Delhi High Court
State (Delhi Admn.) vs Satinder Kumar on 14 November, 2008
Author: Manmohan
Bench: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl . Appeal No. 102/94
% DATE OF DECISION : November 14th, 2008
State (Delhi Admn.) ..... Appellant.
Through: Mr. Manoj Johri, APP
with Mr. Pawan Bhatnagar,
Pairvi Officer of PF
Department.
Versus
Satinder Kumar ....Respondent
Through: Mr. U.K. Shandilya, Advocate
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest? Yes
JUDGMENT
MANMOHAN, J: (ORAL)
1. The present appeal has been filed by the State under Section 378 of Code of Criminal Procedure for setting aside the judgment dated 1st November, 1993 passed by learned Metropolitan Magistrate.
Crl. Appeal No. 102/1994 Page 1 of 5
2. By virtue of the impugned order the learned MM has highlighted the contradictions between the reports of the Public Analyst and the Director, CFL to reach the conclusion that the sample collected by the State was not a representative one. It is pertinent to mention, that while the Public Analyst found extraneous matter to the extent of 6%, the Director, CFL opined that the total extraneous matter was only to the extent of 1.43%. However, both the Public Analyst and the Director, CFL reached a similar conclusion to the extent that the sample contained impermissible colouring matter. In fact, the charge framed by learned MM on 13th February, 1992 exclusively pertained to artificial colouring matter. The charge framed reads as under:-
"Charge DA vs. Satinder Kumar I, M.L. Mehta, MM New Delhi charge you Satinder Kumar S/O Washeshar Nath as under:-
That on 20.12.88 at about 4.00 pm Jit Ram FI purchased a sample of Rai Whole from you as vendor cum prop. of M/s Satinder Kiryana Store J- 10 Shardhanand Mkt. Delhi, for analysis as per PFA Act and Rules. The so purchased sample on analysis by the director CFL Mysore vide his certificate dated 29.5.89 was found adulterated in as much as it was not free from the presence of added artificial colouring matter identified as pink shade oil soluble colour; and you there by contravened the provision of Sec, 2(ia) (a) (b) (j)
(m) punishable under Sec. 16 (1) (1A) read with Crl. Appeal No. 102/1994 Page 2 of 5 Sec. 7 of the PFA Act and rules; and with in my cognizance.
I here by direct you to be tried by this court on the above offences."
3. Mr. Manoj Ohri, learned Counsel for the Appellant submitted that since both the Public Analyst and the CFL had confirmed the presence of artificial colouring in the sample, it would show that there was no contradiction in the findings of Public Analyst and Director, CFL and further the trial court was not correct in reaching the conclusion that the sample so collected was not of a representative character.
4. Mr. U.K. Shandilya, learned Counsel for the Respondent, on the other hand, submitted that neither the sample nor the seal had been sent to the Public Analyst. In this context, he referred to the testimony of Food Inspector PW-2. Mr. Shandilya further submitted that Respondent/Accused would be entitled to acquittal on the ground of benefit of doubt. In this context, he referred to the evidence recorded by the trial court. Mr. Shandilya further submitted that in view of pendency of the present appeal in this Court for the last 14 years, this Court should not interfere with the order of acquittal. In this context, Crl. Appeal No. 102/1994 Page 3 of 5 he relied upon the judgment of the Apex Court in State of Maharashtra & Anr. Vs. Gopalprasad Govindprasad Agarwal & Ors. reported in (1998) 9 SCC 274.
5. In rejoinder, Mr. Manoj Ohri denied the contention of learned Counsel for Respondent that the sample and seals were not intact, when sent for analysis. In this context, he referred to the report of Director CFL.
6. I am of the opinion that in view of the charge having been framed only with regard to the presence of colouring matter, the learned MM's finding that the samples collected were not of representative character cannot be sustained inasmuch as both the Public Analyst and the CFL have reached a similar conclusion with regard to the presence of artificial colouring matter. However, as the trial court has not examined the controversy on merits, the arguments raised by the learned Counsel for the Respondent are left open to be decided by the trial court. Consequently, the arguments on merits, specially the one pertaining to non-sending of sample and seals to the Public Analyst along with other arguments of the Respondent are left open to be decided by the trial court.
Crl. Appeal No. 102/1994 Page 4 of 5
7. As far as the pendency of the appeal in this Court for the last fourteen years is concerned, I am of the view that no party can be penalized for delay in deciding matters which were filed within limitation. In fact, the State is not liable to be blamed for the delay, which has entirely taken place due to heavy pendency of dockets in this Court. In any event, as I have left all the contentions and submissions of the Respondent on merits open, I am of the view that no prejudice would be caused to the Respondent in case the matter is remanded back to the trial court with a direction to expeditiously decide the same preferably within a period of six months from today. I may mention that the present case, as already agreed between the parties on the previous dates of hearing, would be heard on the basis of records furnished by the Respondent.
8. The parties are directed to appear before learned CMM, Tis Hazari Courts, Delhi on 10th December, 2008 for further directions.
9. The Appeal is allowed in the above terms. Dasti.
[MANMOHAN]
th
November 14 , 2008 JUDGE
rn
Crl. Appeal No. 102/1994 Page 5 of 5