JUDGMENT
P.K. Bhasin, J.
1. This appeal has been filed by the State against the judgment dated 11.3.1996 passed by the learned Metropolitan Magistrate, New Delhi in complaint case No.60/93 whereby the respondents herein were acquitted of the charge under Sections 7/16 of the Prevention of Food Adulteration Act.
2. The relevant facts leading to the prosecution of the respondents herein as noticed by the learned trial court in the impugned judgment are as under:
On 28.7.92, a team of Food Inspectors comprising of FI Surinder Kumar Sharma and FI Sham Lal and other members of PFA Department under the supervision of Dr. G.C. Raha visited the hotel the Connaught Place, a unit of Prominent Hotels Ltd., 37, Shaheed Bhagat Singh Marg, New Delhi, where accused Sh. V.K. Muttoo, General Manager of the hotel was found conducting the business of said hotel and storing paneer, a food article for the purpose of use in preparation of vegetables and other food articles for sale for human consumption and at about 3.15 pm, he sold a sample consisting of 750 grams of paneer, which was taken from an open container kept in cold storage to FI Surinder Kumar Sharma for analysis and price of Rs.26.25 p was offered but was refused to be accepted. It has been further alleged that sample of paneer was taken by cutting it into small pieces and after proper mixing with the help of clean and dry knife in a clean and dry tray and FI divided the sample, then and there, into three equal parts and each part was put in three clean and dry glass bottles and 20 drops of formalin was added to each bottle. Each bottle containing the sample was separately packed, fastened, marked and sealed according to PFA Act and rules. Signature of accused No.1/vendor were obtained on the paper slip and wrapper of the sample bottle. Notice in form VI was prepared at the spot and given to accused VK Muttoo and price of sample was offered but he refused to accept the same. Panchnama was also prepared at the spot by FI SK Sharma. It has been further alleged that before start of sample proceedings, efforts were made to join public witnesses but none came forward and thereupon, FI Sham Lal was joined as a witness to the sample proceedings. One counter part of sample was sent to P.A. for analysis intact condition and remaining two counter parts were deposited with LHA also in intact condition. It has been further alleged that PA analysed the same and found the same to be adulterated and not conforming to the standard prescribed under PFA Act and rules as milk fat on dry matter is less than the prescribed limit of 50.0%. It has been further alleged that sample commodity was sold and supplied to the hotel. The Connaught Place by accused No.2 Ashwani Kumar, the then Executive /Prop. Of M/s Sh.Ram Paneer Regd. T.M. Shri Ram House, 97, LIG, DDA Complex, Motia Khan, New Delhi, (who is now respondent no. 2 in this appeal) vide challan No.315 dated 27.7.92 under a contract. It has been further alleged that establishment M/s Shri Ram Paneer is also known as M/s Shri Ram Surya Associates and the hotel the Connaught Place is a unit belonging to Prominent Hotels Ltd. Regd. Office 37, Shaheed Bhagat Singh Marg, New Delhi, which is a company of which Sh.V.K.Muttoo, General Manager, is the nominee of the said company (which is respondent no. 3 in this appeal) and he was found the person in charge of and responsible for the conduct of the business of the hotel in question. Thus, it is alleged that accused have violated the provisions of Section 2(ia)(a)(m) punishable Under Section 16(1) and Section 7 of PFA Act. Thereafter, consent as provided Under Section 20 of PFA Act for prosecution of accused was granted by Sh. M.P. Tyagi, the then Director, PFA. Hence, the present complaint.
3. After institution of the complaint the accused were served with intimation letter along with copy of report of the Public Analyst and thereupon, accused No.1 exercised his right before the Trial Court (respondent no. 1 herein), as provided Unser Section 13(2) of PFA Act and the second counter part of the sample was sent to the Director, CFL, Mysore, for analysis who vide his certificate No.117/PFA/93 dated 13.4.93 opined that the sample does not conform to the standard as milk fat contents fell below the minimum specified limit of 50.0% on dry matter basis.
4. After considering the evidence adduced by the prosecution and taking into consideration other relevant circumstances, the learned trial court acquitted the three respondents herein and observed in para Nos. 11 and 12 of the impugned judgment as under:
The sample in the present case was taken on 28.7.92 and the present complaint has been filed on 23.2.93 i.e. after delay of more than 7 months. None of the PW has given any specific reason as to why they have taken such an inordinate delay in completing the investigation in the present case. Moreover, it is on record that PA report is dated 12.8.92 and no investigation was carried out by FI S.K. Sharma, who has taken the sample in the present case, during the period 7.9.92 till 23.12.92 when he has issued notice Unser Section 14(A). Nowhere it was explained as to what was being done during this long period of time. This has become important in view of the perishable nature of sampled commodity. I am accordingly, of the opinion that right of accused as granted Unser Section 13 of PFA Act is frustrated and prosecution should have been launched against the accused could have exercised his right to get the second counter part of sample analysed from the Director, CFL, Mysore, before the expiry of period of four months. For the fore-going reasons, I am of the opinion that present case has been instituted after a great delay without any just reason or sufficient cause thereby depriving the accused of their right Unser Section 13(2) as it has been stated by various experts that a food articles with milk and milk products are perishable in nature even if formaline is added and Chemical changes are bound to occur and fat and fatty acid contents are bound to decrease with the passage of time. Accordingly, accused are given benefit of doubt and are acquitted.
5. Feeling aggrieved the state sought leave to appeal which was granted. I have heard Mr. M.N. Dudeja, APP for the State, Mr. M.C. Sanghi, Advocate for respondent nos. 1 and 3 and Mr. P.R. Thakur for the respondent no. 2. I have also gone through evidence adduced during the trial by the prosecution.
6. Hon’ble Supreme Court in a number of cases has laid down the guidelines which an appellate court should keep in mind while dealing with the judgment of acquittal. I may notice the views expressed in two judgments of the Hon’ble Supreme Court. In State of Punjab v. Ajaib Singh and Ors. 2005 SCC (Cri) 43, while dealing with a case of acquittal it was observed as under in para no. 10 of the judgment:
10. …It is well settled that in an appeal against acquittal, the appellate court is entitled to reappreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed.
7. In an earlier judgment reported as 1980 CAR 359 (SC), Sirajuddin alias Siraj v. State of Karnataka also Hon’ble Supreme Court had observed while dealing with the scope of an appeal against a judgment of acquittal as under:
It is well settled that if the view of the evidence taken by the trial Court is reasonably possible, the High Court should not, as a rule of prudence, disturb the acquittal.
8. Keeping in view these observations of the Hon’ble Supreme Court I would now examine if the findings of the learned trial judge can be said to be perverse, as is being claimed on behalf of the State in this appeal. The findings in the impugned judgment of the learned trial Court whereby the accused were acquitted have already been reproduced above. Learned Trial Court has relied upon one judgment of the Hon’ble Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram 1975 PFA cases 186. In that case complaint was filed in the court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon’ble Supreme Court held that in these circumstances, the valuable right available to the accused under Section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Learned APP had submitted that this judgment was not applicable to the facts of the present case inasmuch as in that case the Director of Central Food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superceded the report of the Public Analyst so the Hon’ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13(2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the sample which was sent to the Director of Central Food Laboratory was found to be fit for analysis. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon’ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon’ble Supreme Court in Ghisa Ram’s case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon’ble Supreme Court is that prosecution in these kind of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the sample of the paneer was sent to the Central Food Laboratory after more than seven months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. In these circumstances, if the learned Trial Court has come to the conclusion that the accused’s right under Section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable, wholly unjustified or perverse.
9. No other point was urged by the learned APP for the state.
10. This appeal being devoid of any merit is accordingly hereby dismissed.