Delhi High Court
State (Delhi Admn.) vs Satinder Kumar on 14 November, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl . Appeal No. 102/94
% DATE OF DECISION : November 14th, 2008
State (Delhi Admn.) ..... Appellant.
Through: Mr. Manoj Johri, APP
with Mr. Pawan Bhatnagar,
Pairvi Officer of PF
Department.
Versus
Satinder Kumar ....Respondent
Through: Mr. U.K. Shandilya, Advocate
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest? Yes
JUDGMENT
MANMOHAN, J: (ORAL)
1. The present appeal has been filed by the State under Section 378
of Code of Criminal Procedure for setting aside the judgment
dated 1st November, 1993 passed by learned Metropolitan
Magistrate.
2. By virtue of the impugned order the learned MM has highlighted
the contradictions between the reports of the Public Analyst and
the Director, CFL to reach the conclusion that the sample
collected by the State was not a representative one. It is
pertinent to mention, that while the Public Analyst found
extraneous matter to the extent of 6%, the Director, CFL opined
that the total extraneous matter was only to the extent of 1.43%.
However, both the Public Analyst and the Director, CFL reached
a similar conclusion to the extent that the sample contained
impermissible colouring matter. In fact, the charge framed by
learned MM on 13th February, 1992 exclusively pertained to
artificial colouring matter. The charge framed reads as under:-
"Charge
DA vs. Satinder Kumar
I, M.L. Mehta, MM New Delhi charge you Satinder
Kumar S/O Washeshar Nath as under:-
That on 20.12.88 at about 4.00 pm Jit Ram FI
purchased a sample of Rai Whole from you as
vendor cum prop. of M/s Satinder Kiryana Store J-
10 Shardhanand Mkt. Delhi, for analysis as per
PFA Act and Rules. The so purchased sample on
analysis by the director CFL Mysore vide his
certificate dated 29.5.89 was found adulterated in
as much as it was not free from the presence of
added artificial colouring matter identified as pink
shade oil soluble colour; and you there by
contravened the provision of Sec, 2(ia) (a) (b) (j)
(m) punishable under Sec. 16 (1) (1A) read with
Sec. 7 of the PFA Act and rules; and with in my
cognizance.
I here by direct you to be tried by this court on the
above offences."
3. Mr. Manoj Ohri, learned Counsel for the Appellant submitted
that since both the Public Analyst and the CFL had confirmed
the presence of artificial colouring in the sample, it would show
that there was no contradiction in the findings of Public Analyst
and Director, CFL and further the trial court was not correct in
reaching the conclusion that the sample so collected was not of a
representative character.
4. Mr. U.K. Shandilya, learned Counsel for the Respondent, on the
other hand, submitted that neither the sample nor the seal had
been sent to the Public Analyst. In this context, he referred to
the testimony of Food Inspector PW-2. Mr. Shandilya further
submitted that Respondent/Accused would be entitled to
acquittal on the ground of benefit of doubt. In this context, he
referred to the evidence recorded by the trial court.
Mr. Shandilya further submitted that in view of pendency of the
present appeal in this Court for the last 14 years, this Court
should not interfere with the order of acquittal. In this context,
he relied upon the judgment of the Apex Court in State of
Maharashtra & Anr. Vs. Gopalprasad Govindprasad Agarwal
& Ors. reported in (1998) 9 SCC 274.
5. In rejoinder, Mr. Manoj Ohri denied the contention of learned
Counsel for Respondent that the sample and seals were not
intact, when sent for analysis. In this context, he referred to the
report of Director CFL.
6. I am of the opinion that in view of the charge having been
framed only with regard to the presence of colouring matter, the
learned MM's finding that the samples collected were not of
representative character cannot be sustained inasmuch as both
the Public Analyst and the CFL have reached a similar
conclusion with regard to the presence of artificial colouring
matter. However, as the trial court has not examined the
controversy on merits, the arguments raised by the learned
Counsel for the Respondent are left open to be decided by the
trial court. Consequently, the arguments on merits, specially the
one pertaining to non-sending of sample and seals to the Public
Analyst along with other arguments of the Respondent are left
open to be decided by the trial court.
7. As far as the pendency of the appeal in this Court for the last
fourteen years is concerned, I am of the view that no party can
be penalized for delay in deciding matters which were filed
within limitation. In fact, the State is not liable to be blamed for
the delay, which has entirely taken place due to heavy pendency
of dockets in this Court. In any event, as I have left all the
contentions and submissions of the Respondent on merits open, I
am of the view that no prejudice would be caused to the
Respondent in case the matter is remanded back to the trial court
with a direction to expeditiously decide the same preferably
within a period of six months from today. I may mention that
the present case, as already agreed between the parties on the
previous dates of hearing, would be heard on the basis of records
furnished by the Respondent.
8. The parties are directed to appear before learned CMM, Tis
Hazari Courts, Delhi on 10th December, 2008 for further
directions.
9. The Appeal is allowed in the above terms. Dasti.
[MANMOHAN]
th
November 14 , 2008 JUDGE
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