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Petitioner , Through: Ms. Radhika Kolluru, APP ,
«/„ 06.03.2017
In this case,: notice could issue to the Respondents since process fee was not filed.
-Ihave heard learned counsel for the petitioner and in ray view,, no useful purpose would be served in directing, issuance of notice to the. respondents since the raatter is covered,by the
JUDGMENT
5^a^e, 2005 (2)FAC219. . , ' The present leave to appeal has been preferred u/s 378 (4) CrPC againsttheorderofacquittal passedbytheLd.ACMMinCCNO. 185/2002 in pursuance ofthe direction by the Supreme Court in Subhash Chmd v.
State (DelhiAdministration)
2017:DHC:9127 The food article in the present case is 'Burfi' which was purchased from the respondent on 29.10.1994. The sample on an analysis by the Public
Analyst vide its report dated 11.11.1994 was found not to conform to the standards of"Burfi" under the Prevention ofFood Adulteration (PFA) Act, 1954 and PFA Rules, because the artificial colouring matter was found exceeding the maximum limit', of 0.2 gms/kg.^ Thus, a complaint was, preferred u/s 2(ia)(a)0ofPFA.
The certificate ofthe Director, CFL, dated 11.04.1995 also found the sample not to conform to the standards because the artificial colouring matter was found .265 gm/kg exceeding the maximum permitted limit of0.2 gm/kg.
The variation appearing in the two reports in respect of the artificial colouring matter is not within the range of.3% and thus falls,within the ratio ofKdnshinath (supra) wherein this Court held as follows:
"12. Coming to the next controversy, i.e., with regard to the
. representativeness of the sample, it is clear from the Full
Bench decision in MCD v. Bishan Sarup (supra) that if the samples are not representative, then any test report based on it would not indicate the trueposition. That being the case, a conviction cannot befounded on sucha test report Upon an examination of the cases mentioned by Mr Mittal, it also becomes clear that although in terms ofSection 13(3) ofthe
PFA Act, the Director's certificate would supersede the
Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not. Mr Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal
Corporation (supra) andparticularly on paragraph 14 thereof which reads asunder:-
"14. Thus the legal impact ofa certificate ofthe
Director ofCentral Food Laboratory is three-fold.
It annuls or replaces the report of the Public
Analyst, it gainsfinality regarding the quality and standard ofthe food article involved in the case and itbecomes irrefutable sofar as thefacts stated therein are concerned."
13 Acareful reading ofthe Supreme Court decision reveals that the certificate ofthe Director, CFL supersedes the report ofthe Public Analyst and is conclusive as regards the quality and standards of the sample tested There is no quarrel with this and there can be none.- But, this does not enable us to detractfrom the ratio ofthe FullBench decision ofthis court in the case ofMCD v. Bishan Sarup (supra) that even aftersuch a certificate is issued by the Director, CFL, it wouldstill be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr Sharma that once the certificate ofthe Director, CFL is obtained, then that isfinal 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 indicatedabove, 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 0.3%, then the samples would not be representative. This is an opinion ofan expert and one has to go by it. In thefacts ofthe present case, we find that the variation, as indicated above, is more than 03% Therefore, on thefacts ofthe present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view ofthisfinding and in the background ofthe law which is well settled, no conviction can be sustained". (Emphasis Supplied) In view ofthe aforesaid position, I find no perversity in the impugned judgment of lack of appreciation of the evidence by the learned ACMM. I find no merit in this petition. Dismissed. VIPINSANGHI,J MARCH 06, 2017