-1- IN THE COURT OF MS. NEENA BANSAL KRISHNA : ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI In re : CA No. 43/12 1 [ENTITY] S/o Sh. [ENTITY] M/s Nutan Masala, Shop No. 2738, Punjabi Basti, Sabzi Mandi, Delhi-07 Also at :- R/o E-27, Sushila Road, Adarsh Nagar, Delhi-03 2 [ENTITY] S/o Sh. Parma Nand Gupta M/s Nutan Masala, Shop No. 2738, Punjabi Basti, Sabzi Mandi, Delhi-07 Also at :- R/o E-27, Sushila Road, Adarsh Nagar, Delhi-03 Appellants versus The State [Delhi Administration] PFA Department, A-20, Lawrence Road, Industrial Area, Delhi. Respondent Date of institution of the appeal : 22.05.2012 Date of reserving judgment/order : 04.07.2012 Date of judgment / order : 09.07.2012 JUDGEMENT :
1 This appeal u/[SECTION] [ACT] has been preferred against the judgment dated 28.04.2012 and order on sentence dated 11.05.2012 of Ld. ACMM-II, New Delhi, in [CASE NUMBER], vide which the appellants have been convicted for offences punishable u/[SECTION] of [ACT] (hereinafter referred to as the Act) and sentenced the appellants to undergo simple imprisonment for one year each and to pay a fine of Rs.5,000/- each, in default to undergo further simple imprisonment for 10 days each.
2 The facts in brief as stated in the complaint, are that on 24.03.2006 Food Inspector Sh. [ENTITY] under the supervision and guidance of Sh. [ENTITY], the then LHA / SDM purchased 750 gms of "Rai Whole", the food article for sale from Sh. [ENTITY] of M/s Nutan Masala, Shop No. 2738, Punjabi Basti, Sabzi Mandi, Delhi-07, from an open tin, bearing no label or declaration, where the said food article was found stored for sale and the accused was found conducting the business of the food articles. After proper homogenization with the help of a clean jhaba, the sample was divided into three equal parts by putting them in three separate clean and dry glass bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. One sample was sent to Public Analyst, who found the sample to be adulterated because it was coloured with unpermitted oil soluble synthetic colouring matter.
3 During the investigations, accused [ENTITY] was found to be vendor and [ENTITY] was found to be the Licensee-cum-Proprietor of M/s Nutan Masala.
4 After obtaining consent u/[SECTION] of the Act from Director, PFA, the present complaint was filed. 5 Accused persons were summoned vide order dated 17.08.2006. Accused no. 1 moved an application u/[SECTION] of the Act and the sample was sent to Director, Central Food Laboratory (hereinafter referred to as "CFL") who gave the report dated 27.09.2006 that the sample of "Rai Whole"
did not conform to the standards of [ENTITY], as per [ACT]. 6 Charge for violation of the Provisions of [SECTION] of [ACT], [SECTION] and [SECTION] of [ACT]; punishable u/[SECTION]/[SECTION] of the [ACT] was framed against both the accused, to which they pleaded not guilty and claimed trial.
7 The prosecution in support of its case examined three witnesses namely PW1 Sh. [ENTITY], Food Inspector, PW2 Sh. [ENTITY], the then SDM/LHA and PW3 Sh. [ENTITY], Field Assistant.
8 Statements of the accused were recorded u/[SECTION] [ACT] in which they pleaded their innocence and accused also opted for leading defence evidence. However, no defence evidence was led on behalf of the accused, hence, defence evidence was closed vide order dated 06.12.2010. 9 The Ld. ACMM considering the report of Public Analyst and the Director, CFL, concluded that the sample of "Rai Whole" was adulterated and, thus, convicted and sentenced the accused persons.
10 Aggrieved by the said conviction and sentence, the present appeal has been filed by the appellants. 11 Ld. counsel on behalf of appellants has argued that there are huge variations in the report of Public Analyst and the Director, CFL. While the sample was taken to be loose in sealed bottle in the Public Analyst report, it was stated to be sealed in closed jar in the Director, CFL report. Furthermore, the colour of the sample was noted to be brownish in the Public Analyst report, while it is red colour in the CFL report. Furthermore, there is a huge variation in the contents of organic and inorganic material in the two samples. Also, rhodamine B was found to be present in the sample as per CFL report, while, it was not reported in the Public Analyst report. Thus, huge variations in the two reports clearly indicate that the two samples were not representatives of each other. It is further argued that paper chromatography method was applied by the Public Analyst for testing the sample, but this test has been certified to be not a sure test and, therefore, cannot be held conclusive of the findings given in the report by using this method.
12 Ld. Special PP, on the other hand, has argued that the synthetic and unpermitted oil soluble colour was found both in the Public Analyst report as well as the CFL report as this colour could not have possibly been introduced during the mixing or sampling process. It is, therefore, argued that the appellants have been rightly convicted and the present appeal is without merit.
13 I have heard the arguments and perused the record. My observations are as under :
14 The first main argument addressed on behalf of the appellant is that there is a variation in the report of Public Analyst and CFL because of which it cannot be said that the two samples were representative of each other. On the other hand, it has been argued by the Ld. Special PP that once the appellant has exercised his right u/[SECTION] of the Act, the report of CFL becomes final and binding and it supersedes the report of Public Analyst which loses its significance. This aspect was considered in the case of "[PRECEDENT]", wherein it was held that even after this certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds, to prove on the record that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the certificate will not be sustainable. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "[ENTITY] v. State, 2005 (2) FAC 219 Delhi High Court" and "[PRECEDENT]".
15 In a case titled "[PRECEDENT]" again a reference was made to the case of "[ENTITY]" and it was reiterated that if on comparison to the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
16 Reference on this aspect may be made to the observations of the Double Bench of Punjab High Court in case "[PRECEDENT]", wherein it was clarified that finality and conclusiveness has only been attached to the facts stated in the report of CFL. It is, however, not conclusive of any other matter and it may still be ascertained whether adulteration as disclosed in the report of the CFL was due to certain factors for which an accused could not be held responsible. In short, the finality or conclusiveness are only to the extent that the sample as sent to the CFL contained what the report disclosed.
17 The argument addressed by Ld. Special PP in this regard is not tenable as the two reports i.e. of Public Analyst and CFL can be compared to see if they pertain to the samples which are representative of each other.
18 Now, to consider whether the sample of "Rai Whole", which was purchased from the appellants was adulterated, it would be pertinent to refer to the report of Public Analyst and Director, CFL.
19 The variations which have been noted in the Public Analyst and CFL report are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Extraneous matter
a) Inorganic 0.065% NIL
b) Organic 0.024% NIL 2 Test for Argemone Seeds NIL Absent 3 Insect damaged matter NIL NIL 4 Test for colour Oil soluble Non permitted synthetic synthetic colour colour viz.
[ENTITY] detected.
20 The Public Analyst report Ex.PW1/F has given a finding that the sample of "Rai Whole" was redish brown and it was found to be positive for oil soluble synthetic colour which was not permitted and the methodology used was the chromatography method. The Public Analyst has not been examined by the prosecution to explain why the test was applied to arrive to the conclusion that the colour detected was not permissible.
21 The credibility of Chromatography Test was considered in the case of "[PRECEDENT]", wherein it was observed as under :
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that [SECTION] use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are non-experts."
22 The perusal of the CFL report shows that it had detected non-permitted synthetic colour viz. [ENTITY] and the methodology used was the one as prescribed in DGHS Mannual. The physical appearance of the same was red coloured small whole seeds of mustard.
23 In a book written by [ENTITY] and published by TATA Macgra-Hill Publishing Ltd. on the subject of "Food Safety A Techno-Legal Analysis", it has been stated by the Scientist that all varieties of mustard seed contain natural colour pigment of their own. These colour pigments are also oil soluble. When the mustard seeds are treated with a solvent to detect the presence of added colour, then the natural colour pigments present in the seed also get leached out in the solvent and when subjected to TLC test, it shows the presence of colour. In order to find out whether the colour is inherent or synthetic or added, it is compared with the known colours and thereafter, to distinguish between the natural colour or added colour, solvent is sprinkled over a filter paper or the chromatograph itself is kept in an oven. The natural colours have tendency to disappear within 3 or 4 days while synthetic colours last longer. However, the natural colour pigments i.e. Carotenoids of mustard seeds do not disappear in the oven for a long time and are sometimes mistaken to be those of synthetic colour. Further Rai/Mustard seeds contains upto 162 micro carotenoide pigments which are oil soluble in nature. The certificate issued by the Director CFL does not show what test was conducted to know whether the oil soluble colour present in the sample was natural or added one. It does not show whether the presence of red and orange shade is oil soluble colouring material or natural one or added one. 24 The Chromatography Test can only detect the presence of colour and not whether it is inherent or added one.
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In order to distinguish between the two, further tests are required to be performed.
25 "Rai Whole" has its own inherent natural colour. Brown coloured "rai"belongs to two varieties of mustard seed.
"Rai" has two natural colours, one belongs to caronides and other to raiboflavines. Caronides are red coloured and raiboflavines are of orange colour. The skin of "rai" seed has fine reticulations as seen through the lens i.e. lattice the surface marked by a not working of fine up standing rigids. The reverse phase Chromatography Test is a confirmatory to find out the presence of synthetic oil soluble dyes in "rai" and it was not available in the year 2003 because the first Manual which came in the year 1975 was revised only in the year 2005.
26 It is, thus, seen that there are several oil soluble colouring matters which are edible and also present in "rai" in its natural growth. The Chromatography Test in itself was not sufficient to determine whether the colours detected in the samples were natural or synthetic. It is nowhere shown that besides TLC Test, any other test was carried out to confirm that the colours found were in fact not permitted synthetic colours. 27 Also, as pointed out by Ld. counsel for appellant that there are huge variation in the various parameters reflected in the Public Analyst and Director, CFL reports. The extraneous matter was found present in the Public Analyst report while none was found in CFL report. Also, [ENTITY] found in Director, CFL report was not detected in Public Analyst
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report. There variation can only lead to the conclusion that either defective sampling procedure was adopted or the two samples were not representative.
28 To conclude, Department has not been able to conclusively prove that samples were representative and also that samples were in fact adulterated as provided under the Act.
[SECTION] The appeal is accordingly allowed. Conviction is hereby set aside and the appellant is acquitted. His bail bond and surety bond stand cancelled.
30 Trial Court Record be sent back alongwith the copy of this order.
31 Appeal file be consigned to the Record Room. Announced in the open Court on 09th Day of July,2012.
([ENTITY]) ASJ-01/PHC/New Delhi