National Dairy Development Board, Anand vs State of Haryana

P.K. Jain, J.

This order shall dispose of two petitions bearing Crl. Misc. No. 13493M of 1995 and Crl. Misc. No. 19903M of 1995, since common questions of law and facts are involved therein.

The facts necessary for the disposal of these petitions are that National Dairy Development Board, Anand, Gujarat (petitioner in Crl Misc. No. 13493M of 1975) is the manufacturer, Gujarat Cooperative Milk Marketing Federation Limited, New Delhi, is the supplier, M/s. Banshi and Company is the Stockist/Distributor, and Sham Lal, carrying on his business under the name and style of M/s Bajaj Di Hatti in Naya Bazar, Bhiwani, is the dealer of Dhara refined mustard oil and Dhara doublefiltered mustard oil.

On 19.8.1992, Food Inspector purchased a sample of the said refined oil weighing 375 Mls. from a sealed container from the said dealer. The refined oil was divided into 3 equal pats and put into 3 dry and clean bottles. Each bottle was properly stoppered, secured, fastened, wrapped and sealed in accordance with the procedure prescribed by law. One of such sealed sample was forwarded to the Public Analyst, Karnal, who vide his report dated 24.9.1992 (Annexure P.1) found the sample to be unrefined due to the presence of odour and colour of mustard and not free from suspended matter. After obtaining necessary sanction for prosecution and complying with the other provisions of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') filed a complaint against Sham Lal, the dealer, in the Court of the Chief Judicial Magistrate, Bhiwani, on 20.10.1992. On an application, filed under section 13 of the Act by the dealer, the Court had sent the second sample to the Central Food Laboratory for analysis and the Director thereof sent his certificate date 21.12.1992 (Annexure P.3) giving his opinion to the effect that the sample did not conform to the standards laid down for mustard (toria) under the Act read with the Rules framed thereunder and that the same was not free from ''rancidity''. However, he found the contents to be clear oil free from any separated water and suspended matter.

Thereafter, on an application moved by the accused Sham Lal under section 20A of the Act, Banshi Lal of M/s Banshi Lal and Co. was impleaded as an accused. In that application, Sham Lal stated that he had purchased that sealed packet from the said distributor. On a further application filed by Banshi Lal accused, the Chief Judicial Magistrate, by order dated 21.4.1994 (Annexure P.7) summoned National Dairy Development Board, the manufacturer and M/s Gujarat Cooperative Milk Federation the Agent/Supplier, under section 20A of the Act to face trial. The manufacturer then moved an application (Annexure P.8) for recalling the aforesaid order and for dropping the proceedings against it. That application has been dismissed by order dated 9.6.1995 (Annexure P.10).

The manufacturer as well as the dealer have filed these petitions under section 482 of the Code of Criminal Procedure for quashing the summoning orders as well as the complaint and the proceedings taken in pursuance thereof, pending in the Court of the Chief Judicial Magistrate, Bhiwani.

It has been stated in the petitions that as per the report of the Public Analyst, the sample was reported to be unrefined and not free from suspended matter, but the sample was free from rancidity and separated water, whereas according to the certificate of the Central Food Laboratory, the sample, which was examined on 21.1.2.1992, was found free from suspended matter but the same did not conform to the prescribed standard as it was not free from rancidity. It has been further stated that rancidity had developed on account of the delay and various other factors beyond the control of the Manufacturer for which they cannot be held responsible. It has been further pleaded that the Food Inspector had not taken into possession the empty cartons out of which the sample is stated to have purchased which has caused a grave prejudice to the petitioners. It has also stated that the finding of the Director of the Central Food Laboratory is based on Kries test which is not a sure test and the benefit thereof ought to be given to the petitioners.

In reply, it has been stated that the sample was taken in accordance with the Act and Rules framed thereunder; that the report of the Public Analyst stands superseded by the certificate of the Director of the Central Food Laboratory; that according to the certificate (Annexure P.3) the sample did not conform to the standard laid down by the Act and the Rules framed thereunder and that it was not free from rancidity. It has been further stated that the Dealer from whom the sample was purchased, the Distributor/Supplier and the Manufacturer are liable to be prosecuted under the Act in respect of the said adulterated edible oil.

I have heard the learned counsel for the parties and have perused the record.

Shri H.S. Gill, Senior Advocate, learned counsel for the Manufacturer Company, has vehemently argued that the sample in question was first sent to the Public Analyst, who, vide his report (Annexure P.1), had recorded the opinion that the sample was free from rancidity and separated water. However, it showed the presence of suspended matter settled at bottom in appreciable quantity and as such the same was unrefined. It has been further argued by the learned counsel that when the counter sample was sent to the Central Food Laboratory, the Director sent his certificate dated 21.12.1992 (Annexure P.3) stating therein that the sample was that of clear oil free from any separated water and suspended matter, but was not free from rancidity. It has been argued by the learned counsel that the first sample was examined on 24.9.1992 and the counter sample was sent on 1.12.1992 and examined on 21.12.1992, i.e. after about 4 months of taking of the sample. It has been further explained by the learned counsel that due to this inordinate delay in examining the sample, rancidity developed on account of certain other factors happened after taking the sample and before its examination, without any fault of the petitioners and they cannot be held to be responsible for the said rancidity. In support of this plea, the learned counsel has placed reliance upon the works of certain Authorities, and the decisions in V. Nagabhushanam v. State of A.P., 1989 (II) F.A.C. 291, Municipal Corporation of Delhi v. Bishan Sarup, 1972 F.A.C. 273, Dayal Das v. Govt. of Rajasthan and another, 1990(II) F.A.C. 291, and Municipal Corporation of Delhi v. Niranjan Kumar and others, 1992(2) F.A.C. 180 : 1965 PLR 941.

Shri Hemant Kumar, Advocate, learned counsel for the Dealer, has adopted the said argument put forward by the learned Senior Advocate appearing on behalf of the Manufacturer Company.

On the other hand Shri S.K. Hooda, learned Assistant A.G., while appearing on behalf of the State of Haryana/Complainant, has argued that once the report of the Public Analyst has been superseded by the certificate issued by the Director of Central Food Laboratory, no comparison is to be made between the report of the Public Analyst and the certificate of the Central Food Laboratory. It has been further pointed out by the learned counsel that the certificate issued by the Central Food laboratory is final and conclusive evidence of the sample being not conforming to the standard laid down by the Act and the Rules framed thereunder and the complaint is not liable to be quashed.

I have given my careful thought to the respective arguments advanced at the Bar.

It is correct that a certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst as provided by subsection (3) of Section 13 of the Act. It also cannot be disputed that according to the proviso added to subsection (5) of Section 13 of the Act, such a certificate shall be final and conclusive evidence of the facts stated therein. It may be clarified that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and may still have to be ascertained whether adulteration as disclosed in the certificate of the Central Food Laboratory was due to certain factors for which an accused cannot be held responsible. The question was examined by a Full Bench of the Delhi High Court in Bishan Sarup''s case (supra). While examining the scope of Section 13(5) of the Act and the evidentiary value to be attached to the certificate, it was observed as under:

"Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to subsection (5) of Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated therein. The presumption attaching to the certificate again is only in regard to what is stated in it as to the 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 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 was taken and if this contention is found to be correct conviction based on the certificate will not be sustainable."

The Full Bench has placed reliance upon a Division Bench of this Court in Niranjan Kumar''s case (supra) wherein the following law was laid down :

"We would like to clarify that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report, of the Central Food Laboratory was due to certain factors for which an accused could not be held responsible. In short the finality and conclusiveness are only to the extent that the sample as sent to the Central Food Laboratory contained what the reort disclosed."

Thus, even in spite of the report of the Central Food Laboratory (Annexure P.3), it is open to the petitioners to show that the article of food in question was not adulterated and the change found by the Director, Central Food Laboratory, took place owing to the lapse of time or delay in analysing the same or some other factors beyond their control.

To appreciate the argument advanced on behalf of the petitioners, it is necessary to make a mention that when the sample was first examined on 24.9.1992 by the Public Analyst, Haryana, the same was free from rancidity and separated water. However, the sample showed the presence of suspended matter (settled at bottom) in appreciable quantity. But the counter sample was sent to the Director, Central Food Laboratory on 8.12.1992 and the same was examined on 21.12.1992. According to the certificate of the Director, Central Food Laboratory (Annexure P.3), the sample was that of clear oil free from any separated water and suspended matter, but it was not free from rancidity. In other words, when the sample was analysed by the Public Analyst, it was free from rancidity but was not free from suspended matter. However, when the counter sample was examined by the Central Food Laboratory, it was found free from suspended matter, but it was not free from rancidity. The first sample was examined in September 1992, although taken in August 1992 and the second sample was examined in December 1992 i.e. about 4 months after it was taken and 3 months after the first sample was examined by the Public Analyst. I am not comparing the two reports inter se with a view to find any fault with either of the two reports. As per subsection (3) of Section 13 of the Act, the report of the Public Analyst (Annexure P.3) stands superseded by the certificate (Annexure P.3) issued by the Central Food Laboratory. But still, it is to be seen as to whether the rancidity found by the Director Central Food Laboratory on 21.12.1992 in the counter sample sent to him can be attributed to any act of the Manufacturer, the Supplier/Distributor or the Dealer of the article in question.

In his work "The Chemical Analysis of Foods" Seventh Edition, at page 494, David Pearson, while discussing ''Rancidity'' says as under:

"Fats undergo changes during storage which result in the production of an unpleasant taste and odour, which is commonly referred to as rancidity. Rancidity is brought about by the action of air (oxidative rancidity) or by microorganisms (ketonic rancidity). Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of certain metals (e.g. copper, nickel, iron)."

Similarly, McgrawHills in Encyclopedia of Science and Technology, observed as under:

"Oxidation and hydrolysis are spoilage factors in the production and storage of edible fats and oils. Rancidity is an advanced state of oxidative deterioration. Oxygen from the air first reacts with the unsaturated fatty acids at or adjacent to the double bonds to form hydroparaoxides which then decompose to yield aldehydes having the pungent odour and flavour of rancid fats. Oxidation is catalyzed by light and metals such as copper or iron and is accelerated by heat."

It is, thus, quite clear from the aforesaid texts that the decomposition takes place when edible oils are exposed to the action of light, air or moisture.

In V. Nagabhushanam''s case (supra), a sample of groundnut oil was analysed after one month and 13 days. It was held that it was quite reasonable to infer that the delay in the analysis was responsible for the increase in the fatty acids and the benefit of doubt of the abnormal delay ought to be given to the accused. Reliance was placed upon the above texts. In Dayal Das''s case (supra), the sample of oil was not free from rancidity as per the report of the Public Analyst. The report was prepared on the basis of Kreis Test only. It was held by the Rajasthan High Court that Kreis Test is not the conclusive test, and while applying this test there are chances of misleading in readings, and as such it could not be said to be authenticated test.

To repeat at the cost of repetition, in the present case the sample was analysed by the Director Central Food Laboratory after 4 months of the taking of the sample. According to the report (Annexure P.1) of the Public Analyst the sample contained moisture also but was free from rancidity. Therefore, it can be safely said that the rancidity in the counter sample developed on account of the moisture therein and due to delay of four months caused in analysing the same by the Central Food Laboratory and not due to any act or omission on the part of the petitioners. Consequently, in the facts and circumstances of the case, the benefit of doubt will have to be given to the petitioners. The complaint and all the subsequent proceedings are liable to be quashed only on this short ground, and I need not refer or discuss any other plea raised on behalf of the petitioners at the Bar.

As a result of the above discussion, both these petitions are allowed. The complaint (Annexure P.2) and all the subsequent proceedings taken in pursuance thereof, pending in the Court of Chief Judicial Magistrate, Bhiwani, are hereby quashed.