(1) This is an application in revision from the Judgment of the Additional Sessions Judge, Dhulia, confirming the order of conviction of the petitioner passed by the Judicial Magistrate, First Class, Dhulia under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
(2) The material facts are as follows:-
The petitioner (who would hereafter be referred to as the accused) is a dealer in food grains. On 29th March 1965, Koranne, the accused was dealing in adulterated food grains, went to the shop of the accused and purchased Bajari weighing one Kilogram. He divided the sample purchased by in three parts, and sent one packet to the Public Analyst for analysis. The report of the Analyst was received in due course. It stated that ergot was found on chemical test. It further stated that the test for acidity (soreness) was negative. The report was written on Form-III. Rule 7 (3). In the certificate with which the report begins, the Analyst stated that sample of Bajari sent for analysis was properly sealed and fastened and that he found the seal intact and unbroken. In due course, the accused was prosecuted under section 16(1)(a)(i) read with rule 7(1) of the Food Adulteration Act.
(3) The accused pleaded not guilty to the charge. He contended that he had purchased the Bajari from a merchant at Bagalkot in Mysore State and he sold it in the same condition in which he had purchased it. He denied that he had any knowledge about the defect if any, which was found on analysis.
(4) The learned Magistrate relying on the report of the Public Analyst held the offence proved and convicted and sentenced the accused as stated above. The accused went in appeal to the Sessions Judge from that decision. The conviction having been confirmed by the Sessions Judge the accused has now come or in revision.
(5) Mr. Karlekar for the accused contended that the procedure laid down in rules 7 and 18 of the Act, has not been complied with. He also contended that the percentage of the ergot has not been mentioned in the report. Unless the percentage of damage exceeds 5 per cent of the total weight, it cannot be said that the food grain was not of the requisite standard.
(6) I will deal with the first point raised by Mr. Karlekar first. Rule 7 of the Rules deals with the duties of the public Analyst Rule 18 provides that memorandum and impression of seal must be sent separately. Rule 18 runs thus:
'A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public Analyst separately by registered post or delivered to him or to any person authorised by him.'
Clause (1) of Rule 7 enjoins a duty upon the Analyst to compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. Mr. Karlekar complained that there is no evidence to show that specimen impression of the seal was separately sent by the Food Inspector. He also argued that there is nothing to indicate that the Analyst compared the seals on the container with the specimen impression sent separately. According to Mr. Karlekar these defects go to the root of the matter, because there cannot be any guarantee that goods have not been tampered with in the process of transit. In that connection, he relied upon a decision of the Gujarat High Court in State of Gujarat v. Shantaben, : AIR1964Guj136 wherein the learned Judge observed:
'To base a conviction upon report, the record must show that the Food Inspector and the Public Analyst had complied with the Rules 7 and 18 of the Prevention of Food Adulteration Rules. These rules are framed in order to prevent the possibility of tampering with the sample, before it reaches the Analyst. Where the report of the public Analyst merely shows that the seal were intact and unbroken, but it does not show that the seals on the container were compared with the specimen seals sent by post to the Public Analyst, the Court cannot be sure that the sample that has reached the Public Analyst was not tampered with on the way. Rules 7 and 18 have been framed in order to prevent such possibility.'
As noted earlier, the report does not indicate that the seal on the sample was compared with the seal of the specimen and separately. All that the report stated was that the container containing the sample properly sealed and fastened and that the seal was intact and unbroken. This means that the true packet reached the Public Analyst safe and intact. The first question for consideration is whether the specimen of the seal was sent by the Food Inspector. Unfortunately the Food Inspector does not say that he sent the specimen of the seal separately. At the same time, he did assert that he divided the purchased Bajari in three parts, put it in the three packets and wrapped them in papers and sealed them separately. In answer to a question put to him in cross examination he said:-
'I took the sample on 29-3-1965. It was sent to the public Analyst on the same day. I sent the same packet. The certificate from the Public Analyst, which shows that the seal was intact is the only evidence to show that the same sample was sent.'
No reason has been shown as to why the statement of the Public Analyst contained in the report should not be accepted as true that the packet examined by him was not tampered with and could not have been tampered with is clear from the fact that the report of the Public Analyst clearly states that the seal was unbroken. The report also shows that the packet was properly sealed and fastened. The possibility of the sample being tampered with during transit appears to be the main basis of the judgment of Mr. Justice V. B. Raju in : AIR1964Guj136 . That basis does not exist so far as the present case is concerned. We are not really concerned with the possibility of what could have happened. We are concerned with the actual state of affairs. The sample reached the Analyst intact in a proper sealed condition. Since no question was specifically raised as to whether the specimen of the seal was separately sent the prosecution have not attempted to produce the relevant document in that connection. Mr. Kotwal for the Municipal Borough has shown me a report which is on Form No. VII framed under Rule 17 relating to 'memorandum to be forwarded to the Public Analyst.' That report clearly shows that a copy of the memorandum and specimen impression of the seal, used to seal the packet of sample, was separately sent by post. It is not necessary that the report of the public Analyst in form No. III need mention that the Public Analyst compared the seal on the packet with the specimen seal sent separately. The form No. III simply requires a statement to the effect that the sample was properly sealed and fastened and that the seal was intact and unbroken. The omission, therefore, in the report about comparison is not of any vital importance. It would be legitimate to raise a presumption under section 114 of the Evidence Act that when both the samples and the specimen were sent, the seals of the two articles were compared. Mr. Karlekar relied on the decision of the Mysore High Court in Mary Lazrado v. State of Mysore, AIR 1966 Mys 244. In that case the learned Judge relied upon the decision of the Gujarat High Court. He observed:
'The mere fact that the report of the Public Analyst contained a statement that the sample sent for analysis had been properly sealed and fastened and that he found the seal intact and unbroken is not sufficient. The presumption in regard to the regularity of procedure followed by the public Analyst may be raised when there is proof that the Food Inspector had discharged his functions according to the rules. To raise a presumption both in favour of the Food Inspector and the Public Analyst is to render the rules superfluous and meaningless.'
The learned Judge also observed-
'The procedure prescribed by the rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to, and received for analysis by the Public Analyst.'
It appears that in that case there is nothing to indicate that the specimen of the seal was separately forwarded by the Food Inspector. That is why the learned Judge observed that it would not be possible to draw a presumption in favour of the Food Inspector saying that he sent the specimen of the seal. I have already stated that as a matter of fact that there is a document, though not produced, showing that the specimen of the seal was separately forwarded by Post to the Public Analyst. Apart from this point of distinction, I am not disposed to agree, with great respect, with the reasoning of the learned Judge of the Mysore High Court as also the reasoning of the learned Judge of the Gujarat High Court. There are other safeguards provided by the Act and the Rules and the submission of the specimen of the seal of the pocket, is only one of them. In my opinion, it is comparatively a less important safeguard. One more safeguard is that the Public Analyst before examining the contents, must see that the seal in intact and unbroken. There is still more important safeguard provided by sections 11 and 13 of the Act itself. Under section 11 it is incumbent on the part of the Food Inspector to deliver one packet of the sample to the accused. Under section 13(2), it open to the accused to make an application to the Court for sending the part of the sample mentioned in section 11 to the Director of the Central Food Laboratory for a certificate. When such an application is made, the Court shall despatch the part of the sample after examining the mark and the seal put on the sample, to the Director of the Central Food Laboratory. The Director must submit his certificate to the Court within one month from the receipt of the sample. Sub-section (3) provides that the certificate issued by the Director of the Central Food Laboratory under sub-section (2) shall supersede the report given by the Public Analyst under sub-section (1). Sub-section (5) of section 13 provides that the report of the Public Analyst may be used as evidence of the facts stated therein, unless of course the same has been superseded by the certificate of the Director of the Central Food Laboratory. The proviso lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall afford conclusive evidence to the facts stated therein. It would, thus, be clear that whereas the report of the Public Analyst can be used as evidence of the facts stated therein the certificate of the Director affords final and conclusive evidence to the facts stated therein the certificate of the Director affords final and conclusive evidence to the facts stated therein. It was open to the accused to utilised the provisions of section 13 and to call upon the court to send the packet given to him, which also contains the same seal to the Director of the Food Laboratory. The accused has not availed himself of the provisions of section 13. When so may important safeguards have been provided by the Act itself, it would not be proper to place undue emphasis on one technical safeguard provided in the Rules, viz., the comparison of the seal of the container with the specimen of the seal. If the specimen seal was sent separately as required by rule 18, there is no reason why the Public Analyst should fail to discharge the duty enjoined on him. At any rate at least on that narrow point, it would be legitimate to draw a presumption under section 114 of the Evidence Act. The question similar to the one I am called upon to decide in this case also arose before the Orissa High Court in the case of the State v. Umacharan, : AIR1966Ori81 . The learned Judge has drawn the attention to Form No. III and also rule 7(3) of the Act and concluded that it was not necessary for the public analyst to specifically state that he compared the two seals. The learned Judge of the Orissa High Court also stated that the presumption can be drawn that the Food Inspector must have discharged his duties as enjoined by Rule 7. With respect I agree with the view taken by the learned Judge.
(7) The second argument advanced by Mr. Karlekar was that the report of the Public Analyst did not indicate the percentage of ergot. In that connection, he drew my attention to definition No. A 18.06 regarding 'Foodgrains'. The definition and standards of quality contained in Appendix 'B' are framed under Rule 5. Rule 5 reads:-
'Standards of quality of the various articles of food specified in Appendix B to these are as defined in that Appendix'
Item No. (ii) in the Definition A 18.06 speaks of 'foreign matter, 'and says Foreign matter (which includes sand, gravel, dirt, stones, pebbles straw, stems, chaff, cockles, oil-seeds but excludes, other foodgrains) shall not exceed 4% by weight. It is clear that 'Foreign matter' referred to here must be other than non-poisonous seeds. In the present case ergot is found and according to Webster's Dictionary ergot is a sort of parasitic fungus having poisonous quality. Clause (iii) of the said definition refers to 'damaged grain' and runs thus -
'Grain that is damaged by fungus, moisture, or heating, and wherein the damage is not superficial but grain is affected internally shall not exceed 5% by weight.'
Mr. Karlekar contended that ergot is a kind of fungus and therefore, unless the Court finds that the damage exceeds 5% by weight, it cannot be said that the Bajari was not of the requisite standard. This argument pre-supposes that the prosecution is based on the supposition that the Bajari sold was not of the requisite standard. Mr. Karlekar relied upon a decision of the Supreme Court in : 1966CriLJ1347 , M. V. Krishnan v. State of Kerala. In that case the prosecution related to butter milk and their Lordships observed:-
'No standard for the contents of butter milk either specifically or with reference to other items is prescribed. A comparative study of item No. 11 in App. B to the rules leaves no room for doubt that the rule making authority for reasons, which are obvious has not though fit or feasible to prescribe any standard in regard to the contents of the butter milk. Hence a person selling butter milk cannot be convicted for an offence under section 16(1)(a)(i) and section 7 of the Prevention of Food Adulteration Act, 1954, read with rule 44 of the Prevention of Food Adulteration Rules 1955.'
It should be noticed that the prosecution was on the definition of adulteration contained in clause (a) of section 2(1) not on the ground that it was adulterated as per other clauses of the definition of adulteration in section 2(1). Besides, their Lordships kept open the point as to what would be the position if the prosecution for an adulteration was based on other clauses such as (b) to (1) in sector: 2(1).
'We should not be understood to have expressed any view on the question whether a prosecution could be launched for adulteration of butter milk under same other clauses of the definition of 'Adulterated' in section 2 of the Act, for in the present case the prosecution was only for not maintaining the standard.'
In the present case, the prosecution is based on clause (f) of section 2(1) which contains the definition of 'Adulteration'.
'(f) If the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infected or is otherwise unfit for human consumption.'
The expression 'otherwise unfit for human consumption' is wide and of general character. It is necessary to note the clause (iii) of A. 18.06 speaks of grain having been affected internally. It is in this case only that the question of the percentage becomes relevant. If the damage is due to internal affection of putrification, then the question of percentage may have significance. In the present case what appears to have happened is that that the grains of ergot which are similar in size to the grains of Bajari and dark in colour have got themselves inextricably mixed up with the real grains of Bajari. They are separate from the grains of Bajari. There is therefore, no question of any internal affection. At the same time, it is clear that Bajari which contains some pieces of ergot become unsuitable for human consumption.
(8) The result is, the application fails and is dismissed Rule discharged.
(9) Application dismissed.