DELHI ADMINISTRATION v. GIAN PRAKASH

1. The present petition is directed against the judgment passed by the learned Additional Sessions Judge dated ih July, 2008 allowing the appeal of the respondent against the judgment dated 28th July, 1986 and order on sentence dated 30th July, 1986 passed by the learned Metropolitan Magistrate in PFA Case No. 74/84 convicting the Respondent for offences CRL.L.P. No. 194/2010 2010:DHC:15545 punishable under Section 7 read with Section 16 of Prevention of Food ~ Adulteration Act (PFA).

2. Learned APP for the State contends that the learned Addl. Sessions Judge without appreciating the evidence passed the impugned judgment on the basis of surmises and conjectures. The learned Additional Sessions Judge failed to appreciate the settled position of law in relation to the evidence on record which beyond any iota of doubt fully proves the case of the Petitioner. Thus, the impugned order is liable to be set aside and judgment passed by the Learned Metropolitan restored.

3. Learned counsel for the Respondent states that the impugned judgment suffers from no illegality or infirmity and the conclusion reached by the learned Judge is based upon the judicial pronouncements which have a direct application to the facts ofthe present case. The impugned judgment is well-reasoned and calls for no interference by this Court.

4. I have heard learned counsel for the parties and perused the record. Briefly the facts of the case are that on 11th February, 1985 at about 3:00 p.m. Food Inspector Shri Dharmpal Singh purchased a sample of maida for analysis from Sh. Vijender Kumar at M/s Sharma Store, Shop No. 11, Mehrauli, Badarpr Khanpur, New Delhi who was carrying the business of the said food article at the time of sampling. The sample consisted of 600 grams of the food article. Accused Vijender Kumar at the time of sampling 8 disclosed that he had purchased the sampled maida from Sh. Gian Prakash proprietor of M/s Gupta Store, 1184/13, Govindpuri, Kalkaji, New Delhi. The sample was taken from an open gunny bag bearing no label declaration. The sample was divided into three equal parts and each part was put in a separate clean and dry bottle and each of it was packed separately, fastened and sealed as per the provisions of PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. It is stated that before starting the proceedings, efforts were made to join the public witnesses but none came forward. All the documents were got signed from the Respondent and other witnesses. The sample was taken under the supervision of local health authorities. One of the three samples was got deposited with the public analyst with seals intact. The other two counterparts of the sample were deposited with the local health authority. On analysis ofthe sample, the Public Analyst found the sample to be adulterated because of presence of 5 insects, one excreta and alcoholic acidity 0.14% as against the maximrun limit of 0.12%. Thus it was opined that the sample did not conform to the standards. The Respondent exercised his right under Section 13(2) of the PFA Act and requested to get the second counterpart of the sample to be analysed from the Director CPL. The report submitted by CRL.L.P. No. 19412010 the Director CFL observed that the maida was adulterated due to presence of gluten at 2.29% as against the minimum prescribed limit of 7.5% and alcoholic acidity was found to be 0.27 as against the maximum prescribed limit of 0.12%, in addition abundant living weevils and grubs were also found. Thereafter, learned Metropolitan Magistrate after hearing the parties acquitted the co-accused Vijender and convicted the Respondent. This order of the learned Metropolitan Magistrate was challenged by the Respondent which appeal was allowed by the learned Additional Sessions Judge. The same is impugned in the present petition.

5. The learned Additional Sessions Judge after perusing the record and appreciating the evidence placed on record acquitted the Respondent observing that PW[2] and PW[3] had deposed before the Court that there were no visible insects at the time of lifting of sample. Further, PW[4] Food • Inspector Ranjit Singh has stated in his cross-examination that he did not notice any insect nor any rodent excreta at the time of taking the sample. There is no procedure for adding any preservative in the maida. He also stated that some empty space was left in the bottle. It was further observed that the weevils and grubs were not present at the time of sampling. Learned Additional Sessions Judge observed that the sample of the food article was taken on 11th February, 1985 but was analyzed by CFL on 21st June, 1985 i.e. after more than four months. Hence, the possibility of the living weevils which were found in abundance in the food article cropping up in the sample after taking the sample cannot be ruled out.

6. Learned Addl. Sessions Judge observed that the Appellant/ Respondent could not be held liable for the presence of wheat starch in the sample because of non-describing of its quantity in the certificate of Director, CFL. Further the certificate of Director shows that the wheat starch was found by microscopic examination and no chemical analysis was done. The microscopic examination of a sample is not sufficient to come to the conclusion that the sample is actually adulterated. Thus, the learned Addl. Sessions Judge extended the benefit of doubt to the Respondent.

7. It may be noted that the report of public analyst records the moisture content at 12.51%, total ash to be 0.8%, gluten 8.64%, alcoholic acidity to be 0.14% as against the maximum limit of0.12% and found five living insects and one excreta in whole sample whereas the report received from Director, CFL dated 21st June, 1985 recorded the moisture content to be at 13.22% total ash to be.83%, gluten 2.29% and alcoholic acidity was found to be 0.27% with presence of wheat starch with microscopic examination. Abundant living weevils and grubs were also found present in the food article. PW[4] Ranjit Singh, Food Inspector has deposed that at the time of sampling no living insects were found in the food article. The sample was @ sent to CFL after four months and if there were any insects present in the food sample they would have been dead after a period of four months in the container if properly packed and sealed in air tight container. In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), it was observed as follows: "2. It is not a fit case in which we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render the same adulterated. The Standard ofSaunfhas been prescribed in Rule

8. On a perusal of the report of the Director, CFL it is apparent that the only test conducted was a microscopical examination which opined that the food article was adulterated with wheat starch. No other chemical test of the said food article was conducted. The Hon'ble Supreme Court in Jagdish Chander vs. State of UP. 1981, Vol.!. PFA Case 33 held that where the sample of dalchini had not undergone the chemical test but it was only examined under a microscope, the benefit of doubt must be given to the accused. Similarly, in the case at hand the only test conducted was a microscopic examination of the food article and not a chemical test. The precise nature or content of the starch has also not been specified. Thus, in view of the facts and circumstances of the present case the benefit of doubt has been rightly granted to the Respondent by the learned Addl. Sessions Judge. I find no infinnity in the impugned judgment calling interference of this court.

9. The petition and application are, accordingly, dismissed. Trial Court Record be sent back.