State Vs Anil Kumar Sodhi


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State Vs Anil Kumar Sodhi

  1. 1. IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : PFA Act Crl.App.428/1998 Date of Reserve : 10.02.2009 Date of decision : 18.02.2009 STATE …Appellant Through: Mr. Arvind Kumar Gupta, APP Versus ANIL KUMAR SODHI and ANR. ..Respondents Through: Mr. M.L. Alwadhi, adv. MOOL CHAND GARG, J. 1. The present appeal was filed by Delhi (Administration) under section 378(4) of C.r.P.C against the judgement dated 6.03.1997 passed in appeal by Ld. ASJ acquitting the respondent of the charges under section 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act) by reversing the judgment of the Metropolitan Magistrate New Delhi dated 13.3.96 whereby the respondent was convicted for having sold 600 Grams of Atta which as per the report of Public Analyst was found to have contained some living and dead insects though it met the standards fixed by the rules for ATTA. Leave to file appeal was granted on 07.10.1998. Arguments were heard on 10.02.2009 and the appeal was dismissed. Now I supply the reasons. 2. Briefly stating the facts giving rise to filing of this appeal are; that on 20.02.1987 a team of food inspectors visited M/s. Sodhi Flour Mill, at C-35, Okhla Industrial Area New Delhi and purchased 600 gms of Atta on payment of Rs.1.50p as price for sample analysis as per the provisions of the PFA Act and Rules. The sample was taken out of hundered Kilo bag. After
  2. 2. following the procedure of mixing, sealing and fastening in accordance with the Act, one part of the sample was sent to P.A, Delhi for analysis. The P.A analysed the sample and vide her report dated 26.2.1987 opined that the sample of the Atta was adulterated because she found 3 living and 3 dead insects in approx. 200 gms of sample which was sent for analysis. On that basis a complaint was filed against the respondent alleging violation of the provisions of section 2(ia)(a)(f)(i) of the PFA Act punishable under section 7 read with section 16 of the PFA Act. 3. The aforesaid provision reads as under: 2.(ia) ``adulterated'`’an article of food shall be deemed to be adulterated’(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; (f) if the article consists wholly or in part of any filthy, putrid, , rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; (i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health. 4. The Metropolitan Magistrate convicted the respondents by observing that,’ no purchaser would have ever demand Atta containing 3 living or 3 dead insects or any Egg or Larva of insect which are the earlier stages for the development of insects. Moreover, under the PFA Act, it is not prescribed that the sampled commodity like Atta can contain such number of insects. Thus, it is clearly established that nature, substance or quality of the sampled commodity in the present case, was not the same as demanded by the FI and the Atta containing 6 insects is prejudicial to the interest of purchase. Accordingly, the case was covered within the provisions of section 2(ia) (a) of the PFA Act’ and thus the respondent was convicted despite the fact that Atta otherwise met the standards under the PFA Rules. 5. However in Appeal filed by the respondent the Additional Session Judge held that the whole purpose of the Prevention of Food Adulteration Act was that unadulterated food articles should ultimately reach the consumer. It was observed that and in the present case since Atta is a standardised commodity and the standards have been complied with, it cannot be said that the food article was adulterated. Thus the findings of the Trial Court were held to be erroneous on this point and reversed the Judgment of conviction. The learned ASJ after hearing both the parties also observed , ‘ Keeping in view
  3. 3. the fact that Atta is a standardised article for which the standard has been prescribed as per the PFA Rules and admittedly there has been no violation of the said standards, in such circumstances it cannot be said that there has been any violation of the nature, quality or substance demanded by the purchaser and no evidence has been led to establish as to what kind or prejudice has been caused to him. It is only in those cases where no standards have been prescribed that the question or nature, substance or quality of the food article sold by the vendor can be gone into. Even otherwise, the department has failed to lead any evidence or establish as to how the nature, quality or substance of the sample Atta prejudiced to consumer.’ And accordingly allowed the appeal and acquitted the respondent. Hence this appeal. 6. The State/ Appellant has assailed the aforesaid Judgment on the ground that the Ld. ASJ has not considered the evidence on record properly which shows that the Atta sold by the respondents was insect infested and that as per the report of the PA contained 3 living and 3 dead insects in a sample of 200 Gms. and thus was not of the prescribed standards. It is also submitted that the ASJ also ignored the law laid down in 1976(2) FAC 53 and in 1984 (2) FAC 215. 7. However ld. Counsel for the respondents submitted a judgement reported as 2008 (2) FAC 6., where criteria to deal with an appeal against acquittal has been laid down in the following words; ‘27. An appeal against acquittal is also an appeal under the Code and an appellate Court has every power to re-appreciate, review and reconsider the evidence as whole before it. It is, no doubt true that there is presumption of innocence in favour of the accused and the presumption is reinforced by an order of acquittal recoded by the trial court. But that is not the end of the matter. It is for the appellate court to keep in view the relevant principles of law, to re-appreciate and re-weight the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence 28. In Shivaji Sahbrao Bodade Vs. State of Maharashtra, (1973) 2 SCC 793, dealing with a similar situation, a three Judge bench Speaking through V.R.Krishna Iyer J, Stated: ‘Even at this stage we may remind ourselves of a necessary social perspective in criminal case which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of
  4. 4. escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that ``a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....'` In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. 29. Recently, in Chandrappa v. State of Karnataka (2007) 4 SCC 415: JT (2007) 3 SC 316, after considering the relevant provisions of the old Code (Code of Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure, 1973) and referring to decisions of the Privy Council and of this Court, one of us (C.K. Thakker, J.) laid down certain general principles regarding powers of Appellate Court in dealing with appeal against an order of acquittal. In para 42 it was observed: 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an
  5. 5. appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 8. It is also to take note of a judgement delivered by this court in State Vs. Dwarka Dass (Crl. App. No.135/1989) decided on 2.4.2007 where it was observed: 5. In Sachchey Lal Tiwari V. State of Uttar Pradesh (AIR 2004 SC 5039) also laid down certain principal in this regard in the following words;- (i) Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. (ii) If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (iii) A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. (iv) Where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (v) Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. 9. Now coming to the facts of this case, I find that Learned ASJ in her impugned Judgment has observed that as it was not a case of adulteration and finding of insects in the 200 gms. of Atta taken for sample analysis does not mean that it has been deliberately done by the respondents to increase the value or to downgrade the quality of the food article manufactured by them. She has also discussed the judgment which has been cited by the learned counsel for the appellant and which have been rightly distinguished. It is important to mention over here that as per the report of PA the standard of the Atta was not below the quality which is required and the presence of
  6. 6. insects was only an incident can occur due to open storage. In the above case, view taken by the Session Court does not suffer from any infirmity and is not contrary to law. There was no miscarriage of justice and it is not a case where this Court is required to reverse the order of acquittal by exercising its power under Section 378(4) Cr.P.C. and, therefore, the appeal filed by the appellant is hereby dismissed. Sd/- MOOL CHAND GARG, J.