Delhi High Court
Food Inspector vs Praful Kumar on 9 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 09.04.2015
CRL.L.P.195/2015
FOOD INSPECTOR ..... Petitioner
Versus
PRAFUL KUMAR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms Isha Khanna, APP
For the Respondent : None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J. (ORAL)
1. The present is a petition for grant of leave to appeal against the impugned
order dated 06.02.2010 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.162/1993 whereby the respondent has been
acquitted of the charges levelled against him.
2. To briefly encapsulate, it is stated that Food Inspector Anil Kumar Dhir
purchased a sample of Mix Masala Cheese (Processed) from the respondent on
18.03.1993 at about 4 p.m. The sample consisted of three originally sealed
packets containing 200gms each. After taking the sample the Food Inspector
divided the sample into three equal parts by putting one packet as one
counterpart and each part containing the sample was separately packed, fastened
and sealed according to the PFA Act and Rules. The respondent's signatures
were also obtained on the paper slip and the wrapper of the sample. One
counterpart of the sample was sent to the Public Analyst in intact condition and
two counter parts were deposited with the LHA. Upon analysis the PA found
that the sample did not conform to standard because moisture exceeded the
prescribed maximum limit of 47% and milk fat of dry matter is less than the
minimum limit of 40%. Further there is violation of Rule 32(b) of PFA Act and
Rules. The respondent was charged under Section 2(ia)(a)(m) of PFA Act
punishable under Section 16(1)(a) read with Section 7 of the PFA Act and Rules
to which he pleaded not guilty.
3. The submission on behalf of the State is that the sample of Masala
Cheese (Processed) was represented and the said sample sent for analysis by
Director, CFL was stored in the prescribed manner. Further, it has also been
suggested that the delay in sending the sample for testing was not on account of
the petitioner. In this behalf the trial court has observed as follows:-
4. The Trial Court relied upon the decision of this court in State v Anil
Batra and Others: 2008(1) FAC 191 (DEL), wherein it was held as follows:-
"9. ........Learned Trial Court has relied upon one judgment
of the Hon'ble Supreme Court in 'Municipal Corporation of
Delhi v. Ghisa Ram 1975 (I) PFA cases 186. In that case
the complaint was filed in Court after about seven months
from the date of raid and taking of sample of milk product
(curd) from the shop of the accused which was on
20/09/1961. The complaint was filed on 23/05/1962.
Hon'ble Supreme Court held that in these circumstances,
the valuable right available to the accused under section
13(2) of the Act of having the sample tested at Central
Food Laboratory had stood denied to him. It was also
observed that ordinarily it was possible for the prosecution
to obtain the report of the Public Analyst and institute the
prosecution within 17 days of the taking of the sample. Mr.
Dudeja, learned APP had submitted that this judgment was
not applicable to the facts of the 7 present case since in that
case the Director of Central food Laboratory had found the
sample sent to him to be unfit for analysis because of
decomposition and because of that reason the accused
could not have the benefit of the report of the Director
which, if had been given, would have superseded the report
of the Public Analyst and so the Hon'ble Supreme Court
had held that the delay in launching the prosecution against
the accused had resulted in denial of the benefit of Section
13(2) of the Act to him while in the present case despite the
delay in the filing of the complaint in court the third
counter part of the sample which was sent for analysis, as
per the CFL report, did not conform to the prescribed
standard. So, learned APP contended, the acquittal of the
accused of the present case by the trial Court relying upon
the said judgment of the Hon'ble Supreme Court was
totally unjustified and not sustainable at all. However, in
my view the acquittal of the respondents in the present case
in view of the decision of the Hon'ble Supreme Court in
Ghisa Ram's case (Supra) cannot be said to be unjustified
because the crux of the judgment of the Hon'ble Supreme
Court is that prosecution in these kinds of cases should be
launched promptly. In that case reference was also made to
the opinion of an expert that if a food article, like curd, is 8
kept in a refrigerator and a preservative is added to the
sample the total period which may be available for making
analysis of that sample without decomposition will be six
months. In the present case, the third sample of the paneer
was sent to the Central Food Laboratory after the expiry of
more that in six months from the date when it was taken
from the shop of the respondent no. 1 and there is no
explanation forthcoming from the side of the prosecution
for that delay. It is admitted by the prosecution that the
sample was not kept in refrigerator but was kept in at room
temperature till the time from taking of the samples to
sending it to CFL."
5. Relying upon the aforesaid decision in Anil Batra (supra), the Trial Court
came to the conclusion that the prosecution had failed to establish that the
sample was representative. It was observed by the Trial Court in this behalf as
follows:-
"16.In the present case, it is clearly seen from the record
that the sample of Mix Masala Cheese ( Processed) was
analysed by the Public Analyst, Delhi on 11.4.93 i.e within
twenty four days from which the sample was lifted by F.I
Anil Kumar Dhir but complaint was filed on 19.8.93 and
the Director, CFL examined the second counterpart on
15.10.93. No explanation whatsoever came on record that
even after opinion of Public Analyst in respect of a sample
of Mix Masala Cheese (Processed), why period of more
than four months occurred by the department to launch the
prosecution against the accused, although, complainant was
aware that accused can exercise his right under Section 13
(2) of PFA Act only after institution of complaint, which is
also fatal to the case of complainant.
Whether the sample was not taken properly and the
right of accused under Section 13 (2) of PFA Act was
frustrated.
17. Ld. Defence counsel argued that sample was not
properly taken as it was required to be kept under
refrigeration condition as also mentioned on the label of the
sample commodity. PW-2 F.I. A.K. Dhir confirmed in his
cross-examination that the sample of three bricks was taken
from refrigerator. To a specific question as put by the Ld.
Defence counsel, PW-1 Sh. M.R. Grover, deposed that no
formalin was added in the sample commodity as the
packets were taken in sealed condition as they were having
preservative. DW-2 Dr. Dharampal , PHD in Dairy
Technology and Co-authored of Book of NCERT of Class
XII as Dairy Product II, deposed that processed cheese and
cheese spread should be stored in refrigerator and it will
deteriorate in 5-6 days at room temperature and if a suitable
preservative is added or the sample is sent under
refrigeration only then it can be correctly analysed after a
period of ten days. DW-2 further deposed that the chemical
composition of cheese changes, if it is not properly stored
and same may be the reason that Public Analyst found light
yellow and Director, CFL found pale brown colour of the
sample commodity. It is a matter of record that on Notice
in form VI Ex. PW1/B on which the label of sample
commodity was reproduced by the Food Inspector at the
spot, it was mentioned on the label that to eliminate
contamination stored under refrigeration. Thus from the
label of the sample commodity as well as from the
testimony of PW-2 F.I. A.K. Dhir, the sample commodity
was stored and to be stored in refrigerator. In connected
case, where a sample of slice cheese (processed) i.e C.C.
No. 129/93 was lifted on the same day under the
supervision of Sh. M.R. Grover, LHA, he confirmed in his
cross-examination that sample of slice cheese 10
(processed) was stored by the vendor in a freezer as same
would spoil outside the freezer. Thus, if the sample was
taken from refrigerator and it was mentioned on the label of
the sample commodity that to eliminate contamination, it
should be stored under refrigeration and admittedly sample
was stored at room temperature for about six months, itself
frustrated the right of the accused in obtaining the correct
analysis of the sample commodity from the Director, CFL.
Therefore, I am of the considered opinion that the sample
was not properly stored and due to the time of about four
months taken by complainant in filing the complaint after
report of the Public Analyst in sample of Mix Masla
Cheese ( Processed) , when admittedly the sample
commodity was stored in refrigerator and it was mentioned
on the label of the sample commodity that it should be
stored in refrigerator to avoid contamination, in fact
frustrated the right of the accused to get the correct analysis
of second counterpart under Section 13 (2) of the PFA Act
from the Director, CFL."
6. The argument made on behalf of the State by the learned APP regarding
the storage of the said sample holds no ground in view of the judgement of this
Court in Anil Batra (supra). As it has been clearly established that the sample
of Mix Masala Cheese (Processed) was not stored in refrigeration and therefore
the said sample decomposed. Further, the learned APP has failed to explain the
delay of almost four months in filing a complaint against the accused.
7. Consequently, the Trial Court came to the conclusion that the petitioner
herein has failed to prove that the sample was homogenized and representative
and resultantly acquitted the respondent.
8. I see no reason to differ with the conclusion arrived at by the Trial Court
passed based on the discussion extracted hereinabove. Consequently, the
present petition seeking leave to appeal is without merit and the same is
dismissed.
SIDDHARTH MRIDUL, J
APRIL 09, 2015
