Delhi High Court
Delhi Administration vs Christopher Jacub on 16 July, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.07.2015
CRL.L.P.531/2015
DELHI ADMINISTRATION ..... Petitioner
Versus
CHRISTOPHER JACUB ..... 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 21.10.2009 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.46/94 whereby the respondent has been
acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Jeet Ram purchased a
sample of approximate 600 gms of processed cheese from the respondent on
02.08.1993 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 did not conform to standard as moisture
exceeds the prescribed maximum limit of 47% and milk fat of dry matter is less
than the minimum prescribed limit of 40.0%. 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.
3. 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.
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:-
"21. 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
find whether the sample was representative or not.
In the present case, as per report of the Public
Analyst dated 24.08.93 wherein the opinion given
by the Public Analyst, Delhi was that the sample of
processed cheese does not conform to the standard
and the result of the Public Analyst was as
follows:-
Moisture - 48.23%
Milk fat on dry matter - 35.56%"
6. 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.
7. 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 16, 2015
