(1) This is an appeal against the judgment dated 28.9.1976 of Shri J.D. Kapoor, Metropolitan Magistrate whereby the respondent Jagdish Chander was acquitted of the charge of selling adulterated namkeen cashew-nuts fried in vanaspati.
(2) Briefly the facts are that the respondent has a shop in the Central Market, Lajpat Nagar, New Delhi. On 19th July 1975 Food Inspector Vir Bhan Sharma (Public Witness -2) visited the shop of the respondent at Central Market, Lajpat Nagar. The respondent was found to be selling bakery products and carbonated water etc. The respondent had at his shop namkeen Kaju fried in vanaspati. P.W. 2 disclosed his identity and purchased 600 gms. of kaju on payment of Rs. 18.00 as its price for the purpose of analysis. The Food Inspector divided the sample in three equal parts and sealed each part in a dry bottle. The food inspector sent one part of the sample in Public Analyst who found it to be adulterated due to the presence of 7 per cent insect damaged kaju and due to the presence of insect infestation. We may notice that six dead insects were found in the sample.
(3) On the receipt of the report of the Public Analyst the Municipal Prosecutor filed a complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act against the respondent.
(4) The learned Magistrate held that quantity of sample sent to the Public Analyst for analysis was less by 300 gms. than the quantity required to be sent to the Public Analyst under the Rules and following the decision of the Supreme Court in Rajaldas Gurunamal Pamanani v. The state of Maharashtra (1975(1) F.A.C. 1 acquitted the respondent. The learned Magistrate found that the sample was a prepared food and thereforee under Item 14 of Rule 22 of the Prevention of Food Adulteration Rules the approximate quantity required to be sent to the Public Analyst was 500 gms.
(5) Against the aforesaid order the Municipal Corporation of Delhi has come in appeal. It is not disputed that the Authority Rajaldas Gurunamal Pamanani v. The State of Maharashtra (supra) was reconsidered by a large Bench of the Supreme Court in State of Kerala etc. v. Alaserry Mohammed etc. 1978(1) F.A.C. 145 and in the said authority the Supreme Court clearly held that Rule 22 of Food Adulteration Rules in directory and not mandatory. It has to be seen in each case whether infraction of rule 22 has prevented the Public Analyst from making correct analysis of the sample.
(6) The learned counsel for the respondent contended that prejudice caused to the respondent by sending lesser quantity than the requisite quantity, in this case, is obvious. According to the counsel if the Food Inspector had sent the requisite quantity, i.e. 500 gms. the percentage of insect damaged kaju may have been reduced to less than 5 per cent by counted and in that case the sample would have conformed to the standard prescribed by Rule 48B. This seems to be a plausible argument.
(7) Mrs. Usha Kumar on behalf of the Corporation contended that the Public Analyst has erred in taking the sample to be a 'prepared food'. According to Mrs. Kumar the sample of namkeen kaju fried in vanaspati would fall under Rule 14 (23) i.e. foods (not specified) and that the quantity sent by the Food Inspector to the Public Analyst was in accordance with the Rules.
(8) Mrs. Kumar in the alternative contended that if the sample is to be taken as prepared food the purity or quality of the sample cannot be judged in reference to Rule 48B. According to Mrs. Kumar Rule 48B is applicable to cashew-nuts in its natural form and not to namkeen cashew-nuts fried in vanaspati and since the sample in question was found to be insect damaged and insect infested the sample was correctly found to be adulterded.
(9) We see no reason why Rule 48 B which lays down the standard of qualities of dry fruit and nuts would not be applicable to both cashewnuts in natural form and cashewnuts salted and fried in vanaspati. Rule 48B reads as under:
'48B.Sale of insect-damaged dry fruits and nuts. The dry fruits and nuts like raisins, currants, figs, cashewnuts, apricots, almonds may contain not more than 5 percent of insect-damaged fruits and nuts, by count.'
(10) We may add that the above Rule was added by a Notification dated 13th February 1974 and made effective from 23rd May 1974. Prior to the said Rule there was no minimum standard of quality or purity prescribed in respect of cashewnuts. We are of the view that Rule 48B would be applicable to both cashew-nuts in natural form and cashew-nuts salted and fried in vanaspati, The only serious question that requires consideration is whether namkeen cashewnuts fried in vanaspati would fall in Rule 22(14) or Rule 22(23). Section 2(v) of the Prevention of Food Adulteration Act defines 'food'. The definition of food as given in section 2(v) read as under :
'SECTION 2(v). 'Food' means any article used as food or drink for human consumption other than drugs and water and includes : (a) any article which ordinarily enters into, or is used in the duplication or preparation of human food, and (b) any flavouring matter or condiments : It is a matter of common knowledge that cashew-nuts is taken in its natural form and it would fall within the definition of food as given in Section 2(v). The question is whether after the cashew-nuts are fried in ghee and are salted, they become a 'prepared food' The word 'prepared' is defined in the Webster's New Collegiate Dictionary to mean : subjected to a special process or treatment.
(11) There are authorities on the point under discussion. In Sadanand Khanchand and another v. The State of Maharashtra 1977 Vol. 83 Criminal Law Journal p. 1341 question arose whether confectionery 'China ball' would fall in Item No. 14 or in residuary Item No. 23. The Court held that an article of confectionery comes into being only as a result of a process of preparation in which several ingredients are used, and thereforee, confectionery of the kind of 'China ball' will be included in 'prepared food' and will not fall into the residuary item No. 23.
(12) In State of Maharashtra v. Jamaluddin and others 1980 (1) F.A.C. 171 the question arose whether 'scented chatni' and 'pan masala' could be called as a processed or prepared articles of food. The Court held that 'scented chatni' and 'pan masala' could be called as processed or prepared articles of food.
(13) In Nagar Swasthya Adhikari v. M/s Laxmi and Sons 1982(1) F.A.C. 45 it was held that supari when not mixed with other articles is food ; but both 'Lal Supari' and 'Ambari Chura' contained ingredients other than pur supari and certain process is gone through in the preparation of both and thereforee held it to be 'prepared food'.
(14) The process gone through in preparing namkeen kaju is that kaju-nuts in original form are fried in ghee and then salted and spiced. Cashew-nuts on being fried also become brownish in colour. There can be doubt that in the preparation of namkeen-Kaju certain process is gone through and they contain ingredients other than pure kaju-nuts. The Public Analyst gave evidence that he had taken the sample as 'prepared food'.
(15) For the above reasons we are of the view that salted cashew-nut would fall in item 14.
(16) Mrs. Kumar contended that Rule 48B only permits 5 per cent insect damage in foods and nuts, by count and the Rule does not allow insect infestation and thereforee the sample should be declared to be adulterated. Mr. Sanghi, learned counsel for the accused contended that insects dwell inside the kernel of the nuts and they damage the nut and that it is not possible to find out the presence of the insect inside the nut without opening the nut and that rule 48B should be interpreted to mean that 5 per cent insect infestation also is permissible. We must say that Rule 48B is silent regarding insect infestation.
(17) Dr. Pingley was examined as a prosecution witness and he gave evidence that he considers the sample to be adulterated due to insect infestation and the sample being unfit for human consumption. In cross-examination the witness stated that the kajus were insect damaged to the extent of 7 per cent and six insects were also found and if the kajus were not insect damaged to the extent of 7 per cent he would not have held the sample as unfit for human consumption or adulterated merely because of the presence of six dead insects. Dr. Pingley further stated as follows :
'It is correct that the report Ex. Pe does not give the description of dead insects found in the sample. The damage in the kaju pieces is evident that the insect which had entered the kaju were breeding in it. In case of kaju the damage is caused by larvae only and not by other adult insect. This report does not disclose whether the dead insects were larvae or insects. In court-in my opinion the permissible limit of insects dead or living and irrespective of their description is 4 insects per kg. in kaju which is a processed food. The Central Committee of Food Standards has proved the permissible limit of 4 insects per kg. in processed food and 8 insects per kg. in primary food.'
In case Municipal Corporation of Delhi v. Tek Chand Bhatia 1979(2) F.A.C. 218, in para 12 their Lordships have referred to the statement of Dr. B.D. Narang given in Kacheroo Mal's case wherein Dr. Narang who was a member of the Central Committee of Food Standards had given evidence that the Committee had recommended to allow 10 per cent insect infestation as it was of the view that this much infestation should not be taken as an act of adulteration since it was not harmful to human consumption. Dr. Pingley in his statement has stated that the Central Committee of Food Standards has approved the permissible limit of 4 insects per k.g. in processed food and 8 insects per kg. in primary food.
(18) We have no evidence when the above recommendation was made by the Central Committee. Rule 48B as earlier observed is completely silent regarding the presence or non-presence of insects in kaju-nuts.
(19) On the material placed before us we are unable to hold respondent guilty for adulteration on account of presence of six dead insects in the sample.
(20) Mrs. Kumar contended that presence of dead insects in prepared food would be wholly unpermissible. Mr. Sanghi contended that insects may be inside the kernel and it was only during the process of frying that the insects may have come out and died. In our view the answer to this argument of Mrs. Kumar depends upon the interpretation to be given to Rule 48B. There is a lacuna in Rule 48B aid it will bs for the rule making authority under the Prevention of Fool Adulteration Rules to clarify whether insect infestation is permissible in cashew-nuts and if so, what extent. The rule making authority also needs to clarify Item No. 14 of Rule 22 as to what is prepare food or processed food.
(21) For the reasons stated we uphold the order of acquittal and dismiss the appeal.