Punjab-Haryana High Court
Satish Kumar vs State Of Haryana on 21 March, 1989
Equivalent citations: 1989CRILJ2224
Author: M.M. Punchhi
Bench: M.M. Punchhi
ORDER M.M. Punchhi, J.
1. This is a revision petition against the judgment and order of Shri B. L. Gulati, Additional Sessions Judge, Hissar, maintaining in appeal the convictions of the petitioner under Section 16(1)(a)(i) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954, and the sentences imposed thereunder.
2. The prosecution case is that Government Food Inspector Abhey Ram accompanied by Dr. S.P. Mimani inspected the shop of general merchandise of the petitioner at Fatehabad. The petitioner was found storing for sale dal chana. The Government Food Inspector purchased 600 grams of dal chana from the petitioner in accordance with the rules. The purchased dal chana was divided into three parts. One part was sent to the Public Analyst, who opined that the dal chana was adulterated. On that basis, the petitioner was sent up for trial on two counts; firstly on the count that the sample was adulterated and secondly that he was selling the commodity without a licence. The petitioner exercising his right under Section 13(2) of the Prevention of Food Adulteration Act got sent the second sample to the Director, Central Food Laboratory. This report then became the basis of prosecution because foreign material was found in the sample. It is on that basis the petitioner was convicted and sentenced.
3. At the outset, it need be cleared that when the accused had exercised the right of having the second sample examined from the Director of the Central Food Laboratory, the certificate issued by the Director under Sub-section (2-B) of Section 13 of the Act supersedes the report given by the Public Analyst under Sub-section (1) of Section 13 of the Act. In effect it means that the adulteration as reflected in the certificate of the Director of Central Food Laboratory would be the basis of the charge. Conversely, if no adulteration is reported in the certificate issued by the Director of Central Food Laboratory, the prosecution cannot fall back upon the report of the Public Analyst.
4. Now it is to be seen whether the Director's report Ext. PK disclosed any adulteration. Following is his report:
Physical appearance : The sample was free from mould growth. The sample showed presence of 2 dead insects and 4 rodent excreta in the entire sample. Analytical data:
(1) Moisture (at 130 to 133°C for 2 hours) : 11.0% (2) Organic extraneous matter : Nil (3) Inorganic extraneous matter : Nil (4) Insect damaged matter (by count) : 0.2% (5) Damaged matter : 0.2% (6) Grains other than chana dal : Nil (7) Test for presence of artificial colouring matter : Negative Opinion : The sample showed presence of dead insects and contamination with rodent excreta as stated above.
5. Item 18.06 in appendix B of the Prevention of Food Adulteration Rules, 1955, deals with foodgrains. The certificate of the Director of Central Food Laboratory would have to be tested on the basis of the standard prescribed for foodgrains. The item reads as under:
A. 18.06 - Foodgrains meant for human consumption shall be whole or broken kernels of cereals, millets and pulses, paddy is included in foodgrains and shall have different limits for refractions wherever specified. Foodgrains meant for human consumption shall conform to the following standards:
(i) General- Foodgrains shall be free from deleterious material including artificial colouring matter. The pesticide residue, if any, shall not exceed the prescribed permissible limit. (Bajra and wheat grain shall not contain ergot affected grains more than 0.05 per cent by weight.)
(ii) Foreign matter.- Foreign matter means any extraneous matter other than foodgrains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud shall not exceed 1 per cent whereas in case of paddy, it shall not exceed 3 per cent by weight. Organic matter which includes chaff, straw, weed seeds, inedible grain, oil seeds and other non-poisonous seeds shall not exceed 3 per cent by weight.
(iii) Damaged grain.- Damaged grain means grains damaged by fungus, moisture or heating and wherein the damage is not superficial but the grain is affected internally, it shall not exceed 5 per cent by weight.
(iv) Insect damage.- The amount of weevilled grains (by count) shall not be more than 10 per cent or Uric Acid content arising as a result of insect damage shall not exceed 10 milligrammes per 100 grammes, whichever is lower.
(v) Rodent hair and excreta. - Rodent hair and excreta shall not exceed 5 pieces per Kg. of the sample.
(vi) Moisture. - The loss in weight by heating the pulverised foodgrains at 130°- 133° C for two hours shall not exceed 16 per cent.
6. Dal chana is a pulse on breaking kernels of Gram. Permissible insect damage (by count) is up to 10 per cent if the uric acid test is not applied. In the instant case, as is evident from the certificate, uric acid test was not applied by the Director of Central Food Laboratory. So the count ;test was resorted to. The certificate suggests that there were two dead ; insects seen by physical observation but the opinion finally does not say that the amount of weevilled grains (by count) was more than 10 per cent. So the certificate is deficient as to the percentage of the weevilled grains in the whole lot. Rather, on the other hand, it implies that none of the broken kernels of chana dal was insect damaged but two dead insects as foreign matter were present in the Sample. With regard to rodent hair and excreta tolerance limit is 5 pieces per Kg. of the sample. The certificate mentions that by physical appearance, the rodent excreta was four in number in a sample weighing 200 grams. But the certificate is deficient as to whether the excreta counts were whole and in one piece or were in broken pieces. The prescribed standard envisages tolerance limit of 5 whole pieces per Kg. of the sample and the word "whole" has to be read in it in the context. Otherwise, one whole piece of rodent excreta when crushed may come up to more than five pieces. Even then the report does not mention that the chana dal was unfit for human consumption. On the strength of State v. Puran Mal , it would not be safe to maintain the conviction of the petitioner when the opinion of the Director, Central Food Laboratory, is not to the effect that the sample was unfit for human consumption. Besides, it is difficult to concede that an adulterer would add insects or rodent excreta of his own to an article for profit making. Here the keen eye of the customer plays its part and sets into motion the process of taking out the said material which possibly enters on account of the storage of food articles in godowns and in gunny bags.
7. Reiterating that it is not safe to maintain the conviction of the petitioner, this petition is to be accepted and the petitioner is acquitted of the charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. Fine, if paid, be refunded to him.
8. With regard to the conviction of the petitioner under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, it is to be seen that the petitioner had in his defence produced Exhibit DA, the licence whereunder he was permitted to deal with general merchandise. The Courts below overlooked the strong defence of the petitioner in that regard. Learned Counsel appearing for the State has not been able to support the conviction of the petitioner under this count. Accordingly, the conviction of the petitioner under this count too is set aside and he is acquitted of the charge. Fine, if paid, be refunded to him.
9. Resultantly, this petition' stands accepted.