Delhi District Court
Pawan Kumar vs The State( Delhi Administration ) on 15 October, 2009
1
IN THE COURT OF SHRI S.K.SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
NEW DELHI
Criminal Appeal No. 237/1994
Pawan Kumar
son of Sh Kapur Chand
Prop. M/s. Kapoor Chand Mahavir Parsad
4244, Ansari Road, Darya Ganj, Delhi ........... Appellant
Versus
The State( Delhi Administration ) ..........Respondent
Date of Institution 28.05.1994
Date when arguments
were heard 9.10.09
Date of order 15.10.2009
JUDGMENT
This appeal is directed against the judgment dated 25/4/1994 passed by learned Metropolitan Magistrate, New Delhi by which appellant was convicted under section 2(ia) (f) punishable under section 16(1)/7 of Prevention of Food Adulteration Act ( in short PFA Act ). By subsequent order passed on sentence on 26.4.94 the appellant was sentenced to 2 undergo rigorous imprisonment for a period of one year and to pay fine of Rs 3000/. In default of payment of fine the appellant was directed to undergo simple imprisonment for a period of six months. Aggrieved by the said impugned judgment and order on sentence of the learned Metropolitan Magistrate the appellant have preferred this appeal. BRIEF FACTS The case of the prosecution, in brief, is that on 23/01/90 at about 3.00 pm Food Inspector Gian Chand purchased sample of Lal Mirch Kuti at M/s. Kapoor Chand Mahavir Parsad, 4244/2, Ansari Road, Darya Ganj, New Delhi where it was stored for sale in a metalic tin having no label declaration. Food Inspector took the sample after proper mixing with a kadchi already lying in the tin. He then divided the sample then and there into three equal parts by putting in separate clean and dry bottles which were separately packed, fastened, marked and sealed according to the Act Food Inspector gave a notice to the appellant and also paid him the price of the sampled commodity. Food Inspector also prepared punchnama at the spot. All these documents were signed by the appellant. Since none from the public could be joined despite efforts, he associated another Food Inspector M K Gupta to be a witness of the sample proceedings. One counter part of the sample was got analysed from the Public Analyst where 3 as the remaining two counter parts were deposited with the Local Health Authority in intact condition. Public Analyst found the sample to be adulterated. The appellant being vendor cum proprietor of the said shop allegedly violated the provision of section 2(ia) (a) (b) (f) (h) (1) (m). CHARGE AND PLEA OF APPELLANT Charge under section 2 (ia) (a) (b) and (f) punishable under Sec 7/16 of PFA Act was framed against the appellant by learned trial court vide order dated 05/12/91 to which appellant pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case the prosecution has examined three witnesses in all. PW1 Sh. K G Rao, Local Health Authority, PW2 Sh. Gian Chand, Food Inspector, PW3 Sh M K Gupta, Food Inspector. Thereafter it closed its evidence.
PLEA AND DEFENCE OF THE APPELLANT In his statement under section 313 Cr. P.C. the appellant has denied the prosecution case in toto. He has stated that it is a false case against him and he is innocent. Appellant stated that his signatures were obtained 4 under threat and duress of arrest. Appellant states that consent given by the Director is without application of mind. Appellant further stated that sample was improperly taken and was not properly sealed, fastened and wrapped.
ARGUMENTS AND FINDINGS I have heard the learned counsel for appellant, learned Special Public Prosecutor for respondent and have gone through the trial court record and relevant provisions of law, carefully. I have also gone through the written arguments filed on behalf of the appellant.
The contention on behalf of the appellant is that the Public Analyst has given the report Ex. PW1/E with regard to the sample of red chili powder taken on 23.1.90 received in his office on the next date ie 24.1.90 and he has given report dated 31.1.90 stating that the living or dead insects were found in the sample sent for analysis. The contention is that the Food Inspector while taking the sample of red chili powder has neither disclosed in the documents prepared at the spot, viz. Ex. PW1/A to Ex. PW1/C nor the respondent/complainant's witnesses have stated in their statements that there were insects in the sample collected by them, so the inference is that at the time of taking sample there was no living or dead 5 insects in it or otherwise Food Inspector must have disclosed this fact in the documents prepared at the spot or statements made before the court. The second inference is that the correct/true sample was not sent for analysis by Public Analyst.
The contention on behalf of the respondent/State is that there was no need for Food Inspector to mention in the report that living or dead insects were found in the sample it was for Public Analyst to give appropriate report.
I find tremendous force in the arguments of learned counsel for appellant. There is case law which supports the contention of learned counsel for appellant.
In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), it was observed as follows:
"2 It is not a fit case in which we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere 6 presence of the insects in sample will not render the same adulterated. The Standard of Saunf has been prescribed in Rule A. 05.11, Appendix B of the prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he has not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed."
In A.P. Goel and another v. The State of (Delhi Admn.) 2001 (1) FAC 168 (Del), it was observed as follows:
"6. Having heard learned counsel for the petitioner as also the learned counsel for the State, I am of the opinion that the case in hand is covered by the Judgment of this Court in MCD v. Ved Parkash (supra) and, therefore, the learned 7 Additional Sessions Judge was not correct in interfering in the matter in revisional jurisdiction. The sample having been sealed on 21.1.1986 by PW-3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample. The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986."
In Shri Raghbir Sharan v. State 1972 FAC 389 (Del), it was observed as follows:
"5. The evidence of these witnesses has not been challenged and these witnesses are Public Analysts. There is not reason to doubt there testimony. According to the evidence of these witnesses, it is possible to for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within the period of three days. In the present case even according to the evidence of 8 the Food Inspector, P.W. 2, no insects were present when purchased the sample of basen from the petitioner on 29-6-1968 and that, as a matter of fact, he had not purchased the sample because of suspicion that it was insect-infested. The Public Analyst in his report has merely stated that the sample was insect-infested (living insects), but has not given the percentage of insect-infestation. It is, therefore, possible that insect-infestation found by the Public Analyst was not present in the sample when it was taken on 29-6-1968. It cannot, therefore, be said the sample of basen purchased by the Food Inspector from the petitioner on 29-6-1968 was adulterated. Accordingly to the report of the Public Analyst, the said sample was not adulterated in other respects. The additional evidence adduced by the petitioner would entitle him to an acquittal."
In Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB), it was observed as follows :
"7. The learned counsel for the respondents placing strong reliance on a decision of Allahabad High Court in Radheylal Gupta v. State and 9 another, 1979 (II) FAC 91, strenuously contends that October being a rainy season and the sample having been analysed on the third day, the probability of the insects having grown during that period could not be ruled out. That being so, he submits that in the facts and circumstances of the instant case, it could not be said with any degree of certainty that the sample was infested on 1st October, 1973, the date when it was taken, especially when even the Food Inspector J.S. Chadha admits that he did not see any insects with the naked eye. The learned counsel vehemently submits that at best according to the prosecution case at the time the sample was taken, eggs could be said to be present in the Atta and not insects as according to the testimony of Dr. Pingley the incubation period for eggs is 4 to 7 days. That being so, because of the eggs found in the Atta purchased by the Food Inspector from the respondents, the Atta could not be said to be insect-infested and hence adulterated. There appears to be merit in the submission sought to be urged on behalf of the respondents... .... .."
In Municipal Corporation of Delhi v. Shri Ramji Dass and 10 another 1983 (II) FAC 20 (Del) (DB), it was observed as follows:
"8... ... ... ..The article of food was taken on 12th September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is possible that the living insects may have developed in the sample in question after the sample was taken. P. W. 4 gave evidence that the sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or 3. The expression "insect infested" would mean a swarm of insects or at least a large number of insects. The Food Inspector may have from the presence of few insects concluded that the article of food was insect infested. See M.C.D. v. Bhawanl Shankar, 1975 (I) FAC 251 and Raghbir Sharan v. State, 1972 FAC 389."11
In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), it was observed as follows:
"8... ... ..Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which the sample was analysed in the laboratory, on a consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the 12 accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 10-3-1980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge against the petitioner has to fail."
In State (Delhi Admn.) v. Inderjit Singh and another 2005 (1) FAC 161 (Del), it was observed as follows :
" 3. On evaluation of the evidence on record, the learned Magistrate returned a finding that the report of the Director, CFSL shows living insects found in the sample meaning that the sample 13 was not properly sealed and on this account has acquitted and accused. Counsel for the State has not been able to show me as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act. He is also not been able to show me as to what is the infirmity in the judgment under challenging. That being the case, I find no reason to interfere with the well-
reasoned judgment of the trial court. Crl. A. 58/1986 is accordingly dismissed."
The fact that Food Inspector has not seen or noted insect in the food article in question at the time of taking sample shows insects living or dead were not present in the food article at that time. The eggs of the insects may be present in it which germinated and produced insects before analysis of Public Analyst or Director CFL. The question is whether in such a situation can the article of food of which the sample was lifted by the Food Inspector should be taken to be insects infested or adulterated. The answer to this question lies in the authority of Division Bench of our Hon'ble High Court In Mohinder Pershad v. State 1972 FAC 474 (Del) (DB), it was observed as follows:
14
"9.The dictionary meaning of the word 'insect' is a small invertebrate animal with six legs usually having a segmented body and two or four wings.
In eggs is a spheroidal body formed in the ovary of a female bird or insect containing the germ of a new individual of the spacie. Evidently the egg of an insect is not the same thing as the insect itself though such an egg may in due course of time cause an insect to come into existence. Mere presence of eggs of insects in an article cannot, therefore, make the article of food "insect-- infested"."
See also Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB).
The next arguments on behalf of the appellant is that neither Public Analyst in the report Ex PW1/E nor the Director CFL in the certificate Ex PX has stated that the food article/red chili powder in question was harmful for human consumption, therefore, the appellant is entitled to be acquitted on this count. Reliance is placed upon the authority Municipal Corporation of Delhi Vs Sri Kacheroo Mal 1975 CAR 381 (SC) which support the contention of learned counsel for appellant. 15
Learned Special Public Prosecutor for respondent has argued that the fact that there were living or dead insects in the food article in itself shows that it was not fit for human consumption and was harmful so there was no need for Public Analyst or Director CFL to show it in their reports.
I am unable to accept the contention of learned Special Public Prosecutor in the light of Sri Kacheroo Mal's case (supra). Further, in Naresh Kumar v. The State of Punjab 1982 (II) FAC 30 (P & H) (DB), wherein it was observed as follows :
"4.The short, though significant, question that has been posed for decision by the petitioner is as to whether the petitioner could be-convicted of an offence under Section 16(1)(a)(i) of the Act, when admittedly, neither under the Act, nor under the Rules framed thereunder or otherwise, the standard of quality or purity of patasas had been prescribed nor soap-stone was declared to be injurious to health or declared to become injurious to health when coated upon patasas".
It was further held as follows:
"16. On facts, it may be noticed that the record is absolutely bereft in regard to the substances that 16 go in the making of patasas. No one has said that soap-stone is injurious to health or is a substance which is not edible in any form.
17. In view of the above, we unhesitatingly hold that the petitioner is not guilty of the offence under Section 16(1)(a)(i) of the Act. We, therefore, allow this revision petition and quash his conviction and sentence."
In State of Haryana, Appellant v. Rama Nand, Respondent 1982 Cr LJ 1370 (P & H) (DB), it was observed as follows :
"10. Now here the possibility cannot be ruled out that the turmeric fingers found with the petitioner could be visited by insects from outside, lying as they were in a gunny bag wherein such article is normally stored or the insects to have germinated within. They could come there from without due to natural causes and beyond the control of human agency. It is wholly chimerical and inconceivable that an adulterator would add insects of his own to an article for profit making. Also the report of the Public Analyst is deficient whether the article was injurious or non-injurious to health and thus does not carry out the purposes of either of cls. (l) and 17
(m) with the proviso in S. 2 (ia) of the Act. Such deficient report alone warrants us to maintain the order of acquittal of the respondent, besides other reasons mentioned heretofore."
Therefore, since the Director CFL in the certificate Ex PX having not stated that due to presence of living or dead insects, the food article was harmful for human consumption the benefit goes to the appellant in the light of Sri Kacheroo Mal's case (supra), Ramanand's case(supra) and Naresh's case(supra).
Another point which is to be noted is that the insects may not have been present in the sample at the time of taking sample/red chili powder by the Food Inspector but may have cropped up in the sample due to delay in analysis at CFL or due to the fact that the sample bottles was not airtight so oxygene from the air found intact in it or the sample was not preserved properly. In that case also the appellant is entitled to benefit of doubt. This view finds strength from Rajkumar's case ( supra), A.P. Goel's case ( supra), Badri Nath's case (supra), Inderjit Singh's case (supra) and the following authorities and in Gulshan Rai v. The State of Punjab 1983 (II) FAC 328 (P & H), it was observed as follows :
18
" 2. The learned counsel for the petitioner has raised a number of points but the one which tilts the balance in his favour need be taken notice of. As said before the sample was taken on 17-8- 1979, at Kapurthala, during the rainy season, when there is plenty of humidity. Even the report of the public Analyst confirms it that there was moisture in the sample to the extent of 10.70 per cent. In such moistened wheat flour insects could have grown of their own and to have died their natural death therein. It could have easily grown in this span of 19 days when the sample remained unpacked and those insects should have died as well during that period. The Public Analyst has nowhere categorised those insects and has also not mentioned their normal life span. It is not worthy that at the time of the taking of the sample no preservation was added. Equally no date is available as to whether moistened wheat flour, if kept in water-tight container, would create alcoholic acidity. Thus, on this scanty material it would not be safe to maintain the conviction of the petitioner. In somewhat similar circumstances this court in Om Parkash v. The State of Punjab, 1981 CLR 220, acquitted the accused when the 19 wheat flour recovered from him was found to be insect infested on the 24th day of its recovery. Being in respectful agreement of that view I have followed it in other case and would do so in the present one as well."
In Anil Kumar & Another v. State of H.P. 1996 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (HP), it was observed as follows :
" 6. In the present case, the sample was taken on 29th May, 1981. There is nothing on record to suggest, even remotely, that the Food Inspector noticed any living or dead insects at the time of taking of the sample of tha 'Atta'. The Public Analyst analysed the sample of 23rd of June, 1985 who opined that eight living insects were there. There is nothing in the report that these insects were detected after microscopic examination of the sample. The Alcoholic Acidity at that time was found to be 0.08%. Under Rule A.18.02, the alcoholic acidity (with 90% alcoholic), expressed at H2 SO4 (on dry weight basis), is required to be not more than 0.12%. But Public 20 Analyst report recorded the Alcoholic acidity to be within the prescribed limit.
7. The Director Central Food Laboratory recorded that there were three live insects and seven dead insects along with 11 dead insects larva. Again, there is nothing in the report of the Director that these insects were detected after microscopic examination. In so far as the standard of alcoholic acidity was concerned, the Director has very specifically mentioned in his report that this alcoholic acidity was subject to increase from the date of drawl of sample and its ultimate analysis in the laboratory, meaning thereby, that increase, if any, in alcoholic acidity could be attributed to the lapse of time which took place between taking of the sample and the analysis by the Director. This aspect of the opinion appears to be correct one, inasmuch as on 23rd day of June, 1981, when the Public Analyst analysed the sample, the alcoholic acidity was found to be 0.08% within the prescribed limit and the Director analysed the sample on 24th of October, 1981, say after a period of about five months after the taking of the sample and the likelihood of alcoholic acidity having been increased on the basis of the opinion given by the Director himself could not be ruled 21 out."
It was also held that on the basis of the aforesaid circumstances, the likelihood of insects having been cropped up during the transit period also could not be ruled out, especially when it has been noticed in the two reports referred to above that the earlier report contained less insects, while the later report contained more dead and living insects, which could also lead to this inference that by the passage of time, these insects dead or alive have been cropped up in the sample and in this background , the possibility of sample being insect free at the time of taking sample cannot be ruled out.
In Om Prakash v. The State of Punjab 1986 (I) FAC 77 (P & H), it was observed as follows:( 6) "2. Mr. Chhibbar, has very fairly not contested the recovery of the atta from the dhaba of the petitioner on the relevent day. In fact, his sole contention is that from the material on the record, it could be inferred that the recovered atta remained un-anaylsed for a period of about 24 days and during this long period the possibility of some insects (susris) having infested the atta could not be excluded. He has placed reliance 22 upon a Single Bench decision of this Court in Makand Lal v.The Stage, 1975 (1) F.A.C. 211, wherein the accused was given the benefit of doubt on the ground that the atta had remained un-examined and unanalysed for 12 or 13 days.
Indeed, in that case the recovery pertained to the month of July which is a rainy season, but no hard and fast rule can be laid down in this behalf that such insect infestation could not have taken place during the month of February, as in the present case. It was the bounden duty of the prosecution to rule out this possibility by producing expert evidence on the file, which has not been done. In these circumstances, the petitioner is entitled to the benefit of doubt." In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), it was observed as follows:
"8........Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which the sample was analysed in the laboratory, on a 23 consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the 24 sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 1031980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge against the petitioner has to fail."
In Municipal Corporation of Delhi v. Ved Parkash 1984 (II) FAC 304 (Del), it was observed as follows:
" 6.The second ground on which the trial court thought fit to discharge the accused is also just and reasonable, it is to be noticed that the Public Analyst on examining the sample found it to be insect infested and vide his report Exhibit PE, held the sample to be adulterated due to the 25 presence of 10.5 per cent insect damaged Amchoor pieces by weight and due to the presence of insect infestation. The Director, Central Food Laboratory on examining the sample after a lapse of nearly five months vide his report, Exhibit PX, found the sample adulterated being insect damaged " with appreciable amount of dead and living insects" . In others words, it means that with the passage of time living insects which were found by the public Analyst continued breeding, some of which also died. That is why, the Director, Central Food Laboratory, found " appreciable amount" of living insects as well. It the circumstances, it can not be said that the trial Court was wrong in holding that the sample bottle was not the securely fastened because the Director, Central Food Laboratory had found " appreciable amount" of living insects in the sample examined by him after a lapse of five months. In others words, the bottle of sample was not air-right and the insects already present in sample of Amchur whole continued breeding. The trial Court was accordingly right in holding that the respondent because of the late filing of the compliant, could not effectively exercise his right under Section 13 (2) of the Act in obtaining 26 the opinion of the Director, Central Food Laboratory, Calcutta, on the sample being not in the same condition in which was at the time it was purchased."
RESULT OF APPEAL:
In view of the above discussion the appeal is allowed. The appellant is acquitted of offences for which learned trial court has convicted him in the impugned judgment. The fine, if already paid by the appellant in terms of the impugned judgment and impugned order on sentence be ordered by learned trial court to be refunded to him. The bail bonds furnished in the appeal are cancelled. The trial court record be returned along with the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 15.10.2009 (S. K. SARVARIA) Additional Sessions Judge01/South New Delhi 27 AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAA In Mohinder Pershad v. State 1972 FAC 474 (Del) (DB), it was observed as follows:
"9.The dictionary meaning of the word 'insect' is a small invertebrate animal with six legs usually having a segmented body and two or four wings. In eggs is a spheroidal body formed in the ovary of a female bird or insect containing the germ of a new individual of the spacie. Evidently the egg of an insect is not the same thing as the insect itself though such an egg may in due course of time cause an insect to come into existence. Mere presence of eggs of insects in an article cannot, therefore, make the article of food "insectinfested"."
See also Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB). BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB BBBBBBBBBBBB In Naresh Kumar v. The State of Punjab 1982 (II) FAC 30 (P & H) (DB), it was observed as follows :
"4.The short, though significant, question that has been posed for decision by the petitioner is as to whether the petitioner could beconvicted of an offence under Section 16(1)(a)(i) of the Act, when admittedly, neither under the Act, nor under the Rules framed thereunder or otherwise, the standard of quality or purity of patasas had been prescribed nor soapstone was declared to be injurious to health or declared to become injurious to health when coated upon patasas".
It was further held as follows:
"16. On facts, it may be noticed that the record is absolutely bereft in regard to the substances that go in the making of patasas. No one has said that soapstone is injurious to health or is a substance which is not edible in any form.
17. In view of the above, we unhesitatingly hold that the petitioner is not guilty of the offence under Section 16(1)(a)(i) of the Act. We, therefore, allow this revision petition and quash his conviction and sentence."
In State of Haryana, Appellant v. Rama Nand, Respondent 1982 Cr LJ 1370 (P & H) (DB), it was observed as follows :
"10. Now here the possibility cannot be ruled out that the turmeric fingers found with the petitioner could be visited by insects from outside, lying as they were in a gunny bag wherein such article is normally stored or the insects to have germinated within. They could come there from without due to natural causes and beyond the control of human agency. It is wholly chimerical and inconceivable that an adulterator would add insects of his own to an article for 28 profit making. Also the report of the Public Analyst is deficient whether the article was injurious or noninjurious to health and thus does not carry out the purposes of either of cls. (l) and (m) with the proviso in S. 2 (ia) of the Act. Such deficient report alone warrants us to maintain the order of acquittal of the respondent, besides other reasons mentioned heretofore."
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), it was observed as follows:
"2 It is not a fit case in which we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render the same adulterated. The Standard of Saunf has been prescribed in Rule A. 05.11, Appendix B of the prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he has not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed."
In A.P. Goel and another v. The State of (Delhi Admn.) 2001 (1) FAC 168 (Del), it was observed as follows:
"6. Having heard learned counsel for the petitioner as also the learned counsel for the State, I am of the opinion that the case in hand is covered by the Judgment of this Court in MCD v. Ved Parkash (supra) and, therefore, the learned Additional Sessions Judge was not correct in interfering in the matter in revisional jurisdiction. The sample having been sealed on 21.1.1986 by PW3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample. The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986."
In Shri Raghbir Sharan v. State 1972 FAC 389 (Del), it was observed as follows:
"5. The evidence of these witnesses has not been challenged and these witnesses are Public Analysts. There is not reason to doubt there testimony. According to the evidence of these witnesses, it is possible to for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within the period of three days. In the present case even according to the evidence of the Food Inspector, P.W. 2, no insects were present when the purchased the sample of basen from the petitioner on 2961968 and that, as a matter of 29 fact, he had not purchased the sample because of suspicion that it was insectinfested. The Public Analyst in his report, Ex....... has merely stated that the sample was insectinfested (living insects), but has given the percentage of insectinfestation. It is, therefore, possible that insect infestation found by the Public Analyst was not present in the sample when it was taken on 296 1968. It cannot, therefore, be said the sample of basen purchased by the Food Inspector from the petitioner on 2961968 was adulterated. Accordingly to the report of the Public Analyst, the said sample was not adulterated in other respects. The additional evidence adduced by the petitioner would entitle him to an acquittal."
In Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB), it was observed as follows :
"7. The learned counsel for the respondents placing strong reliance on a decision of Allahabad High Court in Radheylal Gupta v. State and another, 1979 (II) FAC 91, strenuously contends that October being a rainy season and the sample having been analysed on the third day, the probability of the insects having grown during that period could not be ruled out. That being so, he submits that in the facts and circumstances of the instant case, it could not be said with any degree of certainty that the sample was infested on 1st October, 1973, the date when it was taken, especially when even the Food Inspector J.S. Chadha admits that he did not see any insects with the naked eye. The learned counsel vehemently submits that at best according to the prosecution case at the time the sample was taken, eggs could be said to be present in the Atta and not insects as according to the testimony of Dr. Pingley the incubation period for eggs is 4 to 7 days. That being so, because of the eggs found in the Atta purchased by the Food Inspector from the respondents, the Atta could not be said to be insectinfested and hence adulterated. There appears to be merit in the submission sought to be urged on behalf of the respondents........."
In Municipal Corporation of Delhi v. Shri Ramji Dass and another 1983 (II) FAC 20 (Del) (DB), it was observed as follows:
"8...........The article of food was taken on 12th September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is possible that the living insects may 30 have developed in the sample in question after the sample was taken. P. W. 4 gave evidence that the sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or 3. The expression "insect infested" would mean a swarm of insects or at least a large number of insects. The Food Inspector may have from the presence of few insects concluded that the article of food was insect infested. See M.C.D. v. Bhawanl Shankar, 1975 (I) FAC 251 and Raghbir Sharan v. State, 1972 FAC 389."
In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), it was observed as follows:
"8........Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which the sample was analysed in the laboratory, on a consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 1031980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge 31 against the petitioner has to fail."
In State (Delhi Admn.) v. Inderjit Singh and another 2005 (1) FAC 161 (Del), it was observed as follows :
"3. On evaluation of the evidence on record, the learned Magistrate returned a finding that the report of the Director, CFSL shows living insects found in the sample meaning that the sample was not properly sealed and on this account has acquitted and accused. Counsel for the State has not been able to show me as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act. He is also not been able to show me as to what is the infirmity in the judgment under challenging. That being the case, I find no reason to interfere with the wellreasoned judgment of the trial court. Crl. A. 58/1986 is accordingly dismissed."
DDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDD DDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDD DDDDDd In Gulshan Rai v. The State of Punjab 1983 (II) FAC 328 (P & H), it was observed as follows :
"2. The learned counsel for the petitioner has raised a number of points but the one which tilts the balance in his favour need be taken notice of. As said before the sample was taken on 1781979, at Kapurthala, during the rainy season, when there is plenty of humidity. Even the report of the public Analyst confirms it that there was moisture in the sample to the extent of 10.70 per cent. In such moistened wheat flour insects could have grown of their own and to have died their natural death therein. It could have easily grown in this span of 19 days when the sample remained unpacked and those insects should have died as well during that period. The Public Analyst has nowhere categorised those insects and has also not mentioned their normal life span. It is not worthy that at the time of the taking of the sample no preservation was added. Equally no date is available as to whether moistened wheat flour, if kept in watertight container, would create alcoholic acidity. Thus, on this scanty material it would not be safe to maintain the conviction of the petitioner. In somewhat similar circumstances this court in Om Parkash v. The State of Punjab, 1981 CLR 220, acquitted the accused when the wheat flour recovered from him was found to be insect infested on the 24th day of its recovery. Being in respectful agreement of that view I have followed it in other case and would do so in the present one as well."
EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE EEEee In Anil Kumar & Another v. State of H.P. 1996 (IV) All India Prevention of Food Adulteration Journal (AIPFAJ) 198 (HP), it was observed as follows : 32
"6. In the present case, the sample was taken on 29th May, 1981. There is nothing on record to suggest, even remotely, that the Food Inspector noticed any living or dead insects at the time of taking of the sample of tha 'Atta'. The Public Analyst analysed the sample of 23rd of June, 1985 who opined that eight living insects were there. There is nothing in the report that these insects were detected after microscopic examination of the sample. The Alcoholic Acidity at that time was found to be 0.08%. Under Rule A.18.02, the alcoholic acidity (with 90% alcoholic), expressed at H2 SO4 (on dry weight basis), is required to be not more than 0.12%. But Public Analyst report recorded the Alcoholic acidity to be within the prescribed limit.
7. The Director Central Food Laboratory recorded that there were three live insects and seven dead insects along with 11 dead insects larva. Again, there is nothing in the report of the Director that these insects were detected after microscopic examination. In so far as the standard of alcoholic acidity was concerned, the Director has very specifically mentioned in his report that this alcoholic acidity was subject to increase from the date of drawl of sample and its ultimate analysis in the laboratory, meaning thereby, that increase, if any, in alcoholic acidity could be attributed to the lapse of time which took place between taking of the sample and the analysis by the Director. This aspect of the opinion appears to be correct one, inasmuch as on 23rd day of June, 1981, when the Public Analyst analysed the sample, the alcoholic acidity was found to be 0.08% within the prescribed limit and the Director analysed the sample on 24th of October, 1981, say after a period of about five months after the taking of the sample and the likelihood of alcoholic acidity having been increased on the basis of the opinion given by the Director himself could not be ruled out."
It was also held that on the basis of the aforesaid circumstances, the likelihood of insects having been cropped up during the transit period also could not be ruled out, especially when it has been noticed in the two reports referred to above that the earlier report contained less insects, while the later report contained more dead and living insects, which could also lead to this inference that by the passage of time, these insects dead or alive have been cropped up in the sample and in this background , the possibility of sample being insect free at the time of taking sample cannot be ruled out. 33 34 35 36