Jagjit Singh, J.
1. Shri Shanti Prakash, who has a grocery shop at No. 91, Sammon Bazar, Jangpura Bhogal, Delhi, was tried by Miss S. Saini, Judicial Magistrate First Class, for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. On April 23, 1971, the learned trial Magistrate acquitted the accused. Against the order of acquittal the present appeal was filed, with special leave obtained under provisions of Section 417 (3) of the Code of Criminal Procedure.
2. On August 22, 1969, at about 6 p. m., Shri O. P. Khurana, a Food Inspector of the Municipal Corporation of Delhi, after observing the necessary formalities, purchased 450 grams of chilies powder from the accused-respondent, for purposes of analysis. The sample thus taken was divided into three parts and on the next day one of the parts was delivered for analysis to the Public Analyst. The Public Analyst caused that part of the sample to be analysed on September 6, 1969 and in his report (Exhibit PE) declared the result of the analysis to be as follows:
Moisture:-- 9.02% by weight
Total Ash:-- 6.39% by weight
Ash Insoluble in dilute
Hcl:-- 0.74% by weight, Non volatile ether.
extract:-- 17.30% by weight.
Crude fibre:-- 22.06% by weight.
Colour:-- No artificial colour present.
Insect Infestation:-- Highly insect infested.
Microscope examination:-- No objection Living insects were found present.' In the opinion of the Public Analyst the sample was adulterated as it was 'highly insect infested'.
3. It may be mentioned that during the trial of the case the respondent had applied for the part of the sample which was given to him by the Food Inspector to be sent for analysis to the Director, Central Food Laboratory, Calcutta, The part of the sample which the respondent produced before the trial Magistrate was, however, found to have been tampered with. The trial Magistrate, thereforee, enquired from the respondent whether he would like the part of the sample that had been retained by the Food Inspector to be sent for purposes of analysis to the Director, Central Food Laboratory, Calcutta. On that the respondent stated that he did not want the part of the sample that had been retained by the Food Inspector to be set for analysis to the Director, Central Food Laboratory. Thus under the provisions of Section 13 (5) of the Prevention of Food Adulteration Act the report of the Public Analyst continued to remain evidence of the facts stated therein.
4. In his defense the respondent had examined Dr. V. D. Narang, a Public Analyst in the State of Haryana. Dr. Narang stated that infestation is possible in agricultural food, including chilies and chilies powder. According to him there are a large number of species of insects which grow in agricultural food and the incubation period of different species of insects is different, ranging from two days to twenty-one days, depending upon the climatic conditions and the susceptibility of the insects to a particular food. He further mentioned that for certain species of insects the incubation period ranges between two days to seventeen days and in that connection referred to a Government of India Publication called 'Pests of stored grain and their control' by Dr. Pruthi and Mohan. On being cross-examined he admitted that 'chilies are not agricultural food'.
5. In acquitting the respondent the learned trial Magistrate was mainly influenced by the evidence of Dr. Narang, given as a defense witness. It was remarked that during the period which elapsed before the sample was analysed by the Public Analyst 'insect infestation might have taken place in the office of the Public Analyst'. Reliance was as well placed on a Single Bench decision of this Court in Ramesh Chand v. State (Criminal Revn. No. 335 of 1968, decided on 11-9-1970 (Delhi)). That case related to sale of adulterated Besan. The sample of Besan was taken by a Food Inspector from the shop of one Ramesh Chand on September 6, 1967 and the sample was analysed on September 13, 1967, and was found to contain insects. V. D. Misra, J., while accepting the revision against the order of conviction, made the following observations:
In the month of September, days can be more humid and rainy also. The Public Analyst has admitted that in such a situation insect infestation is quicker than in any other month. He could not say whether during the rains and days of humidity the infestation could take place within a week but he did not also definitely rule out the possibility of such infestation taking place. There is admittedly a delay of one week and thus it cannot be ruled out that some infestation might have taken place while the sample was lying in the office of the Public Analyst. Moreover, his statement, in the other abovementioned case, (Wazir Chand Wadhwa v. State 1971 Delhi LT 197, that up to 5 per cent, infestation in food is not declared as adulterated shows the necessity of finding out the percentage of infestation in the instant case. Unfortunately the Public Analyst has not given any percentage and it is possible that it may be a case of traces of infestation only which might have taken place during the seven days when sample was lying for analysis with the office of the Public Analyst.
6. The observations made by Misra. J., in the above referred to case of Ramesh Chand are to be confined to the facts of that case. As may have been noticed the report of the Public Analyst had merely mentioned presence of insects in the sample of Besan without any mention of insect infestation or its extent. The learned Judge also took into consideration the fact that the Public Analyst who had analysed that sample had admitted in an earlier case that articles of food found insect infested up to 5 per cent were not being declared as adulterated by him. It, thereforee, appears that benefit of doubt was given to Ramesh Chand by keeping in view the possibility of 'traces of infestation' having taken place during the seven days for which the sample had remained in the office of the Public Analyst before it was analysed.
7. In the present case the report of the Public Analyst showed that the sample was highly insect infested and living insects were as well present. It was not possible for the sample of chilies powder to get highly insect infested and developing living insects during the fortnight's period it remained in the Public Analyst's office in a stopped and sealed bottle before it was analysed.
8. No reliance should have been placed on the testimony of Dr. B. D. Narang as he had not analysed the sample to which the present case relates. Moreover his evidence was of a contradictory nature. In support of his assertion that there are large number of species of insects in agricultural food for which the incubation period varies from two to seventeen days or twenty-one days he referred to a publication relating to pests of stored grains. It seems to us that even though he admitted that chilies are not agricultural food yet to create confusion he stated that infestation is possible in chilies and chilies powder within a period of two days to twenty-one days.
9. It was brought to our notice that some of the Magistrates trying cases under the Prevention of Food Adulteration Act have been relying upon evidence of Dr. Narang, given as a defense witness, without caring to scrutinise the evidence on merit or without going into the question regarding the weight to be attached to his testimony, if any, in cases where admittedly the samples of food were not examined by him and he possibly could have no knowledge regarding the condition of samples either at the time these were taken or when these were analysed or the conditions under which samples were kept before analysis.
10. It is the duty of trial Courts to decide cases on merit after careful scrutiny of the evidence. While it is essential that care should be taken to see that no innocent person is convicted but at the same time it is equally important that persons whose guilt is proved beyond reasonable doubt are not let off on flimsy and untenable grounds.
11. On the facts of the case under consideration it has to be said that the presence of insect infestation and living insects in the sample had nothing to do with the fortnight's delay in analysing it. chilies powder is not such a substance that if kept in a closed container it may develop insect infestation or insects within a period of a fortnight or so.
12. It may, however, be appropriately stated that in his report the Public Analyst did not say anything about the sample being unfit for human consumption on account of insect infestation. May be most articles of food would be rendered unfit for human consumption if these are not only highly insect infested but there are also insects present in them, but still there must be some evidence in that connection. In the case of Dhan Raj v. Municipal Corporation of Delhi 1972 FAC 335 : : 8(1972)DLT180 (Delhi), it was 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 these causes or for any other cause is unfit for human consumption. In the absence of evidence it may not be safe to hold that the sample of chilies powder was unfit for human consumption merely because it was found to be insect infested and there were insects in it. The sample of chilies powder in question has, however, to be regarded as adulterated for another reason. The report of the Public Analyst mentioned that in the sample which was analysed contained ash insoluble in dilute hydrochloric acid was present to the extent of 4.74'. by weight. According to the prescribed standard of Quality, as per Item A .05 .05 .01 of Appendix B to the Prevention of Food Adulteration Rules, 1955, chilies powder should not have more than 0.5 per cent, by weight of ash insoluble in dilute hydrochloric acid. The .sample contained 0.74 per cent of ash insoluble in hydrochloric acid and thus there was excess of 0.24 per cent of ash insoluble in dilute hydrochloric acid. Due to this excess the sample was beyond doubt adulterated under Clause (1) of Section 2 (1) of the Prevention of Food Adulteration Act.
13. As the sample taken from the respondent was adulterated and he was guilty of the offence of sub of an adulterated article of food the appeal is accepted, and the order of acquittal dated April 23, 1971 is set aside and the respondent is sentenced to fine of Rs. 1, 500/- or in default of the payment of fine to imprisonment for a period of six months. The proviso to Section 16 of the Prevention of Food adulteration Act being applicable and the offence being an old one and moreover the adulteration being only on account of small excess of ash insoluble we consider that it is not necessary to impose, at this stage, substantive sentence of imprisonment. The amount of fine shall be paid 'by the respondent in the Court of the Chief Judicial Magistrate. Delhi within thirty days from the date of this order. If the fine is not paid during that period the Chief Judicial Magistrate Delhi (to whom the Registry shall send a copy of this judgment) shall issue non bailable warrants for the arrest of the respondent so that he may be taken into custody for serving the sentence in default of the payment of fine.