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2011 DIGILAW 2082 (HP)

Mohan Singh v. State of H. P.

2011-04-08

DEV DARSHAN SUD

body2011
JUDGMENT Dev Darshan Sud, J (Oral) - The petitioner has been convicted by the two courts below for offences under Section 16(1)(a)(i) read with Section 7(1) of Prevention of Food Adulteration Act' (hereinafter referred to as the Act) on the allegation that sample of 600 grams of Urad Whole Daal' was purchased from the petitioner who was dealing in this food stuff. It was divided into three parts and on analysis, it was found that it was adulterated. According to the prosecution case, the sample did not satisfy the requirements under A.18.06.06 in appendix B to the Rules which prescribes: (i) Moisture-not more than 14 percent, by weight (obtained by heating the polarized grains at 130 C to 133 C for two hours). (ii) Foreign matter-Not more than 3 percent by weight out of which inorganic matter shall not exceed 1 percent by weight. (iii) Other edible grains-Not more than 4 percent by weight. (iv) Damaged grains. Not mom than 5 percent by weight. (v) Weevil led grains. Not more than 6 percent by weight. (vii) Uric Acid- Not more than 10C mg. per kg. (viii) Mycotoxin including aflatoxin. Not more than 30 micrograms per kilogram.'" 2. The Public Analyst vide its report Ext.P-9 held that inorganic matter was 1.78% by weight (against the maximum prescribed standard of 1 %), damaged graina, were 8.49% by weight (against the maximum prescribed standard of 5%) and total foreign matter, other edible grains and damaged grains were 11.38% by weight (against the maximum prescribed standard of 9% i.e. 4% edible grains and 5% damaged grains). The sample was taken from the shop of the accused on 14.3.1997 on the evidence on record, the learned trial Court convicted the appellant. Appeal filed by the petitioner herein against his 'conviction was rejected by the learned Sessions Judge. The petitioner is now in revision challenging his conviction. 3. Before adverting to the submission made by the learned counsel appearing for the petitioner, I may notice one objection which has been taken by the learned Additional Advocate General is that the petitioner had preferred an application under Section 433 Cr.P.C. before the State praying for commutation of sentence. According to him this was an admission of guilt and therefore this petition could not proceed. I am not persuaded to hold that the petitioner is debarred from urging that no offence has been committed by him at all. According to him this was an admission of guilt and therefore this petition could not proceed. I am not persuaded to hold that the petitioner is debarred from urging that no offence has been committed by him at all. 4. The first point raised by the learned counsel appearing for the petitioner is that the minimum quantity of 'Daal' which was required to be sent for analysis under the prevalent rules, namely, Rule 22 of the Prevention of Food Adulteration Rules as they existed prior to the amendment on 29.7.2002 was 250 grams. In the present case what I find is that the quantity seized was 600 grams which was divided into three parts and one part was sent for analysis i.e. 200 grams which is less than the mandatory requirement of the Rules. 5. In these circumstances, I hold that there is infraction of Rule 22 Entry 19 of the Rules as it stood prior to the amendment on 29.7.2002. This Court in State of H.P. Vs. Rakesh Kumar and another, Criminal Appeal No. 103 of 2003 decided on 29.12, held: The learned Lower Appellate Court has placed reliance on the judgment of the Apex Court in Rajaldas G. Pamnani Vs. State of Maharashtra, AIR 1975, SC 189. In the case before the Apex Court, a sample of compounded asafoetida was taken and hundred grams was sent to the Public Analyst for analysis. Rule 22 of the aforesaid Rules required that 200 grams of compounded asafoetida had to be sent for analysis. The Apex Court held that when the requisite quantity in terms of Rule 22 is not sent then no reliance can be placed on the report of the Public Analyst. It would be appropriate to refer to the following observations of the Apex Court:- 'The Appellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute." No law to the contrary has been brought to my notice. In view of the law laid down by the Apex Court, it is apparent that in the present case also, there has been infraction of Rule 22 and therefore, no reliance can be placed on the report of the Public Analyst. The appeal is accordingly rejected. No order as to costs". 6. I find that this case is squarely covered by the judgment of this Court. No other law contrary to the one relied upon by the learned counsel appearing for the petitioner has been brought to my notice. Ext. P-9 which is the report of the Public Analyst also does not mention the weight of the sample of 'Urd Daal' received by him for analysis. It records: "........................1 further certify that I have/had caused to be analyzed the aforementioned sample and declare the result of the analysis to be as follows: 1. Physical examination: Free from insects and rodent excreta. 2. Foreign matter=2.8% by weight. 3 Inorganic matter=1.78% by weight. 4. Other edible grains=Absent. 5. Weevilled grains=absent 6. Damaged grains=8.49% by weight. 7. Total of foreign matter, other edible grains and damaged grains=11.29% by weight 8. Moisture=11.38% by weight. 9. Added colouring matter = absent. …………………….and am of the opinion that inorganic matter is 1.78% against the maximum prescribed standard of 1%, damaged grains were 8.49% against the maximum prescribed standard of 5% and total foreign matter, other edible grains and damaged grains were 11.38% against the maximum prescribed standard of 9%. The sample of Urd whole is, therefore, adulterated..............." 7. The second point urged by the learned counsel appearing for the petitioner is that the method of quartering which is required has not been followed by the Food Inspector. Learned counsel refers to the evidence of PW1 Vidhi Chand Food Inspector on this aspect. He says that he purchased sample of 600 grams Urd Dal which was divided into three parts by the quartering method. Learned counsel refers to the evidence of PW1 Vidhi Chand Food Inspector on this aspect. He says that he purchased sample of 600 grams Urd Dal which was divided into three parts by the quartering method. The complaint also alleges: "The Urd whole so purchased were put on a clean and dry paper and divided into 3 equal parts by quartering method". 8. In State of H.P. Vs. Chiranji Kumar, 2007 (3) Shim. L.C. 45 : 2007 (2) Cur. L.J. (H.P.) 447, this court considered as to what is the method to be followed when a sample is divided on the basis of quartering method. It held: 10. From the facts adduced on record, a very vital question arises whether the Food Inspector had adopted a proper method of taking the sample? If not what is its effect? My answer is "No". Consequently the respondent deserved acquittal on this ground alone. The Food Inspector in his complaint has contended : "That entire Sooji was mixed with a clean and dry bamboo and purchased 600 grams Sooji, same was again divided into three equal parts by "quartering method" and put in three clean and dry bottles which were stoppered well and made the moisture proof….." (Emphasis mine) 11. Whereas, I.D. Verma, Food Inspector as PW1 has deposed that before taking the sample, he had mixed the "Sooji" properly and thereafter purchased 600 gms for Rs.2.40 P. Then he divided the Sooji so purchased, in three equal parts and put it in three clean and dry bottles. From his this narration, it is seen that the Food Inspector was either not knowing what is "quartering method" or he deliberately did not follow the procedure while taking the sample. Thus both the situations are hazardous which materially prejudice the accused. 12. What is "quartering method"? The Division Bench of this Court in Bhagat Ram and two other connected matters v State of H.P. (1986 Sim.L.C.281-DB) while facing with a similar situation relied upon an authoritative Book on the subject viz., "Chemical Analysis of Food and Food Products" (Second Edition) by Morris B. Jacobs, which has described the procedure at page No. 10 as under: "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 rolling in a sheet or blanket, if the sample is large, 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, quadrants 2 and 4, are taken. This process is continued until a sample small enough for submission for analysis is secured. " 13. Manifestly, the above procedure is required to be followed in order to obtain a representative sample. This appears to be a must when sample of food grains or articles like "Suji" are collected with the object of finding the extent and degree of "insect damaged" or "insect infestation". In the aforesaid case, the Division Bench has also observed that there can be no denying the fact that the insect damaged matter would be comparatively light in weight and would accumulate at the spot when shaken in a container. When 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 the part sent for examination to the Public Analyst, cannot altogether be ruled out. 14. The above principle of law was followed and applied by this Court in Daulat Ram Vs. State of H.P. 1998 (1) Sim. L.C. 322." (Pp.47 & 48) 9. I find that beyond a bald statement made by the Food Inspector that the quartering method was followed, there is no evidence to show as to whether he has actually complied with the mandatory requirements of quartering the sample as required by law. 10. In these circumstances, the judgment of both the courts below is quashed and set aside. The petitioner is acquitted of the offences so charged. Bail bonds furnished by the petitioner shall stands discharged.