Delhi Administration vs Girdhari Lal & Ors.
2016 Latest Caselaw 2241 Del

Citation : 2016 Latest Caselaw 2241 Del
Judgement Date : 21 March, 2016

Delhi High Court

Delhi Administration vs Girdhari Lal & Ors. on 21 March, 2016

#16
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Judgment delivered on: March 21, 2016

CRL.L.P. 324/2015


DELHI ADMINISTRATION                                       ..... Petitioner

                             Versus

GIRDHARI LAL & 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 25.04.2009 passed by Shri Sanjeev K. Malhotra, Additional Chief

Metropolitan Magistrate-II, New Delhi, in CC No. 63/92 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 S. B. Sharma

purchased a sample of 'Pasteurised Full Cream Milk', from the respondent Shri

Girdhari Lal s/o Ram Chand at M/s Beas Confectioners, 7/33, Ansari Road,

Darya Ganj, New Delhi -02, on 15.11.1991 at about 09.15 a.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 found to be less than the minimum limit of 9.0%. The respondent

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

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

Director, CFL, 'milk solids not fat' (10.5%) were found to be as per the

prescribed standards.

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 main 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:-

"19. 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 Ex. PW1/E 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:

             Milk Fat:                          7.4%
             Milk Solids Not Fat:               8.6%

20. The second Counterpart of the same sample was analysed by the Director, Central Food Laboratory, Mysore dated 17.9.92, the result of analysis of second counterpart of the sample commodity was that milk fat was found 5.5% and milk solids not fat were found 10.5%. The difference of analysis in respect of milk fat and milk solids not fat in respect of sample of Pasteurised Full Cream Milk by the report of two analysts are not within acceptable range of .3%. Thereby relying upon Kanshi Nath vs. State (supra), I am of the considered view that the sample was not representative due to which different report were given by two experts in respect of counterpart of the same sample."

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 percentage

of 'milk solids not 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