Food Inspector / Food Safety ... vs Dinesh Goswami
2013 Latest Caselaw 5654 Del

$~12.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CRL.L.P. 705/2013
%                                          Judgment dated 06.12.2013
         FOOD INSPECTOR / FOOD SAFETY OFFICER ..... Petitioner
                      Through : Mr.Manoj Ohri, Advocate

                              versus

         DINESH GOSWAMI                                      ..... Respondent
                     Through



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


G.S.SISTANI, J. (ORAL)

CRL.M.A.18306/2013

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CRL.L.P. 705/2013

3. Present leave to appeal petition has been filed under Section 378 (1) Cr.P.C. against the order of acquittal dated 17.11.2012 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 02.08.2005 by the Delhi Administration through FI Sh.D.V. Singh against the above said accused. It is averred in the complaint that on 18.09.2004 at about 12:00 PM, FI D.V. Singh purchased a sample of Dal Urd Dhuli, a food article for analysis from accused Dinesh Goswami

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 1500 gms of Dal Urd Dhuli, taken from an open tin container, bearing no label declaration. The sample was taken under the supervision and direction of Sh.Sushil Yadav, SDM/ LHA. The sample was taken after properly mixing the Dal Urd Dhuli with the help of a clean and dry JHABA by rotating it in all possible directions. The FI divided the sample into three equal parts then and there by putting them in three separate clean and dry glass 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. Notice was given to accused and price was paid. Panchnama was also prepared at the spot. Rest of the procedural documents were prepared at the spot according to PFA Act & Rules.

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 not free from fungus.

3. Further, during investigation accused Dinesh Goswami was found to be Vendor-cum-Proprietor of M/s. Family Cafe at the time of sampling and as such he was In-charge and responsible for the day to day conduct of the business at the aforesaid Cafe. 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 02.08.2005. He appeared in the due course 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. The Director CFL-Pune gave his report and opined that the samples bearing No.82/LHA/6447 does not conform to the standards of split pulse (Dal) Urd as per PFA Rules, 1955.

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

(m) of 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.D.V. Singh, Food Inspector (PW-

1), Shri Sushil Yadav, the then SDM/LHA (PW-2) and Shri Ranjeet Singh, FA (PW-3) were examined on behalf of the complainant."

5. Learned counsel for the petitioner submits that the learned trial court while passing the impugned judgment has failed to appreciate that the sample failed as per both, the public analyst and CFL report. Counsel contends that the trial court 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 order has observed that the Public Analyst found the sample to be adulterated as it was not free from Fungus whereas the Director CFL has mentioned nothing about the Fungus. Had there been Fungus in the sample counterpart, the same should have also been found by the Director CFL. The trial court has also observed that in the Public Analyst‟s report, Uric Acid is found NIL whereas the Director CFL found the same to the tune of 150 mg/kg. In

Public Analyst‟s report moisture was found to the tune of 10.94% whereas the Director CFL found the same to the tune of 8.64% which is 2.3% less than that of Public Analyst‟s opinion. Moreover, in Public Analyst‟s report foreign matter (extraneous matter) was found to be NIL whereas the Director CFL adjudged the same to the tune of 0.51%. Thus both the reports are contradictory to each other. The trial court has relied upon the observation made by the Court in the case of State v. Mahender Kumar & Ors., reported at 2008 (1) FAC 177, wherein it has been held that if unacceptable variations are shown in two samples then it cannot be said that the samples were representative and consequently the accused would be entitled to an acquittal. Relying upon the abovecases, learned trial court dismissed the complaint and acquitted the respondent.

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. I have heard counsel for the petitioner and carefully examined the record.

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

9. Admittedly, in the present case, there is variation in the reports (report of the Public Analyst and the report of the Director, CFL) with respect to the Fungus, Uric Acid and the percentage of moisture in the Dal Urd Dhuli. Furthermore, it has been clearly laid down in the case of State (Delhi

Administration) v. Ram Singh & Anr., reported (2009) 1 FAC 371 that if the variation in the two reports is more than 0.3%, it cannot be said that the sample was representative in nature. In the present case, the variation in both the reports with respect to moisture content is 2.3% and with respect to foreign matter 0.51%, both of which are above 0.3%.

10. Having regard to the facts of this case, 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; State (Delhi Administration) v. Ram Singh & Ors. (supra); and keeping in mind 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 06, 2013 ssn