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2006 DIGILAW 649 (RAJ)

Girdhari Lal v. State of Rajasthan

2006-02-24

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This revision petition is directed against the Judgment and order dated 19.09.1994 passed by learned Additional District and Sessions Judge, Gangapur City whereby the appeal of the accused petitioner against the Judgment and order dated 06.06.1989 passed by learned Additional Chief Judicial Magistrate, Hindaun City was dismissed and the conviction of accused petitioner under Section 7/16 of the Prevention of Food Adulteration Act was maintained. 2.Learned trial Court finding the accused petitioner guilty of offence of adulteration of food awarded punishment of one year rigorous imprisonment and to pay a fine of Rs. 1,000/-; in default of payment of fine to further undergo 3 months rigorous imprisonment. The said sentence was maintained by the learned Appellate Court. 3.According to the prosecution, on 09.08.1983 at 3.00 PM during the day in the shop situated in Todabhim, District Hindaun, the Food Inspector surveyed the shop of the accused petitioner and took the sample of 600 gms of coriander (“Dhania” powder) on payment and said sample was sent for sample test to the State Laboratory. The State Laboratory gave its report Exhibit P-7 and found the sample adulterated as not conforming to the prescribed standard. The total ash was found to be 8.57% as against the prescribed standard of not more than 7% by weight as prescribed in Rule A. 05.08.01 of Appendix “B” under Rule 5 of the Prevention of Food Adulteration Rules, 1955, and the ash insoluble in dilute HCL was found to be 1.82% as against the prescribed standard of not more than 1.5% by weight. Upon further investigation by Central Laboratory, vide Exhibit C-1, again the said sample was re-tested and in the opinion of Central Laboratory the sample was found to be adulterated and the total ash was found to be 9.0% as against 8.57% found by the State Laboratory and ash insoluble in dilute HCL was found to be 2.4% as against 1.82% found by the State Laboratory. 4.On the basis of these adverse reports and evidence recorded by the trial Court, the trial Court convicted the accused petitioner of the offence of adulteration and awarded the sentence as aforesaid. 4.On the basis of these adverse reports and evidence recorded by the trial Court, the trial Court convicted the accused petitioner of the offence of adulteration and awarded the sentence as aforesaid. 5.In the present revision petition, the learned Counsel for the petitioner has made various submissions, the important of them are that on account of difference in reports of two expert bodies, one by State Laboratory and another by Central Laboratory, the benefit should go to the accused petitioner and he deserves to be acquitted. He relies upon the Judgment of this Court rendered in Bhanwar Lal vs. State of Rajasthan & Anr., 1999 CrLR 290 (Raj.) wherein on account of difference in reports of two Public Laboratories about the non-fat solids/contents, accused petitioner was acquitted. Learned Counsel for the petitioner also submitted that since the sample was not taken in accordance with law because the same was firstly not taken in the presence of two independent witnesses and they were only departmental persons and one of them had even turned hostile during the trial before the Court and there was no evidence that sample was taken in clean and dry bottles as required by law. He submits that accused petitioner is entitled to be acquitted on that ground. He relies on the Judgment of Delhi High Court rendered in State (Delhi Admn.) vs. Dayal Das, 2005 (3) Crimes 203. He further submitted that contents of ash found in the sample by the two laboratories were also marginally higher than the prescribed limit and, therefore, it was not the case of adulteration as no other foreign element was found in the samples and, therefore, there was no case of conviction of accused petitioner. 6.On the side opposite, learned Public Prosecutor opposes there various contentions and submits that concurrent findings of two Courts below do not deserve to be upset by this Court in revisional jurisdiction. 7.Having considered the rival submissions and upon perusal of record, this Court is of the view that the present revision petition deserves to be allowed and the accused petitioner deserves to be acquitted of the offence under Section 7/16 of the Act. Not only the alleged amount of ash found in the sample is marginally higher than the prescribed limit as aforesaid, but also the difference between two reports is there and prosecution has failed to satisfactorily explain this difference. Not only the alleged amount of ash found in the sample is marginally higher than the prescribed limit as aforesaid, but also the difference between two reports is there and prosecution has failed to satisfactorily explain this difference. Learned Public Prosecutor had to fairly submit that even if the dilution of HCL with which the ash amount is tested is slightly different, it may result in different percentage of insoluble ash found in the sample. There is no prescribed standard of HCL dilution itself . Therefore, this marginal difference could be on account of difference in dilution of HCL itself . The difference in two reports which is not explained by the prosecution properly will naturally enure to the benefit of accused petitioner. 8.In view of aforesaid, the impugned orders convicting the accused petitioner are liable to be set aside and the accused petitioner deserves to be acquitted and, therefore, he is acquitted accordingly of the said offences.