Delhi High Court
Food Inspector vs Mukesh Kumar Sampat & Ors on 24 March, 2015
Author: Siddharth Mridul
Bench: Siddharth Mridul
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 24.03.2015
CRL.L.P.142/2015
FOOD INSPECTOR ..... Petitioner
versus
MUKESH KUMAR SAMPAT & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Isha Khanna, APP
For the Respondents : None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J (ORAL)
1. The present is a petition for grant of leave to appeal against the impugned order dated 25.02.2010 passed by the Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No.47/2001 whereby the respondent has been acquitted of the charges levelled against him.
2. The facts herein briefly are, the Food Inspector Bal Mukand purchased a sample of Mustard Oil (Dhara) from the respondent on 24.08.1998 at about 4:15 p.m. Thereafter, the Food Inspector divided the sample into three equal parts, CRL.L.P.142/2015 Page 1 of 6 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 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 standard because sample shows presence of argemone oil. The respondent was charged under Section 2(ia)(a)(m) of PFA Act punishable under Section 16(1)(a) read with Section 7 of the PFA Act and Rules to which he pleaded not guilty.
3. The sole 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.
4. The Trial Court relied upon the decision of this court in Kanshi Nath v. State, 2005 (2) FAC 219, 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 CRL.L.P.142/2015 Page 2 of 6 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."
5. 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 01.09.98 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:-CRL.L.P.142/2015 Page 3 of 6
B.R at 40 Deg. C.: 60.0 Iodine value: 109.15 Saponification value: 170.63 Acid value: 0.10 Test for Argemone oil: Positive B.T.T ( Acetic acid method ) : 26.8 Deg. C.
18. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 18.11.98, the result of analysis of second counterpart of the sample commodity is as under :
Butyrorefractometer reading at 40 Deg. C - 59.6 Iodine value - 104.2 Saponification value - 174.2 Acid value - 1.51 Test for Argemone oil by T.L.C. - Negative B.T.T ( Acetic acid method ) - 29.0 Deg. C.
19. The two analytic reports of the Public Analyst and the Director, CFL in respect of the same counterpart of the sample commodity are divergent to a great extent. One counterpart of the sample commodity shows BTT value in the prescribed limit while another counterpart of the same sample commodity shows BTT value above the prescribed limit. Further, Public Analyst finds the test for argemone oil 'positive' and due to only this reason declared the sample non- conforming to the standard of mustard oil, while Director, CFL, finds CRL.L.P.142/2015 Page 4 of 6 the test for argemone oil 'Negative' in the counterpart of the same sample commodity.
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 versus State (supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two Analysts."
6. In view of the decision of this court in Kanshi Nath (supra) the arguments made on behalf of the State by the Ld. APP Isha Gupta 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. The PA report states that the BTT value of the sample is more than the prescribed limit whereas in the CFL report the BTT value is within the prescribed limit. Furthermore, the PA report of the said sample finds the test for argemone oil positive while the report of the Director CFL finds it to be negative.
7. 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.
8. I see no reason to differ with the conclusion arrived at by the Trial Court passed based on the discussion extracted hereinabove. Consequently, the CRL.L.P.142/2015 Page 5 of 6 present petition seeking leave to appeal is without merit and the same is dismissed.
SIDDHARTH MRIDUL, J MARCH 24, 2015 mk CRL.L.P.142/2015 Page 6 of 6