Delhi High Court
Food Inspector vs Gurdev Singh & Ors. on 7 July, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 07.07.2015
CRL.L.P.525 /2015
FOOD INSPECTOR ..... Petitioner
Versus
GURDEV SINGH & ORS. ..... 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 08.12.2009 passed by Shri Sanjeev Kumar Malhotra, Additional
Chief Metropolitan Magistrate-II, New Delhi, in CC No.62/97 whereby the
respondent has been acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Shri S.B.Sharma
purchased a sample of 'fresh pasteurized full cream milk' from the respondent
on 16.07.1996 at about 06.15 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 did not conform to standards as
laid down because it shows presence of skimmed milk powder.
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 he 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:-
"18. In the present case, as per report of the
Public Analyst dated 08.08.96 Ex.PW1/E, it was
opined by the Public Analyst that the sample does
not conform to the standards laid down under
A.11.01.11 of Apendix B of the PFA Rules 1955
because it shows that presence of Skimmed Milk
Powder and the analytic result of the Public
Analyst was as under:
Fat : 6.3%
Solid not fat : 9.55%
Test for starch and sugar : Negative
Test for SMP : Positive
19. However, the Director, CFL examined the
sample on 10.09.97 but no skimmed milk powder
was detected in the second counterpart of the
sample and as per report of the Director CFL milk
fat was found 4.3% and milk solids not fat was
found 7.5% against the minimum prescribed.
There is a vast variation in the reports of the Public
Analyst and the Director, CFL. Complainant has
failed to show any explanation in respect of the
variation between two reports in respect of the
counterpart of the same sample. Thereby relying
upon Kanshi Nath versus State (supra), I am of
the considered view that the sample was not
representative due to which diversion report were
given by two experts."
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 the percentage of 'milk fats' and 'solids not fat' 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
