Delhi High Court
M.C.D. vs Ram Sarup on 4 September, 1972
Equivalent citations: ILR1973DELHI72
JUDGMENT Avadh Behari, J.
(1) This is an appeal against the order of the Additional Session Judge dated February, 24, 1972. Ram Sarup, respondent, was prosecuted for the alleged offence under Section 7 read with Section 16 of the Prevetioa of Food Ad ulteration Act. On October, 3, 1970, the Food Inspector Shri M. L. Chawla went to his shop and purchased a quantity of Besan. On one of the samples being sent to the Public Analyst Shri Prem Prakash Bhatnagar, it was analysed on October 6, 1970. The public Analyst made his report that the sample of Besan was "very highly insect infested" and was, therefore, adulterated. The relevant portion of his report is as follows - "Ifurther certify that I have caused to be analysed the afore-mentioned sample, and declare the result of the analysis to be as follows:- Date of Analysis : 6-10-1970. Total Ash: 2 .55% Ash insoluble in dil Hcl : 0-05%. Microscopic : No Objection. Insect Infestation : Very highly insect infested. Colour : No artificial colour present and am of the opinion that the same is adulterated due to the presence of highly insect infestation".
(2) The trial Magistrate found the respondent guilty and sentenced him to undergo R. 1. for six months and to pay a fine of Rs. 1,000.00 or in default of payment of fine to a further R. 1. for three months.
(3) The respondent preferred an appeal to the Sessions Court. The learned Additional Sessions Judge accepted the appeal, set aside the conviction and acquitted the respondent. Against the order of acquittal the Municipal Corporation obtained special leave on May 25, 1972 and this appeal has come up by special leave.
(4) The standard of quality for besan is prescribed under appendix 3 of the Prevention of Food Adulteration Rules, 1955 at item A 18-04 as follows:- "BESANmsans the product obtained by grinding dehusked Bengal gram (Cicer aritinum and shall not contain any added coloring matter or any other foreign ingredient. Besan shall conform to the following standards: (a) Total ash ......... Not more than 5 per cent. (b) Ash insoluble in Hcl ......... Not more than 0-5 per cent."
(5) The learned counsel for the appellant has submitted that according to the standard laid down, Besan shall not contain any foreign ingredient. According to the report of the Public Analyst Besan was found insect infested and this proved, according to the counsel, that there were foreign ingredients in Besan. It was also submitted that the learned A Sessions Judge followed the case of Khucheroo Mall vs. State. 1971 Delhi Law Times 138(1), while a Division Bench of this court in Dlianraj v. M. C. D. (1972 F. A. C. 335)(2) has taken a different view and, therefore, the judgment of the learned Additional Sessions Judge cannot be sustained in view of the pronouncement of the Division Bench.
(6) Shri Prem Prakash Bhatnagar was examined as a prosecution witness. In his statement recorded on June, 26, 1971 he proved his report and deposed as follows :- "I have used the word 'very highly infested' in report Ex. Pe because there must have been dead or living insects in the instant sample in great number. By insect infestation in Besan I mean the presence of live or dead insects."
(7) When asked by the defense counsel as to what prevented him from making a mention of dead or living insects in the report Ex. Pe, he stated : "IN my view the word 'infestation' in iteself implies that dead or living insects are present as such I had not felt the necessity of mentioning it."
(8) This witness was confronted with his statement which he had made earlier in the court of Miss. S. Saini, Judicial Magistrate, First Class, Delhi in another case ; M. C. D. v. BalKishan (Case No. 178/3)0) which was recorded on February, 19, 1971. In that statement he had stated that where he found living or dead insects present in the sample he mentioned the same in his report and where he did not find the same, he did not mention it. His answer was that for detection of insect infestation the approach varied from article to article depending mainly as to whether the article was whole or grounded. In the court of Miss S. Saini, the witness had made the statement with regard to the sample of Ambchur pieces.
(9) Prem Prakash Bhatnagar was again examined as a witness for the defense on November 9, 1971. At that time he was confronted with his statement given in the court of Shri J. D. Jain, Additional Sessions Judge, Delhi in Criminal Appeal No. 70 of 1969 (Ghanshyam Doss v. State .) In that statement the witness had stated : "THEsample in question was analysed under my supervision. There were white living insects in the sample 'besan'. Generally speaking we analyze food articles samples which are likely to get insect infested, within 2 days. The chances of contamination in the case of besan sample are not there within 2 days, although the analysis should be done within one day of its receipt. There must be at least 9 or 10 insects living in the whole of the sample before we declare it insect infested."
(10) In cross-examination, the witness stated: "BYthe term 'white living insects' used in the report Ex. Pe we mean fully grown insects and not larva".
And further: "Afully grown larva would be considered bymean insect as it is virtually an insect. However, if there are small larvas numbering 9 or 10 in the sample, I would not characterise it as insect infested. There are hundreds of varieties of white insects, but only a few varieties of white insects are found in food stuffs like besan and wheat flour".
(11) On the basis of the above statement of "the witness and his previous statements in two other courts, the learned counsel for the respondent, has submitted that the report of the Public Analyst cannot be relied upon mainly for two reasons. Firstly, it was argued that the sample was analysed after 72 hours while the witness has stated that the incubation period in cases of such articles of food as Besan etc. varies from 2 to 17 days. According to the learned counsel the sample should have been analysed either on the day the sample was taken or on the following day. We do not agree with this submission, for as was stated by the Public Analyst that if the sample was free from insects on October 3, 1970 then there was no possibility of insects developing during the period between October 3, and October 6. Secondly, it was argued that the report of the Public Analyst is vague as it lacks in material particulars. It was submitted that the words "very highly insect infested" are relative words and the report should have stated specifically and with scientific precision the foreign ingredient and whether living or dead insects or larva or eggs were found in the article. The second argument appears to. have considerable force.
(12) The Pubic Analyst in his earlier reports had adopted different and varying standards. On a reading of his evidence and his reports we are of the opinion that the respondent cannot bs convicted on the basis of the report made by the Public Analyst in this case. The report has been made by Section 13 of the Prevention of Food Adulteration Act evidence in the case. It should, therefore, correctly state his findings as regards the foreign ingredient for it is the court not the analyst who is the ultimate Judge of the question whether an article is adulterated or not. Where the report is to be put in as evidence the analyst should state enough to enable not only the court but also the accused to see exactly what the offence is with which the accused is being charged. No person ought to be put in peril of 'punishment on such a written report which fails to furnish the full particulars of the adulteration.
(13) It will be noticed that the Public Analyst in his statement in the court of Miss S. Saini, Judicial Magistrate, First Class, Delhi stated that where he found living or dead insects present in the sample, he mentioned the same in his report and where he did not find the same he did not mention it. In the court of Shri J. D. Jain, Additional Sessions Judge, Delhi, this witness stated that white living insects were present in the sample of B;san with which he was concerned at that time. It was also his view then that there must bs at lsast 9 or 10 in sects living in the whole of the sample before he declared it insect in- fested. In cross-examination, the witness stated that a fully grown larva is virtually an insect, but if there are small larvas numbering 9 or 10 in the sample then the article was not insect infested.
(14) In the case of Wazir Chand Wadhwa v. State, 1971 Delhi Law Times 197^) Shri Bhatnagar had stated in his statement without giving any reasons that if no living insects were found present but the food grains were found damaged then his report would be that the food grains were insect damaged, but if the living insects Were present and the food-grains were also found to be damaged his report would show the article to be insect infested. (See in this connection Dhanraj v. M. C.D. (1972) Prevention of Food Adulteration Cases 335 (341) (2). In the present case the Public Analyst states in his evidence that there must have been dead or living insects in the sample of B;san in great number and this is why he has used the word "very highly infested". It cannot, therefore, be said with any certainty as to when v/ill this witness regard an article as "very highly insect infested". The weakness of the report of the Public Analyst is that it does not supply the data on which a correct conclusion can be reached by the court.
(15) In Halsbury's Laws of England, Third Edition, Volume 17, paragraph 871, the law relating to the form of analyst's certificate has been summarised as follows :- "THEanalyst should be careful to keep to the prescribed form, and to state the result of his cxaminat'on. If there is adulteration in any degree he should not indulge in vague generalities nor content himself with merely expressing his opinion. In such a case he should set out his findings with such clearness that the justices may be able, upon the data he gives, to form their own opinion as to whether the article was or was not adulterated."
(16) In Newby v. Sims (1894) Q. B. 478, where a certificate, "I find the sample contains an excess of water over and above what is allowed by Act of Parliament ; I estimate the excess of water at 13 per cent of the entire sample, I am of opinion that the said sample is not a sample of genuine rum", was held to be had for, vagueness. It ought to have stated the total amount of water found in the sample. In Lee v. Bunt. Barlow v. Noblett, (1901) 2. K. B.290,atp.292 the certificates stated respectively "We are of opinion that the said sample contains arsenic and "We are of opinion that the said sample contains a serious quantity of arsenic". Both were held to be insufficient. In Fortune v. Hanson. (1896) 1. Q. B. 202, D. C. acertificate "I am of opinion that the said sample contained the percentage of foreign ingredients as under : 5 per cent of added water to the prejudice of the purchaser" was held to be bad. It was observed : "THEcertificate must state such facts as would enable the justices themselves to come to a conclusion whether the article of food in question had or had not been adulterated."
(17) In our opinion, the report of the Public Analyst suffers from vagueness and conviction cannot be based on such a report. We, therefore, affirm the decision of the learned Additional Sessions Judge, though for different reasons. In the result, the appeal is dismissed.