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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 195 of 1973.

From the Judgment and Order dated 26-5-1972 of the Delhi High Court in Criminal Appeal No. 177/71.

V. S. Desai, B. P. Maheshwari, Suresh Sethi and B. Bhaduraj for the Appellant.

O. P. Soni, S. N. Mehta, Miss Kamlesh and V. D. Chopra for the Respondent.

The Judgment of the Court was delivered by SEN, J. In this appeal, on certificate, from a judgment of the Delhi High Court, by which it acquitted the respondent of an offence punishable under s. 16 ( 1 ) (a) of the Prevention of Food Adulteration Act, 1954, for the alleged contravention of s. 7(1) thereof, two questions arise, namely (1) whether even though the Public Analyst found in one of the reports, Ext. PE that a particular sample of cashew nuts purchased from the respondent's shop was 'insect-infested' to the extent of 20.6 per cent and that it contained living insects, that circumstance by itself was not sufficient to warrant a conviction, and (2) whether the respondent was protected by sub-s. (2) of s. 19 of the Act inasmuch as he had purchased the cashew nuts in scaled tins from a dealer in cashew nuts under the invoice Ext. DW 3/A, which contained a description of the goods as 'SW Best Bormia'.

The facts of the prosecution case are these. The respondent is a partner of the firm M/s. Narain Dass Tek Chand, Khari Baoli, Delhi. The firm is engaged in wholesale business in dry-fruits including cashew nuts which it gets from different manufacturers. On August 1, 1968 three samples of cashew nuts were taken from its shop by the two Food Inspectors, S. L. Mehra, P.W. 1 and H. K. Bhanot, P.W. 3 from three sealed tins supplied by Sri Venkateswara Cashews, Panruti. These samples were duly forwarded to the Public Analyst, Delhi who by his three reports dated August 3, 1968 in Form III, Exts. PE, PE/1 and PE/2 found that all the three samples taken were 'insect-infested'. Of these, two were insect-infested to the extent Fr of 20.6 and 20.7 per cent and the third to the extent of 5.63 Per cent.

The decision in Kacheroo Mal's case is, however, distinguishable inasmuch as there was in that case no evidence that the cashew nuts, which were insect-infested to the extent of 21.9 per cent, were unfit for human consumption.

In regard to casew nuts there was, at the material time, no statutory provision prescribing any minimum standards of purity. It is, therefore, for the Court to decide upon the evidence in the case, whether the insect infestation found was of such nature and extent as to make it unfit for human consumption. Assuming the test in Kacheroo Mal's case to be correct, and the report of the Public Analyst to be just a piece of evidence which has to be evaluated by the Court in the facts and circumstances of each particular case to reach a finding as to the unfitness or otherwise of the sample for human y. consumption, there is in the present case such evidence. Dr. B. D. Narang, DW 1, examined by the respondent, is an expert on the subject, being a member of the Central Committee of Food Standards besides holding Ph. D. degree in Chemistry from the University of Texas. He unequivocally states that although in regard to cashew nuts, there was at that time no statutory provision prescribing any minimum standard of purity, the Committee had recommended to allow a 10 per cent insect infestation as it was of the view that this much infestation should not be taken as an act of adulteration since it was not harmful to human consumption. In view of this dear evidence, two of the samples of cashew nuts purchased from the respondent, which were found to be insect-infested to the extent of 20.6 and 20.7 per cent, must be held to be 'adulterated' within the meaning of s. 2(i) (f). There is no reason for us not to act upon the testimony of Dr. Narang, who is the respondent's own witness.

That takes us to the next ground namely whether the respondent having sold cashew nuts from sealed tins purchased from the supplier Sri Venkateswara Cashews, Panruti under the invoice Ext. DW 3/A bearing the description that they were 'SW Best Borma' cashew nuts, was protected under s. 19(2) of the Act which reads:

"19. (2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves-