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2003 DIGILAW 1677 (PNJ)

State of Haryana v. Mohinder Kumar

2003-12-17

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - Mohinder Kumar, respondent was prosecuted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act) on the allegations that on 22.8.1986. Food Inspector S.D. Gupta alongwith Dr. O.P. Gogia inspected the Kiryana Shop of the respondent and found in his possession 30 kgs. of Besan contained in a bag for public sale out of which Food Inspector purchased 600 gms. Besan against the payment of Rs. 3/- by way of sample which on analysis by the Public Analyst, Haryana, Chandigarh found to be adulterated and the sample contained 6 living and two dead meal worms. 2. To prove its case, the prosecution has examined Food Inspector S.D. Gupta as PW1 and Dr. O.P. Gogia, PW2. However the eye witness and Rajpal were given up as having been won over by the accused Mohinder Kumar. 3. When Mohinder Kumar was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution evidence, he denied simplicitor and alleged false implication. In defence, he has not examined any witness. 4. The learned Judicial Magistrate, after considering the evidence on record, acquitted Mohinder Kumar of the charge vide order dated 28.5.1991. Aggrieved by which, the State has preferred this appeal. 5. Mr. Amar Singh, learned AAG, Haryana virtually failed to assail the findings recorded by the learned Judicial Magistrate Ist Class, Panipat on any point. 6. I have gone through the record minutely and examined the findings recorded by the learned Magistrate. The reason given by the learned Judicial Magistrate cannot be considered as perverse and against the evidence on record. The learned Magistrate after relying upon State (Delhi Administration) v. Puran Mal, 1985(1) F.A.C. 161 : and Jeet Kumar Anand v. State of Punjab, 1990(2) F.A.C. 55 has observed as under :- "11. It is admitted by both the witnesses examined by the complainant that no worm was visible at the time of taking the sample with naked eye. The sample was taken in rainy season. Therefore, possibility of development of these worms in the rainy season cannot be ruled out. The possibility of developing of worms during the period intervening seizure of the sample and analysis also cannot be ruled out. The sample was taken in rainy season. Therefore, possibility of development of these worms in the rainy season cannot be ruled out. The possibility of developing of worms during the period intervening seizure of the sample and analysis also cannot be ruled out. In State of Punjab v. Raj Kumar, 1983(1) F.A.C. 200 the accused was prosecuted as the sample of Saunf taken from his possession was reported to be adulterated by the Public Analyst due to the presence of living and dead insects. Food Inspector had deposed in the Court that he had not seen any insect living or dead at the time of taking of the sample and as such possibility cannot be ruled out that the insects might have developed in the sample after the sample was lifted. Taking into consideration this statements of the Food Inspector it was held by a Division Bench of our Honble High Court, as under :- "It is not a fit case in whcih we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render the same adulterated. The standard of Saunf has been prescribed in Rule A.05.11, Appendix B of the Prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he had not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed." The same view has been taken in Amrit Lal v. State of Punjab, 1986(3) F.A.C. 105; Ashok Kumar v. State of Punjab, 1988(2) 42. All these authorities are based upon the decision of the Honble Supreme Court in Puran Mals case (supra). There is no merit in this appeal which is hereby dismissed." The same view has been taken in Amrit Lal v. State of Punjab, 1986(3) F.A.C. 105; Ashok Kumar v. State of Punjab, 1988(2) 42. All these authorities are based upon the decision of the Honble Supreme Court in Puran Mals case (supra). The ratio of decision in all the cases is that mere presence of worm or insect does not fall within the definition of adulteration as defined under section 2(q)(f) until and unless it is proved that the sample sold was either inspect-infested or was otherwise unfit for human consumption. 14. The minimum standard of purity of certain food articles is prescribed under Appendix B of the Rules. Adulterated article of food is defined under section 2(ia) of the Act. Section 7 prohibits the sale or store of any adulterated food as defined under section 2(ia). Therefore, in order to bring the case within the purview of Prevention of Food Adulteration Act, the prosecution must prove that the article of food found in possession of the accused for sale was adulterated. In order to prove that the prosecution has to bring its case within the definition of adulterated as defined in section 2(ia). If the case of the prosecution does not fall under ay of the sub- clauses then the accused cannot be convicted on any other ground." At the hearing, learned AAG showed his inability to assist the Court on the ground that his paper book is not complete as he is to inspect the file and to complete the evidence. It is pertinent to mention here that this is State appeal and was preferred in the year 1992. The State counsel is to draft the ground of appeal after going through the evidence but in this case it seems that the grounds of appeal have been drafted without going through the evidence. From the record, it is established that the State has preferred this appeal only for the sake of filing an appeal. In view of the reasons recorded above, there is no merit in this appeal. The same is dismissed. Appeal dismissed.