Delhi High Court
Food Inspector vs Kali Charan Brij Mohan & Ors on 26 May, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 26.05.2015
CRL.L.P.459/2015
FOOD INSPECTOR ..... Petitioner
Versus
KALI CHARAN BRIJ MOHAN & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms Isha Khanna, APP
For the Respondents : 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 04.01.2010 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.03/1999 whereby the respondents have
been acquitted of the charges levelled against them.
2. To briefly encapsulate, it is stated that Food Inspector S.P. Singh
purchased a sample of mustard oil from the respondents on 12.08.1998 at about
01.30 p.m. After taking the sample the Food Inspector divided the sample into
three equal parts by putting them in clean and dry bottle and each bottle
containing the sample was separately packed, fastened and sealed according to
the PFA Act and Rules. The respondents' signatures were also obtained on the
paper slip and the wrapper of the sample. 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 the PA found that the said sample does
not conform to standard as it shows presence of argemone oil. The respondents
were charged under Section 2(ia)(a)(m) of PFA Act punishable under Section
16(1)(a) read with Section 7 of the PFA Act and Rules to which they pleaded
not guilty.
3. The only 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
respondents 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:-
"15. 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 9 the
Public Analyst dated 18.8.98 wherein the opinion
given by the Public Analyst, Delhi was that the
sample does not conform to the standards and the
result of the Public Analyst was as follows:-
B.R at 40 Deg. C. : 60.0
Iodine value : 111.08
Saponification value : 170.64
Acid value : 1.85 Test for
Argemone oil : Positive
B.T.T ( Acetic acid method ) : 27.5 Deg. C.
16. The second counterpart of the same sample
was analysed by the Director, Central Food
Laboratory, Calcutta on dated 5.7.99 , the result of
analysis of second counterpart of the sample
commodity is as under :
Butyrorefractometer reading at 40 Deg. C - 59.6
Saponification value - 176.5
Iodine value - 107.3
acid value - 2.11
Test for Argemone oil by T.L.C. - Negative
B.T.T ( Acetic acid method ) - 28.2 Deg. C.
17. The two analytic reports of the Public Analyst
and the Director, CFL in respect of the same
counterpart of the sample commodity are divergent
to a great extent. One counterpart of the sample
commodity shows BTT value in the prescribed
limit while another counterpart of the same sample
commodity shows BTT value above the prescribed
limit. Further, Public Analyst finds the test for
argemone oil 'positive' and due to only this reason
declared the sample non- conforming to the
standard of mustard oil, while Director, CFL, finds
the test for argemone oil 'Negative' in the
counterpart of the same sample commodity.
Complainant has 10 failed to explain how the two
analytic reports in respect of same counterpart of
the sample commodity are divergent to such an
extent. Thereby relying upon Kashi Nath versus
State (supra), I am of the considered view that the
sample was not representative as to why divergent
reports have been given by two Analysts."
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 reveals substantial variance in
PA report and the CFL report. The PA report delineates that the test of
argemone oil is positive and the BTT value is within the prescribed limit.
Whereas in the report of Director CFL the test for argemone oil is negative and
BTT value is above the prescribed limit. The State has not satisfactorily
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 respondents.
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 26, 2015
dn
