Delhi Administration v. Atul Gupta

2-8 Vo O8:O2.2OlL Present: Mr. Sanjeev Bhandari, Additional standing counsel for the petitioner. + Crl. L.P. Nos. 51-57/2011 * For orders see Crl' L'P' No' 50/2otl' I\ \f t>tv

A.K. PATHAK, J. -{ rb + Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. t" ,n ir-I % oB.o2.20II Present: Mr. Sanjeev Bhandari, Additional Standing Counsel for the petitioner. Crl. M.A. Nos. 1159/2O11. 1161/2O11. 1163/2O11. 1165/2O11, LL67 | 20tt. lL69 | 2OLL, LLTL I2OLL and, LL73|2O1,L (exemptionl Allowed, subject to all just exceptions. Applications stand disposed of. Crl. M.A. Nos. 1158/2O11. 116O/2O11. 116212O11. 1164/2O11. LL66l2OLl. LL68l2OLl. LLTOl2OLl and, LL72l2OLL lcondonation of delayl Delay condoned.. Applications stand disposed of. + crl. L.P. Nos. 50-57/2011 *

¶1Petitioner seeks leave to Appeal against the common judgment dated 2Ott, February, ZOtOpassed. by the Additional Sessions Judge, New Delhi in Criminal Appeals bearing - CA Nos. 58 l2OO9 to 65 /2OO9, whereby respondents Laxman Prasad and Atul Kumar Gupta have been acquitted of the charges under Sections 7 and 16(1A) of the Prevention of Food Adulteration Act, 1954 (for short hereinafter referred to as "the Act").

¶2Factual matrix as unfolded is that or:' 2nd september, 1986 Food Inspector R.K. Ahuja visited M/s. Gupta Powder Mi1ls, 3057, ." Bahadur Garh Road, Delhi at about 5:30 PM and purchased sample of 'skimmed milk powder'. He again visited the same premises at about 6:20 PM and purchased another sample of 'skimmed milk powder'. on the same day, Food Inspector Arun Kumar visited the said premises at about 7:00 PM and purchased third sample of 'skimmed milk powder'. Subsequently, Food Inspector Virendra Singh also visited the said premises at about 7:45 PM and purchased fourth sample of 'skimmed milk powder'. Respondent AtuI Kumar Gupta was the proprietor of M/s. Gupta Powder Mills. He was grinding and storing the aforesaid food article for sale. On enquiry, it was further revealed that Laxman Prasad, who was proprietor of M/s. Golden Enterprises, LB7r, Kucha Chellan, Khari Baoli, had given more than 300 bags of 'skimmed milk powder' to respondent Atul Kumar Gupta for grinding and storing. Respondent Laxman Prasad used to deal in the dairy products. Around 33O bags of rejected 'skimmed milk powder' were found lying in the premises of M/s. Gupta Powder Mills and the same were seized. A11 the four samples were sent to Public Analyst on Sth september, 1986. on analysis, these were found adulterated. In the first sample, lactic acid was found to be exceeding the prescribed maximum limit of I.5o/o, besides there being disagreeable smell making the same unfit for hum€rn consumption. In respect of I this sample, complaint case No. 52:l L987 was filed before the Metropolitan Magistrate. Second sample was found insect infected and unfit for human consumption, accordingly, complaint case No. 53 / 1987 was filed. Third sample was also found unfit for human consumption on account of development of rancidity and disagreeable smell, accordingly, complaint case No. 54 / L9B7 was filed. Fourth sample was also unfit for human consumption on account of insect infestation and a complaint case bearing No. 55/L987 was filed in this regard. It was alleged that respondent La><man Prasad used to deal in sale of milk products. He used to purchase fuaste skimmed milk powder' for blending it with 'fresh skimmed milk powder'.

¶3After the trial, Trial Court came to the conclusion that kaste skimmed milk powder' as stored for grinding in the premises of Atul Kumar Gupta by Laxman Prasad was meant for the purpose of adulteration, i.e., blending the same with 'fresh skimmed milk powder', consequently, convicted the respondents under Section 16(1A) read with Section 7 of the Act.

¶4In the Appeals filed by the respondents, Additional Sessions Judge scrutinized the evidence adduced before the Trial Court in detail and came to the conclusion that petitioner had failed to prove beyond the shadow of reasonable doubt that kaste skimmed milk I l.l powd.er' seized by petitioner was meant for human consumption, inasmuch as, it was to be used for blending with 'fresh skimmed milk powd.er'. Appellate Court has held that respondent Atul Kumar Gupta was running art'"atta chakki" in the name of M/s' Gupta Powder Mills, where tvaste skimmed milk powder' belonging to Laxman Prasad was sent for grinding purpose only. Neither any evid.ence was collected by the Food Inspector nor produced during triat to indicate that Atul Kumar Gupta was engaged in the business of sale and purchase of 'skimmed milk powder'' Atul Kumar Gupta had given in writing that kaste skimmed milk powder' was sent by Laxman Prasad for grinding purposes' No 'fresh skimmed milk powder'was recovered from the premises of Atul Kumar Gupta. There was nothing to suggest that Atul Kumar Gupta was selling 'skimmed milk powder' and for that purpose he had kept the fuaste skimmed milk powder' as an adulterant for blending it with the Tresh skimmed milk powder'. Even the bags recovered from :nts "atta chakki" were old bags. PW2, PW4, PWs and pW6 had admitted that Atul Kumar Gupta had disclosed that the articles lying in his premises did not belong to him' The customer used to give the articles to him for grinding purposes only. Even challan was produced by AtuI Kumar Gupta to show that material belonged. to Laxman Prasad. Petitioners' witnesses I admitted that they had not seen any document to show that Atul Kumar Gupta had ever sold 'skimmed milk powder' to anyone till the filing of complaints. "Atta chakki" was being run by Atul Kumar Gupta pursuant to a license issued by the Municipal Corporation which itself indicated that he was engaged only in grinding work. Petitioner had., thus, failed to prove that Atul Kumar Gupta had stored the fuaste skimmed milk powder' as an adulterant. As regards Laxman Prasad is concerned, Appellate Court has observed that he had not disowned the bags of fuaste skimmed milk powder' seized from the premises of Atul Kumar Gupta. He had stated that he had sent the same to Atul Kumar Gupta on 30th August, 1986 for grinding purposes only. The stand taken by Laxman Prasad that the fuaste skimmed milk powder' was not meant for human consumption, but was for manufacturing the "animal/poultry feed" was fortified from the evidence adduced by the parties. Appellate Court also noted that PWs had himself admitted that during the investigation, Laxman Prasad had produced some bills showing the purchase of fuaste skimmed milk powder'. PWs had further admitted that Laxman Prasad used to deal in haste skimmed milk powder'. PW6 had also admitted that he had visited the premises of Laxman Prasad but did not see €ur.y record to show that he used to sell 'skimmed milk powder' for human consumption. Laxman ,-i Prasad had also produced bills indicating that kaste skimmed milk powd.er' was used for poultry purpose. . Appellate Court has returned a finding that the evidence 1ed.by the petitioner rather corroborates the defense of the respondent that he used to sell fuaste skimmed milk powd.er' and used to sell it for manufacture of "poultry feed". It was further held that the Food Inspectors had not seized any 'fresh skimmed milk powder' from the premises of Laxman Prasad in order to support the allegations in the complaints that he had been using the fuaste skimmed . milk powder' for blending it \Mith 'fresh skimmed milk powder'. It was held that initially burden was upon the prosecution to prove that the respondent had been using the seized tvaste skimmed milk powder'as an adulterant which it had tailed to discharge.

¶5I do not find the view taken by the Appellate Court to be perverse or suffering from any manifest error, inasmuch as, after meticulously scrutinizing entire evidence on the record Trial Court, Appellate Court has taken a view which cannot be interfered with by the High Court by re-appreciating the evidence in detail. It is well settled that an order of acquittal cannot be interfered with unless it is shown that the same is perverse, suffers from manifest error and has resulted in flagrant miscarriage ofjustice. ,. i. J

¶6In the facts of this case, the view taken by the Appellate court cannot be said to be not a possible view. It is not in dispute that more than 300 bags of fuaste skimmed milk powder' were seized from tlre *qtta chakki" of Atul Kumar Gupta. Respondent Laxman Prasad has not disowned the materials so seized. In fact, he stated that the same belonged to him and was kept by him in the " atta chakki" o/ Atul Kumar Gupta for grinding purposes only. He used to sell the fuaste skimmed milk powder' used for manufacturing of "poultry feed". Even the prosecution witnesses have admitted that all along Laxman Prasad had taken a stand that he was dealing in fuaste skimmed milk powder', which was Llsed for manufacturing poultry feed. Photocopies of certain bills were even taken in possession by the Food Inspector in this regard. No 'fresh skimmed milk powd.er' was seized either from the premises of Laxman Prasad Gupta or Atul Kumar Gupta. In absence of the same, there was no basis for the petitioner to allege that the seized material was used as an adulterant to be mixed with the Tresh skimmed milk powder' and used to be sold in the market for hum€ut consumption. No evidence in this regard had been led during the trial.

¶7For the foregoing reasons, I am of the view that petitioner has t"'l' l : railed to make out an arguable case for seeking leave to Appeal against the acquittal of the respondent. Petitions are accordingly, dismissed. 'f FEBRUARY 08, ?OLL rb \.A\-.)rY-A.f{. PATHAK, J. t -"