Delhi High Court
Food Inspector vs Ravinder Singh on 7 July, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 07.07.2015
CRL.L.P.522 /2015
FOOD INSPECTOR ..... Petitioner
Versus
RAVINDER SINGH ..... 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 02.01.2010 passed by Shri Sanjeev Kumar Malhotra, Additional
Chief Metropolitan Magistrate-II, New Delhi, in CC No.316/03 whereby the
respondent has been acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Sanjiv Kumar Gupta
purchased a sample of Ice Cream from the respondent on 12.05.2003 at about
11.30 a.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 SDM/LHA. Upon analysis it was
found by the PA that the sample did not conform to standards as laid down
because sample shows the presence of milk fat and total solids is less than the
prescribed minimum limit of 10.0% & 36.0% respectively.
3. The respondent was charged under Section 2(ia)(a) & (m) of PFA Act
punishable under Section 16(1) read with Section 7 of the PFA Act and Rules to
which they pleaded not guilty.
4. 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.
5. 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."
6. 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:-
"17. In view of 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
ascertain whether the sample was representative or
not. In the present case, as per report of the Public
Analyst dated 26.5.03 wherein the opinion given
by the Public Analyst, Delhi was that the sample
does not conform to the standard and the result of
the Public Analyst was as follows:-
Milk fat -5.34%
Total solids - 28.88%
Protein - 3.82%
18. The second counterpart of the same sample
was analysed by the Director, Central Food
Laboratory, Pune dated 18.10.03, the result of
analysis of second counterpart of the sample
commodity was that milk fat was found 2.6% and
total solids were found 33.7%. The difference of
analysis in respect of milk fat and total solids in
respect of sample of ice-cream by the report of two
analysis are not within acceptable range of .3%.
Thereby relying upon Kashi Nath versus State
(supra), I am of the considered view that the
sample was not representative due to which
different report were given by two experts in
respect of counterpart of the same sample."
7. 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, total solids and protein value between the report of the PA and the
Director CFL. The State has not satisfactorily explained the said variance.
8. 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.
9. 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
JULY 07, 2015
