STATE OF HIMACHAL PRADESH v. JOGINDER KUMAR — 1997 DIGILAW 353 (HP)

JUDGMENT R.L. Khurana, J.: The State is hereby assailing the correctness, propriety and legality of the order passed by the learned Judicial Magistrate 1st Class, (I), Dharamshala, in P.F.A. Case No.l09-III of 1990, on 28.6.1991, by which he acquitted the respondent of the charge under section 7 read with section 16(l)(a)(i), Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. . 2. On 13.7.1989, the Food Inspector, Shri S.C. Sharma, purchased 600 gms of Besan, out of about 10 kgs., kept in an open tin for sale to the general public. After completing the formalities, the sample was sent to Public Analyst for the purpose of analysis. Such sample of Besan was found to be adulterated, since the same contained six living and three dead (Adult insects) "Susries". On the receipt of report of Public Analyst, the necessary written consent was obtained from the competent authority for the prosecution of the respondent. A complaint was thereafter presented before the learned Magistrate on 17.10.1989, for the prosecution of the respondent for the offence under section 7 read with section 16(l)(aX0 of the Act. 3. The prosecution in order to substantiate its case, examined PW 1 Shri S.C. Sharma, Food Inspector, PW 2 Punnu Ram, the independent, witness joined at the time of taking of the sample, and PW3 Vinod Kumar, dealing Assistant of the office of the Local Health Authority, District Kangra. 4. After appreciating the evidence coming on record, the learned Magistrate acquitted the respondent of the offence charged against him. The learned Magistrate came to the conclusion that the Besan from which the sample was taken was too made homogeneous. In arriving at such conclusion, the learned Magistrate placed reliance on the ratio laid down by a Division Bench of this court in Bhagat Ram v. State of H.P. 1986 Sim.L.C. 281. 5. It has been contended by the learned Assistant Advocate General for the State that the learned Magistrate committed an error in acquitting the respondent by wrongly interpreting the ratio laid down in Bhagat Rams case ) (supra). 5. It has been contended by the learned Assistant Advocate General for the State that the learned Magistrate committed an error in acquitting the respondent by wrongly interpreting the ratio laid down in Bhagat Rams case ) (supra). It was further contended that once the article of food (Besan in the present case) was shown to the insect infested, the same was adulterated within the meaning of section 2(i-a)(f) of the Act and that it was not required further to show that the said article of food due to such insect infestation was unfit for human consumption. 6. Learned counsel for the respondent, on the other hand, has contended that the sample was not made homogeneous and representative before it was taken and as such a prejudice was caused to the respondent. It was further contended that mere presence of insects per se was not sufficient to fasten the guilt on i.e. respondent within the ambit of section 2(i-a) (0 of the Act and that it would also be necessary to return a finding that the sample was unfit for human consumption on account of its being so insect infested. The learned counsel further contended that since the sample was taken and analysed during the months of July/August, that is, during the rainy season, there was every possibility of the infestation having. taken place during the period intervening the date of taking of the sample and the date of analysis. In Bhagat Rams case (supra), the Division Bench of this court, had the occasion of examining the following two questions :- (a) Whether insect infestation per se would be sufficient to hold the sample adulterated within the ambit of section 2(i-a) of the Act or it would also be necessary to return a finding that the said sample is unfit for human consumption on account of its being so insect infested; and (b) The procedure required to be followed in order to obtain a homogeneous and representative sample of articles of food when collected with the object of finding the extent and degree of insect damaged matter or insect infestation. . . 7. . . 7. While dealing with the first question, the Division Bench took note of the diametrically opposite views taken by two different Benchs of equal strength of the spex Court in Municipal Corporation of Delhi v. Kacheroo Mai, AIR 1976 SC 394 and in Municipal Corporation of Delhi v. Tek Chand Bhatia, AIR 1980 SC. 360. While in the first referred to case, the apex court held that a sample shall be deemed to be adulterated within the meaning of Section 2(i-a) (f) of the Act if it is proved to be not only insect-infested but also unfit for human consumption on that account, in the second case of Tek Chand Bhatia (supra) it was held that the mere proof of insect-infestation would bring the sample within the purview of the word "adulterated" as defined under section 2(i-a)(f)of the Act. 8. The Division Bench, having observed that the apex court not having said the last word on the controversy whether mere proof of insect-infestation would bring the guilt home to the accused or it would be necessary to give a finding that infestation is of such a nature end degree as to render the article of food unfit for human consumption, addressed itself to the various provisions of Act to make an endeavor to fathom out the true meaning thereof it was held- "What is insect-infestation? In fest means to over-run or spread in large-numbers so as to be unpleasant or unsafe (see Puran Mals case). An article of food would be insect-infested if insects arc present therein A in swarms or numbers (see Kechahru Mals case). Can an article of food swarming with insects be fit for him consumption? Answer to the ^_ above query has to be in the negative. To put it somewhat differently, in order to determine if an article of food can be deemed to be insect-infested and, therefore, adulterated, the extent and degree of infestation should be such as to render it unfit for human consumption. Therefore, no court of law can categories a sample insect-infested unless it is also of the opinion that the sample is unfit for human consumption on that account. It follows that the prosecution can invariably strengthen its case by adducing evidence to show that the sample in question has been . rendered unfit for human consumption due to the presence of insects in number, as found. It follows that the prosecution can invariably strengthen its case by adducing evidence to show that the sample in question has been . rendered unfit for human consumption due to the presence of insects in number, as found. Failure to adduce such evidence per sc cannot, however, be .fatal to the prosecution case if the court can justifiably conclude from the mere extent and degree of infestation that the article of food has thereby become unfit for human consumption. It’ may be stated here that such a conclusion has to be arrived at by the court itself (after applying its own mind) and not by following blindly the ipse dixit of the experts, notwithstanding the fact that their opinion would constitute legal evidence to be kept in view for arriving at the aforesaid conclusion. To sum up, an article of food has to be unfit for human consumption due to presence of insects in large number in order to hold it insect-infested and, therefore, adulterated within the meaning of Section 2(i-a) (f." On the second question referred to al (b) above, the Division Bench Emphasised the need of following the "method of quartering" by the Food Inspector for the purpose’ of dividing the sample into three parties. It was held :- "Before parting with this case, we would like to put down a few ether aspects which have come to our notice during the hearing of these" revision. In all the three cases in hand, the respective Food Inspector purchased sample and thereafter divided it into three parts out of which one part duly packed and sealed was sent to the public Analyst. A very vital question which arises is whether the Food Inspector followed the method of quartering for the purpose of dividing the sample into three parts. This method has been described in an authoritative book of the subject viz, Chemical Analysis of Foods and Food products (Second Edition) by Morris B. Jacobs. The procedure of quartering has been described at page 10 in the following words : A method in common usage for obtaining representative samples is the procedure of quartering. Combine the portions obtained from various sections of the lot and, after mixing as thoroughly as possible by roiling in a sheet or blanket, if the sample is larger, or paper, if the sample is of moderate size, from the material into a cone. Combine the portions obtained from various sections of the lot and, after mixing as thoroughly as possible by roiling in a sheet or blanket, if the sample is larger, or paper, if the sample is of moderate size, from the material into a cone. Flatten the cone into a circular shape and divide into quarters. Take two opposite quarters, that is, quadrants 1 and 3, and repeat the above process. However, after dividing into quarters this time, the opposite quarters to those used before, namely, quarters 2 and 4, arc taken. This process is continued until a sample small enough for Submission for analysis is secured Manifestly, the above procedure is required to be followed in order to obtain a representative sample. This appears to be i. must when samples of food grains or articles like Ajwain are collected with the object of finding the extent and degree of insect-damaged matter or insect-infestation. There can be no denying the fact that insect-damaged matter would be comparatively light in weight and would accumulate at the top when shaken in a container. Where the Food Inspector does not strictly adhere to the procedure of quartering, the possibility of a greater proportion of insect-damaged matter being put in one part, specially that part which is sent to the Public Analysts for examination, cannot be altogether ruled out. Similarly, it also stands to reason that the three parts made by the Food Inspector should equally divide the insects. If so, the report of the Public Analyst with respect to the extent and degree of insect-damaged matter or insect-infestation may result in serious errors due to the concentration of such matters and /or insects in the sample which is . sent to the Public Analyst. If so, the report of the Public Analyst with respect to the extent and degree of insect-damaged matter or insect-infestation may result in serious errors due to the concentration of such matters and /or insects in the sample which is . sent to the Public Analyst. .The failure to obtain a proper sample makes a subsequent analysis of worthless observes Morris B. Jacobs at page 6 of the his book referred to above." Having answered the two above referred questions, the Division Bench further sounded a note of caution to the courts while dealing with the cases of insect-damaged matter or insect- infestations, in the following terms:- "Another Point which needs serious consideration concerns the life-cycle of an insect; After all, the criminal liability of the accused has to be determined with respect to the state of the sample, meaning thereby the extent and degree of insect infestation or the presence of insect’ damaged matter, on the day when the sample .is collected. The insect, however, are known to multiply rapidly. In this connection, expert evidence discussed in Municipal Corporation Delhi v. Ramji Dass, 1983 CrLJ 1933, may be referred to. No trader would add insects to an article of food with motive to earn more profits." At the S2mc time, he cannot be Absolved from his duty to ensure such hygienic conditions as would keep the article as free from insects as is possible. The cumulative effect of these two facton is that the courts must exercise added caution before convicting the traders for insect- damaged matter or insect-infestation. This is especially so because the minimum sentence in case of conviction is that of imprisonment. Where adulterators must be dealt with severely, no society can brook the sending of innocent behind the bar." 9. In the present case in the sample of Besan. weighing 200 gms on analysis vide report Ex.PWl/K, six living and three doad (adult insect) Susries were detected. The report is silent on the question if the besan on account of the presence of insects, living and dead, to that extend: was rendered unfit for human consumption. 10. In Bhagat Rams case (supra) eight living insects were found in 200 gms of kala channa. It was held that the presence of insects to that an extent would not render the "kala channa" as "insect-infested" within the meaning of section 2(i-a) (0 of the Act. 11. 10. In Bhagat Rams case (supra) eight living insects were found in 200 gms of kala channa. It was held that the presence of insects to that an extent would not render the "kala channa" as "insect-infested" within the meaning of section 2(i-a) (0 of the Act. 11. Relying on the said ratio and in the absence of any other evidence to the contrary, it can be safely held in the present case .hat presence of 6 living and 3 dead "Susries" would not render the "Besan" as insect-infested in order to hold the respondent guilty. 12. Further, nothing has come on the record to show that the sample was made homogeneous and representatives before it was taken and scaled in three equal parts. The method of quartering was never followed in the present - case. Therefore, the failure on the part of the Food Inspector to obtain the proper sample, has rendered its subsequent analysis worthless and the respondent cannot be held guilty. There is yet another aspect of the case The sample of "Besan" was taken by the Food Inspection 13.7.1989. It was analysed by the Public Analyst on 17.8,1989, that is, after a gap of above 35 days. There is no denying that the months of July and August fall in rainy season in this part of the country. The Food Inspector as PW 1 has categorically admitted that the rainy season in the area is from 15th of June to 15th of September. He has also admitted that alt the time of taking the sample he did not notice any living or dead insect therein. In Ram Parkash v. The State of Punjab, 1982(1) FAC 10, the sample of Chillies Powder was purchased on 15.7.1975 and it was analysed^" after 25 days on 9:8.1975. The Food Inspector had admitted that at the time of; taking the sample, he did not notice it to be infested with insects. Noticing the i fact that it was rainy season, it was held that there was every likelihood of the sample having become infested with insects during the intervening period. To the similar effect it has been held in inder Bhan vs. The Slate of Punjab, 1984(1) FAC 288. The ratio laid down in the above referred two cases applies to the facts of the present case on all fours. To the similar effect it has been held in inder Bhan vs. The Slate of Punjab, 1984(1) FAC 288. The ratio laid down in the above referred two cases applies to the facts of the present case on all fours. For the aforesaid reasons, the impugned judgment of acquittal as rendered by the learned Magistrate calls for no interference and the acquittal deserves to be affirmed. In the result, the appeal fails and the same is accordingly dismissed. The bail bonds of the respondent shall stand cancelled and discharged. Appeal discussed.