State Nct Of Delhi vs Surender Kumar Jain
2014 Latest Caselaw 1271 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on: 05.03.2014
                                      Judgment delivered on:10.03.2014.
+      CRL.A. 163/2006
       STATE NCT OF DELHI                                    ..... Appellant
                       Through             Mr.Navin K. Jha, APP.

                             versus

       SURENDER KUMAR JAIN                           ..... Respondent
                   Through                 Mr.Manish Makhija, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment dated

16.02.2005 wherein the trial Court had acquitted the respondent of the

offence under Section 16 of the Food Adulteration Act (hereinafter

referred to as the „PFA‟).

2 The case of the complainant is that on 14.07.1995 at about 12:30

pm, the Food Inspector Bal Mukund (PW-1) had taken sample of

"sodium benzoate" (a food article) from Surrender Kumar Jain from his

shop i.e. M/s Puran Chand & Sons at 3540, Qutab Road, Delhi. The said

article was being stored for sale. The respondent was conducting

business at the time when this food sample was purchased; the sample

consisted of thirty originally sealed packets containing 20 gms "sodium

benzoate" each; the sample was divided in three equal parts and each

sample was correctly sealed, packet and fastened. The panchnama

(Ex.PW-1/C) was prepared at the spot. The other documents including

vendor‟s receipt (Ex.PW-1/A), cash memo (Ex.PW-1/D) were prepared

at the spot. Efforts were made to join public witness but no public

witness had joined. One counterpart has been sent to the public analyst.

The public analyst vide its report dated 24.08.1995 had reported that the

sample is mis-branded because there is a violation of Rule 48-C.

Accordingly, the challan was filed.

3 The prosecution in support of its case has examined Food

Inspector (PW-1) and Gopal Singh (LHA) (PW-2).

4 The statement of the accused was recorded under Section 313 of

the Cr.PC. The first and third questions and the answers thereto read

herein as under:-

"Q. It is in evidence against you that on 14.07.1995 FI Saniv Gupta and other staff of PFA under supervision of LHA Gopal Singh visited M/s Puran Chand & Sons 3540, Qutab Road, Delhi where you were found present and conducting business of said firm and had stored sodium benzoate a food article for sale for human consumption. What do you have to say:

Ans. It was not meant for human consumption as food article.

Q. Further that sodium benzoate was in sealed pack containing 20 gms in each packet and at 12:30 PM FI Bal Mukund purchased 30 such originally sealed packet from you for Rs.128.40 vide vendor's receipt Ex.PW-1/A which you also signed. What do you have to say?

Ans. It was a mixture of sodium benzoate and salt names as sodium bejote."

5      No evidence was led in defence.

6      As noted supra, the appellant was acquitted as the Court had

noted that the documents which had been prepared at the spot i.e.

panchnama, vendor‟s receipt all contained reference of terms "sodium

bejoate" and what was analyzed by the CFSL was also "sodium bejoate"

but the consent for prosecution (Ex.PW-2/A) had been obtained for

"sodium benzoate". This was held to be a glaring discrepancy in the

documentary evidence relied upon by the prosecution which remained

unexplained; the benefit of this has been given to the respondent and the

respondent stood acquitted.

7 On behalf of the appellant, arguments had been addressed in

length. It is pointed out that the judgment of the trial Court is an

illegality; it is liable to be set aside; it is pointed out that there was a

clear misbranding as there is no food article by the term of "sodium

bejoate"; it was only a typing error which had occurred in the documents

and even otherwise irregularities or lapse in investigation must not

accrue in favour of the accused. It is submitted that what has been

analyzed by the CFSL is in fact "sodium benzoate" and this is clear

from the conclusion of the analyst in his report wherein he has clearly

noted that there has been a misbranding because of violation of Rule 48-

C; misbranding being that ISI certificate was not obtained on the

aforenoted food article.

8 These submissions have been refuted by the learned counsel for

the respondent. It is pointed out that what was sealed and was purchased

by the Food Inspector was "sodium bejoate" as is clear from the

vendor‟s receipt, panchnama as also the report of the analyst. Sample

sent to the CFSL was a sample of "sodium bejoate"; all this has been

noted by the trial Court in the correct perspective. Even in answer to the

queries put to the respondent, he has categorically stated that the food

article "sodium benzoate" was not being sold for human consumption;

attention has also been drawn to the cross-examination of PW-1 wherein

the article of food i.e. the case property had been summoned in the

Court and the ingredients noted upon the sample case property had

noted that it was a combination of "sodium benzoate" and "sodium

chloride"; submission being that had it been a sample of "sodium

benzoate", "sodium chloride" would not have been part of this packet.

Learned counsel for the respondent has placed reliance upon a judgment

of the Apex Court reported as AIR 1966 SC 1676 M.V. Krishnan

Nambissan Vs. State of Kerala to support his submission that where no

standard for food article has been prescribed in the PFA Act or in the

PFA Rules, conviction under Sections 7 and 17 of the PFA was held not

sustainable. It is pointed out that the law on interference in orders of

acquittal is also well settled. Unless and until, there is a patent perversity

in the impugned judgment, an order of acquittal should not be easily

interfered with and to support this submission reliance has been placed

upon a judgment of the Apex Court reported as (2007) 4 SCC 415

Chandrappa & Others Vs. State of Karnataka. On no count does the

impugned judgment call for any interference.

9 Arguments have been heard and record has been perused.

10 There is no doubt to the legal proposition that unless there is an

illegality or patent perversity pointed out in the impugned judgment,

order of acquittal should not be easily interfered with. The Apex Court

in AIR 2010 SC 2352 Sidhartha Vashisht Vs. State has held that the

appellate Court should reverse the acquittal only for substantial and

compelling reasons.

11 Impugned judgment has recorded the following findings:-

"The complainant has prosecuted the accused for "Sodium Benzoate". The accused has submitted that the sampled commodity is a mixture of sodium benzoate and salt named sodium bejote. In the panchnam the sampled commodity is mentioned as "Sodium Benzoate". The Public Analyst mentions it as Solar Sodium Bejoate. Notice form VI and vendor's receipt mention it as "Sodium Bejoate". The consent for prosecution is in respect of "Sodium Benzoate". The case property which was produced before the Court in the evidence of PW1 F1 Bal Mukund had the declaration "INSTANT SODIUM BEJOATE, INGREDIENTS-SODIUM BENJOATE & SODIUM CHLORIDE, SOLAR SALES, QUTAB ROAD, DELHI,20 GMS".

It is clear that the prosecution and the consent for prosecution are in respect of "Sodium Benzoate" while the sample which is taken is of "Sodium Bejoate". There is an over whelming and glaring discrepancy in this regard which remains unexplained and unjustified and which cannot be ignored or brushed aside. As the sample taken and analysed are two different articles I am of the considered opinion that the prosecution is bad and cannot be successful. "

12 The Court had also summoned the case property. In the cross-

examination of PW-1, this case property had been opened and it had

been noted that the declaration on the sample case property read as

"Instant sodium bejoate, ingredients-sodium benjoate & sodium chloride, solar sales, Qutab Road, Delhi, 20 gms."

13 The Public Analyst in his report dated 24.08.1995 had however

noted the sample to contain 4.39% of sodium chloride. A sample of

"sodium benzoate" admittedly would not contain an ingredient of

sodium chloride. Rule 48-C which deals with misbranding provides the

list of those food articles which have to be certified by the Indian

Standard Institute Certificate Marks. The case property which was

produced in Court (being the sample purchased from the respondent)

was a sample of "sodium bejoate" containing the ingredients of "sodium

benzoate" and "sodium chloride"; thus not being a food article and not

meant for human consumption, it was not required to be ISI certified.

This is also the stand taken by the respondent in his statement under

Section 313 of the Cr.PC wherein on question No. 2 (which has been

noted supra), the respondent had clearly stated that what had been

purchased by the Food Inspector vide vendor‟s receipt (Ex.PW-1/A) was

a mixture of "sodium benzoate" and "sodium chloride" (wrongly typed

as "sodium bejoate"); he had reiterated that this sample was not meant

for human consumption as it was not a food article.

14 It is a settled rule of criminal jurisprudence that if there are two

views possible, the one favoring the accused must be adhered to. In this

case, the Court had correctly noted that there are glaring discrepancies in

the evidence which has been relied upon by the prosecution. The glaring

discrepancy in the documentary evidence being that in almost all the

documents of prosecution i.e. vendor‟s receipt, panchnama as also in the

CFSL report "sodium bejoate" has been mentioned but the consent for

prosecution has been obtained for "sodium benzoate". At so many

places, it cannot be a typing error. These discrepancies being glaring and

unanswered the benefit of this doubt must accrue in favour of the

respondent.

15 In this background, the impugned judgment does not call for any

interference. Appeal is without any merit. Dismissed.

INDERMEET KAUR, J

MARCH 10, 2014 A