Delhi Administration v. Balak Ram

16. On merits, it is argued that in the present case, there is a marginal difference of 0.2% between the prescribed limit of SNF and SNF in the milk sample taken from the Respondent, which as rightly held by the Trial Court could be due to various reasons such as technical errors in conducting the analysis or error in drawing the sample and Proviso to Section 2(ia)(m) of PFA Act envisaging this situation, provides that where the quality or purity of the article, being primary food, falls below the prescribed standards, solely due to natural causes or causes beyond human control, such articles shall not be deemed to be adulterated under sub-clause (m) of Clause 2(ia) of PFA Act. Taking all these factors into account including the marginal difference of 0.2%, Trial Court has acquitted the Respondent, giving benefit of doubt and the judgment deserves to be upheld. It is also argued that Respondent is a Senior Citizen and without any reason is suffering the ordeal of trial since 2001, when the complaint was instituted.

17. Heard learned APP for the State and learned counsel for the Respondent.

18. Learned counsel for the Respondent has, at the outset, raised an important issue regarding the scope and ambit of interference by an Appellate Court in a judgment acquitting the accused. There is no doubt that the Appellate Court has wide powers to re-appreciate the evidence in an appeal against acquittal and come to its own conclusion, both on facts and law, but it is equally settled that the power must be exercised with due care and caution because the presumption of innocence is strengthened by acquittal of the accused by a judicial order. The Supreme Court in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450, elucidated and crystallized the principles that the Courts are required keep in mind as guiding light, when deciding an appeal against a judgment of the Trial Court acquitting the accused and relevant passages from the said judgment are as under:-

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in “grave miscarriage of justice”;

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.

71. Had the well-settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution.”

19. In Bannareddy and Others v. State of Karnataka and Others, 2018 SCC OnLine SC 289, the Supreme Court observed as under:- “10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well-settled principle of law that the High Court should not interfere in the well-reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in Sambhaji Hindurao Deshmukh v. State of Maharashtra, (2008) 11 SCC 186: (2009) 2 SCC (Cri) 464, SCC para 13, wherein this Court observed that: (SCC pp. 190-

91)

11. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favour. (Vide Dara Singh v. Union of India, (2011) 2 SCC 490: (2011) 1 SCC (Cri) 706 (SCC in para 94.)”

20. The Supreme Court in Mohd. Akhtar alias Kari and Others v. State of Bihar and Another, (2019) 2 SCC 513, observed:

21. A Division Bench of this Court in State v. Kaishar Ali, 2019 SCC OnLine Del 9875, held:-

22. It would be relevant and useful to allude to the observations of this Court in Niraj v. Ramesh Pratap Singh @ Raju Singh, 2012 SCC OnLine Del 3813, which are extracted hereunder, for ready reference:-

of Karnataka, (2007) 4 SCC 415 while referring to previous cases laid down the following general principles regarding the powers of appellate court while dealing an appeal against an order of acquittal: -

7. The Supreme Court in a subsequent judgment in Arulvelu v. State Represented by the Public Prosecutor, (2009) 10 SCC 206 has held as under: -

position crystallized by aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.”

23. Following the aforementioned observations of the Supreme Court and this Court and treading carefully and cautiously in dealing with the impugned judgment acquitting the accused, this Court now proceeds to look into the testimonies of the witnesses and rival arguments of the parties.

24. Learned counsel for the Respondent contended that Section 13(2) of PFA Act provides that on receipt of the report of the Public Analyst under Section 13(1), the local health authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken, provide a copy of the report of the result of the analysis to such person, informing him that if he so desires, he may make an application to the Court within 10 days to get the sample of the article of food kept by the local health authority analysed by the CFL. The Supreme Court in Narayana Prasad Sahu (supra), held that Section 13(2) of PFA Act makes it mandatory to send the copy of the report of the Public Analyst to the person from whom the sample is taken as apart from the right of the accused to contend that the report is not correct, he has right to exercise an option of sending the sample to the CFL for analysis by making an application to the Court within 10 days from the date of receipt of the report and if the copy is not delivered, the consequences are that his right to challenge the report will be defeated, which in turn, will defeat his right to defend himself. It is significant to note that the Supreme Court has held that if the mandatory requirement of Section 13(2) of PFA Act is not complied, the trial itself vitiates and on this ground, the Supreme Court had set aside the conviction and sentence of the Appellant. Relevant paragraphs are as follows:- “6. Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by the Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct, he has right to exercise an option of sending the sample to the Central Food Laboratory for analysis by making an application to the court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused, his right under sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in Vijendra [Vijendra v. State of U.P., (2020) 15 SCC 763: (2020) 4 SCC (Cri) 901] held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of sub-section (2) of Section 13 and the report must be served on the accused. xxxx xxxx xxxx xxxx

9. On the basis of endorsements of the postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obviously erroneous as the endorsements on the postal envelope were not proved by examining the postman. Moreover, the High Court has glossed over the mandatory requirement under sub-section (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.”

25. In the present case, a categorical position is taken by the Respondent that the report of the Public Analyst was not made available to the Respondent within the stipulated time, as a result of which Respondent was unable to avail of a very valuable right of applying to the Court for sending the sample to the CFL and needless to state, this has adversely affected his defence in the case. There was a possibility that on an analysis by the CFL, the earlier opinion that there was a marginal difference of 0.2% may have been otherwise. Factually, this position is uncontroverted by the State and following the observations of the Supreme Court on this ground alone, Petitioner has no case to seek conviction of the Respondent.

26. Insofar as non-joining of the public witnesses under Section 10(7) of the PFA Act is concerned, Trial Court has held in favour of the Petitioner that efforts were made by PW[1] and PW[2] to associate public witnesses before collecting the sample in question. Learned counsel for the Respondent has fairly and candidly not joined issues on this, in view of the factual finding based on evidence of the two FIs, PW[1] and PW[2].

27. The third and the only other issue that needs adjudication is whether the Trial Court has rightly acquitted the Respondent for offence under Sections 7 and 16 of the PFA Act by giving benefit of doubt basis a finding that the marginal difference of 0.2% in the SNF, between the laid down standard and the sample in question could be an outcome of a technical error in the analysis or improper homogenization while drawing the sample and/or the possibility of the sample having been drawn from the uppermost layer of milk, which is rich in fat.

28. Case of the Petitioner is primarily predicated on the report of the Public Analyst dated 25.04.2001 Ex.PW1/G, as per which sample of the Cow’s milk did not conform to the standards because SNF was less than the prescribed minimum limit of 8.5% and there was a marginal difference of 0.2%. Reliance was placed on Section 2(i)(ia) of PFA Act to argue that an article of food shall be deemed to be adulterated if it is not of the nature, substance or quality demanded by the purchaser and is to his prejudice or is not of the nature, substance or quality which it purports or is represented to be. Further argument was that as per Section 2(ia)(m) of PFA Act, an article of food is adulterated if the quality or purity falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.

29. It is an admitted position that the difference in SNF in the sample in question as analysed by the Public Analyst and the minimum prescribed standard of Cow’s milk was 0.2%. Respondent urged before the Trial Court and reiterates before this Court that scientifically, there is no fool-proof method available in the world by which one can extract SNF from the milk and the marginal difference could be due to wrong sampling or analytic errors by the Public Analyst. This position is unrebutted by the Petitioner, both factually and scientifically. In Nagar Swasthya Adhikari (supra), the Allahabad High Court has noted this position and observed as under:-

content in it. The report of the Public Analyst under the circumstances is far from convincing.”

30. In MCD v. Jawahar Lal; 1980 (II) FAC 145 (Del), this Court has recognized that there is a possibility that the test conducted by the Public Analyst may not be error proof due to various technical issues while testing or that in a given case there could be an imbalance in the fodder fed to the cow, resulting in high percentage of fat and lower percentage of SNF. It is significant to note that Courts have, from time to time, held that negligible difference in the sample and the standard required should not be overemphasized as this could be a result of several factors contributing to the adulteration of the milk sample including the accepted position worldwide that it is not possible to take out SNF from milk without reducing or affecting the fat content. [Ref.: Isham Singh v. State of Haryana, 2009 (1) RCR (Criminal) 692]. It would be useful to allude to an order of the Supreme Court in Administrator of the City of Nagpur v. Laxman and Another, 1995 SCC (Cri) 354, wherein the Supreme Court dismissed an appeal challenging an order of acquittal passed by the learned Magistrate where the fat percentage was found to be 6% as against 3.5%. Relevant paragraph is as follows:-

have been debated by the courts below do not really matter, therefore, we do not propose to examine the same.”

31. It is apposite to mention the observations of the Supreme Court in P.S. Sharma v. Madanlal Kasturichandji and another, 2002(2) FAC 224 in this context and the same are extracted hereunder:-

32. In view of the plethora of judicial precedents holding that report of Public Analyst is open to technical errors and the marginal differences in the SNF from the standards may occur in very many cases due to samples not being properly homogenized or taken from the fat rich top layer of the milk etc., this Court finds no infirmity in the findings of the Trial Court. In fact, Proviso to Section 2(ia)(m) of PFA Act envisaging this situation and possibility, provides that where the quality or purity of the article, being primary food, falls below the prescribed standards, solely due to natural causes or causes beyond human control, such articles shall not be deemed to be adulterated under sub-clause (m) of Clause 2(ia) of PFA Act. I am also unable to gloss over the fact that the difference in the standard and the sample was marginal i.e. 0.2% and in light of the judgements referred to above, the impugned judgement warrants no interference.

33. No ground for grant of leave to appeal is made out. Petition seeking leave to appeal is hereby dismissed.