Delhi High Court
Food Inspector vs Ram Niwas Gupta & Ors. on 21 March, 2016
#13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 21, 2016
+ CRL.L.P. 297/2015
FOOD INSPECTOR ..... Petitioner
Versus
RAM NIWAS GUPTA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. 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 30.01.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief
Metropolitan Magistrate-II, New Delhi, in CC No. 142/98 whereby the
respondents have been acquitted of the charges levelled against them under
section 7/16 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 Raj Pal Singh
purchased a sample of 'Mustard Oil' from the respondent No. 1, Ram Niwas
Gupta s/o Ram Saroop Gupta at M/s R.K. Traders, 0/9 Madangir, New Delhi-62
on 20.08.1998 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 No. 1'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 laid down under item No.
A.17.06 of Appendix B of PFA Rules, 1955 because the sample showed the
presence of argemone oil. On 22.10.1998, the respondent No. 2 moved an
application u/s 13(2) PFA Act, and a second counterpart of the sample was
examined by the Director, CFL, Calcutta. As per the report of the Director,
CFL, the sample did not conform to the standards as the saponification value
(178.3) was beyond the prescribed limit (168-177 in the standard of mustard
oil). The BTT (30.2 Deg. C.) was also found to be beyond the prescribed limit
of 27.5 deg. C. However, as per the report of Director, CFL, there was no
argemone oil in the sample.
3. The respondents were charged under Section 2(ia)(a)(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 appellant 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 ascertain
whether the sample was representative or not. In the
present case as per report of the Public Analyst dated
30.08.98 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: 108.02
Saponification Value: 170.21
Acid Value: 1.06
Test for Argemone Oil: Positive
BTT (Acetic Acid Method): 26.8 Deg. C.
16. The second Counterpart of the same sample was
analysed by the Director, Central Food Laboratory,
Calcutta on dated 15.2.1999, the result of analysis of
second counterpart of the sample commodity is as
under:
Butyrorefractometer Reading at 40 Deg. C.- 59.7
Saponification Value- 178.3
Iodine Value- 107.5
Acid Value- 5.93
Test for Argemone Oil by TLC: Negative
BTT (Acetic Acid Method): 30.2 Deg. C.
17. The two analytic reports of the Public Analyst and
the Director, CFL in respect of the counterpart of the
same sample commodity are divergent to a great
extent. One counterpart of the sample commodity
shows BTT value and saponification value in the
prescribed limit, while another counterpart of the same
sample commodity shows BTT value and
saponification 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-confirming 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 failed to explain how the
two analytic reports in respect of the same counterpart
of the sample commodity are divergent to such an
extent. Thereby, relying upon Kanshi Nath vs. 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."
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 presence of
argemone oil, the difference in the saponification value and BTT value. 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
present petition seeking leave to appeal is without merit and the same is
dismissed.
SIDDHARTH MRIDUL, J
MARCH 21, 2016
dn
