C.R. Thakur, J.
1. The State has filed this appeal against the dismissal order of the complaint filed by the Food Inspector and consequent acquittal of the respondent.
2. The Food Inspector, Shri K. L, Ghai, had purchased a sample of wheat from the shop of the respondent on 13th Nov. 1969 for the purpose of analysis, vide receipt Ex. PB and on being sent to the Public Analyst for analysis it was found, vide report Ex. PD, that the sample was infested with insects to the extent of 25.5%.
3. On receipt of this report the Food Inspector lodged a complaint in the Court of the Magistrate 1st Class, Jogindernagar under the provisions of Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
4. The sale was proved by the statement of Shri K. L. Ghai (PW-1) and Tej Singh (PW-2). Shri Mast Ram was also produced as PW-3, but he did not support the prosecution story in its entirety and the complainant prayed that he be declared hostile and permission be accorded for his cross-examination, but from the record it does not appear that any permission was accorded for his cross-examination. The accused admitted that he had given the sample of the wheat for the purpose of analysis. However he stated that the wheat was kept for the animals, which was to be taken to his house.
5. The learned Magistrate found the explanation of the accused to be reasonable, and he accordingly dismissing the complaint acquitted the accused.
6. In appeal without going to the other questions, the main point that is to be considered, is, whether from the report of the Public Analyst it is found that the insect infested wheat to the extent of 25.5% was fit for human consumption or not. The report is quite silent, nor the prosecution has brought on record any evidence to show that such insect infested wheat was unfit for human consumption. Therefore, it cannot be said that it was adulterated within the meaning of Section 2(1)(f) of the Prevention of Food Adulteration Act. There is a Supreme Court authority Municipal Corporation of Delhi v. Khacheroo Mal (1975) 2 F. A. C. 223, in which it has been held that:
the adjectives 'filthy', 'putrid', 'disgusting', 'decomposed', 'rotten', 'insect-infested' refer to the quality of the article and furnish indicia for presuming the article to be unfit for human consumption. But the presumption may not be conclusive in all cases irrespective of the character of the article, and the nature and extent of vice afflicting it. This is particularly so, where the article is found to be 'insect-infested'. In such a case it must be proved that the article was unfit for human consumption.
7. Therefore, what follows from the aforesaid observation of their Lordships of the Supreme Court is, that it must be proved in each case as a fact that the article was unfit for human consumption and it is for the Court to decide from the evidence whether the insect found was of such a nature as to make the article unfit for human consumption. The Court has to reach to its own findings on the material brought before it. But there is not an iota of evidence on the record to show that the sample was unfit for human consumption except that there were insects in the wheat. That being the circumstance it is no need to go into the merits of the case, which is decided purely on its legal aspect. Therefore, we find no substance in this appeal and the same is dismissed.