STATE Vs. SUSHIL KUMAR

JUDGEMENT

(1.) This leave petition has been filed by the State. I have gone through the impugned order and relevant facts. Briefly, the case of the Complainant is that on 19th December, 1999 Food Inspector Mr. Arun Kumar purchased a sample of mustard oil for analysis from Sushil Kumar S/o. Shri Ganga Prasad Gupta who was carrying business in the name and style of M/s Sushil Store at F-128, Mohammad Pur Village, Delhi. The sample consisted of approximately 375 gms. of mustard oil taken from an open tin bearing no label declaration. The sample of mustard oil was taken after proper mixing with the measure already lying in the tin. The sample was divided into three equal parts and each part was put in a separate clean and dry bottle and each of it was packed separately, fastened and sealed as per the provisions of PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. It is alleged that before starting the proceedings, efforts were made to join the public witnesses but none came forward. All the documents were got signed from the Respondent and other witnesses. The sample was taken under the supervision of local health authorities. One of the three samples was got deposited with the public analyst with seals intact. The other two counter-parts of the sample were deposited with the local health authority. On analysis of the sample, the Public Analyst found that the sample does not conform to the standards because saponification value and unsaponifiable matter exceeds the prescribed maximum limit of 177 and 1.2% respectively and B.T.T. is less than the minimum prescribed limit of 23 degree Celsius. The acid value was found to be 1.15. Further the sample was not clear and contains suspended matter which should not be present in mustard oil. The Respondent exercised his right under Section 13(2) of the PFA Act and requested to get the second counterpart sample to be analysed from the Director CFL. In the certificate given by the Director, CFL, it was opined that the sample of mustard oil is adulterated having saponification value to be 180 and the Ballier test (BTT) recorded the temperature to be 28.4 degree Celsius and the acid value was found to be 3.09, that not conforming to the standards laid down under the provisions of PFA Act, 1954 and Rules.

(2.) After recording the Complainant evidence and the statement of the accused, the learned Metropolitan Magistrate acquitted Sushil Kumar in view of the fact that there was variation in the two reports of the samples sent to Public Analyst & the CFL thus rendering the sample unrepresentative. Against this order of the learned Metropolitan Magistrate dated 20th July, 2009 leave to appeal has been sought.

(3.) A perusal of the judgment shows that the learned Metropolitan Magistrate after referring to the judgments on the issue has rightly come to the conclusion that the variation in the samples sent to the public analyst and the CFL renders the sample unrepresentative. It was held that one counterpart of the sample commodity shows the BTT value less than the minimum prescribed limit of 23 degree Celsius while the other counterpart of the same sample shows the BTT value above the maximum prescribed limit of 27.5 degree Celsius, that is, in the report of Director, CFL the BTT value recorded is 28.4 degree Celsius. The difference of acid value in both the reports is also divergent to a great extent This Court in Kanshi Nath v. State,2005 3 JCC(Del) 1637 and State v. Mahender Kumar,2008 1 JCC(Del) 582 has held that if there is variation in the two reports to the extent of more than 0.3%, the samples would amount to be unrepresentative. In State Vs. Ram Singh & Ors., 2009 1 FAC 371 it has been held that when there is difference in the two reports, there is a reasonable doubt about the samples not being homogenized. Benefit of doubt should thus go to the Respondent. In view of the variation in the two reports i.e. of the public analyst and the Director, CFL the learned Metropolitan Magistrate was justified in acquitting the Respondent. I find no ground to interfere in the impugned judgment of the learned Metropolitan Magistrate. Leave to appeal is declined. Petition is dismissed.