Delhi High Court
Delhi Administration vs Raju Birla on 22 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 22.04.2015
CRL.L.P.309/2015
DELHI ADMINISTRATION ..... Petitioner
Versus
RAJU BIRLA ..... 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 09.12.2009 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.174/1999 whereby the respondent has 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 respondent on 29.07.1999 at about 5:00 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 as B.R., iodine value, B.T.T.
are less than the minimum limit of 58.0, 96 and 23 deg. C respectively. The
respondent was 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 solitary 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 respondent 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:-
21. There is vast variation between the report 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. PW-2 F.I.
S.P. Singh to a specific question as put by the Ld.
Defence Counsel, deposed that he cannot comment
that saponification value & BTT increase with the
lapse of time. DW-1 Sh. Rakesh Luthra, Scientist,
at Ganesh Scientific Research Foundation, Delhi
deposed that he had personally analysed 1000
samples of mustard oil and further deposed that
due to environment and lapse of time, chemical
changes are taking place in every food commodity
with the lapse of time, saponification value go
increase and B.R. reading would decrease.
Complainant has failed to explain the variation
between two analytic reports in respect of
counterpart of the same sample. 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
in B.R. Reading, iodine value, acid value and saponification value between the
report of the PA and the Director CFL. The State has not satisfactorily
explained 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 22, 2015
dn
