State vs Anil Batra And Ors.
2008 Latest Caselaw 633 Del

JUDGMENT

P.K. Bhasin, J.

1. This appeal has been filed by the State against the judgment dated 24.07.1995 passed by the learned Metropolitan Magistrate, New Delhi in Case No. 437/1989 whereby the respondents were acquitted of the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act(for short 'the Act').

2. The relevant facts leading to the prosecution of the respondents herein as have been noticed by the learned trial Court in para No. 1 of the impugned judgment are as under:

(1) ...On 31st July, 1989, a team of Food Inspectors comprising F.I. R.K. Ahuja, Rajesh Kumar, under the supervision of Dr. P.K. Jaiswal, LHA visited the premises of M/s Regency Mid town, B-29, Connaught Place, New Delhi where accused No. 1 Anil Batra was found conducting the business of the said hotel and food article including Paneer was found stored in the freezer in the polythene bag having no label declaration. It has been further alleged that about 3.30 p.m. accused Anil Batra sold a sample of 750 grams of paneer to F.I. R.K. Ahuja for analysis and payment of Rs.30/- was offered to the vendor as price of the sample but was refused to be accepted. It has been further alleged that the sample was taken as per the PFA Act and Rules, and FI divided the aforesaid sample then and there into three parts, and each part was placed in separate clean and dry bottles, and 20 drops of formaline were added in each bottle and each bottle was separately packed, fastened, marked and sealed as per the PFA Act and rules. Notice inform VI was given to the accused. Punchnama was also prepared at the spot. It has been further alleged that all the documents were prepared and signed all at the spot by the FI R. K. Ahuja, as well as accused Anil Batra and by attesting witness Rajesh kr. F.I. as before starting the sample proceedings efforts were made by the concerned F.I. to join the public witnesses but none agreed, and thereupon another F.I. Rajesh Kumar was joined as a witness to the sample proceedings. It has been further alleged that one counter part of the sample in intact condition was sent to the P.A. Delhi for analysis, who analysed the sample of paneer and same was found adulterated vide report bearing No. PFA/Enf/(89)/L-128/940 dt. 4.8.1989, on the ground that the sample does not conform to the standard because mild fat on dry weight basis was found 48.05% which is less then prescribed minimum limit of 50.0% During investigation, accused No. 1 was found as vendor-cum-Manager of Regency Mid town and that M/s Regency Mid town is run by accused No. 2 i.e. M/s Supriya Food P. Ltd. and that accused No. 3 and 4 were the Director and were persons in charge of and responsible for day to day business of the said firm, and had no license to deal in the food article. It is pertinent to mention here that accused No. 4 died and proceedings against accused No. 4 stands abated. Thereafter, the consent as provided u/s 20 of the PFA Act for prosecution of accused persons was granted by Sh. P. N. Gupta, the then Director, PFA Delhi Admn. Delhi for violating the provisions of Section 2(ia)(a)(m) Rule 50 (1) punishable under Section 16(1) read with Section 7 of the PFA Act.

3. After institution of the complaint accused exercised the right before the Trial Court, as provided u/s 13(2) of the Act and then the second counter part of the sample of paneer was sent to the Director, CFL, Mysore, for analysis who vide his certificate No. 459/PFA/89 dated 1.12.89 opined that the sample bottles had leaked out, thereby rendering the sample unfit for carrying out the test/analysis. Thereafter the third counter part of the sample of paneer was sent to the Director, CFL, for analysis who vide his certificate bearing No. 459-A/PFA/89 dated 9.2.1990 opined that sample did not conform to the prescribed standard.

4. To prove the accusation levelled against the respondents the prosecution had examined five witnesses in all. In his statement under Section 313 Cr.P.C. the respondent had denied the prosecution allegations.

5. After considering the evidence adduced by the prosecution and taking into consideration other relevant circumstances, the learned trial Court acquitted the respondents herein and observed in para Nos. 11 and 12 of the impugned judgment as under:

11. It is admitted case of the prosecution that the sample was not kept in refrigerator, but was kept at room temperature. The sample was allegedly taken from the accused No. 1 on 31.7.89. Consent as provided under Section 20 of the PFA Act by Sh.P.N.Gupta, the then Director, PFA Delhi Admn., Delhi Ex.PW1/C was granted on 11th October, 1989 and the present case was filed in the court on 25th October, 1989 and from the 2nd counter part of the sample, the liquid portion had leaked leaving behind a solid mass thereby rendering the sample unfit for carrying out test/analysis; and thereupon the 3rd counter part of the sample was analysed by the Director, CFL Mysore vide his certificate dated 9th February, 1990 meaning thereby the Director, CFL Mysore could analyze the sample after the expiry of period of more than six months. When the 2nd counter part of the sample was produced in the court, it was not found leaking. It may be that the leakage started during transit of the sample to the CFL Mysore for which the accused cannot be blamed and the accused is entitled to benefit of the delay.

12. In the present case, there has been a marginal deficiency as already discussed above in the milk fat contents on dry matter basis which can be attributed to delay in analyzing the 3rd counter part of the same, as the Director CFL Mysore could analyze the sample only after expiry of more than six months of the taking of the sample. For the foregoing discussion the prosecution case is not free from doubt. Accordingly, the accused are given the benefit of doubt and they are accordingly acquitted of the charge

6. Feeling aggrieved the State sought leave to appeal which was granted. I have heard Mr. M.N.Dudeja, APP for the State, None had appeared for the respondents. I have also gone through evidence adduced during the trial by the prosecution.

7. Hon'ble Supreme Court has laid down the guidelines which an appellate court should keep in mind while dealing with the judgment of acquittal and I may notice those guidelines at the outset. In 'State of Punjab v. Ajaib Singh and Ors. 2005 SCC (Cri) 43, while dealing with a case of acquittal it was observed as under in para No. 10 of the judgment:

10. It is well settled that in an appeal against acquittal, the appellate court is entitled to reappreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed.

8. In an earlier judgment reported as 1980 CAR 359 (SC), 'Sirajuddin alias Siraj v. State of Karnataka' also Hon'ble Supreme Court had observed while dealing with the scope of an appeal against a judgment of acquittal as under:

It is well settled that if the view of the evidence taken by the trial Court is reasonably possible, the High Court should not, as a rule of prudence, disturb the acquittal.

9. I would now examine if the findings of the learned trial judge can be said to be perverse, as is being claimed on behalf of the State in this appeal. The findings in the impugned judgment of the learned trial Court whereby the accused were acquitted have already been reproduced above. Learned Trial Court has relied upon one judgment of the Hon'ble Supreme Court in 'Municipal Corporation of Delhi v. Ghisa Ram' 1975 PFA cases 186. In that case the complaint was filed in Court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under Section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Mr. Dudeja, learned APP had submitted that this judgment was not applicable to the facts of the present case since in that case the Director of Central Food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superceded the report of the Public Analyst and so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13(2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the third counter part of the sample which was sent for analysis, as per the CFL report, did not conform to the prescribed standard. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more than six months from the date when it was taken from the shop of the respondent No. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the samples to sending it to CFL. PW-5 FI, Rajesh Kumar in his cross-examination has categorically stated that their department had no refrigerator in the office and the sample bottles were kept by them at ordinary room temperature in steel Almirah. In these circumstances, if the learned Trial Court has come to the conclusion that the accused's right under Section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable.

10. This appeal, thus, being devoid of any merit is dismissed.