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Mithilesh vs State Of Nct on 28 May, 2014

Supreme Court of India Mithilesh vs State Of Nct on 28 May, 2014Author: A Sikri Bench: B.S. Chauhan, A.K. Sikri

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1570 OF 2010

MITHILESH APPELLANT

VERSUS

STATE OF NCT,DELHI RESPONDENT

O R D E R

A.K. SIKRI,J.

The appellant was running a small kirana shop at 96-A, MIG Flats, Opposite G.T.B. Hospital, G.T.B. Enclave, Shahdara, Delhi. On 11.3.1993, some officials from the Food Adulteration Department visited his shop which was being run under the name and style “M/s Mithlesh General Storeâ€�. They lifted a sample of red chilly powder (Lal Mirch) from an open container of 2 kg. capacity from the shop of the appellant. The sample was weighed on scale in a brown sheet and divided into three parts. The entire sample collected was of 450 gms. It was sent for examination by Public Analyst. The report dated 7.4.1993 was submitted by the Public Analyst which, inter alia, affirmed that sample adulterated because it contained salt as an adulterant. Relevant portion of the report is as under: “Moisture-8.22% Total ash – 7.44% A insoluble in dil.Ncl. – 0.34% Non Voletile other extract – 20.97% Crude fibre – 19.25% Test for coaltar dye – negative Test for starch – negative Insect & Fungus – nil Microscopy-Chillies structures seen. Test for sodium chloride – positive Sodium chloride (common salt) – 2.54%â€�.

Confronted with the sample, the appellant exercised his right under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘PFA Act’). Accordingly, another sample was sent for examination which was examined by the Director of the Central Forensic Laboratory (CFL). In its report dated 30.6.1993 even this sample was found to be adulterated on two counts, namely:

“(a) Total ash content exceeds the maximum specified limit of 8.0% by weight.

(b) It is not free from the presence of sodium chloride.� Total ash was found to be 9.72% by weight and Sodium Chloride content was 2.5% by weight. On the basis of the aforesaid reports, a complaint was filed with the Metropolitan Magistrate, New Delhi and trial was conducted against the appellant. Learned Metropolitan Magistrate found that the appellant had violated the provisions of Section 2 (ia)(a)(m) and therefore, he was found guilty for the offence punishable under Section 7 read with Section 16(1) of the PFA Act. Vide order dated 6.4.2002, the appellant was sentenced to undergo rigorous imprisonment for one year and also was also imposed a fine of Rs.3000/-; in default of payment of fine, to undergo simple imprisonment for three months.

Aggrieved, the appellant preferred the appeal against such judgment which was dismissed by the Additional Sessions Judge, New Delhi vide order dated 30.7.2002. The appellant thereafter filed Revision Petition in the High Court of Delhi. This Criminal Revision Petition has also been dismissed by the High Court vide judgment and order dated 4.11.2009 thereby maintaining the conviction. However, in so far as the quantum of sentence is concerned, the High Court has reduced the same from RI of one year to a period of three months RI, which is the minimum sentence. The reasons for reducing the sentence has been given by the High Court in paragraph 25 of its judgment.

Learned counsel for the appellant submitted that in one sample analysis by the Public Analyst, only salt was found as adulterant which was common in such cases as the appellant was a petty shopkeeper who had kept the things in open and there was every chance of spilling of this salt into the container which contained red chilly powder. He further submitted that even the total ash was found to be marginally higher, that is, 9.72% by weight as against maximum specified limit of 8% by weight. He also argued

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