Nagar Swasthya Adhikari v. Kanhaiya Lal — 1964 DIGILAW 419 (ALL)

ORDER C.B. Kapoor, J. - This appeal by special leave by the Nagar Swasthya Adhikari, Nagar Mahapalika, Agra arises out of an order of a learned Magistrate, 1st class, Agra where by a complaint filed by the appellant against the respondents for contravention of the provisions of the Prevention of Food Adulteration Act and the Rules framed thereunder was dismissed and the respondents were acquitted. 2. The respondents carry on business in Ghee in Mohalla Sarai Chhatta, P.S. Chhatta, Agra within the limits of the Nagar Mahapalika, Agra. On 13-6-1961 at 9 a.m. V.N. Singh then attached as Food Inspector to the aforesaid Mahapalika went to the shop of the respondents and purchased 12 ozs. of Ghee at the price demanded by the respondents. The Food Inspector informed the respondents that the Ghee purchased will be sent for analysis and handed over to the respondents a notice under Rule 12. As required by the Rules, the sample of Ghee was divided into three parts and each part was kept in a phial which was sealed. One of those Phials was handed over to the respondents and another was sent to the Public Analyst. The result of examination by the Public Analyst was as below : - 1. But-yrore-fractometer reading (at 400C)-------42.3. 2. Reichert Value 28. 3. Moisture (water content)------------0.07%. 4. Free fatty acids (as Oleic Acid) 6.7%. 5. Baudouins test (for presence of til oil) - Negative. 3. The Public Analyst was of the opinion that the free fatty acids content exceeded the prescribed maximum limit of 3 per cent. The report of the Public Analyst was dated 5-7-1961 and the sample was received in his office on 19-6-1961. In view of the report of the Public Analyst, the respondents were prosecuted. 4. The respondents pleaded not guilty and examined one Sri Baldeo Bansal as D.W. 1. The aforesaid witness was a Ghee Chemist at the Bansal Food Laboratory situated at Khari Baoli, Delhi. He stated that Oleic Acid is not added to ghee, rather it denotes the freshness of ghee. According to him Oleic Acid increases due to moisture, air and exposure to light as also due to some other factors. He has further stated that the content of Oleic Acid also increases with the passage of time. According to him ghee is never free from moisture and even if it is kept in a closed container acidity increases. According to him Oleic Acid increases due to moisture, air and exposure to light as also due to some other factors. He has further stated that the content of Oleic Acid also increases with the passage of time. According to him ghee is never free from moisture and even if it is kept in a closed container acidity increases. At this stage, it may be mentioned that even according to the report of the Public Analyst, there was .07 per cent of moisture, in the sample of ghee in question. 5. On behalf of the appellant my attention has been invited to Rules 14 to 17 of the Prevention of Food Adulteration Rules which provide for the manner in which the samples taken should be bottled, labelled and dispatched to the Public Analyst. In particular, stress has been laid on Rule 14 which, inter alia provides that the samples of food for the purposes of analysis shall be kept in clean dry bottles or jars or another suitable container which shall be closed sufficiently tight to prevent leakage or evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. The contention advanced is that the aforesaid Rules should be presumed to have been followed by the Food Inspector when he obtained the sample in question. The point overlooked by learned Counsel for the appellant is, as stated by Sri Bansal, that ghee is never free from moisture and it could not, therefore, be said that during the time that elapsed after the taking of the sample and prior to its examination by the Public Analyst the sample was free from the reaction of moisture. It has alia been contended on behalf of the appellant that the content of moisture found in the sample was little that it could not have resulted in the increase in acidity. There is no evidence indicating that the quantity of moisture found in the sample was not sufficient to bring about an increase in the content of acidity and, in the absence of such evidence, I am not prepared to accede to the last mentioned contention advanced on behalf of the appellant. There is no evidence indicating that the quantity of moisture found in the sample was not sufficient to bring about an increase in the content of acidity and, in the absence of such evidence, I am not prepared to accede to the last mentioned contention advanced on behalf of the appellant. In re P. Mohammud Shariff Sahab, A.I.R. 1962 Madras, page 342 a sample of Gingelly oil was taken for analysis on 12-8-1959 and on analysis by the Public Analyst on 25-8-1959 it was found to contain oleic acid in excess of the permissible 3 per cent. No evidence was led in the aforesaid case on behalf of the prosecutor to show that the delay in the examination of the sample had no relation to the incriminating excess and, in the circumstances, it was held that the accused was entitled to be extended the benefit of doubt. 6. The question was considered by this court in Criminal Appeal No. 889 of 1959 (The Municipal Board, Kanpur v. Hanuman Prasad) decided on 27-4-1960, reported in 1979 (1) F.A.C. 248 . In that case, a sample of ghee was taken on 21-12-1957 and the report of the Public Analyst was prepared on 21-2-1958. As a result of analysis, oleic acid was found to be 11.2 per cent. This Court held that the increase in the oleic acid content was due to the delay in the examination of the sample. 7. In the instant case, a period of more than twenty days elapsed between the taking of the sample and its examination by the Public Analyst. The witness examined on behalf of the respondents indicated that the increase in the content of oleic acid might well have been due to the delay in the examination by the Public Analyst. No attempt was made on behalf of the prosecution to prove that the excess in the oleic acid content in the sample in question could not have been the result of the moisture content of the sample and the delay in the examination of the sample by the Public Analyst. No attempt was made on behalf of the prosecution to prove that the excess in the oleic acid content in the sample in question could not have been the result of the moisture content of the sample and the delay in the examination of the sample by the Public Analyst. The finding recorded by the learned trial court, therefore, could not be characterised to be an unreasonable one and in view of the principles governing an appeal against an order of acquittal as propounded by the Supreme Court in several decision e.g. Sanwat Singh v. State of Rajasthan, A.I.R. 1961 (S.C.) page 715 that finding cannot be interfered with in appeal. 8. The appeal, accordingly, fails and is dismissed.