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Madhya Pradesh High Court · body

2003 DIGILAW 710 (MP)

RAM SEWAK v. STATE OF MADHYA PRADESH

2003-05-12

A.K.SHRIVASTAVA

body2003
Judgment ( 1. ) THIS revision preferred under Section 401 of the Code of Criminal procedure (for brevity the Code) by the petitioner has been directed against the judgment dated 29-8-1996 in Criminal Appeal No. 4/93, passed by the learned Additional Sessions Judge, Umaria, District Shahdol, confirming the judgment of Additional Chief Judicial Magistrate, Umaria, dated 16-1-1993 in criminal Case No. 1352/87. ( 2. ) IN brief, the case of prosecution is that Food Inspector Shashi bhushan Nigam (P. W. 1) took the sample of rice kanki (broken rice) from the shop of applicant No. 1 who was not present in the shop and the applicant no. 2 was present in whose presence the sample was obtained but he did not issue the receipt of broken rice (kanki) which was purchased by the Food inspector. The Food Inspector obtained the sample on 8-11-1986 and after preparing the panchanama (Ex. P-2) sent the sample to the office of the public Analyst. The public analyst on examining the sample found it to be adulterated. His report is Ex. P-6. On the basis of the report of the pubic analyst holding the sample to be adulterated the prosecution was launched against the applicants. The applicants were charged under Section 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (in short the act ). The accused persons abjured their guilt. ( 3. ) IN order to bring home the charges the prosecution examined as many as four witnesses and placed Ex. P-l to P-13, the documents on record. ( 4. ) THE Trial Court after scrutinising the evidence came to hold that the applicants did commit the offence for which they were charged and eventually convicted them and passed the sentence to suffer rigorous imprisonment of six months each and fine Rs. 1000/- each, in default, further simple imprisonment of three months each. ( 5. ) IN appeal, the learned Additional Session Judge did not interfere in the judgment rendered by the Trial Court and maintained the conviction and sentence. Hence, this revision. ( 6. ) ASSAILING the judgment of the Court below Mr. R. P. Agrawal, learned Senior Counsel for the applicants has contended that the report of the public analyst is not worth reliance. Hence, this revision. ( 6. ) ASSAILING the judgment of the Court below Mr. R. P. Agrawal, learned Senior Counsel for the applicants has contended that the report of the public analyst is not worth reliance. His further submission is that the sample was not obtained according to mode prescribed under Rules 14 and 16 of the prevention of Food Adulteration Rules, 1955 (in short the Rules ). ( 7. ) PER contra, Smt. Chanchal Sharma, learned Counsel for the State has argued in support of the impugned judgment passed by the Courts below and has contended that there is no substance in the revision and the same deserves to be dismissed. ( 8. ) TO understand the rival contentions of learned Counsel for the parties, it is apposite to refer the relevant part of the report of the public analyst which reads as under :- ( 9. ) ON the basis of aforesaid analysis, the sample of broken rice (kanki) was held to be adulterated. Mr. S. C. Nandi, the public analyst has been examined as P. W. 4. In the cross- examination, he has admitted that the sample was examined by him according to the norms prescribed in A-18. 06 of Appendix B of the Rules. If the standard prescribed under A-18. 06 is perused and kept in juxtaposition with the public analysts report analysing the sample of broken rice (kanki), it becomes graphic that the sample of rice (kanki) was not adulterated. For better understanding, the standard prescribed and the report of the public analyst is reproduced as under:- In the norm prescribed in A-18. 06, of Appendix B no standard of insects webs living or dead insects has been prescribed but the public analyst in his report found the presence of insects webs living or dead insects in the sample. ( 10. ) THE public analyst (P. W. 4) in Para 8 has specifically stated that the broken pieces of rice (kanki) were intact with the insects. The public analyst had further specifically stated that the prescribed norm A-18. 06, do not provide any percentage of the inclusion of the insects. He has further stated that in his report (Ex. P-6), he has not mentioned that whether broken rice were fit for human consumption or not but on his own count he has stated that the sample was unfit for human consumption. 06, do not provide any percentage of the inclusion of the insects. He has further stated that in his report (Ex. P-6), he has not mentioned that whether broken rice were fit for human consumption or not but on his own count he has stated that the sample was unfit for human consumption. In its report, the public analyst has not accorded any reason that why the sample was not fit for human consumption and if it is not there in his report, it will be highly unsafe to rely on the report of the public analyst specifically when in the norm A-18. 06 a different standard has been prescribed. The sample is otherwise not offending. In the case of State (Delhi Administration) Vs. Puran Mal, AIR 1985 SC 741 , the Apex Court while analysing the case of sample of red chilli held that where the sample of red chilli powder taken by the Food Inspector from the grocery shop of the accused was found on analysis by Public Analyst to contain 9 living meal worms but the analyst had neither stated that it was insect-infested nor that it was unfit for human consumption on account of the presence of meal worms it could be held that the certificate of public analyst did not support the case of the prosecution that the red chilli powder was adulterated. Their lordships expressed the view as the public analyst had not expressed his opinion that the red chilli powder was worm-infested or insect-infested or on that count of the presence of meal worms the sample was unfit for human consumption. The Supreme Court ultimately held that the prosecution had not established the requirement of Section 2 (1) (f) of the Act. ( 11. ) IN the case at hand the public analyst had not expressed his opinion in his report that on account of insect web/dead or living insects the sample was adulterated. Indeed the report is silent regarding the number of dead and living insects. Thus, on the basis of ratio decidendi of the case of Puran mal (supra), which is squarely applicable to the present case, the conviction of the applicants can not be sustained. ( 12. ) IN the case of State of Punjab Vs. Indeed the report is silent regarding the number of dead and living insects. Thus, on the basis of ratio decidendi of the case of Puran mal (supra), which is squarely applicable to the present case, the conviction of the applicants can not be sustained. ( 12. ) IN the case of State of Punjab Vs. Prem Kumar, 1992 (1) F. A. C. 60, the Division Bench of Punjab and Haryana High Court while dealing with the case of sample of rice containing insect-infested, held that insect-infested rice is not injurious to health because before the rice is taken it is washed properly and then cooked. It was also held so because the rice grains were not to be affected in any manner. In the present case also, the sample of the rice was not in any manner found to be affected by the insects and, therefore, the case of Prem Kumar (supra), is fully applicable in the present case. ( 13. ) THE Courts ordinarily decide the cases under the Act basing the report of the public analyst, in other words it could be said that his report is the foundation stone of the case tried under the Act. The report of the public analyst is of immense significance. But, if the report is prepared by the public analyst without paying much attention and without applying his own skill in testing the sample, then not only the public analyst fails to discharge his statutory duty but would also be responsible to send an innocent person behind the bars. The duties which have been cast on the public analyst are emphasised under Rule 7 of the Rules which reads as under:- "7. Duties of public analyst.- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the pubic analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. (2) The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by any other person under the Act. (2) The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by any other person under the Act. (3) The public analyst shall, within a period of forty days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III: provided that where any such sample does not conform to the provisions of the Act or these rules, the public analyst shall deliver four copies of such report to the said authority: provided further that the public analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under Section 12 of the Act. " ( 14. ) ON the bare perusal of the duties of the public analyst, it is perceivable that the public analyst can authorise an officer for the comparison of the seals on the container and the outer cover with specimen impression received separately for the purpose of noting down the condition of the seals etc. However, under the rules no other officer, except the public analyst himself is authorised to analyse the sample. Under sub-rule (2) a statutory duty has been cast on the shoulder of the public analyst to analyse the sample of articles of food and therefore he alone is authorised to discharge this statutory duty and if he delegate his duty to some other person to analyse the sample of the food then his report can not be said to be a legal and valid report under the Act. In the present case, during his cross-examination, the public analyst has specifically admitted that he did not analyse the sample and the same was analysed by his Assistant. On being further cross-examined, he became unable to answer the name of his Assistant, who analysed the sample. In his report the name of his Assistant has also not been mentioned. It has also come out in his evidence that when his Assistant was performing the test he was not observing the analysis and was not with him. This mistake on the part of the public Analyst is very serious and objectionable. In his report the name of his Assistant has also not been mentioned. It has also come out in his evidence that when his Assistant was performing the test he was not observing the analysis and was not with him. This mistake on the part of the public Analyst is very serious and objectionable. He should bear in mind that his report plays an important role in deciding the case under the Act and if in such a manner, as in the present case, the public analyst would analyse the sample then his act would tantamount to dereliction of duty. ( 15. ) I have X-rayed the testimony of the public analyst and I find that his report is not worth reliance and no credence should be given to it. As the report has been given keeping aside the provision of sub-rule (2) of Rule 7 of the Rules, no reliance can be placed on the report and, therefore, the conviction which is based on his report is unsustainable. ( 16. ) THE another facet of the case is the non-compliance of Rule 14. For better understanding it would be seemly to reproduce the said rule:- "14. Manner of sending samples for analysis.- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. " According to this rule, a mandatory duty has been cast on the Food Inspector to collect the substance, if it is a dry substance, in clean dry containers which should be closed sufficiently tight to prevent leakage and entrance of moisture. On going through the Panchanama (Ex. P-2), it is found that nowhere it has been written that the packets were sealed in the manner as prescribed under rule 14 of the Rules. It is well settled law that the compliance of Rule 14 is mandatory and it is the statutory duty casted on the Food Inspector to collect and seal the sample in the manner as prescribed under Rule 14. On a bare perusal of the Food Inspectors report (Ex. P-2), it is found that the sample was not taken in a clean dry container. On a bare perusal of the Food Inspectors report (Ex. P-2), it is found that the sample was not taken in a clean dry container. It has also not been mentioned in the inspection report that the packet was sealed in such a manner so that there was no chance of entrance of moisture, etc. In his examination, the Food inspector has not stated that the sample was seized in the manner prescribed under Rule 14. He has not even stated that after obtaining the sample, the container was then completely wrapped in fairly strong thick papers, the ends of which were neatly folded and thus there is non-compliance of Rule 16 (b)of the Rules. ( 17. ) ON account of above said premised reasons, I have no hesitation to hold that the conviction of the applicant can not be sustained. ( 18. ) IN the result, the revision succeeds and is hereby allowed, the judgment of conviction of the Courts below are hereby set aside. The applicant is on bail. His bail bonds are discharged. The amount of fine, if deposited, be refunded to him. Criminal Revision allowed.