D.K. Kapur, J.
(1) The Municipal Corporation of Delhi filed a complaint against Ved Parkash under Section 7/16 of the Prevention of Food Adulteration Act, 1954, in respect of Kabli Ghana Sabat, which was stored for sale at shop No. W-Z 798, Ganesh Pura, Delhi. A sample taken on 17th December, 1966 by the Food Inspector, Jamuna Pershad, was sent to the Public Analyst, who as per his report, Exhibit Pf, was of the opinion that the sample was unfit for human consumption on account of infestation to the extent of 100 percent. The complaint was tried by Shri C. R. Negi, Magistrate First Class, Delhi, who dismissed the same on the ground that the Food Inspector who took the sample had a financial interest in the D.M.C. Employees Co-operative Stores Pvt. Ltd., Delhi' and was consequently disqualified to be a Food Inspector because of the proviso to Section 8 of the Prevention of Food Adulteration Act, 1954. The merits of the prosecution case were not dealt with. Against that decision the Municipal Corporation of Delhi has appealed to this Court.
(2) The question whether membership of a Co-operative Society dealing in food, disqualifies a Food Inspector, has already been dealt with in Municipal Corporation of Delhi and others V. Chaman Dass 1969 D.L.T. 642 (1). A Division Bench of this Court has held that such a person is not disqualified. In that case, there was a remand for a fresh trial. That decision fully governs this case and we have no hesitation in holding that the complaint has been wrongly dismissed on the ground that the Food Inspector was debarred from acting as a Food Inspector by virtue of Section 8 of the Prevention of Food Adulteration Act, 1954. This would normally mean that the complaint would have to be sent back for decision on the merits, although on the evidence which has already been recorded.
(3) Mr. D. R. Sethi, learned counsel for the respondent urges that this is not a fit case for a remand to the Magistrate to obtain his decision on the merits. His contention is based on the contents of the Public Analyst's report in this case. That document is Exhibit PF. dated 30th December, 1966. As a period of over six years has elapsed since that report was made, we have heard Mr. Sethi on the question whether this is not a fit case for remand. The report states that on analysis, 'infestation' was found to the extent of 100 per cent. The opinion of the Public Analyst on the sample was 'the same is adulterated and unfit for human consumption due to infestation to the extent of cent percent.' Section 2(i) defines 'adulterated' food, and sub-clause (f) thereof says that food is adulterated:
'If the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.'
(4) The important words in this provision for our purpose are 'insectinfested'. It has been held by a Division Bench of this Court in Dhan Raj V. Municipal Corporation of Delhi and State 1972 F.A. C. 335 (2), that the requirements of this provision show that an article of food can properly be described as adulterated if it is 'insect-infested' as well as 'unfit for human consumption', but it does not matter if the insects are alive or dead. In the present case, the report of the Public Analyst does not disclose whether there were insects of any description in the sample examined by him. The report only discloses infestation. The word 'infestation' is usually used in connection with 'insect-infestation' and would in normal usage connote that insects were present in the sample. However, such an inference can only be raised if the report necessarily shows that insects were present in the sample. In an un-reported decision of this Court in Criminal Misc. (Main) No. 203 of 1967, Sohan Lal V. State and others, decided on 9th October, 1969, it was held by Hardy J. that the word 'infestation' did not necessarily mean 'insect-infestation' as there were also other types of infestation such as by fungus or by bacteria. This would of course not mean that the sample taken by the Food Inspector was not adulterated, as stated in the said judgment.
'CANit be said that an article which is infested with fungus and bacteria is not adulterated although it is rotten, disgusting or otherwise unfit for human consumption on account of fungus or bacterial infestation.'
(5) Thus, an article which was infested and not insect-infested, could also be held to be adulterated, if the food article 'was otherwise unfit for human consumption'. The question we have, thereforee, to determine, is whether the sample taken in the present case was 'otherwise unfit for human consumption' within the meaning of Section 2(i)(f) of the Prevention of Food Adulteration Act, 1954. For this purpose, the report but not the opinion of the Public Analyst is final, and it is for the Court to determine on the results of the analysis whether the article of food is actually unfit for human consumption. In as much as the nature of the infestation is not disclosed, it is very difficult to see whether and why the article was actually unfit for human consumption. For example, the amount of infestation is described as cent percent. This in itself is ambiguous because it can mean that the entire sample was infested, or it can mean that every single grain of the Kabli Chana Sabat was infested in some way. The real question that we are required to determine is the nature of the infestation. As in the cases of this type, all the facts have to be determined on the material placed before the Court in the report of the Public Analyst, it is manifestly important that the Court should know the exact nature of the adulteration present in the article. This is in fact a case in which the sample should have been sent to the Central Food Laboratory for ascertaining its opinion as to the contents of the sample and the nature of the infestation. This would have enabled the Court to give its decision on a proper report. It is now over six years since the sample was taken and this course cannot now be followed.
(6) It is now necessary to turn to the results of the analysis of the sample as disclosed in the Public Analyst's report Exhibit PF. It was stated therein as follows:-
'THEsample was in fit condition for analysis Date of analysis:-21-12-1966. Total ash:-3.23% Ash insoluble in HCL:-0.18% Foreign seeds:-Nil. Infestation:-100% Moisture:-7.6%.'
(7) Nothing has been said before us concerning any defect in the sample except the infestation described as 100%. It is not even disclosed as to what is meant by infestation. As already discussed above, either this infestation has to be read as infestation by insects or by fungus or by bacteria. Assuming that the Public Analyst deliberately did not refer to insects because there were no insects, this would leave infestation by either bacteria or fungus. It would be very difficult for the Court to decide whether fungus or bacteria was of such a nature as to make the sample unfit for human consumption. Prima facie, one would deduce that the sample was unfit for human consumption but there is also the possibility that the infestation was not of such a nature as to make the sample unfit for human consumption. When the Public Analyst's report is uncertain and incomprehensible it is obviously unsafe for the Court to determine that the sample was actually unfit for human consumption. It would mean that in order to reach such a conclusion some other evidence would be necessary, or some Explanationn as to the nature of the infestation, would necessarily have to be offered to the Court. In the absence of any elaboration, it is not possible to conclusively determine that the sample was unfit for human consumption. In this respect, the accused has to be given the benefit of the doubt.
(8) It is urged by Mr. Bishambar Dayal, learned counsel for the Corporation that even if the article cannot be properly found to be unfit for human consumption, it can be held that the article is adulterated because it is not of the nature of the substance or quality demanded by the purchaser within the meaning of Section 2(i)(a) of the Act. To satisfy this sub-clause, it would be necessary for the prosecution to establish what the purchaser demanded. Here the sample was taken by the Food Inspector and we do not know what he demanded. In fact, this accusation does not form part of the prosecution case, and hence there is no defense to such an allegation on record. In the final analysis, this provision of law would also be breached on account of infestation, and there is nothing on record to show the nature of the infestation. As the report of the Public Analyst is vague to the extent that it is impossible to discover the nature of the damage or infestation to the article of food of which a sample was taken, it is obviously unsafe to rest a conviction on such material. We, thereforee, give the benefit of the doubt to the respondent and dismiss this appeal against acquittal.