Kerala High Court
Mathukutty vs State Of Kerala And Anr. on 30 October, 1987
Equivalent citations: AIR1988KER60, AIR 1988 KERALA 60, (1988) ILR(KER) 1 KER 129, 1987 (2) FAC 293, (1987) 2 KER LT 165, 1987 KER LJ 1355, (1988) 1 ALLCRIR 732, 1988 APLJ (CRI) 165, ILR (1988) 1 KER 129, (1987) KER LJ 355, (1988) 1 ALLCRILR 732, (1987) 2 FAC 293, (1988) EFR 323
Bench: M. Fathima Beevi, K.G. Balakrishnan
JUDGMENT Fathima Beevi, J.
1. The revision-petitioner was prosecuted under the Prevention of Food Adulteration Act, 1954 as amended in 1976 (shortly, the Act) for sale of insect infested coriander seeds in his grocery shop. The petitioner was convicted under Section 16(i)(a) read with Sections 7(i) and 2(i-a) (f) of the Act and sentenced to pay a fine of Rs. 1000/-. The appeal preferred was dismissed by the Sessions Judge.
2. In revision before this Court, the learned counsel for the petitioner relying on the Full Bench decision in Food Inspector v. Prabhakaran, 1982 Ker LT 809 : (1983 Cri LJ 81) (FB) pressed for an acquittal. It was felt that the decision in Prabhakaran's case (supra) required reconsideration. The Criminal Revision Petition has accordingly come up before us on reference.
3. The Food Inspector purchased from the petitioner 450 grams of coriander seeds for purpose of analysis, on 21-2-1980. The sample was received by the Public Analyst on 6-3-1980. In Ext. P 6, the report dt. 21-3-1980, the Public Analyst declared that the sample was insect infested and unfit for human consumption, it contained 10.3% by weight of extraneous matter including insect damaged grains, the insect damaged matter was 7.1% by weight and the sample was therefore adulterated.
4. The complaint was instituted before the court on 8-5-1980. The sample part kept by the Local (Health) Authority was got analysed by the Central Food Laboratory on the application of the accused under Section 13(2) of the Act. The Director received the sample on 14-7-1980. Ext. D 1 certificate dt. 25-7-1980 issued by the Director read :
"1. Physical appearance : coriander whole with insect damaged units in prominence. Heavily infested with both live and dead insects identified as stegobium pancium.
2. Proportion of extraneous matter; including insect damaged seeds 17.5% by weight
3. Insect damaged matter.
15.3% by weight
4. Artificial colouring matter Absent.
Opinion : The sample does not conform to the standards laid down for coriander whole under the provisions of P. F, A. Act, 1954 and rules thereof; in that
(a) Insect damaged matter exceeds the maximum specified limit of 5% by weight.
(b) Insect infested."
By virtue of Section 13(3) of the Act, Ext. Dl superseded Ext. P.6.
5. The statutory authority has prescribed standards for coriander in A. 05.08 of Appendix B to the Prevention of Food Adulteration Rules (shortly, the Rules). The, relevant standards are :
"The proportion of extraneous matter including dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander and insect damaged seeds shall not exceed 8.0 per cent by weight. The amount of insect damaged matter shall not exceed 5 per cent by weight."
6. On the evidence the trial court found that the sample was taken and the result of the analysis obtained in compliance with the requirements under the Act and the Rules. The court accepted Ext. D 1 certificate as to the standard of the food sample. As the quantity of insect damaged seeds exceeded the prescribed limit of 5% by weight and the sample was insect infested, the article of food sold was found to be adulterated and the accused guilty under the Act. The learned Sessions Judge agreed with the findings of the trial court and dismissed the appeal.
7. Both the trial court as well as the appellate court rejected the defence plea that the insect infestation and the increase in the quantity of insect damaged seeds might have occurred on account of the time-lag that intervened between the date of sampling and the date of analysis and that the accused is entitled to the benefit of doubt. The evidence of defence witness was treated as not helpful to show that the number of insects or the percentage of insect damaged seeds in the sample could have increased after sale. The view taken by the lower courts was that there was no defect in sampling or analysis, the court is to be guided by the certificate of the Director of Central Food Laboratory as to the standard of the food sample and that there was no material on the basis of which the court can go behind it.
8. Shri M. N, Sukumaran Nair, the learned counsel for the revision-petitioner contended before us that in view of the disparity in the results declared by the Public Analyst, and the Director of Central Food Laboratory and the intervening time-lag between the sampling and the analysis, the possibility of insect damaged seeds in the sample at the time of sale being below 5% by weight and the same having increased thereafter as also the possibility of increase in number of insects, cannot be excluded and the petitioner must be given the benefit of doubt. It is submitted that coriander is primary food for which minimum standards of purity and permissible percentage of insect damaged seeds that would exclude it from the definition of adulterated article have been prescribed under Appendix B, A. 05.08 of the Rules. The Act and the Rules, it is argued, do not contain any specific provision to guard against the birth or growth of insects in the sample of food after it is lifted and the presence of living insects at the time of analysis as also increase in percentage of insect damaged seeds between the dates of analysis by the two experts, is clear indication of rapid growth of insects and in such circumstances the accused is entitled to be acquitted.
9. Strong reliance has been placed on the Full Bench decision in Food Inspector v. Prabhakaran, 1982 Ker LT 809 : (1983 Cri LJ 81). In that case the sample of pea-dall purchased on 7-3-1979 was analysed on 26-3-1979. The insect damaged grain amounted to 23.8% by count. Subramonian Poti, acting C. J., speaking for the Full Bench observed :
".....if the insect infected grains was less than 10 per cent by count, sample could not be held to contravene the Act. Even if on the date sample was taken presence of insects was below 10 per cent, it would necessarily grow in course of time. It is possible that the period of nearly a fortnight might have been responsible for the increase of the percentage of insect infected grains. In other words, when there is a possibility that due to the delay there would have been increase in the quantity of insect infected grains and there is no evidence as to what that rate would be we cannot assume that on the date the sample was taken the insect infected grains were above 10 per cent. If it was below 10 per cent then and rose above 10 per cent later the sample sold could not be said to be adulterated. For that reason the accused ought to be acquitted."
With utmost respect, we are unable to share the above view so broadly stated. We are of the opinion that the above observations shall be confined to the particular facts of that case.
10. An article of food is insect infested when it is attacked by insects in swarms or large numbers. Possibility of infestation and its degree and extent depend upon the nature and quality of the article, the condition under which it is kept, climatic changes that intervene and above all, the type of insect, its lifecycle and other aspects. Grains or seeds can be damaged by insects even if there is no insect infestation. Law does not permit insect infestation in any article of food. In the case of several articles of food, law does not permit presence of insect damaged grains beyond a particular percentage. It cannot be stated as an absolute proposition that there is possibility of infestation or of increase in the number of insects or insect damaged matter due to lapse of a few days or weeks in conducting the analysis. Insect infestation to supervene and insects to multiply and insect damaged matter to increase in an article of food purchased, a variety of factors should contribute. The change would depend upon the nature of the article, the character of the insect specie, the climatic conditions under which the sample is stored, the manner in. which the sample is packed and kept etc. and the physical and chemical changes that can take place in each case. This has to be evaluated on scientific bask For the purpose of determining whether an article of food is insect infested and therefore adulterated within the meaning of the term in Sub-clause (f) of Section 2(i-a) of the Actor whether the sample contains insect damaged matter in excess of the prescribed limit, the timelag between the date on which the sample is taken and date of analysis by itself would be of no consequence. There should be sufficient materials in evidence from which it can be reasonably inferred that the sample at the time of sale could not have been insect infested or could not have contained insect damaged matter in excess of. the permitted limit. In the absence of such materials the report of the Public Analyst (where Section 13(2) has not been invoked) or the certificate of the Director of Central Food Laboratory, as the case may be, shall be taken as indicative of the quality and standard of the article of food at the time of sampling.
11. The provisions of the Prevention of Food Adulteration Act have been enacted to curb and remedy the widespread evil of food adulteration and to ensure the availability of wholesome food to the people. It is well settled that the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote the object of the statute, prevent its subtle evasion and foil its artful circumvention. Dealing with an article of food which is adulterated is punishable-under Section 16(i)(a) of the Act. The definition of the expression "a dulterated" in Section 2(i-a) is very wide and comprehensive and takes within its sweep various types of adulteration. The legislature had to keep in view the different standards of purities in different varieties of food before attempting to define when and in what circumstances an article of food shall be deemed to be adulterated within the meaning of the statute. The different sub-clauses in Section 2(i-a) are not mutually exclusive. They may overlap one another and an article of food may be found to be adulterated under two or more clauses.
12. under Section 2(i-a) (f) of the Act an article of food shall be deemed to be adulterated if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption. The law is now settled that the various clauses under Sub-clause (f) should be read disjunctively and the mere proof of the article being insect infested would be per se sufficient to attract this definition. It would not be necessary in such cases to prove further that the article of food was unfit for human consumption. (Vide : Municipal Corporation of Delhi v. Tek Chand Bhatia, 1980 SCC (Cri) 87 : (AIR 1980 SC 360) (followed in Food Inspector v. Divakaran, 1980 Ker LT 369 and Food Inspector v. Bhaskaran, 1981 Ker LT 429), Municipal Corporation of Delhi v. Ram Samp. 1980 SCC (Cri) 137 : (AIR 1980 SC 174). Paramjit Singh v. Municipal Corporation of Delhi, 1983 SCC (Cri) 27 : (AIR 1982 SC 1095), Municipal Corporation of Delhi v. Man Mohan Lal, 1984 SCC (Cri) 160 : (AIR 1963 SC 506) and Siate (Delhi Administration) v. Puran Mal. 1985 SCC (Cri) 289 : (AIR 1983 SC 741).
13. An article of food is deemed to be adulterated within the meaning of Section 2(i-a)(f). if, inter alia, it is wholly or in part insect infested. However, it is not the presence of a few insects alive or dead that makes the sample insect infested to attract the above clause. Number of insects, dead or alive, must be substantial. Presence of stray insects may not be sufficient to make the sample insect infested. A precise test as to the number or percentage of insects sufficient to render the sample insect infested cannot be laid down. That must necessarily vary with the article. Where the article of food is one for which minimum standards of purity are prescribed under the rules, and insect damaged matter by itself or in combination with the other factors is permitted up to prescribed limit, the article can be deemed to be adulterated only when the insect damaged matter exceeds the level permitted.
14. The standard of a food sample is ascertained by analysis. The result of the analysis provides relevant evidence for the court to determine whether the article of food is adulterated or not. The scheme of the Act and Rules shows that the result declared on analysis is to be taken as relating to the quality or standard of the article at the lime of the sale. Therefore, in a given case where the accused pleads otherwise, the burden is on the accused to make out that a change in the quality or standard had Occurred since the date of the sale due to natural causes or otherwise. When such a change is alleged by the accused to he due to the delay in analysing the sample it is not for the prosecution to show by extraneous evidence what the percentage of insect damaged seeds was or quantity of insects dead or alive on the date of sale. The statute does not contemplate analysis at the time of or on the date of sale or sampling. Rules provide a time schedule for the different steps to be taken and several safeguards to be observed to preserve the sample in good condition until analysis by Public Analyst and the analysis in the Central Food Laboratory during legal proceedings. The prosecution cannot fail because the sample is not analysed either at the instance of the Food Inspector or the accused within the shortest possible time. What the legislature intended to check and prevent is the adulteration of article of food so that public health is not endangered. Accordingly expert committee on food standards is constituted and standards are prescribed for various food articles. In fixing such standards the committee must have taken into account the variations that occur under normal conditions. When the sample taken is properly packed, sealed and fastened and the analyst finds the sample fit for analysis the court cannot assume that supervening delay in analysis would have caused material change in the quality or standard of the sample in the absence of relevant evidence.
15. We are not impressed by the argument that because there is disparity in the results declared by the public analyst and by the Director of Central Food Laboratory and living insects were present at the time of anaysis, it has to be assumed that sample contained only eggs or larvae at the time of the sale or that there was rapid growth of insects after the date of sale or that the sample was not insect infested at the time of sale and the percentage of insect damaged matter could have been below 5% or even negligible at the time of sale. The report of the public analyst is superseded by the certificate of the Director. Even if there is wide variation between the Director's certificate and analyst's report, the former supersedes the latter and the superseded report cannot be revived for any purpose. The difference in the percentage of insect infested matter as reported in Ext. P6 and Ext. D1 cannot be an indication of any steady growth of insects of increase in infestation after the sale. One of us in Food Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224), after considering practically the entire case law on the point, including the decisions in Abdul Hameed v. Food Inspector, 1969 Ker LR 922, State of Kerala v. Vasudevan Nair, 1974 Ker LT 617 : (1975 Cri LJ 97) (FB), State of Kerala v. P. K. Chamu, 1975 Ker LT 411 and State of Kerala v. K. C. John, 1978 Ker LT 738 : (1979 Cri LJ NOC 48), observed in para 23 :
".....it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analyses. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage'of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of Sub-sections (3) and (5) of Section 13 of the Act."
We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the Public Analyst and the Director, Hence we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate.
16. According to the standard prescribed for 'coriander whole' under Appendix B. A.05.08 of the Rules, the permissible limit of insect damaged matter is 5% by weight. The term insect damaged matter means grains or seeds that are partially or wholly bored by insects. Ext. D 1 declares the quantity of such seeds as 15.3%, If the defence contention is accepted not less than 10.4% by weight of the seeds should have been attacked by insects during the period between 21-2-1980 and 25-7-1980. To produce such a result there should have been rapid multiplication of the insects in the sample part. Without relevant data it is not possible to assume such growth of insects or deterioration of quality. The Director has identified the insect species detected as "Stegobium Pancium". There is no evidence as to the conditions under which the specie would multiply or as to the life cycle of the same, to determine the magnitude of the possible multiplication. Dwl examined as an expert witness said that an agricultural produce may become insect infested due to contact with moisture and air and once it is insect infested the growth may continue. The witness admitted that if the insects are placed in unfavourable circumstances they will remain dormant without growth. The length of life cycle of each insect specie would vary. If insect infested article is kept in air tight and sealed bottles, it will not be possible for the insects to complete the life cycle. The rate of growth or multiplication of the insect varies from specie to specie and no precise standard can be set as uniformly applicable.
17. Insect damage may increase only if living insects are present. An article may contain insect damaged matter without any insect present in it. If it is assmued that the sample contained only eggs or larvae at the time of the sampling and later eggs developed into insects, the process will naturally require some time. The eggs hatch in a few days. The time required for eggs to hatch in summer is said to be about a month. So at least a month is required for the eggs to become insects. Then only they can multiply. The above period mentioned is under ideal conditions. The process will retard if conditions are not ideal. The presence of living insects at the time of analysis need not suggest multiplication after the sample was lifted. Further the rate of increase is a matter of evidence depending upon the life cycle of the specie and the conditions under which the sample was kept.
18. In Vijaykumar v. State of Punjab, 1974 SCC (Cri) 245 : (AIR 1974 SC 687) sample of elachi dana on analysis after 12 days was found infested with insects to the extent of 9.7%. The plea that the infestation must have supervened between the date on which the sample was taken and the date of analysis was rejected by the Supreme Court pointing out that the sample was seized before rains had come and the article of food,, of which sample was taken is not of the same variety as atta or maida in which case there was a po'ssibility of the sample becoming infested during rainy season within 15 days or one month.
19. In Jagadish Prasad v. State of Delhi, 1982 SCC (Cri) 698 : (AIR 1982 SC 57} a sample of amchoor sabat was taken on 3-10-1970. Three days later the analyst found that the sample was insect infested and 23.8% of the pieces of amchoor sabat were insect infested. The report did not mention the extent of insect infestation or that any living or dead insects were present in any part of the sample. The sample of amchoor sabat taken on 3-10-1970 was analysed by the Director of Central rood Laboratory on 1-9-1971 and was reported to be highly insect infested. The Supreme Court took the view that the evidence on the whole can be accepted as justifying the conclusion that on the date on which the sample was taken it was insect infested within the meaning of Section 2(i-a) (f) of the Act.
20. In State of Tamil Nadu v. Shanmugham Chettiar, 1981 SCC (Cri) 1 : (AIR 1981 SC 175) the certificate of the Director showed that the sample of gingely oil contained 6.2% of Free Fatty Acid whereas the permitted limit was 3%. The sample taken on 1-11-1969 was analysed by the Director on 6-2-1970. The view of the High Court that although the Free Fatty Acid content was 6.2% on the date when the sample was analysed by the Director it could not be said to have been established that on the date when the sample was taken such content exceeded 3%, was rejected by the Supreme Court with the observation :
"There is nothing in the evidence, nor has. anything been shown to us from any scientific work which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months that what was less than 3 percent on November 1, 1969, when the sample was taken increased to 6.2% by February, 6, 1970, when the sample was analysed by the Central Food Laboratory."
The learned Judge proceeded to state after referring to New Encyclopaedia Britannica, (Vol. 13 pages 526-527) that it is only after prolonged exposure to air and light that there may be some discernible chemical changes in gingely oil. The court accepted the certificate as conclusive, when the sample was properly packed, to hold that the oil was adulterated. This decision is an authority for the position that variation in the two analyses reports does not suggest likelihood of deterioration between the date of taking the sample and the date of analysis when the sample was properly packed as required under the rules to be air tight and moisture tight.
21. The existence of proper mark and seal or fastening in accordance with Section 11(1)(b) of the Act would be guarantee of the safe storage and transit of the sample. Rule 14 lays down that the sample shall be taken in clean dry bottles or jars and other containers which shall be closed sufficiently tight and shall be carefully sealed. Rule 16 prescribes the manner of packing and sealing. The stopper shall be securely fastened so as to prevent leakage and the container shall be completely wrapped in a fairly strong and thick paper. A paper slip going completely round the container shall be pasted on the wrapper. Under the scheme of the Act and Rules a time schedule is also provided for having the sample analysed. When these formalities are substantially complied with and analysis shows that the article does not conform to the prescribed standard, the result of anylysis can be safely acted upon. The burden of proving that the presence or increase of the vice affecting the. sample is due to natural causes or otherwise during storage is upon the accused. This burden can be discharged either by adducing evidence or relying on materials on record or on acceptable scientific treatises. An unsuccessful attempt has been made by the petitioner herein to discharge the burden.
22. The courts below have not appreciated the question bearing in mind the standard of proof that is required to establish the defence plea. A, preponderance of probability would entitle the accused to tilt the scales. We are, therefore, of the view that the conviction has to be set aside and the trial court directed to dispose of the case afresh on a proper consideration of only this issue after giving the accused further opportunity to adduce evidence, if any.
23. It has also been contended on behalf of the petitioner that Section 13(2B) of the Act has not been complied with and therefore Ext. D1 is of no avail to the prosecution. It is pointed out that there is no record evidencing that the Magistrate had ascertained that the mark, seal and fastening as provided in Section 11 (i) were intact, that the signature or thumb impression as the case may be was not tampered with before despatching the sample to the Director of Central Food Laboratory, It is therefore argued that the Magistrate did not perform his statutory duty as required under Section 13(2B) of the Act. Reference is made to the decision in State of Maharashtra v. Dhyan Deo Ramchandra Patil, (1983) 1 FAC 9 (Bom). Our attention has also been drawn to the decisions rendered by learned single Judges of this Court holding the view that acquittal of the accused on the ground that the Magistrate had not made a record in this behalf, is proper. The decisions are in Crl. R. P. 19 of 1980, Crl. R. P. 164 of 1981, R. C. 61 of 1985 and those reported in Food Inspector v. Abdulla, 1986 Ker LT 1267, Kesavan v. Food Inspector, (1987) 2 Ker LT 87 and Gopalan v. State of Kerala, (1987) 2 Ker LT 577. According to the learned prosecutor these decisions require reconsideration particularly since a different view appears to have been taken in the decisions rep9rted in Mani v. Food Inspector, 1984 Ker LT 1011 and Food Inspector v. Anantha Padmanabhan, 1986 Ker LT 765. Section 13(2B) of the Act reads :
"On receipt of the part or parts of the sample from the Legal (Health) Authority under Sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (.1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seat to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the anylysis,"
The official function of the court under this sub-section is to despatch under it's own seal to the Director of the Central Food Laboratory the sample produced by the local authority on application made in that behalf. Necessary steps are detailed in the provision. Sample has to be palled for from the local authority. Court has to ascertain that the mark, seal or fastening are intact and the signature or thumb inpression has not been tampered with and threafter despatch the same to the Director as indicated in Rule 4 of the Rules. Sub-section (2B) does not require the court to certify or make a rec6rd of these steps contemporaneously or even subsequently. The official act enjoined on the court is to despatch the sample. Essential formalities are those mentioned in Section 13(2B). There is.no dispute that the official act has been performed in this case. Section 114, illustration (e) enables the court to presume that the official act has been regularly performed. The superior court may in its discretion presume that the official act of despatching the sample to the Director of Central Food Laboratory has been performed regularly, that is, after taking all such steps and precautions as are required to be taken under Section 13(2B) of the Act. Since the authority involved isa court, we see no reason to hesitate in drawing such a presumption. This is particularly so when this aspect could have been, but was not challenged in the trial court. It is, of course, desirable that a record of the steps taken is maintained, but failure to maintain such record cannot stand in the way of the aforesaid presumption being drawn. The decisions referred to earlier that hold against the presumption being drawn and the acceptability of the certificate of the Director of Central Food Laboratory in the absence of record of all the steps taken under Section 13(2B) of the Act, do not lay down good law.
In the light of what we have stated above, we set aside the conviction and sentence and remand the case to the trial court for disposal afresh.