Document Fragment View

Matching Fragments

7. 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 words "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.
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 word "infestation" in itself 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. Bal Kishan (Case No. 178/3) 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.
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. The Public 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 be 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.
12. 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 Besan with which he was concerned at that time. It was also iis view then that there must be at least 9 or 10 insects living in the whole of the sample before he declared it insect infested. 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.