Delhi High Court

State vs Hardawari Lal on 13 February, 2009

Author: Aruna Suresh

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. L.(P). 8/2004


                          Pronounced on : February 13, 2009

#     STATE                         ..... PETITIONER
!                    Through : Mr. O.P. Saxena, APP.

                              Versus

$     HARDAWARI LAL                 .......RESPONDENT
^                    Through : Mr. Rajesh Mahajan, Advocate.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?              Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes


ARUNA SURESH, J.

Crl. M.A. No.242/2004 (u/s. 5 of the Limitation Act)

1. Petitioner has sought condonation of delay in filing

and refilling the present appeal alleging that the

respondent was acquitted vide order dated

2.8.2000 by the learned Metropolitan Magistrate;

the Senior P.P. (PFA) prepared the grounds of

acquittal on 13.9.2000 and forwarded the file to

Deputy Legal Advisor (PFA) who opined it a fit

case for filing the appeal and forwarded the file to

the Director (PFA) on 1.2.2001; Director (PFA)

forwarded the file to the Secretary (Law and

Judicial) for advise through Secretary (Health) on

28.3.2001; Secretary granted permission to file the

appeal on 3.5.2001; file was received back by the

Standing counsel (Criminal) office on 28.6.2001;

the appeal was filed on 31.8.2001; after filing of

the appeal certain objections were raised by the

Registry of this court; the file was misplaced and

it could be traced out only in the last week of June,

2003; the objections were removed and the appeal

was filed. There is a delay of 206 days in filing and

1 year 10 months and 72 days in refilling the

appeal, which was neither intentional nor

deliberate.

2. Mr. Rajesh Mahajan, learned counsel for the

respondent has contested this petition contending,

inter alia, that the actual delay in initial filing of

the appeal is over 294 days and that delay in

refilling is 658 days and not 206 days and 1 year

10 months 72 days respectively as alleged and

therefore, since no condonation is sought for the

balance period, delay cannot be automatically

condoned for the unasked period and therefore,

even if the present application seeking

condonation of delay is allowed, the appeal shall

remain barred by period of limitation and that a

valuable right has arisen in favour of the

respondent, cannot be allowed to be taken away by

the petitioner in the manner prayed and that the

petition is liable to the dismissed.

3. Mr. O.P. Saxena, learned APP for the State has

submitted that because of procedural delays on

behalf of the department, the appeal could not be

filed in time and the technicalities of law should

not prevent the court from doing substantial

justice and undoing illegalities perpetuated in the

process. In appeals filed by the State, because of

various formalities to be completed, the delay in

preparing and filing the appeal is unavoidable and,

therefore, the court should adopt liberal approach

in considering this application and condone the

delay in filing and refilling of the appeal. He has

referred to:-

(i) State of Haryana vs. Chandra Mani & Ors., 1996 (3) SCC 132;

(ii) Special Tehsildar, Land Acquisition vs. K.V. Ayisumma‟, 1996 (10) SCC 634;

(iii) AIR 1987 SC 1353 (name of the case not given);

(iv) N. Bala Krishnan vs. M.

Krishnamurthy, 1998 (7) SCC 123; and

(v) State vs. Rajbir Singh & Ors., 2002 (2) JCC 972.

4. Mr. Rajesh Mahajan, learned counsel for the

respondent has argued that since the petitioner

has not sought condonation of delay for the

remaining period, even if, the application is

allowed, the appeal would remain barred by period

of limitation. He has referred to :-

(i) State vs. Dharamapal 2003 SCC (Crl.)

1012;

(ii) Calcutta Municipal Corporation vs.

Pawan K. Saraf, 1999 (1) FAC 1.

5. Present criminal appeal has been filed by the State

Govt. of NCT of Delhi. Generally where appeal is

filed by the State and there is delay in filing the

appeal, the court has to consider the delay in a

justice oriented manner rather than the technical

detection of sufficient cause for explaining every

day‟s delay. Considering the time generally taken

by the procedural red tape in the decision making

process the government, the court should permit

some amount of latitude. The court has to keep in

mind that State is an impersonal machinery

working through its officers and therefore State

cannot be put at the same procedural stringency

as individual. If State appeals are dismissed

considering the sufficient cause in a technical

manner, the public interest would suffer. The

proper approach of the court in such like

circumstances is to decide the matter on merits

unless it is of the view that the case is hopelessly

without any merit.

6. In this case, 90 days period for filing the appeal

under Section 378 Code of Criminal Procedure

(Cr.P.C.) expired on 9.11.2000 after excluding the

time which was taken by the State for obtaining

the certified copy of the order. The appeal was

filed on 31.8.2001. On calculation the total delay

was of 294 days in filing the appeal and not 206

days as alleged. Calculation for the period of total

delay in refilling also seem to be incorrect. Since

there was mistake in the calculation of period for

delay, in the application petitioner sought

condonation of delay for period of 206 days only in

initial filing of the appeal and 1 year 10 months 72

days in refilling the appeal. This mistake in

calculation seems to be bonafide. While calculating

the delay in filing the appeal, the period of

limitation for filing the appeal instead being taken

as „90 days‟ was taken as „180 days‟. This resulted

into a fallacy in the calculation of the period of

delay in filing the appeal. Under these

circumstances, the court should not adopt a view

to hold that since petitioner has not sought

condonation of delay for the period of 88 days the

application deserved rejection, would not be

appropriate and just in the facts and

circumstances of this case. Therefore, without

going into the intercities and technicalities of law,

it is just and proper in the present case that the

delay in filing the appeal and refilling of the appeal

are condoned.

7. Hence, application is allowed, the delay in filing

and refilling of the appeal is hereby condoned.

Crl. L.(P). 8/2004

1. On 13.04.1994 at about 5.45 P.M. Food Inspector

Satish Kumar Gupta purchased a sample of kanche

wali bottle of aerated water for analysis from

accused Kalyan Ji (already acquitted) at his shop at

Sadar Bazar. The sample consisted of 9 originally

sealed bottles having identical label declaration.

The Food Inspector divided the sample bottles in

three equal parts consisting of three bottles each in

the same condition. He prepared necessary

documents at the spot. Second counter part of the

sample was sent to Public Analyst for analysis if the

sample was adulterated. The Public Analyst found

the sample not conforming to standards because

total plate counts were found 126 colonies per ml.

which was in excess of maximum prescribed limit

of 50 colonies and also coliform count as 10900

colonies per 100 ml. which should have been totally

absent in 100 ml. A complaint was accordingly filed

by the petitioner under Section 16 (1) (1-A) of

Prevention of Food Adulteration Act (hereinafter

referred to as „PFA Act‟).

2. This complaint was filed against Kalyan Ji from

whose shop the samples were purchased, Shri

Deepak Kumar Manek, another purchaser of

kanche wali bottle/product and Hardwari Lal

Chaurasia. Hardwari lal Chaurasia happened to be

the owner and manufacturer of Chaurasia Soda

Water factory, Sadar Bazar and was incharge and

responsible for day to day conduct of the business

of the firm.

3. During the trial of the case Kalyan Ji and Deepak

Kumar Manek moved an application seeking their

discharge claiming protection under right of

warranty. Since respondent Hardwari Lal

Chaurasia conceded to the relief claimed by Kalyan

Ji and Deepak, they were acquitted vide order

dated 2.2.1999.

4. Respondent had exercised his right under Section

13 (2) of PFA Act and accordingly second counter

part of the same sample was sent to Director CFL,

Mysore for further analysis. This sample was also

found adulterated but on different findings. The

Director CFL found total plate counts and coliform

count within the prescribed standards i.e. total

plate counts per ml as „21‟ and coliform count per

100 ml „NIL‟. However, the Director CFL found the

sample adulterated because he noticed that

benzoic acid present 172.5 ppm which was in

excess of the limit of 120 ppm and yeast and mould

count per ml as „262‟ which exceed the limit of „2‟

per ml as per PFA Act.

5. The trial court acquitted respondent Hardwari Lal

Chaurasia as it was of the opinion that Food

Inspector did not comply with the requirements as

per Rule 22 of the PFA Rules as 600 ml of aerated

water was required to be sent to Public Analyst for

analysis after mixing up the contents of all the

samples and then refilling the bottles, dividing

them in three parts so as to give three uniform and

representative samples for analysis purposes.

6. The trial court observed as under:-

"11. Thus considering the aforesaid, I am of the opinion that sample was not taken in proper manner and Food Inspector should have instead mixed up the contents of the 9 bottles and then said mixed up quantity should have been divided in 3 equal parts and only that method could have given the representative sample. I subscribe to the view taken by Hon‟ble Punjab and Haryana High Court in aforesaid judgment and there is no merit in the contentions raised by prosecution that as per Rule 22 (A), there was no necessity of mixing up the contents. Rule 22 (A) comes into picture only when food is sold in sealed container having identical label declaration.

12. Her in the case in hand, such type of kanchewali bottles cannot be said to be sealed containers. Hon‟ble Madras High Court in case of State of Mutthu Krishnan 1990 (2) FAC Page 196 had explained the term „sealed container‟. Relying upon one judgment of State of Kerala vs. K.S.

Balakrishnan 1972 FAC 617 Madras High Court observed that "closed container" are not synonymous with "sealed containers". It was further observed that in the Stroud‟s Judicial Dictionary 3rd Edition, the meaning given to the word "sealed" is "secure with any substance without destruction of which the cork, plug or stopper cannot be withdrawn". In the Shorter Oxford English Dictionary, it has been defined as a container which is so closed that access to its contents is impossible without breaking the fastening.

             13. View      from      this    angle
             kanchewali    bottles   in   question

cannot be said to be sealed container and therefore, prosecution cannot take any advantage of Rule 22 (A) of PFA Rules.

14. Moreover, in the present case, as already discussed, when Public Analyst had examined the first counter part, he had found total plates as 126 colonies per ML whereas Director, CFL had found the same as 21 colonies per ML. Similarly, coliform count were found as 10900 colonies per 100 ML by Public Analyst whereas Director did not find any coloform count in the sample and reason is not far to seek. It was precisely due to improper sampling. Admittedly, as per scheme of the PFA Act certificate issued by Director CFL supersedes the previous report of Public Analyst and it is not permissible and proper to compare two results but considering the manner in which the sample was taken and considering the totally

contradictory reports, I am compelled to look into both the results. Here I would like to draw support from one judgement of our own High Court cited as MCD vs. Lal Ram 1980 (2) FAC 147 wherein it was held that in case where the 2 reports of Director and Public Analyst appear to be absolutely divergent and different from each other then the report of Public Analyst can be looked into.

15. In view of my aforesaid discussion I find it fit case where accused should be given benefit of doubt and accused Hardawari Lal Chorasia is acquitted of all charges levelled against him."

7. While reaching to the aforesaid conclusion, the trial

court took into consideration the proposition of law

as laid down in „Hans Raj vs. State of Punjab

1995 (1) FAC 102‟; „Bhagwandass vs. State

1981 (II) FAC 351‟; „State by PP vs.

Muthukrishnan, 1990 (2) FAC 196; „State of

Kerala vs. K.S. Balakrishnan, 1972 FAC 617‟;

and „MCD vs. Lala Ram & Anr. 1980 (II) FAC

147‟.

8. Learned counsel for the respondent has also

referred to:-

(i) State vs. Dharampal 2003 SCC (Crl.) 1012;