Delhi High Court
Food Inspector vs Sanjay Kumar & Ors on 26 May, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 26.05.2015
CRL.L.P.456/2015
FOOD INSPECTOR ..... Petitioner
Versus
SANJAY KUMAR & 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 01.09.2001 passed by the Additional Chief Metropolitan
Magistrate-II, New Delhi, in CC No.134/07 whereby the respondents have been
acquitted of the charges levelled against them.
1. The facts herein briefly are, the Food Inspector R.K. Bhaskar purchased a
sample of Cow's Milk from the respondents on 22.08.2007 at about 06.30 p.m.
Thereafter, the Food Inspector divided the sample into three equal parts and
they were put in three separate clean and dry bottles. 40 drops of formalin were
added in each sample bottle and each bottle was separately packed, fastened and
sealed according to the PFA Act and Rules. The respondents' 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 because milk solids not fat
were less than prescribed minimum limit of 8.5%. 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.
2. The sole 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 said sample was not representative.
3. 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:-
"16. 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 14.09.07 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 - 6.3 %
Milk solids not fat - 7.01%
17. The second counterpart of the same sample
was analysed by the Director, Central Food
Laboratory, Pune dated 28.11.07 , the result of
analysis of second counterpart of the sample
commodity is as follows:-
Milk fat - 5.6%
Milk solids not fat - 8.16%
18. There is vast variation between the reports of
the Public Analyst and the Director, CFL in
respect of milk fat and milk solids not fat of
counterpart of same sample. No explanation has
come on record on behalf of the complainant in
respect of variation more than 0.3% in the reports
by two Analysts in respect of counterpart of same
sample. Thereby relying upon Kanshi Nath versus
State (supra), I am of the considered view that the
sample was not representative."
4. In view of the decision cited by the trial court, the argument 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 between the report of
the PA and the Director CFL. The State has not satisfactorily explained the said
variance.
5. I see no reason to differ with the conclusion arrived at by the Trial Court
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
