A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and here can be none. But, this does not enable us to detract from the ratio of the Full Bench decision
CRL.L.P. 581/2011 Page 3 of 4 of this court in the case of MCD v. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than .3%, then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than .3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained."
5. Since in the present case, variation in Public Analyst and CFL
certificates is more than .3%, it would clearly imply that samples in
the present case were not representative.
Delhi High Court
State vs Rama Rattan Malhotra on 3 August, 2012
Citation2013(1) crimes565(Delhi)1. Present petition has been filed seeking leave to appeal against
the order of acquittal dated 23rd June, 2011 passed by learned
Additional Sessions Judge, New Delhi. The relevant portion of the
impugned judgment is reproduced hereinbelow:-
"Defence counsel also referred to variation in two reports in the present case when as per report of the Public Analyst the extraneous matter in the sample Rai whole was found 0.79% whereas the CFL found presence of extraneous matter at 1.38%. Ld. Chief Prosecutor argued that this
CRL.L.P. 581/2011 Page 1 of 4 variation being not of a substantial nature should not affect the concurrent findings of two reports on the point of adulteration found in the sample food article though appeared plausible but certainly the variation in two reports reflects upon the representative nature of the sample. If a quantity of Rai Whole 600 grammes was taken out from a quantity of 3 to 4 kilo grammes of Rai Whole found stored in the business premises of the accused appellant, variation on the point of presence of extraneous matter in two reports certainly gives a doubt to the testimony of official witnesses that the whole quantity of Rai Whole was homogenized before sample was drawn. This point may not independently affect the prosecution case but when examined in light of the observations made in the preceding paragraph that some benefit of defective sampling deserved to be considered in the present case also then the prosecution charge cannot be held to have been found proved beyond doubt. For the reasons stated above I find the conviction judgment recorded by Ld MM in this case against accused deserves unsustainability and is required to be set aside. Appeal is allowed. Conviction against accused is set aside."
2. Mr. Manoj Ohri, learned APP for State submits that leave to
appeal should be granted in the present case as learned Additional
Sessions Judge failed to appreciate that the sample has failed as per
Public Analyst and CFL certificates.
3. However, this Court in State Vs. Mahender Kumar & Ors.,
Criminal Appeal No. 54/1990 decided on 24th January, 2008 has held
as under:-
"11. While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material
CRL.L.P. 581/2011 Page 2 of 4 parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than -Y .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI.
12. In Kanshi Nath v. State even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan Sarup 1972 FAC 273, this Court observed as under (PFA Cases, p. 227):
"Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained."
4. Similarly, in Kanshi Nath Vs. State, 124 (2005) DLT 413 it has
been held as under:-
"A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and here can be none. But, this does not enable us to detract from the ratio of the Full Bench decision
CRL.L.P. 581/2011 Page 3 of 4 of this court in the case of MCD v. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than .3%, then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than .3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained."
5. Since in the present case, variation in Public Analyst and CFL
certificates is more than .3%, it would clearly imply that samples in
the present case were not representative.
6. Keeping in view the aforesaid, present leave to appeal is bereft
of merits and is accordingly dismissed.
MANMOHAN, J
AUGUST 03, 2012
rn
CRL.L.P. 581/2011 Page 4 of 4
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