show that it was not of the nature, substance or quality which it is "purported" to be as per [ACT]. The case would fall under [SECTION] as there is presence of colour which is not permitted in this article, and under [SECTION] of [ACT] as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited. However, in the absence of quantity or percentage of colour, it cannot be said that the extent of colour used was affecting injuriously its nature, substance or quality thereof so as to make out violation of [SECTION]. Violation of [SECTION] is punishable under [SECTION] and violation of [SECTION] is punishable under [SECTION] of [ACT]. But being graver offence, his conviction can be under [SECTION] of [ACT].
31. No other stand has been taken by the accused at the trial or during the arguments advanced.
32. In view of this discussion, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of [SECTION] of [ACT] read [SECTION] and [SECTION] of [ACT], and has committed the offence punishable under [SECTION]) of [ACT].
33. Having said so, the accused is held guilty and convicted for the offence punishable under [SECTION] of the [ACT].
34. Let the matter be listed for arguments on sentence.
Announced in the open court this [SECTION]th day of March 2016 [ENTITY]