Delhi High Court
State vs Daya Nand Sharma on 1 May, 2017
$5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 01st May, 2017
+ CRL.A. 164/2006
STATE ..... Appellant
Through: Mr. Amit Chadha, APP with Mr.
Murli Krishna, Dy. Legal Advisor, Food
Department
versus
DAYA NAND SHARMA ..... Respondent
Through: Mr. SAhil Mongia, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. Mr. Gopal Singh (PW-1), then functioning as Local Health
Authority (LHA) under the erstwhile Delhi Administration had
purchased a sample of khoya from the shop of the respondent at about
6.00 p.m. on 07.01.1992. The sample statedly was divided into three
parts, one of which was sent to public analyst where upon it being
tested resulted in report (Ex. PW1/E) dated 14.01.1992 being issued to
the effect that it did not conform to the standards prescribed because
the milk fat was less than the prescribed minimum limit of 20.0%, it
having been found to the extent of 17.5% only. The trial court record
reveals that on 02.06.1992, complaint on the basis of these allegations
(Ex. PW1/G) was submitted in the court of the Metropolitan
Magistrate by PW-1 seeking prosecution of the respondent and one
other person Giriraj Sharma for offence under Section 16 of the
Prevention of Food Adulteration Act, 1954 ("PFA" for short). The
record further reveals that on 03.06.1992, an intimation was given,
amongst others, to the respondent, about the report of the public
analyst dated 14.01.1992 calling him upon to approach the court of the
Metropolitan Magistrate by appropriate application within ten days of
the receipt of the said communication in case he desired to get the
sample analysed by the Central Food Laboratory (CFL). It appears
that on 25.06.1992, the respondent moved such an application before
the Metropolitan Magistrate which was allowed and the second
counterpart of the sample which had been drawn was sent to CFL.
The report of CFL eventually came, it being dated 20.07.1992 (Ex.
PX) indicating the milk fat content in the sample to have been found
to be 17.2% and thus, below the minimum prescribed limit of 20%. It
is, primarily, on the basis of this evidence that the trial court by its
judgment dated 05.03.2003 held the respondent guilty and by
subsequent order dated 15.03.2003 sentenced him to undergo rigorous
imprisonment for one year with fine of Rs.3,000/-.
2. The respondent assailed the judgment of conviction and the
order on sentence by criminal appeal no.04/2003 in the court of
sessions. His appeal was accepted and the impugned judgment and
order on sentence of the trial court were set aside, he being acquitted
by judgment dated 13.01.2005.
3. The State is now in appeal before this court to challenge the
view taken by the first appellate court, leave to appeal in terms of
Section 378(4) of the Code of Criminal Procedure, 1973 (Cr. PC)
having been granted by order dated 07.03.2006.
4. Arguments at length have been heard and with the assistance of
the learned counsel on both sides, record has been perused.
5. Though there are other reasons cited by the first appellate court
in accepting the appeal and acquitting the respondent, in the opinion of
this court, the appeal must fail for the short reason that there was
inordinate and unexplained delay in intimating to the respondent, the
result of the analysis by the public analyst and about his statutory right
to have the second counterpart of the sample tested by CFL. For this,
what needs to be highlighted here is that the food item of which the
sample was taken was a milk product, similar to the food item which
were subject matter of certain similarly placed previously decided
cases including Chanan Lal Vs. State, 1972 Prevention of Food
Adulteration Cases, 293, State Vs. Vinod Kumar Gupta, II (2010) DLT
Deli High Court and State of Deepak Bansal, 2014 (DLT SOFT) 653
Delhi High Court.
6. The LHA (PW-1) in the present case admitted during his cross-
examination on 23.03.1999 that the counterparts of the sample which
had been retained, one having sent to the public analyst, were stored in
an almirah at room temperature. In identical fact-situation, in the case
of Chanan Lal (supra), where the food item was paneer, another milk
product, the Supreme Court declined returning finding of guilty in the
face of expert's evidence indicating that such food items were required
to be kept in refrigerated conditions and even there, provided requisite
preservative in the form of drop of formalin have been added, the
same would remain fit for analysis for about one month. It is the said
view on the basis of which similar appeals by the State in the cases of
Vinod Kumar Gupta (supra) and Deepak Bansal (supra) in matters
involving other milk products like paneer and chhenna were repelled.
7. In the present case, the sample had been drawn on 07.01.1992
and the public analyst had given the report on 14.01.1992. The LHA
who had the statutory responsibility to take the matter further to
prosecution, for reasons not explained, sat over the case till he filed
complaint on 02.06.1992 followed by intimation to the respondent on
03.06.1992 about the possibility of retest under the statutory right by
CFL. The period of five months that had lapsed itself justifies the
view taken by the first appellate court in rejecting the prosecution
case.
8. In these circumstances, the view taken by the first appellate
court cannot be said to be suffering from any error or infirmity or to be
perverse. The appeal is dismissed.
R.K.GAUBA, J.
MAY 01, 2017
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