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HIGH COURT OF DELHI
JUDGMENT
For the Petitioner : Ms. Isha Khanna, APP For the Respondents : None
1. The present is a petition for grant of leave to appeal against the impugned order dated 04.02.2010 passed by the Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No.34/94 whereby the respondents have been acquitted of the charges levelled against them. 2015:DHC:4382-DB
2. The facts herein briefly are, the Food Inspector Mr. Sanjeev Kumar purchased a sample of vegetable sauce from the respondents on 02.12.1993 at about 01.30 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 respondents’ 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 in intact condition and two counter parts were deposited with the LHA. Upon analysis it was found that the sample did not conform to standards as total soluble solid and total acidity in terms of acetic acid was less than the prescribed minimum limit of 15% and 1% respectively. The respondents were charged under Section 2(ia)(a)(m) of PFA Act punishable under Section 16(1)(a) read with Section 7 of the PFA Act and Rules to which he pleaded not guilty.
3. The 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. Further it has been suggested by the petitioner that the delay in sending the sample for testing was not on their account.
4. 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.”
5. 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:-
6. 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 shows substantial variance in the report of the PA and the Director CFL. In the PA report the total soluble solid and total acidity in terms of acetic acid was found to be 11.72% and 0.46% respectively whereas the same was found to be 12.3% and 1.36% respectively as per the report of the Director, CFL. The State has not satisfactorily explained the said variance. Further, the State has not explained the delay of almost three months in filing the complaint against the accused.
7. 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 respondents.
8. 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 MAY 15, 2015 dn