Delhi High Court
State vs Mahender Kumar And Ors. on 24 January, 2008
Author: S. Muralidhar
Bench: S. Muralidhar
ORDER S. Muralidhar, J.
1. This appeal is directed against the judgment dated 25th July, 1989 passed by the learned Additional Sessions Judge, New Delhi (ASJ) allowing the Criminal Appeal No. 45 of 1987 filed by the Respondents and setting aside the order dated 20th March, 1987 passed by the learned Metropolitan Magistrate (MM) convicting the Respondent No. 1 under Section 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954 (PFA) and sentencing him to undergo rigorous imprisonment of one year and to pay a fine of Rs. 250/- and in default to undergo simple imprisonment for two months. The Respondent No. 2 was also to pay a fine of Rs. 2,500/-.
2. The prosecution case is that on 16th January 1986 at about 5.30 pm the Respondent Mahender Kumar sold a sample of haldi powder to Food Inspector Shri Arun Kumar on behalf of the firm, the Respondent No. 2. When it was sent for analysis, the Public Analyst gave a report that the sample was adulterated. Subsequently at the request of the accused, another sample was sent to the Central Food Laboratory (CFL) [which in this case was the Central food Technological Research Institute, Mysore] which confirmed the adulteration.
3. The prosecution examined three witnesses, Dr. V.K. Jaiswal, LHA (PW-1), Shri Arun Kumar, Food Inspector (PW-2) and Shri Gyan Chand, Food Inspector (PW-3). In the statement recorded under Section 313 CrPC the Respondents denied the charges.
4. The learned MM, after examining the evidence placed on record, came to the conclusion that the accused were guilty of the offence under Section 7(i) PFA read with Section 16 thereof. The accused contended that since the sample was taken from the rear portion of the shop where the bulk quantities were stored and not from the front portion where a smaller quantity had been kept for sale, the sample itself was defective. Secondly, there was no public witness associated in the taking of the sample for testing. Negativing these contentions, the leaned MM concluded that there was substantial compliance with the provisions of Section 10(7) PFA.
5. In the appeal before the learned ASJ, an additional ground was raised by the accused that the sanction accorded by the appropriate authority for prosecuting the accused was vitiated by non-application of mind. As regards this contention, the learned ASJ examined the sanction order which was exhibited as PW1/B signed by Shri T.Targi, Director (PFA), Delhi Administration, Delhi. Relying on the judgment of this Court in Manohar Lal v. State 1982 (2) PFA 219, the learned ASJ concluded:
The perusal of sanction Ex.PW1/B would also indicate that there was no proper application of mind by sanctioning authority. According to sanction this fact is also not clear as to whether T.Taragi, sanction authority has simply used his signature on the sanction or that it was typed out at his initiation. Under the circumstances benefit of doubt is given to the accused as giving of benefit of doubt, I hereby accept the appeal and as a result thereof I acquit the accused/appellant of the offences punishable under Section 7 read with Section 16 of the Act, and as such their conviction is set aside.
6. It was contended by Mr. Pawan Behl, learned APP appearing for the Appellant State that the text of the order granting sanction in the instant case, although a typed one, did not reflect any non-application of mind by the sanctioning authority. It mattered little whether the witness PW 1 actually saw Mr. Targi dictate the order or not since the text of the order must be presumed to have been read by Mr. Targi before he signed it. He submitted that inasmuch as the learned ASJ had not examined the merits of the appeal and proceeded on technicalities, the appeal should be remanded to the file of the learned ASJ for disposal on merits.
7. On the other hand, it is contended by Mr. R.N. Mittal, learned Senior counsel appearing for the Respondents that where two views were possible to be taken on the question of application of mind by the sanctioning authority before granting sanction, this Court will not interfere. It was attempted to be shown by Mr. Mittal that nothing was elicited from Dr. Jaiswal PW-1 whether the sanction order was typed out on the dictation of Mr. T. Targi, the Sanctioning Authority or the latter had simply appended his signature. Alternatively, it was submitted that this being a very old case there was no need to remand it to the learned ASJ for a rehearing if the order of acquittal could be sustained on any other ground. In this regard, relying on the judgment in Kanshi Nath v. State 2005 (2) FAC 219, Mr. Mittal submitted that the report of the Public Analyst as well as the report of the Central Food Technological Research Institute (CFTRI), when compared, showed that there was an unacceptable variation in the two samples. The acquittal could therefore be sustained on this ground.
8. This Court has examined the order granting sanction and is unable to appreciate the conclusion reached by the learned ASJ that it is vitiated by non-application of mind. When PW1 has categorically stated Mr. Targi issued the order granting sanction, and does not say that he saw it being dictated in his presence, it can hardly be concluded that Mr. Targi did not dictate the order. That question if at all could have been put to Mr. Targi had he been examined as a witness. Otherwise the presumption is that Mr. Targi was the one who dictated the order and in any event read it before signing it.
9. Nevertheless, this Court agrees with Mr. Mittal that if the acquittal can otherwise be sustained then there would be no need to remand the matter to the ASJ. The report of the Public Analyst indicates the following parameters as having been found on testing the sample sent to it of the seized food article:
I further certify that I have/have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follow:
Moisture .... 9.2%
Total ash .... 4.04%
Ash insoluble in dil. Hcl .... 2.55%
Test for lead chromate .... Negative.
Test for lead (quantitative) .... Nil.
Test for Coalter, dye .... Positive.
Coalter dye identified .... Metenil yellow.
Total starch percent by wt. .... 53.70%
Microscopy... Foreign structures present along with Haldi structures.
and am of the opinion that the sample of Haldi Powder is adulterated because the ash insoluble in dil. Hcl exceeds the prescribed maximum limit of 1.5% and further the sample is coloured with an unpermitted coalter dye viz. metanil yellow which is injurious to health.
Signed the 31st day of January, 1986.
Sd/-
Public Analyst.
10. On the other hand the report of the CFTRI indicates the following parameters found on testing the sample sent to it:
FORM II (Certificate of test or analysis by the Central Food Labotratory) Certificate No. 236/PFA/86 Certified that the sample(s), bearing No. AK/17/86 purporting to be a sample/samples of Haldi Powder received on17.6.86 with Memorandum No. 58/Sample/MM dated 10.6.86 from Metropolitan Magistrate, Room No. 14, Ground Floor, Patiala House, New Delhi was in a condition fit for analysis and has/have been tested/analysed and that the result/results of such test(s) analysis is/are stated below:
1. Physical appearance: Yellow powder packed in a glass bottle.
2. Moisture ....9.5% by weight.
3. Total ash ....6.0% by weight.
4. Ash insoluble in dilute HC1 ....1.95% by weight.
5. Test for the presence of lead chromate ....Negative.
6. Total starch ....53.05% by weight.
7. Added artificial coloring matter ....Present & identified as Metanil yellow an unpermitted coloring matter.
8. Lead content ....5.4 ppm on dry basis.
9. Microscopic examination of the sample revealed the presence of structures of turmeric and rice bran.
and I am of the opinion that the sample does not conform to the standards laid down for turmeric powder (Haldi Powder) under the provisions of PFA Act 1954 and Rules thereof, in that:
(a) The amount of ash insoluble in dilute HC1 exceeds the maximum specified limit of 1.5% by weight.
(b) It is not free from the presence of artificial coloring matter identified as metanil yellow an unpermitted coloring matter.
(c) It is not free from the presence of foreign ingredient identified as rice bran.
2. ....
Sd/-
K.V. Nagaraja Director Central Food Laboratory
11. While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than -Y .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI.
12. In Kanshi Nath v. State even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan Sarup 1972 FAC 273, this Court observed as under (PFA Cases, p. 227):
Therefore, on the facts of the present case, it can be said that 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.
13. Following the said judgment of this Court in Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative. The conviction of the Respondents can, therefore, not be sustained in law. Accordingly, the impugned order of the ASJ acquitting the Respondents calls for no interference.
14. There is no merit in this appeal and it is dismissed as such with no orders as to costs.