Delhi High Court
Food Inspector vs Vijay Kumar on 15 May, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 15.05.2015
CRL.L.P.345/2015
FOOD INSPECTOR ..... Petitioner
Versus
VIJAY 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 22.07.2010 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.54/02 whereby the respondent has been
acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Mr. Satish Kumar Gupta
purchased a sample of Masoor Dal from the respondent on 15.03.2002 at about
04.00 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 signature was 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 that
the sample was adulterated as it was coloured with synthetic colouring matter
viz. Sunset Yellow FCF. The respondent was charged under Section 2(ia)(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 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:-
"17. In view of the above judgment of the Hon'ble
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 02.04.2002
wherein the opinion given by the Public Analyst, Delhi
that the sample is adulterated because it is coloured with
synthetic colouring matter viz. Sunset Yellow FCF.
However, the second counterpart of the same sample
when analysed by the Director, Central Food Laboratory,
Pune on 24.02.2003, no synthetic colour was found by
the Director, CFL. Similarly, Public Analyst did not find
any Kesari/Lakh Dal in the sample commodity while
Director, CFL, in the counterpart of the same sample
found 0.04% Lakh Dal by weight and only due to this
opined the sample non-conforming to standard. One
Analyst found artificial colouring matter in the
counterpart of same sample. PW-2 F.I. Satish Kumar
Gupta confirmed in his cross-examination that sample
should be representative and analytic result of two
Analysts should be identical. To a specific question as
put by the Ld. Defence Counse, PW-2 F.I. Satish Kumar
Gupta deposed that he cannot say that if one Analyst
finds colour sunset yellow FCF in one counterpart and
another Analyst did not find the same, it is indicative of
the fact that the sample was not representative. No
explanation whatsoever has come on record on behalf of
the complainant in respect of divergent analytic results in
respect of artificial colouring matter and presence of
Lakh/Kesari Dal by the two Analyst in respect of
counterpart of same sample. Thereby relying upon
Kanshi Nath versus State (supra), I am of the considered
opinion that the sample was not representative."
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 shows substantial variance in
the PA report and CFL report. The PA report reveals that the sample was
adulterated with synthetic colour matter i.e. sunset yellow FCF. The same has
been found absent in the report of the Director, CFL. The State has not
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
MAY 15, 2015
dn
