Delhi High Court
Food Inspector vs Kishan Kansal on 24 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 24.04.2015
CRL.L.P.256/2015
FOOD INSPECTOR ..... Petitioner
Versus
KISHAN KANSAL ..... 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 26.09.2012 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.319/03 whereby the respondent has been
acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Arun Kumar purchased a
sample of Laddoo from the respondent on 28.03.2003 at about 3.00 p.m.
Thereafter, the Food Inspector divided the sample into three equal parts and
thereafter they were put in three separate clean and dry bottles. 40 drops of
formalin were added in each sample bottle and each bottle 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 was adulterated because total
dye content of synthetic colour used exceeded the prescribed maximum limit of
100 PPM. The respondent was charged under Section 2(ia)(a)(j)(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:-
"14. Now coming to the facts of the present case,
it be seen that there are variations in the analytical
results of both the reports. The PA found
Tartrazine & Sunset Yellow FCF (Total Dye
Content 349.77 PPM). However, the quantity of
Tartrazine & Sunset Yellow FCF each have not
been mentioned by the PA. It has not been
specified by the PA as to in how much quantity
these colours were present? And how he
ascertained the value of Total Dye Content?
Further the Director CFL found the Total Dye
Content 223.5 PPM (Tartrazine 158.5 + Sunset
Yellow FCF 65 = Total Dye Content 223.5 PPM)
i.e. less than that of PA's findings. Here, it be seen
that though both the reports found the sample
having been coloured with synthetic colours i.e.
Tartrazine & Sunset Yellow FCF, however, there
are variations so far as the values are concerned. It
has nowhere been explained by any of the
prosecution witnesses as to how and why
variations to such an extent happened to be there in
the analytical results of both the experts. Thus, a
doubt stands casted upon the prosecution story
more particularly w.r.t. the representative character
of the sample in question. Had it been a
representative sample, such wide variations
between the two reports would not have been
possibly there."
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 tartrazine and sunset yellow FCF 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 24, 2015
dn
