A.D.V. Reddy, J.
This Appeal is by the State against the acquittal of the accused in C.C. No. 26/67 on the file of Addl. Munsif Magistrate, Narasaraopet. on a charge under Sections 16(1) and 7 read with Section 2(1)(a) of the Prevention of Food Adulteration Act and Rule 44(a) of the Rules framed thereunder.
2. The accused is a licensed wholesale dealer in Narasaraopet town having a shop at 13.1.186 on Vinukonda road, dealing in oils, food grains, dhall, flours, etc. On 18.11.1966 at about 10 A.M.. P. W. 1 the Food Inspector along with his Sanitary Maistry P. W. 3 and some others including P. W. 2 inspected the shop of the accused and found a bag containing four maunds of flour exposed for sale along with other food stuffs and on being questioned the accused stated that it was peas flour and thereupon P. W. 1 the Food Inspector served a notice on him and purchased from him 600 grams of peas flour and paid 0.70 paise and obtained a receipt. Thereafter he divided the flour into three parts, put it in three clean bottles, labelled and sealed them, gave one bottle 'to the accused and of the remaining two bottles, one bottle M.O. 1 was sent to Court and another bottle M.O. 2 was sent to the Public Analyst and his report Ex. P. 4 showed that it contained a total ash of 2-4% and ash insoluable in hydrochloric acid 0-23% and further microscopic examination revealed that it contained 75% peas flour and flour of Bengal. gram and Kesaridal to the extent of 25% and therefore it was adulterated. On receipt of this report, the charge sheet was filed for the offence as stated above. In support of the case. P. Ws, 1 to 5 were ex.
3. The accused did not deny the sale, but stated that he was not present in the shop and that he was sent for and was compelled to sign in the document prepared there. No witness was examined in his defence. At his instance the bottle M.O. 1 that was sent to the Court was sent to the Director of Central Food Laboratory at Calcutta for analysis and Ex. C-1 his report disclosed that the microscopic examination revealed that in the sample sent, peas dhall was found mixed with Bengalgram dhall and Kesarl Dhall and therefore the sample was adulterated. The accused then produced the bottle that was given to him by the Food Inspector P. W. 1 and at his request this was sent to the Director of Central Food Laboratory. Calcutta and Ex. C-2 his report showed that microscopic examination revealed that there was admixture of Kesaridhall flour in the peas flour. In both the reports Exs. C-1 and C-2 the percentage of other flours along with the peas flour had not been given. The Magistrate found that the accused sold peas flour to P. W. 1. He. however, held that the microscopic examination conducted by the Director of Central Food Laboratory was not sufficient for inferring that the sample of peas flour contained Kesari Dhall flour, that sufficient data for inferring the same has not been furnished and therefore the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and acquitted the accused of the charge. Hence this appeal.
4. The only point urged In this appeal is regarding the acceptability of the reports of the Director of Central Food Laboratory. Of the two Kerala decisions followed by the Magistrate, the first, i.e. P. Sreedharan v. Food Inspector 1965. Mad 1 J. (Cri.). 452 was concerned with the sale of the Kesaridhall which was a prohibited item and on physical and microscopic examination by the analyst it was certified to be having the characteristic of lac dhall otherwise known as Kesari dhall (Lathyrus Sativus) and it was stated that the Analyst's certificate was not satisfactory as it was not stated therein what the characteristics noted by the analyst were, that no factual data had been given, that what it contained is only a final opinion of the Analyst and if such an opinion is conclusive about the nature of the article, the guilt of the accused is really decided by the Public Analyst and not by the Court and that cannot be the position in law To the same effect is the decision of' the same Court in State of Kerala v Narayanan Nair 1969 Mad L.J. (Cri). 76l (Ker), which is also a case of selling Kesaridhall. otherwise known as Lac Dhall a prohibited article. Here also it was stated by the Analyst that on microscopic examination what he found was that the sample represents one of Kesari or Lac Dhall. It was pointed out there that analysis means 'Resolution into simple elements; determination of composition of substances (Chemical) identification of elements or compounds present (qualitative); determination of precise amounts of element etc. Present (quantitative) that none of these methods of analysis seem to have been resorted to by the Director of the Central Food Laboratory as can be seen from the result of the analysis stated by him, that the expert should put before Court the materials which induced him to come to his conclusion so that the Court may form its own conclusion on those materials and therefore it should be held that there was no proper analysis by the Director of Central Food Laboratory, that he has however tried to escape by saying that the article resembles lac Dhail and as there is no evidence, no conviction can be based on it.
5. In Mangaldas v. Maharashtra State. : 1966CriLJ106 where the accused were convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act for selling adulterated turmeric powder, it was pointed out by the Supreme Court that it was not necessary for the Analyst in his report to state how the calculations have been made by him and what steps have been adopted. In Nagar Mahapalika Kanpur v. Sri Bam : AIR1964All270 it was held that the1 report of the Public Analyst under Section 13 of the Act need not contain the mode or particulars of analysis, nor the tests applied, but should contain the result of analysis, namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in Section 2(i) of the Act. This decision, has been approved by the Supreme Court in Dhian Singh v. Saha. ranpur Municipality. : 1970CriLJ492 as laying down the correct law it was further stated that they cannot accept the contention that the report of the Analyst should contain the data on which he had reached his conclusion or otherwise the data must be made available to the Court, that it is enough if the report contains the results of analysis, namely, data from which it can be in furred whether the article of food was or was not adulterated. These decisions of the Supreme Court have not been brought to the notice of the Kerala High Court. The two reports submitted in this case by the Director of the Central Food Laboratory Ex. C-1 and C-2 which supersede the report of the Public Analyst under Section 13(1) clearly show that the analysis revealed that it contained an admixture of Kesaridhall flours along with peas flour that was kept for sale and out of which 600 grams were sold to P. W. 1. No doubt though in Ex. C-1 it was stated that the admixture contained both Kesaridhall and Bengalgram dhall flour, in Ex. C-2. he mentioned only the admixture of Kesaridhall flour. To this extent there is some difference but the report however, discloses that there was an admixture of Kesaridhall flour a prohibited article in peas flour. Peas flour sold was therefore adulterated under the provisions of Section 2(1) of the Act. The accused has therefore, committed the offence charged with. The order of acquittal of the accused is therefore set aside and he is instead convicted of the offence under Section 16(1) and 7 read with Section 2(1)(a) and Rule 44(a) of the Rules framed under the Prevention of Food Adulteration Act.
6. The offence had taken place in 1966 and this is the first offence. The accused is. therefore, sentenced to pay a fine of Rs. 350/- or to undergo R.I. for 3 months in default.
7. In the result the Appeal is allowed.