State vs Mahinder Prakash
2014 Latest Caselaw 1276 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment: 10.03.2014.
+       CRL.A. 199/2006
        STATE
                                                         ..... Appellant
                    Through             Mr. Varun Goswami, APP
                    versus
        MAHINDER PRAKASH
                                                         ..... Respondent
                           Through      None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This appeal has been filed by the State impugning the judgment of

the Sessions Judge which had ordered the acquittal of the respondent.

2       The facts noted are herein as under:-

(i)     A sample of 375 grams of mustard oil had been purchased on

06.08.1998 from the shop of the respondent at Karol Bagh. The oil was

taken from an open tin. The sample was taken after proper

homogenization by mixing the oil; the Food Inspector divided the

sample in three equal parts and put them in three separate clean and dry

bottles; they were thereafter sealed. The panchnama was prepared at the

spot.

(ii) One counterpart of the sample was sent to the Public Analyst on

07.08.1998 and the report of the Public Analyst is dated 13.08.1998. It

reads herein as under:-

"I further certify that I have/have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows:- ANALYTICAL DATA:

The sample is clear, free from rancidity and suspended matter.

1. B.R. at 40 oC : 60.2

2. Iodine value : 109.89

3. Sapnification value : 171.45

4. Acid value : 1.75

5. Baudouin‟s test : Neg.

6. Test for cotton seed oil: Neg.

7. Test for argemone oil: Positive

8. Polybromide test : Neg.

9. Test for castor oil : Neg.

10. Test for mineral oil : Neg.

11. Test for HCN : Neg.

12. Test for synthetic colouring matter : Neg.

13. Test for TOCP/TCP : Neg.

14. B.T.T. (Acetic acid method): 25.6 oC and am of the opinion that the sample does not conform to the standards laid down under item No. A.17.06 of Appendix „B‟ of PFA Rules, 1985 because sample shows presence of Argemone oil."

(iii) The accused in the course of trial has exercised his right under

Section 13 (2) of the Prevention of Food Adulteration Act (PFA) and a

second sample was accordingly sent to the Director, CFL who has

submitted his report dated 25.09.1998 duly signed by him on

05.11.1998. This report reads herein as under:-

"Certified that the sample (s), bearing number KGR/LHA/2703,S/07/98 purporting to be the sample/samples of Mustard Oil received on 09.08.1998 with Memorandum No.80-S/MJ/MM/PHC dated 25.09.1998 from Sh. Manoj Jain, Metropolitan Magistrate, Room No. 14, Patiala House, New Delhi was in a condition fit for analysis and has/have tested/analysed and that the result/results of such test (s) analysis is/are stated below:-

Physical Examination                              :
Moisture                                          :
Butyrorefractometer reading at 40 oC              :      59.6
Saponification value                              :      178.7
Lodine value                                      :      105.7
Acid value                                        :      3.01
Bellier test
(Turbidity temperature acetic acid method)        :      29.2 oC
Baudouin test (for sesame oil)                    :      Negative
Polybromide test                                  :      Negative
Test for mineral oil                              :      Negative
Test for Cottonseed oil                           :      Negative
Test for Argemone oil by TLC                      :      Negative
Test for Hydrocyanic acid                         :      Negative
Test for Castor oil by TLC                        :      Negative
Phosphorus                                        :
Test for Tri-Ortho-Cresyl Phosphate               :

 Cloud Point                                        :
Flash Point (Pensky-Marten closed method)          :
Added colouring matter                             :        Absent
Opinion:      The sample of Mustard oil is adulterated.".

(iv) The Trial Court had noted the correct legal position; position

being that once an accused has exercised his right under Section 13 (2)

of the PFA Act that report would be binding. The Court nevertheless can

look back to the report of the Public Analyst to find out the variations in

the two reports; the quality of the analysis and the variations contained

therein can be looked in. The Court had noted that there were marginal

variations in the two reports; while the saponification value as was

prescribed is 168 to 177 but it was found to be 178.7; the Bieller test had

recorded 29.2 oC while the range was between 23.0 to 27.5 oC. The

Court had in fact gone on to conclude that the errors in the

saponifacation and Bieller test were marginal; however on the facts of

the case even while noting the variations to be marginal had ordered the

acquittal of the respondent.

(v) The judgment appears to be contradictory in itself. The trial Judge

has committed an illegality; while noting the limits in the saponifacation

and in the Bieller test to be marginal has yet gone on to acquit the

accused. However this Court is of the view that the acquittal of the

respondent should not be disturbed; however the reasons are different as

those recorded by the trial Judge.

(vi) A Bench of this Court in 2005(3) JCC 1637 Kanshi Nath Vs. State

as also another judgment of this Court reported as 2008 (1) JCC 582

State Vs. Mahender Kumar & Ors. had noted that where the margin

between two reports i.e. the report of the Public Analyst and the

Director, CFL is more than 0.3%, such a margin is not insufficient and

where there is no justifiable explanation for the difference in the two

reports, the respondent would be entitled to a benefit of doubt and a

consequent acquittal.

(vii) In the instant case, it has been noted that Public Analyst has

recorded a saponification value of 177.45 as against 178.7 recorded by

the Director, CFL. The range is between 168-177. The Bieller test

(Acetic acid method) has been recorded by the Public Analyst to be 25.6 o C wherein the Director CFL has recorded it to be 29.2 oC; the standard

is between 23 oC to 27.5 oC. The Public Analyst on the basis of the said

report had reported that the sample was adulterated because of the

presence of argemone oil; in the report of the Director, CFL, the test for

argemone oil had recorded negative.

(viii) In this background, noting the huge difference in the two reports,

it is clear that the sample was not a representative sample. (see. Kanshi

Nath (supra) and State Vs. Mahender Kumar (supra)

3 There is also no gain saying to the fact that an appeal against the

acquittal calls for an interference only where there is a patent illegality

or a perversity noted in the impugned judgment. None of this has been

brought to the notice of the Court.

4 In this background, the acquittal of the respondent calls for no

interference. Appeal is without any merit. Dismissed.

INDERMEET KAUR, J MARCH 10, 2014 A