Delhi Administration Thr. Food ... vs Narayan Dass
2011 Latest Caselaw 6064 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl.Rev.P. No. 555/2011


                                                       Date of Order: 12.12.2011



DELHI ADMINISTRATION THR. FOOD INSPECTOR
                                                            ..... Appellant
                           Through:       Mr.Manoj Ohri, APP.


                      Versus


NARAYAN DASS                                                 ..... Respondent
                           Through:


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

Crl.M.A. 19163/2011 (exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

Crl.M.A. 19162/2011 (delay)

This is an application under Section 5 of the Limitation Act for

condonation of delay of 95 days in filing the pettion.

In view of the submissions made therein, delay in filing the petition is

condoned.

Application stands disposed of.

Crl.Rev.P. 555/2011

1. This is a revision petition under Section 397 read with Section 401

CrPC filed by the State against the judgment dated 29.4.2011 of learned

Special Judge, NDPS, New Delhi passed in case CA No. 113/2010 under

Section 7/16, Prevention of Food Adulteration Act, 1954 (for short, the

'Act'), whereby the learned Special Judge dismissed the appeal filed by the

petitioner against the order of acquittal of respondent dated 28.5.2010 by the

learned ACMM.

2. The case, in brief against the respondent was that on 28.10.2002 at

about 6.30 p.m., a sample of 'ladoo', a food article was taken for analysis by

the Food Inspector from the respondent's shop where the said food article was

stored for sale for human consumption. The sample consisted of 1.5 kg. of

ladoo taken from an open tray bearing no label declaration. The sample was

stated to be cut into smallest possible pieces and mixed properly. The Food

Inspector divided the sample into three equal parts by putting them in three

separate dry bottles and each bottle containing the sample was separately

parceled and sealed. Rest of the formalities were completed. One part of the

sample was sent to Public Analyst (P.A.), which came to be analyzed vide his

report dated 15.11.2002. The Public Analyst reported the food to be

adulterated on account of it containing total dye content of the synthetic

colour used exceeding the prescribed maximum limit of 100 ppm. The

respondent after being summoned exercised his right under Section 13(2) of

the PFA Act and second counter part of sample was sent to CFL, who also

confirmed the sample to be adulterated in contravention of Rule 30 of the PFA

Rules, 1955. After the trial, learned ACMM recorded the acquittal of the

respondent vide order dated 28.5.2010. The petitioner/State took the matter

in appeal before the Special Judge, who also dismissed the appeal of the

petitioner vide judgment dated 29.4.2011. The present revision petition has

been filed assailing the impugned judgment of the learned Special Judge.

3. The main ground for acquittal that was recorded by the Trial Court was

the variations in the two reports of analysis done by P.A. and the Director,

CFL. The variations was to the extent of 65.63 ppm in colour concentration

between the two counter parts. The Trial Court relied upon the case of

Kanshi Nath Vs. State, 2005 (2), FAC 219 of this court. Before the appellate

court of Special Judge, contention raised by the petitioner/State was that the

report of P.A. cannot be compared with the CFL certificate. Even before this

court, the impugned judgment has been assailed by the State on the ground

that with the certificate of Director, CFL being there, the report of the Public

Analyst was superseded and that it was the report of CFL which was final and

conclusive and the report of the Public Analyst cannot be looked into.

4. I have given my considered thought to the submissions made by the

counsel appearing for the State. There is no dispute with regard to the

proposition that the certificate of the Director, CFL was final and conclusive

and that superseded the report of the Public Analyst which cannot be looked

into. But however, to say that the report of the Public Analyst could not be

looked into for any purpose, whatsoever, was not the correct proposition of

law. In the case of Kanshi Nath Vs. State (supra), it was observed by this

court that if the samples are not representative, then any test report based on it

would not indicate the true position. In the present case, the variations in the

reports of the samples of two counter parts of the same sample was large being

65.66 ppm which was more than 0.3%, the permissible limit of the variation.

Such variation would certainly call to record that the sample drawn was not

representative. If the sample was of representative character, then the extent

of dye content in both the counter parts would not have seen of such

substantial variation. It cannot be said that representatives of same sample

were sent to Public Analyst as well as CFL. This compels the court to reach

to the irresistible conclusion that the sample drawn was not representative and

that would have certainly prejudiced the respondent.

5. In view of the above discussion, I do not see any infirmity or illegality

in the order of Trial Court as well as of learned Special Judge. Revision

petition being without any merit, is accordingly dismissed.

M.L. MEHTA (JUDGE) DECEMBER 12, 2011 akb