State vs Satish Kumar

Crl. M.A. No. 650/2010(Delay)

For the reasons stated in the application, the delay of 500 days in filing the petition is Condoned.

Crl. L.P. 173/2010

This leave to appeal petition has been filed by the State against the judgment dated 2nd July, 2008 passed by the Learned Addl. Sessions Judge acquitting the Respondent on an appeal filed by him against the judgment of conviction and sentence for offences punishable under Sections 7/ 16 of the Prevention of Food Adulteration Act (in short PFA Act). Briefly, the case of the Petitioner(State) is that on 24th June, 1996 at about 5:15 p.m. Food Inspector Sh. Suniti Kumar Gupta purchased a sample of ''Paneer'', a food article for analysis from Satish Kumar who was carrying on the business in the name and style of M/s Ashok Dairy, 25 DDA Market, Defence Enclave. Delhi where the said food article was stored for sale of human consumption. The sample consisted of 750 gms of the Paneer which was taken from an open tray having no label declaration. The sample of paneer was cut into small pieces with the help of clean and dry stainless steel knife on a clean and dry polythene paper. The sample was thoroughly mixed with the same knife and then was divided into three equal parts and each part was put in separate clean and dry bottle, 20 drops of formalin were put in each bottle. Each part was packed, fastened and sealed separately as per the provisions of the PFA Act and Rules. Vendor''s signatures were obtained on the LHA slip and the wrapper of the sample bottles. It is alleged that before starting the proceedings, efforts were made to join the public witnesses but none came forward. All the documents were got signed from the Respondent and other witnesses. The sample was taken under the supervision of local health authorities. One of the three samples was sent to the Public Analyst with the seals intact. The other two counter-parts of the sample were deposited with the local health authority. On analysis of the sample, the Public. Analyst found that the sample did not conform to the standards because the moisture content was 60.16 %, aid fat on the dry weight basis was 44.72%.

The Respondent exercised his right u/s 13(2) of PFA Act and requested to get the second counter part of the sample to be analyzed from the Director CFL. The Director, CFL opined that the sample did not conform to the prescribed standard as moisture content in the sample contained was 57.1% and fat on dry basis was 31.75%. Thus the sample was opined to be not conforming to the standard laid down under the provisions of PFA Act, 1954 and Rules.

The learned Additional Sessions Judge after perusing the record and appreciating the evidence placed on record acquitted the Respondent observing that the variation in the two reports was more than 0.3% which rendered the sample unrepresentative. Also, the sample in question deteriorated in value before it was sent to the Director CFL for analysis because there was delay of about five and a half months. Thus benefit of doubt was given to the Appellant/Respondent.

A perusal of the judgment shows that the learned Special Judge after referring to the judgments on the issue has rightly come to the conclusion that the variation in the samples sent to the public analyst and the Director. CFL rendered the sample unrepresentative. The report of public analyst held that one counterpart of the sample commodity showed the moisture content to be 60.16 %. and fat on the dry weight basis was 44.72 %. while the other counterpart of the same sample sent to the Director, CFL showed the moisture content to be moisture content in the sample contained was 57.1% and fat on dry basis was 31.75%. Hence the two reports were divergent to a great extent.

This Court in Kanshi Nath Vs. State, and State Vs. Mahender Kumar and Others : State Vs. Mahender Kumar and Others has held that if there is variation in the two reports to the extent of more than 0.3%, the samples would be rendered unrepresentative. In State Vs. Ram Singh & Ors., 2009-(I) FAC 371 it has been held that when there is difference in the two reports, there is a reasonable doubt about the samples not being homogenized. In Chaman Lal vs. State 1972 FAC 292 (Del) it has been held that the paneer can be preserved with the requisite drops of formaline for only about a month. In the case at hand the food article i.e. the paneer was taken in the month of June whereas it was sent to CFL in the month of November i.e. after a lapse of five months of taking the sample which clearly show that the sample had lost its value and hence had become unfit for analysis by the time it reached CFL. The sample being a milk product was perishable in nature and thus its values would have deteriorated. In Municipal Corporation of Delhi vs. Ghisa Ram, 1975 (1) F.A.C. 186 Hon''ble Supreme Court observed that where the sample was a food article like curd which had not been refrigerated and was sent for analysis after a delay of seven months in such circumstances the valuable right available to the accused u/s 13(2) of the PFA Act of having the sample tested at Central Food Laboratory stood denied and in such a situation the benefit of doubt should go to the accused. In view of the variation in the two reports i.e. that of the public analyst and the Director, CFL, and keeping in view the judicial pronouncements the learned Additional Sessions Judge was justified in acquitting the Respondent. I find no ground to interfere in the impugned judgment of the learned Additional Sessions Judge. Leave to appeal petition is dismissed.