DELHI ADMINISTRATION versus VIDYA GUPTA on 24 April 2018

[2018] 4 S.C.R. 316

SUPREME COURT REPORTS

[2018] 4 S.C.R.

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DELHI ADMINISTRATION

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VIDYA GUPTA

(Criminal Appeal No. 625 of 2018)

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APRIL 24, 2018

[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]

Prevention of Food Adulteration Act, 1954 – s.7 – Sampletaken from the Ghee that was stored for the purpose of makingjalebis – Allegation that the sample of Ghee did not conform to theCstandards of Ghee as per the Act – Conviction under ss.2(ia), (a),(c) and (m) punishable under s.16(1)(a) r.w. s.7 of the Act – Acquittalby first appellate court – High Court declined to set aside acquittalon the ground that sample of Ghee was not meant for sale but it wasmeant to be used merely as an ingredients in the preparation ofDsweets which in turn were meant for sale – On appeal, held: s.7prohibits the storing of adulterated food notwithstanding the factthat such adulterated food is itself not offered for sale, but is usedin making some food which is offered for sale – Thus, whether theadulterated food is stored for sale, or such food is stored for makingsome other food which is sold, such storing is an offence – AcquittalEof the respondent is set aside – However, sentence is confined tothe period already undergone since the accused is now about 70years old and the proceedings commenced in 2004 and the businesshas closed down since.

Prevention of Food Adulteration Act, 1954 – s.13 – VarianceFbetween the reports of Public Analyst and the Director, CFL –Evidentiary value of certificate from the Director – Held: The lawaccords greater importance to the report from the Director that itprohibits the Court from continuing with the prosecution until thereceipt of the certificate from the Director – Sub-section 3 of s.13Gclearly attributes a higher evidentiary value to the certificate fromthe Director when compared to the report given by the PA – Theproviso to sub-Section 5 provides that the certificate from theDirector shall be final and conclusive evidence of the facts statedtherein – Thus, the report of the PA loses any significance in theproceedings as a piece of evidence.H

Allowing the appeal, the Court

HELD: 1. The explanation to Section 7 clearly lays downthat if a person stores any adulterated food for the purpose ofmanufacturing from it any article of food for sale, he shall bedeemed to store adulterated food. The purpose of this provisionis clear, it prohibits the storing of adulterated foodnotwithstanding the fact that such adulterated food is itself notoffered for sale, but is used in making some food which is offeredfor sale. It is clearly to prevent the adulteration of food and itssale to the public even when it is meant to be used for preparingsome other food which is offered for sale. Thus, either way,whether the adulterated food is stored for sale, or if such food isstored for making some other food which is sold, such storing isan offence. Parliament has rightly assumed that no one, who offersfood for sale, would store food which is not meant to be used insome food meant for sale. [Para 6][321-G-H; 322-A-C]

2. The law accords such great importance to the report fromthe Director that it prohibits the Court from continuing with theprosecution until the receipt of the certificate from the Director.Sub-section 3 of Section 13 clearly attributes a higher evidentiaryvalue to the certificate from the Director when compared to thereport given by the PA. The proviso to sub-Section 5 providesthat the certificate from the Director shall be final and conclusiveevidence of the facts stated therein. Thus, the report of the PAloses any significance in the proceedings as a piece of evidence.Therefore, there is no reason for the Court to refer to the contentsof the report of the PA. Where there is no reason to refer to itscontents of the report of the PA, there is even less reason torefer to the variation between the report of the PA and theDirector. The Court is enjoined by law to consider the contentsof the certificate of the Director only. [Paras 9, 10][325-A-B, E-H]

3. The finding of the High Court that the variation betweenthe two reports was 0.76% and therefore more than 0.3% aspermitted in Ram Singh’s case is completely unsustainable andliable to be set aside. It is thus clear that the accused was notentitled to the acquittal and the acquittal is liable to be set aside.However, the proceedings commenced in the year 2004, thebusiness has closed down since and the accused is now about 70

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Ayears old. In these circumstances, the sentence is confined tothe period already undergone. [Para 12][326-E, G; 327-A]

Calcutta Municipal Corporation v. Pawan Kumar Sarafand Another (1999) 2 SCC 400 : [1999] 1 SCR 74 –relied on.

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Kanshi Nath v. State 2005 (2) FAC 219 ; State v.Mahender Kumar & Ors. 2008 (1) FAC 177 – not goodlaw.

Municipal Corporation of Delhi v. Laxmi Narain Tandon(1976) 1 SCC 546 : [1976] 2 SCR 1050 – heldCinapplicable.

State (Delhi Administration) v. Ram Singh and Another(2009) 1 FAC 371 ; Municipal Corporation of Delhi v.Kacheroo Mal (1976) 1 SCC 412 : [1976] 2 SCR 1 –referred to.

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Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 625 of 2018.

From the Judgment and Order dated 20.12.2013 of the High Courtof Delhi at New Delhi in Crl. L. P. No. 764 of 2013.

Aman Lekhi, ASG, Aman Sinha, K. L. Janjani, Bharat Singh,

B. V. Balaram Das, Advs. for the Appellant.

Tripurari Rai, Vikrant Yadav (for M. C. Dhingra), Advs. for theRespondent.

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The Judgment of the Court was delivered by

S. A. BOBDE, J. 1. Leave granted.

2. The accused, a vendor of M/s New Bikaner Sweet Centerwas in charge of the day to day business of the shop[1]. On 08.04.2004 atabout 7.00 PM, Food Inspector Shri S.K. Sharma purchased a sampleof Ghee, a food article for analysis from the shop of the accused wherethe said food article was stored for sale.

The sample consisted of approximately 600 gms of Ghee takenfrom an open tin bearing no label or declaration, after proper mixing withthe help of a clean and dry long spoon. The sample was divided intothree equal parts and stored separately as per the requirements in threeseparate clean and dry glass bottles under the supervision and directionof Shri B.M. Jain, SDM/LHA. The vendor’s signature was obtained onthe LHA slip and the wrapper of the sample bottles and the Panchnamawas prepared on the spot.

One counterpart of the sample[2] was sent to the Public Analyst,Delhi (hereinafter referred to as “PA”), and the other two counterpartswere deposited with the LHA. The PA opined that the sample exceedsthe maximum Butyro Refractometer (hereinafter referred to as “BR”)reading limit of 43 and has a Reichert value of lessthan 28. The sample also tested positive for Baudouin Test, which shouldbe negative in case of Ghee. And thus, does not conform to the standard.

Upon summoning, the accused opted to get the second counterpart[3]of the sample analyzed by the Director, CentralFood Laboratory (hereinafter referred to as “the Director”) under Section13 (2) of the Prevention of Food Adulteration Act, 1954 (hereinafterreferred to as “the Act”). The report[4] opined that the sample did notconform to the standards of Ghee as per the Act and the charges wereframed. The ACMM-II held the accused guilty of the violation of theprovisions of Section 2 (ia) (a) (c) & (m) of the Act, punishableunder Section 16 (1) (a), read with Section 7 of the Act and convictedhim[5]. The Sessions Judge set aside the order of the ACMM-II, 1 Located at M/s New Bikaner Sweet Center, Sl.No. A-9, Tilak Market, Ramesh Nagar,New Delhi- 110015

2 Bearing LHA Code No. 93/LHA/7757

3 Bearing No. 93/LHA/7757

4 Certificate No.CFL/679/743/2004 dated 20.10.2004

5 Vide order dated 15.04.2011

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Avide order dated 15.04.2011 and acquitted the accused. Against the orderof acquittal, the prosecution applied for leave to appeal underSection 378(1) of the Code of Criminal Procedure. The HighCourt declined to grant relief [6], and hence the present appealis before us.

B3. There are two reasons why the High Court had declined togrant leave to appeal against the judgment of acquittal of theSessions Court.

(1) First, the sample of Ghee that was taken was itself not meantfor sale but it was meant to be used merely as an ingredient inthe preparation of sweets which in turn were meant for sale,Cand therefore no offence is made out under the provisions ofSection 2 (ia) (c) & (m) and Section 16 (1) (a) read withSection 7 of the Act.

(2) Secondly, there was a discrepancy between the report of PAand that of the Director with respect to the BR reading. TheDPA had recorded the BR reading as 52.7, whereas the Directorhad recorded the BR reading as 53.1. This variation was0.76% i.e. more than 0.3%, and therefore the sample cannotbe considered as representative in nature as held in State(Delhi Administration) v. Ram Singh and Another[7].

EWe have carefully considered the provisions of the Act and findno merit in either reason.

Whether the Food was illegally stored

4. Section 7 of the Act prohibits storing of any adulterated food,it is as follows:-F

“7. Prohibitions of manufacture, sale, etc., of certain articlesof food.—No person shall himself or by any person on hisbehalf manufacture for sale, or store, sell or distribute—

(i) any adulterated food;

G(ii) any misbranded food;(iii) any article of food for the sale of which a licence isprescribed, except in accordance with the conditions of thelicence; 6 Vide order 20.12.2013 (CRL. M.A. 19502/2013)H7 (2009) 1 FAC 371

(iv) any article of food the sale of which is for the time beingprohibited by the Food (Health) Authority [in the interest ofpublic health;]

(v) any article of food in contravention of any other provisionof this Act or of any rule made thereunder; [or]

[(vi) any adulterant.]

[Explanation.—For the purposes of this section, a person shallbe deemed to store any adulterated food or misbranded foodor any article of food referred to in clause (iii) or clause (iv)or clause (v) if he stores such food for the manufacturetherefrom of any article of food for sale.]”

This section must be construed according to the rule ofinterpretation enunciated in Municipal Corporation of Delhi v.Kacheroo Mal[8], which also arose under this Act. This Court enunciatedthe Rule as follows:

“5. The Act has been enacted to curb and remedy thewidespread evil of food adulteration, and to ensure the saleof wholesome food to the people. It is well-settled thatwherever possible, without unreasonable stretching orstraining, the language of such a statute should be construedin a manner which would suppress the mischief, advance theremedy, promote its object, prevent its subtle evasion and foilits artful circumvention…….”

5. This case turns on the above explanation to the section.According to the accused, since the Ghee which was found to beadulterated was not itself meant for sale, but was meant to be used asan ingredient in the sweets that were in turn meant for sale, no offenceis made out. The contention in other words is that it was legal to storeadulterated Ghee, if the Ghee itself was not meant for sale.

6. The explanation to the section does not support this contention.It clearly lays down that if a person stores any adulterated food for thepurpose of manufacturing from it any article of food for sale, he shall be 8 (1976) 1 SCC 412

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Adeemed to store adulterated food. The purpose of this provision is clear,it prohibits the storing of adulterated food notwithstanding the fact thatsuch adulterated food is itself not offered for sale, but is used in makingsome food which is offered for sale. It is clearly to prevent theadulteration of food and its sale to the public even when it is meant to beused for preparing some other food which is offered for sale. Thus,Beither way, whether the adulterated food is stored for sale, or if suchfood is stored for making some other food which is sold, such storing isan offence. Parliament has rightly assumed that no one, who offersfood for sale, would store food which is not meant to be used in somefood meant for sale.

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7. The learned counsel for the accused relied on the judgement ofthis court in Municipal Corporation of Delhi v. Laxmi Narain Tandon[9].In that case, this Court upheld the decision of a full bench of the DelhiHigh Court which held that the expression “store” in Section 7 means“storing for sale” and consequently the storing of an adulterated articleDof food not meant for sale would not constitute an offence under Section16 1(a). According to the learned counsel, therefore, the High Courtwas right in maintaining the acquittal of the respondent since the Gheewas found to have been stored not for sale, but for a purpose other thanthat of sale i.e. for the purpose of preparation of sweets. Though validEwhen rendered, the decision relied on can no longer govern the pointdecided. When this Court decided Tandon’s case (supra), the sectiondid not explicitly prohibit the storing of adulterated food which was notmeant for sale. This Court, therefore, held that storing of adulteratedfood which was not meant for sale was not an offence. Tandon’s case(supra) was decided on 17.12.1975; the amendment which introducedFthe deeming fiction that a person shall be deemed to store any adulteratedfood, even if he stores such food for manufacturing from it any articlefor sale was introduced by Act 34 of 1976 w.e.f. 01.04.1976. Tandon’scase (supra) therefore has no application to the present case.

In the present case, the sample of Ghee that was taken was fromGthe Ghee that was stored for the purpose of making jalebis. On theaccused’s own admission, the offence is clearly made out under Section7 of the Act.

9 (1976) 1 SCC 546

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DELHI ADMINISTRATION v. VIDYA GUPTA[S. A. BOBDE, J.]

Variation between the reports of Public Analyst andthe Director, Central Food Laboratory

8. Section 13[10] lays down the procedure by which the report ofthe PA that an article of food is adulterated is dealt with. In brief theprocedure is as follows:- 10 13. Report of public analyst.— [(1) The public analyst shall deliver, in such form asmay be prescribed, a report to the Local (Health) Authority of the result of the analysisof any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under sub-section (1) to theeffect that the article of food is adulterated, the Local (Health) Authority shall, after theinstitution of prosecution against the persons from whom the sample of the article offood was taken and the person, if any, whose name, address and other particulars havebeen disclosed under section 14A, forward, in such manner as may be prescribed, acopy of the report of the result of the analysis to such person or persons, as the casemay be, informing such person or persons that if it is so desired, either or both of themmay make an application to the court within a period of ten days from the date ofreceipt of the copy of the report to get the sample of the article of food kept by theLocal (Health) Authority analysed by the Central Food Laboratory.

(2A) When an application is made to the court under sub-section (2), the court shallrequire the Local (Health) Authority to forward the part or parts of the sample kept bythe said Authority and upon such requisition being made, the said Authority shallforward the part or parts of the sample to the court within a period of five days fromthe date of receipt of such requisition.

(2B) On receipt of the part or parts of the sample from the Local (Health) Authorityunder sub-section (2A), the court shall first ascertain that the mark and seal or fasteningas provided in clause (b) of sub-section (1) of section 11 are intact and the signature orthumb impression, as the case may be, is not tampered with, and dispatch the part or,as the case may be, one of the parts of the sample under its own seal to the Director ofthe Central Food Laboratory who shall thereupon send a certificate to the court in theprescribed form within one month from the date of receipt of the part of the samplespecifying the result of the analysis.

(2C) Where two parts of the sample have been sent to the court and only one part of thesample has been sent by the court to the Director of the Central Food Laboratory undersub-section (2B), the court shall, as soon as practicable, return the remaining part to theLocal (Health) Authority and that Authority shall destroy that part after the certificatefrom the Director of the Central Food Laboratory has been received by the court:Provided that where the part of the sample sent by the court to the Director of theCentral Food Laboratory is lost or damaged, the court shall require the Local (Health)Authority to forward the part of the sample, if any, retained by it to the court and onreceipt thereof, the court shall proceed in the manner provided in sub-section (2B).(2D) Until the receipt of the certificate of the result of the analysis from the Director ofthe Central Food Laboratory, the court shall not continue with the proceedings pendingbefore it in relation to the prosecution.

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AWhen a report, that the article of food is adulterated, is receivedand a prosecution is instituted, the local health authority is enjoined toforward a copy of the report of such analysis to such person or personswho may have applied for having such food analyzed vide Section 12.Such persons may, if desired, make an application to the Court to havethe sample of the article of food analysed by the Director, and the CourtBmay then dispatch a part of the sample received to the Director. TheDirector shall send a certificate specifying the result of the analysis.Where two parts of the sample have been sent to the Court and one parthas been sent by the Court to the Director, the Court is bound to sendthe remaining part to the local health authority who is bound to destroy itCafter a certificate is received from the Director vide sub-section (2C) ofSection 13.

(2E) If, after considering the report, if any, of the food inspector or otherwise, the Local(Health) Authority is of the opinion that the report delivered by the public analystDunder sub-section (1) is erroneous, the said Authority shall forward one of the parts ofthe sample kept by it to any other public analyst for analysis and if the report of theresult of the analysis of that part of the sample by that other public analyst is to theeffect that the article of food is adulterated, the provisions of sub-sections (2) to (2D)shall, so far as may be, apply.]

(3) The certificate issued by the Director of the Central Food Laboratory [under sub-Esection (2B)] shall supersede the report given by the public analyst under sub-section(1).

(4) Where a certificate obtained from the Director of the Central Food Laboratory[under sub-section (2B)] is produced in any proceeding under this Act, or under sections272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in suchproceeding to produce any part of the sample of food taken for analysis.

F(5) Any document purporting to be a report signed by a public analyst, unless it hasbeen superseded under sub-section (3), or any document purporting to be a certificatesigned by the Director of the Central Food Laboratory, may be used as evidence of thefacts stated therein in any proceeding under this Act or under sections 272 to 276 of theIndian Penal Code (45 of 1860):

[Provided that any document purporting to be a certificate signed by the Director of theGCentral Food Laboratory [not being a certificate with respect to the analysis of the partof the sample of any article of food referred to in the proviso to sub-section (1A) ofsection 16] shall be final and conclusive evidence of the facts stated therein.]

[Explanation.—In this section, and in clause (f) of sub-section (l) of section 16, “Directorof the Central Food Laboratory” shall include the officer for the time being in charge ofany Food Laboratory (by whatever designation he is known) recognised by the CentralGovernment for the purposes of this section.]H

9. The law accords such great importance to the report from theDirector that it prohibits the Court from continuing with the prosecutionuntil the receipt of the certificate from the Director.

Sub-section 3 of Section 13 clearly attributes a higher evidentiaryvalue to the certificate from the Director when compared to the reportgiven by the PA. It reads as follows:- “13. Report of public analyst-

(1) .………….

(2) ……………

(2A)…………..

(2B)…………..

(2C)…………..

(2D)…………..

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(3) The certificate issued by the Director of the Central FoodLaboratory [under sub-section (2B)] shall supersede the reportgiven by the public analyst under sub-section (1).”

The proviso to sub-Section 5 provides that the certificate fromthe Director shall be final and conclusive evidence of the facts statedtherein.

The above scheme, particularly sub-Section 3 which provides thatthe certificate of the Director shall supersede the report of the PA andthe proviso which makes such a certificate final and conclusive evidence,puts it beyond any shadow of doubt that the report of the PA loses anysignificance in the proceedings as a piece of evidence.

10. Therefore, there is no reason for the Court to refer to thecontents of the report of the PA. Where there is no reason to refer to itscontents of the report of the PA, there is even less reason to refer to thevariation between the report of the PA and the Director. The Court isenjoined by law to consider the contents of the certificate of the Directoronly.

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11. Moreover, this view is no more res integra in view of thejudgment of this Court in Calcutta Municipal Corporation v. PawanKumar Saraf and another[11]. This Court held as follows:- “Per majority (Thomas and Quadri, JJ.)

When Section 13(3) says that the certificate of Director, CFLBshall supersede the report, it means that the report would standannulled or obliterated. The word “supersede” in law means“obliterate, set aside, annul, replace, make void orinefficacious or useless, repeal”. Once the certificate of theDirector of the Central Food Laboratory reaches the court,the report of the Public Analyst stands displaced and whatCmay remain is only a fossil of it. In the above context theproviso to sub-section (5) of Section 13 can also be looked atwhich deals with the evidentiary value of such certificate. Ifa fact is declared by a statute as final and conclusive, itsimpact is crucial because no party can then give evidenceDfor the purpose of disproving that fact. This is the import ofSection 4 of the Evidence Act. Thus the legal impact of acertificate of the Director of the Central Food Laboratory isthreefold. It annuls or replaces the report of the PublicAnalyst, it gains finality regarding the quality and standardof the food article involved in the case and it becomesEirrefutable so far as the facts stated therein are concerned.”

12. The finding of the High Court that the variation between thetwo reports was 0.76% and therefore more than 0.3% as permitted inRam Singh’s case (supra) is completely unsustainable and liable to beset aside. The reliance placed by the High Court on the decisions inFKanshi Nath v. State[12]and State v. Mahender Kumar & Ors.[13], whichhold that if in the comparison of the reports of the PA and the Directorvast variations are found, then the samples are not representative, isimproper. Those decisions do not lay down good law.

It is thus clear that the accused was not entitled to the acquittalGand the acquittal is liable to be set aside. We, therefore, set asidethe acquittal of the respondent and convict him for the offenceunder Section 2 (ia) (a) (c) & (m) of the Act, punishable under Section16 (1) (a), read with Section 7 of the Act.

11 (1999) 2 SCC 40012 2005 (2) FAC 219– Delhi High CourtH13 2008 (1) FAC 177

[S. A. BOBDE, J.]

However, the proceedings commenced in the year 2004, thebusiness has closed down since and the accused is now about 70 yearsold. In these circumstances, we direct that the sentence shall be confinedto the period already undergone.

13. Appeal is allowed accordingly.

Devika Gujral

Appeal allowed.

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