Delhi High Court
Food Inspector vs Shakti Vijay Jain & Ors on 24 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 24.04.2015
CRL.L.P.261 /2015
FOOD INSPECTOR ..... Petitioner
Versus
SHAKTI VIJAY JAIN & ORS ..... 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 06.05.2010 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.161/98 whereby the respondents have been
acquitted of the charges levelled against them.
2. The facts herein briefly are, the Food Inspector M.K. Gupta purchased a
sample of Pure Refined Mustard Oil from the respondents on 26.08.1998 at
about 4:00 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 does not conform to the standard laid down under item
No.A.17.06 read along with A.17.15 because iodine value is more than the
maximum prescribed limit of 112. The respondents were 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 only 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:-
15. The difference of analysis in respect of
Iodine value and saponification value in respect of
sample of Pure Refined Mustard Oil by the reports
of two analyst are not within acceptapable range of
0.3%. There is difference of 0.7 Deg. C. In B.R.
Reading and 3.2 Deg. C. In B.T.T. value. No
explanation has come on record on behalf of the
complainant in respect of variations between two
reports in respect of counterpart of same sample.
The supplementary report of the Public Analyst
that higher iodine value does not make the product
unfit for human consumption and does not contain
any harmful ingredient and therefore the sample
article is not injurious to health, rather supports the
defence of accused persons that there was no man
made adulteration in the sample commodity and
composition of all does not remain static
throughout the year. Thereby relying upon Kanshi
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 reveals substantial variance in
iodine 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 respondents.
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
