Delhi Administration vs Narayan Dass

M.L. Mehta

Crl. M.A. 19163/2011 (exemption)

Exemption allowed, subject to all just exceptions,

Application stands disposed of.

Crl. M.A. 19162/2011 (delay):

This is an application u/s 5 of the Limitation Act for condonation of delay of 95 days in filing the petition.

In view of the submissions made therein, delay in filing the petition is condoned.

Application stands disposed of.

Crl. Rev. P. 555/2011

This is a revision petition u/s 397 read with Section 401 CrPC filed by the State against the judgment dated 29.4.2011 of learned Special

Judge. NDPS, New Delhi passed in case CA No. 113/2010 u/s 7/16, Prevention of Food Adulteration Act, 1954 (for short, the ''Act''), whereby

the learned Special Judge dismissed the appeal filed by the petitioner against the order of acquittal of respondent dated 28.5.2010 by the learned

ACMM.

The case, in brief against the respondent was that on 28.10.2002 at about 6.30 p.m., a sample of ''ladoo'', a food article was taken for analysis

by the Food Inspector from the respondent''s shop where the said food article was stored for sale for human consumption. The sample consisted

of 1.5 kg. of ladoo taken from an open tray bearing no label declaration. The sample was stated to be cut into smallest possible pieces and mixed

properly. The Food Inspector divided the sample into three equal parts by putting them in three separate dry bottles and each bottle containing the

sample was separately parceled and sealed. Rest of the formalities were completed. One part of the sample was sent to Public Analyst (P.A.),

which came to be analyzed vide his report dated 15.11.2002. The Public Analyst reported the food to be adulterated on account of it containing

total dye content of the synthetic colour used exceeding the prescribed maximum limit of 100 ppm. The respondent after being summoned

exercised his right u/s 13(2) of the PFA Act and second counter part of sample was sent to CFL, who also confirmed the sample to be adulterated

in contravention of Rule 30 of the PFA Rules. 1955. After the trial, learned ACMM recorded the acquittal of the respondent vide order dated

28.5.2010. The petitioner/State took the matter in appeal before the Special Judge, who also dismissed the appeal of the petitioner vide judgment

dated 29.4.2011. The present revision petition has been filed assailing the impugned judgment of the learned Special Judge.

The main ground for acquittal that was recorded by the Trial Court was the variations in the two reports of analysis done by P.A. and the

Director, CFL. The variations was to the extent of 65.63 ppm in colour concentration between the two counter parts. The Trial Court relied upon

the case of Kanshi Nath Vs. State, 2005 (3) JCC 1637 : 2005 (2) FAC 219 of this court. Before the appellate court of Special Judge, contention

raised by the petitioner/State was that the report of P.A. cannot be compared with the CFL certificate. Even before this court, the impugned

judgment has been assailed by the State on the ground that with the certificate of Director. CFL being there, the report of the Public Analyst was

superseded and that it was the report of CFL which was final and conclusive and the report of the Public Analyst cannot be looked into.

I have given my considered thought to the submissions made by the counsel appearing for the State. There is no dispute with regard to the

proposition that the certificate of the Director, CFL was final and conclusive and that superseded the report of the Public Analyst which cannot be

looked into. But however, to say that the report of the Public Analyst could not be looked into for any purpose, whatsoever, was not the correct

proposition of law. In the case of Kanshi Nath Vs. State (supra), it was observed by this court that if the samples are not representative, then any

test report based on it would not indicate the true position. In the present case, the variations in the reports of the samples of two counter parts of

the same sample was large being 65.66 ppm which was more than 0.3%, the permissible limit of the variation. Such variation, would certainly call

to record that the sample drawn was not representative. If the sample was of representative character, then the extent of dye content in both the

counter parts would not have seen of such substantial variation. It cannot be said that representatives of same sample were sent to Public Analyst

as well as CFL. This compels the court to reach to the irresistible conclusion that the sample, drawn was not representative and that would have

certainly prejudiced the respondent.

In view of the above discussion, I do not see any infirmity or illegality in the order of Trial Court as well as of learned Special Judge. Revision

petition being without any merit, is accordingly dismissed.