M.P. Kanade, J.
1. These two criminal appeals are being disposed of by a common judgment which would govern the judgment of the lower Appellate Court in Criminal Cases Nos. 54 of 1978 and 55 of 1978. The learned Sessions Judge, Parbhani, also heard both the appeals filed by two different accused against the orders of conviction and sentence arising out of the two judgments of the trial Court and disposed of the same by a common judgment, as the question of law and facts involved in both the appeals was the same.
2. These two appeals are filed by the State against the order of acquittal passed by the learned Sessions Judge, Parbhani, dated October 5, 1978, whereby Criminal Appeals Nos. 54 of 1978 and 55 of 1978 pending before him were disposed of acquitting both the accused charged by the learned Magistrate under sections 2(ia)(h), 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act.
3. Few facts giving rise to these appeals are that there were food poisoning cases at Sailu. On August 10, 1975, the Police Officer collected some samples of food articles from one Ramlal Malpani, accused in Criminal Appeal No. 46 of 1979 and one Omprakash Sharma, accused in Criminal Appeal No. 50 of 1979 under a panchanama and retained them in police custody. It appears that the complainant Food Inspector with his colleagues visited the Police Station on August 10, 1975 and collected samples of Jawar flower and Maize in Criminal Appeal No. 46 of 1979 and samples of Jawar, Maize and Hulga in Criminal Appeal No. 50 of 1979. If appears that the accused persons were called at the Police Station and the samples were taken by the Food Inspector in the presence of the panchas after completing the procedure for taking samples of food articles. It further appears that the Food Inspector divided the said samples into three parts, one was given to the accused persons, the other was sent to the Public Analyst and the third was retained by him. The complainant received the report from the Public Analyst which is at Exhibit 23. The Public Analyst opined that both samples Nos. HCT/70/75 and HCT/74/75 contained organo-chloro pesticide residue, namely, endrin and the same was unfit for human consumption. It must be stated here that the complainant had not sent the sample to the Director of the Central Food Laboratory, Calcutta for further examination as provided by sub-section (5) of section 13 of the Prevention of Food Adulteration Act. The report of the Public Analyst is final and conclusive evidence of facts stated therein. The finality and conclusiveness of the said evidence can only be disturbed by the report of the Director of the Central Food Laboratory at Calcutta. In the present case, such report was not called for by the complainant.
4. It is further necessary to state that the police agency who seized the food articles stated above filed a criminal case against the accused persons under section 272 and section 284 of the Indian Penal Code bearing Criminal Case No. 161 of 1976. It appears that the P.S.I. who investigated in the said case sent the said samples to the Chemical Analyser, but the report of the Chemical Analyser disclosed that no recognisable poison was detected in the samples. The learned Sessions Judge who had opportunity to see the reports of both the Public Analyst and the Chemical Analyser felt that there was conflicting opinions between the two independent authorities and, therefore, on the count alone the learned Sessions Judge had given a benefit of doubt to the accused and acquitted them.
5. Mr. B.B. Jadhav, the learned Additional Public Prosecutor appearing in support of these appeals, submitted that under section 13(5) of the Prevention of Food Adulteration Act, 1954, the report of the Public Analyst is final and conclusive piece of evidence of the facts stated therein. It is further argued by Mr. Jadhav that it is not a matter of legal presumption from a Public Analyst's report, but the special law itself has given the finality and conclusive nature to the said report of the Public Analyst. In the said circumstances, the learned Sessions Judge has committed an error in acquitting the accused.
6. There is much substance in the argument advanced by Mr. Jadhav. However, I find number of infirmities in the case of the complainant in order to reverse the order of acquittal passed by the learned Sessions Judge. In the first instance, the samples of food articles taken by the Food Inspector were not taken in the process of sale of the goods by the accused persons. The articles of food were already seized by the police agency and the samples of the articles of food were taken by the Food Inspector from the custody of the police. Although it is true that the accused persons were called at the Police Station and in their presence the said samples were taken and the price of the said samples was paid to the accused persons. Having regard to the provisions of section 10(2) of the Prevention of Food Adulteration Act, 1954, it is clear that any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept and take samples of such article of food or adulterant for analysis. The power given to the Food Inspector under section 10(2) of the Act is specific and he has to follow the procedure laid down under section 10(1) of the Act. Section 10(1) reads as follows :---
'10(1) A Food Inspector shall have power---
(a) to take samples of any article of food from---
(i) any person selling such articles;
(ii) any person who is in the course of conveying delivering or preparing to deliver such article to a purchaser or consignee;
From this section it is clear that the samples of food articles can be taken only from a person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. On the basis of this clear provision of section 10(1) it is rather difficult to hold that the complainant Food Inspector had taken the samples in accordance with law.
7. There is another difficult in the way of Mr. Jadhav to succeed these appeals. The learned Sessions Judge in his judgment has observed :---
'Public Analyst's report is that endrin residue was detected in the sample while the Chemical Analyser's report shows that no recognizable poison was detected. The report of the Public Analyst is admissible in evidence for proof of the facts mentioned therein. But it has no conclusive value because the same is liable to be superseded by the report of the Director of the Central Food Laboratory.'
It is further observed :---
'There is no dispute that endrin is an organo chloro compound and D.D.T. is also organo chloro compound and as per Rule 65, the tolerance limit is 3 p.p.m. In view of the modern technical in the agriculture, use of pesticides is unavoidable. It is, therefore, quite reasonable to expect residue of organo chloro compound in the foodgrains. Unless the tolerance limit is exceeded, it cannot be said that the article of foodgrain is unfit for human consumption. It was, therefore, necessary for the Public Analyst to find out the quantity of the residue of endrine in the samples.'
The report of the Public Analyst will be deemed to be the evidence on record. Now how that evidence is to be appreciated, it is for the Court to decide. The learned Sessions Judge had found that the said report of the Public Analyst is defective, inasmuch as the tolerance limit has not been stated in the said report of the Public Analyst. In my judgment, the observations made by the learned Sessions Judge cannot be easily brushed aside. There is much substance in the observations and the reasons stated by the learned Sessions Judge.
8. Even assuming that a different view is possible of the said piece of evidence, the question is as to whether this Court while entertaining an appeal against acquittal could set aside that order and substitute its own and convert the order of acquittal into an order of conviction. The Supreme Court in Dinanath Singh v. The State of Bihar, : 1980CriLJ921a laid down a law that where the view taken by the trial Court in acquitting the accused is reasonably possible even if the High Court were to take a different view on the evidence, that is no ground for reversing the order of acquittal. In view of the laid down by the Supreme Court, in my judgment, this is not a fit case where an interference with the order of acquittal is called for. A final and conclusive piece of evidence in the nature of the Public Analyst report is found defective by the learned Sessions Judge. On a careful scrutiny of the Public Analyst's report, it is not possible to hold that the samples of food articles taken by the Food Inspectors were poisonous. Under the rule, a certain amount of poisonous substance is permissible to be used for the preservation of articles of food. The question is as to whether the poison that was found by the Public Analyst was beyond the tolerance limit laid down by the rule. There can be two opinions in such matters. It will not be correct to substitute the opinion of the learned Sessions Judge by the opinion of this Court. It is merely an appreciation of the evidence and the High Court would not reserve a finding recorded by the lower Appellate Court merely on the ground of the correctness of the Public Analyst's report. In my judgment having regard to all of these reasons, no interference with the order of acquittal passed by the learned Sessions Judge is called for and both the appeals, must fail.
9. In the result, both the appeals fail and are dismissed. The order of acquittal passed by the learned Sessions Judge, Parbhani in Criminal Appeal Nos. 54 of 1978 and 55 of 1978 is confirmed.