R.N. Aggarwal, J.
(1) On 30th June 1973 two samples of Besan were taken from the premises of M/s. Modern Flour Mills and General Industries by Sarvshri O. P. Gupta and Balwant Singh, Food Inspectors, The samples on an examination by the Public Analyst were found to be adulterated. The sample taken by Shri O. P. Gupta, Food Inspector, was found to be adulterated with 20% of Kesri Dal and the sample taken by Balwant Singh, Food Inspector, was found to be adulterated with 10% of Kesri Dal.
(2) On the receipt of the reports of the Public Analyst a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act was filed against M/s. Modern Flour and General Industries and its partners, namely, Sarvshri Dhanpat Rai Gupta, Vinod Kumar Gupta, Surinder Kumar Gupta and Ashok Kumar. It was also discovered that M/s. Modern Floor Mills and General Industries did not possess a license for the manufacture and sale of Besan and a complaint was also filed for manufacturing and seeing Besan without license.
(3) During the trial at the instance of the accused the second part of the samples was sent for examination to the Director, Central Food Laboratory. The Director on an examination gave the report that there was no foreign organic matter in the sample taken by Shri Om Parkash Gupta, Food Inspector, and accordingly gave the opinion that the said sample was not adulterated. As regards the second sample the finding as regards the presence of Kesri Dal was trace positive (negligible). The Director on the basis of the above finding gave the opinion that the sample of Besan should not be considered as adulterated.
(4) The trial Magistrate found the firm and Surinder Kumar and Dhanpat Rai Gupta guilty of the offence under Section 7 read with Section 16 of the Food Adulteration Act and sentenced the firm to a fine of Rs. 2000.00 and the other two accused to a term of imprisonment and fine. They were also found guilty of the charge of selling Besan without a license and were sentenced to a term of imprisonment and fine (the firm was only sentenced to pay a fine). Vinod Kumar Gupta was acquitted. We may notice here that the 5th accused Ashok Kumar was discharged earlier.
(5) Against the judgment of the trial Magistrate the firm as well as Dhanpat Rai Gupta and Surinder Kumar Gupta filed appeal. The Additional Sessions Judge in view of the report of the Director, Central Food Laboratory, that the sample should not be considered as adulterated quashed the conviction of the appellants on the charge of selling adulterated Besan. The conviction and sentence of the appellants under Rule 50 was maintained but the sentence of imprisonment of three months imposed on Surinder Kumar and Dhanpat Rai was set aside and instead a sentence of fine was imposed on them.
(6) The Municipal Corporation of Delhi has come in appeal against the acquittal of the respondents on the charge of selling adulterated Besan.
(7) We have heard the learned counsel for the parties and we are of the view that the case does not call for interference. Only a negligible trace of Kesri Dal was found in the sample. The Director on the basis of his findings has given the opinion that the sample should not be considered as adulterated. The learned Additional Sessions Judge following the judgment of this court in Kailash Chand v. M.C.D., F. A. G. 739 and the provisions of Section 95 of the Indian Penal Code had held that the sample should not be treated as adulterated and acquitted the accused of the offence of adulteration.
(8) Mr. Monga, learned counsel for the Municipal Corporation of Delhi, drew our attention to Rule 44-A and contended that the sale of a mixture of Kesri Dal and Bengal gram dal was prohibited and, thereforee, the sample taken by the Food Inspector Balwant Singh was clearly adulterated and the learned Additional Sessions Judge has committed an error in acquitting the respondents of the charge of adulteration. We are of the view that in view of the finding of. the Director that only a negligible trace of Kesri Dal was found in the sample it may not be correct to lay that the sample was a mixture of Kesri Dal and Besan.
(9) On giving the matter our careful thought we are of the view that it is not a fit case for interfering with the order of acquittal. The appeal is dismissed.
(10) We may notice that Shri Lal, learned counsel for the respondents, stated at the bar that one of the respondents namely Shri Surinder Kumar Gupta has died. The counsel has produced a death certificate in support of his above assertion. The appeal as against Shri Surinder Kumar Gupta stands abated.