Mithilesh vs State
2009 Latest Caselaw 4449 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 27th October, 2009
                    Judgment Delivered on: 04th November, 2009

+       CRL.R.P.619/2002 & Crl.M.A.Nos.772-773/2002


        MITHILESH                        ..... Petitioner
                           Through:   Mr.M.K.Singh & Mr.Vishal Gera,
                                      Advocates.

                    versus

        STATE                            ..... Respondent
                           Through:   Mr.Manoj Ohri, APP


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the
        Digest?                                       Yes


INDERMEET KAUR, J.

1. On 11.2.1993, Food Inspector S.K.Sharma under the

supervision of Dr.Pawan Vats had lifted a sample of chilly power

from an open container from the shop of Mithilesh being run in the

name and style of M/s Mithilesh General Store, 96A, MIG Flats,

Opposite GTB Hospital, GTB Enclave, Shahdara, Delhi. The sample

was of 450 gms.; it had been lifted after proper homogenization

and put into three dry and clean glass bottles in equal parts;

thereafter packed, fastened and sealed.

2. The public analyst vide report dated 7.4.1993 had opined

the sample as adulterated because it contained salt as an

adulterant. The report reads as under:

        "Moisture      -             8.22%
        Total ash      -             7.44%
        A insoluble in dil. Ncl. -   0.34%
        Non voletile other extract - 20.97%
        Crude fibre    -             19.25 %
        Test for coaltar dye -       negative
        Test for starch         -    negative
        Insect & Fungus         -    nil
        Microscopy              -    Chillies structures seen.
        Test for sodium chloride - positive
        Sodium chloride (common salt)- 2.54%"

3. The petitioner exercised his right under Section 13 (2) of the

Prevention of Food Adulteration Act (hereinafter referred to as PFA

Act). The second sample was examined by the Director of the

Central Forensic Laboratory (CFL) and the said report is dated

30.6.1993. The sample examined was opined to be adulterated

on two counts:

(a) Total ash content exceeds the maximum specified limit of 8.0% by weight.

(b) It is not free from the presence of sodium chloride.

The contents of the report reads as under:

"1. Physical appearance - Chilli powder free from insect infestation and mould growth.

        2.     Moisture         -                          6.32%
        3.     Total ash        -                          9.72% by weight
        4.     Ash insoluble in dilute HCl                 0.89% by weight
        5.     Non-volatile ether extract                  18.31% by weight
        6.     Crude fibre                                 22.09% by weight
        7.     Test for presence of added starch           Negative
        8.     Test for presence of sodium chloride        Positive
        9.     Sodium chloride content                     2.5% by Weight
        10.    Test for presence of colouring matter       Negative
        11.    Test for presence of turmeric               Negative

12. Microscopic examination of the sample revealed the presence of structures of chilli only."

4. The trial court vide impugned order dated 30.3.2002 had

held that the petitioner had violated the provisions of Section 2

(ia) (a) (m) and was held guilty for the offence punishable under

Section 7 read with Section 16 (1) of the PFA Act. Vide order of

sentence dated 6.4.2002, he was sentenced to undergo RI for a

period for one year and to deposit a fine of Rs.3000/-; in default of

payment of fine, to undergo SI for three months.

5. This judgment was the subject matter of an appeal before

the Additional Sessions Judge who vide impugned order dated

30.7.2002 dismissed the appeal; no modification was made in the

sentence either.

6. On behalf of the petitioner two broad submissions have

been made before this court.

(I) It is submitted that sodium chloride (salt) is a Class I

preservative; this is evident from Rule 53 of the PFA Rules, 1955.

There are two classes of preservatives mentioned in Rule 53;

Class I preservative includes common salt. Under Rule 54 and

Rule 55 there are certain restrictions imposed on the use of class

II preservatives; these restrictions are indicative of the intention of

the Legislature; i.e. on their free use; preservatives enlisted in the

Class I category are those items which are essential for the health

and well-being of an individual; that is why there are no

restrictions imposed upon this category i.e. on Class I

preservatives; this is also so specifically stated in Rule 53. Salt

essentially being a preservative cannot become an adulterant.

Attention has also been drawn to the definition of „adulterant‟ as

contained in Section 2(i) and „adulterated‟ as contained in Section

2 (ia) of the PFA Act. It is stated that unless the substance is

injurious to the health of a person, it cannot be an adulterant and

this is evident from the reading of sub-clause (b), (c), (d), (e) and

(h) of Section 2 (i) (ia); all other categories as contained in

Section 2 (1) are cases of mis-branding/mislabelling which is the

second category of offences for which an offender can be

prosecuted under the PFA Act. It is submitted that in the process

of the analysis of a sample the substance gets burnt and the total

quantity of ash detected in the sample also includes the salt

content in it. The salt content has to be subtracted from the total

ash. It is pointed out that in the report of the public analyst the

total ash detected was 7.44% which is within the prescribed

standard of 8% as contained in A.05.05.01 i.e. the prescribed

standard of chillies in appendix B of the PFA Rules. In the report

of the Director, CFL, the total ash detected is 9.72%; sodium

chloride is 2.50% and if 2.50% is substracted from 9.72%, the ash

content would be 7.22% which would be well within the prescribed

standard of 8%. Counsel for the petitioner has placed reliance

upon a judgment of a coordinate bench of this court reported in

Kanshi Nath vs. State 124 (2005) DLT 413 to support this

submission; attention has been drawn to para 4 sub para 1; it is

submitted that in the said case, the expert from the CFL

department i.e. the Director in his cross-examination had admitted

that sodium chloride is a class I preservative; it is an inorganic salt

and attributes towards total ash only. On this analogy salt is liable

to be deducted from the total ash content; ash content as per the

report of the Director, CFL would then be 7.22%; the sample of the

chilli powder would thus conform to the prescribed standard.

(II) The second argument advanced by the learned counsel for

the petitioner is on the sample not being a representative sample.

It is pointed out that the variations in the report of the public

analyst and the report of Director CFL are significant variations

and applying the test as laid down in Kanshi Nath‟s case (supra) a

+0.3% variation on either side is by itself sufficient to enure for

the benefit of the accused. For the same proposition reliance has

also been placed upon another subsequent judgment of this court

reported in Crl.A.54/1990 decided on 24.1.2008 titled as State vs.

Mahender Kumar. It is submitted that in this case as well the

ingredients in the two reports i.e. the report of the public analyst

and the report of the CFL having a significant difference, being

more than the prescribed difference of +0.3%; the samples were

held not to be representative samples entitling the petitioner to an

acquittal on this ground as well.

7. The record has been perused and the submissions and the

counter-submissions advanced by the parties have been noted.

8. Rule 53 of the PFA Rules defines common salt as a Class I

preservative. The prescribed standard for chillies is contained in

A.05.05.01 in appendix B of the PFA Rules. The standards

contained therein have been perused. They read as under:

(i) Moisture Not more than 11.0 per cent by weight

(ii) Total ash on dry basis Not more than 8.0 per cent by weight

(iii) Ash insoluble in dilute HCL on dry basis Not more than 1.3 per cent by weight

(iv) Crude fibre Not more than 30.0 per cent by weight

(v) Non-volatile either extract on dry basis Not more than 12.0 per cent by weight

(vi) Salmonella Absent in 25g

9. This table does not make any reference to salt. The

standard prescribed for edible common salt which includes an

iodized salt is contained in A.05.05.01 of the PFA Rules. The very

fact that chillies and iodized salt have different prescribed

standards under the PFA Rules means that each has to conform to

its own category; one cannot overlap into the other. The public

analyst and the Director, CFL while examining this sample of chilli

powder has detailed 12 categories; there is a separate column for

total ash and a separate column for sodium chloride; if sodium

chloride was a part and parcel of the total ash as has been argued

by the counsel for the petitioner, there would not have been any

need for having a separate category for these two contents i.e.

the total ash content and the sodium chloride content.

10. The report of the public analyst had opined the sample to be

adulterated as it contained salt as an adulterant. Learned counsel

for the petitioner has not been able to point out any provision in

the PFA Act or the Rules to show that the presence of salt in a

sample of chillies is permissible. The proviso of Rule 53 reads as:

"Provided that the article of food to which a Class I preservative has been added conforms to the specifications laid down in Appendix "b".

11. Specifications in Appendix "B" contained in A.05.05.01 do

not permit presence of salt. PW-2, the food inspector in his cross-

examination has in fact stated that common salt is not permitted

in lal mirch powder.

12. Definition of "adulterated" as contained in Section 2 (ia) (k)

and (m) are also relevant.

Section 2 (ia) (k) reads as:

(k) If the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

Common salt is not prohibitive preservative yet what is the

prescribed limit of a permitted preservative could not be shown by

the counsel for the petitioner.

Section 2 (ia) (m) reads as under:

(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Clause (m) postulates a situation where the articles fall

below the prescribed standard even if it is not injurious to health.

It is clear from this provision that if salt is added to chillies even if

it would not be rendered injurious to health, nevertheless the

quality/purity of the article would fall below the prescribed

standard/its constituents as prescribed in A.05.05.01 limit. It

would be adulterated.

13. Considering the various sub-clauses of clause (ia) of Section

2 above, it appears that an article of food may be considered

adulterated for various reasons or causes and the same article of

food may be covered by any one or more of the sub-caluses of

clause (ia) above. While it may be that an article of food in a

particular case, may not be covered by more than one provision of

the said sub-clauses but if it is covered by the provision of even

one of the sub-clauses like sub-clause (m) as is in the present

case, it shall, in the opinion of this court be sufficient to consider

the article of food as adulterated and accordingly even though it

may be said that mere addition of common salt to the chilli

powder did not render it injurious to health, it was nevertheless

adulterated within the scope and meaning of sub-clause (m) of

clause (ia) of Section 2 of the Act. This court is, therefore, unable

to accept the submission for the petitioner that the chilli powder in

question was not adulterated. The learned courts below have

rightly held that the chilli powder in question was adulterated.

14. It also cannot also be lost sight of, being common

knowledge that price of red chilli powder is much higher as

compared to price of common salt; unscrupulous persons in order

to increase the weight of lal mirch powder could well add common

salt to increase its weight.

15. In the judgment of Kanshi Nath (supra) an argument had

been propounded that sodium chloride being a class I preservative

is liable to be deducted from the total ash which argument had

been countered by the counsel for the State; the same had,

however, been left open and no final decision had been taken in

the matter. In that case, the sample of dhaniya powder had been

held to be adulterated because of presence of sodium chloride

which had been defined as a „foreign ingredient‟.

16. First submission of the learned counsel for the petitioner is

without any merit.

17. The judgment of Kanshi Nath (supra) relied upon by the

learned counsel for the petitioner to support his second

submission that his sample is not representative sample is also

without merit; the said case is distinct on its own facts.

18. In MCD vs. Bishan Sarup 1972 FAC 273, a full bench of this

court had held that once the Director of the CFL has issued a

certificate in terms of Section 13 (5) of the PFA Act, the certificate

is final and conclusive evidence of the facts stated therein; i.e. in

regard to the contents of the sample actually examined by the

Director and nothing more. The full bench had further held that

"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 the record the sample sent for analysis to the Director could not be taken to be a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction based on the certificate will not be sustainable."

It is, thus, clear that although in terms of Section 13 (3) of

the PFA Act 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.

19. In Kanshi Nath (supra) there were three arguments which

were advanced before the court; it was the second argument of

the petitioner which had found favour with the court and it had

been held that the sample not being a representative sample,

petitioner was entitled to a benefit of doubt. The issue before the

said court was the variation in the content of the sodium chloride

and the admission by the Director, CFL in his cross-examination

that a sample to be representative if examined by two different

experts cannot have a total variation of +0.3% in its sodium

chloride content. It was on this count the court had held that

where the sodium chloride content in the two reports is more than

+0.3% the sample can be discarded as being non-representative.

20. In the instant case, the difference in the sodium chloride in

the two samples is only .04% and not covered in the +0.3%

variation; what has been argued is the variation in the contents of

the total ash, crude fibre and the non-voletile other extracts.

These were not under consideration in the Kanshi Nath judgment;

the ratio of that judgment is inapplicable to the facts in this case.

21. The second judgment relied upon by the counsel for the

petitioner i.e. State vs. Mahender Singh was an appeal by the

State against an order of acquittal passed by the Sessions Judge.

The parameters and considerations weighing before an Appellate

Court while considering an appeal against an acquittal are

different and distinct from the parameters and considerations

which are taken into account when the Appellate Court is dealing

with an impugned judgment where a person has been convicted.

In an appeal against an acquittal, the court will interfere only if

there is a perversity or a total miscarriage of justice; it was in the

light of these principles the said judgment was delivered. Said

judgment would also be inapplicable.

22. The food inspector Virender Singh PW-2, another food

inspector S.K. Sharma PW-3 and Dr.Pawan Vats PW-4 have all

categorically stated that after the sample was lifted, it was kept in

clean and dry glass bottles; same was taken after proper

homogenization with the help of a clean and dry karchhi. No

suggestion to the contrary has also been given to these witnesses

by the learned defence counsel that the samples were not

representative samples.

23. The second argument of the learned defence counsel is also

without force.

24. However, on the quantum of sentence, this court has taken

due regard of the fact that the petitioner herein was a petty shop

keeper. Matter relates to the year 1993 i.e. dating back to sixteen

years; petitioner has suffered incarceration of about 12 days out

of the period of sentence of one year which had been awarded to

him. There is no overemphasizing the fact that speedy trial which

is the essence of justice has been lost. The Supreme Court in

Braham Das vs. State of Himachal Pradesh AIR 1988 SC 1789

had held that 8 years having been lost, where part of the sentence

had been undergone, the petitioner had been sentenced to the

period already undergone by him. In Veer Singh Chauhan vs.

State of Delhi 1994 (2) CCC 253, the revision had come up for

hearing after seven years; the court reduced the sentence to the

one already undergone i.e. of a period of 3 months.

25. In the instant case, the offence relates to the year 1993.

The nature of offence i.e. the sample having been found to be

adulterated in terms of Section 2 (ia) (m); the period of 12 days of

incarceration already undergone by the petitioner who would as

on date be about 47 years of age, he having rooted himself in

society, the ends of justice would be met if the sentence is

reduced from RI one year to a period of RI three months. No

modification is made in the fine which has been imposed.

26. The bail bond and surety bond stand cancelled. The

petitioner is directed to surrender forthwith to suffer the

remaining sentence.

(INDERMEET KAUR) JUDGE 04th November, 2009 rb