State v. Mukesh Kumar

Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. ____ ------- (JJ I Jthe learned AS] has come to a conclusion that the accused deserved j to be acquitted, is that, there is a, wide variation between the results arrived In the report of the Public Analyst, as against that, of the Central Food Laboratory. The reasoning of the learned Judge is captured to the following paragraph of the impugned judgment:­ "In the light of the above case law it is clear that the consistent view ofour Hon 'ble Court is that the noticeable difference between the report ofPublic Analystand analysis report ofthe counterpart ofthe same sample as given in the Certificate ofDirector CFL indicates that the sample taken by the Food Inspector was not ofrepresentative character. The fact that the Food Inspector should take a representative sample is a settled legal position and another settled legal position is that if the sample taken was not ofrepresentative character the accused in such a case is entitled to be acquitted ofthe charges pertaining to adulterated food item. In the backdrop ofthis legalposition it would be appropriate to look into and compare the report ofthe Public Analyst Ex PWI/Fand the Certificate issuedby Director CFL Ex PX which is as follows: Sr:-J~item IValueas-per---rValue as per r ;No Public Central Food 'I ' Analyst Laboratory I' I Report Re ort fj iMo',"'''

16.7%

6.03%·-~-' ~,TotaCas1:t

16.2%

6.89%-­ Ash

1.40%

1.93% ~-~­ ~ , insoluble in dil Hcl ' Nonvolati[e'---t3.'% 1 12.05%-."-­ ether . extract j ~.... ,~LCruae}Thre-~~-, 20.4% ---__ 1-;;2:-01--=.3""7=cy,C""o---­ Crl.L.P. 161/2009 Page:1 of 4

(j) I " The ai(ove table shows the noticeable and substantial difference between the values given to different items in the two counter parts ofthe same sample in the report of the Public Analyst Ex PW1/D and the Certificate issued by Director CFL Ex PX leading to the inference that the sample taken by the Food Inspector of the food article in question was not of representative character. Therefore, it is not necessary to go into the other arguments raised pertaining to TLC test, violation of Section 10(7) of the PFA Act; the validity ofconsent for prosecution and the mistaken identity ofthe appellant/convict by the Food Inspector raised in the written arguments filed on behalf of the appellant. The appellant is entitled to be acquitted on the ground that representative sample of food article was not taken by the Food Inspector." Upon perusal of the record, I find that the learned ASJ has applied the correct test. There is no quibbling with the proposition that in case there are on record both the report of Public Analyst and the Central Food Laboratory, then in terms of Section 13(3) of the Prevention of Food Adulteration Act, 1954, the report of the Central Food Laboratory, shall supersede. The learned AS] has accepted this proposition. However, he has given benefit of doubt to the accused solely on the ground that there is a wide variation between the results as arrived at by the Public Analyst as against those by the Central Food Laboratory. This is in consonance with the view of this Court in State vs Mahender Kumar and Drs.: 2008 (1) 177 FAG (Del). It is well settled that when two views are possible, Crl.L.P. 161/2009