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1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction dated 07.03.2017 and Rakesh Kumar Vs. The State (Delhi Administration) 1/13 order on sentence dated 14.03.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.

2. The brief facts of the case as per record are that accused was running an establishment in the name of M/s Mahfil Restaurant, C-2/342, Yamuna Vihar, Delhi. On 21.05.2001, Food Inspector Sh. R.P. Singh alongwith FI Sh. D.V. Singh and SDM/LHA Sh. Satnam Singh visited the said establishment and lifted 900 grams of Kaju pieces from an open polythene bag having no label declaration. The said sample was divided into three parts and packed as per Rules. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, the sample was adulterated because it was insect infested having many dead insects. On all other parameters, the sample was passed by the report of the PA.

No live or dead insects were visible in the sample commodity with naked eyes.

17. PW-3 Sh. Satnam Singh has also admitted during cross examination that:

During sample proceedings, no live or dead insects were visible to me with naked eyes.

18. As far as the presence of insects on the date of taking of sample is concerned as already noted that PW-2 and PW-3 have admitted in their cross examination that they were unable to see any live or dead insect with the naked eye at the time of taking of sample.

28. firstly, as per the said decision of the Hon'ble Supreme Court of India, the sample was taken on 03.10.1970 and 3 days later, the sample was found insect infested by the PA. The report further recorded that 23.8% of pieces of Amchoor Sabat were found to be insect infested. Further, to my mind, there was no evidence on record to show what was the state of sample on 03.10.1970 as noticed by the Hon'ble Supreme Court of India in para 4 of the judgment.

29. Coming back to the facts of the present case, firstly, the report in the present case is dated 14 days after the date of taking of sample with no indication as to when the PA had opened the sample and observed the living and dead insects whether they were spotted on 22.05.2001 or on 06.06.2001 and there is a gap of about 12 days between the 2 dates which is sufficient for insects to develop in ordinary course.

30. Secondly, there is categorical admission by PW-2 and PW-3 that on the date when the sample was taken, they had not seen any insect dead or alive in the sample being taken.

31. Therefore, this is not a case where it cannot be said as to what was the state of sample on the date it was taken, rather, the admission made by PW-2 and PW-3 indicates that on the date when the sample was taken, no insect was visible to the naked eye.

32. Thirdly, PW-2 FI DV Singh in his cross examination admitted that: