Delhi High Court
Food Inspector vs Mohd. Alim on 17 May, 2016
#2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17.05.2016
+ CRL. L.P. 353/2015
FOOD INSPECTOR ..... Petitioner
Through Ms. Radhika Kolluru, APP
versus
MOHD. ALIM ..... Respondent
Through None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J. (ORAL)
1. The present is a petition seeking grant of leave to appeal against the
impugned judgment and order dated 06.07.2010 passed by Shri Sanjeev K.
Malhotra, Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No.
69/06, whereby the respondent has been acquitted of the charges levelled
against him 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 Shyam Lal purchased
a sample of 'Standardised Milk' from the respondent, Mohd. Alim S/o Sh.
Mohd. Feroz of M/s Shahji Dairy, 2441, Main Turkman Gate, Delhi-110006 on
23.07.2005 at about 1.00 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'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 prescribed limit of 8.5%. On 24.03.2006, the respondent 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
sample contained 'milk solids not fat' above the prescribed limit of 8.5%.
3. The respondent was 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 he 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 respondent 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:-
"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 dated
18.08.05 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 - 6.2%
Milk Solids Not Fat - 8.18%
20. The second counterpart of the same sample was
analysed by the Director, Central Food Laboratory,
Pune on dated 28.04.06, the result of analysis of
second counterpart of the sample commodity was that
milk fat was found 4.32% and milk solids not fat was
found 11.08%. The difference of analysis in respect of
milk fat and milk solids not fat in respect of sample of
standardised milk by the reports of two analysts is not
within acceptable range of 0.3%. One Analyst opined
the sample non-conforming to standard as milk solids
not fat were found less than the prescribed minimum
limit of 8.5% while another Analyst found the milk
solids not fat in the counterpart of the same sample
above prescribed minimum limit. There is a vast
variation between two reports and complainant has
failed to show any explanation in respect of variation
of more than 0.3% in the analytic data of the
counterpart of the 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 milk solids not
fat contents, which exceeds the permissible variation of 0.3%. 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
MAY 17, 2016
sd
