Delhi District Court
Sanjiv Kumar vs Local Health Authority/Department on 23 July, 2012
IN THE COURT OF SH. LAL SINGH, ASJ02/FTC, NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0923682008
Criminal Appeal No. 17/11
Sanjiv Kumar,
S/o Sh. Ram Niwas,
M/s. Sulabh Store, Garage 19B/A,
NBlock, Shalimar Bagh, Delhi. .....Appellant
versus
Local Health Authority/Department
of PF/ Govt. of NCT of Delhi. ....Respondent.
Date of institution of the case : 17.11.2008
Date when the case reserved for Judgment : 04.07.2012
Date of announcement of Judgment : 23.07.2012
JUDGMENT
This appeal is directed against the Judgment and order on sentence dated 13.10.2008 and 22.10.2008 respectively, passed by Ld. MM/PHC, New Delhi in CC No. 136/94, whereby the appellant was convicted and sentenced to undergo SI for a period of six months and CA No. 17/11 1/10 also to pay a fine of Rs. 2,000/and in default of payment of fine S.I. for one month. It is further directed by the Ld. MM that the sentence passed in complaint case no. 136/94 titled DA vs. Sanjiv Kumar and complaint case no. 6/95 tilted DA vs. Sanjiv Kumar shall run concurrently.
The brief facts of the case are that on 19.09.1994 at about 2.00 PM FI Sanjiv Kumar Gupta purchased a sample of "Dhania Powder" a food article from appellant Sanjeev Kumar, S/o Sh. Ram Niwas, M/s. Sulabh Store, Garage19 B/A, N. Block, Shalimar Bagh, Delhi, where the said food article was stored for sale for human consumption.
The sample consists of approximately 600 gms of Dhania Powder taken from open plastic jar bearing no label declaration and mixing it with the help of clean and dry jhaba. The sample divided into three equal parts and thereafter packed as per PFA Rules. The proceedings were conducted in the presence of SDM/LHA Sh. M.R. Grover and in the presence of Sh. Shyam Lal Gupta FI (witness). One counter part of the sample was sent for analysis to PA who had opined that the sample is adulterated as total ash and ash soluble in dilute HCL exceeds the prescribed maximum limit of 7 % and 1.5 % respectively. Thereafter, further investigation revealed that appellant/accused Sanjeev Kumar is the VendorcumProprietor of M/s. Sulabh Store. After obtaining the sanction from Director PFA prosecution was CA No. 17/11 2/10 carried out against the appellant/accused. Thereafter, the appellant/accused was sent a copy of PA report alongwith intimation as required in Section 13 of PFA Act. The appellant/accused appeared and exercised his right u/s 13 (2) PFA Act. The appellant/accused was also provided copies of documents. Certificate of CFL was received by the court. As per the said certificate the sample doe snot conform to the standards as total ash content were found to be 8.6 % by weight and ash soluble in dilute HCL was found 2.5 % exceeds the prescribed maximum limit of 7 % and 1.5 % respectively.
Accusation of notice explained to the appellant/accused to which he pleaded not guilty and claim trial. The sample was divided into three equal parts and thereafter packed as per the PFA Act and Rules. Notice in the form VI was given to the accused. Panchnama was prepared.
On 20.09.1994, two counter parts of the sample alongwith form VII was deposited by the FI with his office. One of the counterpart was sent to PA for analysis. Report of PA was found the product as adulterated.
I have heard the arguments on behalf of the appellant/accused and Ld. Chief Prosecutor for the respondent/State/Delhi Admn. Sh. B.B. Sharma, Ld. Counsel for the appellant submitted that the sample of Dhania powder was not taken in accordance with the provisions of CA No. 17/11 3/10 the PFA Act. He further argued that there is glaring difference in the report of PA and report of Director, CFL. He submitted that since there is noticeable difference in the two reports, which only leads to the inference that the sample taken by the food inspector was not representative in character. He further argued that at the time of taking the sample no public witnesses were associated. He submitted that PW 2 FI Sanjiv Kr. Gupta, in his crossexamination, stated that 600 gm of Dhania, after weighing the same and it was weighted in a brown envelop, which was clean and dry. The brown envelop was supplied by the accused and PW 2 admitted that he had not cleaned it at the spot. He further submitted that moreover, FI Sanjiv Kr. Gupta had not cleaned the jhabba himself, before taking the sample.
On the other hand, the Ld. Chief Prosecutor for the respondent/Delhi Admn., vehemently argued that the there is no infirmity in the judgment passed by the Ld. Trial Court. He submitted that the sample was adulterated, as it does not conform to the standard laid down for Dhania powder under the PFA Act.
I have gone through the record and perused the file. I have also gone through the Public Analyst report as well as CFL report. As per the PA report, the sample does not conform to the standard because total ash and ash insoluble in dil Hcl exceeds the prescribed maximum limit of 7.0% and 1.5 % respectively and CFL report also says that the CA No. 17/11 4/10 sample does not conform to the standards laid down for Dhania powder as the total ash content exceeds the limit of 7 % and ash insoluble in dilute HCL exceeds the limit of 1.5 %.
As per the PA report, moisture was found 8.33 %, Total ash 7.9%, ash insoluble dil Hcl 2.04 %, whereas in CFL report moisture content was found 8.4 %, total ash 8.6 %, ash insoluble in dilute HCl 2.4%. There is noticeable difference in the total ash and moisture in both the reports. In PA report, the moisture is 8.33%, whereas in CFL report the moisture is 8.4 %. Further in PA report the total ash is 7.92%, however, in CFL report the total ash is 8.6 %. There is huge difference regarding total ash in both the reports. Otherwise also, in both the reports, it is nowhere mentioned that the sample was injurious to the public health. Moreover, there is force in the contention of the counsel for the appellant that difference in two reports are due to the reasons that while taking the sample, it was not properly taken as neither the jhabba nor the envelope, in which the sample was taken, were cleaned.
In the case of State (Delhi Admn.) vs. Dayal Dass, 2005 (1) FAC 162, wherein it was held that Dhania powder sample taken found adulterated sent for the analysis to the Director, Food Laboratory and same was found to be adulterated from the report of the Public Analyst and the Director, Central Food Laboratory it CA No. 17/11 5/10 appears that the sample taken were not the representatives of their counterpartsno ground to interfere in the judgment.
Further in the case of Kanshi Nath Vs. State 2005 (2) FAC 219 (Delhi High Court), it was observed as follows :
"11. Coming to the next controversy, i.e., with regard to the representativeness of the sample, it is clear from the Full Bench decision in MCD vs. Bishan Sarup (Supra) that if the samples are not representative, then any test report based on it would not indicate the true position. That being the case, a conviction can not be founded on such a test report. Upon an examination of the cases mentioned by Mr. Mittal, it also becomes clear that although in terms of Section 13 (3) of PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not. Mr. Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under:
14. Thus the legal impact of a certificate of the Director of Central Food Laboratory is threefold. It CA No. 17/11 6/10 annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. (emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and there can be none. But, this does not enable us to detract from the ratio of the Full Bench decision of this court in the case of MCD vs. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr. Sharma that one 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 CA No. 17/11 7/10 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 CW1 in crossexamination, 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 than Y. 3%. 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.
Further in the case of State vs. Mahinder Kumar & Ors. 2008 (1) FAC 177, the Hon'ble High Court of Delhi, held that 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 CA No. 17/11 8/10 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 .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 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.
From the facts of the instant case and reports of the PA and CFL, clearly indicates that there is big variation in both the reports of PA and CFL in respect to moisture, total ash.
Therefore, in the light of above facts and circumstance, it is amply clear that there is noticeable difference between the two reports, i.e. the report of Public Analyst and report of CFL, which leads to the inference that sample taken by the Food Inspector was not of representative character. Otherwise also, as per the above mentioned case laws, the sample is not of representative character. And if the sample taken was not of representative character than the accused is entitled to be acquitted. There is glaring variation in the two reports i.e. PA report and report given by CFL leads to the conclusion that the sample taken by the Food Inspector was not representative character and certainly the benefit of the same goes to the appellant. Hence, the CA No. 17/11 9/10 appellant is entitled to be acquitted.
Therefore, as a sequel of above discussions I am of the considered view that appellant/accused is entitled to be acquitted. Accordingly, appeal is allowed. The Judgment of conviction and order on the sentence passed by the Ld. Trial Court are set aside and accordingly, the appellant is acquitted.
The previous bail bond of appellant is canceled and his surety is discharged. Appellant to furnish fresh bail bond in the sum of Rs. 10,000/ with one surety to the like amount, in terms of Section 437 A Cr.P.C.
Trial court record be sent back alongwith copy of this judgment. Appeal file be consigned to record room after due completion.
Announced in the open court (LAL SINGH)
on 23rd July, 2012 ASJ02/FTC, PHC/ND
23.07.2012
CA No. 17/11 10/10