Food Inspector vs Sabir Ali
2016 Latest Caselaw 2797 Del

Citation : 2016 Latest Caselaw 2797 Del
Judgement Date : 18 April, 2016

Delhi High Court

Food Inspector vs Sabir Ali on 18 April, 2016

#5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Judgment delivered on: April 18, 2016

+      CRL.L.P. 530/2015


FOOD INSPECTOR                                               ..... Petitioner

                             Versus

SABIR ALI                                                    ..... Respondent

Advocates who appeared in this case:

For the Petitioner    : Mr. Radhika Kolluru, 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 30.07.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief

Metropolitan Magistrate-II, New Delhi, in CC No. 61/06 whereby the

respondent has been acquitted of the charges levelled against them under

sections 2(ia)(a)&(m) punishable under section 16(1)(a) read with section 7 of

the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the

'PFA Act').

2. The facts herein briefly are, the Food Inspector Shri N.N. Sharma

purchased a sample of 'cow's milk' from the respondent, Sabir Ali s/o Sh.

Shamshad Ali at M/s Kwality Milk Corner, Shop No. 2168, Sarai Khalil, Sadar

Bazar, Delhi-6, on 08.11.2005 at about 04.30 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 (hereinafter referred to as 'PA') 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 because 'milk solids not fat'

was less than the minimum limit of 8.5%. On 17.03.2006, the respondent no. 1

moved an application u/s 13(2) PFA Act, and a second counterpart of the

sample was examined by the Director, CFL. As per the report of the Director,

CFL, the milk solids not fat quantity was found to be within prescribed limit

however, the milk fat quantity was found to be not within the prescribed limit.

3. The respondents were charged under Sections 2(ia)(a) and 2(ia)(m)

punishable under Section 16(1) read with Section 7 of the PFA Act and Rules,

to which they 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 respondents that there was vast variation between the report of PA and

the Director, CFL which establishes that the sample was not representative.

5. On the other hand, it was argued on behalf of the leave petitioner that

since the CFL report was conclusive on all aspects, there was no need for the

trial Court to have looked at the PA report in this behalf.

6. 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."

7. 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 find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 24.11.05 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                    - 4.2%

                    Milk Solids Not Fat -       7.71%

16. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 24.4.06, the result of analysis of second counterpart of the sample commodity is as follows:

                    Milk Fat                    - 2.64%

                    Milk Solids Not Fat -       9.90%

17. 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. Public Analyst found the sample non- conforming to standard as milk solids not fat were less then the prescribed standard while the Director, CFL found solids not fat above prescribed standards but he did not find the milk fat as per prescribed standards. No explanation has come on record on behalf of the complainant in respect of divergent reports by two Analysts in respect of counterpart of same sample. Thereby relying upon Kanshi Nath vs. State (Supra),

I am of the considered view that the sample was not representative."

8. 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

between the report of the PA and the Director CFL in terms of the quantity of

the milk solids not fat and milk fat. The State has not satisfactorily explained

the said variance.

9. 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.

10. I see no reason to differ with the conclusion arrived at by the Trial Court

passed based on the discussion extracted hereinabove. Consequently, the