168

CHAPTER V

EVALUATION OF THE ACT AND MACHINERY

An anatomy of the Act and the machinery set up for its implementation is the gist

of this chapter. Although a number of amendments were introduced into the body of the

Act and the Rules made thereunder to make the Act and the administrative machinery

omnipotent, it is a bitter reality that adulteration is rampant in the country. The object of

the present Chapter is to find out those factors which undermines the efficacy of the Act

and machinery in combating adulteration.

169

CRITICAL EVALUATION OF THE TERMS USED IN THE ACT

The prevention of Food Adulteration Act is enacted with the object of eradicating

the evil of adulteration for ensuring the wholesomeness of food articles. Therefore,

wherever possible, without unreasonable stretching or straining, the language of such a

statute should be construed in a manner which would supperss the mischief, advance the

remedy, promote its object, prevent its subtle evasion and foil its artful circumvention .(1)

Initially, application of the Act was extended to the whole of India except the State of

Jammu and Kashmir. But the PFA (Amendment) Act 1971 has introduced a major

change in this regard and omitted the word "except the State of Jamrou and Kashmir". (2)

As a result, the Act became operative in the whole ofIndia including the State of Jammu

and Kashmir.

Adulterant

The word 'adulterant' is introduced into the realms by an Amendment in 1976.

'Adulteratnt' is defined as the material which is or could be employed for the purpose of

adulteration (3) The clause was introduced on the recommendation of the Joint

Committee on the Prevention of Food Adulteration (Amendment) Bill 1974. The

Committee found that there are traders and even manufacturers who manufacture

adulterants for sale(4) This shows that not only adulteration is a flourishing business of

unscrupulous traders but also manufacture and distribution of adulterants is a lucrative

--------------------------------------------------------------------------------------------------------. (I) See Municipal Corporation afDelhi v. Kachemoomal A. 1976 SC 394. (2) See Seth & Capoor. Prevention of Food Adulteration Act 1954 (1993, Law

Publishers, Allahabad) 42. (3) Section 2(1) of the PFA Act, 1954. (4) See Gazette of India Extraordinary Part II Section 2 dated 5.1.1976 at 6.

,70

business To book those culprits, simultaneous introductions were made in Section (7)

and (16) of the PF A Act. By virtue of these Amendments, no person shall himself or by

any person on his behalf manufacture for sale or store for sale or distribute any

adulterant(S) And to punish those who transgress the dictates of Section 7, suitable

punishments depending upon the gravity is provided by Section 16 of the Act (6). Since

the manufacture, import, possession or sale of 'adulterant' is treated on par with the evil

of 'adulteration', the usual dictates of Section 16 relating to liability and penalty is

common for both. Storage of adulterant by a person who is not a manufacturer of food is

no offence even if the storage is meant for sale. (1) What is punishable under Section 16 is

the possession by a manufacturer of food any adulterant in circumstances which lead to

the inference that he is keeping it for the purpose of adulteration.

Import of adulterated food articles

The object of the Act is to eradicate the evil of adulteration. In this regard, it does

not make any difference between import, manufacture or sale of adulterated food articles.

However to make the scheme of the Act more clear and objective, import of adulterated

and misbranded food is specifically stipulated in Section 5 of the Act. Section 5 of the Act

absolutely prohibits the import of adulterated food into the country.

It is noteworthy that none of the State enactments which were prevailing prior to

the coming into force of the present Act contained any such restriction. (8) The present

section was introduced on the principles of English Law. Section 6(2) of the Prevention

of Food Adulteration Act empowers the Collector of Customs or such officer of the

---------------------------------------------------------------------------------------------------------(5) Section 7(vi) of the PFA Act, 1954. (6) See Section 16(1) (b&c) and 16(I-A) ii of the PFA Act, 1954. (7) Municipal Health Officer v. Artha Tea Estate 1960 KLT 743. (8) See Rath, S.N.Prevention of Food Adulteration And The Law (1985, Deep &

Deep Publication, Delhi) 170.

,71

Central Government specially authorised in this behalf to delain any imported package

which he suspects to contain any adulterated food. Report of such detention should be

forwarded to the Director of the Central Food Laboratory and on his instruction the

sample or the package may also be forwarded to him for further action.

If any person contravenes the provision of Section 5, he shall be punishable with

imprisonment for a term which shall not be less than six months but which may extend to

six years and with fine which shall not be less than one thousand rupees. (9) If the person

convicted of an offence under the Act repeats or commits a like offence afterwards, the

Court may cause the offender's name, place of residence and the offence to be published

at the offender's expense in such newspapers in such manner as the Court may direct. In

addition to the above such, article may be liable to be forefeited to the Government for

contravention of the Act(lO)

Provision governing the import and export of adulterated food article is found in

the legal system of many countries. It is an offence having pernicious effects on the

prosperity of the trade and national wealth. Nigeria has set up a National Agency for Food

and Drugs Administration in 1993(11) Similarly, the Canadian Food and Drugs Regulation

(Amendment) 1992 restrict the sale of imported food articles without obtaining certificate

from Inspector. (12)

And recently, many of the European and Western countries had imposed a total

ban on the import of beef from UK. due to the dreaded disease called 'mad cow

disease,(13) In 1989, the United States had put an end to the multibillion dollar trade

(9) Section 16(1) of the PFA Act, 1954 (10) See Section 18 of the PFA Act, 1954 (11) (1994) 45(1) IDHL 66 (12) (1993) 44(1) IDHL 65 (13) See Washington Post (May I, 1996) A 7

relating to the import of Chilean grapes due to the presence of cyanide poison on few

grapes(14) With reference to UK, the Food Safety Act, 1990 empowers the Ministers to

make emergency orders to deal with potential serious problems relating to food, such as

import of adulterated food articles(5)

It is sad, but bitter reality that in spite of well defined legislations, many

substandard articles are being sold in third world countries. And, India is not an exception

to this. In spite of all legislative measures to curb adulterated and contaminated food

articles, India had imported contaminated butter, palm oil etc. from other countries in the

past. The Irish butter case is the best example. (16) Therefore, the problem is not lack of

legislation, but how the third world countries react to the evil of adulteration. In the light

of Irish butter case, we need more brisk and tribulation.

Manufacture of adulterated food articles

Section 7 of the Act state that no person shall himself or by any person on his

behalf manufacture for sale any adulterated food. This general prohibition is imposed in

the larger interest of the maintenance of public health. It is obvious from the provision of

Section 7 that not only the person who manufacturers the adulterated article, but also the

person on whose behalf the manufacturing process was carried out are also liable to

punishment for contravention of the Act.

'Manufacture' means and includes any process incidental or ancillary to the

manufacture of an article of food. (17) To constitute an offence under the Act, the article --

(14) See Britanica Book of the Year (1990, Encyclopedia Britanica Chicago)140. (15) See Stretch, JA & South gate H.A: Food Hygiene, Health and Safety (1991,

Pitman, Britain) 2. (16) See Dr. S. Shantaram Wagle v. Union of India A. 1988 SC 952. (17) See Section 2 (vii-b) of the PFA Act 1954,

must be manufactured for sale. (II) The word 'manufacture' is qualified by the words 'for

sale'. Therefore if adulterated food is manufactured, but not for sale, no offence is

committed under the Act. Similarly it becomes the duty of the prosecution to prove that

the article which is manufactured for sale is ordinarily used for human consumption as

food . (19) It is not necessary that the manufacturer should sell it at his godown. The

liability of the prosecution would be over once it is successfully proved that the article was

manufactured for sale.

One of the objects of the PF A Act and the Rules framed thereunder is to ensure

that food which the public would buy is prepared, packed and stored under sanitary

conditions. To ensure this, the Rules framed under the Act prohibit any person from

manufacturing any article of food except under a Licence. (20) Before granting a Licence

to manufacture food articles, the Licensing Authority shall inspect the premises and satisfy

itself that the premises is free from sanitary defect. (21) A manufacturer of food is again

restricted from using any utensil or container which is not perfectly enamelled or tinned,

or which is likely to injure such food or renders it noxious. (22)

In United States, the Federal Food and Drugs Act, 1935 has made enormous

precaution to ensure sanitation and wholesomeness offood articles. The Code of Federal

Regulations obliges every person who is a manufacturer, importer or distributor of a

device intended for human use to ensure that such device is not adulterated or

misbranded(23) To ensure this, they are invested with a duty to provide such information

(18) See Karan Chand v State A 1967 Delhi 71 (19) Jaswant v State of Mahar astra 1979 FAJ.168 (SC)

(20) See Rule 50 of the PFARules 1955 (21) See sub-rule 5 of Rule 50 ofthePFARules 1955 (22) See Rule 49 of the PFARules, 1955 (23) 21 CFR 360 (i) a.

". and report to such designated officials. And to avoid contamination while processing and

packing, the use of certain kinds of materials like polychlorinated biphenyls (PCB) are

prohibited (24) If a food has become contaminated or adulterated within the meaning of the

Act, then such article shall be rejected or processed to eliminate danger to human lifem ).

Power of court to implead manufacturer

A manufacturer offood will not normally sell the product directly to the consumer.

There may be intermediaries called distributors, dealers and vendors through them the

manufacturer sell the food products. In such cases, it is possible that the manufacturer

may manufacture or prepare adulterated food articles or foods which are not confirming

to the standards specified in the Act and passes the same to the distributor or dealer for

sale. It may thus pass the hands of many before it ultimately reaches the consumer. In the

case of strict liability offences like food adulteration enacted for safeguarding public

health, the mental connection between the acts and omissions of the manufacturer,

distributor and last vendor would be provided simply by the common design or intention

that the article of food should reach and be used as food by the consumer' (26) In such

instances, the liability is apportionable.

To handle such instances, the trial Court is given a power to implead manufacturer

during the trial ofany offence under Section 20-A of the PFA Act, 1954. (27) The object

-----------------------------~---------------------------------------------------------------------------

(24) 21 CFR 109: 15 (25) 21 CFR 110: 80 (26) 10. Bhagawan Dos v Delhi Administration A 1975 SC 1309 (1317) (27) Section 20-A read as follows:

Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in sub-section (3) of Sec.319 o~the Code of Criminal Procedure, 1973 (2 of 1974) or in Sec.20 proceed against him as though a prosecution had been instituted against him under Sec.20".

of the provision is to bring the real culprit to the books of law. Take the case of a food

manufactured and sold in sealed container. If such food is found to be adulterated, the

real culprit will be the manufacturer or distributor or dealer. But it is pertinent to note

that the Food Inspectors generally takes samples from the retailers or vendors, who is the

last person in the chain from whom the food article passes to the consumer. Although

Section 14 castes a duty on the manufacturer to issue a written warranty. due to the

ignorance of vendors and petty merchants, the provision is rarely complied in practice.

This will accelerate the liability of the vendor or petty merchant and the real culprit who

does the unscrupulous practice will escape from the web of law. Section 20-A tries to

make an effective check on this aspect.

The proceedings under Section 20-A against manufacturer, distributor or dealer can be

initiated only during the course of trial. That is, once the trial against the original accused

(vendor) is concluded, the manufacturer, distributor or dealer cannot be proceeded against

under Section 20-A .(28) The object of the provision is to prevent multiplicity of

proceedings and conflicting findings. The section enable the trial Court to implead the

manufacture whenever it is established that the manufacturer is also concerned with the

commission of the offence of adulteration for which the vendor is being tried. There is

nothing mandatory about it . (29) But the trial Court is expected to exercise this discretion

properly by applying its mind into the facts of the case. Whenever the trial Court is

satisfied on the evidence adduced before it that the manufacturer is also concerned with

the offence of adulteration with the vendor who is facing prosecution, the trial Court is

---------------------------------------------------------------------------------------------------------

(28) G.Singh v State (1975) 1 FAC 143 (pat) (29) See Seth & Capoor Op. cit note 2 at 641.

entitled to implead the manufacturer and try him along with the vendor.

Before a manufacturer and vendor could be tried jointly, the trial Court must

satisfY that the manufactured food was adulterated and the manufacturer passed the same

to the distributor and it was also adulterated when the distributor paased it on to the

vendor and it was adulterated when the vendor paased it on to the consumer. (30) Merely

because the trial Court had not acted in accordance with the provisions of Section 20-A,

the manufacturer or distributor would not get an immunity. The power to implead the

manufacturer can be exercised by the Court only and the Act does not obliges the Food

Inspector to do this. (3\) It is a power granted to the Magistrate during the trial of the

vendor for any offence under the Act to issue a notice to the manufacturer for holding a

joint trial to avoid multiplicity of proceedings.

The scope of the section was reviewed by the Supreme Court in Delhi Cloth and

General Mills Co. Ltd., v State of M.P. (32) in a prosecution for the sale of adulterated

ghee. In the instant case, gbee was adulterated with Vanaspati with the connivance of the

manufacturing company. Their Lordships observed:

"Where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autre fois acquit the legislature introduced S. 20-A to have a joint trial" (33)

However, it is to be noted that impleading a person as an accused in a criminal

case is a serious matter. Criminal law cannot be set into motion as a matter of course.

---------------------------------------------------------------------------------------------------------

(30) Bhagawan Das Op cit note 26 at 1319-20 (31) VNKQ1I/dar v Delhi Municipality A 1973 SC 2246 (2249) (32) A 1996 SC 283 (33) Ibid at 284

,77

The order of the Magistrate summoning and impleading the accused must reflect that he

has a applied his mind into the facts of the case and the law applicable thereto. He has to

examine the nature of allegations and the evidence both oral and documentary in support

thereof Magistrate is not a silent spectator at the time of recording of preliminary

evidence before summoning of the accused(l4) He has to carefully scrutinise the evidence

brought on record and may himself put questions to the complainant and his witnesses to

elicit answers to find out the truthfulness of the allegations or otherwise and then examine

if any offence is primafacia committed by all or any of the accused. The discretionary

power conferred on the Magistrate must be exercised before the trail has concluded and

ended in conviction or acquitted. In Delhi Municipality v R. Sahai. (35) the accused

vendor was prosecuted for selling adulterated toffee. During the trial he established that

that he bought the toffee with a written warranty and produced the same before the trial

Court. The trial court then acquitted the accused vendor and issued a notice to warrantors

under Section 20-A. The same was challenged before the Hon'ble High Court and the

order of the Magistrate impleading the manufacturer was struck down by the court. On

appeal, the Supreme Court clarified that the trial Court should exercise its discretion to

implead the manufacturer only during the continuance of the trial. (36) Once the trial comes

to an end either by acquittal or conviction, the power of the trial Court to implead the

manufacturer will come to an end.

Storage of adulterated food

The Legislature has imposed a total ban not only on the sale or manufacture of

-----------------------~---------------------------------------------------------------------------------

(34) Mis. Pepsi Foods Ltd. & another v SpeCial Judicial Magistrate & another Cri.APP.IOI9/1997 reported in Law Teller (May 1998) P.S.9 (5.\0)

(35) A 1979 SC 1544 (36) Ibid at 1545.

adulterated food articles, but also on the storage of such articles. Section (7) of the Act

make it crystal clear. Relevant part of the section says that no person shall himself or by

any person on his behalf store any adulterated food. The liability of a person contravening

Section 7 is strict and is not dependant on the existence of any particular knowledge or

intention. The words "by any person on his behalf' stipulated in the section incorporate

the cardinal rule of vicarious liability(37) Thus not only the person doing the prohibited act

but also the person on whose behalf the prohibited act of storing adulterated food was

done is liable to be prosecuted for violating the provision of the Act.

The expression "store" used in Section 7 of the PF A Act should be read in

conjunction with the other phrases like 'sale'. Consequently, storing adulterated article of

food for purposes other than for sale would not constitute an offence. If an article of food

is not intended for sale and is in the possession of a person who does not fulfil the

character of a seller or, deliverer, consignee, manufacturer, or stores for sale, such as

referred in sub section I-a (ii) of the Section 10 , the Food Inspector will not be

competent under the law to take a sarnple(38)

But at the same it should be kept in mind that the Act is a piece of consumer

legislation and is intended to protect the health of the people. The object of the Act

should not be overlooked at the cost of interpretation. In State of Kera/a v. Ramesh

Prabhu(39), the respondent was prosecuted for storing adulterated 'Iacdha!'. The trial

Court acquitted the accused on the ground that prosecution had failed to establish the fact

that the accused was storing the adulterated 'lacdhal' for sale. On appeal by the State, the

-------------------------------------------------------------------------------------------.-------------(37) For more details see. Vicarious liability Chapter III Supra. (38) See Seth & Capoor: Prevention of Food Adulteration Act, 1954 (1993, Law

Publishers, Allahabad) 169. (39) 1968 KLT 180.

''79

High Court accepted the reasoning adopted by the trial Court and upheld the acquittal.

The Court held that storage simpliciter is not an offence and storage or distribution if at

all must be for sale. The word 'store' and 'distribute' used in Section 7 should be read as

qualified by the particular words' for sale' and 'sell' preceding them(40) In Mangaldas v.

Maharastrd 411, the appellant was prosecuted for selling adulterated turmeric powder. It

was contended by the accused that the turmeric powder was not meant for human

consumption. It was stored for religious purpose. But the Supreme Court was not

inclined to accept this contention. It is noteworthy that an approach in this direction was

taken by the High Court of Madras and Allahabad in 1964 itself. For instance in the

Public Prosecutor v. Palanisamy (42), the Madras High Court held that mere sale of an

adulterated food to Food Inspector for analysis is sufficient to attract the provisions of the

PFA Act. A similar construction was taken by the Allahabad High Court in Lal Chand's

case. (43) But the Kerala High Court in Gopa/an's case(44) adopted a different view.

The Court held that a person who is not a dealer in the article is not bound to sell

the article to the Food InsPel;tor. However, if the person ignorantly or invariably sells the

article to the Food Inspector, the law will not make him liable(45) Such a purchase was

described by the Kerala High Court as purchase from a private individual from his

house(46) On appeal the Supreme Court distinguished this ruling and held that a person

from sample had been purchased by the Food Inspector, need not be a dealer as such in

---~-----------------------------------------------------------------------------------------------------

(40) F.I. Calicut v. Padmashri 1968 KLT 458. In the instant case accused was prosecuted for storing adulterated toor dhal

(41) A 1966 SC 128. (42) A 1965 Mad 98. (43) Municipal Board, Faizabadv. Lal Chand A 1964, All 199. (44) SeeF.l v. Gopalam 1968 KLT 770. (45) Ibid at 733. (46) Id

1eo

that article(41) But in none of the above cases the question whether the expression "store"

occurring in Section 7 of the Act should be interrupted as 'storage for sale' was directly

touched. The aspect was ultimately decided by the Supreme Court in Delhi Municipality

v. Tandon. (48) In this case their Lordships observed:

"The Section does not give a blanket power to the Food Inspector to take samples of an article offood from a person who is not covered by any of the sub clauses of sub section l(a) or sub section (2). If an article of foOd is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee manufacturer or stores for sale, the Food Inspector will not be competent to take sample under the law".

In short, the word 'store' in Section 7 of the Act means 'storing for sale' and

storing of an adulterated article of food for purposes other than for sale would not

constitute an offence under Section l6(1)a of the Act.(49)

Addition of the words 'for sale' after the word 'store' occurring in Section 7, is

strictly speaking, equivalent to limit its scope and ambit. The word "sell" used in Section

7 includes the whole process of selling such as buying, storing etc. Of course, the apex

Court held that storage of adulterated food simpliciter is not an offence. The

prosecution has to prove that the accused was storing the article for sale. That is, factum

of possession is not sufficient to attract the provisions of the Act. There is no scope in

law for an inference from the mere factum of possession or storage that it is meant for

---------------------------------------------.-------------------------------------------.---------------(47) See F.I. Calicut v. Gopa/am A 1971 SC 1725 (48) A 1976 SC 621. (49) See F.l. v. Sunwest & Dho/lda 1982 KLT 364; Shantilal v. State of

M.P.1992 (I) FAC 139.

181

sale But looking at the object of the Act and pernicious nature of the offence which is

intended to be prevented, it is fact that storing simpliciter should be made as an offence

under the Act to leave any lacunae in this regard. Because a number of prosecutions where

slaughtered in the past with the sword of above interpretation.

Standards

Rule 5 read with Appendix 'B' of the PFA Rules 1955 specifies the standards of

quality for various articles offood. The object offixing standard is to maintain a minimum

level in quality to articles offood.

Since most food and food ingredients are derived from biological organisms, their

correct chemical compositions can be defined within fairly close limits (50 ) This ensures

the modem food technologists to fix standards for each articles. As far as India is

concerned the standards are prescribed in Appendix 'B' annexed to the Rules made under

the Act. To advise on this matter, a Central Committee for Food Standards is created by

Section 3 of the Act. So far as international food quality is concerned, an international

committee called Codex Alimantarius was formed under the auspices of FAOIWHO. (5\)

The Commission draws voluntary standards and that on adoption by member countries

became their statutory standards.

Standards of an article prescribed by the statute plays an important role in

determining the culpability under the Act. If a statutory standard is provided for an

---------------------------------------------.--------------------------------------.--------------------(50) See Deatherage F.E : Foods For Life 1975, Plenum Press, N.York) 322 (51) See The NeW Encyclopaedia Britanica (1989, Encyclopaedia Britanica Inc,

Chicago) 397

182

anide,the article must not be inferior to that standard. If the quality or purity falls below

prescribed standard the anide will be described as adulterated(52) The only axception in

favaour of primary foods, the quality or purity of which falls below the prescribed standard

due to natural causes beyond the control human agency. (53) Primary food means an article

of food being a produce of agriculture or horticulture in its natural form (54) The net

result is that, if standard is not fixed by the Act for an article of food, no one can be

convicted under the Act even if the artide is adulterated. Thus, in M V.Krishnan v State

of Kerala . (55) Supreme Court held that appellant cannot be held liable for selling butter

milk since no standard is fixed by the PFA Rules for butter milk. The Appendix 'B'

attached to the PFA Rules 1955 prescribed standards for common article offood and it is

impossible to categorise and standardise each and every article of food existing in the

country. (56) Thus, the specifications for various foods and food products is not an

exhaustive one. In many cases like, M V.Krishnan 's the lack of specific standards for

food articles has brittled down the spirit of prosecution cases. A different note in this

regard was made by the Supreme Court in P.K. Tfjani v MR. Dange (51) during 1974. In

-.------------------------------------------------------------------.------------------------------------

(52) See S.2 (I-a) definition part. An article offood shall be deemed to be adulterated (I) if the quality or purity of the articles falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health; (m) if the quality of purity of the article falls below the prescribed standard or its continents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.

(53) See Explanation added to Section 2(I-a) of the Act. (54) See Section 2 (xii-a) of the Act.

(55) A 1966 SC 1976 (56) See Rath, S.N. Prevention of Food Adulteration And The Law (1985, Deep &

Deep publications N.Delhi) 52-53 (57) A 1974 SC 228

the instant case supari (betel nut) was the article in dispute. Although no standard was

prescribed by the PF A Rules for supari sale of supari coated with a sweetening agents like

saccaharin was described as an offence and accused was therefore, held responsible for

the sale of adulterated supari'(SS)

But if the standard of the article is above the prescribed level, it cannot be treated

as adulterated as the Rules provides only the minimum level·(S9) When the statute

prescribes the minimum, the sample should contain that minimum. An excess of one

-------------------------------------------------------------.-------------------------------------------

(58) Ibid (59) Municipal Board Etawa v. State 1981 FAJ 426 (All)

the instant case supari (betel nut) was the article in dispute. Although no standard was

prescribed by the PF A Rules for supari sale of supari coated with a sweetening agents like

cannot be taken to compensate the deficiency of the other. In State v Chandrahasan (60)

prosecution was launched for selling adulterated milk. But the trial Court acquitted the

accused on the ground that fat content was in excess of the prescribed standard although

the milk was deficient in solid fats. However, the Madras High Court reversed the orders

of trial Court and held that excess of one component cannot compensate the deficiency of

another component. (61) Such articles can be described as sub-standard (62)

In FI v Kochumni (63), the accused was prosecuted for selling adulterated

glucose. The trial Court acquitted the accused on the ground that no standard was fixed

by the statute for glucose. On appeal, High Court held that glucose and dextrose have

the same chemical ingredients and are the two names for the same chemical compound.

Dextrose is, therefore glucose. Standard is fixed by Appendix B A. 07.07 for dextrose.

Hence the contention of the accused was turned down by the Court.

The standards are prescribed by experts in the field on scientific basis. If a

statutory standard is prescribed for an article, no one has a right to carry on business in

that article unless it conforms to that standard. No Court can refuse to enforce the rule

prescribing standards merely because in its view the standards prescribed is too high. . (64)

---------------------------------------------------------------------------------------------------------

" , (60) (61) (62) (63) (64)

; ~ , J .' L' . , .. _ _ • _ .~J.,.. "T_ 1:-., .. ;

1992 Cr. LJ. 2200 (Mad) Ibid : See Mohan Dutt v State ofH.P 1987 Cr.L.J.1677 See State ofHaryana v Harpit 1983 FAJ. 14 (P&H) 1984 KLT 871. See. State of u.p v Kartar Singh A 1964 SC 113 5. In this case, the

prescription of various Reichert value for ghee was challenged before the apex Court. Devon Foods v Union of India 1995 (1) KL T 564

anything about bacteriological standards for food articles.(6S) Another factor which restrict

the efficacy of the Act in this area is the intervention of small scale industries. Many of

these industries lack sophisticated machineries and well-equipped laboratories for ensuring

the requisite standards of quality for their products. Neither the Act nor the Rules make

any attempt to ensure effective supervision of these industries.

As stated earlier, the Act does not enumerate an exhaustive list of food articles.

The non-enumeration of standards for food article is fatal to the prosecution and

undermines the object of the Act. In State of Punjab v Gu/shan Raj (66), the Court was

left with no option than to release the accused from the clutches of prosecution although

he had sold adulterated laddoo. Neither the Act nor the Rules prescribes any standard for

laddoos. In Kacheromal's case (67) the accused was prosecuted for selling cashenuts

containing insects. In the instant case, their Lordships of the Supreme Court observed:

" In the case of an article in respect of which the Rules do not provide any minimum proportion of insect-infestation, that would exclude it from the definition of adulterated article and whether such insect-infestation renders the article for human consumption is a mixed question oflaw and fact" (68)

In the instant case, the public analyst has not opined anything about the injurious

nature of the article. Consequently, the accused was acquitted by the Supreme Court.

As far as England is concerned, the non-enumeration of prescribed standards will

not affect the prosecution. In such cases, the Court will fix its own standard upon the

---------------------------------------------------------------------------------------------------------(65) See Sinha, Anvita & Mehrotra N.N : "Prevention of Food Adulteration:

IneffectiveLegislation" (1987) 17 Economic And Political Weekly 75 (66) 1992 Cr. L.J. 873 (P&H) (67) Delhi Municipality v Kacheeroomal A 1976 SC 394 (68) Ibid at 398

186

evidence before it (69)

Warranty

The term 'warranty' has nowhere been defined in the Act or in the Rules made

thereunder. Warranty is an undertaking to indemnitY or make good the party assured

against some possible default or defect. (70) In every contract of sale, there is an implied

warranty of quality as to the thing sold(71) To supply goods of merchantable quality is, in

fact, an obligation on the part of the seller. Section 12 (3) of the Indian Sale of Goods Act

defines the word 'warranty' as follows:

"A warranty is a stipulation collateral to the main purpose of the contract the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated".

The law relating to warranty is the same under English Law. Section 53 of the Sale of

Goods Act 1979 speaks about the remedy for breach of warranty. (72)

A buyer under Section 53 of the Act is entitled to maintain an action against the seller or vendor for breach of warranty . (73) Such an action is not to repudiate the -----------------------------------------------------------------------------------------------.---------(69) See Halsbury 's Law of EnglandVol.17 (3td ed, Butterworths London) 488, (70) See Weinstin, Martin: Summary of American Law(1988, The Lawyer Co-op.

Publication, N. York) 491. (71) See, Ali, Hamid: Outlines of Roman Law (1963, Asia Publishing House,

N. York) 132. (72) Relevant part of Section 53 of the Sale of Goods Act 1979 read as follows:

Where there is a breach of warranty by the seller or where the buyer elects (or is compelled) to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods. But he may maintain an action against the seller for damages for the breach of warranty.

(73) See. Atiyah, P.S.: The Sale of Goods-(I990, Pitman, London) 533; Benjamin on Sale; Finnemore &James (ed) (8th ed. Sweet and Maxwell) 685.

187

contract,but to claim damages for breach of warranty. (7.) Thus, warranty means an

agreement with reference to goods which are the subject of a contract of sale, but

collateral to the main purpose of such contract, the breach of which gives rise to a claim

for damages ."5)

In the light of this background, it is pertinent to note that, Section 14 of the PFA

Act impose an obligation on every manufacturer, distributor or dealer of any article of

food to give a warranty in writing in the prescribed form about the nature and quality of

article to the vendor. (7.)

It is noteworthy that the section does not cast any obligation on the vendor to give

a warranty to the ultimate consumer. In order to attract the benefit of Section 14, one has

to prove that he had purchased the article from a manufacturer or distributor, for resale. (77)

That is, the purchase must be for re-sale and not for self consumption. This does not mean

that the ultimate consumer will not get any warranty regarding the merchantability of the

article. It is always open to the consumer of food article to invoke the warranty principle

(74) See. Schmitthoff, Clive & Sarre, David; Charlesworth's Mercantile Law (1984, Stevens & Sons, London) 287; Guest, A.G. : Anson's Law oj Contract (23" ed. Clarendon, Oxford) 505.

(75) See Wallis Son & Wells v.Pratt&H'Wles(l910)2K.B. 1003. (76) Section 14 ofthe PFA Act 1954 read as follows:

No manufacturer or distributor of or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor; Provided that a bill, cash memorandum or invoice in respect of the sale of any article offood given by a manufacturer or distributor of or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. Explanation: In this section, in sub section (2) of See. 19 and in Sec. 20A the expression "distributor" shall include a commission agent.

(77) See Seth & Capoor: Op cit note 38 at 434.

under the general law . But the object of the present section is to add a protection to the

petty merchants and retailers to come out of the clutches of the Act when the real culprit

for the evil of adulteration is someone else. To enjoy this, the section cast a duty on fNery

manufacturer and distributor to issue a written warranty and a corresponding right on the

part of petty merchants and vendors to insist for a warranty.

Hence in any proceedings under the Act, it shall be the duty of the vendor offood

article to disclose the name,address and other particulars of the person from whom he had

purchased the article to the Food Inspector. (78) It will enable the Food Inspector to take

samples immediately from the premises of the manufactureror distributor. However, the

implementing authority does not take this trouble and send the sample to the Public

Analyst and launch prosecution on the basis of Analysts' report, though the trader himself

might not have indulged in the nefarious act of adulteration. Prosecutions of this nature

cannot help in weeding out the evil of adulteration. To compete the evil, it is essential

that whenever samples are taken from a retailer or vendor, another sample of the same

article should be drawn from the manufacturer's or distributor's premises. Of course, it is

true that many of the' articles are prepared in some other States and the local Food

Inspector is unable to take sample in such cases from the premises of the manufacturer.

But he can always take sample from the distributor or dealer. If the distributor or dealer

in question is also armed with a warranty, then it may be easy to conclude that he is not

guilty and the real culprit is the manufacturer only. In such cases, manufacturer can be

impleaded during the trial under Section 20-A

---------------------------------------------------------------------------------------------------------(78) See Section 14-A of the PF A Act 1954.

Notwithstanding these elaborate provisions, the Food Inspectors are reluctant to

enquire about the source of purchase to the petty merchants and vendors. And even if the

name of the dealer or distributors are disclosed by the vendors, the Food Inspectors

ignores the information .. (79)

There are manufacturers and wholesale merchants who sell the food articles

without giving warranty as contemplated by the section. And there are many vendors and

retailers who deliberately purchases articles without any written proof such as cash bill

and cash memos to avoid sales tax. During the course of the evidence tendered before

the Joint Parliamentary Committee on the Prevention of Food Adulteration (Amendment)

Bill 1974, the representatives of the retailers represented that the requirements of the law

contemplated in Section 14 was not being followed by the manufacturers or dealers. As a

result, the vendors had to suffer. The Committee had remedied the situation by inserting a

proviso to the section to the effect that a bill, cash memorandum or invoice given by a

manufacturer, distributor or dealer in respect of any article of food purchased by the

vendor should be deemed to be a warranty (80) The proviso made a drastic changes

inasmuch as it provided that a bill, cash memo or invoice in respect of the sale of any

article of food by a manufacturer or distributor to a retailer shall be deemed to be a

warranty.

---------------------------------------------------------------------------------------------------------

(79) See Shenoi, V. Rama: 'Adulteration of Food Stuffs and Other goods' (1983) 7 CULR 159 (171).

(80) Report of the Joint Parliamentary Committee on the Prevention of Food Adulteration (Amendment) Bill 1974 (Gazette of India Extraordinary Part II, Section 2 January 15, 1976) 10.

191

Warranty as defence

Since the PF A Act has introduced the concept of strict liability into the realms of

food adulteration law, the normal defences or exonerating factors like knowledge,

intention, guilty mind etc., are not applicable. Nevertheless to compensate this, the Act

itself has introduced certain factors to save innocent people from the coercive vicinity of

the Act. It is called statutory defences available to an accused persons and are

incorporated in Section 19 of the PF A Act.

By virtue of Section 19, a vendor shall not be deemed to be guilty of an offence

under the Act if he proves that he had purchased the article from a duly licensed

manufacturer or distributor, when a licence is prescribed for the sale of the article, and in

case no licence is prescribed from any of the above with a warranty in the prescribed form

and the article of food, while in his possession, was properly stored and sold in the same

state as he had purchased it. Apart from this, no other valid defence can be successfully

pleaded by an accused. That means, it shall be no defence in a prosecution for an offence

under the Act to merely allege that the vendor was ignorant of the nature, substance or

quality of the food sold by him or the purchaser having purchased the article was not

prejudiced by the sale. The concept of 'mens rea' is completely overlooked so far as the

offences under the Act are concerned. A vendor carmot sell or distribute adulterated food

and say that he did not know the quality of the food as he got it from others.

To invoke the benefit of the statutory defences incorporated in Section 19, the

accused has to prove that he had purchased the article with a written warranty in the

prescribed form. Mere allegation that he had purchased the article from a duly licensed

19'

manufacturer or distributor is not suffice. (II)

In Mathew v Food /nspectot'2) the accused was prosecuted for selling

adulterated vinegar. During the trial, the accused pleaded not guilty and relied on a

warranty issued by the second accused. The trial Court was inclined to accept the

contention of the accused and as a result he was acquitted and proceeded against others

under Section 20-A

The question of successive warranty came for consideration before the Kerala

High Court in Food Inspector v M.C.P & Stores Ltd .. (83) In the instant case the accused

was prosecuted for selling adulterated honey. During the trial, accused established that he

had bought the honey from another with a written warranty and on that basis the trial

Court acquitted the accused. In the instant case, honey was purchased and kept for long

period. Later, it was sold, but not in the same condition, as he had purchased it. llence on

appeal, the acquittal was reversed by the High Court and held that Section 19 does not

apply to cases of successive warranties. In the instant case, position under the English

Law was also examined. In England, if'A' sells to 'B' with a warranty, and 'B' resells to

'C' with a like warranty, though 'C' on being prosecuted for adulteration, may rely

successfully on the warranty from 'B', 'B' on being prosecuted for giving a false warranty

cannot plead as a substantive defence, the warranty he received from' A'. (84) The proviso

to Rule 12-A shows that it is not necessary to obtain a warranty in the prescribed fonn to

attract the benefit of Section 19. The object of the rule making authority was to dispense

------~--------------------------------------------------------------------------------------------------

(81) Municipal CorporatIOn, Delhi v. M Ram 1978, F AJ 36. (82) 1977 KLT 665; see Delhi Municipality v. R. Sahai A. 1979 SC 1544. (83) 1961 KLT 980. (84) See Halsbury Op cit note 69 at 601

the form, if there is a warranty in the label or cash memo certifying that that the article of

food contained in the package or mentioned in the cash memo is the same in nature,

substance and quality as demanded by the vendor(aS) But this does not mean that the

warranty in the label or cash memo need not certifY that food contained in the packet or

referred in the memo is the same in nature, substance and quality as demanded by the

vendor. The label or cash memo should specifically states or certifY that the food

described in the label or cash memo is the same in nature substance and quality as

demanded by the vendor. Every person who in respect of an article or substance sold

by him to which a warranty might be pleaded under the Act, gives to the purchaser a false

warranty in writing, is guilty of an offence under Section, 16(1) (g) . (86) Such persons

shall be liable to be punished with imprisonment for a term which shall not be less than six

months but which may extend to three years and fine which shall not be less than one

thousand rupees.

In Unnikrishnan v Food Inspector, Pal ghat Municipality(81), the accused was

prosecuted for selling adulterated arrowroot. Since the accused had purchased the

arrowroot with a written warranty, issued on behalf of a Firm, the trial Court acquitted

him off the charges. But on appeal, the High Court found that the Firm from which the

vendor had purchased the article was a bogus one and therefore the requirements of

Section 19(2) cannot be successfully established. The order of the trial Court was

therefore reversed. On further appeal, the apex Court, found that the accused purchased

the arrowroot from a Firm and sold it in the same state as he purchased. In the instant

-----------------------.-------------------------------------------------------------.----.--------------

(85) See Kerala v. R. Reddiar 1967 KL T 704. (86) See V,N. Kamdar v. Delhi Municipality A 1973 SC 2246. (87) A 1995 SC 1983.

se, a representative of the Firm situated around two hundred kilometers away from the

Ice of the accused vendor sold the arrowroot with a written warranty. At that juncture,

the non-existence of the Firm was not known to the accused. The accused could not be

expected to verilY the actual position regarding the existence of a Firm situated at that

distance. Its existence or subsequent non-existence will not disentitle the accused

the benefit of Section 19(2) (gg)

A warranty for the purpose of the Act should be given at the time of sale or

transaction. Warranty issued later is not valid to attract the benefit of SectionI9(2).(89)

The word 'warranty' about the nature, substance and quality of the food article

should be understood in the ordinary language (90) It is not a legal document drafted by a

solicitor. A label or cash memo can be described as a warranty if it falls within the ambit

of Rule 12-A. But an advertisement or circular cannot be treated as warranty

contemplated under the Act. Persons issuing circular or advertisement, therefore, cannot

be punished for the offence of issuing a false warranty. (91) In Muthukumaran v Kerala(92),

the Kerala High Court held that the word 'foremost best quality compounded milky

asafoetide' printed on the carton does not amount to warranty within the meaning of the

PFA Act. But in an English case of the late nineteenth century, a label containing "vinegar

warranted unadulterated, G&G Co, London" was described as sufficient warranty to

attract the protection of the sale or Food and Drugs Act, 1875 (93)

--~------------------------------------------------------------------------------------------------.-----

(88) Ibid at 1984 (89) See City Corporation v. R Iyer 1965 KL T 92. (90) See K. RJ:mganath v. State of Kerala A 1970 SC 570. (91) SeeN Kasurdas&Sonsv. Foodlnspector 1963 KLT 1040. (92) 1968 KLT 909. (93) See Lindsay v. Rook 1894 (63) LIR (MC) 231 quoted in Kerala v R. Reddiar

1967 KLT 70 (708)

"95

Position under English law

In any proceedings under the Food Act, 1984, or any Regulations made

thereunder, for any offence relating to sale, offer, exposure or advertisement, it is a

defence for the defendant to prove that he had purchased it with a written warranty(94)

The warranty must have been given to the person raising the defence by his immediate

vendor. The warranty will be a defence only if the defendant has, not later than three

clear days before the date of hearing, sent to the prosecutor a copy of the warranty with a

J. '" notice stating that he intends to rely on it and specifYing the name and address of the

person from whom he had received it. (9l). A notice of that intention should be sent to the

warrantor also. Such warranty must form part of the contract of sale. That is warranty

given by an afterthought will not be treated as a warranty. unless there is a connecting link

in the contract (96) To invoke the benefit of the section, the defence has to prove that he

had sold the article in the same state as he had purchased it. When/an addition or removal it: I

, ·f) has been made to the article, the vendor loses the protection\lofwarranty. (97) Where a

single article is divided into a number of separate articles or pieces that constitute a change

in the state of the article. (98)

In a prosecution under the Act, the person by whom the warranty is alleged to

have been given shall be entitled to appear at the hearing to give evidence. (99) A defendant

--------------------------------------------.------------------------------------------------------------(94) See Section 102 (1) of the Food Act 1984 (UK).

(95) Sub section (2) of Section 102 of Food Act 1984 (UK). (96) See. Evans v. Weatheritt (1907) 2 KB 80. (97) Hallv. Owen Jones and Jones (1967)3 A1IER209. (98) Tesco Stores Ltd v. Roberts (1974) 3 All ER 74. In the instant case, the

defendant was prosecuted for selling decomposed liver. It was argued that he bought the liver in bulk with a warranty and then made them into pieces and sold in separate packets.

(99) See Sub section (4) of Section 102 ofFood Act I 984(UK).

who is a servant of the person who purchased the article or substance under a warranty is

entitled to rely on the provisions of Section 102 in the same way as his employer would

have been entitled to do ifhe had been the defendant .(100)

EFFICACY OF THE MACHINERY IN COMBATTING FOOD ADULTERATION

Central Committee for Food Standards

The Central Committee for Food Standard is an important body as far as PFA Act

is concerned. It is the highest and ultimate body responsible for the PF A legislation. The

functions of the Committee is to advise the Central and State Government on matters

arising out of the administration of the Act(lOl)

The Central and State Government may consult the Committee before making

rules to carry out the provisions of the Act. (102) While making the rules, the respective

Government shall take into consideration the suggestions and recommendations, if any,

made by the Committee. The Central Government, after consultation with the Central

Committee for Food Standards, has framed Rule 5 and Appendix B appended to the Rules

laying down the standards of various articles of food.

The Committee consists of experts and representatives associated with articles of

food and its administration. Director General of Health Services, Director of Central

--------------------------------------------------------------------.-----------------------------------

(100) See Sub section (3) of Section (102) of Food Act I 984(UK). (101) See Section 3 of the PFA Act, 1954. (102) See Section 23 and 24 of the PFA Act, 1954.

197

Food Laboratory are, amongst others, the members of the Committee. During the

discussion on the PFA (Amendment) Bill 1974, members of the Joint Committee to which

the Bill was referred considered elaborately about the Constitution ofthe committee. Dr.

K.N. Alva, a honourable members of he Joint Committee expressed that a women should

be incorporated in the implementation of the Act for both prevention and detection of

food adulteration. (103) Similarly, he argued for nominating a person to represent the

interest of private hotel and restaurant industry. The Committee had made suitable

recommendations for constituting the Central Committee for Food Standards with more

representation to protect consumer interest(104)

The Committee exercises control and superintendence over the administration of

the Act

Food<Heatb) Authority

Food (Health) Authority means the Director of Medical and Health Services or

Chief Officer in charge of health administration in a State and includes any Officer

empowered by the Central or State Government in this regard by notification in the

Official GazetteYOS) The clause has been added in 1976 on the recommendation of the

Joint Parliamentary Committee to which the PFA (Amendment) Bill 1974 was referredY06)

Food (Health) Authority is empowered under Section 7(iv) to prohibit the manufacture,

sale, distribution and storage for sale of any article of food in the interest of public health.

----------------------------------------------------------------------------.-------------------------.--(103) See Report of the Joint Committee on PFA (Amendment) Bill 1974, (Gazatte of

India, Extraordinary, Part II, Section 2, January 5, 1976) 16. (104) Ibid at 24. (105) See Section 2(vi) of the PFA Act 1954. (106) Report of the Joint Committee Op. cit note 103 at 24

'98

A perusal of the Act, shows that the powers and duties of the Food (Health) Authority is

not expressly stated in provisions of the Act Nevertheless, Section 24 of the Act enables

the State Government to define the powers and duties of Food (Health) Authority, By

eliciting powers from this enabling provisions, various State Governments had fonnulated

Rules making Food (Health) Authority as the apex 'body responsible for eradicating the

evil of adulteration(107)

Local (Health) Authority

The Local (Health) Authority in relation to a local area means the officer

appointed by the Central or State Government to be in charge of the health administration

of the area by notification in the Official Gazette(I08) The Food Inspector appointed for a

particular area is required to exercise his duties in co-ordination with the Local (Health)

Authority, It is with the previous approval of the Local (Health) Authority, the Food

Inspector can prohibit the sale of any article of food in the interest of public health(I09)

Thus, the Act has provided a cornmendable duty and responsibility to the Local (Health)

Authority, Sub-clause (c) of Section 11(1) provides that the Food Inspector shall send one

of the parts of the sample to the Public Analyst for analysis under intimation to the

(107) See for instance: Andhra Prlldesh PFA Rules 1960 (Rule 3,4); Dadra & Nagar Haveli PFA Rules 1984 (Rule 4); Delhi PFA Rules, 1956 (Rules 3): Goa, Daman & Diu PFA Rules 1982 (Rule 3): Gujarat PFA Rules 1961 (Rule 3); Himachal Pradesh PFA Rules 1984 (Rule3); Jammu & Kashmir PFA Rules 1986 (Rule 3); Karnataka PFA Rules 1986 (Rule 4); Kerala PFA Rules 1957 (Ru1e 3); M,P. PFA Rules, 1962 (Rule 3); T,N. PFARules 1961 (Ru1e4);MaharastraPFARules 1962 (Rule 3); Orissa PFA rules 1959 (Rule 3); Pondicherry PFA Rules 1970 (Rule 4 & 5); Rajasthan PFA Rules 1957 (Rule 4); u.P, PFA Rules 1976 (rule 3) and W.SP,F.A. Rules 1956 (Rule 4),

(108) See, Section 2 (viii a) of the PFA Act, 1954 The clause was inserted by the PFA (Amendment) Act, 1976,

(109) See, Section 10(1)c of the PFA Act.

199

Local (Health) authority. He is also required to send the remaining two samples to the

Local (Health) Authority for safe custody. If the sample sent to the Public Analyst is lost

or damaged, the Local (Health) Authority shall send one of the remaining sample to the

Public Analyst directly.(1I0) It shall be .the duty ofthe Public Analyst to deliver the report

of analysis to the Local (Health) Authority instead of the Food Inspector. Prior to the

amendment in 1976, the report of analysis was directly send to the Food Inspector. The

Joint Parliamentary Committee to which the PFA (Amendment) Bill 1974 was referred,

recommended that report of the Public Analyst should be given to the vendor and

manufactures, if any, disclosed under section 14A after the institution of prosecution with

an intimation(lll) The intimation must be to the effect that if the party desires, they can

move an application before the Court, within a period of ten days from the date of receipt

of the report for an analysis of the second sample by the Director of Central Food

Laboratory. When such an application is made to the Court, the Local (Health) Authority,

on a requisition from the Court, shall forward the sample in its possession to the Court

within a period of five days(ll2)

If the Local (Health) Authority is of the opinion that the report of analysis delivered

by the Public Analyst is erroneous, the Authority shall forward one of the remaining

sample from its custody to any other Public Analyst for analysis and if the report is to the

effect that the article offood is adulterated prosecution may be initiated(ll3) Rule 9-A of

----------------------.-----------------------------------------------------------------------------.---. (110) See. Sectionl1(2) of the PFA Act 1954. (Ill) See Report of the Joint Committee op. cit. note 103 Supra at 9. (112) See. Section 13(2-A) of the PFA Act, 1954. (113) See Section 13 (2-E) of the Act.

200

the PFA Rules 1955 state that the Local (Health) Authority shall within a period of ten

days after the institution of prosecution forward a copy of report of the analysis received

under Rule 7(3) by registered post or by hand to the persons named in Section 13(2).(114)

It cast an obligation on the Local (Health) Authority to forward a copy of the report of

analysis within a stipulated period of ten days from the institution of prosecution.

Whereas, Section 13(2) on the other hand, obligates the Authority to send intimation to he

concerned persons stating that if they desires, they can opt for analysis of the second

sample within a period of ten days from the date of receipt of report forwarded under Rule

9-A. Prior to the amendment of 1984, no time limit was prescribed for the Local (Health)

Authority to forward copy of the report received from the Public Analyst under Rule 7(3).

The Authority was required to forward the report "immediately". The expression

"immediately" intended a sense of continuity rather than urgency. (115)

The time limit stipulated in Rule 9-A is to give the accused sufficient time to

challenge the report of the Public Analyst by making a request to the trial Court to get the

sample analysed by Central Food Laboratory(1I6)

In Kunhappa v. Food Inspector(l11), the Kerala High Court interpreted the word

"immediately" which is replaced in 1984, as without delay, at once or forthwith. The

object of the provision is to serve copy of the report and intimation to the accused in

advance so that they may not complain about the denial of statutory opportunity conferred

by Section 13(2).

(114) See Rules 9-A of the PFA Rules 1955. (115) See Seth & Capoor Op cit note 77 at 710. (1\6) See Tulsiram v. State of UP. A 1985 SC 299. (1\7) 1982 KLT 95.

201

In A.I>. Advam v. Slale of Maharastrcl lll ' the accused vendor was prosecuted for

selling adulterated edible oil. Facts of the case discloses that Public Analyst made his

report on 1.7.1978, but the complaint was lodged only on 26.4.1979. Copy of the report

of analysis was served on the accused on 11.7.1979. It is crystal clear that report of the

Public Analyst was not served on the accused promptly. The apex Court held that such

inordinate delay entitles the accused to acquittal. But, if the accused persons did not avail

the benefit conferred by Section 13(2) to get the sample analysed by Central Food

Laboratory and faces prosecution, they cannot later complain that the delay in serving the

report caused prejudice to them.<1I9, Non-compliance of Rule 9-A is fatal only when

prejudice is established. Mere allegation is not sufficient

Rule 9-A requires the Local (Health) Authority to send or forward a copy of the

report by registered post. It does not require that it should be done by registered post

with acknowledgement due. In Bijay Kumar v. State (120) the prosecution has produced a

postal receipt claiming the despatch of Analyst's report, which was denied by the accused

during trial. On cross examination, it was admitted that except the postal receipt, no

document was available to show that copy of Analyst's report was served on the accused.

In this regard, the learned judges observed:

" The postal receipt does not prove anything beyond the fact that some article was delivered at the post office and a receipt was granted. It does not prove as to what was contained in the article which was delivered at the post office, much less the fact that the article contained a copy of the report of the Public Analyst ... ,~121)

---~-----------------------------------------------------------------------------------------------------

(118) A 1981 SC 1079. (119) Rajendra v. State of MP. A 1991 SC 1757. see Food Inspector, Tellicherry

Municipality v. Beerankoya 1987 Cr. L.J. 521; Revta v. State 1987 Cr.L.J. 1967 (120) 1989 Cr.LJ. 1613. (121) Ibid at 1615; see RC. Sahu v. State 1987 Cr.LJ. 2025.

202

I n the instant case, the Court came to the conclusion that prosecution had failed to

prove the compliance of mandate contained in Section 13(2) and Rule 9-A. In R. Si.wxJra

v. Ramachandra (122), the High Court of Madhya Pradeah by relying on the observations

made by the apex Court in R.B. Sagar Co. v. Rampur Municipality (A 1965 SC 895) held

that "Where there is no evidence to show the compliance of Rule 9-A and Section 13(2),

the conviction is bad in Law".

Every violation of Rule 9-A would not ipso facto vitiate the prosecution. As

stated earlier, it is for the accused to establish, by material evidence, that delay in receiving

the Analysts' report caused prejudice to them and infringed his right. Then it would be

open to the Court to consider its effect on the prosecution and accused's right in

defending the case. Unless the prejUdice is shown, the mere delay in sending the report, by

itself, will not be a ground to reject the prosecution case. (123)

Food analysis

The fate of persons from whom sample has been lifted and the outcome of the act

of Food Inspector depends on the analysis of samples. It is the duty of Analyst to analyse

as soon as possible the samples of food submitted to him by the Food Inspector or by any

other person specified in Section 12 of the PFA Act. Section 12 enables purchaser of

food other than Food Inspector or a recognised consumer association to have the food

analysed on payment of fees prescribed in this behalf. To analyse the samples of food, the

PF A Act provided two designated authorities. At the grass root level, Public Analyst is

authorised to conduct analysis and at apex level, the Act provided Central Food

Laboratories.

---------------------------------------------------------------------------------------------------------(122) 1955 Cr.L.J. 592: seeN. Singh v. State ofMP. 1983 FAJ 147. (\23) See Ramaiah v. State of A.P. 1983 MLJ 624.

Publit Analysts

The provision relating to the appointment of Public Analyst is contained in

Section 8 of the Act The section enables the Central and State Governments to appoint

such persons as it thinks fit as Public Analyst for such local areas by notification in t he

Official Gazette. The proviso added to the Section ensure that no person having any

financial interest in the manufacture, sale or import of any article of food shall be

appointed as Public Analyst under this Section(\24)

Rule 6 of the PFA Rules 1955 lays down the qualification for a person to Act as

Public AnalYSt<12S)· As stated earlier the foremost duty of a Public Analyst is to analyse the

sample of food submitted to him for analysis. The function of a Public Analyst is that of

an expert. A judicial officer is not trained to detect whether any non permitted colour is

added or whether the sample of food conforms to the prescribed standard or contains any

extraneous matters. Legislature has conferred this power to the Public Analyst. As soon

as a sample offood is received, it is the duty of Public Analyst to compare the seals on the

container and the outer cover with specimen impression received separately(126) The

object is to ensure that the sample is not tampered. A reading of Section 13(5) of the PFA

Act clearly shows that a document purporting to be a report signed by the Public Analyst

may be used as evidence of the facts stated therein in any proceedings under the Act or

under Section 272 to 276 of the Indian Penal code, 1860. Because oftrus authoritative

evidentiary valve of the report, Legislature has taken all precautions to ensure that no

--~------------------------------------------------------------------------------------------------------

(124) See Section 8 of the PFA Act, 1954. (125) See. Rule 6 of the PFA Rules 1955.

The qualifications include a graduation or post graduation in Chemistry, a feUow of the Royal Institute ofChernistry ofU.K, graduation in Medicine etc.

(126) See. Rule 7(1) of the PFA Rules 1955.

'04

gimmick is played by anyone interfering or tampering with the sample. The Rule rating

to the packing, sealing and despatching of sample by the Food Inspector in the discharge

of his duties leave no room or scope, if complied in its proper spirit, for tampering with

the article. The requirement to send a specimen of the seal used by the Food Inspector in a

separate packet is to enable the Public Analyst to veritY the seal of the packet and to

ensure that the sample he has to analyse is the same he had received from the Food

Inspector. If followed, in the proper spirit, it will, to a great extent root out corruption

prevailing at this level. It leaves the room for tampering and change of sample itself from

the scenario which is not uncommon.

In Rajan v. State of Keraia(121), prosecution was launched against the accused for

selling adulterated cumin seeds on the basis of the report tendered by the Public Analyst.

Later, at the instance of accused, another sample of the food article was sent to the

Central Food Laboratory for analysis. To the surprise of everybody, the Director of

Central Food Laboratory reported that the article of food sent for analysis is pure and free

from dust and dirt. He had certified that the sample is excellent. Nevertheless, he had

sent a confidential message to the Court with the following message.

" On an examination of the package, it has been found that the seal and fastening of the sample package are very fresh and appears to have been performed recently. Further the sample superficially looks very excellent and well cleaned. Such types of samples are unusually not available in the market. Hence it is suspected that the contents may have been changed before sending the sample to the laboratory ... ,>(128)

---------------------------------------------------------------------------------------------------------

(127) 1979 KLT 658. In the instant case, the third sample was sent to Central Food Laboratory by the order of the Court and the same was found to be adulterated. Hence the conviction was upheld by the High Court.

(128) Ibid at 660.

The case illustrate the malpractices committed by unscrupulous traders with the

collusion of State Officials. The noncompliance of the Rule will cast a doubt and the

Public Analyst would not be in a position to say with certainty that the sample analysed by

him was the same which had been taken on the spot at the time of taking sample. It will

cast a shadow of doubt on the credibility of the prosecution case and will render the report

of the Public Analyst inadmissible in evidence. (129) On the other hand, if the report of

Public Analyst says that he had received the sample properly sealed and fastened and the

seal was intact and unbroken and tally with the specimen impression separately sent by the

Food Inspector, the matter ends there even in the absence of testimony to this effect from

the side of Food Inspector(130) In such event, the prosecution is relieved from the duty of

adducing evidence to prove that the Food Inspector had sent separately the specimen

impression.

In Chetumal v. State of Madya Pradesh(13l) the trial Court has convicted the

accused for selling adulterated. groundnut oil by disregarding the report of Central Food

Laboratory. In the instant case, the Public Analyst reported that the article was

adulterated. But the Central Food Laboratory reported that the sample was tampered.

Because of the factum of tampering, the trial Court did not considered the report of

Central Food Laboratory. On appeal, the apex Court held that report of Central Food

Laboratory supersede the report of Public Analyst and when the same is tampered, no

evidence is before the Court to arrive at a conclusion. Hence the conviction was reversed.

If the Public Analyst is satisfied that the seal and fastening are intact and unbroken

and tally with the specimen impression separately sent by the Food Inspector, he shall

--------------------------------------------------------.-------------------------------------------.----(129) State of M.P. v Ganga Ram 1984 EFR 418. (130) NS. Nair v.Food Inspector 1995 Cr. L.J. 3651(SC) (131) AI981 SC 1387.

'06 cause the sample to be analysed. The PFA Act and Rules does not provide for any

standardisation of the methods, reagents and provisions which are to be adopted while

analysing the sample. (132) Due to the lack of standardised methods, very often the result of

analysis done by Public Analyst and that the Central Food Laboratory varies a 101.(133)

The report of the Public Analyst under Section \3 of the Act need not contain the

mode or particulars of analysis or the test applied. But the report should always contain

the result of analysis, namely, the data from which it has to be inferred whether the article

of food was or not adulterated. (134) In Mis Raj Traders v. State of Himachal Pradesh, the

prosecution launched against the accused for selling adulterated chilly power was quashed

owing to the ambiguous nature of the Public Analyst Report(l35) In the instant case, the

report did not contained any data of analysis for the reasonable conclusion about the

nature of the commodity. The Court was reluctant to rely on such report for arriving at a

conclusion.

Of course, the function of a Public Analyst is being that of an expert. His

observations and wordings in that regard, in the normal circumstances, should be given

considerable importance and weightage. In Nortan Mal v. Rajasthan(1361, the apex Court

held that the wordings of the Public analyst is not being always a gospel of truth.. The'

PF A Act had conferred plenty of flexibility to the courts to arrive at proper conclusion.

The report of the Public Analyst cannot be taken as a gospel of truth to outweigh the

-----------------------.-------------------------------------------.-------------------------------------(132) See Sinha A & Mehrotra, N.N. Op cit note 65 at 75. (133) See State of Kerala v. Chamu 1975 KLT 411; R. Dayal v. Delhi Corporation

A. 1970 SC 366. (134) See Dhiam Singh v. Sahanampur Municipality A. 1970 SC 318; Nagar

Mahapalika, Kanpur v. Sriram 1963 All L.J. 765. (135) 1995 Cr. L.J. 1950 seeMayaram v. State oj Punjab 1987 (11) FAC 320. (136) 1995 Cr LJ 2661 (SC).

207

normal judicial balancing If the Court blindly follow the report of the Public Analyst, it is

an abdication of the judicial function 037)

In Kacherooma/'s case (131), the accused was prosecuted for selling cashenut

which was insect infested. Ironically, the PFA Act did not prescribed any standard for the

cashenut. Normally, if the Act or the Rules made thereunder does not prescribe any

standard, it would exclude the article from the definition of adulteration. In the instant

case, Public Analyst did not made any mention regarding the nature of the sample. The

report was silent whether it was fit for human consumption or not. Hence a valuable legal

evidence regarding the nature of the article was silent because of the callous approach of

the Public Analyst. This lead the apex Court to acquit the accused ultimately. All this

indicate that, report of the Public Analyst should, normally, be clear and in unambiguous

terms so that it is understandable, if not to all, at least, to a sizeable section of the people.

Although the PF A Act does not provided for any standardised methods for

analysis, he is supposed to conduct chemical analysis of the sample. In Jagadish Chandra

v. State of UP. (139) the accused was prosecuted for selling adulterated cinnamon. The

report of the Public Analyst revealed that microscopic test alone was conducted and no

chemical analysis was conducted. Supreme Court held that report based on such

microscopical test is not admissible in evidence and the conviction ordered by the trial

Court was reversed. Thus analysis does not include a microscopical test within he

meaning of the PFA Act.

---------------------------------------------------------------------------------------------------------(137) See Bansilal v. State ofHaryana 1994 FA] 39 (138) Delhi Municipality v. Kacheroomal A. 1976 SC 394; see N.R. Flour Mills v.

Corporation of Calcutta 1973 FAC 257. (139) 1981 SC 1233.

A time limit is prescribed by Rule 7(3) to conduct analysis (140) The time limit,

stipulated in the Rule is in relation to delivery of the report of the analysis. It is, therefore

open to the Public Analyst to analyse the sample well in time with in the period mentioned

sub rule (3) of the Rule (7). The object of prescribing a time limit for analysis and despatch

of report of analysis is to ensure that the Public Analyst does the work promptly before the

sample get deteriorated, so that the accused may get the benefit of Section 13(2).

Whether the provision contained in the Rule is directory or mandatory was a vexed

question before the Court. The mere use of the word "shall" is held not to be conclusive.

It is only an indication. The question, whether Rule 7(3) is mandatory or directory was

considered by the Andhra Pradesh High Court in D.M Roo v. State of A.P .. (141) The

legislative history of the Rule, no doubt, indicates the concern of the rule making authority

that the Public Analyst should conduct the analysis and communicate his report within the

reasonable expedition. The Rule prescribes a time limit for sending the report of analysis.

But none of the provisions either in the Act or the Rules does not prescribe any mandatory

time for instituting prosecution. In this regard, their Lordships observed:

"We are unable to see any direct nexus between Rule 7(3) and the right conferred by Section 13(2) read with Rule 9-A. The said right of the accused springs into action or arises only when a prosecution is instituted and Rule 7(3) deals with a stage anterior thereto". (142)

In the light of the above observation, the Court was reluctant to describe Rule 7(3)

---------------------------------------------------------------------------------------------------------(140) Rule 7(3) of the PFA Rules 1955, read as follows:

- The Public Analyst shall, within a period offorty days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority, a report of the result of such analysis.

(141) 1986 Cr. L.1 495 seeMunicipalCorpora(ion v. Chotela/1973 FAC 363. (142) Ibid at 500.

209

as mandatory This does not mean that Public Analyst can ignore the time limit prescribed

under Rule 7(3) and can send his report at any time he chooses. The time limit specified in

Rule 7(3) is for he report of analysis to reach the Local (Health) Authority and not to the

accused.

Once the report is received from the Public Analyst, the Local (Health) Authority

has to inform the Food Inspector and he has to file the complaint before the Court for

which no time limit is prescribed. Hence a delay of three or four days in sending the

report to the Local (Health) Authority is not fatal unless prejudice is caused to the

accused. When the accused has not specially exercised his right under Section 13(2) of the

Act, he cannot allege any prejudice due to the delay in sending the report(143) But the

Kerala High Court in F.I. Muvattupuzha Municipaliy v. H. Kamath(I44) held that Rule 7(3)

is mandatory. In the instant case, the accused was prosecuted for selling adulterated

coriander powder. The Public Analyst has not sent the report within the prescribed time

limit. The sample was insect infested. With the passage of time, it may cause further

deterioration. Therefore the delay was held to be detrimental to the accused. To hold

Rule 7(3) as directory, according to the Kerala High Court, was to encourage slackness

and lethargy on the part of the Public Analyst to the detriment of the accused. This view

was reviewed by a Full Bench in F.l. Cannore Municipality v. M Gopalan. (145)

-------------------------------------------------------------------------------------------------------~-

(143) See. F.l Tel/ichery Municipality v. P.A. Haji 1986 Cr. L.J.Ol (144) 1989 Cr LJ. 2187; see Food Inspector v. Moosa 1984 KLT 80 (DB); State of

Punjab v. Jai GopaI1983(1) FAC 140; State of Mahrastra v. J.v. Paryan 1981 (2) FAC 92; State of Mahar astra v. D.K. Jain and others 1983 (I) FAC 174.

(145) 1991 Cr. LJ 1783 (FB)

'heir Lordships observed

" A provision in the Act or Rule should receive such construction as would observe public interest and promote the legislative intention. An interpretation which wrecks the public interest in the name of technicality should be eschewed".

In the light of the above, the Full bench declared that Rule 7(3) is directory. (14<5)

The proviso added to the Rule obligates the Public Analyst to forward a copy of the report

of analysis to the purchaser of the article of food, if the same was forwarded to him by a

private person under Section 12, of the Act. At this juncture, it is noteworthy that

Rule7(3) initially prescribed a period of sixty days for sending the report of analysis.

Later, it was amended to forty five days and subsequently in 1984, the period was again

reduced to forty days.

Before parting with the topic, it is appreciable to note the observations made by

the learned judges in Gopa/an 's case.

"Declaration of Rule 7(3) as directory does not arm Food Analyst with a carteblanche to mark their own leisurely para and to despatch the report in an insolvent manner. The delay will certainly expose them to disciplinary action,>(147)

Central Food Laborotay

The Legislature thought it proper to create an apex authority, not within the easy

reach of the accused, for a further analysis of food in appropriate cases. The object is

obvious if, for any reason., the certificate issued by the Public Analyst appears to be.

erroneous, the accused should not suffer because of an incorrect opinion tendered by he

Public Analyst. Alternatively, no guilty person will escape the mesh oflaw by influencing

---------------------------------------------------------------------------------------------------------(146) Ibid at 1790. (147) 1991 Cr. L.I. 1783 at 1790.

", . or tampering with the report or sample sent to the Public Analyst. Hence a valuable right

is conferred by Section 13 (2) of the PFA Act to the accused persons to· get the samples

analysed by the Director of Central Food Laboratory.

Section 2( II) of the Principal Act empowers the Central Government to establish

, Central Food Laboratory and appoint suitable persons as its Director by notification in the

Official Gazette. The proviso added to the section ensures that no person having any

financial interest in the manufacture, sale or import of food article shall be appointed as

Director of such Laboratories.

When we examine the scheme of the Act, we find that the report of the Public

Analyst is the foundation for launching the prosecution. The findings of a Public Analyst

can be successfully demolished by the accused by obtaining a certificate from the Central

Food Laboratory in accordance with the provisions contained in sub section (2) of Section

13 (148) The right conferred by this section cannot be invoked by any person unless a

complaint is lodged before the Court by the competent person. It is equally pertinent to

note that a further obligation is casted on the Local (Health) Authority to forward a copy

of the report of analysis sent to them by the Public Analyst under Rule 7(3), to the person

named as accused in the complaint. Unless the above formalities are not complied, the

statutory right stipulated in Section 13(2) can not be invoked by any person.

Once the copy of the report of analysis is received by the accused under Section 13(2),

he can move an application within ten days to get these sample offood kept by the Local

(Health) Authority to be analysed by the Central Food Laboratory. Section 2-A states

148) Section 13(2) of the PAF Act 1954 enables the accused persons to make an application to the Court within ten days from the date of receipt of the copy of the report to get the sample analysed by the Central Food Laboratory.

212.

that when an application is moved to the Court under Section 13(2), the Court shall

require the Local (Health) Authority to forward the sample to the Court. On receipt of

the sample, the Court will verity, the mark, seal and fastening to ascertain whether it is

tampered or broken. After ensuring all this, the Court will send the sample under its seal

to the Director of the Central Food Laboratory. The Certificate of analysis will be directly

sent to the Court within one month from the date of receipt of the sample.(149)

In Ram Dayal v. Delhi Corporation (ISO>, the accused was prosecuted for selling

adulterated sweetmeat. In the instant case, on the application of the accused under

Section 13(2), the sample was referred to the Central Food Laboratory. Nevertheless in

the trial, the accused moved another application to call the Public Analyst for examination.

The issue was considered by the apex Court and held that merely because the certificate of

Central Food Laboratory supersede the report of the Public Analyst under Section 13(3),

it will not impair the right of the accused to call Public Analyst for examination. When

such a prayer is made, the Court is bound to consider it on merits.

A plea to invoke the right conferred by Section 13(2) must be used preferably in

the first hearing itself. In State of Kerala v. Chacko, the accused was prosecuted for

selling adulterated milk.(ISt) The sample was taken on 22.9.1968 and the complaint was

lodged before the court on 23.1.1969. The trial started only on 3.2.1969 almost four

months after the sample was taken. The milk would remain intact to the period of

(149) See Section 13 (2-B). (I SO) A 1970 SC 366. (151) 1970 KLT 458; See Joseph v. Gopinathan 1967 KLT 547

maximum four months, if preservatives are properly added. In such circumstances, if an

application is moved by the accused to invoke the benefit of Section 13(2), no useful

purpose will be served. The delay will undoubtedly, vitiate, the sample by rendering it unfit

for analysis. This view was later reiterated by the Patna High Court in J.N. Sah v. State of

Bihar. (152)

If because of any reason, the remaining samples in the custody of the Local

(Health) Authority becomes unfit for analysis or broken or damaged, the continuation of

prosecution is bad in law. In such cases, the accused will lose a valuable right conferred

by Section 13(2). Similarly, if the report of the Director of Central Food Laboratory

shows that the sample sent for analysis is decomposed or unfit for analysis, it is a point

which is certainly in favour of the accused. In such cases, the further continuation of

prosecution is an abuse of process of the COurt(IS3)

In Jagmohan v. State of West Bengal the accused was prosecuted for selling

adulterated asafoetida(154) But the report of the Central Food Laboratory revealed that the

asafoetida in dispute was not adulterated. In the trial the learned magistrate held that

report of Public Analyst will be superseded only on the point of analysis carried out by the

Central Food Laboratory, but not in respect of the point of analysis which were not

carried out by the Central Food Laboratory. In the instant case, the tests conducted by the

Public Analyst was not carried out by the Central Food Laboratory. Hence the trial Court

(152) 1989 Cr. LJ. 2419 (2421). In the instant case, sample of atta was sent to Central Food Laboratory for analysis after two years inspite of the Court orders. The report disclosed that atta received for analysis contained many dead and living insects and was deteriorated.

(153) See S. Kumarv. State of Haryana 1994 FAJ 64; see Narinder Singh v. State of Punjab 1985 (I) FAC 120.

(154) 1995 Cr. LJ. 3735

taken the view that such an incomplete report will hardly supersede the report of the

Public Analyst under Section 13(2). On appeal, the apex Court reversed the findings of

the lower Court and held that superseding the report of Public Analyst by the report of

Central Food Laboratory is the mandate of Legislature.

The Legislature has prescribed a period of ten days to those person stipulated in

Section 13 to invoke the benefit of sub section 2. In NK. Dixit v. C.J.M Sitapur(155) the

accused who was prosecuted for selling adulterated mustard oil, moved an application

under Section 13(2) for the analysis of second sample after the prescribed period of ten

days. While allowing the application moved by the accused, the Lucknow Bench of the

Allahabad High Court held that the time limit stipulated in Section 13(2) is in the nature of

a direction only. The time limit stipulated for the benefit of the accused is not to force the

accused to exercise his right within specified time. It is intended for the benefit of the

accused and hence time limit specified in Section 13(2) is not mandatory. (156)

The right conferred to the accused by Section 13(2) cannot be override on the

plea that the offence in question is an offence against public health and national wealth.

Howsoever, laudable the object may be, an accused cannot be convicted by disregarding

the general statutory rights conferred by the law. Hence the safeguard provided for in

Section 13(2) of the Act conferring a. right on the accused to require the article offood in

question to be sent for analysis to the Central Food Laboratory superseding all other

(155) 1995 Cr. LJ. 3493. (156) Ibid at 3495.

reports cannot be whittled down on the plea that investigation was made under the

provision of Code of Criminal Procedure(57)

Unless the accused make an attempt to invoke the right conferred by Section 13(2),

he cannot later complain that delay in sending the report to him by the Local (Health)

Authority caused prejudice to him in successfully defending the case,058) Once the

accused makes a successful attempt, the certificate issued by the Director of Central Food

Laboratory will supersede the report of the Public Analyst. In such cases, report of the

Public Analyst will loose its evidentiary value(159) The proviso added to Section 13(5)

make it clear that a document purporting to be signed by the Director of Central Food

Laboratory shall be final and does not require any formal proof The same can be used as

evidence of the facts stated therein in any proceedings under the Act as well as under

Section 272 to 276 of the Indian Penal Code, 1860. This finality is not given to the report

signed by a Public Analyst. But this does not mean that the Director of Central Food

Laboratory is immune from disclosing the relevant information in the report. In Salish

Kumarv. v. State of Haryana(160), the accused was prosecuted for selling adulterated

chnadal. . The report of the Director showed the presence of dead insects and

contamination with rodent excreta. However, the report was silent as to the nature of the

article. The Director failed to nOle that the article was unfit for human

consumption. By relying on the decision of Supreme Court in State v. Puram MaP61),

---------------------------------------------------------------------------------------------------------(157) See. Sasikant & Co. v. Orissa 1989 Cr.L.l 264 (266). (I58) See. Tulasiram v. State of Madya Pradesh 1985 SC 299. (159) See K.v. Baby v. Food Inspector 1994 (I) KLJ 709. (160) 1989 Cr. L.1. 2224. (161) A 1985 SC 741.

I

216

their Lordships observed:

"It would not be safe to maintain the conviction of the petitioner when the opinion of the Director. Central Food Laboratory. is not to the effect that the sample was unfit for human consumption·~162).

The above observation shows that report of the Central Food Laboratory will be

conclusive under Section \3(5) only when it is clear and in unambiguous terms.

Although every effort were made by the Legislature to root out corruption and

tempering of samples, instances had come on many occasions showing iniquity. In Rajan

v. State of Keraid163), the Public Analyst reported that cumin seeds were adulterated. But

when the second sample was sent to Central Food Laboratory, the Director found that the

cumin seeds were of exceptional high quality. Such quality is not usually available in the

market. He also noted that the seal and fastening were appeared to be very fresh and

suspected a foul play(l64) But when the third sample was sent for analysis, it was found to

be adulterated.

This shows that the machinery entrusted with the duty of weeding out adulteration

itself is not immune from corrupt practices. Officials charged with the duty of eradicating

the evil themselves mingles hands with unscrupulous traders.

Food Inspector

The enforcement machinery which is responsible for effective implementation of the

PFA Act and the Rules made there under comprises the Food Inspectors. Proceedings

(162) See Satish Kumar Op. cit. note 160 at 2227. (163) 1979 KLT 658. (164) Ibid at 660.

", under the Act starts with the action of Food Inspectors and hence they are the persons

who put the implementing machinery into motion. Food Inspectors put the administrative

machinery into swing by inspecting the manufacturing or selling premises and collect the

samples of food articles. He collect samples upon the reasonable Suspicion that the food

article is either adulterated or misbranded within the meaning of the Act or Rules made

thereunder.

Section 9 of the PFA Act empower the Central and State Governments to appoint

such persons fulfilling the prescribed qualifications by notification in the Official Gazette

as Food Inspectors for the purpose of the Act. (165) No person who has any financial

interest in the manufacture, sale or import of any article of food shall be appointed as

Food Inspector under this section. For the effective rendering of their duty, they are

designated as Public Servants within the meaning of Section 21 of the Indian Penal Code,

1860. The Food Inspectors appointed so are conferred with the powers enumerated more

descriptively in Section 10 of the Act. There is no gainsaying that the job of the Food

Inspectors are of considerable importance and they have to perform their duties which

require efficiency, intelligence and integrity, particularly when the evil of adulteration is

rampant. Rule 8 of the PFA Rules, 1955 prescribes the educational qualifications required

for a person to act as Food Inspectors. (166) In the absence of persons possessing the

requisite academic qualifications, the proviso attached to the Rules empowers the

appointment of persons having proper training and experience specified therein as Food

Inspectors.

---------------------------------------------------------------------------------------------------------(165) See Section 9 of the PFA Act 1954 (166) See Rule 8 of the PFA Rules 1955. For brevity it is suffice to say that graduate in

Me~icine, Science with Chemistry as one of the subject Veterinary Science, Agnculture, Pharmacy, Food Technology, etc., are prescribed as academic qualification for the appointment of Food Inspectors.

It is pertinent to note that there are very few local authorities who can appoint or

has appointed proper persons as Food Inspectors with sufficient emoluments. The Joint

Committee to which the PFA (Amendments) Bill 1974 was referred expressed shock on

the inadequate and poor machinery endowed with the duty of tackling the evil of

adulteration It was noted that the biggest State of Uttar Pradesh was having only forty

six full time Food Inspectors during the beginning of 1970(167) More astonishingly,

Madhya Pradesh, Bihar, Karnataka, Tamil Nadu, Tripura and Rajasthan had not even

recruited Food Inspectors on full time basis. (168) This was the state of affairs that existed

when the Bill was referred to Joint Committee for consideration.

Power of Food Inspectors

In the discharge of functions conferred by the PF A Act and Rules made

thereunder, Food' Inspectors derives the power from Section (10) of the Act. He is the

person concerned to implement the provisions of the Act and Rules made thereunder at

the grass root level. Any callous approach on the part of him in exercising his functions

properly in its spirit will help the unscrupulous traders indulged in the draconian act of

adulteration. The plea that corruption is rampant all around should not deter him from

taking effective steps to root out the evil of adulteration from the country. Therefore

instead of taking samples of suspected food at random basis as and when he desires,

samples on mass-scale should be taken from a particular locality from all types of dealers

in food without any previous inkling to them. This will create fear in the minds of dealers.

But in actual practice, the compliance is an exception rather than rule. Therefore, a close

(167) See Report of the Joint Committee on PFA (Amendment) Bill 1974 (Gazette of India, Extraordinary, Part II Section 2, Jan 5, 1976)19

(168) Ibid

watch on the implementing staff is needed to root out corruption at the implementing

stage. While piloting the PFA (Amendment) Bill 1974, the Minister of Health and Family

Planning assured the House that serious and draconian action will be taken against corrupt

officials who act in collusion with traders while implementing the Act.(169) All this indicate

that any failure on the part of the Food Inspectors will wipe out the very object of the Act.

Hence, he should be vigilant while exercising his function.

Power to take samples

Food Inspectors have power to take samples of any article offood from:-

a. any person selling such article,

b. any person who is in the course of conveying, delivering or preparing to deliver such

article to a purchaser or consignee,

c. a consignee after delivery of such article to him. (170)

A perusal of the clause shows that vast powers are conferred by the statute on Food

Inspectors. But they are not expected to abuse the powers. During the course of

tendering evidence before the Joint Committee to which the PFA (Amendment) Bill 1974

was referred, a number of witnesses represented that they were being harassed by the

Food Inspectors while taking samples by misusing their powers. (171) To minimise the

chances of corruption, the Committee therefore made the following recommendations in

the Bill.

(a) A Food Inspector shall have no power to take samples from a person who

purchases or receives any articles as consignee for his own consumption.

(169) See Parliamentary Debates (R.S) Vol.IXIV (27, January, 1976) 116. (170) See Sub-clause (1) of Section 10 ofPFA Act 1954. (171) ReportojtheJoint Committee Op. cit note 167 at 7

2'0

(b) Food Inspector shall not take samples of any primary food if the same is not

intended for sale as such. (172)

As a measure to prevent the harassment of dishonest Food Inspectors, the above

measures were incorporated in the body of the Act.

Sample

Sample for the purpose of the Act means sample of any article of food taken under

the provisions of this act or of any rules made there under(l73) The apparent object of the

Act is to book the offenders who violate the law and indulge in adulteration. The whole

edifice of the Act is therefore builted on taking of samples by Food Inspectors without

which it is impossible to detect adulteration.

Procedure to be followed by the Food Inspectors

Clause (a) of sub-section (1) of Section (11) cast a statutory duty on the Food

Inspector to give notice in writing, of his intention to take samples for analysis under the

provisions of the Act. Prior to the PFA (Amendment) Act, 1976 the Food Inspector was

obliged to deliver one part of the sealed sample to the person from whom the sample was

taken.<174) The Amendment had taken away the necessity of handing over one part of the

sample to the person from whom the sample was taken.

(172) Ibid. (173) Section 2(xiv) of the PFA Act 1954. (174) Section ll(c); the PFA Act 1954. Prior to the Amendment ofl976, relevant part

of the section was as follows: When a food inspector takes a sample of food for analysis he shall. .. c(i) deliver one of the parts to the person from whom the sample has been taken; ... .

221

Tender of price and purchase

The Food Inspector is required to purchase the sample by paying the market price

and the price shall be paid to the person from whom it is takenU7') The transaction can be

simply described as 'sale'. The word 'sale' is defined by Section 2(xiii) of the PFA Act

and has a wide meaning(176) A perusal of the definition incorporated in the Act shows that

sale of any article of food for analysis will come within its ambit even if the transaction

contains an element of compulsion(177) To constitute' sale' within the meaning of this

Act, it is not necessary that the accused is the owner of the property or an agent

authorised to sell the property. Since liability of the vendor from whom the sample was

taken, is strict and also the above questions are irrelevant(178)

Sample can be taken from a person who stores or manufacture an article for sale.

Hence it cannot be taken from a person who is storing it for domestic purpose(179) In

Municipal Board, Faizabad v. Lal Chand (180) the sample of milk was taken from a tea

shop. It is true that milk as such was not stored for sale. Nevertheless, the Allahabad

High Court held that, the accused had sold adulterated milk to the Food Inspector so as to

constitute an offence under the Act. Later, the Gujarat High Court held that the

---------------------------------------------------------------------------------------------------------(175) Section 10(3) of the PFA Act, 1954. (176) For more details See. Contractual analysis offood adulteration law- Chapter III

Supra. (177) See Kerala v. Chacko 1970 KLT 458. (178) See State ofKeralav. R Nair 1965 KLT 402. (179) See FoodInspector v. Punsi Desai 1958 KLT 983. (180) A 1964 All 199. But See Paulose v. Food Inspector 1992 (1) KLT 522 wherein

the Kerala High Court had taken a conterary view in a similar case.

222

person from the sample was taken need not be a dealer in that particular article.(III) In the

instant case, Dahi (curd) taken by the Food Inspector for analysis. It was argued that the

curd was meant for preparing Lachhi and not for sale as such. But the Court was not

inclined to accept the contention. And in Gopalan 's case (182) the Supreme Court has

reviewed all case laws and concluded that a person from whom sample had been taken

need not be a dealer in that article. And mere sale of adulterated food article to Food

Inspector for price is sufficient.

Quantity of samples

Rule 22 of the PFA Rules 1955 prescribes minimum quantity of various

articles required for analysis. In R. G. Pamani v. State of Maharastra (183) the Court

observed that non compliance of Rule 22 and consequent shortage of quantity for analysis

is fatal to the prosecution. The quantities mentioned are required for correct analysis(I84)

Does this indicate that Rule 22 is mandatory? The Supreme Court was not inclined to

consider this aspect in State of Maharastra v. Shantilal (185) and held that the same should

be decided by a larger Bench. The issue was later considered by the Supreme Court in

State of Kerala v. Alasserry Mohd(186) The object of Section 11 and Rule 22 is to ensure

correct analysis of samples. The Court held that a lesser quantity of samples than the

prescribed one by itself will not' nullifY or vitiate the analysis unless the Public Analyst

---------------------------------------------------------------------------------------------------------(181) See State of Gujarat v. Asandas Kimmalari A 1964 Guj 191. (182) F.l. Calicutv. Gopa/an A 1971 SC 1725. In this case, sugar was taken from a

tea shop by the Food Inspector for analysis. (183) A 1975 SC 189. (184) OmPrakashv. State 1986 (I)FAC. 24. (185) A 1977 SC 2182. (186) A 1978 SC 933.

In this case, instead of 250 grams prescribed by Rule 22, Food Inspector had sent 200 grams of dal for analysis.

lind the sample as insufficient for analysis. Therefore the Coun concluded that Rule 22 is

directory and non observance of it will not vitiate the analysisOl7) It is for the Public

Analyst to say whether the quantity of the sample sent to him was sufficient or not for

making necessary analysis. And it is only when the Public Analyst complaints or certifies

that the lesser quantity of sample was insufficient for analysis, then only the accused may

get the benefit of non compliance of Rule 22.

At this juncture, it is not out of place to add that the PFA Rules were amended in

1977 and Rule 22-B was added to set at rest the doubts with regard to the quantity of

sample to be sent for analysis. Rule 22 B states that notwithstanding anything contained in

Rule 22, the quantity of sample sent for analysis shall be considered as sufficient unless the

Public Analyst or the Director of Central Food Laboratory reports to the contrary. It does

not however mean that it is open to the Food Inspector to violate the mandate of

Legislature. He should always be cautious in complying with the provisions of the Act

and Rules rather than disregarding them by sending lesser quantity of sample than the

prescribed one.

Division of sample

Section ll(l)b of the Act requires the Food Inspector to divide the sample into

three parts. Out of this one sample has to be sent to the Public Analyst under intimation to

Local (Health) Authority and send the remaining two parts to the Local (Health)

Authority. Prior to the Amendment in 1976, the person from whom the sample was taken

was also entitled to get one part of the sample. The amendment had taken away this right.

In the case of anicles sold in sealed packets, the failure on the part of the Food Inspector to mix the contents of the packets before dividing the sample will not vitiate the

----------~---------------------------------------------------------------------------------------(187) Ibid at 939.

224

process (".) For containers having identical label declaration, the contents of one or more

of such containers shall be treated as part of the same sample.

In milk and milk preparations, it is poaaible that the fat or cream accumulates on

the top and in order to find out whether the milk or its preparation had the prescribed

contents, the sample must be homogenous and representative. For this purpose churning

is one of the methods of making the sample homogenous and representative. It is matter

of common knowledge that unless the sample is made homogenous or representative, it

will bound to be deficient in essential ingredients. Hence the non observance of this will

cast a doubt on the authenticity of the Public Analyst report and therefore it will be fatal to

the prosecution(189) Rule 14 states that samples should be taken in clean, dry bottles or

jars, or in other suitable containers. The same should be closed sufficiently to prevent

leakage or evaporation and in the case of dry substance, entrance of moisture. The

containers should be clean and dry or any extraneous matter is likely to change or

decompose or cause disintegration of the article of food which will vitiate the result of

analysis. It is the duty of the prosecution to prove beyond reasonable doubt that the

procedure contemplated for taking the sample are complied strictly. The non- compliance

of Rule 14 is fatal and the procedure contemplated therein are described as mandatory.(l90)

When Rule 14 states that samples should be taken in clean, dry bottles or jars or in other

suitable containers, it is not open to the Food Inspectors, to take the samples in pockets.

Such an attempt will vitiate the trial.(191)

-----------------------------------------------------(188) See. F.l. Qilon v. Koyakutty 1972 KLT 464; State of Mahar astra v. N.K. Metha

1989 Cr. L.]. 1371 see Rule22A, PFARules 1955. (189) Natarajan v. F.l., Tiruneiveli Municipality 1994 Cr. L.J. Nos. 103 (NOC).

See F.I. MC Baroda v. MR. Sharma A 1983 SC 176 (190) See Seth & Capoor Prevention of Food Adulteration Act, 1954 (1993 Law

Published, Allhabad) 720-21. (191) See ShivaDutt v. State o/Punjab 1987 EFR l57;N. Chandv. State 1986

FAJ387.

225

Rule IS provides that the bottle, jar or the container containing the sample shall be

properly labelled and properly addressed Section 11(3) obligates the Food Inspector to

send a sample to the Public Analyst not later than the next working day. Delay of a few

days in sending the sample to the Public Analyst does not per se cause prejudice to the

offender. In FI v. P.Co.op MS. Society LId (192), the Kerala High' Court held that to

construe any and every delay as fatal to the prosecution would encourage malpractice and

corruption and thereby frustrate the object of the Act.

But, certainly, delay has to be avoided to prevent collusive or corrupt acts. But

the Calcutta High Court in Indian Sweets & Others v. State oj West Bengal held that delay

in sending sample to the Public Analyst is fatal. (193)

Rules 16 to 18 deal with the manner of packing and sealing the samples, the

manner of despatching the containers of samples and the memorandum and impressions of

seal. The object of Rule 16 is to ensure that the sample bottles are not tampered within

the course of transmission from the Food Inspector to the Public Analyst. It is to be noted

that an accused person can be convicted on the basis of the report of the Public Analyst to

whom the sample is sent. Therefore, it is necessary in order to protect the interest of the

accused to see that the samples sent for analysis is properly secured in order to prevent its

being tampered with. And non performance of the duties may vitiate trial, since it may

result in injustice. Hence Rule 16 is of substantial nature and must be complied

strictly. In NS. Nair v.FI Mandikara (194) the accused was prosecuted for selling

---------------------------------------------------------------------------------------------------------

(192) 1979-85 KUC 473 (480) see State ojMP. v. Nanetha/1992 Cr L.1. 257 (M.P) (193) 1994 Cr. LJ. 93 (NOC). (194) 1995 Cr. L.J. 3651 (S.C.)

226

adulterated ice cream. But the trial Court acquitted the accused on the ground that Food

Inspector has not complied with the procedure for sending the sample in accordance with

law. On appeal, the High Court reversed the order of the trial Court and held that report

of the Public Analyst specifYing that seal fixed on the container and outer cover of the

sample tallied with the specimen impression of seal separately send by Food Inspector is

sufficient to show that the sample was intact and not tampered.

Addition of preservatives

Rule 19 of the PFA Rules 1955 state that any person taking a sample of any food

for the purpose of analysis under the Act may add preservatives to sample for the purpose

of maintaining it in a condition suitable for analysis. The Rule does not make any

difference in its application to Food Inspector or to private person acting under the

authority of Section 12. The kind of preservatives to be used for articles like milk,

prepared food etc. is formalin, containing about fourty per cent of formaldehyde in

aqueous soIution.<l95) Formalin plays the role of retarding the process of decomposition.

And whenever any preservative is added to a sample, its nature and quantity may be noted

on the label affixed to the container .096) The obvious object of the above Rules are to

maintain the sample of food in its original condition for analysis without deterioration or

decomposition.

Position under English Law

In England, the person who is authorised to take samples in public interest is called

Sampling Officers. A Sampling Officer may purchase the sample of any food or

------------------------------------------------------------------------------------------------(195) See Rule 20 ofthePFARules 1955. (196) Rule 21 of the PFA Rules 1955.

227

any substance capable of being uaed in the preparation of food for analysis or for

bacteriological or other examinations.<'97) But under the new Food Safety Act, 1990,

read with Food Safety (Sampling and Qualifications) Regulations 1990, the sample can be

taken by an Authorised Officer, The samples taken for analysis has to be divided into three

parts or lots and should be placed in suitable container with necessary marking(l98l, Out of

this three lots, one has to be given to the owner or person from whom the sample was

taken, One part should be retained by the Authorised Officer and the other one should be

submitted for analysis, And the retained sample may be submitted to the Government

Chemist on the direction of the Court, Under the English law, the Authorised Officer is

empowered to acquire sample by two means, namely by purchase and by taking (without

payment) (199),

RIGHT OF PRIVATE PERSON

Section 12 of the PF A Act empowers the purchaser of any article of food other

than Food Inspector and any recognised consumer association to send the articles

purchased by them for analysis to the Public Analyst on the payment of such fees

prescribed in that behatf200>. At the time of purchase, the purchaser have to infurm the

vendor of the article, his intention of sending the article for analysis, A perusal of the

section in the light of the Act shows that there is no provisions in the Act compelling the

-------------------------------_._--(197) Section 78 of the Food Act, 1984. For details see, Habibury's Statutes of

England and Wales vol. 18 (1986, Butterworths, London) 521. (198) See for details section 29-30 of Food Safety Act, 1990. (199) See, Basset, W,H,: Environmental Health Procedures (1992, Chapman and Hall,

London) 322-23, (200) A similar provision is contained in Section 79(2) of the Food Act, 1984 (U,K)

empowering any person other than a Sampling Officer to have the food anIysed by a Public Analyst

'28

vendor to sell the article to a private person for analysis. The purchaser cannot compel the

vendor to sell the article for analysis and hence the success of this section depends

uponthe co-operation of the vendor. It can be pushed down by an unscrupulous trader or

vendor. Moreover it does not empower any private person to take samples from the

manufacturer or a person who stores the same for sale.

Power to conduct search

Food Inspector is entitled to enter and inspect any premises where any article of

food is manufactured, stored for sale or stored for the manufacture of any other articles of

food for sale or exposed or exhibited for sale or where any adulterant is manufactured or

kept. (201) This power should not be used to harass the concerned people. If the Food

Inspector is not able to exercise the above functions due to resistance or non-co-

operation, he can break open any package or door of the premises where the food article

is kept for sale. (202) The power to break open the package or door of the premises shall

not be exercised until the occupier refuses to comply the order of Food Inspector. Before

breaking any package or door, the Food Inspector shall record his reasons. The proviso

attached to the section require him follow as far as possible, the procedure prescribed by

the Code of Criminal Procedure, 1973 relating to the power of entry and inspections.

Witness

The idea behind the necessity of calling persons to witness the actions of Food

Inspector is to ensure fairness in action. It act as a safeguard to the accused as well as a

restriction to check the arbitrariness on the part of the Food Inspector. The requirement of

calling one or more persons to witness the actions will minimise the possible allegations of

(201) See section 10(2) ofthe PF A Act, 1954 (202) See sub section 5 of Section 10 of the PFA Act, 1954.

229

excesses or unfairness on the part of Food Inspector.

Section 10(7) of the Act cast an obligation on the Food Inspector to call one or

more persons as witness when he act in accordance with the provisions of the Act. For

the effective and efficient functioning, he may use the powers of a police officer

particularly for the purpose of ascertaining the true name and residence of the person from

whom sample of an article had been taken or seized.(203) In the preceding caption, we

found that power of a Food Inspector includes the power to make search and seizure.

Such powers are expected to be exercised fairly. For instance, when a police officer act

in accordance with the provision of the Code of Criminal procedure, 1973 in making

search, he shall call two or more independent and respectable inhabitants of the locality

to witness the search .004) A perusal of Section 100 (4) ofthe Code of Criminal Procedure

1973 shows that, the police officer is obliged to call two or more independent and

respectable inhabitants of the locality. Failure to get the required witness will not excuse

him and the entire action will be vitiated. But on a perusal of Section 10(7) of the PF A

Act, it appears that the provision is silent with regard to the qualifications of witness. (20S)

The whole idea behind requiring other persons to witness the official acts of Food

Inspector is to corroborate the acts

(203) See Section 10(8) of the PFA Act, 1954. (204) See Section 100(4) ofthe Code of Criminal Procedure, read as follows:

Before making a search under this Chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(205) See section 10(7) of the PFA Act 1954 read as follows:-Wh~re the Food Inspector takes any action under Cl.(a) of sub-section (1), sub­seChon (2), sub-section (4) or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signature.

of them with better evidence of independent and impartial persons.

A Food Inspector is required to call one or more persons as witness when he take

samples, conduct any inspection at any place where food is manufactured or stored for

sale or where any adulterant is kept and when he conduct any search and seizure of

adulterated foods and documents relating to them.

The obligation casted by Section 10(7) on the Food Inspector is to call one or

more persons to be present when he takes action(206) Contrary to the provision contained

in Section 100(4) of the Code of Criminal Procedure, nothing in Section 10(7) enables the

Food Inspector to compel the presence of others as witness. Since Food Inspector has no

means of enforcing compulsory attendance, Parliament could not have intended that the

presence of such persons are mandatory. Hence non-compliance of Section 10(7) will not

vitiate action taken by Food Inspector, but it may reduce the weight of evidence(201) The

consequence of non-compliance of Section 10(7) was considered by the Kerala High

Court in Food Inspector V. P. Nair. (208) All laws are mandatory in the sense that they

impose a duty on those who come within their express purview. But it does not follows

that every departure therefrom would taint the whole proceedings with a fatal blemish. In

this regard their Lordships observed:

(206) FoodInspectors v. Joy 1982 KLT 219 In the instant case accused was prosecuted for selling adulterated peas dhal. The trial Court acquitted him on the ground of non-compliance Section 10(7). But on appeal, the Kerala High Court reversed the acquittal and remanded the case for fresh disposal.

(207) Ibid at 224; see R.Rathi v. State of Assam Cr.R.No:212 of 1984 GAU (D.B) (Unreported case); Mammu v. F.l1965 KLT 718

(208) 1967 KL T 825

2~1

"If the provision involved relates to some immaterial or collateral matter, where compliance is a matter of convenience rather than of substance or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provision may be regarded as directory." (209)

In the instant case, Division Bench of the Kerala High Court held that non-

compliance of Section 10(7) will not vitiate the proceedings and its underlying object is to

give corroborative evidence to the Food Inspector's evidence. Hence it is directory.

As stated earlier, the obligation on Food Inspector is to "call" only. Whereas in

Section 1 00(4) of Code of Criminal Procedure, the concerned officer can enforce or

compel the presence of others as witness. The reluctance of respectable and independent

persons to enter the witness box is due to the fact that many people consider it to be the

slaughter house of reputation. This fear dissuade them from responding to the call of

Food Inspector. What is contemplated under Section 10(7) is that the Food Inspector

ought to try and secure the presence of one or more independent persons when he takes

actions. (210) His inability to secure such persons will not vitiate the proceedings. The

position of a Food Inspector is not that of an accomplice. (211) There is no rule of law that

a conviction cannot be based on the sole testimony of a Food Inspector. It is due to the

sense of caution based on prudence that Court insists that the testimony of a Food

Inspector should be corroborated by some independent witness. His evidence, if

-------------------------------------------------------.--------------------------------------------(209) Ibid at 829 see N.L.Agarwal v. State of Assam 1994 F AJ 57 (210) Ram Lubhaya v. Delhi MuniCipality A 1974 SC 789. (211) Babulal v. State ofGujarat (I971) IS see 767; seeF.I V. Prabhakaran 1982

KLT809

believable in other respects, can sustain a valid conviction(2l2)

What is contemplated under Section 10(7) is that Food Inspector must make all

efforts to secure the presence of one or more independent witness. It will ensure that an

actual and genuine transaction of sale of the sample to the Food Inspector had taken place

and he had complied the procedures and formalities in the prescribed manner. It will

negative the defence of unfairness, excesses and false implication on the part of the Food

Inspectors. Therefore such persons should be disinterested and not susceptible to the

influence of Food Inspectors. The evidentiary value of Food Inspector's testimony in the

light of Section 10(7) was reviewed by the Supreme Court in Prem Ballab v Delhi

Administration(213) The apex Court observed:

" There is no rule oflaw that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the Court insists that the testimony of FI should be corroborated by some independent witness. This is a necessary caution which has to be born in mind because the FI may in a sense be regarded as an independent witness, but this caution is a rule of prudence and not a rule of law: if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing punch witness.',(214)

All this indicate that the Court should be very cautious while interpreting Section 10(7) of

the Act and legal blow should fall on every adulterator. That is, interpretation will not

leave loopholes to them to get out of the meshes oflaw.

Liability of Food Inspector

Instead of a drawback it is a merit of the PF A Act that it prescribes the powers as

---------------------------------------------------------------------------------------------------------(212) Ibidat 790. (213) A 1977 SC 56. (214) Ibid at 59; see State of UP v. Hanif 1992 Cr. L.J. 1429 (SC).

233

well as the liability of Food Inspector in the same section. Earlier, it was noted that

theFood Inspector derive his vast powers from Section (10) of the PFA Act. The

concluding part of the same section provides the liability and consequent punishment to

those Food Inspectors who transgress the limits of his powers. This shows that

Legislature was aware of the collusive and corrupt nature of those who were invested

with the duty of eradicating the evil of adulteration. The above facts became a maiden

truth when a number of people represented before the Joint Committee to which the PFA

(Amendment) Bill 1974 was referred that Food Inspectors were harassing the vendors in

the matter of taking samples and were misusing their powers to their advantage(2Il) It

may be noted that the representations were made during the subsistence of a valid

substantive provision incorporating and fixing liability upon erring Food Inspectors. That

means, the gulf between the law in text and actUal practice still exists to a considerable

extent and the gulfis not nearing. Sub-section (9) and Section 10 incorporate the liability

of Food Inspectors for vexations and malicious acts. If a Food Inspector seizes any food

article or adulterant vexatiously or without any reasonable grounds of suspicion or

commits any injury to any person without having reason to believe that such act was

necessary for the execution of his duty, he shall be deemed to be guilty of an offence under

Section 10(9). The penalty fur which is fine which shall not he less than five hundred

rupees but which may extend to one thousand rupees.

A perusal of the decided cases hardly shows any prosecutions under this

head. But it does not mean that Food Inspectors are punctual in their duties. The reality

is that petty merchants and retailers lacks the requisite enthusiasm to prefer their

-----------------------.-------------------------.-------------------------------------------------. (215) See Report of the Joint Committee OP. cit note 167.at 7.

complaints against Food Inspectors due to fear of further humiliation and harassment.

Even if anyone comes by breaking the shell, it is not so easy for them to prove beyond

reasonable doubt that the Food Inspector acted maliciously or vexatiously. In the light of

the punishment prescribed by the Act for transgressors of law, the punishment prescribed

by Section 10(9) to the Food Inspector is very light and nominal. It gives ample

opportunity to the Food Inspector to move away with a simple penalty and fine.

Sanction for prosecution

Criminal law is put into motion by instituting prosecution. To launch or institute

prosecution for any of the offences contemplated by the PF A Act, requirements of

sanction from prescribed authority is a must. Section 20 of the PF A Act confers an

enabling power on the authorities enumerated in the section to launch prosecution for the

evil of adulteration. (216)

A bare reading of the provision clearly shows that the prosecution must be initiated

either by the Central Government or the State Government or a person authorised in that

behalf by the Central or State Government. Otherwise, the prosecution should be initiated

or instituted with the written consent of any of the above persons. The non-fulfilment of

(216) Relevent part of Section 20 of the PF A Act read as follows: (1) No prosecution for an offence under this Act, not being an offence under Sec. 140 or See 14-A] shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government.

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Sec. 12, if he produces in Court a copy of the report of the Public Analyst along with the complaint. (2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence under this Act.

any of the above stated conditions will render the institution of prosecution invalid. The

tenns of the section do not envisage a further delegation of powers by the persons

authorised. In A.K. Roy v. State of Punjab, the delegation made by the LocaI(Health)

Authority to the Food Inspector to initiate prosecution was challenged.(217) In the instant

case, the Local (Health) Authority by a notification delegated his powers to institute

prosecution for offences under the Act under Section 20 to the Food Inspector, Faridkot.

While declaring the impugned order as ultra vires. Supreme Court held that Local

(Health) Authority has no power to further delegate his power for launching

prosecution. (218)

A perusal of Section 20 reveals that the following persons are competent to

institute prosecution under the Act:

(a) Central Government. (b) State Government. ( c) Any person with the written consent of Central or State Government. (d) A person on whom authority has been conferred either by the Central or State

Govermnent to file complaint.

But the proviso added to the section makes it abundantly clear that, in addition to the above category of persons, a person referred to in Section 12 can also institute a prosecution. Section 12 empowers any private person or recognised consumer association

to have the food analysed by a Public Analyst. While preferring the prosecution,

such person has to produce a copy of the Public Analyst's report along with the complaint

before the Court. The opening words of the section "no prosecution for an offence under

this Act ... " shows that the intention of the Legislature is to make the provision imperative

and mandatory. When the statute creates an offence and prescribed a procedure to be

---------------------------------------------------------------------------------------------------------

(217) (1986) 4SCC 326 (218) (218) See Ram Sarup v. State of Punjab 1989 Cr. L.J. 1995.

followed for booking the transgressors, it is not open to the authorities and Courts to

presume that non-compliance of the same will, nevertheless, be valid. Section 20 leaves

no room for doubt that a prosecution instituted by any person other than those stipulated

therein would be illegal ab initio. (219) In NX Kamath v. Mysore (120) the prosecution was

instituted by a sub inspector of Police without any order or direction from the prescribed

authorities. Such prosecutions were termed as bad in law. In Tilak Raj v. State of

Punjab(221) the prosecution was launched by the Food Inspector for selling adulterated

cows milk. But the Court was not inclined to accept the contention ofthe State that Food

Inspector, was competent to institute prosecution under the Act. By relaying on the

decision in A.K. Roy's case, the prosecution was quashed by the High Court.

Once a report stating that the food article in question is adulterated, is received

from the Public Analyst the competent authority has to use his mind for catching the real

culprit by launching the prosecution. The Amendment made in 1976 introduced and

authorised Local (Health) Authority as the competent person, in relation to a local area, to

be the in charge of health administration and proper person to institute prosecution. The

authority is expected to act with a balance of facts taking in view as to which case was fit

for prosecution. However, in actual practice, this Authority has become just a rubber

stamp endorsing the decisions of the local body(222)

In Mis Sham Sunder and Brothers v. State of H.P. (223) the appellants were

(219) see Magidv. Sate 1974 FAC 448. (220) 1972 FAC 419. (221) 1974 FAJ 71. (222) See.Prevention of Food Adulteration:EconomicTrends (1 September I 979)9 atl3 (223) 1994FAJ66.

prosecuted for dealing in adulterated coconut toffees. During the trial, appellants had

taken shelter under the sanctioning order for prosecution issued by the authority. On a

perusal of the sanction order, the Court found that the authority has not applied its mind

into the case. Many columns were filled by some one else and the sanctioning authority

had just put his signature only to institute prosecution. Sanction is an important function

and should be discharged seriously and cautiously. The Authority is expected to apply its

mind to the facts and circumstances of the case before it comes to the conclusion that it is

a fit case to prosecute the accused(224)

If the materials produced before the authority were such as to warrant its

satisfaction as to the advisability of launching the prosecution, the Court would presume

that authority concerned was duly satisfied, even if the authority has not articulated such

satisfaction in express words. Whereas in A.K. Roy's Case (22') the apex Court held that

the Authority must give the consent for prosecution in writing when it is satisfied that a

prima facie case exists from the facts of the case and should record his reasons for

launching the prosecution. But in Om Prakash v. Ranigang Municipality(126), the Calcutta

High Court has slightly modified the above opinion. Their Lordships observed:

"To read those observation (of AK. Roy's) as a judicial fiat to the effect that not only the authority must be proved to have been satisfied as to the existence of a prima facie case and advisability of prosecuting the offenders, but that the authority must also state formally in ritualistic marmer that it was so satisfied, would be giving undue weightage and precedence to mere formalities over substance.',(227)

----------------------------------------------------------------------------------------------------(224) See Ramaswar Prasad v. Statel995. Cr. L.J. 1525; also see A.K. Prathibari v.

StateojOrissa 1994 Cr. L.J. 163 (NOC) (225) Op. cit. note 217 Supra. (226) 1989 Cr. LJ. 1793.

In the instant case, Prosecution was launched for selling adulterated mustard oil. (227) Ibid at 1796; seeA.K. Dulta v. State o/W.B. 1989 eLLJ. 1797.

The sanction required by section 20 is not an empty formality. It must show that

the authority giving the sanction had applied his mind to the alleged commission of the

offence and satisfied that the accused has to be prosecuted for the said offence.

Necessarily it follows that the sanction must be for specific individuals and for specific

offences. (228) Therefore, institution of prosecution by person not specifically authorised in

this behalf will be against the provision of Section 20 and hence illegal. (229)

As pointed earlier, the grant of sanction to launch prosecution is not a mechanical

process. It is the first stage which sets the criminal Court in motion for the prosecution of

a person who unscrupulously deals in the evil of adulteration. F allure to discharge his

responsibility with care and caution will leads to undesirable results by wiping out the very

object of the Act. In such cases, even a person who deliberately indulge in the act of

adulteration has to be set at large. When the sanction for prosecution is given by a person

who is not authorised in this behalf or by a person in a ruthless manner, without applying

his mind, the entire proceedings will be vitiated and even a hardened criminal will go out

of the mesh of law. Therefore, to sustain the prosecution initiated by a public authority

for an offence undermining the health and wealth of the people, it is essential that the

conditions laid down by Section 20 of the Act must be complied in the true spirit. When a

power is given to do certain thing in certain way, that thing must be done in that way, and

other modes of performance are forbidden.

The Joint Parliamentary Committee on the PFA (Amendment) Bill, 1974 felt that

(228) City Corporation v. A. Reddiar 1960 KLT 515 (517); But see Oil andvanaspati Industries v. Food Inspector 1984 EFR 273 wherein it was held that to name the complainant in the sanction order is not necessary.

(229) See Delhi Municipality v. Jagadish A. 1970 SC 7.

the existing provision regarding prosecution of offences under the Act is cumbersome(230)

Though a large number of prosecutions were instituted, many of them not ended in

conviction on the ground that the samples taken were not adulterated or misbranded. The

Committee therefore recommended that if the Local (Health) Authority was of the opinion

that the report delivered by the Public Analyst is erroneous, the said authority shall

forward another part of the sample kept in its custody to any other Public Analyst. If the

report of the result of analysis by the other Public Analyst is to the effect that the article of

food is adulterated, the Authority hall institute prosecution against the person. (231) This

will minimise the waste of a lot of valuable time of the Court and public money and

unnecessary harassment to the vendors.

Delay in launching prosectuion

No time limit is laid down by the Act on the part of the Local (Health) Authority

for institution of prosecution after receiving the results of analysis from the Public Analyst.

The only mandate is that the Local (Health) Authority shall within a period of ten days

after the institution of prosecution, forward a copy of the report of the result of analysis to

Hereby enabling the authority to launch prosecution in appropriate cases. It also

safeguard the interests of the accused in exercising his tight under Section 13(2) of the Act

to get the sample analysed by the Central Food Laboratory.

In Govind Prasad v. State of MP. (234) the Food Inspector had taken the sample of

---------------------------------------------------------------------------------------------------------(230) (231) (232) (233) (234)

Report of the Joint Committee op. cit. note 215 at 9. [bidat 10. See Rule 9-A of the PFARules 1955. See Rule 7(3) of the PFA Rules 1955. 1996 Cr L 1. 1238.

•

240

milk on 9.6.1988. Public Analyst had sent the report of analysis of sample to the Local

(Health) Authority on 1871988. But the prosecution was launched only on 4.3.1989.

While dismissing the revision preferred by the petitioners, the High Court held that since

the petitioners never applied for analysis of sample by the Central Food Laboratory, they

cannot contend that sample might have deteriorated. Hence, no prejudice is caused to the

petitioners due to the delay in launching prosecution.(l3S) In D.M. Rao v. State of A.P. (236)

the prosecution was launched after four months from the date of receipt of report of

analysis from the Public Analyst. But the Court was not inclined to quash the prosecution

since the accused had failed to establish any prejudice due to delay in prosecution(237) But

in a case decided by the Kerala High Court, delay of two months in filling the charge was

described as fatal(238) In the instant case, sample of madakasan a prepared local food was

taken by the food inspector for analysis on 11.10.1969. Report of analysis from the Public

Analyst was received on 7.11.1969. But the complaint in that regard was filed before the

Court only on 13.1.1970. This prosecution was quashed by the trial Court and appellate

Court on the ground that Food Inspector had failed to add preservatives to the sample

thereby rendering the sample unfit for further analysis at the hands of Central Food

Laboratory. Unless the prejudice is established, the mere delay in launching the

prosecution will not vitiate the tria1(239) But in Nebh Raj v. State<24Q) the accused was

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(235) Ibid, see Municipal Corporation, Delhi v. Ghisaram A 1967 SC 970. (236) 1986 Cr LJ 495. (237) Ibid at 503; seeR. Gopa/ v. S.N Mitra, 1989 Cr 1.1. 1337. (238) Kerala v. P. T. Mathew 1973 KL T 495. (239) See F.l. v. Kodungal/or s.s. BankLtd. 1984 KLT 27 (31). (240) A 1981 SC 611.

",

prosecuted for selling dal haji adulterated with coal tar dye. The prosecution was

launched only after two years from the date of receipt of report of analysis from the

Public Analyst. The apex Court set aside the prosecution holding that there was no

justification of whatsoever nature, for delay in launching the prosecution. To launch a

prosecution at such a belated stage may cause harassment to the accused and in some

cases, it will help the genuine offenders to escape from punishment.

Position under English Law

The Food Act 1984 impose the power to enforce the Act by launching

prosecution upon the Minister, Secretary of the State and Local Authority. Section 96, of

the Food Act read with the Eight Schedule annexed to the Act contains the enabling

provisions to institute prosecution. The power to institute prosecution for offences

relating preparation and sale of injurious foods misbranding, sale of unfit food and

violation of any regulations

made by the Ministers vested in the Minister. Regarding the importation offood unfit fof

human consumption, the power to enforce prosecution is conferred on the Secretary of the

State. (241) A county council or local authority may also, with certain exceptions, institute

prosecutions. Food and Drugs authority or local authority may institute prosecution

proceedings under Section 96 on any regulations made thereunder only if they are the

authority charged with its execution and enforcement. A private purchaser of an article of

food can also institute proceedings against the offender.

-------------------------------------------------------------------.----------------------------(241) See. Section 960fthe Food Act, 1984 and Schedule 8 annexed to the Act