Delhi District CourtR/O C­15 vs The State (Delhi Admn.) on 22 February, 2012IN THE COURT OF SH. LAL SINGH, ASJ­02/FTC, NEW 
 DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI 


Case ID No.  02403R0003272010

Criminal Appeal No. 4/11


Nirmal Kumar Dua, 
M/s. Mayank Caterers, 
B­26, Moti Nagar, 
New Delhi. 


R/o C­151, Moti Nagar, 
New Delhi.                                                    .....Appellant 
                                  versus
The State (Delhi Admn.)                                      .....Respondent


Date of institution of the case            :                 07.01.2010
Date when the case reserved for judgment   :                 07.02.2012
Date of announcement of judgment            :                22.02.2012


JUDGEMENTThis   criminal   appeal   has   been   preferred   against   the 

Judgment   dated   01.12.2009   and   order   on   sentence   dated 

14.12.2009   passed   by   the   Ld.   ACMM­II,   New   Delhi   District, 

whereby the appellant was convicted and sentence to R.I for aCA No. 4/11                                                                     1/15period of one year and to pay a fine of Rs.3000/­ and in default of 

payment of fine one month S.I for violation of sub clause (a) & (j) 

of section 2 (ia) punishable u/s 16 (1a) read withsection 7of PFA 

Act.Briefly stated the facts of the case are that the complaint 

was   filed   by   the   Delhi   Administration   through   local   Health 

Authority   Sh.   M.R.   Grover   against   the   appellant   alongwith 

accused number 1 Rakesh Pandey.  Accused No. 1 Rakesh Pandey 

has been declared P.O vide order dated 31.10.2005 by the Ld. Trial 

Court.On   26.09.1994,   at   about   12:30   PM   F.I   Pramod   Kothekar 

took a sample of approximately 900 gm of "Chilli Sauce" a food 

article for analysis from accused no. 1 Rakesh Pandey S/o Sh. P.N. 

Pandey at the canteen of Delhi Public School, Mathura road, New 

Delhi (since PO), where the said Food articles was found stored 

for sale with Chowmien and accused No. 1 Rakesh Pandey was 

found   conducting   the   business   of   the   canteen   at   the   time   of 

sampling.  The sample consisting of 900 gm of Chilli sauce taken 

from open container bearing no label declaration.   The sample 

was taken after mixing it properly with the help of clean and dryCA No. 4/11                                                                         2/15spoon.     F.I  divided  the sample then and there into three equal 

parts and put them in three separate clean and dry bottles.  Twenty 

four   (24)   drops   of   formalin   were   added   in   each   of   the   three 

bottles, each bottle containing the sample was separately packed, 

fasten,   marked   and   sealed   according   toPFA   Actand   rules. 

Vendors   signatures   were   obtained   on   the   LHA   slip   and   the 

wrapper of the sample bottle.   Notice was given to the accused 

Rakesh Pandey and the price of the sample was also offered to 

him but was not accepted by him.  Panchnama was also prepared 

at   the   spot.     All   the   documents   were   prepared   by   FI   Pramod 

Kothekar   and   were   signed   by   the   accused   Rakesh   Pandey   and 

witness   FI   Arun   Kumar   Gupta.     Before   sampling   proceedings, 

efforts were also made to join the public witnesses but none came 

forward.   One counter part of the sample was sent to the public 

analyst in intact condition and two counter parts were deposited 

with LHA in intact condition.   The public analyst analyzed the 

sample on 05.10.94 and found that the sample does not conform to 

standard because total soluble solids and acidity interms of acetic 

acid is less then prescribed minimum limit of 10.0% and 1.10% 

respectively   and   further   sample   contents   Coaltar   food   colour,CA No. 4/11                                                                           3/15tartrazin, which should not be present.The summons of the case were served upon accused Rakesh 

Pandey   (PO)   and   present   appellant.     Accused   Rakesh   Pandey 

moved an application to get the second counter part of sample 

analyzed from Director CFL while exercising his rightu/s 13 (2)of the PFA Act and the second counter part of the sample was 

examined   by   Director   CFL   Mysore   vide   certificate   no. 

209/PFA/95 dated 06.06.1995 and found that the Chilli sauce does 

not   conform   to   the   standard   underPFA   Act&   rules   as   total 

soluble solids contents false below the minimum requirement of 

10%   by   weight   and   contains   synthetic   colour   tartrazine   not 

permitted in the product.Thereafter, charge for contravention of provisions ofsection 

2   (ia)   (a)   (j)   (m)of   PFA   Act   &   Rules   23&29   of   PFA   rules 

punishable undersection 16 (1) (1a)read withsection 7of PFA 

Act was framed against the present appellant Nirmal Kumar Dua 

on 21.05.2007 to which he pleaded not guilty and claimed trial.Complainant examined PW1 FI Dr. Pramod Kothekar, FI 

Arun Kumar PW2 and PW3 M.R Grover, LHA.   Thereafter, the 

statement   of   appellant/accused   no.   2   Nirmal   Kumar   Dua   wasCA No. 4/11                                                                           4/15recordedu/s 313Cr.P.C on 17.07.2009 wherein he controverted the 

entire evidence against him and he submitted that he is innocent.I have heard the arguments on behalf of appellant Nirmal 

Kumar   Dua   as   well   as   Ld.   Chief   Prosecutor   for   the 

respondent/Delhi   Admn.     Sh.   M.L.   Alwadi,   Advocate   for   the 

appellant   submitted   that   the   sample   was   lifted   from   Rakesh 

Pandey   but   he   was   declared   PO   later   on.   Ld.   Counsel   for   the 

appellant   further   submitted   that     the   appellant   was   parter   of 

Mayank Caterers  which is evident from Ex.PW1/J deed of license 

and   statement   of   Rakesh   Pandey   exhibited   as   Ex.PW1/D.     He 

further submitted that the charge has also been framed against the 

appellant as partner of Mayank Caterers.   He submitted that the 

Banarsi Lal Dua father of the appellant was died on 15.09.94 and 

sample was lifted on 26.09.1994.   Ld. Counsel for the appellant 

submitted   that   when   a   partner   of   a   firm   dies   then   the   firm 

automatically dissolves and only those partner are liable who were 

Incharge of the day to day business.   He further submitted that 

appellant Nirmal Kumar Dua was absentee partner and was not 

present when sample was lifted.  He contented that in Chilli sauce 

sample   the   report   of   CFL   is   a   photo   copy   /   xerox   copy   andCA No. 4/11                                                                           5/15original had not been sent by the CFL and hence the report of 

CFL   is  an   improved   document.   Ld. Counsel  for the appellant 

further contented that there is no public witness in this case and 

PW3 stated that school staff were not asked to join as witness.  He 

contended that as per CFL report the preservative is absent and if 

the   preservative   is   absent   then   the   sample   was   not   properly 

preserved, particularly the sample was analyst after eight months 

in   the   CFL.     Ld.   Counsel   for   the   appellant   relied   upon   theJudgment   of  State   of   Maharashtra   v.   Sewaram   Aildas 

Aamesar, decided by Hon'ble Bombay High Court in criminal 

appeal no.   406 of 1977  decided on 24th July 1979, wherein it 

was held that now, even if R 20 is taken to be directory can one  

safely exclude the possibility of the ice candy in the present case,  

to which admittedly no formalin was at all added, remaining on  

the date f its analysis 30th September, the sample was taken?  In  

other words, can one safely exclude the possibility of the article  

not   having   in   any   manner   undergone   any   change,   any  

disintegration or any alteration?   If this possibility can not be  

safely excluded, then to whom will the benefit of such a possibility  

go?  Obviously, to the accused.  It would require good evidence toCA No. 4/11                                                                         6/15come  to  a  conclusion   that  in spite of the total  absence of  any  

preservative or formalin being added and in spite of the fact that  

the article was analyzed after a lapse of nearly two months, the  

said article was nevertheless an article fit for analysis in the full  

sense of the said term.  Evidence on the record is practically nil  

on that aspect.  That R 20 is directory does not, therefore, mean  

that  is non­existence and/or that  a total breach thereof is also  

permitted.   Total non­compliance of the said rule is a position  

altogether   different   from   a   substantial   compliance   of   the   said  

rule.     In   the   context,   "directory"   can   only   mean   that   strict  

compliance would not be insisted upon by the Courts.  But it can  

not be that total non­compliance will also be excused.   In these  

circumstances,   even   on   the   well­set   basis   that   Rule   20   is  

directory, I am of the opinion that total non­compliance of the  

said rule would, on the facts and circumstances, of the present  

case, fail to bring home the impugned charge  to the accused.  In  

this view of the matter that I take, the ultimate order of acquittal  

passed   by   the   learned   trial   Magistrate   deserves,   though   for  

reasons altogether different, to be confirmed.On   the   other   hand,   Ld.   Chief   prosecutor   for   theCA No. 4/11                                                                          7/15respondent/Delhi   Administration   submitted   that   there   is   no 

illegality in the Judgment passed by the Ld. Trial Court, as the PA 

report   as   well   as  CFL  report, sample  does not  conform  to the 

standard as prescribed in thePFA Act& Rule.I have gone through the record and perused the file.   The 

prosecution has examined three witnesses namely, PW 1 F.I, Dr. 

Pramod Kothekar, PW 2 F.I. Arun Kumar and PW 3 Rtd. LHA, 

M.R.   Grover.     I   have   also   gone   through   the   report   of   public 

analyst, exhibited as PW 1/H and CFL report dated 06.06.1995. 

As per PA report, the result of analyst is as follows:Appearance ­ Yellow coloured sample of sauce. 

       Test for Coaltar dye  ­ Positive 

       Coaltar dye identified  ­ Tartrazine 

       Total soluble solids  ­ 6.62 % 

       Total acidity in terms of acetic acid  ­  0.72 % 

       Insect and fungus  ­ Nil 

       Test for sugar  ­ Negative 

       Test for saccharin  ­ Negative 

       As per CFL report after analysis it was found as follows :Total soluble solids  % by wt.  7.0CA No. 4/11                                                                          8/15Total acidity in terms of acetic acid  % by wt.  1.1 

       Synthetic colours  Present, identified as 'Tartrazine' 

       Preservatives                 absent 

a.     Total   soluble   solids   content   falls   below   the   minimum  

       requirement of 10.0 % by wt.b.     Contains synthetic colour, ' Tartrazine' not permitted in this 

       product.On perusal of PA report and CFL report it is clear that there 

is difference in two reports.  In PA report total soluble solids was 

found 6.62 % whereas in the CFL report the total soluble solid 

was found as 7 %.  Further in PA report acidity in terms of acetic 

acid was found 0.72 % whereas in the CFL report acidity in terms 

of acetic acid was found as 1.1 %.  In the CFL report it was clearly 

mentioned   that   preservatives   were   absent,   where   as   in   the   PA 

report nothing has been stated about the preservatives.In   the   CFL   report,   it   is   clearly   mentioned   that   the 

preservatives were absent.  Moreover, the second counter part of 

the   sample   was   examined   by   the   director   CFL,   Mysore   vide 

certificate no. 209/PFA/95 dated 06.06.1995, approximately about 

eight months from the taking of sample, as the sample was takenCA No. 4/11                                                                         9/15on 26.09.1994. Therefore, there is some force in the contention of 

the ld. counsel for the appellant that while taking the sample the 

preservatives   were   not   used   and   due   to   that   sample   does   not 

confirm to the standard.  There is also variation in the two reports, 

i.e  the report of PA and the report of CFL.InKanshi Nath v. State2005 (2) FAC 219 (Delhi High Court) 

relied upon on behalf of the appellant, it was observed as follows :"11.     Coming   to   the   next   controversy,   i.e.,   with  

       regard   to   the   representativeness   of   the   sample,   it  is   clear  

       from   the   Full   Bench   decision   inMCD   vs.   Bishan   Sarup  

       (Supra) that if the samples are not representative, then any  

       test report based on it would not indicate the true position.That being the case, a conviction can not be founded on such  

       a test report.  Upon an examination of the cases mentioned  

       by Mr. Mittal, it also becomes clear that although in terms ofSection 13 (3)of PFA Act, the Director's certificate would  

       supersede the Public Analyst's report, the difference in the  

       two can still be looked into by the courts for ascertaining as  

       to   whether   the   samples   were   representative   or   not.     Mr.  

       Sharma had placed reliance on the Supreme Court decision  

       inCalcutta Municipal Corporation(supra) and particularlyCA No. 4/11                                                                               10/15on paragraph 14 thereof which reads as under:­14.           Thus   the   legal   impact   of   a  

              certificate   of   the   Director   of   Central   Food  

              Laboratory is three­fold.   It annuls or replaces  

              the report of the Public Analyst, it gains finality  

              regarding  the quality  and  standard  of  the  food  

              article   involved   in   the   case   and   it   becomes  

              irrefutable so far as the facts stated therein are  

              concerned.  (emphasis added) A careful reading  

              of the Supreme Court decision reveals that the  

              certificate  of the  Director, CFL  supersedes  the  

              report of the Public Analyst and is conclusive as  

              regards the quality and standards of the sample  

              tested.   There is no quarrel with this and there  

              can   be   none.     But,   this   does   not   enable   us   to  

              detract from the ratio of the Full Bench decision  

              of   this   court   in   the   case   ofMCD   vs.   Bishan  

              Sarup(supra) that even after such a certificate is  

              issued   by   the   Director,   CFL,   it   would   still   be  

              open to the accused to establish, if he can do so  

              on concrete grounds, that the sample tested was  

              not   a   representative   one.     To   this   extent,   theCA No. 4/11                                                                                    11/15argument   raised   by   Mr.   Sharma   that   one   the  

              certificate of the Director, CFL is obtained, then  

              that   is   final   and   conclusive   and   the   Public  

              Analyst's report cannot be looked into at all for  

              any purpose whatsoever, is not quite tenable.  If  

              the   variation   in   the   two   reports   is   substantial  

              enough,   then   the   Public   Analyst's   report   can  

              certainly   be   looked   into   to   establish   this  

              variation so as to support the contention of the  

              petitioner that the sample was not representative.  

              As indicated above, the Director, CFL who was  

              examined   as   CW­1   in   cross­examination,   has  

              clearly stated that if the content of common salt  

              as quantified  by the two experts would have  a  

              variation of more than ­Y.3% then the samples  

              would not be representative.  This is an opinion  

              of an expert and one has to go by it.  In the facts  

              of the present case, we find that the variation, as  

              indicated above, is more than ­Y.3%.  Therefore,  

              on the facts of the present case, it can be said  

              that the variation is beyond the acceptable range  

              and would clearly imply that the samples wereCA No. 4/11                                                                                  12/15not representative.  In view of this finding and in  

              the background of the law which is well settled,  

              no conviction can be sustained.Therefore, in the light of above case law it is amply clear that 

there is noticeable difference between the report of the public Analyst 

and report of CFL, which leads to the inference that sample taken by 

the  Food  Inspector  was   not of  representative  character.   And  if  the 

sample taken was not of representative character than the accused is 

entitled to be acquitted.  The glaring variation in the two reports i.e. PA 

report   and   report   given   by   CFL   leads   to   the   conc 

lusion   that   the   sample   taken   by   the   Food   Inspector   was   not 

representative character.In the present case, acidity in terms of acetic acid in the PA 

report  is 0.72 % less than the minimum limit of 1.0%, but in the CFL 

report the acidity in terms of acetic acid was found 1.1 %   which is 

above the minimum limit of 1.0%.   There is also a difference in the 

report of PA and CFL regarding soluble solids, as the PA report it is 

6.62   %   whereas   in   CFL   report   it   is   7.0   %.     Therefore,   there   is   a 

difference in the two reports, moreover, in the CFL report acidity in 

terms   of   acetic   acid   was   found   1.1   %   above   than   the   minimum 

prescribed.CA No. 4/11                                                                                 13/15Regarding the presence of Tartrazine (permitted coal tar dye) in 

sweet   was   considered   in   the   case   ofShiv   Narayan   v.   State   of 

Haryana, 1996 (2) FAC 313 (Punjab & Haryana)   and it was held 

that mere presence of Tartrazine, which is a permitted colour for foods 

mentioned in Rule 29, cannot be said to be injurious to health as the 

use of prohibited colours, the petitioner was accordingly acquitted.Similar matter was considered in  K.B. Devassi Kutti v.   Food 

Inspector,   Criminal   Revision   No.   742/2001   dated   05.12.2008, 

wherein the petitioner had been convicted for sample of de­husked split 

guine green daal, which was reported to be not confirming to standard 

under the Act and Rules as cold tar colour Tartrazine was found to be 

present.  The conviction was set aside.The   facts   involved   in   the   present   case   are   similar   to   those 

discussed above.  The PA report and CFL report mentions the presence 

of colour Tartrazine should not be present and not permitted in the 

product.  However, the Tartrazine is permitted colour for the category 

of   foods   specified   in   Rule   29   which   shows   that   per   se   it   is   not   a 

prohibited colour.  For the food articles to be considered as adulterated, 

it has to  be further shown that its presence was injurious or prejudicial 

to the purchaser, however, there is no weight, quantity or proportion of 

Tartrazine,   specified   in   the   collected   sample   from   where   injurious 

effect of the presence of Tartrazine could be inferred.  Otherwise alsoCA No. 4/11                                                                                   14/15there is difference between the two reports, i.e. PA report and CFL 

report, as discussed above.Therefore,   as   a   sequel   of   above   discussions   I   am   of   the 

considered   view   that   appellant/accused   is   entitled   to   be   acquitted. 

Accordingly, the appeal is allowed.   The Judgment of conviction and 

order   on   the   sentence   passed   by   the   Ld.   Trial   Court   are   set   aside. 

Accordingly, the appellant is acquitted.Bail bonds of appellant is cancelled and his surety is discharged. 

Appellant to furnish fresh bail bond in terms of Section 437 A Cr.P.C.Trial court record be sent back alongwith copy of this judgment. 

Appeal file be consigned to record room after due completion.Announced in the open court                                    (LAL SINGH)
on 22nd February, 2012                                  ASJ­02/FTC, PHC/ND
                                                                22.02.2012CA No. 4/11                                                                                 15/15