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(1) This is an appeal against the judgment dated 28.9.1976 of Shri J.D. Kapoor, Metropolitan Magistrate whereby the respondent Jagdish Chander was acquitted of the charge of selling adulterated namkeen cashew-nuts fried in vanaspati.

(2) Briefly the facts are that the respondent has a shop in the Central Market, Lajpat Nagar, New Delhi. On 19th July 1975 Food Inspector Vir Bhan Sharma (Public Witness -2) visited the shop of the respondent at Central Market, Lajpat Nagar. The respondent was found to be selling bakery products and carbonated water etc. The respondent had at his shop namkeen Kaju fried in vanaspati. P.W. 2 disclosed his identity and purchased 600 gms. of kaju on payment of Rs. 18.00 as its price for the purpose of analysis. The Food Inspector divided the sample in three equal parts and sealed each part in a dry bottle. The food inspector sent one part of the sample in Public Analyst who found it to be adulterated due to the presence of 7 per cent insect damaged kaju and due to the presence of insect infestation. We may notice that six dead insects were found in the sample.

(17) Dr. Pingley was examined as a prosecution witness and he gave evidence that he considers the sample to be adulterated due to insect infestation and the sample being unfit for human consumption. In cross-examination the witness stated that the kajus were insect damaged to the extent of 7 per cent and six insects were also found and if the kajus were not insect damaged to the extent of 7 per cent he would not have held the sample as unfit for human consumption or adulterated merely because of the presence of six dead insects. Dr. Pingley further stated as follows : "It is correct that the report Ex. Pe does not give the description of dead insects found in the sample. The damage in the kaju pieces is evident that the insect which had entered the kaju were breeding in it. In case of kaju the damage is caused by larvae only and not by other adult insect. This report does not disclose whether the dead insects were larvae or insects. In court-in my opinion the permissible limit of insects dead or living and irrespective of their description is 4 insects per kg. in kaju which is a processed food. The Central Committee of Food Standards has proved the permissible limit of 4 insects per kg. in processed food and 8 insects per kg. in primary food."

(18) We have no evidence when the above recommendation was made by the Central Committee. Rule 48B as earlier observed is completely silent regarding the presence or non-presence of insects in kaju-nuts.

(19) On the material placed before us we are unable to hold respondent guilty for adulteration on account of presence of six dead insects in the sample.

(20) Mrs. Kumar contended that presence of dead insects in prepared food would be wholly unpermissible. Mr. Sanghi contended that insects may be inside the kernel and it was only during the process of frying that the insects may have come out and died. In our view the answer to this argument of Mrs. Kumar depends upon the interpretation to be given to Rule 48B. There is a lacuna in Rule 48B aid it will bs for the rule making authority under the Prevention of Fool Adulteration Rules to clarify whether insect infestation is permissible in cashew-nuts and if so, what extent. The rule making authority also needs to clarify Item No. 14 of Rule 22 as to what is prepare food or processed food.