29 August 2015
Have A Happy Day
This blog attempts to enrich the knowledge of various stake holders in Food chain with emphasis on world class technologies
Food for thought
Thirukkural – திருக்குறள்
Read full article in :
Read more at :
Read more at :
Read more at :
Read more at :
Read more at :
IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.L.P. 703/2013 Judgment dated 06.12.2013 FOOD INSPECTOR/FOOD SAFETY OFFICER ..... Petitioner Through : Mr.Manoj Ohri, Advocate versus PARVINDER MALIK ..... Respondents Through CORAM: HON'BLE MR. JUSTICE G.S.SISTANI
1. Exemption allowed subject to all just exceptions.
2. Application stands disposed of.
3. Present leave to appeal petition has been filed under Section 378 (1) Cr.P.C. against the order of acquittal dated 14.12.2012 passed by learned ACMM, Delhi.
4. The facts of this case, as noticed by the learned ACMM in the judgment, are as under:
“1. The present complaint has been filed on 10.01.2003 by the Delhi Administration through FI Sh. R.P. Singh against the above named accused. It is stated in the complaint that on 10.09.2002 at about 3:10 PM, FI Sh.Pawan Bhatnagar purchased a sample of Dal Arhar, a food article for analysis from accused Parvinder Malik from the aforesaid premises, where the said food article was found stored for sale and the accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 750 gms of Dal Arhar (ready for sale), taken from an open gunny bag, bearing no label declaration. The sample was taken under the supervision and direction of Shri Rajesh Kumar, SDM/ LHA. The sample was taken after properly mixing the Dal Arhar. The FI Shri Pawan Bhatnagar divided the sample into three equal parts then and there by putting them in three separate clean and dry bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. The accused / vendor’s signature were obtained on the LHA slip and on the wrapper of the sample bottles. Rest of the procedural documents were prepared at the spot in accordance with PFA Act and Rules and all the documents were got signed from the accused as well as one witness i.e. FI Shri A.K. Dhir.
2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA. The PA analysed and found the sample to be adulterated because it was coloured with synthetic colouring matter viz Tartrazine.
3. Further, accused Parvinder Malik was found to be Vendor- cum-Proprietor of M/s.Om Provision Store at the time of sampling and as such he was In-Charge and responsible for the day to day conduct of the business at the aforesaid premises. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s.20 of the Act and consequent thereto the present complaint was filed.
4. The accused was summoned vide order dated 20.01.2003. He appeared and exercised the Right and Option U/s 13 (2) of the Act of 1954 and consequently the sample counterpart as per the choice of the accused was sent for analysis to the Central Food Laboratory, Pune. The Director CFL gave his report to the effect that the samples does not conform to the standards of split pulse (Dal) Arhar as per PFA Rule 1955.
5. Charge for the violation of Provision of S.2(i-a) (j) & (m) of PFA Act, 1954 Rule 23 r/w.Rule 28 & 29 of PFA Rules, 1955, punishable U/s 16(1A) r/w S.7 of PFA Act 1954 was framed against the accused to which he pleaded not guilty and claimed trial.
6. Four witnesses namely Shri Pawan Bhatnagar, Food Inspector (PW-1), Shri R.P. Singh (PW-2), Shri Rajesh Kumar, the then SDM/ LHA (PW-3) and Shri A.K. Dhir, Food Inspector (PW-
4) were examined on behalf of the complainant.
7. Statement of the accused U/s.313 Cr.P.C. was recorded whereby the accused wished not to lead DE.”
5. Learned counsel for the petitioner submits that the learned trial court while passing the impugned judgment has failed to appreciate that the sample failed as per both, the public analyst as well as CFL report. Counsel contends that the trial court has further failed to consider that the CFL report is final and supersedes the report of the public analyst.
6. The learned trial court while passing the impugned order has observed that in PA‟s Report, damaged grain, weevilled grains and Uric acid have been found NIL, whereas the Director CFL found the same present to the tune of 4.0%, 2.0% and 66 mg/kg respectively. Learned trial court has also observed that Public analyst found moisture to the tune of 8.32% and foreign matter organic to the tune of 0.27% whereas the Director CFL adjudged the moisture as 8.68% and foreign matter NIL, and reached the conclusion that such variations /contradictions suggest that the sample sent to two labs was not of a representative character. The trial court has relied upon the observations made by the Court in the case of State Vs. Rama Rattan Malhotra Crl.L.P.No.581/2011 wherein reliance on the case State Vs. Mahender Kumar & Ors. Crl.No.54/1990 was placed wherein in turn reference was made to the case Kanshi Nath Vs. State 2005 (2) FAC 219, wherein it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal. Relying upon the above cases, learned trial court dismissed the complaint and acquitted the respondent.
7. The law with regard to the grant of leave is well settled by a catena of judgments. Leave to Appeal can be granted only where it is shown that the conclusions arrived at by the Trial Court are perverse or there is mis- application of law or any legal principle. The High Court cannot entertain a petition merely because another view is possible or that another view is more plausible. In Arulvelu and Anr. vs. State represented by the Public Prosecutor and Anr., 2009 (10) SCC 206, while referring with approval the earlier judgment in Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450, the Supreme Court reiterated the principles which must be kept in mind by the High Court while entertaining an Appeal against acquittal. The principles are:-
“1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.
5. If two reasonable or possible views can be reached – one that leads to acquittal, the other to conviction – the High Courts/appellate courts must rule in favour of the accused.
6. Careful scrutiny of all these judgments lead to the definite conclusion that the appellant court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court‟s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either „perverse‟ or wholly unsustainable in law.”
8. I have heard counsel for the petitioner and gone through the record. In my opinion, learned counsel for the petitioner has been unable to draw a distinction between the decision rendered by the Court in the case of State v. Rattan Malhotra (supra) and the present case. Admittedly, in the present case there is variation in the reports (report of the Public Analyst and the report of the Director, CFL) with respect to the damaged grain, weevilled grains and Uric acid, and with respect to the moisture in the Dal Arhar.
9. Having regard to the facts of this case, the same is fully covered by the decision rendered in Kanshi Nath v. State, reported at 2005 (2) FAC 219 Delhi High Court; State v. Mahender Kumar & Ors., reported at 2008 (1) FAC 177; State (Delhi Administration) v. Ram Singh & Anr., reported (2009) 1 FAC 371; and keeping in mind the general principles set out in the case of Arulvelu and Anr. (Supra), no grounds are made out to entertain the present leave to appeal petition and the same is accordingly dismissed.
G.S.SISTANI, J DECEMBER 06, 2013