Delhi High Court
Delhi Administration vs Akhilesh Kumar on 28 April, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 28.04.2015
CRL.L.P.331/2015
DELHI ADMINISTRATION ..... Petitioner
Versus
AKHILESH 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 30.11.2009 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.118/93 whereby the respondent has been
acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Sunil Kumar Gupta
purchased a sample of Khoya from the respondent on 13.02.1993 at about 08.00
a.m. Thereafter, the Food Inspector divided the sample into three equal parts
and 20 drops of formalin were added to each. Thereafter 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 that the sample did not conform to
standard laid down as the sample showed that the milk fat is less than the
prescribed minimum limit of 20%. Further, it contains starch which is not a
natural constituent of milk. 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 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
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:-
"15. In view of the 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
find whether the sample was representative or not.
In the present case, as per the report of the Public
Analyst dated 26.2.93 Ex.PW-1/B wherein the
opinion given by the Public Analyst, Delhi was
that the sample was not conforming to the standard
because milk fat was found 7.72% less then the
prescribed minimum limit of 20% and further test
for starch was found positive. However, second
counterpart of the same sample was analysed by
the Director, Central Food Laboratory, Mysore on
10.8.93 and the result of analysis of second
counterpart of the sample commodity was that
milk fat was found 6.6% and test for starch was
found negative. Both the reports are divergent to a
great extent as Public Analyst found starch in the
sample commodity while the Director, CFL did not
find any starch in the counterpart of the same
sample. Complainant has failed to explain why the
analytic result of the counterpart of the same
sample analysed by the two Analyst are divergent
to such an extent. The difference of analysis in
respect of milk fat in respect of sample of Khoa by
the report of two analysts is not within acceptable
range of 3%. Thereby relying on Kanshi Nath
versus State (Supra), I am of the considered view
that the sample was not representative due to
which divergent reports were given by two experts
in respect of counterpart of the same sample."
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 milk fat between the report of the PA and the Director CFL. Further, the PA
report shows the presence of starch whereas as the presence of the same is not
shown in the report of 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 28, 2015
dn
