Kishan Chand v. State of U. P — 1980 DIGILAW 936 (ALL)

JUDGMENT V.K. Khanna, J. - The applicant was prosecuted for committing an offence under section 7/16 of the Prevention of Food Adulteration Act. 2. The applicant has got a Kirana shop at 108/18 P. Road, Kanpur. On 31-12-77 at about 1.30 P.M. Food Inspector B.N. Lal visited the shop of the applicant and found him selling and exposing for sale powder of Dhania. The Food Inspector purchased 600 grams of Dhania powder. The sample was thereafter sent to the Public Analyst who reported that the total ash content was in excess i.e. 8.56 per cent and it contained sodium chloride about 4.63 per cent. 3. The case was tried by the Metropolitan Magistrate, Kanpur before whom the prosecution examined Food Inspector as P.W. 1, Ram Rakhan, Clerk L.H.A. Office Kanpur as P.W. 2. The defence case as set up before the Magistrate was that in the grinding process of Dhania some element of common salt was got mixed up. D.W. 1 and D.W. 2 were examined to support the defence case. The Magistrate found the applicant guilty and convicted him under section 7/16 of the Prevention of Food Adulteration Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 1000/-. Feeling aggrieved an appeal was preferred by the applicant which has also been dismissed by the Sessions Judge, Kanpur. 4. In the present revision the learned counsel for the applicant has first urged that there was no compliance of clause (c) of R.I. 16 of the Rules framed under the Act. It was urged that the Food Inspector did not say in his statement that the bottles of samples were sealed in the manner provided in this clause. I have perused the statement. The Food Inspector has stated in his statement that the three bottles were sealed according to rules. The contention raised, therefore, has no force. 5. It has been next urged that there has been no compliance of clause (b) of R.I. 17 inasmuch as the sealed containers of the remaining two parts of the sample and two copies of the memorandum were not put in the sealed packet by the Food Inspector and this is violation of the mandatory provisions by the Food Inspector. 5. It has been next urged that there has been no compliance of clause (b) of R.I. 17 inasmuch as the sealed containers of the remaining two parts of the sample and two copies of the memorandum were not put in the sealed packet by the Food Inspector and this is violation of the mandatory provisions by the Food Inspector. In my opinion, the Sessions Judge has rightly held that the provision of keeping the sealed containers and the two copies of memoranda is not mandatory and the trial will not be vitiated on account of non-compliance with this part of clause (b) of R.I. 17. Moreover, I have read the whole statement of P.W. 1. In his cross-examination he has stated that he had put the memoranda and the sealed phials in the packet which was then sealed. So factually also there was no non-compliance with the aforesaid provision. 6. It has been argued that the sample was taken on 31-12-1977 and it was received by the Public Analyst on 5-1-1978 and the sample was taken at Kanpur and was sent to the Public Analyst at Lucknow and thus from the aforesaid dates it is clear that the sample was not sent immediately as required under clause (a) of R.I. 17. The Sessions Judge has held that there will be a presumption that the sample was sent to the Public Analyst by the succeeding working day as required in clause (a) of R.I. 17. In my opinion, the aforesaid presumption drawn by the learned Sessions Judge is correct and does not suffer from any illegality requiring interference in this revision. 7. It has then been urged that the standard of Dhania Powder has been prescribed in Appendix B, Item A.05.08.01 as under : "(i) Moisture-Not more than 12% by weight : (ii) Total ash not more than 7% by weight. (iii) Ash insoluble : Not more than one and half per cent by weight." It has been urged that the total percentage of moisture, total ash and ash insoluble (H.C.L ) can be present up to 20.5 per cent. The counsel has urged that according to the report of the Public Analyst moisture found was 8.67 per cent, total ash found was 8.56 percent and ash insoluble and dilute H.C.L. found was 0.86 per cent. The counsel has urged that according to the report of the Public Analyst moisture found was 8.67 per cent, total ash found was 8.56 percent and ash insoluble and dilute H.C.L. found was 0.86 per cent. It has been urged that if all these three items are totalled the same will be less than 2o.5 percent and thus the sample could not be said to be not conforming with the standard prescribed. In my opinion, the argument is misconceived. The standard is prescribed for the three items separately an even though one of the items is not found to be in conformity with the standard, the sample will be treated to be not in conformity with the standard prescribed. The argument raised by the learned counsel has thus no force. 8. It has then been urged that there has not been the compliance with the provisions of section 10(7) of the Act which requires calling of one or more persons to be present at the time when the sample is taken. A bare perusal of the statement of the Food Inspector would show that the witnesses of the public were called who had signed on Ext. Ka. 1 and Ext. Ka. 2. It is, therefore, clear that the Food Inspector did comply with the provisions of section 10(7) of the Act. 9. It has been lastly urged that the standard prescribed for the total ash is 7 per cent and the total ash which has been found was 8.56 per cent i.e. ash contents were found to be 1.56 per cent above the maximum permissible limit. It has been urged that it may have been due to the fact that due to that dust may have been mixed in the Dhania powder. In my opinion, the above argument is based on mere surmises and conjectures. No foundation at all has been Laid for such an argument before the trial court. The ; offence will be complete for exposing Dhania Powder for sale which was not conforming with the standard prescribed. The aforesaid contention has also no force. 10. Before the judgment could be signed in this case an application was moved on behalf of the applicant that some important law points have further to be argued in the case. The case was, therefore, further heard on 5-10-1980. The aforesaid contention has also no force. 10. Before the judgment could be signed in this case an application was moved on behalf of the applicant that some important law points have further to be argued in the case. The case was, therefore, further heard on 5-10-1980. It has been urged that the present case will be covered by Explanation to Section 2(m) of the Act inasmuch as it has come in evidence that the Dhania was got mixed with salt at the time of getting it converted into Dhania powder at the Chakki. In my opinion, the aforesaid argument raised by the learned counsel is without any substance inasmuch as it is only Dhania which is a primary food and Dhania powder is not primary food as defined under section 2(xii-a) of the Act. 11. The learned counsel for the applicant then urged that there has been non-compliance of the provisions of Section 13(2) of the Act inasmuch as in the notice which was given to the accused it was mentioned that the application be moved in the Court of Chief Metropolitan Magistrate, Kanpur when the case was pending before another court. In my opinion, this argument also has no force inasmuch as it has not been shown to me as to how any prejudice has been caused to the applicant. The applicant had appeared in the proper court and has also received the notice and in case he wanted to exercise his right of getting the sample analysed by the Central Food Laboratory, he could have exercised that right by moving an application before the proper court. 12. In the end it has also been urged that the provisions of Section 11 (l)(c)(i) and section 11(3) are mandatory. It has been urged that the sample was taken on 31-12-1977 and was received by the Public Analyst on 5-1-1978. According to the learned counsel no evidence has been led as to whether it had been sent immediately on the succeeding working day. It has been urged that according to the provisions of section 11, one part of the sample should have been sent to the Public Analyst by the Food Inspector himself and that the sample in the present case was sent to the Public Analyst by the Nagar Swasthya Adhikari. It has been urged that according to the provisions of section 11, one part of the sample should have been sent to the Public Analyst by the Food Inspector himself and that the sample in the present case was sent to the Public Analyst by the Nagar Swasthya Adhikari. The Sessions Judge has specially dealt with this point and I am of the opinion that the finding recorded by the Sessions Judge does not suffer from any illegality requiring interference in the present revision. The learned counsel for the applicant has relied on certain decisions to show that the provisions of section 11 are mandatory. Even if the provisions of section 11 in so far as the sending of one part of the sample by the Food Inspector to the Public Analyst on the succeeding working day be held to be mandatory, I am of the opinion that looking to the facts of the present case, no prejudice has been caused to the accused and the trial of the applicant cannot be said to be vitiated on that account. The report of the Public Analyst shows that the sample was received by him on 5-1-1978 which was taken on 31-12-1977. The Sessions Judge has rightly held that normally it could be presumed that the sample was sent to the Public Analyst by the succeeding working day as required by clause (a) of R.I. 17. In any view of the matter the sample, in fact, had reached the Public Analyst after 4 days and it cannot be said that the entire trial would stand vitiated only on that account. In my opinion, there has been substantial compliance with the provisions of section 11. The contention raised by the learned counsel for the applicant has thus no force. No other point has been pressed before me. For the reasons stated above, the present revision fails and is accordingly dismissed. The applicant is on bail. He shall surrender to his bail bonds failing which he shall be taken into custody forthwith to serve out the sentence I awarded to him. His bail bonds are cancelled.