Delhi High Court
State vs Dwarka Dass on 2 April, 2007
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. This appeal has been preferred against the order of learned Metropolitan Magistrate dated 4.8.1989 whereby he acquitted the respondent of the offence under Sections 7/16 of the PFA Act.
2. Briefly, the facts of the case are that a sample of kali mirchi (black pepper) was taken from the respondent's shop and was sent for analysis. The sample did not conform to the standard as mentioned in the PFA since the sample was found to contain mineral oil. The Trial Court analysed the evidence and observed as under:
9. It is admitted position of law that the P.A.'s report stands superseded by the Director CFL. The Director CFL has also reported that the sample is not free from the presence of mineral oil. However, the Director has not distinguished whether the mineral oil found was of food grade or non food grade. The nature of the mineral oil is also not given in his report. The P.A. who is examined as PW4 has admitted that there are two types of mineral oil; namely food grade or non food grade. The Director CFL has not carried out any test whether the mineral oil present in this case was of food grade or non food grade. The provision of the PFA Act and rules also shows that a food grade mineral oil is used as lubricant in some of the confectioneries. The PFA Act and rules also does not prohibit absolutely that the black pepper whole shall be free from the presence of mineral oil. The Director CFL has also not carried out the test to find out the quality or quantity of the mineral oil present in the sampled commodity. The percentage or proportion of weight of the mineral oil found is also not given in his report by the Director. Therefore, it is admitted position under the PFA Act and rules that the mineral oil is used in some of the confectioneries under the Prevention of Food Adulteration Act and it is not specifically prohibited to be used in black pepper whole. In view of this position of law and facts, the learned Counsel has cited 1984 F.A.J. case between khushi Ram and state and others. In this judgment Justice Jagdish Chandra has observed as under:
It is a matter worthy of note in the Director's report that what is pointed out in regard to the mineral oil is that the test for mineral oil were positive in the sample meaning thereby that mineral oil was present in the sample. But the report of the Director no where shows the quantity weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi". So it is the addition of a substance to Bari Elaichi but notwithstanding that on account of the aforesaid omission regarding quality, weight and proportion of mineral oil in the sample it is possible that the presence thereof in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2(ia)(a) nor is there any evidence whatsoever on the records of the case to show that its presence on the sample could affect injuriously the nature substance or quality of the sample of 'Bari Elaichi' as contemplated in Section 2(ia)(b). The Director B.R. Roy had been called by the learned trial Court as Pws for cross examination by the accused wherein he conceded that he had no categorised the type of mineral oil presence of which was noticed in the sample. He further stated in the elaichi whole seed is the only edible portion and on going through his report EX.CX, he could not categorically say that the seeds were unfit for human consumption. From this cross examination of the Director the question of prejudice or injurious affect of the presence of the mineral oil in the samples stands disproved. The learned Magistrate has also exonerated the petitioner on this count.
10. I have carefully considered the arguments advanced by the counsel for the accused and the Senior P.P. In the above referred judgment it was case of Bari Elaichi and the Director had not shown the quantity, weight or proportion by way of percentage of the mineral oil found in the sample be of Badi Elaicfhi. Therefore, Hon. Justice Jagdish Chandra come to the conclusion that the presence of mineral oil may be just negligible so as to cause no prejudice to the purchaser. No offence was found to be made out against the accused. Applying the same principle in this case, it is apparently clear that the accused cannot be held guilty for the presence of mineral oil in the black pepper whole.
3. The appeal has been filed on the ground that trial Court did not consider the fact that Public Analyst had categorically opined that the article was injurious to health whereas the Director CFSL had not examined the article in question whether it was of food grade or non food grade.
4. The report of Public Analyst stands superseded by the report of Director, CFL. Prosecution cannot fall upon the report of Public Analyst to fill up lacunae or ambiguity in the report of CFL. Since on the basis of report of CFL, which is silent about the mineral oil being food grade or non food grade, the accused has been given benefit of doubt, it would not be appropriate for this Court to take other view.
5. In Sachchey Lal Tiwari v. State of Uttar Pradesh , Supreme Court observed that when an appeal is filed against an order of acquittal, the appellant Court should keep in mind:
(i).Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.
(ii). If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
(iii). A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
(iv). Where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
(v). Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so.
6. In the above case, views taken by the trial Court was based on the report of the Director, CFL. It is not a case where trial Court acted contrary to the law. There was no miscarriage of justice. It is settled law that Appellate Court should not reverse the decision of the trial Court merely because a different view is possible. I find no reason to interfere with the order passed by the trial Court. Appeal is hereby dismissed.
