S.A. Bobde, J. - (1.) Leave granted.
(2.) The accused, a vendor of M/s New Bikaner Sweet Center was in charge of the day to day business of the shop ( Located at M/s New Bikaner Sweet Center, Sl.No. A-9, Tilak Market, Ramesh Nagar, New Delhi- 110015.). On 08.04.2004 at about 7.00 PM, Food Inspector Shri S.K. Sharma purchased a sample of Ghee, a food article for analysis from the shop of the accused where the said food article was stored for sale. The sample consisted of approximately 600 gms of Ghee taken from an open tin bearing no label or declaration, after proper mixing with the help of a clean and dry long spoon. The sample was divided into three equal parts and stored separately as per the requirements in three separate clean and dry glass bottles under the supervision and direction of Shri B.M. Jain, SDM/LHA. The vendor's signature was obtained on the LHA slip and the wrapper of the sample bottles and the Panchnama was prepared on the spot. One counterpart of the sample (Bearing LHA Code No. 93/LHA/7757) was sent to the Public Analyst, Delhi (hereinafter referred to as "PA"), and the other two counterparts were deposited with the LHA. The PA opined that the sample exceeds the maximum Butyro Refractometer (hereinafter referred to as "BR") reading limit of 43 and has a Reichert value of less than 28. The sample also tested positive for Baudouin Test, which should be negative in case of Ghee. And thus, does not conform to the standard. Upon summoning, the accused opted to get the second counterpart (Bearing No. 93/LHA/7757) of the sample analyzed by the Director, Central Food Laboratory (hereinafter referred to as "the Director") under Section 13 (2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act"). The report (Certificate No.CFL/679/743/2004 dated 20.10.2004) opined that the sample did not conform to the standards of Ghee as per the Act and the charges were framed. The ACMM-II held the accused guilty of the violation of the provisions of Section 2 (ia) (a) (c) & (m) of the Act, punishable under Section 16 (1) (a), read with Section 7 of the Act and convicted him (Vide order dated 15.04.2011) . The Sessions Judge set aside the order of the ACMM-II, vide order dated 15.04.2011 and acquitted the accused. Against the order of acquittal, the prosecution applied for leave to appeal under Section 378(1) of the Code of Criminal Procedure. The High Court declined to grant relief (Vide order 20.12.2013 (CRL. M.A. 19502/2013)) , and hence the present appeal is before us.
(3.) There are two reasons why the High Court had declined to grant leave to appeal against the judgment of acquittal of the Sessions Court. (1) First, the sample of Ghee that was taken was itself not meant for sale but it was meant to be used merely as an ingredient in the preparation of sweets which in turn were meant for sale, and therefore no offence is made out under the provisions of Section 2 (ia) (c) & (m) and Section 16 (1) (a) read with Section 7 of the Act. (2) Secondly, there was a discrepancy between the report of PA and that of the Director with respect to the BR reading. The PA had recorded the BR reading as 52.7, whereas the Director had recorded the BR reading as 53.1. This variation was 0.76% i.e. more than 0.3%, and therefore the sample cannot be considered as representative in nature as held in State (Delhi Administration) v. Ram Singh and Another, 2009 1 FAC 371. We have carefully considered the provisions of the Act and find no merit in either reason. Whether the Food was illegally stored;