Delhi District Court
Vijay Kumar vs The State (Delhi Administration ) on 7 July, 2008
: 1 :
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal NO. 15/03
Vijay Kumar
s/o Sh Om Prakash
r/o 250, Palam Village
Delhi.
Appellant
Vs.
The State (Delhi Administration )
Respondent.
Date of Institution : 26.5.2003
Date when the arguments
were heard/filed : 2.6.2008
Date of judgment : 7.7.2008
JUDGMENT
This appeal is directed against the judgment dated 25.4.2003 passed by learned Metropolitan Magistrate by which he convicted the appellant U/s 16 (1) (1A) read with sec. 7 of Prevention of Food Adulteration Act ( in short PFA Act). By subsequent order on sentence dated 28.4.2003 the appellant was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 3000/. In default of payment of fine, he was directed to undergo simple imprisonment for three months. Aggrieved by the judgment and order on sentence passed by the : 2 : learned trial court the appellant has preferred this appeal. BRIEF FACTS The prosecution case, in brief, is that on 26.8.92 at about 5.30 pm Food Inspector Sh Rajesh Kumar purchased a sample of Maida for analysis from the appellant at M/s Vijay Store, D3, Mahavir Enclave, Main Road, New Delhi where it was found stored for sale for human consumption. Sample was taken from an open gunny bag bearing no label declaration and sample was taken after proper mixing with the help of clean and dry jhaba. The Food Inspector divided the said sample into three equal parts and put it into three clean and dry bottles. Each counter part was packed, fastened, marked and sealed as per PFA Act and Rules. One counter part of the sample was sent to the Public Analyst for analysis in intact condition who found the sample to be adulterated. Thereafter, the sanction for prosecution was obtained from the competent authority and complaint was filed against the appellant before the ld Metropolitan Magistrate, New Delhi. NOTICE AND PLEA OF THE ACCUSED The charge under section 16 (1) (1A) read with sec. 7 of PFA Act was framed against the appellant to which he pleaded not guilty and claimed trial.
In his statement U/s 313 Cr.P.C the appellant has denied the incriminating evidence against him and stated that he is innocent. The sample was taken without any homogenization. The report is based upon improper sampling.
Appellant choose to lead evidence in his defence but did not examine any witness in his defence.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined three witnesses in all. PW1 Food Inspector Sh. Rajesh Kumar, PW2 Local Health Authority Dr G.C. : 3 : Raha, PW3 Food Inspector Sh Arun Kumar and closed its evidence. FINDINGS.
I have gone through the written arguments filed on behalf of the appellant, the trial could record, the appeal file and the relevant provisions of law, carefully. Despite opportunity the written arguments were not filed on behalf of the respondent State.
As per the Certificate of Director CFL Ex PX which supersedes the report of Public Analyst, the alcoholics acidity in the sample of Maida was 0.206% on dry weight basis which exceeds the maximum specified limit of 0.12% on dry weight basis. It was also pointed out that the sample was not free from the presence of foreign ingredients of corn starch and was also insect infested. Therefore, the sample did not conform to the standards laid down for Maida in the provisions of PFA Act, 1954 and Rules thereof.
The contention on behalf of the appellant is that the alcoholics acidity increases with the lapse of time. There is inordinate delay in launching prosecution against the appellant so the analysis of sample after the lapse of 3 1/2 months was useless. Reliance is placed upon the following authorities :
In Gulshan Rai v. The State of Punjab 1983 (II) FAC 328 (P & H), it was observed as follows :
"2. The learned counsel for the petitioner has raised a number of points but the one which tilts the balance in his favour need be taken notice of.
: 4 : As said before the sample was taken on 178 1979, at Kapurthala, during the rainy season, when there is plenty of humidity. Even the report of the public Analyst confirms it that there was moisture in the sample to the extent of 10.70 per cent. In such moistened wheat flour insects could have grown of their own and to have died their natural death therein. It could have easily grown in this span of 19 days when the sample remained unpacked and those insects should have died as well during that period. The Public Analyst has nowhere categorised those insects and has also not mentioned their normal life span. It is not worthy that at the time of the taking of the sample no preservation was added. Equally no date is available as to whether moistened wheat flour, if kept in watertight container, would create alcoholic acidity. Thus, on this scanty material it would not be safe to maintain the conviction of the petitioner. In somewhat similar circumstances this court in Om Parkash v. The State of Punjab, 1981 CLR 220, acquitted the accused when the wheat flour recovered from him was found to be insect infested on the 24th day of its recovery. Being in respectful agreement of that view I have followed it in other case and would do so in the present one as well."
In Anil Kumar & Another v. State of H.P. 1996 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (HP), it was observed as follows :
"6. In the present case, the sample was taken on 29th May, 1981. There is nothing on record to suggest, even remotely, that the Food Inspector : 5 : noticed any living or dead insects at the time of taking of the sample of tha 'Atta'. The Public Analyst analysed the sample of 23rd of June, 1985 who opined that eight living insects were there. There is nothing in the report that these insects were detected after microscopic examination of the sample. The Alcoholic Acidity at that time was found to be 0.08%. Under Rule A.18.02, the alcoholic acidity (with 90% alcoholic), expressed at H2 SO4 (on dry weight basis), is required to be not more than 0.12%. But Public Analyst report recorded the Alcoholic acidity to be within the prescribed limit.
7. The Director Central Food Laboratory recorded that there were three live insects and seven dead insects along with 11 dead insects larva. Again, there is nothing in the report of the Director that these insects were detected after microscopic examination. In so far as the standard of alcoholic acidity was concerned, the Director has very specifically mentioned in his report that this alcoholic acidity was subject to increase from the date of drawl of sample and its ultimate analysis in the laboratory, meaning thereby, that increase, if any, in alcoholic acidity could be attributed to the lapse of time which took place between taking of the sample and the analysis by the Director. This aspect of the opinion appears to be correct one, inasmuch as on 23rd day of June, 1981, when the Public Analyst analysed the sample, the alcoholic acidity was found to be 0.08% within the prescribed limit and the Director analysed the sample on 24th of October, 1981, say after a period of about five months after the taking of the sample and the likelihood of alcoholic acidity having been increased on the basis of the opinion given by the Director himself could not be ruled out."
: 6 : It was also held that on the basis of the aforesaid circumstances, the likelihood of insects having been cropped up during the transit period also could not be ruled out, especially when it has been noticed in the two reports referred to above that the earlier report contained less insects, while the later report contained more dead and living insects, which could also lead to this inference that by the passage of time, these insects dead or alive have been cropped up in the sample and in this background , the possibility of sample being insect free at the time of taking sample cannot be ruled out.
It is a matter of common knowledge that in the month of August there is a rainy season in Delhi. In the Certificate of Director CFL it is mentioned that the sample contained moisture 12.72% in Anil Kumar's case (supra) relied on behalf of the appellant Hon Himachal Pradesh's High Court has observed that there was likelihood of alcoholic acidity having been increased, on the basis of the opinion given by Director himself, when the sample was examined after about five months of taking the sample. In Gulshan Rai's case (supra) also relied on behalf of the appellant the sample of the Atta (wheat flour) was taken in the rainy season in the month of August like in the present case and the Public Analyst examined the sample after 19 days and there was also moisture in the sample. Therefore, Hon Punjab and Haryana High Court held that in such moistened wheat flour insects could have grown of their own and to have died the natural death therein. It was also held that no data is available as to whether moistened wheat flour, if kept in water tight container, would create alcoholic acidity. On this scanty material the Hon Punjab and Haryana High Court acquitted the accused. There is similarity in the facts of the present case with the facts in these two citations relied upon by learned : 7 : counsel for appellant which apply to the present appeal.
As regards the presence of corn starch was reported by Director CFL in his report Ex PX , the argument on behalf of the appellant is that since the quantity of the cornstarch in the sample is not mentioned in the Certificate of Director CFL it does not amount to violation of the PFA Act or Rules. Reliance is placed upon the authority Varinder Kumar v. Union Territory Chandigarh. 1994 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (P & H), wherein it was observed as follows :
"5. The learned standing Counsel for Union Territory has urged that the article being not of nature, substance or quality demanded by the purchaser and is to his prejudice , it will be deemed to be adulterated, in view of the definition contained in Section 2(fa).
6. I am, however, of the view that in order to bring the item within the purview of this part of the definition, it has be stated by the Public Analyst as to what was the total content of the wheat and rice starch. In case there are only traces of those items, it will not make the Basin adulterated. In Nagar Palika Parishad, Khilchipur, through Food Inspector v. Rajendra Kuamr 1988 (II) FAC 3, the Public Analyst had certified the sample of Basin to be containing Keshari Dal Flour, but its quantity had not been mentioned. On these facts. R.K. Verma, J. of Madhya Pradesh High Court held that the report having not described whether the presence of Keshari Dal flour found in the sample was merely in traces or in any such quantities as would affect the quality of the same would not be described to be adulterated. I subscribe to the : 8 : same view.
7. In the light of the above discussion, I conclude that the sample cannot be described to be adulterated and the continuation of the prosecution will only be waste of public time and money and hereby accept the petition and quash the complaint and the consequent proceedings."
In the above Varinder Kumar's case on account of the fact that wheat starch and rice starch in the sample of Besan were not quantified by the Public Analyst so it was held that the sample cannot be treated as adulterated. Similarly, in the present case Director CFL in his Certificate Ex PX has not quantified the presence of cornstarch in the sample in question so applying the same principle it cannot be said that the appellant has violated the provisions of the PFA Act or Rules framed thereunder.
The Certificate of Director CFL also shows that to determine the presence of wheat and cornstarch granules the microscopic examination was done which is challenged on behalf of the appellant be not a proper scientific test.In Dhanraj Jaiswal v. State of M.P., 2006 (1) FAC 283 (MP), it was observed as follows :
"15. In the matter of Jagdish Chander v. State of U.P., the Apex Court has considered the question of applying only microscopic test by the Public Analyst with respect to the sample of 'Dalchini' (Cinnamomum Zeylanicum Knees). It was observed that, "A glance at the above Rules would show that the percentage of the various ingredients such as ash, insoluble in Hcl or volatile oil or moisture in the sample in question, cannot be ascertained with any degree of accuracy by mere ocular examination under a microscope, Chemical : 9 : tests, including treatment of the ash in the sample with Hydrochloric Acid would be a must. Since in the instant case, the sample was not subjected to any chemical test or analytical process, the opinion of the Public Analyst was not entitled to.any weight whatever.
16. In the above referred case, no chemical tests were performed, whereas, in the instant case in hand, chemical tests were performed and the sample was found fit as per prescribed standard and therefore, only on the basis of microscopic examination, the Chemical Analyst report that it contained some foresight starch, then, the total value of the sample should have increased in comparison to the standard prescribed and should have been something more than 60% but the report shows that the total starch percent was only 48.26% which was much below than the prescribed standard. In this view of the matter, the result of microscopic examination becomes doubtful.
17. The Rajasthan High Court in the matter of Municipal Council v. Harak Chand, 1990 (1) FAC 231, considered the question of analysis by micorscopic examination of Turmeric Powder. In this case also it was reported by Public Analyst that on microscopic examination wheat starch was found in the turmeric powder. The turmeric powder conformed to the prescribed standard in all respects with the standard laid down in Appendix A05.2001. It was observed that, "There is no column like microscopic examination in AppendixI; therefore, I do not attach any importance to this remark. Standard prescribed, means that there was no adulteration as such even as per the report of Public Analyst Ex. P8".
18. The Gujarat High Court in the matter of Chimanlal Govindji Thakker, 1997 (2) FAC 39, also : 10 : considered the question of microscopic test in respect of the sample of Chillies and observed that, "Having regard to the aforesaid detail and standard relating to chillies powder, it is clear that microscopic test is not provided therein. There is, therefore, substance in the submission of. Mr. Thakker that the Public Analyst adopted the test by means of microscopic test, which is not provided by the Legislature. It is also doubtful whether such microscopic test is a scientific test or otherwise. There is no other evidence available on record, in as much as, there is no method to check such test.
It may be an unreasonable test even. Suffice it to state the Legislature has not approved of such tests. Therefore, the conviction of the petitioner for the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is unsustainable."
19. In the matter of State v. Ahmed Gulam Umar (supra), the question of microscopic test in respect of sample of turmeric powder has been considered relying upon the matter of Chimanlal Govindji, 1997 (II) FAC 39 (supra), the Court again observed that, "Test carried out by microscope to ascertain adulteration in turmeric powder not being reliable, result cannot be used to sustain the conviction".
20. The Kerala High Court in the matter of Food Inspector v. Vidhyadhharan (supra), has also considered the question of microscopic examination with respect to sample of Coriander powder.
21. The various High Courts have considered the question of microscopic examination of sample and found that such tests are not sufficient to come to the conclusion that the sample is actually adulterated. In the case in hand the sample was found in conformity with the standard prescribed : 11 : and therefore, it becomes more doubtful as to whether actually some foreign substance was added."
In Food Inspector v. Vidhyadharan 1987 (I) FAC 119 (Ker), relied on behalf of the appellant, it was observed as follows :
"6. However, the lower court acquitted the accused on the ground that there was no proper analysis, Ext. P10 would show that he conducted microscopic examination. He had not stated in Ext. P10 report that he has done any test other than microscopic test and the indication from Ext. P10 is that he conducted only microscopic test. The lower court found that in the absence of chemical test it cannot be held whether or not the sample conformed to the prescribed standard. In coming to the conclusion, the lower court relied on the ruling of the Supreme Court in the decision in Jagdish Chandra v. State of Uttar Pradesh (1982 (1) S.C.C. 350). In that case the lower court acquitted the accused on the ground that the public analyst did not perform the chemical test for analysing the sample and the only test conducted was the microscopic test. The items concerned in that case were A. 05.61 and A. 05.061 of the Prevention of Food Adulteration Rules. 1955.
Their Lordships of the Supreme Court, after noticing the standard prescribed for these items held that various ingredients such as ash, insoluble in HCL, or volatile oil or moisture in the sample in question could not be ascertained with any degree of accuracy by mere ocular examination under a microscope and chemical test including treatment of the ash in the sample : 12 : with hydrochloric acid would be a must and that since the sample was not subjected to any chemical test or analytical process, the opinion of the public analyst was not entitled to any weight." It was further held as follows "7. The Supreme Court in the above decision has pointed out that the percentage of the various ingredients such as ash, insoluble in HCL or moisture in the sample cannot be ascertained with any degree of accuracy by mere ocular examinations under a microscope.........."
In the light of the above case law it is clear that microscopic test is not given weight, so the Certificate of Director CFL with regard to the presence of structures the wheat and cornstarch granules in the sample in question needs to be discarded.
The delay in examination of the sample and the presence of insects in it is examined by our Hon High Court and other Hon High Courts from time to time in different cases. The observations made in some of the cases, some of which are relied upon by learned counsel for appellant, to know the legal position seems justified here.
In A.P. Goel and another v. The State (Delhi Admn.) 2001 (1) FAC 168 (Del), relied upon by learned counsel for appellant, it was observed as follows :
"4. On the basis of the complaint before the learned Metropolitan Magistrate, it was found that the sample, which was sent to the CFL was found to contain both living and dead insects. The argument, therefore, that found favour with the : 13 : learned Metropolitan Magistrate was that the sample was not properly sealed so as to prevent moisture from entering into the bottle thereby causing the deterioration of the sample. The learned Metropolitan Magistrate relied upon the judgment of this Court in M.C.D. v. Ved Parkash1984 II FAC 304. The facts of' the case decided by the High Court were more or less para materia to the case in hand. This Court had held that once living insects are found in the sample sent to the laboratory after five months, it can safely be inferred that the sample was placed in a bottle, which was not in light and sealed. In the present case, the CFL examined the sample after a period of 10 months and found substantial amount of living and dead insects thereby giving rise to the inference, that the sample was not preserved correctly or properly sealed."
It was further held as follows:
"6..........The sample having been sealed on 21.1.1986 by PW3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample. The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986."
In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), it was observed as follows:
"2 It is not a fit case in which we should interfere : 14 : with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render the same adulterated. The Standard of Saunf has been prescribed in Rule A. 05.11, Appendix B of the prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he has not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed."
In Shri Raghbir Sharan v. State 1972 FAC 389 (Del), it was observed as follows:
"5. The evidence of these witnesses has not been challenged and these witnesses are Public Analysts. There is not reason to doubt there testimony. According to the evidence of these witnesses, it is possible to for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within the period of three days. In the present case even according to the evidence of the Food Inspector, P.W. 2, no insects were present when the purchased the sample of basen from the petitioner on 2961968 and that, as a matter of fact, he had not purchased the sample because of suspicion that it was insectinfested. The Public : 15 : Analyst in his report, Ex....... has merely stated that the sample was insectinfested (living insects), but has given the percentage of insectinfestation. It is, therefore, possible that insectinfestation found by the Public Analyst was not present in the sample when it was taken on 2961968. It cannot, therefore, be said the sample of basen purchased by the Food Inspector from the petitioner on 296 1968 was adulterated. Accordingly to the report of the Public Analyst, the said sample was not adulterated in other respects. The additional evidence adduced by the petitioner would entitle him to an acquittal."
In Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB), relied upon by learned counsel for appellant, it was observed as follows :
"7. The learned counsel for the respondents placing strong reliance on a decision of Allahabad High Court in Radheylal Gupta v. State and another, 1979 (II) FAC 91, strenuously contends that October being a rainy season and the sample having been analysed on the third day, the probability of the insects having grown during that period could not be ruled out. That being so, he submits that in the facts and circumstances of the instant case, it could not be said with any degree of certainty that the sample was infested on 1st October, 1973, the date when it was taken, especially when even the Food Inspector J.S. Chadha admits that he did not see any insects with the naked eye. The learned counsel vehemently submits that at best according to the prosecution case at the time the sample was taken, eggs could be said to be present in the Atta and not insects as : 16 : according to the testimony of Dr. Pingley the incubation period for eggs is 4 to 7 days. That being so, because of the eggs found in the Atta purchased by the Food Inspector from the respondents, the Atta could not be said to be insectinfested and hence adulterated. There appears to be merit in the submission sought to be urged on behalf of the respondents........."
In Municipal Corporation of Delhi v. Shri Ramji Dass and another 1983 (II) FAC 20 (Del) (DB), it was observed as follows:
"8...........The article of food was taken on 12th September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is possible that the living insects may have developed in the sample in question after the sample was taken. P. W. 4 gave evidence that the sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or
3. The expression "insect infested" would mean a swarm of insects or at least a large number of insects. The Food Inspector may have from the presence of few insects concluded that the article of food was insect infested. See M.C.D. v. Bhawanl Shankar, 1975 (I) FAC 251 and Raghbir Sharan v. State, 1972 FAC 389."
: 17 : In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), it was observed as follows:
"8........Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which the sample was analysed in the laboratory, on a consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 1031980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like : 18 : weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge against the petitioner has to fail."
In State (Delhi Admn.) v. Inderjit Singh and another 2005 (1) FAC 161 (Del), it was observed as follows :
"3. On evaluation of the evidence on record, the learned Magistrate returned a finding that the report of the Director, CFSL shows living insects found in the sample meaning that the sample was not properly sealed and on this account has acquitted and accused. Counsel for the State has not been able to show me as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act. He is also not been able to show me as to what is the infirmity in the judgment under challenging. That being the case, I find no reason to interfere with the wellreasoned judgment of the trial court. Crl. A. 58/1986 is accordingly dismissed."
In Om Prakash v. The State of Punjab 1986 (I) FAC 77 (P & H), it was observed as follows:
"2. Mr. Chhibbar, has very fairly not contested the recovery of the atta from the dhaba of the petitioner on the relevent day. In fact, his sole contention is : 19 : that from the material on the record, it could be inferred that the recovered atta remained un anaylsed for a period of about 24 days and during this long period the possibility of some insects (susris) having infested the atta could not be excluded. He has placed reliance upon a Single Bench decision of this Court in Makand Lal v.The Stage, 1975 (1) F.A.C. 211, wherein the accused was given the benefit of doubt on the ground that the atta had remained unexamined and unanalysed for 12 or 13 days. Indeed, in that case the recovery pertained to the month of July which is a rainy season, but no hard and fast rule can be laid down in this behalf that such insect infestation could not have taken place during the month of February, as in the present case. It was the bounden duty of the prosecution to rule out this possibility by producing expert evidence on the file, which has not been done. In these circumstances, the petitioner is entitled to the benefit of doubt."
In the present case the documents prepared at the spot by Food Inspector and proved before learned trial court do not show that the Food Inspector has noticed any insect in the sample. The fact that he has taken the sample after proper mixing the Maida as stated by the prosecution witnesses leads to the inference that had there been insects in the Maida the prosecution witnesses must have noted this fact and this fact must have found mention in the documents prepared at the spot. Therefore, on account of the fact that neither prosecution witnesses stating nor mentioning in the documents prepared at the spot that the Maida was insect infested, it appears that there was no insect in it at the time of taking sample and due to the : 20 : delay of about 3 1/2 months in the analysis of sample at CFL the insects cropped up in the sample particularly when the sample was taken in the rainy season and contained moisture as per Certificate of Director CFL Ex PX. It is only when the sample of the food item is taken and at that time it is insect infested, the accused can be held guilty under the provisions of PFA Act and not when due to long period of about 3 1/2 months taken in the analysis of the sample at CFL on account of delayed prosecution of the accused, when the insects cropped up in the sample due to some extraneous reasons beyond the control of the appellant. Therefore, in the light of the above authorities of our Hon High Court and the other Hon Height Courts the appellant cannot be held guilty in this case.
There is also one more important aspect in this case. There is considerable variation in the values given to different items in the report of Public Analyst Ex PW1/F and in the Certificate of Director CFL, Ex PX with regard to moisture, total Ash, alcoholic acidity.In Municipal Corporation of Delhi v. Ved Parkash 1984 (II) FAC 304 (Del), it was observed as follows:
"6.The second ground on which the trial court thought fit to discharge the accused is also just and reasonable, it is to be noticed that the Public Analyst on examining the sample found it to be insect infested and vide his report Exhibit PE, held the sample to be adulterated due to the presence of 10.5 per cent insect damaged Amchoor pieces by weight and due to the presence of insect infestation. The Director, Central Food Laboratory on examining the sample after a lapse of nearly five months vide his report, Exhibit PX, found the sample adulterated being insect damaged "with appreciable amount of dead and living insects". In : 21 : others words, it means that with the passage of time living insects which were found by the public Analyst continued breeding, some of which also died. That is why, the Director, Central Food Laboratory, found "appreciable amount" of living insects as well. It the circumstances, it can not be said that the trial Court was wrong in holding that the sample bottle was not the securely fastened because the Director, Central Food Laboratory had found "appreciable amount" of living insects in the sample examined by him after a lapse of five months. In others words, the bottle of sample was not airright and the insects already present in sample of Amchur whole continued breeding. The trial Court was accordingly right in holding that the respondent because of the late filing of the compliant, could not effectively exercise his right under Section 13 (2) of the Act in obtaining the opinion of the Director, Central Food Laboratory, Calcutta, on the sample being not in the same condition in which was at the time it was purchased."
Therefore, it can be presumed that the sample bottle was not properly made air tight leading to the variation in the report of the Public Analyst and in the Certificate of Director CFL.
In the present case PW1 Food Inspector Shri Rajesh Kumar has stated in the crossexamination that he could not tell as to on what date the sample bottles used by him in the present sample were issued to him even by approximation, nor he could tell whether these were issued 20 days/25 days prior to the date of sampling. He admitted that it was correct that the sample bottles (empty one) were kept in the : 22 : almirah along with the other articles containing documents and the leather bags also. The bottles were not vacuum proof but they had a stopper. He had not cleaned the sample bottles at the spot nor he had sterilised the same. He had not washed his hands before taking the sample. The Food Inspector Shri Rajesh Kumar has also stated in the crossexamination that he had not cleaned the jhaba which was already kept at the shop of the accused. He also stated that he did not remember as to how much empty space, if any, was left in the sample bottles after filling Maida. PW3 Food Inspector Shri Arun Kumar has also stated in the crossexamination that the gap between the stopper and the material lying in the bottle was about two fingers. He also stated that he did not advise the Food Inspector to create vacuum before placing the stopper nor did he himself did it. He stated that it was correct that the bottles were not sterilised or cleaned at the spot. It was also correct that the jhaba was not cleaned at the spot then he volunteered that it was already clean and dry. The statements of the Food Inspectors do not augur well for the prosecution case, more so, when the sample was taken in the rainy season in the month of August and there was delay in the analysis of sample at CFL for about 3 1/2 months.
The cumulative effect of the above discussion is that the appeal succeeds. RESULT OF THE APPEAL In view of the above discussion the appeal is allowed. The impugned judgement of conviction followed by impugned order on sentence passed by the learned trial court are setaside. The appellant is acquitted of the charges framed by the learned trial court. The fine, if paid by the appellant in terms of the impugned order on sentence passed by the learned trial court be directed by the learned trial : 23 : court to be refunded to him. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on th 7 day of July 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi