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Madhya Pradesh High Court · body

2008 DIGILAW 432 (MP)

BANSAL STORES v. STATE OF M. P.

2008-03-18

R.S.GARG

body2008
Judgment R.S.Garg, J. ( 1. ) The applicant being aggrieved by the order dated 17.8.1998 passed by First Additional Sessions Judge, Sidhi, in Criminal Revision No.41/1993 setting aside and reversing the order dated 24.12.1992 passed by the learned Chief Judicial Magistrate, Sidhi, in Criminal Case No. 655/1992, has filed the present revision petition. ( 2. ) The facts for disposal of the present revision petition in nutshell are that one J.P. Khare, Food Inspector, Flying Squad, Sidhi, made a raid on the shop of the respondent no. 2 and purchased three plastic containers containing pickle samples, after giving him proper notices under Form 6 the amount was paid and the receipt were obtained from the said respondent. On enquiry the respondent no. 2 informed the Food Inspector that he had purchased the said item of food from M/s. Bansal Stores, Panjara Bazar, Singroli i.e. the present applicant. The samples were properly wrapped and sealed and one of the sample was sent for its analysis to the laboratory. The Food Laboratory submitted the report stating inter alia that the total fruits were 77.184%, the oil percentage was 8.514%. The report by the public analyst also showed that fungus growth and the added synthetic colours were absent and there was no extraneous matter in the food article. After obtaining the said report the Food Inspector sent a notice to the present applicant and filed private complaint in the Court of the Chief Judicial Magistrate, Sidhi. ( 3. ) The applicant after putting his appearance submitted before the learned trial Court that as the report was incomplete and did not say that the food article was failing in maintaining both the standards as prescribed under the Act, the prosecution could not proceed. After hearing learned counsel for the parties the learned Chief Judicial Magistrate vide its order dated 24.12.1992 held that as the report was incomplete, the prosecution could not continue. He accordingly discharged the accused persons. ( 4. ) The State being aggrieved by the said order filed the criminal revision before the learned Sessions Court, the revision came to be heard and decided by the learned First Additional Sessions Judge, Sidhi, who set aside the order passed by the learned Chief Judicial Magistrate and directed the learned Chief Judicial Magistrate to decide the matter in accordance with law. ( 5. ( 5. ) The applicant being aggrieved by the order passed by the Re-visional Court is now before this Court. ( 6. ) Shri Agrawal, learned counsel for the applicant after taking this Court through item No. A. 16.16(h) submitted that the prosecution was obliged to prove that the food article failed in maintaining both the standards and unless it is so proved the complaint was not maintainable. He submitted that the learned Re-visional Court did not try to understand the distinction between the word or and the word and. ( 7. ) On the other hand Shri R.S. Patel, learned Additional Advocate General for the respondent/State, submitted that if the food article does not match the standard as prescribed under Appendix B appended to the Prevention of Food Adulteration Rules, 1955, then the food article would be taken to be adultered. According to him if the pickle in oil were not containing 10% or more oil the food article was certainly adultered. ( 8. ) For proper appreciation of the rival contentions it would be necessary to refer to item No. A. 16.16 of Appendix B of 1955 Rules : "A.16.16 - Pickle means the preparation made from sound, clean, raw or sufficiently mature fruits or vegetables or a combination of both free from insect or any combination of the three. The pickle may contain onion, garlic, ginger, sugar, jaggery, edible oils, spices, spice extract or oil of turmeric, pepper, chillies, fenugreek, mustard-seed or powder, vegetable ingredients asafoetida, Bengal gram, lime juice, lemon juice, green chillies, vinegar or acetic acid, citric acid, dry fruit including resins and fruit nuts. Combination of pickles may be ; (i) . Pickles in citrus juice of brine- The percentage of salt in covering the liquid shall not be less than 10 percent, when salt is used as a major preserving agent. When packed in citrus juice, acidity of the covering liquid shall be not less than 1.2. per cent, calculated as citric acid. Soluble calcium salt and permitted preservatives may be used in such types of pickles. 1 (Pickles shall be free from copper, alum and mineral acids). (ii) . Pickles in oil :- The fruit or vegetable percentage in the final product shall not be less than 60%. per cent, calculated as citric acid. Soluble calcium salt and permitted preservatives may be used in such types of pickles. 1 (Pickles shall be free from copper, alum and mineral acids). (ii) . Pickles in oil :- The fruit or vegetable percentage in the final product shall not be less than 60%. The pickle shall be covered with oil so as to form a layer of not less than 0.5 cm above the contents or the percentage of oil in pickle shall be no less than 10 percent. 2 (pickle shall be free from copper, alum, and mineral acids). It may contain rapeseed rai, Ajwain, saunf, black pepper and like spices etc. Permitted preservatives may be used in Pickles. (iii) Pickles in vinegar -Pickles in a vinegar mean the preparation from sound, clean, raw or sufficiently matured fruits or vegetables free from insect damage or fungus attack, which have been cured in brine or dry salt or salted and dried stack with or without natural fermentation. It shall contain vinegar or acetic acid and the percentage of acid in the fluid portion shall not be less than 2 percent. W/w calculated as acetic acid. It may contain sugar, whole or ground or semi- ground, spices, dried fruits, green and red chillies, ginger etc., dry fruit. Citric acid may also be added in such type of pickles. Spice extract or essence may also be used. The drainage weight of the product shall be less than 60 percent. 3 (Pickles shall be free from copper, mine acid, alum, synthetic colour) and shall show no sign of fermentation. The product shall be reasonably free from sediments. Permitted preservatives may be used in pickles". ( 9. ) Present is a matter which would fall within caluse (ii) which refers to pickles in oil. A fair understanding and reading of clause (ii) would show that the first requirement under the said clause is that the vegetable percentage in the final produce should not be less than 60 percent. The alternative requirement is that the pickle shall be covered with oil so as to form a layer of not less than 0.5 cm. above the contents. This requirement is not the final one because the alternative proposes that the percentage of the oil in pickle shall not be not less than 10 percent. The alternative requirement is that the pickle shall be covered with oil so as to form a layer of not less than 0.5 cm. above the contents. This requirement is not the final one because the alternative proposes that the percentage of the oil in pickle shall not be not less than 10 percent. The first requirement appears to be a visual requirement while the alternative requirement appears to be requirement for the contents. To prove the case of adulteration the prosecution in view of the language employed in clause (ii) has to prove that the pickle was not covered with oil so as form a layer of not less than 05 cm. above the contents, the prosecution at the same time would also be required to prove that the percentage of oil in pickle was less than 10 percent. If both the lapses are proved, only then the pickles in oil would be deemed to be adultered. In a given case if the prosecution comes out with the case that the pickle did not have the required layer of the oil and in the said case the accused proves as a fact that the pickle contained oil which was not less than 10 percent, then in such a case in the humble opinion of this Court the pickle in oil cannot be treated to be adulterated. ( 10. ) There is a subtle distinction between the words and and or. The word and is ordinarily conjunctive while the word or is disjunctive. In the present matter the word or cannot be read as and to mean that if the sample fails to meet either of the requirement then it would be taken to be adulterated. The intention of the legislature in adopting the word or is to provide a solace and shelter to the accused that if he proves that the oil formed a layer of not less then 0.5 cm over the contents or in the alternative he may prove that the pickle in oil contained 10% or more oil then the food article would not be treated to be adulterated. If the accused proves one of the standard then he cannot be prosecuted. ( 11. ) If the prosecution proves only one of the defects and the accused proves one of the defence available to him then the defence would supersede the attack made by the prosecution. If the accused proves one of the standard then he cannot be prosecuted. ( 11. ) If the prosecution proves only one of the defects and the accused proves one of the defence available to him then the defence would supersede the attack made by the prosecution. ( 12. ) In the present case undisputedly the report of the public analyst does not say that the pickle was covered with oil so as to form a layer of not less than 0.5 cm above the contents. The report of sample stated that the percentage of the oil was less than 10 percent. The report prima facie appears to be incomplete and if the prosecution does not prove all the requirements to constitute an offence then the prosecution would certainly be an abuse of the process of law. ( 13. ) The learned trial Court was certain justified in discharging the accused persons. ( 14. ) The order passed by the learned Re-visional Court deserves to be and is accordingly set aside and the order passed by the learned Chief Judicial Magistrate, Sidhi is restored. The complaint filed by the Food Inspector is dismissed. Order accordingly.