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HIGH COURT OF DELHI
CRL.L.P. 397/2015 ' , FOOD INSPECTOR
Petitioner
Through; Mr. Rajat Katyal, APP
Through:
0/„ 06.03.2017
Respondent In this case, notice could issue to the respondents since process fee was not filed.
I have heard learned counsel for the petitioner and in my view, no useful purpose would be served in directing issuance of notice to the respondents since the matter is covered by the
ORDER
State, 2005 (2) FAC 219.
The present leave to appeal has been preferred u/s 378 (4) CrPC against the order ofacquittal passed by the Ld. ACMM in CC NO. 185/2002 in pursuance of the direction by the Supreme Court in Subhash Chand v.
State (DelhiAdministration) (2013) 2 SCC 17.
2017:DHC:9128 The food article in the present case is 'Refined Soyabean Oil' which was purchased from the respondent on 10.03.2005. The sample on an analysis by the Public Analyst vide its report dated 07.01.2002 was found not to conform to the standards of "Refined Soyabean Oil" under the
Prevention of Food Adulteration (PFA) Act, 1954 and PFA Rules, because the saponification value was 196.39 exceeding the maximum limit of 195.
Thus, a complaint was preferred u/s 2(ia)(m) ofPFA and Rule 32(f) ofPFA
Rules.
The certificate of the Director, CFL, dated 24.02.2003 also found the sample not to conform to the standards because the test of 'rancidity' was positive. Further, the saponification valuewas found 194.2.
The variation appearing in the two reports in respect of the saponification value is not within the range of .3% and thus falls within the ratio of Kanshinath (supra) wherein this Courtheld 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 true position. That being the case, a conviction cannot befounded on such a test report. Upon an examination of the cases mentioned by Mr Mittal, it also becomes clear that although in terms ofSection 13(3) of the
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 onparagraph 14 thereof which reads as under:-
"14. Thus the legal impact of a certificate of the
Director of Central Food Laboratory is three-fold.
It annuls or replaces the report of the Public
Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as thefacts stated therein are concerned."
13. A careful reading ofthe Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the 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 Full Bench decision ofthis court in the case ofMCD v. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still 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 of the 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 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 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 0.3%. Therefore, on thefacts ofthepresent 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 of thisfinding and in the background of the law which is well settled, no conviction can be sustained". (Emphasis Supplied) h There exists contradiction in the two reports on the test of rancidity as well. There was a delay of around 14 months in initiating proceedings against the accused which possibly resulted in the sample turning rancid. Consequently, the Ld. ACMM acquitted the accused as the complainantwas unable to prove the delay. In view of the 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. JHI, J MARCH 06, 2017