State vs Shyam Sunder
2015 Latest Caselaw 6018 Del

$~R-13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment delivered on: 18th August, 2015

+                         CRL.A. No. 420/1998

STATE                                                          ..... Appellant
                     Represented by:    Mr.Amit Chadha, Additional
                                        Public Prosecutor for the State.

                     Versus

SHYAM SUNDER                                             ..... Respondent
            Represented by:             None.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the present appeal, the appellant has assailed the judgment dated 04.06.1997, whereby the respondent was acquitted by the learned Trial Court in Case No.314/89 under Sections 16(1)(1A) and 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as „PFA Act‟).

2. Learned Additional Public Prosecutor appearing on behalf of the State argues that the court below has not fairly considered the facts and circumstances of the present case as violation of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred as „PFA Rules‟) was unambiguously established and there was no scope for the learned Trial Court to acquit the respondent.

3. Learned Additional Public Prosecutor further argues that the court below failed to appreciate the law laid down by the Division Bench of this Court in case bearing Criminal Appeal No.111/1972, titled as „M.C.D. Vs. Shri Mohan Lal and Another' 1975(1) PFA Cases Page 182. Also failed to appreciate that the Director General Food Laboratory had found the sample to be adulterated because it contained Benzoic Acid-1358 PPM, which was in excess of the maximum prescribed limit of 750 PPM, as contained in Rule 55 of the PFA Rules for "Tomato and Other Sauces" and that there was contradiction between the opinions of Public Analyst and the Director, CFL, Mysore.

4. Further argued that the learned Trial Court had wrongly observed that violation of Rule 32(e) and (f) of PFA Rules was to be let off merely by giving a warning.

5. Facts of the case are that on 09.03.1989, team of officials of PFA Department had visited the business premises, i.e., M/s Biccha Ram Ram Vilash 8348, MM Road, New Anaj Mandi, Delhi. The respondent was found conducting the business at the aforesaid shop. Father and son both, proprietors and responsible for conducting day-to-day business, were made accused in the complaint filed by the Delhi Administration through Dr.P.K. Jaishwal, Local Health Authority. Sh. Biccha Ram died and proceedings against him stood abated on 07.11.1990. Food Inspector A.K.Dhir had purchased samples of three bottles of vegetable sauce after due payment from respondent Shyam Sunder for analysis. On visual inspection, it was revealed that there were identical label declaration on all the bottles and no batch number/code number/business address and month/year of manufacturing/packing was affixed on any of the three bottles. Samples from each of the bottle was separately packed, marked

and sealed in compliance of the formalities prescribed under the PFA Act and Rules. One counterpart of the sample was sent to the Public Analyst for analysis, who in terms of his report dated 20.03.1989 opined that sample analyzed by him was adulterated because of presence of coaltar dye in violation of Rule 32 (e) and (f) of PFA Rules.

6. As per Public Analyst‟s report Ex.PW 1/F, the sample was declared not conforming to the standard because the same was coloured with coaltar dye and there was violation of Rule 32 (e) and (f) of PFA Rules as the bottles were without code number and date of packing. On the other hand, as per the certificate of Director, CFL, Mysore, Ex.PX, the sample was found not conforming to the standard only on account of presence of Benzoic Acid content upto 1358 PPM which exceeds the maximum specified limit of 750 PPM.

7. As per provisions of Section 13(3) of PFA Act, the certificate of Director CFL, supersedes the report of Public Analyst, however, in case of wide variation and divergence in the opinion of two experts, the certificate of Director CFL can be compared with the report of the Public Analyst so as to come to a conclusion if the two counterparts of the sample were representative of each other.

8. It is not disputed that the Public Analyst has not detected the presence of Benzoic Acid and in fact has declared the sample not conforming to the standard only on the ground of presence of coaltar dye vide its report Ex. PW1/F and whereas the Director CFL, Mysore, in his certificate Ex.PX had not detected any colour and in fact specifically opined that added artificial colouring matter „as absent‟.

9. Accordingly, the learned Trial Court had opined that in case two counterparts of sample were of same lot, then the two experts might have

detected the similar data in the two samples of vegetable sauce, which categorically showed that the samples were not homogenous and prosecution was not right in claiming that two counterparts of sample bottles were of same lot. Also recorded, the aforesaid fact could be gathered from the case of the prosecution that on two counterparts of the sample there was no mention of batch number and date of packing. Moreover, there was no evidence on the file to show that the two counterparts of sample were of same lot. In addition, at the time of sampling, i.e., in notice in Form VI, Ex.PW1/B, it was not mentioned that the sampled commodity was of same lot.

10. It is pertinent to note that, at the time of sampling, the respondent had not stated that the sampled commodity belongs to same lot. Thus, the learned Trial Court opined that when the sampled commodity did not belong to same lot, then the proper procedure which ought to have been followed by the Food Inspector for taking the sample and to mix the contents of the three sample bottles so as to make a homogenous sample. Thus, it established that the Food Inspector had not properly taken the sample in the present case and there was violation of provisions of Rule 22-A of PFA Rules.

11. Moreover, it is the policy of the PFA Department to give warning to the persons violating the provisions of Rule 32(e) and (f) of PFA Rules for the first time. Besides none of the witnesses examined by the prosecution stated that he had seen the respondent manufacturing or packing the sampled commodity at his premises. Thus, it cannot be established that the sampled commodity in the present case belongs to the same lot.

12. In view of the facts discussed above and the evidence appreciated

by the learned Trial Court, I do not find any discrepancy in the judgment dated 04.06.1997.

13. Accordingly, the present appeal being devoid of any merit is dismissed.

SURESH KAIT (JUDGE) AUGUST 18, 2015 sb