IN THE COURT OF SH. ASHU GARG, Addl. Chief Metropolitan Magistrate - II (New Delhi), Patiala House Courts, New Delhi CC No. 169/11 Unique Case ID No. 02403R0069852011 Date of Institution: 01.08.2011 Date of reserving judgement: 21.07.2016 Date of pronouncement: 05.08.2016 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Indus21trial Area, Delhi-110035 Complainant versus [ENTITY] S/o. Sh.[ENTITY] R/o. H.No.20, Gali no.1, Gautam Colony, Narela. Delhi -110040 Accused JUDGMENT:
1. The present is a complaint filed under [SECTION] of the [ACT] ([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. Gupta Trading Company, from where the food article, that is, '[ENTITY]' was lifted for sampling.
2. As per the complaint, on [SECTION].05.2011, the food officials consisting of Food Inspector (FI) [ENTITY] and Field Assistant (FA) [ENTITY] under the supervision of Local Health Authority (LHA)/SDM Dr. [ENTITY] reached along with their staff at the premises of M/s. Gupta Trading Company at 2371, T-18, Bawana Road, Narela, Delhi-110040, 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] (ready for sale) from the vendor lying in an open gunny bag bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the [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 07.06.2011, 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 the FI. After completion of investigation, sanction under [SECTION] of the [ACT] was obtained from the Director PFA. The complaint was then filed in the court by the FI on 01.08.2011 alleging violation of [SECTION] of [ACT] read with [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 01.08.2011. 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 09.09.2011, opining the sample to be not conforming to the standards of [ENTITY] as per [ACT] due to presence of synthetic food colour 'Tartrazine'.
4. The matter was then listed for pre-charge evidence, wherein the complainant examined PW-1 [ENTITY]. On the basis of his deposition, charge was framed against the accused on 02.11.2012 for commission of the offence punishable under [SECTION]) [ACT], being violation of [SECTION] of [ACT], to which he pleaded not guilty and claimed trial. At the trial, the witness already examined in pre-charge stage was recalled for further cross-examination in post-charge stage and additionally, the prosecution examined PW-2 Sh. [ENTITY] and PW-3 [ENTITY] in post-charge stage.
5. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on [SECTION].05.2011 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 3 kg of [ENTITY] lying in open gunny bag bearing no label declaration, mixing the same with the help of a clean and dry jhaba, separately sealing, packing and marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C and Raid Report Ex. PW- 1/D. Accused also furnished his statement Ex. PW-1/E and produced copy of his Voter I-Card Ex. PW-1/E-1. On the next working day, that is, 30.05.2011, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/F and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide LHA receipt Ex. PW-1/G. PA report Ex. PW-1/H was received and upon direction of SDM/LHA, further investigation was carried out by PW- 1 who sent letter Ex. PW-1/I to the STO and received its reply. Thereafter, sanction Ex. PW-1/J was taken from the Director PFA and the complaint Ex. PW-1/K was filed in the court. After this, intimation letter Ex. PW-1/L with copy of PA report was sent to the accused through registered post vide postal receipt Ex. PW-1/M. All these witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the jhaba was not clean and dry or that the accused had disclosed that the commodity had been purchased by him from one M/s. [ENTITY]. They denied that the sample got contaminated due to defective sample proceedings or that different types of Dal had been put in the sample bottles.
6. Statement of the accused under [SECTION] [ACT] was recorded on 20.05.2014 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated [SECTION].05.2011, yet he claimed that the SDM/LHA was not present in the team and no efforts were made to join public witnesses. He also claimed that the jhaba was not clean and dry and the documents was not read over and explained to him. He admitted the receipt of intimation letter. He questioned the reports of experts on the ground that the sample was not taken properly. He maintained that he had purchased the commodity from M/s [ENTITY] through bill and stated that he would produce the same during his evidence. Though he expressed intention to lead evidence in defence, yet 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 09.09.2011 which as per [SECTION] of [ACT] is final and conclusive, and which has confirmed the findings given by the PA. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has contended that 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 used by the FI was not made clean and dry at the spot and possibility of contamination cannot be ruled out. It is then contended that Tartrazine is not a harmful colouring matter as its use is permitted in many food articles. Relying on the judgement titled as [PRECEDENT] 21.05.2012], it is contended that presence of tartrazine in dal moth cannot be said to be an adulteration. Ld. Counsel has submitted that tartrazine is a water soluble colour and when the Dal Moth is washed before cooking, the said colour gets washed away and no harm is caused to the consumer. It is then argued that the CFL has not mentioned the name of test method through which tartrazine was detected and the method adopted by PA was paper chromatography which was not a sure test in view of judgement titled as [PRECEDENT]. It is also argued that the accused was not the manufacturer of the article but was only a retailer who had purchased the commodity from another seller M/s. [ENTITY], which was not implicated by the FI.
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] read with [SECTION] and [SECTION] of [ACT] with respect to 'adulteration'. 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. [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.
11. The commodity in the present case is [ENTITY] which is food grain and has to be tested as per the standards prescribed for food grains. It is clear that this article falls in [SECTION] to the [ACT] under the category of "Any Other Food Grains", because no separate standard has been prescribed for this Dal under any other head. Both the analyst have applied the same standards to this product. It is nowhere the stand of the accused that the food article does not fall under this head or that it falls under some other head.
12. It is pertinent to note that both the chemical experts, PA and CFL, have found the presence of the synthetic colouring matter Tartrazine in the sample analysed. On this point, both the reports are in conformity to each other and not at variance.
13. But the defence is seeking to claim that the samples were not representative due to 'variations' in PA and CFL report. It is pointed out that as per PA report, the moisture content was 8.68%, but as per CFL report, moisture content was 9.55%.
14. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is thus, 'since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative'. Pointing out the above said variation in the moisture content, 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.
15. In this regard, the defence strongly relies upon the judgement titled as [ENTITY] v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], State v. Vidya Gupta [2014(1) FAC [SECTION]1], [PRECEDENT], State v. Mahabir [2014(1) FAC [SECTION]6], State v. Santosh Sharma [2014(1) FAC [SECTION]6], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
16. I have carefully gone through the said judgments based on the star judgement in [ENTITY] v. State [2005(2) FAC 219]. However, it is necessary to understand the concept of reports of PA and CFL and variations therein.
17. As per [SECTION] of the [ACT], the certificate issued by the Director of CFL shall supersede the report of the PA. As per [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.
18. 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.
19. In [PRECEDENT], 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."
20. 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. [ENTITY] [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 [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".
21. 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 [PRECEDENT]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under [SECTION] 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.
22. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to [ENTITY]'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.
23. In [PRECEDENT], 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 [SECTION] of the Act".
24. Similarly, in [PRECEDENT], the Full Bench of the Hon'ble High Court of Gujarat while relying upon the decision of the Hon'ble Apex court in [PRECEDENT] and [PRECEDENT] discussed the issue of 'variation' and held that "Proviso to [SECTION] 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 [SECTION], 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.".
25. In the case of MCD v. [ENTITY] [supra], the Hon'ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon'ble Court reversed the acquitted into conviction and observed as under:
(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.
(b) "Once the Director has examined the sample and has delivered his certificate, under proviso to [SECTION] of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken."
(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to [SECTION] would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.
26. This judgment was also relied upon by the Hon'ble High Court of Delhi in [PRECEDENT], where it was observed that "It is correct that there is wide variation in the two reports, but according to [SECTION] 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".
27. In [PRECEDENT], 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] 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 [PRECEDENT].
[SECTION]. 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 of evidence adduced by the prosecution and defence and not a matter or assumptions.
[SECTION]. The Hon'ble High Court of Delhi in [PRECEDENT]'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 [ENTITY]'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.
30. It is thus clear that the [ENTITY] and [ENTITY] 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 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.
31. 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] of the Act, but in that case, [SECTION] and [SECTION] of the Act would come in to play and the report would be now conclusive and final.
32. In [ENTITY]'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.
33. Thus, the point to be noted is, that the law laid down in [ENTITY]'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 [ENTITY]'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 [ENTITY]'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] of the Act.
34. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter is confirmed by PA to be 5% and CFL to be 6%, 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 5%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. Similarly, if PA fails to detect any poison, and CFL detects such poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%.
Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.
35. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. The accused cannot simply rely upon the [ENTITY]'s case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative. Apparently, the [ENTITY]'s judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than 0.3%. This would rather give precedence to the report of PA and not CFL.
36. 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. [[PRECEDENT], State v. Vidya Gupta [2014(1) FAC [SECTION]1], [PRECEDENT], State v. Mahabir [2014(1) FAC [SECTION]6] and State v. Santosh Sharma [2014(1) FAC [SECTION]6 .
37. At this stage, it is not out of place to mention that the Hon'ble Supreme Court of India in State v. [ENTITY] [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to [ENTITY]'s judgement, but at the same time, expressly ordered the question of law to be kept open.
38. The judgements of [PRECEDENT] and [PRECEDENT], are exactly on the same lines as that of [PRECEDENT], in [CASE NUMBER], 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 [PRECEDENT], dated 31.08.2015], and the matter remanded back to consider the statutory provisions under [SECTION] of [ACT].
39. The judgements in [PRECEDENT] and [PRECEDENT] had also relied upon [PRECEDENT] but this judgement has been set aside in [PRECEDENT] by the Hon'ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.
40. The judgements in [PRECEDENT], [PRECEDENT] and [PRECEDENT] 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%.
41. 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 [PRECEDENT], 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.
42. 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] and [SECTION] 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.
43. Even otherwise, if the variations, if they can be so called, are noticed, they are very marginal. Such variations are certainly due to time gap between the analysis by PA and CFL. Change in moisture content is always expected due to impact of internal heat of the food article, outside atmosphere, presence of light, pressure and air, storing conditions etc. But when the complaint is not on account of presence or absence of moisture or any other parameters but on account of presence of synthetic colouring matter, which would not develop due to any passage of time, no benefit can be granted to the accused. Even if the moisture content has undergone a change during the intervening period, the sample would still fail due to presence of synthetic colouring matter the use of which is absolutely prohibited in food grains.
44. There is nothing for the court to disbelieve the PA and CFL reports wherein artificial synthetic colour tartrazine has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds. It is not the defence of the accused that no colour was detected, or was detected wrongly. In this case, no stand has been taken by the accused at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused in his statement under [SECTION] [ACT] or even in defence evidence.
45. 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. Thus, there is no force in the stand of the accused that this colour is permitted for use in other food articles. When the use of any such colour is absolutely prohibited for this product, no such colour can be used.
46. The reliance on the judgement titled as [PRECEDENT] [supra] on this point is also misfounded. The observations of the Hon'ble Court pertained to "savouries such as dal mpth etc." as used in [SECTION] of [ACT]. But in this case, the dal moth lifted were not savouries but were meant for sale as a food grain. Had it been savouries falling in the categories of mongia, phululab, sago papad, dal biji (as mentioned in [SECTION] itself), the position would have been different. But when the dal moth dhuli was being sold as a food grain and not as savouries, the said judgement would not apply.
47. Similarly, 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 moth would be washed before preparation. As per [SECTION] of [ACT], it shall be no defence that the food article sold had not caused any prejudice to the purchaser. Just because some synthetic colour is water soluble and the food article is generally washed before being cooked, that gives no right to anyone to use prohibited synthetic colours in food articles in violation of statutory provisions. Thus, it is clear that the food article dal moth was adulterated within the meaning of [SECTION] of [ACT] being in violation of [SECTION] and [SECTION]. Reliance can be safely placed on the precedents titled as [PRECEDENT], dated 09.05.2013] and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, dated 18.02.2013] which are squarely applicable to this case.
48. 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 moth. It would not make any difference if the analysts have not given the percentage of colour used. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in food grains. Giving of percentage of colour would be necessary only on those samples where such colours are permitted upto certain prescribed limits and not where it is totally prohibited. In any case, it would be for the accused to show as to on what basis he claims presence of such colouring matter in traces in food article in question. The burden would upon be him to show how even traces of colour could have entered the food article being sold by him. But no evidence has been led by the accused to establish this fact.
49. Movind ahead, the requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and condiments, it is necessary to mix and homogenise the samples so as to evenly distribute there ash content, moisture, broken grains, etc. If it is not so done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling.
50. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk or spices contains deadly poison which is a prohibited substance, then presence of even minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.
51. In this perspective, if the sample of dal moth was failing on account of moisture or foreign matter, damaged grains, weevilled grains etc, then proper homogenization would have been required. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in foodgrains, then any homogenization would be immaterial. Even if homogenized in best possible manner, such colour would still be there, though evenly distributed, which would still be an offence in any case. In the present case, even if it is assumed that the sample had not been properly homogenized (though there is no evidence to this effect), that would have no bearing on the test results. Even if the synthetic colours are evenly distributed, that would still make out the offence of adulteration because such colours are totally prohibited for use in foodgrains.
52. The defence claims that the sample was not taken properly and that the possibility of contamination has not been ruled out. However, 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 establish the stand of the accused that the sample got contaminated at any stage of the sample proceedings. Rather all the witnesses deposed in one voice that the bottles, jhaba, etc were clean and dry when used. This is not a case where there is no evidence to show that the utensils or implements were clean and dry. Rather there is positive testimony of the witnesses to this effect which has never been questioned or rebutted by leading contrary evidence.
53. Ld. Counsel has relied upon the evidence of the three PWs who stated that the jhaba was not made clean and dry at the spot, contending that it was the duty of the FI to make it clean. However, it is to be understood that the duty of the FI was to ensure that clean and dry impliments/utensils are used while lifting the sample. All the three witensses deposed that the jhaba was already clean and dry when used.
They vehemently denied the suggestions that the same was not clean and dry. And when they have deposed on oath that the jhaba was clean and dry, there is no contrary evidence to negate their version. No witness has deposed that the jhaba was contaminated. No evidence has been led by the defence to establish any contamination in the jhaba, except by putting bald suggestions to the witnesses which have been denied by them. Thus, there is nothing to assume that the implements or utensils were not clean and dry.
54. Ld. Defence Counsel then questions the mode of testing adopted by the PA in detecting the presence of food colours. It is pointed out that the PA had used paper chromatography test, which is claimed to be not a sure test and that no details of test method adopted by CFL have been given.
55. Well, the court does not find merit in the said submissions. It is to be understood that reports of chemical experts are admissible in evidence without formal proof under [SECTION] [ACT]. But that does not mean that such reports cannot be questioned on any point on which they are silent. If the accused wishes such report to be clarified or questioned, he has an option available to him to apply to the court under [SECTION] [ACT] and cross-examine him. 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 analysts any opportunity to explain any point on which the report is silent. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. This certificate clearly mentions that ICMR-1990 prescribed method had been used by the analyst to determine the colours. In such a case, there is no reason why the accused did not opt to cross-examine the CFL analyst and ask him about the method used by him to detect synthetic colour, if he was genuinely feeling aggrieved by his failure to name the test method. The CFL maintains all the details of the tests conducted and values derived on the basis of which final results are given as mentioned in its certificate. The certificate is only the final report in the prescribed format but that does not mean that it is the only material available. All the tests reports can be called, and their intricacies and validity explained by the analysts in case of any doubt. The accused cannot be allowed to take benefit of his failure to apply and cross-examine the CFL when this opportunity was available to him. This was obviously not the job 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 [PRECEDENT] and [PRECEDENT], 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."
56. Even the judgement of [PRECEDENT] would not help the accused. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles. No attempt was made by the accused as aforesaid to ask the PA or CFL Director as to the name and validity of the method adopted by him. He would have been the best person to explain the things as he had analysed the sample. And not only the PA or Director CFL, the accused also chose not to examine any expert witness in defence to establish his stand that the paper chromatography test is not a sure test.
57. The judgements in [PRECEDENT] (supra) and [PRECEDENT], as relied upon by the defence, are clearly distinguishable on facts of this case. These judgements would apply only in those cases where some synthetic food colour is permitted to be used in a food article (like sweets or sauces) and the court has to determine if the synthetic colour found in the sample was permitted or unpermitted. In such a position, the Hon'ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.
58. The next defence taken by the accused is that he had purchased the dal from one M/s.[ENTITY]. However, it is pertinent to note that no bill/invoice/cash memo of purchase of this Dal has been placed on record by the accused, despite stating in his statement under [SECTION] [ACT] that he would produce the same during his evidence.
59. Well, there would be no defence available to the accused to claim that he was not the manufacturer of the commodity in question or that he was only a retailer selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of 'sale' under [SECTION] 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.
60. In the present case, the accused claimed that he had purchased the commodity from one M/s. [ENTITY]. Well, such a stand has remained bald averment without any evidentiary support. Neither any bill has been produced nor any witness has been summoned from the said business firm so as to establish if any such firm existed, if any such Dal was sold, if any bill was issued and if the said bill was having warranty as per [SECTION] of [ACT] and as per Form-VIA of the Rules.
61. Even if it is assumed that the accused had purchased dal from any other source, that by itself would not help the accused in any manner. It is to be understood that the benefit of warranty under [SECTION] of [ACT] would be available only when there is a written warranty from the supplier/seller in addition to the fact that it has been sold in the same condition as was purchased. Both the conditions have to be fulfilled simultaneously. Only fulfilling one condition that the commodity was sold in the same manner as was purchased from the supplier, would remain incomplete in the absence of other condition of a "written warranty". It is also to be established that the commodity was being sold by the accused in the same condition as supplied to him, but even this fact has not been established by the accused as no witness has deposed to this effect.
62. 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. 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.
63. At the same time, it has to be understood that human memory is liable to fade with passage of time and minor contradiction, improvements and variations do creep in the testimony of the witnesses. However, unless those contradictions are material enough to go to the root of the matter, they have to be ignored. The witnesses cannot be expected to remember all minure details of the incident with mathematical accuracy and scientific precision.
64. In the present case, there is a visible contradiction. PW-1 and PW-3 corroborated each other by stating that the commodity was weighed in a clean and dry polythene bag but PW-2 deposed that it was weighed in a brown paper envelope. Well, there can be no doubt that both the stands are contradictory. However, mere this contradiction would be sufficient to negate their entire testimony on all other counts, which is otherwise corroborative in nature. Such a contradiction is minor in nature particularly when several years had passed after the incident when the wintnesses were cross examined. There is no contradiction whatsoever on any material particulars in the evidence of these witnesses otherwise. The corroborative evidence of PW-1 and PW-3 cannot be rendered nullified on account of contradictory evidence of PW-2 on one point. In my considered view, such a minor contradiction would not go to the root of the matter so as to nullify all the proceedings including the report of analysts and the testimony of other witnesses. Thus, no benefit can be given to the accused on this count.
65. Again, there is no merit in the stand that there was unexplained delay of four days in signing the PA report. Apparently, the sample was analysed by PA from 01.06.2011 to 03.06.2011 and the PA report was signed on 07.06.2011. This delay of four days cannot be said to be 'unexplained' when the PA was never given an opportunity to explain the said 'delay'. As already stated, the PA should have been called by the accused by exercising his option under [SECTION] [ACT] to explain the things if desired but by not opting so, he cannot say that the delay remained unexplained. In any case, the PA report superseded by the CFL report and no such delay was there in CFL report on the basis of which the charges were framed.
66. No other stand has been taken by the defence hitting on merits of the case.
67. The case in hand would be therefore 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. 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].
68. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused beyond the shadow of reasonable doubt. It has been proved that the accused had sold adulterated food in violation of [SECTION] of [ACT] read with [SECTION], [SECTION] and [SECTION] of [ACT], and has committed the offence punishable under [SECTION]) of [ACT].
69. Thus, the accused is held guilty and convicted for the offence punishable under [SECTION] of the [ACT].
70. Let the matter be listed for arguments on sentence Announced in the open court this 5th day of August 2016 [ENTITY]