REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.625 of 2018 [Arising out of SLP (CRL.) No. 999 of 2015]

Delhi Administration           ….. Appellant (s)

Versus

Vidya Gupta       ….. Respondent (s)

J U D G M E N T  

S.A. BOBDE, J.

1. Leave granted.

2. The accused, a vendor of M/s New Bikaner Sweet Center was in

charge of  the day to day business of  the shop1.   On 08.04.2004 at

about 7.00 PM, Food Inspector Shri S.K. Sharma purchased a sample of

Ghee, a food article for analysis from the shop of the accused where

the said food article was stored for sale.  

The sample consisted of approximately 600 gms of Ghee taken

from an open tin bearing no label or declaration, after proper mixing 1   Located at M/s New Bikaner Sweet Center, Sl.No. A-9, Tilak Market, Ramesh Nagar,      New  Delhi- 110015.

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with the help of a clean and dry long spoon.  The sample was divided

into three equal parts and stored separately as per the requirements in

three separate clean and dry glass bottles under the supervision and

direction  of  Shri  B.M.  Jain,  SDM/LHA.  The  vendor's  signature  was

obtained on the LHA slip and the wrapper of the sample bottles and

the Panchnama was prepared on the spot.  

One counterpart of the sample2 was sent to the Public Analyst,

Delhi (hereinafter referred to as “PA”), and the other two counterparts

were deposited with the LHA. The PA opined that the sample exceeds

the maximum Butyro Refractometer (hereinafter referred to as “BR”)

reading  limit  of  43  and  has  a  Reichert  value  of  less   

than  28.  The  sample  also  tested  positive  for  Baudouin Test,  which

should be negative in case of Ghee.  And thus, does not conform to the

standard.

Upon  summoning,  the  accused  opted  to  get  the  second

counterpart3 of  the  sample  analyzed  by  the  Director,  Central   

Food  Laboratory  (hereinafter  referred  to  as  “the  Director”)  under

Section  13  (2)  of  the  Prevention  of  Food  Adulteration  Act,  1954

(hereinafter  referred  to  as  “the  Act”).  The  report4 opined  that  the

sample did not conform to the standards of Ghee as per the Act and

the charges were framed. The ACMM-II held the accused guilty of the

violation of the provisions of Section 2 (ia) (a) (c) & (m) of the Act, 2 Bearing LHA Code No. 93/LHA/7757 3 Bearing No. 93/LHA/7757 4 Certificate No.CFL/679/743/2004 dated 20.10.2004

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punishable under Section 16 (1) (a), read with Section 7 of the Act and

convicted him5. The Sessions Judge set aside the order of the ACMM-II,

vide order dated 15.04.2011 and acquitted the accused. Against the

order of acquittal, the prosecution applied for leave to appeal under

Section  378(1)  of  the  Code  of  Criminal  Procedure.  The  High  Court

declined  to  grant  relief6,  and  hence  the  present  appeal   

is before us.

3. There  are  two  reasons  why  the  High  Court  had  declined  to   

grant  leave  to  appeal  against  the  judgment  of  acquittal  of  the   

Sessions Court.

(1) First,  the  sample  of  Ghee that  was  taken was  itself  not

meant for sale but it was meant to be used merely as an

ingredient in the preparation of sweets which in turn were

meant for sale, and therefore no offence is made out under

the provisions of Section 2 (ia) (c) & (m) and Section 16 (1)

(a) read with Section 7 of the Act.

(2) Secondly, there was a discrepancy between the report of

PA and that of the Director with respect to the BR reading.

The PA had recorded the BR reading as 52.7, whereas the

Director  had  recorded  the  BR  reading  as  53.1.   This

variation was 0.76% i.e. more than 0.3%, and therefore the

sample cannot be considered as representative in nature 5 Vide order dated 15.04.2011 6 Vide order 20.12.2013 (CRL. M.A. 19502/2013)

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as held in  State (Delhi Administration) v. Ram Singh and

Another7.  

We have carefully considered the provisions of the Act and find

no merit in either reason.

Whether the Food was illegally stored

4. Section 7 of the Act prohibits storing of any adulterated food, it is

as follows:-

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

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence  is  prescribed,  except  in  accordance with the conditions of the licence;

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

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

[(vi) any adulterant.]  

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

7 (2009) 1 FAC 371 4

This  section  must  be  construed  according  to  the  rule  of

interpretation enunciated in Municipal Corporation of Delhi v. Kacheroo

Mal8, which also arose under this Act.  This Court enunciated the Rule

as follows:

“5.  The  Act  has  been  enacted  to  curb  and remedy  the  widespread  evil  of  food adulteration,  and  to  ensure  the  sale  of wholesome  food  to  the  people.   It  is  well- settled  that  wherever  possible,  without unreasonable  stretching  or  straining,  the language  of  such  a  statute  should  be construed in a manner which would suppress the mischief, advance the remedy, promote its object,  prevent  its  subtle evasion and foil  its artful circumvention…….”

5. This  case  turns  on  the  above  explanation  to  the  section.

According  to  the  accused,  since  the  Ghee  which  was  found  to  be

adulterated was not itself meant for sale, but was meant to be used as

an ingredient in the sweets that were in turn meant for sale, no offence

is made out.  The contention in other words is that it was legal to store

adulterated Ghee, if the Ghee itself was not meant for sale.  

6. The explanation to the section does not support this contention.

It clearly lays down that if a person stores any adulterated food for the

purpose of manufacturing from it any article of food for sale, he shall

be deemed to store adulterated food.  The purpose of this provision is

clear, it prohibits the storing of adulterated food notwithstanding the

8 (1976) 1 SCC 412 5

fact that such adulterated food is itself not offered for sale, but is used

in making some food which is offered for sale.  It is clearly to prevent

the adulteration of food and its sale to the public even when it is meant

to be used for  preparing some other food which is offered for sale.

Thus, either way, whether the adulterated food is stored for sale, or if

such food is stored for making some other food which is sold, such

storing is an offence.  Parliament has rightly assumed that no one, who

offers food for sale, would store food which is not meant to be used in

some food meant for sale.   

7. The learned counsel for the accused relied on the judgement of

this court in Municipal Corporation of Delhi v. Laxmi Narain Tandon9.  In

that case, this Court upheld the decision of a full bench of the Delhi

High Court which held that the expression “store” in Section 7 means

“storing  for  sale”  and  consequently   the  storing  of  an  adulterated

article of food not meant for sale would not constitute an offence under

Section 16 1(a).  According to the learned counsel, therefore, the High

Court was right in maintaining the acquittal of the respondent since the

Ghee was found to have been stored not for sale, but for a purpose

other than that of sale i.e. for the purpose of preparation of sweets.

Though  valid  when  rendered,  the  decision  relied  on  can  no  longer

govern  the  point  decided.  When  this  Court  decided  Tandon’s case

(supra), the section did not explicitly prohibit the storing of adulterated

food which was not  meant for  sale.  This  Court,  therefore,  held that 9 (1976) 1 SCC 546

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storing of adulterated food which was not meant for sale was not an

offence.  Tandon’s case  (supra)  was  decided  on  17.12.1975;  the

amendment which introduced the deeming fiction that a person shall

be deemed to store any adulterated food, even if he stores such food

for manufacturing from it any article for sale was introduced by Act 34

of  1976 w.e.f.  01.04.1976.   Tandon’s case  (supra)  therefore  has  no

application to the present case.

          In the present case, the sample of Ghee that was taken was

from the Ghee that was stored for the purpose of making jalebis.  On

the accused’s own admission, the offence is clearly made out under

Section 7 of the Act.

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The  above  scheme,  particularly  sub-Section  3  which  provides

that the certificate of the Director shall supersede the report of the PA

and the proviso which makes such a certificate final and conclusive

evidence, puts it beyond any shadow of doubt that the report of the PA

loses any significance in the proceedings as a piece of evidence.   

10. Therefore,  there  is  no  reason  for  the  Court  to  refer  to  the

contents of the report of the PA.  Where there is no reason to refer to

its contents of the report of the PA, there is even less reason to refer to

the variation between the report of the PA and the Director.  The Court

is enjoined by law to consider the contents of  the certificate of  the

Director only.

11.  Moreover,  this  view  is  no  more  res  integra in  view  of  the

judgment  of  this  Court  in  Calcutta  Municipal  Corporation  v.  Pawan

Kumar Saraf and another11.  This Court held as follows:-

“Per majority (Thomas and Quadri, JJ.)

When Section 13(3) says that the certificate of Director,  CFL  shall  supersede  the  report,  it means that the report would stand annulled or obliterated.   The  word  “supersede”  in  law means  “obliterate,  set  aside,  annul,  replace, make void or inefficacious or useless, repeal”. Once  the  certificate  of  the  Director  of  the Central Food Laboratory reaches the court, the report  of  the Public  Analyst  stands  displaced and what may remain is only a fossil of it.  In the above context  the proviso to sub-section (5) of Section 13 can also be looked at which deals  with  the  evidentiary  value  of  such certificate.  If a fact is declared by a statute as

11 (1999) 2 SCC 400 11

final  and  conclusive,  its  impact  is  crucial because no party can then give evidence for the purpose of disproving that fact.  This is the import of Section 4 of the Evidence Act.  Thus the legal impact of a certificate of the Director of the Central Food Laboratory is threefold.  It annuls  or  replaces  the  report  of  the  Public Analyst,  it  gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned.”

12. The finding of the High Court that the variation between the two

reports was 0.76% and therefore more than 0.3% as permitted in Ram

Singh’s case (supra) is completely unsustainable and liable to be set

aside.   The  reliance  placed  by  the  High  Court  on  the  decisions  in

Kanshi Nath v. State12 and State v. Mahender Kumar & Ors.13, which

hold that if in the comparison of the reports of the PA and the Director

vast variations are found, then the samples are not representative, is

improper.  Those decisions do not lay down good law.

It is thus clear that the accused was not entitled to the acquittal

and the acquittal is liable to be set aside.  We, therefore, set aside   

the  acquittal  of  the  respondent  and  convict  him  for  the  offence   

under Section 2 (ia) (a) (c) & (m) of the Act, punishable under Section

16 (1) (a), read with Section 7 of the Act.  

However,  the  proceedings  commenced  in  the  year  2004,  the

business has closed down since and the accused is now about 70 years

12 2005 (2) FAC 219 – Delhi High Court 13 2008 (1) FAC 177

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old.  In  these  circumstances,  we  direct  that  the  sentence  shall  be

confined to the period already undergone.

13. Appeal is allowed accordingly.

….………………………………..J. [S.A. BOBDE]

….………………………………..J.  [L. NAGESWARA RAO]

NEW DELHI  APRIL 24, 2018

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