Madhya Pradesh High Court
Dhanraj Jaiswal vs State Of M.P. Through Food Inspector on 5 April, 2006
ORDER S.C. Vyas, J.
1. This revision is directed against the impugned judgment of conviction and order of sentence dated 28-1-02 recorded by Addl. Sessions Judge, Dewas in Criminal Appeal No. 70 of 2001, wherein and whereby he confirmed the order of conviction and sentence dated 28-4-2001, recorded by Judicial Magistrate First Class, Dewas in Criminal Case No. 8 of 01 for commission of offence under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 and sentenced the applicant to undergo R.I. for six months and to pay fine of Rs. 1000/-; in default to further undergo R.I. for one month.
2. Short facts of the case are that on 23-4-1994 at about 9.30 a.m. at Ujjain Road, Dewas, Food Inspector Mr. R.C. Gupta reached at the Kirana shop known as, "Gayatri Kirana Stores" of the applicant accused where applicant was selling the food articles. The Food Inspector served a notice of Form No. 6 on the applicant and obtained the signature of the applicant. Thereafter purchased 450 gms. of turmeric powder which was kept for sale in a polythene pack. The sample was divided in three dry and clean bottles in equal quantity. After completing the other formalities at the spot a panchnama containing all these fact was prepared and one sealed bottle was sent for analysis. The Public Analyst found the alleged sample adulterated. After obtaining the permission of Local Health Authority, a complaint was filed before the Trial Magistrate against the applicant and his father.
3. At the request of applicant, another bottle of sample was sent to the Central Food Laboratory, who vide its report (Ex. P-19) found in it some foreign starch and, therefore, it was an admixture of turmeric powder and other substance. Thus it was violation of Rule 44(h) of Prevention of Food Adulteration Rules, 1955.
4. The learned Trial Magistrate after trial, convicted and sentenced the applicant and one another. The appeal, preferred by them was dismissed against the present applicant herein and another person was acquitted of the charge. Now the present applicant has come up in revision before this Court.
5. Learned Counsel Shri Harish Kumar, appearing for applicant pressed into service only one ground that the Director of Central Food Laboratory did not conduct any chemical test of the alleged sample and only on the basis of microscopic examination found that the sample contained rice starch vide its report (Ex. P-19). He submitted that microscopic examination is only a physical examination and on the basis of this examination, it cannot be said with certainty that the sample was actually contained rice starch cells alongwith turmeric starch cells. It has further been argued that the total starch percent by weight in the sample was 48.26%, whereas, the permissible limit is upto 60%. Thus by no stretch of imagination it can be held that the sample was adulterated and some foreign substance was mixed with the turmeric powder.
6. Learned Counsel has placed reliance on the judgments of Apex Court reported in the matter of Bhim Sen v. State of Punjab 1975 FAC 242; and Jagdish Chander v. State of Uttar Pradesh 1981 Cri.LJ 739. Learned Counsel has also placed reliance on the judgments of various High Courts reported in the matter of Municipal Corporation, Kota v. Harak Chand 1990(1) FAC 231; Food Inspector v. Vidhyadharan [1987(1) FAC 119 of Kerala High Court]; Chimanlal Govindji Thakker v. State of Gujarat and Anr. 1997(2) FAC 39 and State of Gujarat v. Ahmed Gulam Mohmmad Umar 2005(1) FAC 62.
7. The learned Govt. Advocate Shri G.S. Chouhan, appearing for respondents State, per contra, submitted that admixturing of foreign starch and foreign substance itself is contravention of Rule 44(h) of PFA Rules, 1955 and sale of such turmeric powder is an offence under Section 7(5) of the Act. Therefore, the Trial Court as well as the Lower Appellate Court have committed no error in convicting the applicant. He placed reliance on a decision of Apex Court reported in the matter of Ram Labhaya v.. Municipal Corporation of Delhi [AIR 1974 SC 789].
8. For deciding the present revision, it would be necessary to reproduce the provisions of Rule 44(h) of the Act which reads as under :
44. Sale of certain admixtures prohibited.-- Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell-
*** *** ***
(h) turmeric containing any foreign substances;
*** *** ***
9. Section 16(1)(a)(i) of the Act reads as under :
16. (1) Subject to the provisions of Sub-section (1-A), if any person--
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food-
(i) which is adulterated within the meaning of Sub-clause (m) of clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or sale of which is prohibited under any provision of this Act or any rule made thereunder or by any order of the Food (Health) Authority;
he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees.
*** *** ***
10. It is clear from the reading of Rule 44(h) with Section 16(1)(a)(i) of the Act that the sale of turmeric containing foreign starch is prohibited and is punishable under Section 16(1)(a)(i) of the Act. Now the question arise for decision in this revision is as to how it can be determined that the turmeric powder was containing some foreign substance.
11. The report of Central Food Laboratory shows that the sample of turmeric powder which was sent for analysis containing moisture 7.0%; total ash 6.59%; Ash insoluble in dilute HC10.16%; test for lead chromate-negative; total starch per cent by weight 48.26%.
12. The standard prescribed for turmeric as per Appendix B (A) 05.20.01 is as under : 1. moisture-- not more than 13% by weight; 2. total ash-- not more than 9% by weight; 3. Ash-- insoluble in dilute HC1-- not more than 1.5% by weight; Test for lead chromate-- Negative; Total starch-- 38% by weight not more than 60%.
13. The Public Analyst on chemical examination found that moisture; total Ash; Ash Insoluble in dilute HC1 and total Starch percent by weight was very well within the limits of the prescribed standard and it was not more than the prescribed standard. The test for lead chromate was also found negative. No oil soluble coal tar colour was also found. These results of chemical examination shows that the sample was found as per prescribed standard by chemical examination. On physical examination, it was found that the sample was free from fungal growth, but, only on microscopic examination it was found the presence of rice starch cells alongwith the turmeric starch cells.
14. Learned Counsel for applicant submitted the microscopic examination has never been provided anywhere in the Rules made under the Prevention of Food Adulteration Act. In the Act also, no such examination has ever been provided and, therefore, microscopic examination being only physical examination, cannot be relied upon to hold the sample of turmeric powder contained some foreign substance.
15. In the matter of jagdish Chander v. State of U.P., the Apex Court has considered the question of applying only microscopic test by the Public Analyst with respect to the sample of 'Dalchini' (Cinnamomum Zeylanicum Knees). It was observed that, "A glance at the above Rules would show that the percentage of the various ingredients such as ash, insoluble in HC1, or volatile oil or moisture in the sample in question, cannot be ascertained with any degree of accuracy by mere ocular examination under a microscope, chemical tests, including treatment of the ash in the sample with Hydrochloric Acid would be a must. Since in the instant case, the sample was not subjected to any chemical test or analytical process, the opinion of the Public Analyst was not entitled to any weight whatever".
16. In the above referred case, no chemical tests were performed, whereas, in the instant case in hand, chemical tests were performed and the sample was found fit as per prescribed standard and, therefore, only on the basis of microscopic examination, the Chemical Analyst report that it contained some foreign starch, then, the total value of the sample should, have been increased in comparison to the standard prescribed and should have been something more than 60%, but, the report shows that the total starch per cent was only 48.26% which was much below than the prescribed standard. In this view of the matter, the result of microscopic examination becomes doubtful.
17. The Rajasthan High Court in the matter of Municipal Council v. Harak Chand 1990(1) FAC 231, considered the question of analysis by microscopic examination of turmeric powder. In this case also, it was reported by Public Analyst that on microscopic examination wheat starch was found in the turmeric powder. The turmeric powder conformed to the prescribed standard in all respects with the standard laid down in Appendix A-05.20-01. It was observed that, "There is no column like microscopic examination in Appendix-I; therefore, I do not attach any importance to this remark. Standard prescribed, means that there was no adulteration as such even as per the report of Public Analyst Ex. P-8".
18. The Gujarat High Court in the matter of Chimanlal Govindji Thakker 1997(2) FAC 39 also considered the question of microscopic test in respect of the sample of Chillies and observed that, "Having regard to the-aforesaid detail and standard relating to chillies powder, it is clear that microscopic test is not provided therein. There is, therefore, substance in the submission of Mr. Thakker that the Public Analyst adopted the test by means of microscopic test, which is not provided by the Legislature. It is also doubtful whether such microscopic test is a scientific test or otherwise. There is no other evidence available on record, in as much as, there is no method to check such test. It may be an unreasonable test even. Suffice it to state the Legislature has not approved of such tests. Therefore, the conviction of the petitioner for the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is unsustainable".
19. In the matter of State v. Ahmed Gulam Umar (supra), the question of microscopic test in respect of sample of turmeric powder has been considered relying upon the matter of Chimanlal Govindji (supra), the Court again observed that, "Test carried out by microscope to ascertain adulteration in turmeric powder not being reliable, result cannot be used to sustain the conviction".
20. The Kerala High Court in the matter of Food Inspector v. Vidhyadharan (supra), has also considered the question of microscopic examination with respect to sample of Coriander powder.
21. The various High Courts have considered the question of microscopic examination of sample and found that such tests are not sufficient to come to the conclusion that the sample is actually adulterated. In the case in hand, the sample was found in conformity with the standard prescribed and therefore, it becomes more doubtful as to whether actually some foreign substance was added.
22. It is true that Rule 44(h) of Food Adulteration Rules prohibits mixture of foreign substance in turmeric powder, but, it is the duty of the Food Inspector to prove that there was presence of some foreign substance in the turmeric powder and there are circumstances to substantiate the foreign sub-stance was mixed deliberately. In the present case, neither it is proved that there was some foreign substance in the sample nor it is proved that mixture was done deliberately.
23. It is matter of common knowledge that turmeric grinded in bulk then naturally some pieces of cells of that material also grind in the same grinding machine earlier may present which can be observed through such microscopic examination and therefore, mere presence of some cells which are not looking like turmeric cells and resembling like rice starch cells, it cannot be said with certainty that foreign substance have been added in the sample. In the present case, it was stated by the applicant at the time of taking of sample that he got the turmeric grind somewhere. This fact has been mentioned in the panchnama (Ex. P-10) shows that the turmeric powder was grind in the factory and therefore, presence of foreign rice cell may be there, therefore, it cannot be said that the act of adulterating the foreign substance was done deliberately.
24. Therefore, as discussed above both the Courts below have committed error of law in holding the applicant guilty for commission of offence of violation of Rule 44(h) and Section 16(1)(a)(i) of Food Adulteration Act, 1954.
25. In the result, the revision succeeds and is allowed. The impugned judgment and order of conviction are hereby set aside and applicant is acquitted of the charge levelled against him. His bail bonds stand discharged.