Lalit Kishore Gupta v. State of West Bengal — 1993 DIGILAW 278 (CAL)

JUDGMENT The judgment of the Court was as follows :–– This application under Section 482, Criminal Procedure Code is directed against the Order dated 25.11.88 and 30.1.89 passed by the learned Metropolitan/Municipal Magistrate, 4th Court, Town Hall, Calcutta, in Case No. 131-D of 1981 of his Court by which he directed the framing of charge and framed charge against the petitioner under Section 16(1)(a)(i) of the Prevention of food Adulteration Act, 1954, (as amended by Act No. 34 of 1976) read with Section 7 of the said Act (hereinafter to the referred as the said Act.) 2. Facts of the case may be briefly stated as follows :–– On 1.9.81 at about 11-45 a.m., the opposite party No.2, J. D. Manchanda, since deceased, a Food Inspector of the Calcutta Municipal Corporation inspected the shop of the petitioner at No. 11-A/38. S. S. Hogg Market, Calcutta, and found an article of food, namely black-pepper (whole) weighing about 3 Kgs. stored and exposed for sale for human consumption. The Food Inspector purchased the said sample of the black-pepper (whole) from the accused, who was the proprietor of the said shop, after due observance of all legal formalities. The Food Inspector divided the said sample in three equal parts, and sent one of the parts to the Public Analyst for analysis, and upon analysis of the said sample, by his report No. DC/121/81 dated 25.9.81, opined that as the sample of the black-pepper (whole) contained mineral oil, it is adulterated. The Food Inspector upon receipt of the report of the Public Analyst applied for written consent of the Health Officer, Calcutta Municipal Corporation for instituting prosecution against the petitioner and upon obtaining such permission, he filed a complaint before the learned Court under Section 20(1) of the said Act. The petitioner thereafter appeared before the learned Magistrate and applied for standing another part of the sample to the Director, Central Food Laboratory for reanalysis and the learned Magistrate accordingly sent another part Of the sample to the Director, Central Food Laboratory, Ghaziabad, for a certificate under Section 13(3) of the said Act. The Director, Central Food Laboratory, upon analysis of the said sample by his Certificate No. 125/March/82-WB dated 5.3.82, confirmed the report of the Public Analyst that the sample showed the presence of mineral oil which is not permissible. The Director, Central Food Laboratory, upon analysis of the said sample by his Certificate No. 125/March/82-WB dated 5.3.82, confirmed the report of the Public Analyst that the sample showed the presence of mineral oil which is not permissible. The Learned Magistrate thereafter upon consideration of the evidence adduced by the prosecution and examining documents on record held by his order dated 25.11.88 that a prima facie case has been made out against the petitioner and on 30.1.89 framed charge under Section 16(1)(a)(i) read with Section 7 of the said Act. 3. Facts stated above are not in dispute in this case. 4. Mr. Alok Kumar Sengupta, Learned Advocate, appearing for the petitioner contended that the existence of mineral oil, per se in the sample of the black pepper as per report of the Director of the Central Food Laboratory does not prove adulteration within the meaning of Section 2(ia)(b) of the said Act. It appears from the report of the Public Analyst that excluding the existence of other matters, about which there is no dispute, the test of mineral oil was positive in the seized sample and so it was adulterated. From the report of the Director of the Central Food Laboratory, Ghaziabad, where another seized sample was sent for reanalysis, the test of the presence of the mineral oil was confirmed as positive. As the certificate issued by the Director of the Central Food Laboratory shall supersede the report of the Public Analyst, under Section 13(3) of the said Act, Learned Counsel for the petitioner submitted that there is nothing in the said report to show that it was adulterated because his opinion was "the sample shows presence of, mineral oil which is not permissible". In this connection, my attention was drawn to the decision in Municipal Corporation of Delhi v. Shri Kacherumal reported in the Supreme Court on Prevention of Food Adulteration cases 1951 to 1988 FAC (SC) at page 179 where it was held that the report of the Public Analyst, including his opinion on the point, is per se evidence under Section 13 of the Act, but that would not be conclusive and binding on the Court. It is for the Court to form its opinion and reach its own finding. Mr. It is for the Court to form its opinion and reach its own finding. Mr. Sen Gupta accordingly submitted that in view of the provision contained in Section 13(3) of the said Act, the original report of the Public Analyst have been superseded by the report of the Central Food Laboratory who has not given a definite o pinion about the adulteration of the seized article and that had he even given such opinion that too was open to challenge. There is no dispute about this proposition. 5. To understand the point raised by Mr. Sengupta, it is necessary to see what is 'adulteration' under the Prevention of Food Adulteration Act. Under Section 2(ia)(b) of the said Act, "an article of food shall be deemed to be adulterated if the article contains any other substance which affects or if the article is no processed as to affect injuriously the nature, substance or quality thereof". On this account, two points were taken by Mr. Sengupta, namely, that the existence of mineral oil in any foodstuff does not necessarily make the same injurious to health and that the quantity of such mineral oil has also got to be shown positively in the report for judging its capability of causing injury for the consumers of the same. 6. By Rule 5 of the Prevention of Food Adulteration Rules, 1955, standards of the quality of the various articles of the Food have been specified in Appendix "B" to this Rule and as per item No. A.05.17 of the said Appendix "Black-pepper" (kali mirch) (whole) means the dried berries of piper nigrum 'L', brown to black in colour with wrinkled surface. The proposition of extraneous matter including dust, stalks leafy matter and other foreign matters shall not exceed 3.0% by weight. The proportion by weight of dried berries and pinhead shall not exceed 10.0% and 4% respectively.............................................." 7. It was contended by the learned Counsel for the petitioner that presence of mineral oil on test as positive in the analytical date of the Central Food Laboratory does not necessarily mean that it was adulterated in view of the standard of "black-pepper" in item No. A.05.17 mentioned above, where foreign substance has not been totally disallowed. It was also contended with reference to the decision in (1) Santosh Kr. It was also contended with reference to the decision in (1) Santosh Kr. Dutta v. Chairman of Saptagram Small Town Committee and Another reported in 1975 (1) Prevention of Food Adulteration Cases 158 that there being no positive prohibition of mineral oil in the standard that cannot be said to be adulterated. In that case, sesame was found in the sample of mustard oil, and it was held that sesame oil being not specifically prohibited that cannot be said to be adulterated, basis of the finding being that both being edible-oils, certain, percentage of admixture of the same was permissible. The decision has no bearing on this case because there was no question of admixture of crude edible oil with mustard oil. Here in this case, mineral oil is certainly a foreign substance. 8. Mr. Roy, appearing on behalf of the opposite party No.2 on the other hand, contended that the existence of 'foreign matters' in the standard referred to above should be read as such substances which are similar to the extraneous matter like dust, stalks and leafy matter as mentioned in the said standard A.05.17. His contention was also that the black-pepper is a 'primary food' and for this purpose he referred to the definition of 'primary food' as defined in Section 2(xii-a) meaning any article of food being a produce of agriculture or horticulture in its natural form. 9. Mr. Sengupta, however, pointed out that the black-pepper cannot be the primary food as the berries have got to be dried as per standard in A.05.17. Since drying can be made both naturally or artificially that cannot be said to an article of food in its natural form particularly in the latter case. Judged from this view point, black-pepper (whole) cannot be said to be primary food and the existence of "foreign substance" does not necessarily mean only those substances identical in nature with those matters like the extraneous matters (Just, stalks etc.) as mentioned in the said standard. I find no reason to disagree with the above contention of Mr. Sengupta. 10. The point that now falls for consideration is whether mineral oil is absolutely prohibited from being used as foodstuff. I find no reason to disagree with the above contention of Mr. Sengupta. 10. The point that now falls for consideration is whether mineral oil is absolutely prohibited from being used as foodstuff. For this purpose, my attention was drawn to the standard of Sugar Boiled Confectionery in A.25.01 where it is found that mineral oil 'foodgrade' if used as lubricant, shall not exceed 2.0% by weight, in the said foodstuff. It is, therefore, clear that mineral oil 'foodgrade' is not totally prohibited as a foodstuff. It may be that the percentage allowed is very small but still then that cannot be said to be absolutely dangerous to health, unless there is positive finding of the Public Analyst or the Central Food Laboratory that the mineral oil found in the sample in question was not of foodgrade and also that its quantity in the sample was such as to cause injury to health. 11. Learned Counsel for the opposite party No.2 referred to the evidence of PW-4, the Assistant Analyst who examined the sample in question and stated in his evidence that he did not note the percentage or quantity of mineral oil as the very presence of mineral oil, in his opinion, is adulterated and injurious to health. He also further opined that repeated intact of mineral oil containing polly cyclic aromatic hydro carbons may lead to cancer. I have already shown with reference to the standard of Sugar Boiled Confectionery in A.25.01 that mineral oil 'foodgrade' is not absolutely prohibited foodstuff. On behalf of the Corporation, my attention was drawn to Sub-Rule 17 of Rule 49 of the Prevention of Food Adulteration, Act, 1954, which came into effect on 8.10.88, long after the present case was instituted, that "no persons' shall sale mineral oil (foodgrade) for using in confectionery except under Indian Standard Institution Certification Mark". The sub-Rule cannot have any application because the case was instituted long before it came into existence. There being thus nothing in the report of the Public Analyst or the Central Food Laboratory that the mineral oil found in the sample was not of foodgrade or that its quantity was such that it was injurious to health, and (foodgrade) mineral oil in small quantity being permissible in another foodstuff the conclusion is inescapable, its mere existence on test is not injurious to health. 12. 12. Learned Counsel for the petitioner drew my attention to the Division Bench decision in (2) Municipal Committee of Amritsar v. Arjan Singh reported in Cr. LJ 1973, at page 721 where his Lordship refused to consider the sample of mustard oil as "adulterated" being mixed with 'Til Oil' as the quantity of Til Oil was not stated in the report. In another decision of the Delhi High Court in (3) Khushiram v. The State and another reported in All India food Adulteration Journal 1984 at page 451 where also the test for mineral oil was found positive in the Central Food Laboratory, Calcutta, in a sample of 'Bara Alichi' where it was held that the sample was not adulterated as the quantity by weight or proportion by way of percentage of miner al oil in the sample was not shown along with other causes. The evidence of the Public Analyst that the mineral oil, by itself, is injurious to health, therefore, does not stand to scrutiny, as I have shown above, the existence of mineral oil being per as not injurious to health, having been allowed in slight percentage in another foodstuff. In the absence of any evidence regarding the quantity or amount or percentage of mineral oil, it cannot be said that the sample of the black-pepper (whole) in question was adulterated under Section 2(ia)(b) of the said act. 13. Learned Advocate for opposite patty No.2 finally contended that the prosecution has shown that there is prima facie evidence against the accused and the petitioner, in any event, being entitled to another chance of proving his innocence by taking recourse to the relevant provisions of Sections 246 to 248 of the Criminal Procedure Code, after full trial of the case, he should not be discharged under Section 245(1) as the offence alleged to have been committed by the petitioner is a serious one. For the purpose, he referred to the decision in (4) State of Punjab v. Debendra Kumar and others reported in AIR 1983 Supreme Court 545, where it was held that the Court should keep in view of the fact that the need for prevention of future injury is as important as punishing wrong doer as after the injury is actually inflicted. My attention was also drawn to the another decision in (5) Municipal Corporation of Delhi v. Giridhari Sapuru & Anr. My attention was also drawn to the another decision in (5) Municipal Corporation of Delhi v. Giridhari Sapuru & Anr. reported in AIR 1981 Supreme Court 1169, where it was also held that any case under Food Adulteration Act should not be allowed to outweigh the cause of justice and in deciding such cases narrow technicalities be avoided. The decisions h0wever, no where lays down the proposition that the Court need not consider that for the purpose of framing a charge the evidence must be of such a nature that if it remains unrebutted by the defence, the accused may be convicted on it. Learned Counsel for the petitioner drew my attention to the decisions in (6) Century Spinning & Manufacturing Co. Ltd. v. The State of Maharashtra reported in AIR 1972 SC 545 where it was held that the responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so, and without fully adverting to the material on the record, it must not blindly adopt the decision of the prosecution. In a later decision in (7) State of Karnataka v. L. Muniswami and others reported in AIR 1977 Supreme Court 1489, the same principle was followed. Foregoing discussions of the evidence on record will clearly shown that the evidence on record does not satisfy the above test that the evidence adduced by the prosecution in this case, is of such a nature that if that remains unrebutted, the petitioner may be convicted on it. 14. In the aforesaid circumstances, Learned Magistrate was not right in coming to the conclusion on the materials on record that prima facie case against the petitioner has been proved and accordingly both the orders directing framing of charge as well as the framing of charge under Section 16(1)(a)(i) as amended by Act, read with Section 7 of the said Act cannot be sustained. 15. The impugned orders are accordingly set aside and the petitioner stands discharged in this case. There will be no order as to costs. Let Xeroxed copy be given to the parties on the usual undertaking.