IN THE COURT OF SH. [ENTITY], ASJ02/FTC, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI Case ID No. 02403R0923642008 Criminal Appeal No. 18/11 [ENTITY], S/o Sh. [ENTITY], M/s. Sulabh Store, Garage 19B/A, NBlock, Shalimar Bagh, Delhi. Appellant versus Local Health Authority, Department of PFA, Govt. of NCT of Delhi. Respondent Date of institution of the case : 17.11.2008 Date when the case reserved for Judgment : 09.05.2012 Date of announcement of Judgment : 24.05.2012 JUDGEMENT
This appeal is directed against the Judgment and order on sentence dated 13.10.2008 and 22.10.2008 respectively, passed by Ld. MM, New Delhi in CC No. 6/95, whereby the appellant was convicted and sentenced to undergo SI for one year and directed to pay fine of Rs. 3000/ and in default of payment of fine S.I. for one month.
The brief facts of the case are that on 19.09.1994 at about 1.00 PM, FI [ENTITY] purchased a sample of '[ENTITY] (Split)', a food article from appellant [ENTITY], s/o Sh. [ENTITY], M/s. Sulabh Store, Garage19B/A, N Block, Shalimar Bagh, Delhi, where the said food article was stored for sale for human consumption. The sample consists of approximately 750 gms of [ENTITY] split taken from an open polythene bag 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 [ACT]. The proceedings were conducted in the presence of SDM/LHA Sh. [ENTITY] and in the presence of Sh. [ENTITY] FI (witness). One counter part of the sample was sent for analysis to PA, who had opined that the sample is adulterated as it is coloured with unpermitted artificial colouring matter which is metanil yellow. Thereafter further investigation revealed that appellant [ENTITY] was the vendorcumProprietor of M/s. Sulabh Store. After obtaining the sanction from Director PFA prosecution was carried out against the appellant/accused [ENTITY]. Thereafter, appellant/ accused was sent a copy of PA report alongwith intimation as required in [SECTION] of [ACT] and further the appellant/accused [ENTITY] appeared and exercised his right u/[SECTION] [ACT] and he was also provided copies of documents. Certificate/report of CFL was received by the court, as per which the sample does not conform to the standards as artificial colouring matter, i.e. metanil yellow was detected.
I have heard the arguments on behalf of the appellant/accused and Ld. Chief Prosecutor for the respondent/State/[ENTITY]. Sh. [ENTITY], Ld. Counsel for the appellant submitted that there is huge variation in the report of PA and CFL. He further submitted that only .3 % variation is acceptable. Ld. counsel for the appellant further submitted that the statement of appellant/accused u/[SECTION] [ACT] was not properly recorded by the Ld. Trial Court and hence, the appellant could not explained the allegations against him properly. He submitted that keeping in view the huge variation between the two reports, the appellant cannot be convicted.
Ld. counsel for the appellant relied upon the case of [PRECEDENT]. in [CASE NUMBER], decided on 26.08.1980, wherein it was held that [ACT] [SECTION] Certificate of the Director Central Food Laboratory supersedes the report of the Public Analyst. But where the reports of these two appear to be absolutely divergent and different from each other, then the report of the Public Analyst can be looked into. Held that the counterpart of the sample sent to the Director appeared to be sample of another person rather than of the respondent. Both the reports were found to be very much different from each other. Accordingly, the appeal was dismissed.
On the other hand, the Ld. Chief Prosecutor for the respondent/[ENTITY]., submitted that FSL report supersedes the PA report. He submitted that there is no illegality in the order passed by the Ld. Trial Court and the appellant was rightly convicted.
I have gone through the record and perused the file. In this case, the prosecution had examined three witnesses namely, PW1 [ENTITY] LHA, PW 2 [ENTITY] and PW 3 [ENTITY]. Thereafter, the appellant/accused was examined u/[SECTION] [ACT], in which he stated that the colour detected is natural/inherent colour or due to improper sampling. He further pleaded in his statement u/[SECTION] that the jhabba was not clean and dry and had been used to inspect various food articles by LHA and the sample was spread on brown sheet which was also not clean and dry. Appellant/accused [ENTITY] had not led any defence evidence.
I have gone through the report and perused the file and also analyzed the evidence on record.
As per the PA report, the sample was found adulterated because the same was coloured with an unpermitted artificial colouring matter viz. metanil yellow. However, as per CFL report the sample does not conform to the standards laid down for '[ENTITY]' under the [ACT] and Rules, as it contains unpermitted artificial colouring matter, identified as metanil yellow. Further, as per PA report, foreign matter organic was found 0.02% and foreign matter inorganic was found nil, however, as per CFL report foreign matter as well as inorganic matter and other edible grains were found nil. In PA report, grain damage was found nil, but in CFL report damaged grain was found 1.0 % by weight. In PA report, the moisture was found 10.96 %, but in CFL report the moisture was found 11.9 %. In PA report, the pesticides residue was found present, as lindane, however in CFL report no pesticides residue were found. In both the reports, there is big variation regarding foreign matter organic and inorganic as well as moisture and damaged grains, as well as the presence of pesticides residue.
In the case of State ([ENTITY].) 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 appears that the sample taken were not the representatives of their counterpartsno ground to interfere in the judgment.
In [PRECEDENT] relied upon on behalf of the appellant, 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 [PRECEDENT] (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. [ENTITY], it also becomes clear that although in terms of [SECTION] of [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. [ENTITY] had placed reliance on the Supreme Court decision in [PRECEDENT] (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 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 [PRECEDENT] (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. [ENTITY] 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 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 [PRECEDENT], 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 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.
It is amply clear that there is big variation in both the reports of PA and FSL in respect to moisture, foreign matter, inorganic foreign matter, damaged grain and pesticides residue. Though, in both the reports, the artificial colouring matter metanil yellow were found, but keeping in view the variation in other contents in both the reports, the sample taken by the food inspector, cannot be said to be representative one.
Therefore, in the light of above case law it is amply clear that there is noticeable difference between the report of the Public Analyst and report of CFL, which leads to the inference that sample taken by the Food Inspector was not of representative character. And if the sample taken was not of representative character than the accused is entitled to be acquitted. The 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. Hence, the appellant is entitled to be acquitted on this ground.
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] [ACT]
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 ([ENTITY]) on 24th May, 2012 ASJ02/FTC, PHC/ND 24.05.2012