1 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUGDE NEW DELHI Criminal Appeal No. 51/02 [ENTITY], s/o Sh. Shadi Ram M/s Garh Ganga Paneer Bhandar, Stall no.1, near Hanuman Mandir, Sabzi Market, Sewa Nagar Chowk, New Delhi. Appellant Vs. [ENTITY], Delhi (State) Respondent Date of Institution : 3.9.2002 Date when arguments were heard 1.7.08 Date of Judgment 2.7.08 JUDGMENT
This appeal is directed against the judgment dated 09.8.2002 passed by learned Metropolitan Magistrate, New Delhi by which the appellant was convicted under [SECTION] of [ACT] ( in short [ACT]). By subsequent order dated 19.8.2002 on the point of sentence, the appellant was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs 3000/ and in default of payment of fine he was directed to undergo simple imprisonment for two months. Aggrieved by the judgment and order on sentence passed against him, the appellant has preferred this appeal. BRIEF FACTS The prosecution case, in brief, is that on 24.9.92, Foot Inspector, Sh. [ENTITY] purchased a sample of paneer from the appellant at M/s Garh Ganga Paneer Bhandar. The said food article was found stored for sale for human consumption and appellant was found conducting the business there. The sample of paneer was taken from a brick and after taking the sample, it was divided into three equal parts with the help of clean and dry knife and each counter part was put in clean and dry bottles and 20 drops of formallin were put in each bottle. One of the sample bottle was sent to public Analyst, who found the sample of paneer adulterated. The appellant exercised his right u/[SECTION] [ACT] and the second counter part of the sample was sent to the Director, FSL, Mysore for analysis who issued the certificate confirming the sample being 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. CHARGE AND PLEA OF THE ACCUSED:
Notice under [SECTION] [ACT] for commission of offence punishable under [SECTION] [ACT] was given to the appellant by the learned trial court to which he pleaded not guilty and claimed trial .
PROECUTION EVIDENCE In support of its case, the prosecution has examined two witnesses in all. PW1, Sh. [ENTITY], Food Inspector and PW2, Sh. [ENTITY], Local Health Authority. Thereafter, the prosecution evidence was closed.
PLEA AND DEFENCE OF THE ACCUSED In his statement under [SECTION] [ACT] the appellant has admitted that the sample of paneer was taken from him by the Food Inspector and the documents were prepared by the Food Inspector for this purpose but according to him, the paneer was not properly mixed and during the alleged process of homogenization sufficient fat was drained out which was not put into sample bottles. The appellant stated that it was a false case against him and he was innocent. In support of his case, the appellant has examined only one witness namely DW1, Sh. [ENTITY] and closed his defence evidence. ARGUMENTS AND FINDING I have heard the learned counsel for the appellant, the Special Public Prosecutor for the respondent State and have gone through the written arguments filed on behalf of the respondent State in this appeal and the record of the trial court, carefully.
The contention on behalf of the appellant is that the sample of [ENTITY] was taken by the Food Inspector on 24/9/1992 but the complaint was filed in the trial court on 6/1/1993. The second counterpart of the sample was received in the CFL for analysis on 17/2/1993 and the Certificate was issued by Director CFL after analysis on 25 /2/1993. The argument is that by the time the counterpart of the sample of [ENTITY] was sent to the CFL it has lost its value and was decomposed and so was not fit for analysis. Therefore, the valuable right under [SECTION] Of the [ACT] available to the accused was lost on account of the delay on the part of the prosecution so the appellant is entitled to acquittal and judgement of conviction and order of sentence passed by learned trial court are liable to be set aside.
In Chanan [ENTITY] v. The State 1972 FAC 292 (Del), relied on behalf of the appellant it was observed after examining the statement of the experts as follows :
" On the basis of the abovementioned evidence, it is safe for me to assume that the sample of [ENTITY] to which requisite drops of formalin have been added and which is kept in a refrigeratar would remain fit for analysis for about one month."
In Municipal Corporation of Delhi and another v. [ENTITY] and another 1972 FAC 495 (Del), it was observed as follows :
" In this view of the matter inasmuch as there was a possibility of chemical changes in the sample during the period of eight months that elapsed between the taking of the sample and the analysis thereof by the Director, Central Food Laboratory, it cannot be said with any certainty that no changes at all took place in the chemical composition of the sample produced by the accused. Mr. [ENTITY] wanted to compare the Public Analyst's report with the report of the Director, Central Food Laboratory, but this he is not permitted to do in view of the provisions of [SECTION] of the Act under which once a certificate of the Director has been obtained, the Public Analyst's report stands completely superseded."
In [PRECEDENT], it was observed as follows:
" Learned Trial Court has relied upon one judgment of the Hon'ble Supreme Court in 'Municipal Corporation of Delhi v. [ENTITY] 1975 (I) PFA cases 186. In that case the complaint was filed in Court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under [SECTION] of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Mr. [ENTITY], learned APP had submitted that this judgment was not applicable to the facts of the present case since in that case the Director of Central food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Directory which, if had been given, would have superseded the report of the Public Analyst and so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of [SECTION] of the Act to him while in the present case despite the delay in the filing of the complaint in court the third counter part of the sample which was sent for analysis, as per the CFL report, did not conform to the prescribed standard. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in [ENTITY]'s case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time frim taking of the samples to sending it to CFL. PW5 FI, [ENTITY] in his crossexamination has categorically stated that their department had not refrigerator in the office and the sample bottles were kept by them at ordinary room temperature in steel Almirah. In these circumstance, if the learned Trial Court has come to the conclusion that the accused's righty under [SECTION] of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable."
In the present case the sample of [ENTITY] was lifted by the Food Inspector on 9/9/1992 and the complaint against the appellant was filed before learned Metropolitan Magistrate on 2/12/1992 and the second counterpart of sample was received in CFL for analysis on the request of the appellant on 5/2/1993 and the Director CFL issued certificate ExPX on 22/2/1993. Therefore, the sample was analysed in CFL after about five months which according to [ENTITY]'s case (supra) has become unfit for analysis despite adding Formaline to the sample of [ENTITY] which is stated by the prosecution witnesses in this case. Consequently, the valuable right granted by the legislature under [SECTION] of the [ACT] was frustrated causing prejudice to the appellant as he could not challenge effectively the report of the Public Analyst to prove his innocence. In the light of the above case law he is entitled to the benefit of doubt. Besides the above case law regarding sample of [ENTITY] there is a plethora of cases to show that on account of delay in sending the sample of milk or milk product to CFL for analysis or delay in launching prosecution against the accused, the accused was given the benefit of doubt and the report of Director CFL was discarded. Some of the cases are given below:
In [PRECEDENT], it was observed as follows:
" The Food Inspector, when he appeared. during the trial did not say that the sample retained by him was kept in a refrigerator. In Municipal Corporation of Delhi vs. [ENTITY] 195I77 F.A.C. (SC) 93: 1975 (I) F.A.C. 186 their Lordships of the Supreme Court observed as under:
"The opinion of one of the experts, Dr. [ENTITY], given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a. week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand if the sample is kept in a refrigerator, it will, preserve its fat and nonfatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and nonfatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months."
Normally the sample with the Food Inspector, to which preservative had been added, could not have remained fit for analysis after more than six months even if it had been kept in a refrigerator. There being no evidence to that effect it will have to be presumed that it was not kept in a refrigerator and, therefore, decomposition should have taken place earlier, particularly as the months of August and September are fairly hot. I am, therefore, inclined to agree with the learned counsel for the petitioner that the genuineness of the sample which had been produced before the trial Magistrate, on January 3, 1966, is not beyond doubt. The seal having remained with the Food Inspector a change of the sample was not impossible. Except on the basis that the sample was changed before being produced on January 3, 1966 it is difficult to explain the fact that it remained in a fit condition for analysis after eight months without being kept in a refrigerator." In [PRECEDENT], Decided On: 13.11.2007 (Del), it was observed as follows:
" Hon'ble Supreme Court in Municipal Corporation of Delhi v. [ENTITY] 1975 PFA cases 186. In that case complaint was filed in the court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under [SECTION] of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Learned APP had submitted that this judgment was not applicable to the facts of the present case inasmuch as in that case the Director of Central Food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superceded the report of the Public Analyst so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of [SECTION] of the Act to him while in the present case despite the delay in the filing of the complaint in court the sample which was sent to the Director of Central Food Laboratory was found to be fit for analysis. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in [ENTITY]'s case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kind of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the sample of the paneer was sent to the Central Food Laboratory after more than seven months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. In these circumstances, if the learned Trial Court has come to the conclusion that the accused's right under [SECTION] of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable, wholly unjustified or perverse."
In [PRECEDENT], it was held that if on account of delay or lapse on the part of the prosecution to institute a prosecution this valuable right of the accused is in any way impaired the question becomes of paramount importance for the purpose of determining if the defence was prejudiced on this account. If prejudice is caused to the accused on accused on account of the delay in the institution of the prosecution, as when the sample is rendered unfit for analysis in the meanwhile, or deterioration of the sample is proved to have occurred in the meanwhile, then the accused is entitled to the benefit of doubt, as the prosecution itself, in such a case prevents the accused from getting the final verdict to which he is entitled under [SECTION] of the Act.
In The [PRECEDENT], it was observed as follows:
" Another aspect of the matter is that the sample was received by the Public Analyst on 2661985 and it was analysed on 2671985 as is evident from the report Ext. PD. This report was forwarded to Shri [ENTITY], Food Inspector on 281985 for launching prosecution against the accused. Complaint dated 138 1985 was filed in the Court. A latter dated 1481985 issued by the local Health Authority was received by the accused along with a copy of the Public Analyst's report wherein a direction was issued to the accused that if he was interested, he could get the second sample tested from the Central Food Laboratory Ghaziabad and if he so desired, he could ask for the same within ten days of the receipt of the letter. On 20819856, the accused moved an application for producing the sample in the Court. The sample was produced in the Court on 18101985 and it was analysed by the Central Food Laboratory on 2810 1985. Thus the whole process consumed more than four months resulting in violation of the provisions of [SECTION] of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such requisition from the Court. Where sample of food article like milk which is of perishable nature is kept for such a ling time of more than four months at room temperature (Particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. Had moved the application on 2081985 for production of the sample in the Court but it was produced on 18101985. To add to the miseries of the accused it was analysed on 2810 1985 i.e., much more than four months from the taking of the sample. Under these circumstances, nonproduction of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution."
In [PRECEDENT], it was observed as follows:
" It is not in dispute that right to examine the remaining sample from Central Food Laboratory was valuable right of the applicant and this could not be destroyed by the prosecution and it is settled position of law that after 6 months preservative mixed with the milk has and lost its strength as deteriorated and the sample does not remain fit for analyses. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice under [SECTION] was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central food Laboratory. So this cannot be said that the application under [SECTION] of the Act was not moved by the applicant even after receiving the said notice Ex.P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an application was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample.
My aforesaid view is supported by the decided case of this Court in the matter of [PRECEDENT] in which it was held as under : "Held, that in any case by the time the accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right under [SECTION] because of the inordinate delay in launching prosecution and he was entitled to acquittal. [PRECEDENT]: [PRECEDENT] and [CASE NUMBER], Rel. [PRECEDENT] and [PRECEDENT], Dist. AIR 1951 Nag. 191, Ref. (Paras 6.7). Quoted from Placitum."
In view of the aforesaid, it is apparent that the applicant was deprived of his valuable right under [SECTION] of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was neither examined nor considered by the Courts below and due to this apparent perversity the judgments of the Courts below are not sustainable in law."
In [PRECEDENT], it was observed as follows:
" The petitioner was served on March 21, 1979 for, appearance in Court i e. exactly four months after the date on which, the sample was taken In the wake of, the above finding, it is only after March 21, 1979 that the, Petitioner could be expected to apply to the Court for sending the second sample for reanalysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned counsel has placed reliance upon the observation of Their . Lordship of the Supreme Court in Municipal Corporation of Delhi v, [ENTITY], 1975 (I) FAG 186 as followed by this Court in [PRECEDENT] that even if a preservative is added in the sample of milk at room .temperature, the percentage of fat and nonfatty, solids contents for purposes of analysis will be retained only for about four months. This period having already elapsed, it has been rightly argued that petitioner was deprived of his valuable right causing him serious, prejudice. "
In [PRECEDENT], it was observed as follows:
" The contention of the revisionist is that an account of undue delay in filing the Complaint against him for the alleged adulteration and also on account of inordinate delay in sending the report of the Public Analyst to him be was 'deprived of his valuable right to move for obtaining the report of the Director of Central Food Laboratory under [SECTION] of the Act with regard to the sample of the milk taken. His contention is that as the report of the Public Analyst was sent to him as late as on 1211980 that is to say about 8 months after taking of the sample it was obviously quite useless for him to move far obtaining the, report of the Central Food Laboratory under [SECTION] of the Act, because by that time the sample must be decomposed and deteriorated and would not have remained fit for analysis his connection it is material to note that even the complaint against the , revisionist on the basis of the report of the Public Analyst seems to have been reveived in the Court on 10180. The complaint is dated 311279. The revisionist has relied on the cast of Municipal Corporation of .Delhi v. [ENTITY] 1975(1) FAC 186 and [PRECEDENT] in support of his contention. On account of inordinate delay the revisionist was virtually deprived of his valuable right under [SECTION] of the Act to get the sample analysed by the Director of Central Food Laboratory. It was of no use to move for obtaining the report of the Director , of Central Food Laboratory as the sample kept in the office of Chief Medical Officer, must have decomposed and deteriorated making it unfit for analysis by the Director. Consequently, the conviction and sentences of the revisionist cannot be upheld in the revision. The revision has to be allowed."
In [PRECEDENT], it was observed as follows:
" The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 52 1980. The Authority, however, dragged its feet for the full period of 4 months further and did not institute prosecution before 761980 and thereafter on 961980 a notice was given by the local authority to the petitioner under [SECTION] of, the [ACT] informing him that he was at liberty to send to the Director of Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2nd sample to be sent to the Director, by making an application in that behalf on or before 1961980. The sample would have been thereafter sent to the Director. This means that the sample of the milk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that preservative was added. It has been held by our Court in 1982, [CASE NUMBER] that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the sample for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted to prove that the milk had remained in tact even after such a longer period, it was for the prosecution to prove that fact by examining proper experts in that behalf."
The argument on behalf of the respondent is that under the [ACT] there is no time limit prescribed for sending the second sample to CFL on the request of the accused. Both counterpart of sample sent to Public Analyst and CFL were received in tact , the samples were fit for analysis by the experts so delay in sending the sample has not damaged the samples and no no prejudice is caused to the accused in any way. Reliance is placed upon the following authority.
In T.V. [ENTITY] v. Food Inspector, Tellicherry Municipality, Tellicherry" AIR 1994 SC 1818, it was observed as follows:
" In Maxwell on Interpretation of Statutes, Eleventh Edition, at page 362 it is stated is under:
"Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention; that is to say, such a requirement would be imperative."
It is further stated on page 364 that:
"The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
xx xx xx xx xx xx When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative."
In [ENTITY]' Statute Law, Seventh edition at page 62 it is stated thus:
"When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory."
At page 250 it is further stated thus:
"The question whether the provisions in a statute are directory or imperative has frequently arisen in this country, but at has been said that no general rule can be laid down and that in every case the object of the statute must be looked at When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validating of acts done."
In [PRECEDENT] it was held as under (at p. 185. of AIR):
"Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
In [SECTION] no doubt the expression "shall" is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no, reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. may be, in a given case, if there is inordinate delay, the court may not attach any value to the report but merely because the time limit is prescribed, it cannot be said that even a slight delay would render the report void or inadmissible in law. In this context it must be noted that [SECTION] is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, [SECTION] of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay As such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred u/ [SECTION] and that depends on the facts of each case and violation of the time limit given in [SECTION] by itself cannot be a ground for the prosecution case being thrown out.
The [ENTITY] 's case (supra) relied on behalf of the respondent State shows that if the sample was found fit for analysis by CFL then no prejudice can be said to have been caused to the accused on account of delay in sending the sample to CFL. It is to be noted that in [ENTITY] 's case (supra) the food article the sample of which was taken was 'Pan supari 'which does not seem to be quick perishable item like milk or milk products including [ENTITY] and it was not a case in which the said counterpart of the sample was sent to Director CFL but the facts of the case show that the Public Analyst instead of sending the report to the Local Held Authority within 45 days sent the same in 60 days. Therefore, [ENTITY]'s case (supra) is inapplicable to the present case. In the present case in the light of [ENTITY]'s case (supra) the delay in sending sample to the CFL has resulted into the decomposition of the sample of [ENTITY] sent to CFL leading to denial of the valuable right of the appellant under [SECTION] of the [ACT] to challenge the report of the Public Analyst. Therefore, the report of the Director CFL is liable to be excluded. The question now arises whether after exclusion of the report of Director CFL can the prosecution rely upon the report of Public Analyst? The answer lies in the following authority of Supreme Court:
In [ENTITY] v. State of M.P. and another 1981 (II) FAC 280 (S. C.), it was observed as follows :
" Under [SECTION] of The [ACT], the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central food Laboratory having been excluded from consideration because of the tampering of the seal, there was really no evidence before the Court on basis of which the appellant could be convicted. The Court could not fall back on the report of the public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant. The appeal is allowed, the conviction and sentence are set aside."
In view of [ENTITY]'s case (supra) and [ENTITY]'s case (supra) the prosecution cannot rely upon the report of the of Public Analyst even after exclusion of the report of Director CFL. The appellant, therefore, is entitled to the benefit of doubt in this case that should be acquitted. Therefore, I need not going to the other arguments addressed on behalf of the parties regarding nonjoining of the public witnesses at the time of taking sample, the loss of water and fat at the time of cutting the [ENTITY] before taking sample and also in further cutting sample of [ENTITY] with the help of knife etc raised on behalf of the appellant and replied on behalf of the respondent State.
RESULT OF APPEAL:
In view of the above discussion the appeal is allowed. The judgement of conviction and order on sentence passed by the learned trial court are setaside. The appellant is acquitted of the charges under [SECTION] of the [ACT] framed by the learned trial court by way of giving Notice under [SECTION] [ACT] to the appellant. The bail bonds furnished in the appeal are cancelled. The fine, if paid by the appellant in terms of judgement and order on sentence passed by learned trial court be refunded to him by the order of learned trial court. 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 filed be consigned to the record room.
Announced in the open court on 2nd day of July, 2008 ( [ENTITY] ) Additional Sessions Judge Patiala House Court