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2000 DIGILAW 440 (PNJ)

Vijay Kumar v. State of Haryana

2000-04-25

V.S.AGGARWAL

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JUDGMENT V.S. Aggarwal, J. - The present revision petition has been filed by Vijay Kumar (hereinafter described as the petitioner) directed against the judgment and the order of sentence passed by the learned Chief Judicial Magistrate, Kurukshetra dated 1.6.1987 and the learned Sessions Judge, Kurukshetra dated 17.5.1988. The learned trial Court had held the petitioner guilty of the offence punishable under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The petitioner was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for three months. The appeal filed by the petitioner was dismissed. 2. The relevant facts of the prosecution case are that on 11.8.1985 Moti Ram Sharma, Food Inspector accompanied by Dr. Hari Ram Gutain visited the shop of the petitioner at Ladwa. The petitioner was found in possession of 10 kilograms of Besan. It had been kept in a bag for sale besides other food articles. The Food Inspector disclosed his identify to the petitioner and told him that he wants to take the sample of basan. Harish Sachdeva was joined as a witness by the Food Inspector 600 grams of Besan was purchased. Rs. 3/- were paid vide a receipt. Before taking the sample the Besan was thoroughly mixed. It was divided into three equal parts. It was put into three dry and clean bottles which were stoppered and labelled. They were wrapped in a thick khaki paper and were sealed with the seal of Food Inspector and Dr. Hari Ram Gutain. One slip of Local Health Authority was pasted on each sample bottle. The signatures of the accused-petitioner were obtained on the same. One sealed sample bottle with copy of memorandum in Form VII was sent to the Public Analyst, Haryana. The remaining two samples and two copies of Form VII were deposited with the Local Heath Authority. One copy of Form VII bearing the expression (impression ?) of seal used in sealing the sample bottles was sent by registered post. The Public Analyst opined that it contained 18 living meal worms and one living weevil. On these broad facts, the complaint was filed. 3. The defence of the petitioner was that at the time the sample was taken, it was raining. The clothes of the staff were wet. The Public Analyst opined that it contained 18 living meal worms and one living weevil. On these broad facts, the complaint was filed. 3. The defence of the petitioner was that at the time the sample was taken, it was raining. The clothes of the staff were wet. At that time there were no worms in the Besan. The learned trial Court which had recorded the evidence held that the sample had been found to be adulterated and consequently, the petitioner must be held to have committed the above said offence. The judgment was pronounced, followed by the order of sentence. The reasoning of the trial Court found favour with the Court of Sessions. Hence, the present revision petition. 4. A plea had been taken in the grounds of revision that the sample was tested on the third day and, therefore, the meal worms and weevils were present. The said contention in the facts of the present case is devoid of any merit. If there was inordinate delay, such a plea could be offered. In the present case the sample was taken on 11.8.1985. It was received in the Laboratory on 13.8.1985 and analysis was conducted on 14.8.1985. There was no inordinate delay which may prompt the Court to conclude that meal worms could have developed. 5. The main controversy herein is as to whether it could be termed that in the peculiar facts, the Besan was adulterated or not. The report of the Public Analyst found :- "The sample contains eighteen living meal worms and one living weevil." The expression "adulterated" has been defined in Section 2(i)(ia) of the Prevention of Food Adulteration Act. Clause (f) is relevant and reads :- "(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption." Bare reading of the same indeed shows that expression that the article is rotten, decomposed is not to be read conjunctively with the other expression insect-infested and otherwise unfit for human consumption. 6. In this regard reference can well be made to the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Kacheroo Mal, AIR 1976 Supreme Court 394, in the said case cashewnut pieces were taken as the sample. 6. In this regard reference can well be made to the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Kacheroo Mal, AIR 1976 Supreme Court 394, in the said case cashewnut pieces were taken as the sample. The Public Analyst had opined that the same was adulterated due to insect-infested to the extent of 21.9%. The question for consideration was as to whether the expression "otherwise unfit for human consumption" has to be read conjunctively or not. The Supreme Court held that they have to be read conjunctively and went on to hold :- "We would prefer the first construction as it comports best with reason, common sense, realities, the tenor of this provisions and the main purpose and scheme of the Act. The adjectives "filthy", "putrid" disgusting, decomposed, rotten .... or insect-infested" refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption. But the presumption may not be conclusive in all cases, irrespective of the character of the article and the nature and extent of the vice, afflicting it. This is particularly so, where an article is found to be insect-infested." There are some articles of food in respect of which the Rules framed under the Act lay down the minimum proportion of insect- infestation or insect damage which is not deemed to make the article unfit for human consumption. For instance, in the case of Nutmeg (Jaiphal) the proportion of extraneous matter and infestation shall not exceed 3.0 per cent by weight (item A.5.15 of the Prevention of Food Adulteration Rules, 1955). In the case of Coriander (Dhania) the proportion of extraneous matter including dirt and insect-damaged seeds shall not exceed 8.0 per cent by weight (Item A.05.08). Similarly, in the case of Food-grains the proportion of 20 milligrams of insect-damaged grain per 100 milligrams sample of the grain, and 5 per cent by weight of fungus-damaged grain is not considered enough to treat it as adulterated either under sub-clause (f) or any of the other sub-clauses of Section 2(1)." 7. Subsequently, in the case of Municipal Corporation of Delhi v. Ram Sarup, AIR 1980 Supreme Court 174, a sample of Besan had been taken. The Public Analyst found that it was very highly insect-infested. Subsequently, in the case of Municipal Corporation of Delhi v. Ram Sarup, AIR 1980 Supreme Court 174, a sample of Besan had been taken. The Public Analyst found that it was very highly insect-infested. The reasoning of the Delhi High Court was sent aside and it was held that report of the Public Analyst did not suffer from any weakness. The findings arrived at were :- "It is true that the report of the Public Analyst did not state the extent of the insect-infestation or whether the insects were living or dead, but the High Court failed to take into consideration the fact that he had categorically deposed that there must have been dead or living insects in the sample in "great number" that there were white living insects in the sample, that there were at least 9 or 10 such insects in it, and that they were fully grown live insects and not larvae. As nothing to the contrary was elicited in spite of the lengthy cross-examination on behalf of the respondent, these facts had been amply established by the statement of the Public Analyst and were sufficient to prove that the sample of "besan" was "adulterated". The High Court did not take into consideration the provision of Section 2(f) of the Act according to which an article of food is deemed to be adulterated, if inter alia, it is wholly or in part insect-infested. So when it had been proved that this was so, the only possible conclusion was that the respondent had committed an offence under Section 7 read with Section 16 of the Act for that reason and there was no occasion to examine the standard of quality of besan specified under Rule 5 of the Rules." It was held that Besan was adulterated. 8. Similarly, in the case State (Delhi Administration) v. Puran Mal, AIR 1985 Supreme Court 741 the Supreme Court while considering a similar question held that the Public Analyst should support the case in his report that the sample was adulterated. 8. Similarly, in the case State (Delhi Administration) v. Puran Mal, AIR 1985 Supreme Court 741 the Supreme Court while considering a similar question held that the Public Analyst should support the case in his report that the sample was adulterated. The findings were recorded :- "Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adultered for the Public Analyst has not expressed his opinion that the lal michi powder was either worm-infested or insect-infested or that on account of the presence of the meal-worms the sample was unfit for human consumption. Therefore, I am of the opinion that the prosecution has not established by any satisfactory evidence the requirement of Section 2(1) of the Act. Consequently, no interference is called for with the judgment of the High Court which, as stated above, has dismissed the criminal revision in limine. The appeal is accordingly dismissed. 9. It becomes unnecessary to ponder the decisions of different Courts because more recently the Supreme Court in the case of Delhi Administration v. Sat Sarup Sharma, 1994 Supreme Court Cases (Crl.) 1720, was concerned with a sample of Suji. The report of the Public Analyst indicated that it contained eight living meal worms and one living weevil. Relying on the decision State (Delhi Admn.) v. Puran Mal (supra), the Supreme Court concluded :- "As would be seen from the report of the Public Analyst, he has not opined that the sample of Suji was either insect-infested or that it was unfit for human consumption on account of presence of meal worms in that or that it was otherwise fit for human consumption. In the absence of such an opinion, it is not possible for us to upset the order of acquittal recorded by the trial Magistrate or find fault with the order of acquittal." 10. It is obvious from aforesaid that before a sample could be taken to be adulterated, the report of the Public Analyst must indicate that it was insect-infested or that it was unfit for human consumption. 11. In the present case no such opinion had been expressed. It is true that in a given case the Court may record that it was established that it was insect- infested. 11. In the present case no such opinion had been expressed. It is true that in a given case the Court may record that it was established that it was insect- infested. But it was not possible in the present case in hand. The Public Analyst was reluctant to give such a opinion and felt shy in giving opinion that it was unfit for human consumption. Thus, the ratio of the decision in the case of Delhi Administration v. Sat Sarup Sharma (supra) comes to the rescue of the petitioner. It cannot be held in the absence of any opinion of the Public Analyst that Besan in question could be held to be adulterated. For these reasons, the revision petition is allowed. The impugned judgments are set aside. The petitioner is acquitted awarding him the benefit of doubt. Revision allowed.