State vs Sunil Dutt
2011 Latest Caselaw 3543 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRL.L.P. No.260/2008

                                     Date of Decision : 26.07.2011

STATE                                              ...... Petitioner

                                Through: Mr.Naveen Sharma, APP
                                         for   Mr.Pawan   Sharma,
                                         standing counsel for the
                                         State.

                                Versus

SUNIL DUTT                                    ......     Respondent

                                Through: None.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

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

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by the State against the

judgment dated 03.07.2008 passed by Shri S.K. Sarvaria,

learned Additional Sessions Judge, New Delhi, acquitting

the respondent-accused of an offence under Section 7 of

the Prevention of Food Adulteration Act, in respect of which

he was held guilty by the learned Metropolitan Magistrate.

2. Briefly stated, the facts of the case are that the appellant

Food Inspector is alleged to have taken a sample of 18

sticks of ice candy from the freezer of the respondent

accused on 06.04.1989 at about 5 PM with the help of Food

Inspector Rajesh Kumar. The samples of ice candies were

taken with the help of clean and dry 'patilas' and spoons,

and thereafter divided in three equal parts. They were

separately sealed after adding 24 drops of formalin in each

counterpart. Statutory documents are alleged to have been

prepared on the spot and one sample was sent to the Public

Analyst for the purpose of examination. The Public Analyst

after examination, opined that the sample contained dye

content to the extent of 0.27gms/Kg. which was beyond the

permissible limit of 0.20 gms/Kg which was, the fixed

standard under the Prevention of Food Adulteration Act.

Accordingly, after obtaining necessary sanction from

Director (PFA), a complaint under Section 7 read with

Section 16 of the Prevention of Food Adulteration Act was

filed in the Court of Metropolitan Magistrate on 07.06.1989.

3. The accused has put in his appearance and exercised his

right under Section 13(2) of the Prevention of Food

Adulteration Act to get the second sample of the article of

food examined from the Director, CFL, Mysore.

Accordingly, a second sample of the ice candy was sent to

Director, CFL, Mysore who gave a certificate of examination

dated 27.07.1989 and confirmed the finding that the

sample was not conforming to the standard so far as the

total dye content is concerned. It was opined that the total

dye content was 0.310 gms/Kg. whereas the maximum

permissible limit was 0.20 gms/Kg. Accordingly, a notice

under Section 251 of Cr.P.C. was given to the respondent-

accused.

4. The prosecution in support of its case examined three

material witnesses, namely, PW1 Gopal Singh, complainant,

PW-2 Food Inspector Rajesh Kumar and PW3 R.K. Ahuja

attesting witness.

5. The accused in his statement under Section 313 Cr.P.C.

admitted that he had sold the ice candy of which the

sample was taken. However, he took the plea that at the

time when the sample of the ice candy was taken, there

was no electricity supply and, therefore, some of the ice

candy stock were in a solid state while as the other was

melting. He also took the plea that the sample which was

taken was not representative in character because of the

lack of homogeneity in the food article that was obtained.

6. The respondent-accused in support of his case examined

DW-1 Harbhajan Singh and DW-2 Shri S. Mahendru. The

learned Magistrate vide judgment dated 10.08.1999

convicted the accused for an offence under Section 7 of the

Prevention of Food Adulteration Act and by order dated

20.08.1999, sentenced him to undergo simple

imprisonment for one year along with a fine of Rs.2000/-.

7. The appellant, feeling aggrieved by the said conviction and

sentence, preferred an appeal bearing No. 54/1999 titled

Sunil Dutt versus State (Delhi Administration), which was

disposed of on 03.07.2008. thereby acquitting the appellant

of all the charges. The reason for acquittal handed down by

the learned Additional Sessions Judge was that the sample

which was obtained by the Food Inspector PW-2 was not

homogeneous and consequently not representative in

character. For arriving at this conclusion, the learned

Additional Sessions Judge relied upon the values of the

edible article given in the two reports i.e. of Public Analyst

and that of the Director, CFL, Mysore. It was observed by

the learned Additional Sessions Judge that the report of the

Public Analyst showed that the total sugar found in the

sucrose in the sample was 21.2% and the dye content was

0.27 gm/kg. In contrast to this, the certificate given by the

Director, CFL, Mysore showed that the total sugar was

found to be 19.95% by weight while as the total quantity of

artificial colouring was found to be 0.310 gms./Kg. It was

observed by the learned Additional Sessions Judge that

though both the samples had failed so far as the dye

content is concerned, but the sugar content had also

reduced from 21.2% to 19.95%, therefore, there was a

variation in the values and the benefit of the same has to

be given to the accused, as he had taken the plea that the

sample was not representative in character. The learned

Additional Sessions Judge in arriving at such a finding has

taken note of the fact that although statutorily the report of

the Director, CFL supersedes the report of the Public

Analyst, but at the same time, the learned Additional

Sessions Judge considered the Full Bench decision of the

Delhi High Court in MCD and R.N. Gujral versus Bishan

Sarup 1972 FAC 273 (Del) (FB), and observed that the

report of the Director, CFL, Mysore, is obtained by the

accused himself and it gets superimposed on the report of

the Public Analyst. But it has been observed that the report

of the Public Analyst and the Director, CFL can be looked

into for the purpose of arriving at a conclusion as to

whether the sample was representative in character or not.

This will be evident from the variation not only in the values

of the two reports but also the content of the adulterant or

the offending article which has made such edible article

adulterated.

8. The State, feeling aggrieved by the acquittal, has assailed

the judgment passed by the learned Additional Sessions

Judge. However, it must candidly be stated that the

learned counsel for the State was not able to show any

authority contrary to the Full Bench decision in Bishan

Sarup's case (supra), which has been referred to by the

learned Additional Sessions Judge in his judgment in order

to arrive at such a conclusion.

9. I have gone through the judgment passed by the learned

Additional Sessions Judge, which is quite exhaustive and

has referred to a number of judgments of this High Court

and that of the Apex Court. They sum up the legal position

very succinctly. In all such cases, it has been held that

once the accused exercises his right under Section 13(2) of

Prevention of Food Adulteration Act and voluntarily gets the

second sample examined from Director, CFL, he does so at

his own risk. The report in this regard, statutorily

supersedes the report of the Public Analyst for all practical

purposes. However, there have been judgments including

the Full Bench decision in Bishan Sarup's case (supra)

where this Court has observed that although the finality and

conclusiveness is attached to the report of the Central Food

Laboratory, however, the report will still be open to

challenge by the party and it may still have to be

ascertained by the Court as to whether the adulteration is

established in the report or not. It was also observed that

it is open to the accused to show that in the facts of the

given case, the sample which was sent for analysis to the

Director, CFL, could not be taken to be a representative

sample of the food articles that were sent for examination.

Such a defence has been taken by the respondent-accused

in his statement under Section 313, Cr.P.C. and he has also

examined DW-1 who has stated in his statement that at the

time when the sample was taken, there was no electricity

and consequently, some of the ice candies were frozen

whereas others were semi-solid. Similar statement was

given by the other defence witness, though they were not

as favourable to the respondent-accused as DW-1.

10. The learned Magistrate has disbelieved their testimony by

observing that since the witness himself has observed that

some of the ice candies were frozen and some were

melting, there is a contradiction in the statement of fact

itself. The learned Magistrate reasoned that if there was no

light, then all the ice candies ought to have melted. I find

this reasoning to be illogical because when the samples

were taken from the deep freezer, and assuming that there

was no electricity, it is not necessary that all the ice candies

will melt in a uniform manner. The ones which were kept at

the bottom of the freezer would still be slightly frozen

whereas the ones near the opening would start melting

much faster, even if all the ice candies were taken out

simultaneously.

11. The valuation of the two parameters, namely, sugar content

and the content of dye are at a variance in the two reports,

i.e. of the Public Analyst and of the Director, CFL. This has

not been explained by the prosecution anywhere as to why

it has happened so. It is not clear whether this is because

of the lapse of time or because of some other reason. In

such a contingency, the plea of the respondent-accused

that the sample was not homogeneous cannot be said to be

without any merit and hence, cannot be brushed aside. In

a criminal trial when there are two possible views, one in

favour of the accused and the other against him. The court

would invariably lean in favour of the view favouring the

accused. The learned Additional Sessions Judge in my

considered opinion has rightly relied on the view favouring

the accused. Moreover, one must also be pragmatic to the

realities of life. The sample was purported to have been

taken almost 22 years back and, therefore, I feel that

simply by granting the leave to appeal, the final

adjudication of the matter will still kept under suspense. It

is not a case where some adulterant has been mixed from

outside and, therefore, it is better to give quietus to the

matter.

12. For the reasons mentioned above, I am of the considered

opinion that no ground is made out by the State for grant of

leave to appeal against the impugned order dated

08.07.2008 acquitting the respondent accused.

Accordingly, the leave to appeal is dismissed.

V.K. SHALI, J.

July 26, 2011 MA