Food Inspector / Food Safety ... vs Vinod Jain
2013 Latest Caselaw 5568 Del

$~12.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CRL.L.P. 694/2013
%                                          Judgment dated 02.12.2013
         FOOD INSPECTOR / FOOD SAFETY OFFICER ..... Petitioner
                      Through : Mr.Manoj Ohri, Adv.

                              versus

         VINOD JAIN                                                  ..... Respondent
                              Through

         CORAM:
            HON'BLE MR. JUSTICE G.S.SISTANI

                              ORDER

%                             02.12.2013

CRL.M.A.18117/2013

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CRL.L.P. 694/2013

3. Present leave to appeal petition has been filed under Section 378 Cr.P.C.

against the order of acquittal dated 9.11.2013 passed by learned ACMM, Delhi.

4. The facts of this case, as noticed by the learned ACMM in the judgment, are as under:

"1. The present complaint has been filed on 10.12.2002 by the Delhi Administration through FI Ms.Usha Kiran against the above said accused. It is averred in the complaint that on 24.12.2001 at about 4:15 PM, FI Shri Jeet Ram purchased a sample of Dal Masoor, a food article for analysis from accused Vinod Jain from

the aforesaid premises, where the said food article was found stored for sale and the accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 750 gms of Dal Massoor, taken from an open wooden box, bearing no label declaration. The sample was taken under the supervision and direction of Sh.Satnam Singh, SDM / LHA. The sample was taken after properly mixing the Dal Massoor with the help of a clean and dry JHABA by rotating it in all possible directions. The FI Shri Jeet Ram divided the sample into there equal parts then and there by putting them in three separate clean and dry bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and on the wrapper of the sample bottles. Rest of the procedural documents were prepared at the spot in accordance to PFA Act & Rules and all the documents were got signed from the accused as well as one witness i.e. SDM / LHA Shri Satnam Singh.

2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA. The PA analysed and found the sample to be adulterated because it was coloured with synthetic colouring matter viz sunset yellow FCF.

3. Further, accused Vinod Jain was found to be Vendor-cum- Proprietor of M/s Jain Super Store at the time of sampling and as such he was Incharge and responsible for the day to day conduct of the business at the aforesaid premises. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present

complaint was filed.

4. The accused was summoned vide order dated 10.12.2002. He appeared and exercised the Right & option U/s 13(2) of the Act of 1954 and consequently the sample counterpart as per the choice of the accused was sent for analysis to the CFL-Pune vide order dated 18.02.2003. The Director CFL-Pune gave his report and opined that the samples does not conform to the standards of Masur Dal as per PFA Rules 1955. It also contravenes Rule 44-AAA of PFA Rules 1955.

5. Charge for the violation of the Provisions of S.2(i-a) (a) (b)

(j) & (m) of the PFA Act 1954 punishable U/s 16 (1A) r/w S. 7 of PFA Act 1954 was framed against the accused to which he pleaded not guilty and claimed trial.

6. Three witnesses namely Sh. Jeet Ram, Food Inspector (PW-

1), Ms Usha Kiran, Food Inspector (PW-2) and Shri Satnam Singh, the then SDM/LHA (PW-3) were examined on behalf of the complainant."

5. Learned counsel for the petitioner submits that the learned ACMM while passing the impugned judgment has failed to appreciate that the sample failed as per both, the public analyst as well as CFL report. Counsel contends that ACMM has further failed to consider that the CFL report is final and supersedes the report of the public analyst.

6. The learned trial court while passing the impugned judgment observed that the PA found the sample to be adulterated as it was coloured with synthetic colour matter viz. „sunset yellow FCF‟ as also the Director CFL, who found the same having been coloured with synthetic colour viz. Sunset Yellow FCF in the second counterpart of the same sample.

However, apart from this, most of the other tests which have been conducted by both the experts, are either contradictory to each other or there are variations. For example, extraneous inorganic matter, grain damage, Weevilled grain, moisture and uric acid are NIL as per PA‟s findings whereas the Director CFL has found all of them present in the sample so sent for analysis. Furthermore, in the PA‟s Report, test for Mineral Oil has not been conducted, whereas, the Director CFL has found Mineral Oil present therein. Besides this in PA‟s report, extraneous organic matter has been found to be 0.018% whereas, the Director CFL adjudged the same to be 0.01%. This way, the reports of the Director CFL are totally contradictory to the reports of the Public Analyst. The trial court has relied upon the observations made by the High Court in the case of State v. Mahender Kumar & Ors, reported at 2008 (1) FAC 177, wherein it was held by the Court that if on comparison of the report of Public Analyst and Director, CFL, unacceptable variations are found, then it cannot be said that the samples were representative and consequently the accused would be entitle to an acquittal.

7. The law with regard to the grant of leave is well settled by a catena of judgments. Leave to Appeal can be granted only where it is shown that the conclusions arrived at by the Trial Court are perverse or there is mis- application of law or any legal principle. The High Court cannot entertain a petition merely because another view is possible or that another view is more plausible. In Arulvelu and Anr. vs. State represented by the Public Prosecutor and Anr., 2009 (10) SCC 206, while referring with approval the earlier judgment in Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450, the Supreme Court reiterated the principles which must be kept in mind by the High Court while entertaining an Appeal against acquittal. The principles are:-

"1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

6. Careful scrutiny of all these judgments lead to the definite conclusion that the appellant court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court‟s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either „perverse‟ or wholly unsustainable in law."

8. In my opinion, learned counsel for the petitioner has been unable to draw a distinction between the decision rendered by this Court in the case of State v. Mahender Kumar (supra) and the facts of the present case.

9. Having regard to the facts of this case, in my opinion, the same is fully covered by the decision rendered in Kanshi Nath v. State, reported at 2005 (2) FAC 219 Delhi High Court; State v. Mahender Kumar & Ors., reported at 2008 (1) FAC 177; and State (Delhi Administration) v. Ram Singh & Ors., wherein it has been held that if unacceptable variations and contradictions are shown in two reports then it cannot be said that the samples were representative and the accused would be entitled to an acquittal. In the present case there are glaring discrepancies between the reports of Public Analyst and Director CFL with respect to presence of extraneous organic matter, grain damage, moisture, uric acid, mineral oil, etc.

10. In view of the above and taking into consideration the general principles set out in the case of Arulvelu and Anr. (Supra), no grounds are made out to entertain the present leave to appeal petition and the same is accordingly dismissed.

                                                                 G.S.SISTANI, J
DECEMBER              02, 2013
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