#14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 21, 2016
+ CRL.L.P. 319/2015
FOOD INSPECTOR ..... Petitioner
Versus
SANT LAL & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Radhika Kolluru, APP
For the Respondent : None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J. (ORAL)
1. The present is a petition for grant of leave to appeal against the impugned order dated 16.01.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No. 114/98 whereby the respondents have been acquitted of the charges levelled against them under sections 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'PFA Act').
Crl. LP 319/2015 Page 1 of 6
2. The facts herein briefly are, the Food Inspector Shri Jeet Ram purchased a sample of 'Mustard Oil' from the respondent No. 1, Sant Lal s/o Sh. Devi Sahai at M/s Aggarwal Store, Shop No. 20-C/4, Village Dhaka, Delhi on 24.08.1998 at about 03.30 p.m. Thereafter, the Food Inspector divided the sample into three equal parts; each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The respondent No. 1's signatures were also obtained on the LHA slip and the wrapper of the sample bottles. One counterpart of the sample was sent to the Public Analyst (hereinafter referred to as 'PA') in intact condition and two counter parts were deposited with the LHA. Upon analysis it was found by the PA that the sample did not conform to standards laid down under item No. A.17.06 of Appendix B of PFA Rules, 1955 because the sample showed the presence of Argemone oil. On 11.09.1998, the respondent No. 1 moved an application u/s 13(2) PFA Act, and a second counterpart of the sample was examined by the Director, CFL, Calcutta. As per the report of the Director, CFL, the sample of Mustard oil was adulterated, and the BTT value (29 Deg. C) was found to be beyond the prescribed limit (against maximum 27.5 Deg. C). However, the report of the Director, CFL found no Argemone oil in the sample.
3. The respondents were charged under Section 2(ia)(a)(m) punishable under Section 16(1) read with Section 7 of the PFA Act and Rules, to which they pleaded not guilty.
Crl. LP 319/2015 Page 2 of 6
4. The contention on behalf of the respondents, before the Trial Court was whether the sample taken was representative or not. It was pointed out on behalf of the respondents that there was vast variation between the report of PA and the Director, CFL which establishes that the sample was not representative. It was further contended that the Public Analyst opined that the sample did not conform to the standards as it showed presence of Argemone oil but no Argemone oil was found by the Director, CFL in the counterpart of the same sample.
5. On the other hand, it was argued on behalf of the appellant that case is well proved and the respondents were liable to be convicted. It was further urged on behalf of the appellant that the respondents challenged the report of the Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL and therefore, the report of the Public Analyst cannot be relied upon.
6. The Trial Court relied upon the decision of this court in Kanshi Nath vs. State, 2005 (2) FAC 219, Delhi High Court, wherein it was held as follows:-
"............. To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the Crl. LP 319/2015 Page 3 of 6 contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more thanY.3%. Therefore, on the facts of the present case, it can be said that 7 the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained."
7. Placing reliance upon the aforesaid decision of this court in Kanshi Nath (supra), the Trial Court came to the conclusion that the prosecution had failed to establish that the sample was representative. It was observed by the Trial Court in this behalf as follows:-
"15. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to ascertain whether the sample was representative or not. In the present case as per report of the Public Analyst dated 31.08.98 wherein the opinion given by the Public Analyst, Delhi was that the sample does n ot conform to the standards and the result of the Public Analyst was as follows:
B. R at 40 Deg. C.: 60.0
Iodine Value: 110.97
Saponification Value: 170.14
Acid Value: 1.19
Test for Argemone Oil: Positive
BTT (Acetic Acid Method): 26.9 Deg. C.
Crl. LP 319/2015 Page 4 of 6
16. The second Counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 6.11.98, the result of analysis of second counterpart of the sample commodity is as under:
Butyrorefractometer Reading at 40 Deg. C.- 59.6 Saponification Value- 175.5 Iodine Value- 105.6 Acid Value- 1.93 Test for Argemone Oil by TLC: Negative BTT (Acetic Acid Method): 29 Deg. C.
17. The two analytic reports of the Public Analyst and the Director, CFL in respect of the counterpart of the same sample commodity are divergent to a great extent. One counterpart of the sample commodity shows BTT value in the prescribed limit, while another counterpart of the same sample commodity shows BTT value above the prescribed limit. Further, Public Analyst finds the test for Argemone Oil "Positive" and due to only this reason declared the sample non- confirming to the standard of Mustard Oil, while Director, CFL finds the test for Argemone Oil "Negative" in the counterpart of the same sample commodity. Complainant has failed to explain how the two analytic reports in respect of the same counterpart of the sample commodity are divergent to such an extent. Thereby, relying upon Kanshi Nath vs. State (Supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two analysts."
8. In view of the decision of this court in Kanshi Nath (supra) the arguments made on behalf of the State by the learned APP that the trial court should have only considered the CFL report and not the PA report holds no ground as the perusal of the trial court judgment delineates substantial variance between the report of the PA and the Director CFL in terms of the presence of Crl. LP 319/2015 Page 5 of 6 argemone oil and the BTT value. The State has not satisfactorily explained the said variance.
9. Consequently, the Trial Court came to the conclusion that the petitioner herein has failed to prove that the sample was homogenized and representative and resultantly acquitted the respondent.
10. I see no reason to differ with the conclusion arrived at by the Trial Court passed based on the discussion extracted hereinabove. Consequently, the present petition seeking leave to appeal is without merit and the same is dismissed.
SIDDHARTH MRIDUL, J MARCH 21, 2016 dn Crl. LP 319/2015 Page 6 of 6