State v. Dharampal

1. The present is an appeal assailing the order dated 16.11.2005 passed by the Metropolitan Magistrate, New Dellii, in Case No.92/1998 under Sections 16 of tlie Prevention of Food Adulteration Act, 1954, whereby therespondenthas been acquitted ofthe charges levelled against him. CRL.A.863/2008 Page 1 of[5] 2015:DHC:11943

2. To briefly encapsulate the facts, a sample of 'Mustard Oil' was duly lifted on 24.08.1998 jfrom the shop ofthe Respondent at M/S Kamal Oil Mills, 33/9, Bawana Road, Samay Pur, Opposite Sector - 17, Rohini, Delhi - 42, where the respondent was storing and selling the said food article. Upon analysis, it was found by the Public Analyst vide report No. PFA/Enf. 1335/98 dated 29^ August, 1998, that the sample did not conform to the prescribed standards and contained argemone oil. Upon request ofthe Respondent, the second counterpart of the sample was analysed. Vide report dated 20.11.1998, the Director CFL opined that the sample was adulterated, the Bellier test value was 29.2°C which exceeded the maximum prescribed limit of 27.5°C, and there was misbranding. However, in this report no argemone oil was found. The Trial Court while acquitting the respondent held that there was grave variance regarding the presence ofargemone oil, BTT value and misbranding in the two records, and due to this variance the samples were not representative. The Trial Court also observed there was nothing to show that atthe time when the sample was taken, they were mixed or homogenized.

3. The submission on behalf ofthe State is that since the CFL report was conclusive on the aspects, there was no need for the trial court to A have looked at thePAreport inthis behalf CRL.A.863/2008 Page 2of[5]

4. The Trial Court relied upon the decision ofthis court in Kamhi Nath V. State, 2005 (2) FAC219, wherein it was held as follows:- To this extent, the argument raised by Mr. Sharma that once the certificate ofthe Director, CFL is obtained, then that is final and conclusive and the PubHc 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 bythe two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion ofan expert and one has to go by it. In the facts ofthe present case, we find that the variation, as indicated above, is more thanY.3%. Therefore, on the facts ofthe 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 ofthis finding and in the background ofthe law which is well settled, no conviction can be sustained."

5. Relying upon the aforesaid decision in Kanshi Nath (supra), the Trial Court came to the conclusion that the prosecution had failed to establish that the sample was representative. In this behalfthe Trial Court observed as follows:- Similarly in the present case under consideration it is clear from the record that the samples analysed by the Public Analyst and the Director of the Central Food Laboratory are not representative as there is grave variance regarding the presence ofargemone oil, BTT value and misbranding. DWl Mr. S. M. Gupta, who is an expert, has also also testified on similar lines and he has not been cross examined regarding the drastic, alarming and vast variance in both the reports. Due to the grave, drastic, alarming and vast variance in the reports of the Public Ananlyst and the Director of the Central Food Laboratory as well as the other material on record including the testimony ofMr. S.M. Gupta and notice form VI, it is clear that the samples are not representative and both the accused persons are entitled to its benefit. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The evidence led on the record and the entire material on record with the above observations clearly reflect that the sampling was not done properly in terms ofthe PFA Act and Rules and the accused persons are entitled to the benefit of doubt. The case of the complainant does not inspire confidence and is not worthy of credence as it suffers from the overwhelming inconsistencies and grave contradictions as discussed above especially with regard to the samples not being representative; variance in colour; time wrong; samples not of the same lot; no homogenization; improper method of sampling; BTT test not confirmatory; investigation not proper; violation ofRules 14 and 22A etc. CRL.A.863/2008 „. Page 4 of[5] Therefore, in view of tlie foregoing reasons, the conscience ofthis court is completely satisfied that the complainant has miserably failed to prove the charge against both the accused persons i.e. Mr. Dharam Pal and Mr. Kamal Aggarwal that the sample of "Mustard Oil taken is adulterated or misbranded. Consequently, Mr. Dharam Pal and Mr. Kamal Aggarwal, both the accused persons, are hereby acquitted ofthe charge. Their bonds are cancelled and their respective sureties are discharged."

6. Consequently, the Trial Court came to the conclusion that the petitioner herein has failed to prove that the sample was homogenized and representative and resultantlyacquitted the respondent.

7. Isee no reason to differwith 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 andthe same is dismissed.

SIDDHARTH MRIDUL, J SEPTEMBER16,2015 Pages of[5]