Food Inspector vs Bablu Singh

Siddharth Mridul, J.—The present is a petition for grant of leave to appeal against the impugned order dated 25.02.2010 passed by the Additional Chief Metropolitan Magistrate-II, New Delhi, in CC No. 47/2001 whereby the respondent has been acquitted of the charges levelled against him.

The facts herein briefly are that Food Inspector O.P.S. Ahlawat purchased a sample of Paneer from the respondent on 16.06.05 at about 4:00 p.m. The said sample was taken under the supervision and direction of Sh. R.K. Sharma, SDM/LHA. Thereafter, the Food Inspector divided the sample into three equal parts by putting them in three separate clean and dry bottles. 20 drops of formalin were added in each of the sample bottle and they were 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 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 standard because milk fat of dried matter was less than the prescribed minimum limit of 50%. The respondent was charged under Section 2(ia)(a)(m) of PFA Act punishable under Section 16(1)(a) read with Section 7 of the PFA Act and Rules to which he pleaded not guilty.

The solitary question 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.

The Trial Court relied upon the decision of this court in Kanshi Nath Vs. State, , 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." 5. 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:-

"27. In view of above judgment of the Hon''ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 04.07.05 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-

Milk fat on dry weight basis - 43.04%

Moisture -57.75%

The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 14.12.05, the result of analysis of second counterpart of the sample commodity is as follows:-

Milk fat on dry weight basis - 39.59%

Moisture - 56.05%

The difference of analysis in respect of fat content on dry weight matter in respect of sample of Paneer by the report of two analysts is not within acceptable range of 0.3%. No explanation has come on record in respect of variation of 3.45% in milk fat content in the counterpart of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative."

The only argument made on behalf of the State by the Ld. APP that the trial court should have only considered the CFL report and not the PA report has been displaced by the decision of this court in Kanshi Nath (supra) as the variation in the milk fat in dry sample in the PA report and CFL report is not within the acceptable range of 0.3%. Further, on perusal of the trial court judgment delineates that a substantial lacuna is present in the case of the prosecution. The prosecution has failed to explain the delay in filling the complaint (14.10.2005) after 4 months from the date of receiving the report of the PA (04.07.2005).

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.

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.