Delhi High Court
Delhi Administration vs Sanjay Jain & Others on 9 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 09.04.2015
CRL.L.P.197/2015
DELHI ADMINISTRATION ..... Petitioner
Versus
SANJAY JAIN & OTHERS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms Isha Khanna, APP
For the Respondents : 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 17.11.2009 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.162/1999 whereby the respondents have
been acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector S.P.Singh purchased a
sample of Mustard Oil from the respondents on 29.01.1999 at about 1:30 p.m.
Thereafter, the Food Inspector divided the sample into three equal parts, each
bottle 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 LHA slip and the wrapper of the sample bottles. 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 it was found by
the PA that the sample did not conform to standard because iodine value is more
than the maximum prescribed limit of 112 and saponification value is also more
than the maximum prescribed limit of 117. The BTT is also less than the
minimum prescribed limit of 23 degree C. The respondents were charged under
Section 2(ia)(a)(b)(d)(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 sole contention that was raised before the Trial Court was whether
the sample taken was representative or not. It was pointed out on behalf of the
respondents that there was vast variation between the report of PA and the
Director, CFL which establishes that the sample was not representative.
4. The Trial Court relied upon the decision of this court in Kanshi Nath vs.
State, 2005 (2) FAC 219, Delhi High Court, wherein it was held as follows:-
"............. To this extent, the argument raised by
Mr. Sharma that once the certificate of the
Director, CFL is obtained, then that is final and
conclusive and the Public Analyst's report cannot
be looked into at all for any purpose whatsoever, is
not quite tenable. If the variation in the two reports
is substantial enough, then the Public Analyst's
report can certainly be looked into to establish this
variation so as to support the contention of the
petitioner that the sample was not representative.
As indicated above, the Director, CFL who was
examined as CW-1 in cross-examination, has
clearly stated that if the content of common salt as
quantified by the two experts would have a
variation of more than- Y.3% then the samples
would not be representative. This is an opinion of
an expert and one has to go by it. In the facts of the
present case, we find that the variation, as
indicated above, is more thanY.3%. Therefore, on
the facts of the present case, it can be said that 7
the variation is beyond the acceptable range and
would clearly imply that the samples were not
representative. In view of this finding and in the
background of the law which is well settled, no
conviction can be sustained."
5. Placing reliance upon the aforesaid decision of this court in Kanshi Nath
(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:-
"17. In view of above judgment of the Hon'ble
Delhi High Court, I find no force in the contention
of the Ld. SPP that the report of the Public Analyst
and the Director, CFL cannot be looked into to
ascertain whether the sample was representative or
not. In the present case, as per report of the Public
Analyst dated 13.2.99 Ex.PW1/F wherein the
opinion given by the Public Analyst, Delhi was
that the sample does not conform to the standards
and the result of the Public Analyst was as
follows:-
B.R at 40 Deg. C.: 60.5
Iodine value: 112.40
Saponification value: 185.99
Acid value: 2.71
B.T.T ( Acetic acid method ) : 22 Deg. C.
18. The second counterpart of the same sample
was analysed by the Director, Central Food
Laboratory, Calcutta on dated 14.2.2000, the result
of analysis of second counterpart of the sample
commodity is as under :
B.R. at 40 Deg. C. : 58.8
Iodine value : 110.2
Saponification value : 184.5
Acid value : 3.37
B.T.T ( Acetic acid method ) : 22.4 Deg. C.
19. There is vast variation between the reports of
the Public Analyst and the Director, CFL in
respect of the acid value, iodine value,
saponification value and B.R. Reading in respect
of the counterpart of the same sample. As per
report of the Public Analyst, the sample was found
non-conforming to standard as Iodine value was
also found more than the prescribed limit of 112
but in the report of the Director, CFL the Iodine
value was found within the prescribed limit i.e.
110.2. Complainant has failed to explain how the
two analytic reports in respect of same counterpart
of the sample commodity are divergent to such an
extent. Thereby relying upon Kashi Nath versus
State (supra), I am of the considered view that the
sample was not representative."
6. In view of the decision of this court in Kanshi Nath (supra) the
arguments made on behalf of the State by the learned APP that the trial court
should have only considered the CFL report and not the PA report holds no
ground as the perusal of the trial court judgment delineates substantial variance
between the report of the PA and the Director CFL. The PA report states that
the iodine value of the sample is more than the prescribed limit whereas in the
CFL report the iodine value is within the prescribed limit. The learned APP has
failed in explaining the said variance.
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
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