JUDGMENT

Suresh Kait, J. (Oral)

Crl. M.A. 2626/2012 (exemption)

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

Crl. M.A. 2625/2012 (Delay)

For the reasons explained, delay of 110 days stands condoned.

Criminal M.A. stands disposed of.

Crl. Rev. P. 107/2012

1. Vide the instant petition, the petitioner/State has assailed the impugned judgment dated 30.07.2011, whereby ld. Special Judge, NDPS has set aside the judgment dated 21.12.2010 and order on sentence dated 24.12.2010 passed by ld. ACMM-II, New Delhi District and respondent has been acquitted from all the charges.

2. Mr.Navin Sharma, learned counsel for the petitioner has stated that ld. Special Judge has got swayed away by the fact that according to the report of public analyst that the fat content was found to be 43.69% and according to CFL Report the same was found to be 45.26% and such minor variation ought not to have been fatal to the prosecution.

3. It is further submitted by the ld. APP that non-joining of the independent witnesses is not fatal to the case of prosecution and minor contradictions in the testimony of the Food Inspector and the SDM do not disprove the prosecution case. Minor contradictions had to be ignored.

4. It is further submitted that ld. ASJ has completely ignored the report of CFL dated 12.08.2005 as well as the public analyst and has reached on a conclusion on the basis of conjectures and surmises.

5. The case of the prosecution in brief as put up before the ld. Trial Court is as under:

"(a) On 19.03.2005 at about 8 p.m., Food Inspector Sh.Hukum Singh purchased a sample of Paneer, against a payment of Rs.57/- a food article for analysis from the shop of the appellant i.e. M/s. Aggarwal Sweets, Sweets India, 2/80B, Club Road, West Punjabi Bagh, New Delhi - 110026 where the said article was found stored for sale in an open tray bearing no legal declaration and the appellant was found to be owner of the shop.

(b) It was the case of the complainant before the ld. Trial Court that the sample was taken after properly cutting the Paneer it into smallest possible pieces with the help of a clean and dry knife, then mixed properly and thereafter divided into three equal parts. One of the counterparts of the sample was sent to the Public Analyst for analysis and as the report the sample was not upto the standards laid down, because milk fat of dried matter was found to be only 43.69% which is less than the prescribed minimum limit of 50%.

(c) As per the appellant herein had desired to get the sample to be analysed by the Central Food Laboratory by invoking the provisions of Section 13(2) of the PFA Act, the same was sent to the CFL, Pune for analysis. Certificate NO. CFL/379/426/2005 issued by the Director, CFL, Pune dated 12/08/2005 also indicates that the sample does not conform the standards of Paneer, as per the PFA Rules, 1955, as the dried matter only contained 45.26% of Milk fat which is less than the prescribed minimum limit 50.0% of dry matter.

(d) On the basis of the entire evidence led before the ld. Trial Court before him, the ld. ACMM-II found the accused guilty of adulteration of food article and hence, convicted him, accordingly."

6. Being aggrieved, the judgment of ld. ACMM was assailed before the court of Sessions on the ground that evidence of complainant proved that the sample of paneer was not properly mixed and homogenized and that, therefore, the evidence shows that the sample taken from the shop of the appellant was not a representative sample. As argued by the respondent that the SDM, who appeared as PW-1 before the ld. Trial Court admitted in his cross-examination that sample of Paneer after being cut into small pieces was mashed with the help of hands and knife due to which some quantity of fact had stuck on the hands of the Food Inspector. He further argued that this testimony not only shows that the sample was taken in an improper manner, but it also falsifies the testimony of th