UNREPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI DATE OF DECISION: January 07, 2009 + CRL. L.P. 286/2008 and Crl. M.A. 14134/2008 STATE ..... Appellant Through: Mr. Manoj Ohri, APP for the State versus JANKI PARSHAD ..... Respondent Through: Nemo CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. (ORAL) 1. The respondent, Janki Parshad, a halwai by vocation, was convicted by the Metropolitan Magistrate, New Delhi, under Section 16(1)(c) of the Prevention of Food Adulteration Act ( hereinafter referred to as 'the PFA Act') and sentenced to undergo rigorous imprisonment for nine months and to pay fine of Rs.2,500/-, in default simple imprisonment for two months on the allegation that on 29th August, 1983 at about 3:15 p.m., Food Inspector Jeet Singh under the supervision of Sh. G.P. Singh, Local Health Authority and Brahma Nand visited the business premises of the respondent and purchased a sample of lal mirch kutti from the respondent. The purchased lal mirch kutti was then equally poured into three clean and dry bottles as per rules. The price of the sampled lal mirch kutti which was offered by the Food Inspector was refused by the respondent. While the three bottles were in the process of being sealed, the respondent threw them away and CRL. L.P. 286/2008 Page No. 1 of 4 thereby prevented the Food Inspector from lifting the sample. The then Secretary (Med.) accorded the consent for the prosecution of the appellant and complaint was filed before the learned Metropolitan Magistrate who convicted and sentenced the appellant as stated hereinabove. 2. The respondent challenged his conviction by filing an appeal before the Sessions Court, New Delhi. Setting aside the judgment and order of conviction passed by the Metropolitan Magistrate, the learned Additional Sessions Judge held that the prosecution having failed to establish that the respondent was using the said 'lal mirch' in any food article or selling the 'lal mirch' to any customer or keeping it for sale at his halwai shop, the offence under Section 16(1)(c) of the PFA Act was not made out. He further held that in view of the acquittal of the respondent in the police case lodged by the Food Inspector with similar allegations for the offences under Section 186/353/201 IPC, the judgment of conviction could not be sustained on the principle that there should not be conflicting findings and results in two cases decided by two different criminal courts in the same matter arising out of the same incident. In this view of the matter, by his judgment dated 4th July, 2008, the learned Additional Sessions Judge allowed the appeal and set aside the conviction and sentence passed by the learned Magistrate and acquitted the accused. It is the said acquittal which is challenged by the State by filing the present appeal. 3. On going through the evidence produced by the learned Additional Public CRL. L.P. 286/2008 Page No. 2 of 4 Prosecutor, I find that the learned Additional Sessions Judge has carefully scrutinised the evidence and found several material contradictions in the statements of prosecution witnesses, apart from discrepancies in the prosecution case itself. For instance, he noticed that the Food Inspector Jeet Singh (PW-3) has not stated in his report lodged with the police (Exhibit PW3/B) that the respondent had snatched one bottle from his hand, while he has stated so before the Court (though in his cross-examination and not in the examination-in-chief). Further, the Food Inspector (PW-3 – Jeet Singh) stated in his cross-examination that he had not accompanied the police to the spot after the incident, but as per the statement of the Investigating Officer, the site plan (Exhibit PW3/A) was prepared at the instance of PW-3 Jeet Singh. Then again, PW-3 Jeet Singh in his cross- examination stated that the respondent had thrown the sample bottles inside the shop, but the site plan prepared by the Investigating Officer shows that the bottles had been thrown outside the shop. In the circumstances of the case and particularly having regard to the discrepancies found, the learned Judge found that the testimony of the police witnesses could not be safely relied on. Further, the public witnesses DW1 Rohtas and DW2 Abdul Majid also supported the case of the respondent by deposing that the respondent did not prevent the Food Inspector from taking samples of the lal mirch. Keeping all this in view, it cannot be said that the appreciation of evidence by the learned Judge was in any manner unreasonable. CRL. L.P. 286/2008 Page No. 3 of 4 4. Sub-section (2) of Section 10 of the PFA Act specifically authorises the Food Inspector to take samples of those food articles which are “manufactured”, “stored” or “exposed for sale”. Even assuming the prosecution version of the sampling incident to be correct, there is no evidence led by the prosecution to show that the respondent was using the lal mirch in any food article or was selling the lal mirch to the customers or keeping the same for sale at his shop, where he was selling sweet meats. 5. A three Judge Bench of the Supreme Court in the case of Municipal Corporation of Delhi vs. Laxmi Narain Tandon & Others 1975 (2) FAC 444 has made it clear that if an article of food is not intended for sale and is in the possession of a person who does not fulfill the character of a seller, conveyor, deliverer, consignee, manufacturer or storer for sale, such as is referred in Sub- sections (1)(a) and (2) of the Section 10, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon. 6. Having regard to these facts and circumstances, it is not possible for me to interfere with the findings of the learned Sessions Judge. Leave to appeal is accordingly declined. Resultantly, CRL. L.P. 286/2008 and Crl. M.A. 14134/2008 are dismissed. REVA KHETRAPAL, J. JANUARY 07, 2009 km CRL. L.P. 286/2008 Page No. 4 of 4