Food Inspector v. Nand Lal & Ors.

1. The present is a petition for grant of leave to appeal against the impugned order dated 15.01.2010 passed by Shri Sanjeev K. Malhotra, Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No. 141/98 whereby the respondents have been acquitted of the charges levelled against them under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ‘PFA Act’). 2016:DHC:2388-DB

2. The facts herein briefly are, the Food Inspector Shri Surender Kumar Sharma purchased a sample of ‘Refined Mustard Oil’ from the respondent NO. 1, Nand Lal s/o Sh. Manna Ram at M/s Sanjay Store, Shop No. 16 MCD Market, Ramesh Nagar, New Delhi on 29.08.1998 at about 06.30 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 No. 1’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 laid down under item No. A.17.06 read along with A. 17.15 of Appendix B of PFA Rules, 1955 because the sample showed the presence of argemone oil. On 18.10.1998, the respondent No. 2 moved an application u/s 13(2) PFA Act, and a second counterpart of the sample was examined by the Director, CFL, Calcutta. As per the report of the Director, CFL, the sample did not conform to the standards as the saponification value (177.9) was beyond the prescribed limit (168-177 in the standard of mustard oil). However, as per the report of the Director, CFL, there was no argemone oil in the sample.

3. The respondents were charged under Section 2(ia)(a)(m) punishable under Section 16(1) read with Section 7 of the PFA Act and Rules, to which they 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 respondents 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 appellant 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:-