U.L. Bhat, J.
1. The State is aggrieved by the judgment of acquittal of the judicial Magistrate of the First Class, Changanacherry in. S. T. No. 58 of 1978 wherein the present respondent was charged under Section 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) read with Section 7(1)(n) and Item A.05.09 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (for short the Rules).
2. P. W. 1, the Food Inspector Changanacherry Circle laid the complaint against the respondent under the above provisions o the Act and Rules alleging that on 6-12-1977 at about 1.30 p.m. he went to the provision shop belonging to the respondent near Pathanad junction of Kangazha Panchayat and after satisfying the formalities required by law, purchased a sample of cumin seeds from the respondent and dealt with the sample in accordance with the provisions of law. One of the samples sent to the Public Analyst brought forth the report, Ext. P-5, in which the Public Analyst stated that the sample does not conform to the standards prescribed for cumin seeds. After observing further formalities, required, complaint was filed,
3. The respondent pleaded not guilty before the trial court. The prosecution examined five witnesses and marked Exs. P-l to P-7. The defence did not tender any evidence, The trial court held that the Public Analyst's report does not really show that the sample does not conform to the standard prescribed for cumin seeds in the Rules and that, in any event, cumin seeds being primary food and there being no evidence that the respondent was responsible for the addition of extraneous seeds, acquitted him. The acquittal is now challenged,
4. Article A.05.09 of Appendix B of the Rules states thus:
Cumin (Safed Jeera) whole means the dried seeds of Cuminum Cyminum (L), The proportion of extraneous matter including dust, stones, lumps of earth, chaff, stalk, stem or straw shall not exceed 7.0 per cent by weight. The proportion of edible seeds other than cumin seeds shall not exceed 5.0 per cent by weight.
5. The report of the Public Analyst shows that the sample contains 77.7% by weight of cumin seeds, 1.8% by weight of extraneous matter including dust, stones, lumps of earth, chaff, stem or straw and 20.5% by weight of seeds other than cumin seeds. The Public Analyst has further reported that the sample does not conform to the standards prescribed for cumin seed and is therefore adulterated.
6. As per the standards prescribed in the Rules, portion of edible seeds other than cumin seeds shall not exceed 5% by weight. The Public Analyst has not specifically mentioned in his report regarding the percentage by weight of edible seeds other than cumin seeds. He has given percentage by weight of 'seeds other than cumin seeds,' It may be that portion covered by 20.5% by weight consists entirely of edible seeds or entirely of non-edible seeds or a mixture of both. It is true that the Public Analyst could have given a better report. If the trial Magistrate so thought he could have summoned the Public Analyst to give better particulars. It was open to the defence also to make such a move. But I do not think this could be a ground ot acquittal, since no prejudice is caused to the accused and the report contains adequate material.
7. Besides the 5% allowance for edible seeds, the Rules permit up to 7% extraneous matter including dust, etc. Non-edible seeds can be taken to be such extraneous matter. If that be so, the percentage of extraneous matter including non-edible seeds cannot exceed 7% by weight. If we add the percentage of permitted edible seeds to this, the total permitted allowance on the two counts is only 12%. In the sample the total percentage of extraneous matter together with seeds other than cumin seeds is 22.3%. There can be no doubt that the sample does not conform to the standards prescribed by the Rules. The learned Magistrate was in error in coming to a contrary conclusion.
8. The ground of acquittal is on the basis that cumin seed is primary food and prosecution has not shown that the respondent has deliberately added any extraneous matter to the seeds. In the words of the learned Magistrate:
It is not. in evidence as to whether the presence of those seeds in the sample was due to natural causes beyond the control of human agency, in which case, the proviso to Section 2(ia)(m) comes to the rescue of the accused. There is also no evidence to prove the fact that the seeds other than cumin seeds, was found in the sample on account of any malpractice played by the accused. In the absence of proof on that point I find myself unable to enter a conviction on the accused. Neither from the testimony of P. W. 1, the Food Inspector nor from the testimony of the other witness examined by the prosecution, the fact that it was the accused, who was responsible for the addition of these extraneous seeds is made out.
A reading of the above passage would show that the learned Magistrate proceeded on the basis that the burden of proof in this particular matter rests on the prosecution.
9. The proviso to Section 2(ia)(m) reads thus:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.
10. It is the duty of the prosecution to show that an article is adulterated as defined in any of the sub-clauses of Section 2(ia) of the Prevention of Food Adulteration Act, If the prosecution succeeds in showing that an article is adulterated as contemplated in Sub-clause (m) of Section 2(ia) of the Act, nevertheless the article cannot be deemed to be adulterated if the circumstances contemplated in the proviso are established. The prosecution cannot be expected to prove that the fall in the standards is not due to natural causes or beyond the control of human agency. It is for the accused who has been dealing with the article in question to adduce proof or rely on other material to show that the fall in standards is solely due to natural causes and beyond the control of human agency. In this regard, no part of the burden of proof rests on the prosecution and the entire burden rests on the defendant. The learned Magistrate appeared to have erroneously proceeded on the basis that the burden of establishing the applicability of the proviso to Section 2(ia)(m) of the Act in any given case rests on the prosecution. The proviso is in the nature of an exception to Clause (m) of Section 2(ia) of the Act; it is for the defence to establish the exception. The wrong view on burden of proof has coloured learned Magistrate's approach to the facts and evidence and led to the judgment of acquittal, A reading of the passage from the judgment extracted above would show that had the learned Magistrate applied the burden of proof correctly he would not have come to the conclusion as quoted above, since respondent has not discharged the burden resting on him. Therefore the acquital cannot stand.
11. The learned Counsel for the respondent submitted before me that even otherwise the prosecution cannot succeed or. account of violation of the provisions of Sections 10(7), 11(1)(a) and 10(2) of the Act. He also contended that he may be given an opportunity to adduce proof so as to attract application of the proviso to Section 2(ia)(m) of the Act and in regard to defence under Section 19(2) of the Act I find the request fair and just. The case has to go back for fresh disposal on the basis of prosecution evidence already on record and such evidence as the defence may choose to adduce on remand. I direct the trial Magistrate to give an opportunity to the respondent to adduce such evidence as he may desire.
12. In the result the acquittal recorded by the trial court is set aside. The case is remanded to the trial court for fresh disposal after giving an opportunity to the respondent to adduce evidence. The Criminal Appeal is allowed in this manner.