D.R. Khanna, J.
(1) A sample of 'saunF was taken by a Food Inspector from the shop of Bhagwan Dass Taneja on the morning of 11-11-1975. At the time, Bhagwan Dass was not there, but his brother Jeet Lal who has his own shop adjacent to that of Bhagwan Dass, was there. The sample was divided into three parts and sealed in separate bottles. One of them when sent to Public Analyst, brought the following report :
Date of Analysis -19.11.75 Insect infestation -Nil Total extraneous matter -2.47, Extraneous matter (inorganic) -0.18% Edible seeds other than fennel -Nil Insect damaged seeds -7.29% Color-No artificial colour present.
the same is adulterated due to the presence of 7.29 per cent Insect damaged seeds.'
(2) During the course of evidence before the trial colirti, Dr. S V. Pingle who was examined by the prosecution stated that insect damage up to '5/o is not taken exception to nor treated as unfit for human consumption. In fact by amendment introduced in standard of quality for 'saunf in item A.05.22, it has now been recognised from 2-10-1976 that the extent of insect damaged matter should not exceed 5/o by weight. Thus up to 5% level .of ' insect damage the 'saunf is not treated as adulterated.
(3) In the present case, however, [the insect damage percentage was found to be 7.29. The same had, thereforee, to be treated as adulterated. I am unable to lay any emphasis on the contention raised from the side of the petitioner that it had not been specified by the Public Analyst that the said percentage arrived at by weight or count. 'Saunf is not an article which is sold by count. It is also not of such size that single pieces are separately consumed. The approach in such matters has not to be divorced from realities or fanciful. Rather it is how the people and society generally purchase and consume the same. Unlike cashew nuts, which are mostly eaten in single pieces, 'Saunf is eaten or consumed by quantity only and not counts?.
(4) As regards the taking of the sample, its division into three parts and other formalities, I need not refer to them here as there is no infirmity in the concurrent findings of the two courts below that they were properly done.
(5) Significantly no insect infestation was found in the sample. Neither any insect existed nor any eggs were noticed. It has been under the circumstances sought to be urged that before the damage to the 'saunf could be treated as a result of insect bites etc. and not otherwise, it should have been shown that insects at any time existed in the 'saunf. For that uric acid test was necessary, and the same alone could bring out whether the case was actually of insect damage. I find that no question in this regard was put to Dr. S.V. Pingle, Public Analyst, who had been examined by. the prosecution. Of course, he had not himself analysed the sample but deposed after reading the report of his colleague, namely, Prem Prakash Bhatnagar. However he could still have been questioned if such test is not as a matter of course done in such analysis. Normally when a report of Public Analyst is received, it has to be assumed that the requisite tests have been carried out, unless the defense raises importance of particular test and wants to ascertain if that was carried out. One expert witness was examined by the defense also, namely, D.W. I, Dr. B.D. Narang, an Ex-Public Analyst of Haryana. He too was not put any question about uric acid test, and whether the report of insect damage could be given without it, and further whether such test is not normally carried out in the .case of 'saunf. The emphasis was more on counting of pieces of 'saunf and whether insect damage can result in rendering it unfit for human consumption. This was entirely misdirected.
(6) The 'saunf being found to be insect damaged to the extent of 7.29% Rad to be treated as adulterated. There need not have been further finding that it should have been unfit for human consumption. The position of law in this regard now stands well settled by the Supreme Court in the decision reported as Municipal Corporation of Delhi v. Tck Chand Bhatia 1979 (2) P.F.A. Cases 218. The conviction was, thereforee, well founded.
(7) The only other question which remains for consideration is the quantum of sentence. Jeet Lal, the other convict) was allowed the benefit of probation by the trial court. Bhagwan Dass, however has been sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 1500/. or in default to further rigorous imprisonment for six months. Mr. Sethi appearing from his side, has sought that he should as well be allowed probation, or at least the sentence should be converted into that to fine. It is pointed out that the sample was taken about nine years back, and the excess of insect damage was only marginal viz. 2.29/o. Damage to the extent of 5% has been now recognised as permissible as per Standard of Quality prescribed from 2-10-1976. Even prior to that as per the testimony of Dr. Pingle, margin of 5% damage was allowed before holding 'saunf as adulterated. Considering these circumstances I am inclined to convert the sentence to a fine of Rs. 4,000.00 in all and in default to rigorous imprisonment for a period of four month's.