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Municipal Corporation of Delhi Vs. Durga Prashad - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 45 of 1978
Judge
Reported in1984(1)Crimes1049; 1984(7)DRJ339
ActsPrevention of Food Adulteration Act, 1954 - Sections 2, 7, 13 and 16
AppellantMunicipal Corporation of Delhi
RespondentDurga Prashad
Advocates: Usha Kumari,; S.P. Jain,; D.C. Mathur and;
Cases ReferredMunicipal Corporation of Delhi v. Shri Kacheroo Mal
Excerpt:
.....which is processed food is 4 insects per kg. in processed food like besan would make it unfit for human consumption, the same could not be made the basis for finding the same unfit for human consumption, and consequently this scientific consensus ought to have been incorporated in the standard prescribed for that particular item of food in the rules framed under the act, and as there was no evidence regarding the approval of the government having been extended in regard to the aforesaid scientific consensus, the said scientific consensus could not. it is quite possible that an article of food may not be attacked by insects in swarms or numbers but nevertheless has some insects therein rendering the same unfit for human consumption and such like article of food would well be covered by..........four insects per kg. in besan can cause digestive disturbance and that can render this article of food unfit for human consumption. (11) thus, the reasoning given by the learned magistrate in the impugned order does not appear to be sufficient to belie the opinion of dr. pingley and consequently the order of discharge appears to be unwarranted. (12) the learned counsel for the respondents contended that anyhow the reasoning of the learned magistrate in the impugned order was not unreasonably perverse so as to be interfered with by the high court in this revision petition and also that the order of discharge was passed by him as far back as 19-9-j977 and since then a very long period of about 6-1- years had elapsed and even if this order did not appear to the court to be correct, it.....
Judgment:

Jagdish Chandra, J.

(1) Municipal Corporation of Delhi (hereinafter to be referred to as the MCD) has filed this criminal revision petition assailing validity and correctness of the order dated 19-9-1977 passed by Shri B.N. Chaturvedi then Metropolitan Magistrate, Delhi whereby all the accused persons were discharged in the complaint filed by the M.C.D. under Sections 7/16 of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act.)

(2) On 29-7-1976 at about 2-20 P.M. Food Inspector M.L. Sharma of M.C.D. lifted a sample of besan measuring 600 grams for analysis on payment of Rs. 1-08 P. from the shop carrying on business under the name and style of M/s. Durga Prashad Pawan Kumar in shop No : 3, old Market, Tilak Nagar, New Delhi Durga Prashad, Kalu Ram and Mai Ram accused persons are the partners of the aforesaid firm. This purchase of besan was made from Durga Prashad. After necessary formalities the food Inspector divided the purchased besan into three equal parts by approximation and then filled each part in three dry and clean bottles and sealed the same. A counter-part of the sample was delivered by the Food Inspector to the Public Analyst in a sealed packet on 30-7-1976. On receipt of the report Ext. PE. of the Public Analyst that the sample of besan was adulterated the Food Inspector recommended the prosecution of the accused persons viz. firm M/s. Durga Prashad Pawan Kumar and its partners Durga Prashad, Kalu Ram and Mai Ram whereupon complainant under Section 7/16 of the Act was filed by R.N. Gujral, Assistant Municipal Prosecutor of M.C.D. after obtaining the necessary consent from the Director of Health Services Delhi Administration.

(3) In his report Est. Pe the Public Analyst Prem Parkash Bhatnagar found three living insects per 100 gms. in the sample and there from opined that the sample was adulterated-

(4) Municipal Corporation of Delhi examined, inter alia, in the waitress-box Dr. S.V. Pingley as Public Witness 2 who gave his opinion as under :

'I have seen the report Ex. Pe of the public analyst and am of the opinion that the sample in question is unfit for human consumption and adulterated due to presence of three living insects in. 200 gms. of sample. According to scientific consensus number of insects tolerable in food like besan which is processed food is 4 insects per kg. Insects present in excess of this number when cooked with food can cause digestive disturbance and 'chitin' a hard substance of insect-body when cooked can be carcirtogenus. i.e. cause of cancer.'.

(5) The learned magistrate, while dealing with the aforesaid opinion and testimony of Dr. Pingley was of the view that unless the present law per raining to the prevention of food adulteration was amended in view of the scientific consensus according to which excess in number of insects beyond the tolerable limit of four per kg. in processed food like besan would make it unfit for human consumption, the same could not be made the basis for finding the same unfit for human consumption, and consequently this scientific consensus ought to have been incorporated in the standard prescribed for that particular item of food in the rules framed under the act, and as there was no evidence regarding the approval of the Government having been extended in regard to the aforesaid scientific consensus, the said scientific consensus could not. be safely enforced. This reasoning of the learned magistrate does not appear to be sound. Under Section 2(ia)(f) of the Act, 'an article of food shall be deemed to be adulterated if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or, vegetable substance or is insect-infested or is otherwise unfit for human consumption.' The Supreme Court in the case reported as Municipal Corporation of Delhi v. Tek ChandBhatia 1979 (11) Fac 218 held as follows :

'ON the plain language of the definition, it is quite apparent that the words or is otherwise unfit for human consumption are disjunctive of the rest of the words preceding them. It relates to a distinct and separate class altogether. It seems to us that the last clause or is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being filthy, putrid, rotten, decomposed ............. or insect-infested Would be per se sufficient to bring the case within the purview of the words 'adulterated' as defined in Sub-clause (f ) and it would not be necessary in such a case to prove further hat the article of food was unfit for human consumption.'

(6) The expression 'insect-infested' has not been defined in the Act and as per the Supreme Court Authority reported as Municipal Corporation of Delhi v. Shri Kacheroo Mal 1975 (2) Fac 223, an article of food would be insect-infested 'if it has been attacked by insects in large swarms or numbers'.

(7) THUS. in view of the aforesaid observations of these two Supreme Court authorities an insect-infested article of food attacked by insects in {A} swarms or numbers would per se be deemed to be 'adulterated' as defined in Sub-clause (f) of Section 2(ia) of the Act and there would be no necessity of proving further that the same was unfit for human consumption. It is quite possible that an article of food may not be attacked by insects in swarms or numbers but nevertheless has some insects therein rendering the same unfit for human consumption and such like article of food would well be covered by the phrase 'otherwise unfit for human consumption' used in Section 2(ia) if of the Act in which case it would be necessary to prove further the article of food containing some insects as unfit for human consumption. In the case in hand the sample of besan as per the opinion of the Public Analyst was found to contain three living insects per 100 gms.or in other words 30% per kg. and it was the opinion of Dr. S.V. Pingley who as per his testimony, is a Phd. in agriculture and has experience of about. 30/33 years in the field of food inspection and insect control and is also a number of central committee for food Standards that the sample in question is unfit for human consumption and thus adulterated. His opinion on this point is per se legal evidence. The same is also the legal position regarding the report of the public analyst including his opinion. The Supreme Court in the case of Kacheroo Mal (Supra) observed as follows on this point : 'A Public Analyst is support to be specially skilled in the science of dietetics. As an expert in the science, he is competent to opine and testify about this fact. The report of the Public Analyst, including his opinion on this point, is per se evidence by virtue of Section 13 of the act. But this does not mean that his ipse dixit would be conclusive and binding on the court. To treat it so would be to leave the determination of the guilt of the accused to the whims and fancies of the public Analysts. The act would not countenance such abdication of its judicial function by the court, leaving the case as it were to be tried by the Analyst. It is for the court to weigh his opinion and reach its own finding.'

(8) The case of besan there is no statutory provision prescribing a minimum standard of purity with reference to the vice of the presence of insect and so it would be for the Judge of fact to decide upon the evidence in the case whether presence of insects in the sample is of such a nature and extent so as to make it unfit for human consumption. The scientific consensus deposed to by Dr. Pingley tends to show unmistakably the high preponderance of the opinion given by him in this case and to understand or appreciate the utility of this opinion it was not necessary or obligatory upon the State to insert the same in the Rules framed under the Act regarding the standard of purity. The opinion of Dr. Pingley based on scientific consensus may not be conclusive but is highly probable and could be shaken by the testimony of some other expert of this field or by an authoritative judicial pronouncement and in this view of the matter the error is obviously visible in the impugned order of the learned magistrate on this point.

(9) The opinion of Dr. Pingley that insect-presence in excess of four insects per kg. in processed food like besan, when taken as an article of food, can cause digestive disturbance shows an element in the matter of unfitness thereof for human consumption

(10) The further opinion of Dr. Pingley that 'chitin' a hard substance of insect-body when consumed can be the cause of cancer appears to be in the context of the insect-presence in excess of four insects per kg. in view of the oneness of the sentence in which opinion regarding 'chitin' has been given by him as would be seen from his opinion already reproduced above and in this view of the matter the observation of the learned magistrate that Dr. Pingley had not particularly testified that 'chitin' of three insects if consumed with the food article is likely to cause cancer, does not appear to be sound. Even if this observation of the learned magistrate be taken to be correct, there still remains the expert evidence of Dr. Pingley to the effect that the presence of insect beyond the tolerable limit of four insects per kg. in besan can cause digestive disturbance and that can render this article of food unfit for human consumption.

(11) Thus, the reasoning given by the learned magistrate in the impugned order does not appear to be sufficient to belie the opinion of Dr. Pingley and consequently the order of discharge appears to be unwarranted.

(12) The learned counsel for the respondents contended that anyhow the reasoning of the learned magistrate in the impugned order was not unreasonably perverse so as to be interfered with by the High Court in this revision petition and also that the order of discharge was passed by him as far back as 19-9-J977 and since then a very long period of about 6-1- years had elapsed and even if this order did not appear to the court to be correct, it would not promote the cause of justice to order the framing of charge in this case and to try the respondents. These contentions cannot be accepted for the reason that the material evident involved in this case is not the evidence of ordinary witnesses which could be reasonably appraised by the trial court in one way or the other, but on the other hand the opinion of an expert was sought to be dislodged by the learned magistrate in a manner not at all warranted. Even the lapse of a period of more than 6' years after the passing of the impugned order should not be allowed to stand in the way of the framing of the charge against the accused persons and their trial. The authority State of Karnataka v.L.Muniswamy and others, : 1977CriLJ1125 relied upon by the learned counsel for the respondents is hardly of any help to them in this case. This authority has held as under:

'IT is clear from Section 227 of the new code that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record its reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceedings against the accused. The High Court thereforee is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. In the exercise of the wholesome power under Section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed...............

For the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider-discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.' So, in view of the facts and circumstances of this case this authority rather goes against the respondents.

(13) The learned counsel for the respondents also contended that Durga Prashad, Kalu Ram and Mai Ram were which shop the sample in question was lifted by the Food Inspector M.L. Sharma (Public Witness 3) who in his cross-examination stated that he did not on any of the documents at the time of sampling that all the three partners were present and were doing business, and for that reason the provision of law contained in Section 17 of the Act was not attracted in regard to respondents Kalu Ram and Mai Ram inasmuch as it could not be said that at the time the alleged offence was committed, they were in charge of and were responsible to the firm for the conduct of the business of the firm, when there was no nomination in favor of any particular partner to be in charge of and responsible to the firm for the conduct of the business of the firm. In his examination-in-chief this very Food Inspector had stated that when he went to the aforesaid shop on 29-7-1976 he found accused Durga Prashad, Kalu Ram and Mai Ram doing business at the said shop and after disclosing his identity he purchased first a sample of avowing and then the sample in question of besan from accused Durga Prashad. It is not for this court to record any finding on this question in this revision petition when there is no finding thereupon in the impugned order recorded' by the learned magistrate and it is initially for the learned magistrate to record a finding on this question especially when this revision petition has been filed by the M.C.D. against the order of discharge.

(14) In view of the above discussion, the revision succeeds and the impugned order dated 19-9-1977 is set aside and the learned trial court shall proceed with the case in accordance with law.


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