Food Inspector v. Daya Ram Chauhan

#5 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: April 8, 2016 + CRL.L.P. 423/2015 FOOD INSPECTOR ..... Petitioner

Versus

DAYA RAM CHAUHAN ..... Respondent Advocates who appeared in this case:

For the Petitioner : Mr. Ravi Nayak, APP For the Respondent : None

CORAM:

HON'BLE MR JUSTICE SIDDHARTH MRIDUL SIDDHARTH MRIDUL, J. (ORAL) 1.

The present is a petition for grant of leave to appeal against the impugned order dated 17.08.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No. 04/06 whereby the respondent has been acquitted of the charges levelled against them under sections 2(ia)(a)&(j) punishable under section 16(1)(a) read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'PFA Act').

2.

The facts herein briefly are, the Food Inspector Shri Sanjeev Kumar Gupta purchased a sample of 'Boondi Laddoo' from the respondent , Daya Ram Chauhan s/o Sh. M.D. Chauhan at M/s Bikaner Sweets Corner, S.No. H-23/24, Mangol Puri, Delhi-83, on 22.10.2005 at about 1.30 p.m. Thereafter, the Food Inspector divided the sample into three equal parts; 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 (hereinafter referred to as 'PA') in intact condition and two counter parts were deposited with the LHA.

Upon analysis it was found by the PA that the sample was adulterated because Total Dye Content of the synthetic colour used exceeded the maximum prescribed limit of 100 ppm. On 17.01.2006, the respondent moved an application u/s 13(2) PFA Act, and a second counterpart of the sample was examined by the Director, CFL. As per the report of the Director, CFL, the quantity of synthetic permitted colours was found to be 266.02 ppm.

3.

The respondent was charged under Sections 2(ia)(a), and 2(ia)(j) punishable under Section 16(1) read with Section 7 of the PFA Act and Rules, to which he pleaded not guilty.

4.

The solitary 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 respondents that there was vast variation between the report of PA and the Director, CFL which establishes that the sample was not representative. 5.

On the other hand, it was argued on behalf of the appellant that since the CFL report was conclusive on all aspects, there was no need for the trial Court to have looked at the PA report in this behalf. 6.

The Trial Court relied upon the decision of this court in Kanshi Nath vs. State, 2005 (2) FAC 219, Delhi High Court, 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 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."

7.

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:- "16. 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 find whether the sample was representative or not. In the present case as per report of the Public Analyst dated 02.11.05 the sample was found adulterated because quantity of synthetic permitted colour used exceeded the prescribed maximum limit of 100 ppm and it was found 187.

64 ppm while the second counterpart of the same sample when examined by the Director, CFL, Calcutta, the synthetic permitted colours were found 266.02 ppm. There is a variation of 78.38 ppm of colour concentration as found by two Analysts in respect of counterpart of same sample. Further on physical examination of the sample commodity, Public Analyst found, orange colour sample of sweet with Magaz, while the Director, CFL in the second counterpart found orange colour (dark) Laddoo, and no Magaz were found by him. There is vast variation between two reports in respect of colour concentration and same is not within acceptable range of 0.3% as held in Kanshi Nath vs. State (Supra).

Complainant has failed to explain the variation in respect of colour concentration and presence of Magaz as analysed by two Analysts in respect of the counterpart of the same sample. Thereby relying on Kanshi Nath vs. State (Supra) I am of the considered view that the sample was not representative."

8.

In view of the decision of this court in Kanshi Nath (supra) the arguments made on behalf of the State by the learned APP 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 in terms of the quantity of synthetic permitted colour, which exceeds the permissible variation of 0.3%. The State has not satisfactorily explained the said variance. 9.

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.

10. I see no reason to differ with the conclusion arrived at by the Trial Court passed based on the discussion extracted hereinabove. Consequently, the present petition seeking leave to appeal is without merit and the same is dismissed.

SIDDHARTH MRIDUL, J APRIL 8, 2016