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2009 Supreme(Del) 319
DELHI HIGH COURT
MOOL CHAND GARG, J.
State
Versus
Mahavir
Crl. Appeal No. 26 of 1998
Decided on : 20-3-2009
Arvind Kumar Gupta, A.P.P., for Appellant; None for Respondent.
The main legal point established in the judgment is the requirement of a representative sample and proper homogenization as per the PFA Act and Rules, along with the principle of giving the benefit of doubt to the accused.
Headnote:
PFA Act - Food Adulteration - Section 16(1)(1A), Section 7 - [16(1)(1A), 7] - The court discussed the requirement of a representative sample and the proper homogenization of the sample as per PFA Act and Rules. The court emphasized that a representative sample means a sample drawn after homogeneously mixing the same, especially in the case of Lal Mirch. The failure to mention homogenization in the sample documents was considered a glaring lacuna. The court also highlighted the principle that the benefit of doubt must go to the accused when there are two possible views on the evidence, one pointing to guilt and the other to innocence.
Fact of the Case:
The appellant appealed the order of conviction and sentence under Section 378(4) Cr. P.C. The case involved the purchase of Lal Mirchi powder, sample analysis, and the subsequent conviction and sentence, which was later reversed by the Addl. Sessions Judge.
Finding of the Court:
The Addl. Sessions Judge acquitted the appellant, citing that the sample was not a representative sample and the Jhaba used for mixing was not clean and dry as per the PFA Rules. The court also noted the failure to establish that the sample was meant for sale and emphasized the benefit of doubt to the accused.
Issues: The issues revolved around the representative nature of the sample, proper homogenization, and whether the sample was meant for sale.
Ratio Decidendi: The court emphasized the requirement of a representative sample and proper homogenization as per the PFA Act and Rules. It also highlighted the principle of giving the benefit of doubt to the accused when there are two possible views on the evidence.
Final Decision: The appeal was dismissed, affirming the decision of the Addl. Sessions Judge to acquit the appellant.
This appeal which has been filed under Section 378 (4) Cr. P.C. by the appellant assailing the order passed by the Addl. Sessions Judge dated 27.01.1997 whereby the Addl. Sessions Judge has reversed the order of conviction and sentence awarded to the respondents for having committed an offence under Section 16(1)(1A) and Section 7 of Prevention of Food Adulteration Act (hereinafter referred to as PFA Act).
2. Briefly stating the facts of this case are as follows:
i) On 20.04.1989 F.I. Arun Kumar purchased a sample of Lal Mirchi powder from Shri Mahavir respondent at his Masala Rehri at Jawahar Chowk. Najafgarh. Delhi which had been stored for sale by the respondents. The sample was taken from an open tray bearing no label declaration but it is the case of the prosecution that the sample was taken after properly homogenizing the same with the help of a clean and dry jhaba lying there.
ii) That the sample so taken was divided into 3 equal parts and each part of the sample was packed, fastened and sealed separately in clean and dry bottles according to PFA Act and Rules. .
iii) Notice was given to the respondents and price of the sample purchased was also given to him. Panchnama was prepared at the spot and the documents were thumb marked/ signed by the respondents.
iv) One counter part of the sample was sent for analysis by the Public Analyst which as per report given by the Analyst dated 28.04.1989 was found to be adulterated after completion of the investigation and obtaining sanction of the competent authority.
v) A complaint was filed in the Court of Metropolitan Magistrate concerned. The Magistrate issued a notice to the respondents.
vi) The respondents exercised his right under Section 13(2) of PFA Act. The second sample was sent to CFSL where also the report of the public analyst was confirmed and it was observed, that the sample was adulterated.
vii) After recording the evidence of the prosecution the petitioner was held guilty for both the offences and was sentenced to undergo R.I. for one year and to pay a fine of Rs. 2000/- only. I.D. of payment of fine accused shall further undergo S.I. for 3 months. Bail bond of accused cancelled. Surety is discharged. File be consigned to Record Room.
3. An appeal against the order of the Metropolitan Magistrate was decided by the Addl. Sessions Judge of Delhi who vide her order dated 07.02.1997 set aside the order of conviction and sentence and acquitted the appellant.
4. The reasons which have prevailed in the mind of the Addl. Sessions Judge were that the sample in question was not a representative sample as the same was not homogenized in accordance with PFA Rules. She also observed that the Jhaba which was used for mixing was lying in the Rehri and, therefore, it could not be said that it was a clean Jhaba.
5. Relevant observations made by ASJ in the order impugned in this appeal are reproduced hereunder:
5A. In my view, the prosecution has failed to establish that the sample which was drawn was in fact a representative sample. Under Section 10 of the PFA Act, the Food Inspector has the power to take sample of any article of food of any person selling such an article in the course of deliver or from the consignee. The case of the prosecution is that this article of food is allegedly being sold by the appellant from his Rehri. PW3 has admitted that there was no sign board of sale on the Rehri. PW2 has also admitted in his cross-examination that the fact about the mixing of Lal Mirch and having rotated it in a clockwise and anti-clockwise direction has also not been mentioned in the sample documents. Although under the PFA Act and PFA Rules, it is not specifically contained that sample in order to be representative must be taken after homogeneously mixing the article of food, yet, it is established by judicial authorities that a representative sample means a sample which is drawn after homogeneously mixing the same especially in the case of Lal Mirch as is so in the present case
