Local Health Authority vs Joginder Singh
2012 Latest Caselaw 5931 Del

$~28
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. L.P. 401/2010
                                      Decided on 3rd October, 2012

       LOCAL HEALTH AUTHORITY               ..... Petitioner
                       Through: Ms. Fizani Hussain, APP
                versus

       JOGINDER SINGH                             ..... Respondent
                     Through:         None.

       CORAM:
       HON'BLE MR. JUSTICE A.K. PATHAK


A.K.PATHAK, J. (ORAL)

1. Trial Court has convicted the respondent under Section 16(1)

read with Section 7 of the Prevention of Food Adulteration Act,

1954 (for short hereinafter referred to as "the Act") for violating

sub-clause (a) & (m) of Section 2(ia) of the Act; sentenced to

undergo rigorous imprisonment for six months with fine of

Rs.3,000/- (Rupees Three Thousand Only) and in default of

payment of fine to undergo simple imprisonment for one month.

2. Respondent preferred an appeal before the Additional

Sessions Judge, Delhi, which has been allowed and the respondent

has been acquitted by the order dated 2nd June, 2010, impugned in

this petition.

3. That is how, petitioner is before this Court by way of present

petition under Section 378(4) Cr.P.C. seeking leave to appeal

against the acquittal of respondent.

4. On 6th June, 1999, Food Inspector Shri R.P. Singh

intercepted a milk tanker containing double toned milk. Sample of

milk was drawn. Twenty drops of formalin were mixed as

preservative. Sample was divided in three parts and kept in three

different clean and dry bottles. Thereafter, bottles were sealed.

One sample was sent to Public Analyst. As per the report of Public

Analyst, milk fat was found 1.9% and milk solids not fat 8.36%.

Sample was reported as adulterated since it did not meet the

prescribed standards as milk solids not fat was less than prescribed

minimum limits of 9%.

5. A complaint was filed in the court of Additional Chief

Metropolitan Magistrate, New Delhi. Respondent exercised his

option under Section 13(2) of the Act and counterpart sample was

sent to Central Food Laboratory (CFL). As per the report of CFL,

milk fat was found to the extent of 1.7%, while milk solids not fat

to the extent of 8.4%. Since complaint was filed belatedly,

respondent could exercise his option under Section 13(2) of the Act

only after a gap of eight months.

6. Additional Sessions Judge by placing reliance on M.C.D. vs.

Ghisa Ram, AIR 1967 SC 970 and Gian Chand vs. State, 1979 Cri

LJ 754, has held that the shelf life of the milk is about four months,

if it is kept in a room temperature and six months, if kept in a

refrigerator, thus, sending of counterpart sample to CFL after a gap

of eight months had deprived respondent of his right under Section

13(2) of the Act. It has further been noted that no evidence was led

to show that the sample was kept in a refrigerator, therefore, life of

counterpart sample could not be more than four months.

Accordingly, conviction has been set aside and respondent has

been acquitted.

7. I do not find any manifest error or perversity in the

impugned order, inasmuch as, same is in consonance with the

evidence led before the trial court and the law applicable to the

facts involved in the matter. Admittedly, counterpart sample was

sent to CFL after about eight months on account of delay in filing

the complaint. This delay has deprived the respondent to avail

option under Section 13(2) of the Act, which makes the respondent

entitled to benefit of doubt.

8. In Ghisa Ram (supra) the complaint was filed in the court

after about seven months from the date of raid and taking sample of

milk product (curd) from the shop of accused. In these

circumstances, Supreme Court has held that valuable right

available to the accused under Section 13(2) of the Act of having

the sample tested at CFL had stood denied to him. Crux of the

judgment of the Supreme Court is that prosecution in these kinds of

cases should be launched promptly. In the facts of this case, I do

not find the view taken by the Additional Sessions Judge to be

unreasonable or perverse, inasmuch as, the same is reasonably

possible on the evidence adduced before the Trial Court.

9. In State of Punjab vs. Ajaib Singh and Ors. 2005 SCC (Cri)

43, Supreme Court has held, thus, "it is well settled that in an

appeal against acquittal, the appellant court is entitled to re-

appreciate 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". In Sirajuddin @ Siraj vs. State of

Karnataka 1980 CAR 359 (SC), Supreme Court has held that if the

view on the evidence taken by the Trial Court is reasonably

possible, the High Court should not, as a rule of prudence, disturb

the acquittal.

10. For the foregoing reasons, I do find any justifiable reason to

grant leave to appeal to the petitioner.

11. Petition is dismissed.

A.K. PATHAK, J.

OCTOBER 3, 2012 rb