Concept of Reports of Public Analyst (PA) and Central Food Laboratory (CFL) and Variations therein

The scheme of the Prevention of Food Adulteration Act, 1954 (PFA Act) would show that Central Food Laboratory (CFL) has been, in a way, given the status of an appellate expert over the findings of Public Analyst (PA). What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL.

A careful study of the precedents would show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA.

The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter of assumptions or presumptions.

There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be “substantial enough” to be considered in favour of the accused.

The Actor Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross-examination of complainant’s witnesses and/or examination of defence witnesses (subject to cross-examination of course).

If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be “substantial enough”, then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.

If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.

No benefit can be granted to an accused merely because there are some difference in two reports. If an accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit.

For instance, if PA fails to detect any poisonous matter in a sample, and CFL detects such poison, then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. Similarly, if PA detects one type of poison and CFL detects the same poison and also an additional poison, then also the accused cannot be given benefit on the ground that the reports were at variance.

Again, if both the PA and CFL find same type of poison in the samples, the said result cannot be discarded on the ground that there was difference in the moisture or ash content of the samples. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative.

If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative.

The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that there is some variation in reports.

Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation in any ingredient would nullify the report of CFL.

No limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.

Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity.

The accused cannot simply rely upon any other case for that matter and say that since there are variations, the sample in his case would deemed to be not representative. The accused cannot now rely on the testimony of that expert as examined in that case without leading any further evidence whatsoever in his case. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report. This would rather give precedence to the report of PA and not CFL.

Where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise.


# Case Laws on Public Analyst & Central Food Laboratory

# 1. Calcutta Municipal Corporation v. Pawan Kumar Saraf, AIR 1999 SC 738

The legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

# 2. Subhash Chander v. State, Delhi Administration, 1983 (4) DRJ 100

It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.

# 3. MCD v. Bishan Sarup, ILR 1970 (1) Delhi 518

In the landmark judgement, the full bench of Hon’ble High Court of Delhi observed that “According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13”.

In this case, the Hon’ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon’ble Court reversed the acquitted into conviction and observed as under:

(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason.

(b) “Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.”

(c) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

The law laid down in Bishan Sarup’s case still holds good. The Hon’ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.

# 4. Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970

The right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a “greater expert whose certificate is to be accepted by court as conclusive evidence”.

# 5. Municipal Corporation of Delhi v. Zahiruddin, ILR (1972) 1 Del 630

Evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.

# 6. Kanshi Nath v. State, 2005 (2) FAC 219

Whether the PA report can be looked into for any purpose, where such PA report as superseded by the CFL report, particularly for finding the guilt or innocence of the accused on the basis of variations therein. The Hon’ble Supreme Court of India has dismissed the appeal to Kanshi Nath’s judgement, but at the same time, expressly ordered the question of law to be kept open.

The Hon’ble High Court of Delhi, was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in Bishan Sarup‘s case and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.

In this case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon’ble Court ruled in favour of the accused and acquitted him.

In this case, the accused was able to adduce evidence to the effect that ‘in ideal conditions’, the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon’ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not.

It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative.

# 7. Food Inspector, Corporation of Cochin v. T.V. Habeeb, 1984 (1) FAC 41

It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act.

# 8. Prahlad Bhai Amba Lal Patel v. State of Gujarat, 1984 (2) FAC 26

Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.

# 9. Andhra Pradesh Grain & Seeds Merchant Association v. Union of India, AIR 1971 SC 246

Discussed the issue of ‘variation’.

# 10. Chetumal v. State of M.P., AIR 1981 SC 1387

Discussed the issue of ‘variation’.

# 11. Salim and Co. v. Municipal Corporation of Delhi, 1978 Cri LJ 240

It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director.

# 12. Municipal Corporation of Delhi v. Zahiruddin, ILR (1972) 1 Del 630

It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded.”

# 13. Municipal Corporation of Delhi v. Manohar Lal, 1975 (1) FAC 182

Similar was the observation.

# 14. Mithilesh v. State of NCT of Delhi, (2014) 13 SCC 423

The Hon’ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content in the reports of PA and the Director CFL.

# 15. Richpal v. State (Delhi Administration), 1988 (2) DLT 422

The contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect.

# 16. Shriram Labhaya v. MCD, 1948-1997 FAC (SC) 483

Testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies.

# Case Laws on variations between the PA report and CFL report

  1. Food Inspector v. Parvinder Malik, 2014 (2) FAC 306
  2. State v. Vidya Gupta, 2014 (1) FAC 291
  3. State v. Dinesh Goswami, 2014 (1) FAC 302
  4. State v. Mahabir, 2014 (1) FAC 286
  5. State v. Santosh Sharma, 2014 (1) FAC 296
  6. Food Inspector v. Naresh Kumar, 2014 (2) FAC 276
  7. State v. Kamal Dev Vashisht, 2012 (2) FAC 353
  8. Food Inspector v. Amar Chand, 2016 (1) FAC 190
  9. State v. Virender Kohli, 2014 (2) FAC 223
  10. State v. Kamal Aggarwal, 2014 (2) FAC 183
  11. Food Inspector v. Kailash Chand, 2014 (2) FAC 143
  12. Raja Ram Seth & Sons v. Delhi Administration, 2012 (2) FAC 523
  13. State v. Rama Rattan Malhotra, 2012 (2) FAC 398
  14. State v. Mahender Kumar, 2008 (1) FAC 170
  15. State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642
  16. State v. Sunil Dutt, 2011 (4) JCC 2377
  17. State v. Ramesh Chand, 2010 (2) JCC 1250
  18. State v. Vinod Kumar Gupta, 2010 (2) JCC 957
  19. Mohd. Hussain v. State (Delhi), 1989 (1) FAC 206
  20. Maya Ram v. State of Punjab, 1987 (II) PFA Cases 320
  21. Daulat Ram v. State of Punjab, 1979 (II) PFA Cases 202
  22. Pepsico India Holdings Pvt. Ltd. v. Food Inspector, 2010 (2) PFA Cases 310
  23. Prem Ballab v. State (Delhi Administration) (1977) 1 SCC 173
  24. Rupak Kumar v. State of Bihar, 2014 (1) FAC 198
  25. MCD v. Laxmi Narain Tandon, 1975 (II) FAC 441
  26. State of MP v. Ganesh Prasad, 2000 (I) FAC 268
  27. Md. Nabijan v. State, 2000(1) FAC 29
  28. M.N. Choudhary v. State of Bihar, 2007 (1) FAC 106
  29. C. S. Ram Mohan v. State of A.P., 2007 (1) FAC 90
  30. K. P. Tensing v. D. Jayachandran, 2011 (1) FAC 328
  31. State of Punjab v. Hotel Royal Palace, 2011 (2) FAC 265

The above legal points are extracted from a recent decision of Delhi District Court. You can see the full text of this judgment by clicking here.