Delhi High Court
Delhi Administration vs Vinod Kumar Aggarwal & Ors. on 21 March, 2016
#15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 21, 2016
CRL.L.P. 321/2015
DELHI ADMINISTRATION ..... Petitioner
Versus
VINOD KUMAR AGGARWAL & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Ravi Nayak, 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 17.11.2009 passed by Shri Sanjeev K. Malhotra, Additional Chief
Metropolitan Magistrate-II, New Delhi, in CC No. 06/2000 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 A. K. Singh
purchased a sample of 'Mustard Oil' from the respondent No. 1, Vinod Kumar
Aggarwal s/o Sh. Bhoora Mal Aggarwal at M/s Bhagwati Provision Store, Shop
No. 2320, Gali No. 12, Kailash Nagar, New Delhi on 11.02.1999 at about 06.30
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 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
becausethe Iodine Value was more than the maximum prescribed limit of 112
and saponification value was more than the maximum prescribed limit of 177.
On 09.02.2000, 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,
Calcutta. As per the report of the Director, CFL, the Iodine Value (109.9) was
found within the prescribed limit.
3. The respondents were charged under Section 2(ia)(a)(b)(d)(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:-
"17. 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
23.02.99 Ex. PW1/G 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:
B. R at 40 Deg. C.: 60.0
Iodine Value: 113.50
Saponification Value: 184.36
Acid Value: 2.37
BTT (Acetic Acid Method): 23 Deg. C.
18. The second Counterpart of the same sample was
analysed by the Director, Central Food Laboratory,
Calcutta dated 24.03.2000, the result of analysis of
second counterpart of the sample commodity is as
under:
B.R. at 40 Deg. C.- 58.8
Iodine Value- 109.9
Saponification Value- 187.9
Acid Value- 3.46
BTT (Acetic Acid Method): 22.6 Deg. C.
19. There is vast variation between the reports of the
Public Analyst and the Director, CFL in respect of the
acid value, iodine value, saponification value and B.R.
Reading in respect of the counterpart of the same
sample. As per report of the Public Analyst, the sample
was found non-conforming to standard as Iodine Value
was also found more than the prescribed limit of 112
but in the report of the Director, CFL, the iodine value
was found within the prescribed limit i.e. 109.9.
Complainant has 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 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 iodine value,
saponification value and B.R. Reading. 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
