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1. On 15-7-1985 at about 12.30 PM Shri Sube Singh, Govt. Food Inspector along with Dr. J. P. Chaudhary, Medical Officer inspected the business premises of Lakhi Ram (petitioner-herein) at bus stand Chhuchhak was. It was karyana store. At that time, Raj Kumar PW was also with them. 10 Kilograms of maida was found in a gunny bag in the shop which was meant for sale to the public. Shri Sube Singh disclosed his identity to Lakhi Ram that he was Food Inspector authorised to seize samples of food stuff meant for sale from their vendors with a view to have them analysed. He served notice Ex. PA upon Lakhi Ram and asked him to supply 600 grams of maida on receipt of necessary price from him. Notice Ex. PA signed by Lakhi Ram was attested by the PWs. Lakhi Ram supplied 600 grams of maida to Shri Sube Singh on receipt of Rs. 1.50 from him vide receipt Ex. PB signed by him and attested by the PWs. Spot memo EX. PC was prepared at the spot showing entire proceedings taken at the spot. Shri Sub Singh divided the quantity of maida in 3 equal parts. He put each of those parts in dry and clean bottles. Bottles were made into sealed parcels in compliance with the procedure laid down in the Prevention of Food Adulteration Rules, 1955. One sealed bottle was sent to the public Analyst, Haryana, Chandigarh along with memorandum in Form VII in a sealed cover by railway parcel. The other two sealed bottles along with 2 copies of memos in form VII, bearing seal impression, were handed over to the local health authority on 16-7-85. A copy of the memo and the specimen of the seal used to seal the bag was sent to Public Analyst, Haryana, Chandigarh separately by registered post. Public Analyst, Haryana found that the sample was containing 19 living weevils and 100 living meal worms. On the receipt of the report of the public Analyst, complaint was instituted by the Food Inspector against the accused under section 16(1)(a)(i)/7 of the Prevention of Food Adulteration Act, 1954. At the request of the accused other part of the sample was sent to the Director, General Food Laboratory, Ghaziabad for analysis who vide report Ex. PF found that the sample was not free living and dead insects and insect larvae. Sample was found not conforming to the standard of maida laid down in item A. 18.02 of Prevention of Food Adulteration Rules, 1955 in that gluten content was less than the minimum prescribed limit and alcoholic acidity was above the maximum prescribed limit. Accused was charged under section 16(1)(a)(i)/7 of the Act. Accused pleaded not guilty to the charge and claimed trial.

Physical Appearance :- The sample was free from fungal growth and rodent contamination. The sample however showed presence of 237 live insects, 3 dead insects, 32 live insect larvae and 56 dead insect larvae (checked on 15-11-85).

Analytical data :-

1. Moisture (at 130-133 deg. C. for 2 hours) : 13.7%

2. Total ash (on dry wt. basis) : 0.72%

3. Ash insoluble in dilute HCL : 0.045% (on dry wt. basis)

4. Gluten (on dry wt. basis) : 5.9%

6. He found that the sample was showing the presence of 237 live insects, 31 insecticides, 32 live insect larvae and 50 dead larvae. He found that the sample was not free from live and dead insects and insect larvae and was thus adulterated. Director, Central Food Laboratory found the sample deficient in gluten content. Gluten content was less than the minimum prescribed limit. Alcohol acidity was above the maximum prescribed limit. Director, Central Food Laboratory, Ghaziabad found the sample as not conforming to the standard of maida as laid down in A. 18.02 of the Rules. Item A. 18.02 of the Rules which lays down the standard for maida says that maida shall conform to the following standard :-

(e) Alcoholic acidity (with 90 per cent alcohol) expressed as H2SO4 (on dry wt. basis) - Not less than 0.12 per cent.

Rodent hair excreta shall not exceed 5 pieces per kg.

7. Learned counsel for the petitioner submitted that the sample was allegedly taken on 15-7-85. It was received in the office of the Public Analyst on 18-5-85. It was analysed on 19-7-85. Analysis report was signed on 22-8-85. Because of it being rainy season, insects bred in the sample. Sample reached the Director, General Food Laboratory on 13-11-85. It was analysed on 15-11-85. Report on analysis was signed on 9-12-85. It was submitted that insects bred in the sample during that period. In support of this submission, reliance was placed on Om Parkash v. State of Haryana, 1986 (1) FAC 77 where it was laid down that where "atta" was not analysed for 24 days, the possibility of some insects infesting the atta could not be ruled out. It was held that it was the bounden duty of the prosecution to rule out this possibility by producing expert evidence. He placed reliance on Single Bench decision of this Court in Mukand Lal v. State, 1975 (1) FAC 281 where the accused was given the benefit of doubt on the ground that atta had remained unexamined, un-analysed for 13 or 15 days. In that case the seizure of sample of atta took place in the month of July which is a rainy season. It was held that in the month of February also, such insect infestation can take place. He placed reliance on Bhopat Ram v. State of Punjab, 1985 (1) RCR 338 where the sample of "haldi" power was taken on 30th September, 1981. No preservative was added in it. On 8-12-82, the Director, General Food Laboratory reported that if in the sample moisture content was 9% as against permissible upto 13% but the sample contained 42 live insect larvae, 9 dead insect larvae, 14 dead insects and a number of insect larvae cocoons. It was pointed out before the learned Single Judge that the sample contained moisture and the possibility could not be ruled out that no preservation was added to the sample. The moisture content could have led to the appearance of larvae cocoons including insects live and dead depending upon their appearance due to the natural food. Reliance was also placed on Ghanshyam Dass v. State of Haryana, 1983 (2) FAC 87, Gulshan Rai v. State of Punjab, 198 (2) FACT 328 (sic). In this case, no preservative was added in maida. No wonder some moisture was already present in the sample bottle. No wonder the moisture entered in the sample bottle afterwards which gave rise to insect infestaion. In this case, however, the sample of maida was deficient and it did not conform to the standard of maida laid down in Item A. 18.02 of the Rules as per the report of the Director, Central Food Laboratory, Ghaziabad. In the report of the Director, Central Food Laboratory, Ghaziabad which supersedes the report of the Public Analyst in view of Section 13(2) of the Act and on which the prosecution relied and which was put to the accused in his statement under Section 313 Cr.P.C., the presence of 257 live insects, 3 dead insects, 32 live insect larvae and 56 dead insect larvae in the sample was found, the sample has to be held to be adulterated in view of its non-conformity to the standard of maida laid down in item A. 18.02 of the Rules.