Jagjit Singh, J.
(1) This Cuse relates to alleged storing for sale adulterated Suji by Ram Kishan respondent at shop No. 8247, New Anaj Mandi. Rani Jhansi Road, Delhi. A sample of the Suji was taken by a Food Inspector of the Municipal Corporation of Delhi on November 4, 1969. A part of the sample on being delivered to the Public Analyst was reported to be adulterated due to the presence of insect infestation and also due to 2.95 per cent excess in passing through a No. 100 sieve.
(2) On a complaint being filed against Ram Kishan. under section 7 read with section 16 of the Prevention of Food Adulteration Act. 1954 he was convicted by the trial Magistrate and was sentenced to rigorous imprisonment for a period of six months and to a fine of Rs. 1,000.00. On his appeal to the Court of cession, Shri J.D. Jain, Additional Sessions Judge, acquitted him by setting aside the order of conviction and sentence. Against the order of acquittal passed by the learned Additional Sessions Judge the present appeal was filed on behalf of the Municipal Corporation of Delhi, after obtaining special leave to appeal under provisions of section 417(3) of the Code of Criminal Procedure.
(3) The part of the sample delivered to the Public Analyst, Shri Prem Parkash Bhatnagar, on the very day the sample was taken from the shop of the respondent was analysed on November 12, 1969. The result of the analysis was :-
'MOISTURE:-10.25%Total Ash.:-0.48% Gluten :-8.80% Insect infestation :- Highly insect infested. Samolina passes through a No. 100 sieve:-5.95%.'
(4) The standard .of quality of Suji or samolina, as prescribed by item 18.03 of Appendix B to the Prevention of Food Adulteration Rules, 1955 till substituted by a new item by the Prevention of Food Adulteration (Amendment) Rules, 1970 was:-
'A.18.03. Samolina (Suji) is the food prepared from wheat by the process of grinding and bolting to such a degree of fineness that it passes through a No. 20 sieve and not more than 3 per cent passes through a No. 100 Sieve. It shall be free from grit and insect infestation, musty smell and off-odour and should be creamy yellow in colour. It shall contain : (a) not more than 1 per cent of total ash. (b) not more than 13.5 per cent of moisture. (c) not less than 6.0 per cent of gluten.'
(5) With effect from October 24, 1970 the standard of quality for Suji came to be prescribed as follows :-(......)
(6) Thus on November 4, 1969 the sample of Suji in order to conform to the prescribed standard than applicable should have been free from grit and insect infestation, musty smell and off-odour and had to be creamy yellow in colour,
(7) Further the contents of the sample should not have passed except to the maximum limit of 3 per cent through a No. 100 sieve. The contents of the sample, however, passed through a No. 100 sieve to the extent of 5.95 per cent. Besides that it was also reported by the Public Analyst to be highly insect infested.
(8) In his report the Public Analyst did not mention on what basis he considered the sample to be highly insect infested. He did not mention whether any insects, living o dead, were found present. On being examined as a defense witness he stated that in the case of Suji, there is no possibility of its developing insect infestation within a period of eight or nine days if it is not already insect infested.
(9) One Shri B. D. Narang, a Public Analyst of Haryana, was also examined as a defense witness (...)
(10) Shri Prem Prakash Bhatnagar, Public Analyst, has not been consistent in his notions about insect infestation. In the case of Municipal Corporation of Delhi v. Bishan Dass 1974. R L R 65 he had made a statement that when he finds any living or dead insects in a sample he always mentions that fact in his report and that when an article of food has been attacked and damaged by insects then that article would be called insect infested 'irrespective of the fact whether the sample contains or not the living or dead insects.' In the case of Wazir Chand Wadhwa v. State 1971 D.L.T. 197 he deposed that foodgrains found insect infested up to 5 per cent were not being declared adulterated by him. In the case of Khacheroo Mal v. The State 1971 D.L.T. 138 he came out with a statement that if no living insects are found present in foodgrains but these are found to be damaged then his report would be that foodgrains are insect damaged but if living insects are present and the foodgrains are also found to be damaged his report would show the article to be insect infested. Such inconsistency can obviously not only lead to confusion but result in miscarriage of justice. It is expected that this Public Analyst and the other Public Analysts will keep in view the observations made in the case of Dhan Raj v. Municipal Corporation of Delhi & State 1972 F.A.C. 335 while giving reports of insect infestation. In the said case of Dhan Raj a Division Bench of this Court made the following observations :-
'THEexpression 'insect-infested' was not defined in the Prevention of Food Adulteration Act and has, thereforee, to be given its ordinary meanings. The word 'infest' appears to have been derived from the latin word 'infestare' which meant to assail or molest. According to the Oxford English Dictionary (Volume V at page 259 the word 'infest' means 'To attack, assail, annoy, or trouble (a person or thing) in a persistent manner' ; to visit persistently or in large numbers for purposes of destruction or plunder ;' to swarm in or about, so as to be trouble-some'.
In the same Dictionary the word 'infestation' is stated to mean : 'The action of infesting, assailing, harassing, or persistently molesting'. 'It is also mentioned that the word is now used especially for 'insects which attack plants, gram etc. in large swarms'. Thus an article of food would be 'insect infested', if it has been attacked by insects in swarms or numbers. It, however, seems to us that there is no justification for the view that insect-infestation would only continue so long as the insects continue to be alive. If an article of food is attacked by insects in large swarms or numbers and for some reason those insects die, the mere fact that the article of food has no longer living insects but has dead insects will not change its character of being insect-infested.'
(11) It was also held that an article of food would be deemed to be adulterated, under sub- clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act, if it consists of any 'filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested and for any of those causes or for any other cause is unfit for human consumption.
(12) Even if the finding of the Public Analyst regarding the sample being insect-in- fested can somehow be regarded to be correct still the sample would not be deemed to be adulterated under sub-clause (f) of clause (i) of section 2 for there is no material on the record from which it may be held that on account of the insect infestation it was unfit for human consumption. Sub-clause (b) of clause (i) of section 2 would also not he attracted as on the basis of the report of the Public Analyst it cannot be said conclusively whether the sample contained any other substance which affected injuriously its nature, substance or quality. It is, thereforee, not necessary to consider the implications of the evidence given by Shri Narang in the case. We have, however, been noticing that Shri Narang has been. giving evidence in some cases as an expert. It is doubtful whether he can be regarded to be an expert for purposes of food adulteration cases. The question as to what weight, if at all any, can be attached to his evidence in cases in which the sample of food was not analysed or got analysed by him as a Public Analyst will require to be considered in some suitable case.
(13) This much is certain that the sample of Suji did not conform to the prescribed standard as applicable on the date of the taking of the sample as its contents to the extent of 5,95 per cent could pass through a No. 100 sieve while not more than 3 percent of the contents should have passed through such a sieve. Sub-clause (1) of the definition of 'adulterated', as given in clause (i) of section 2 of the Prevention of Food Adulteration Act, was thereforee, applicable. Under that sub- clause an article of food is to be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
(14) The learned Additional Sessions Judge did not consider why the sample could not be regarded to be adulterated under sub- clause (1) of clause (i) of section 2 of the Prevention of Food Adulteration Act. He merely confined his attention to the finding of the Public Analyst about the sample being insect infested.
(15) With the amendment made in item A. 18.03 of Appendix B to the Prevention of Food Adulteration Rules the requirement that Suji should not pass except to the extent of 3 per cent through a No. 100 sieve has been abolished. But as that amendment was made after the sample had been taken technically the sample will have to be regarded as adulterated due to the quality falling below the prescribed standard, on account of the contents of the sample which was analysed passing through a No. 100 sieve to the extent of 5.95 per cent. The app;al is accordingly accepted and the order of acquittal is set aside and the respondent is sentenced to a fine of Rs. 100.00 only and in default to the payment to one month's imprisonment. He shall deposit the amount of fine in the court of the Chief Judicial Magistrate within a month from the date of this order, failing which the Chief Judicial Magistrate, to whom a copy of this order shall be sent, shall issue non- bailable warrants for the arrest of the respondent so that he may be taken into custody and be made to serve the sentence in default of the payment of fine.
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