JUDGMENT : K.B. Panda, J. - The Petitioner has been convicted u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to R.I. for six months and also to pay a fine of Rs. 1000/- or in default to undergo R. I. for three months by the Sub-Divisional Magistrate, Cuttack Sardar which has been confirmed by the Sessions Judge, Cuttack in appeal. 2. The Petitioner, as stated in the appellate Court's judgment, was a dealer in grocery articles at Pithapur within the Cuttack Municipality. On 27-7-1966 the Food Inspector (p.w. 1) purchased a sample of Suji from the grocery shop of the Appellant and after observing the requisite formalities he forwarded one bottle of Suji to the public analyst. The report of the public analyst was that the sample was adulterated as it was infested with insects (Ext. 4). Accordingly, with the sanction of the Health Officer of the Cuttack Municipality prosecution was launched against the Appellant u/s 16(1)(a)(i) read with Section 7 of the Act 37 1964". 3. The defence was that this was a Government depot of which he was a mere salesman on a salary of Rs. 95/- per month. Different articles such as Suji, Atta and Sugar etc. were being supplied by the Civil Supplies Department of Orissa Government which he was selling to the card-holders of that zone on control price. The Suji in question was not in good condition which he detected on opening the bag. He reported the matter to the Civil Supplies Officer and was waiting for instruction to return of the two bags. In the meantime the Food Inspector (p.w. 1) inspected the depot, demanded a sample of Suji and inspite of his protest that, it was not for sale but to be returned to the Civil Supplies Department, took the sample. There are three witnesses for the prosecution of whom p.w. 1 is the Food Inspector, p.w. 2 is his assistant and p.w. 3 is an independent witness to the seizure. D.w. 1 is a card holder who deposes that he wanted Suji from the depot but the Petitioner refused to sale the article as it had got spoilt. 4. There are three witnesses for the prosecution of whom p.w. 1 is the Food Inspector, p.w. 2 is his assistant and p.w. 3 is an independent witness to the seizure. D.w. 1 is a card holder who deposes that he wanted Suji from the depot but the Petitioner refused to sale the article as it had got spoilt. 4. The learned Courts below held that the Petitioner had exposed Suji for sale; that the Suji was adulterated infested with insects as it was; that all formalities required under the Act had been observed and, therefore, disbelieving the plea of the Petitioner convicted him as aforesaid. 5. Mr. B. Rath appearing on behalf of the Petitioner raised various points, viz. that the sanction for prosecution was defective; that formalities contemplated under Rules 7 and 18 which are mandatory have not been complied with; that the Suji in question was in fact not adulterated as nothing spurious was found to have been mixed according to the analyst's report; that the Suji is an article which howsoever good and genuine, bound to get infested with insects as time lapses; that the Food Inspector did not put any preservative at the time of sending the sample and, therefore, it cannot be said that between the time of seizure and analyses it had not become so infested with insects; and that the Courts below should not have disbelieved the plea of the Petitioner. It was also contended that the poor Petitioner could not properly defend himself and the two petitions filed before the Civil Supplies Officer of which he had retained copies with endorsements of the Civil Supplies Officer could not be produced in Court in time which may be taken as additional evidence and that the Petitioner could not pursue his petition for calling the Civil Supplies Officer as a defence witness which was rejected as belated, but that being so essential for a proper and fair disposal of the case, it may be remanded to enable the Petitioner to examine him. 6. So far as the technical point raised on behalf of the Petitioner that there was no sanction, that the Food Inspector did not observe due formalities nor the analyst, the Courts below have held that the prosecution case does not suffer from any of these infirmities. I also see no reason to take a contrary view. 6. So far as the technical point raised on behalf of the Petitioner that there was no sanction, that the Food Inspector did not observe due formalities nor the analyst, the Courts below have held that the prosecution case does not suffer from any of these infirmities. I also see no reason to take a contrary view. Regarding the Food Inspector not putting some preservative in the Suji that was, seized, it needs special treatment. The analyst's report is dated 23-8-1966. It is not in evidence as to when he actually examined the Suji seized on 27-7-1966. Under the precisions of the Food Adulteration Rules, the Semolina (Suji) has been described thus: A. 18.33 Semolina (Suji) is the food prepared from wheat by the process of grinding and bolting to such a degree of fineness that it passes through a No. 20 Sieve and not more than 3 percent passes through as No. 100 Sieves. It shall be free from grit and insect infestation, musty smell and offodur and should be cremmy yellow in colour. It shall contain: (a) not more that 1 percent of total ash, (b) not more that 13.5 percent of moisture, (c) not less than 6.0 percent of gluten. 7. In the instant case the analyst found thus; General condition Insects present Dry Gluten 6.9% Total ash 0.9% Moisture 13.0% But while giving his opinion the analyst has stated that the sample is adulterated as it is infested with insects" (Ext. 4). From the above it would be seen that the total ash which should be not more than present in the instant case was 0.9 percent; moisture which should not be more than 13.5 percent and the gluten which should not be less than 6 percent was 6.9 percent. Thus, there was nothing in the Semolina which was contrary to the specification. So far as the general condition is concerned, the analyst's report is "insects present". But, as already stated, while giving his opinion he has said that the sample "is adulterated as it is infested with insects." Obviously, the only defect that as found in the Semolina was that insects were present. So far as the general condition is concerned, the analyst's report is "insects present". But, as already stated, while giving his opinion he has said that the sample "is adulterated as it is infested with insects." Obviously, the only defect that as found in the Semolina was that insects were present. The degree of such infestation is not given in the analyst's report though he has stated under the heading general condition that "insects present." Thus, it cannot be said with precision as to the extent to which the Semolina seized was infested with insects. It is everybody's common experience that Semolina however good and pure after some time gets (sic) and insects appear. Exposure to damp and moisture (in this case moisture was less by 5%) are generally the causes of such deterioration and once that starts, it is difficult to arrest its progress, unless of course sufficient care and attention is given by way of removing the moisture by drying, or removing the spoiled goods and putting it in a new and fresh container. Let a concrete case be taken. If 10 to 15 insects appear in a bag of Semolina, can it be said to be adulterated on that score alone? I have no doubt that opinion must differ. Unless the degree of such 'insect infestation' is given specifically, a line of demarcation when it would become adulterated and when not, would remain even controversial. In the descriptive portion of Semolina the rule says that "it should be free from grit and insect infestation", The word 'infestation' is significant. It means presence of a large number of insects, In the present case the analyst's report is 'insects hresent'. It would have been proper for the analyst to say the degree or extent of such infestation for the Court to coming an independent finding, It was also the duty of the Food Inspector to give some preservative so that the Semolina seized did not get further deteriorated during the period it was waiting for examination, The benefit of these laches in the prosecution must go to the Petitioner. In this context it would not be out of place to mention here that in the same rule under A. 18.06 it is said that food grains meant for human consumption shall fulfil the following standard of quality, namely: (i) General - Grain shall be free from adulte rated material and insecticide residue in excess of the prescribed permissible limits. (ii) Foreign matter xx xx xx xx xx xx (iii) Damaged grain xx xx xx xx xx xx (iv) Insect damage - The uric acid content arising as a result of insect shall not exceed 20 milligrammes per 100 grammes sample of the grain. So the Legislature seems to be quite alive to such a situation. The general condition of Semoline which according to the description as per rules should be free from 'insect infestation', cannot be taken to be adulterated from "insect present" as is the analyst's report, Ext. 4. In other words, the degree should have been pointed out as in the above case under A. 18.06 for food grains meant for human consumption (iv). 8. The possible argument against it is that the accused Petitioner could have got his sample examined. But that would not have improved matters, for, by then more time would have elapsed,and the quality of the seized Suji would have been worse still. 9. I would now address myself to the factual aspect of the case which the prosecution has assumed and the learned Courts below have missed. Quoting the evidence, p.w. 1 says: I know the accused Suryamoni Swain (present in dock) who has got a grocery shop at Pithapur... On that day I along with my assistant B.K. Mohapatra. (p. w. 2) inspected the shop of the accused at about 11 A.M. The accused exposed Suji, Sugar, Atta etc. in his shop for human consumption. In cross-examination he has said: I did not ascertain the relationship of the accused with the shop but he was a dealer in a Government Department Sales Store. I have not taken steps after taking sample to the effect that from which departmental store, the accused got stock. Suji and Atta are controlled commodities at the time of taking sample. P.w. 2 who is an assistant of p.w. 1 also states: On 27-7-1966 p.w. 2 visited the shop of accused which is grocery shop. I accompanied him. I have not taken steps after taking sample to the effect that from which departmental store, the accused got stock. Suji and Atta are controlled commodities at the time of taking sample. P.w. 2 who is an assistant of p.w. 1 also states: On 27-7-1966 p.w. 2 visited the shop of accused which is grocery shop. I accompanied him. We found Atta, Suji, Sugar and Dal in the shop of the accused. The evidence further is that it is an one-roomed house. p.w. 1 says that he got the sample from a bag which half-full and the appellate Court utilised it against the Petitioner. 10. In view of the defence it was the duty of the learned Courts below to have a positive finding as to the relationship of the Petitioner vis-a-vis the depot; but, as already indicated, they have been carried away by the impression as if the shop was of the Petitioner' of which he was a dealer. The facts are otherwise. It was a Government Depot. The goods were supplied by Government and they belonged to Government. The Petitioner was a more sale-man appointed on a salary of Rs. 95/- per month. He was to sell goods at price fixed by Government to the card-holders and keep accounts. He is not interested with the profit or loss either. If the goods are sent by Government through its Civil Supplies Department, the Petitioner cannot afford to return them or put them out side the Depot room. He can only complain that the goods were damaged and should be taken back and till that is done, the inevitable place is the Government Depot along with other articles for sale. If any Food Inspector is over-enthusiastic enough to get at a depot like this, he can book all the sale-man in one round on the ground that some item of food stuff or other had got damaged. Further according to his sweet will he can also afford pick and chose and ignore the master or owner of the shop but send the poor sale-man to face trial and conviction as in this case. 11. The learned Advocate, Mr. P.C. Misra appearing on behalf of the Municipality drew my attention to the case of Sarjoo Prasad Vs. The State of Uttar Pradesh to establish that guilty knowledge is not necessary ingredient to constitute an offence under the Act. 11. The learned Advocate, Mr. P.C. Misra appearing on behalf of the Municipality drew my attention to the case of Sarjoo Prasad Vs. The State of Uttar Pradesh to establish that guilty knowledge is not necessary ingredient to constitute an offence under the Act. In it their Lordships have observed. If the owner of a shop in which adulterated feed is sold is without proof of means realiable to be punished for sale of adulterated food there is no reason why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge. I am not going to dispute the proposition of law laid down therein; but that is in the context of facts of that case. The observation does not mean that in all cases of food adulteration the masters must be liable along with the servants or vice versa, but that would all depend on the circumstances of each Case. For example, if an absentee master stays in foreign land but his agents carry on business in India and remit the profit, certainly if any item of food stuff in found to be adulterated, the owner in foreign country will not be answerable to that. Similarly, if a poor and ignorant sale-man is appointed yesterday not for any thing else but to make packages of deliver goods or even to weigh and measure them, he is not to be made liable today even a private concern, unless guilty knowledge can be ascribed. Even in the present case d.w. 1 who was to assist the Petitioner is not made liable nor the owner of the shop, which ever officer of the Government he might be. 12. In this case the Petitioner had specifically taken the plan from the beginning that the goods were to be returned to the Civil Supplies Officer and were not meant for sale. On behalf of the Petitioner there was a petition for taking additional evidence and examining the Civil Supplies Officer, for, the Petitioner had retained copies of the petitions to the Civil Supplies Officer for return of the Suji in question. After lapse of six years or more as it would serve no useful purpose, I reject that petition and more particularly so of the view I am going to take about the case. After lapse of six years or more as it would serve no useful purpose, I reject that petition and more particularly so of the view I am going to take about the case. The question is if the plea is belated or so absurd as not to be acceptable. I do not think it is either. The onus is not on the defence to prove its case as formidable as a prosecution would. The Petitioner has examined one witness to show that he had refused to supply the Suji as the goods were damaged. If the prosecution case was that the Petitioner had put the Suji exposed for sale, it could have seized the accounts which would have shown the quantity received and the quantity sold even on the very day or the day before and thus the issue could have been clinched. But that has not been done that fits in with the defence that the Suji was not for sale but it was for return to the Civil Supplies Department which had supplied the same. The conclusion of the first appellate authority that the Suji must have been exposed for sale because it was obtained from a half bag is unacceptable as the evidence of p.w. 1 is not corroborated, rather contradicted by p.w. 2. 13. In the result, my findings are that (i) there is no evidence that the accused Petitioner had exposed the Suji for sale, (ii) there is no evidence that the Suji in question did not conform to the standard mentioned in the rules in the degree of insect infestation. (iii) The prosecution has assumed that the depot belonged to the Petitioner who is a dealer in respect of the goods which is not a fact and (iv) due weight has not been given to the defence version which is very reasonable and plausible. Accordingly I would hold that the case against the Petitioner has not been made out and as such his conviction and sentence are set aside. He be released from the bail-bond.