Food Inspector v. Mohd. Alim

1. The present is a petition seeking grant of leave to appeal against the impugned judgment and order dated 06.07.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief Metropolitan Magistrate-II, New Delhi, in CC NO. 69/06, whereby the respondent has been acquitted of the charges levelled against him under sections 2(ia)(a)&(m) punishable under section 16(1)(a) read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ‘PFA Act’).

2. The facts herein briefly are, the Food Inspector Shri Shyam Lal purchased a sample of ‘Standardised Milk’ from the respondent, Mohd. Alim S/o Sh. 2016:DHC:4026-DB Mohd. Feroz of M/s Shahji Dairy, 2441, Main Turkman Gate, Delhi-110006 on 23.07.2005 at about 1.00 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 respondent’s 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 (hereinafter referred to as ‘PA’) in intact condition and two counter parts were deposited with the LHA. Upon analysis it was found by the PA that the sample did not conform to standards because ‘milk solids not fat’ was found to be less than the prescribed limit of 8.5%. On 24.03.2006, the respondent moved an application u/s 13(2) PFA Act, and a second counterpart of the sample was examined by the Director, CFL. As per the report of the Director, CFL, the sample contained ‘milk solids not fat’ above the prescribed limit of 8.5%.

3. The respondent was charged under Sections 2(ia)(a), and 2(ia)(m) punishable under Section 16(1) read with Section 7 of the PFA Act and Rules, to which he pleaded not guilty.

4. The solitary 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 respondent that there was vast variation between the report of PA and the Director, CFL which establishes that the sample was not representative.

5. On the other hand, it was argued on behalf of the leave petitioner that since the CFL report was conclusive on all aspects, there was no need for the trial Court to have looked at the PA report in this behalf.

6. 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.”

7. 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:-

8. 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 delineates substantial variance between the report of the PA and the Director CFL in terms of milk solids not fat contents, which exceeds the permissible variation of 0.3%. The State has not satisfactorily explained the said variance.

9. 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 respondent.

10. 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 17, 2016 sd