Addul Wahab vs State

Maheswaran, J.—This revision is directed against the order of the learned Sessions Judge, Tiruchirapalli, confirming the conviction of the

Petitioner under Ss.7(i) and 16(1) (a) (i) read with Section 2(ia) (a) and (m) of the Prevention of Food Adulteration Act and the sentence of

rigorous imprisonment for six months and a fine of Rs. 1,000 imposed thereunder by the Sub Divisional Judicial Magistrate, Ariyalur in C.C. 1045

of 1980 on his file.

On 22nd April, 1980 at about 11 a.m. P.W.1, the Food Inspector, purchased about 600 grams of chilly powder from Janata Stores, the shop

of the revision Petitioner, at Bazar St., Perambalur. After observing all the formalities, he divided the chilly powder purchased in three equal parts

and sealed them in three polythene bags and sent one to the Public Analyst and the other two to the Local (Health) Authority. The report of the

Analyst revealed that the sample contained ash insoluble in dilute Hydrochloric acid in excess of the maximum permitted limit to the extent of 169

per cent. On the basis of this report, a complaint was filed. The trial Court found that the sample was adulterated within the meaning of Section 2

of the Act, and convicted and sentenced the revision Petitioner as stated above. In appeal, the conviction and the sentence were confirmed. The

revision Petitioner challenges the conviction and the sentence imposed, in this revision.

Mr. N.T. Vanamamalai, learned Counsel for the revision Petitioner, pointed out that chilly powder, being a primary food, fall in standard is due

to natural causes beyond the Control of human agency and therefore, the article shall not be deemed to be adulterated within the meaning of

Section 2 of the Act, u/s 2(ia) (m) an article shall be deemed to be adulterated if the quality or purity of the article, being primary food, falls below

the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it

injurious to health. The proviso to that section runs thus:

Provided that where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present

in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then,

such article shall not be deemed to be adulterated within the meaning of this sub-clause.

The standards of quality laid down for chilly powder are as follows-

Moisture Not more than 12.0 per cent by weight

Total ash Not more than 8.0 per cent by weight

Ash insoluble in dilute HCI Not more than 1.3 per cent by the weight

Non-volatile other extract Not less than 1.23 per cent by weight

Crude fibre Not more than 30.0 per cent by weight

The sample in question contained total ash to the extent of 8.37 per cent, ash insoluble in dilute Hydrochloric acid 3.5 per cent, nonvolatile other

extract 17.3 per cent and moisture to the extent of 1.0 per cent. The prosecution has to show that this article of food is adulterated as defined in

any of the sub clauses of Section 2 (ia) of the Act and in my view it has succeeded in showing that the article is adulterated within the meaning of

Sub-clause (m) of Section 2(ia) of the Act.

Mr. N. T. Vanamamalai, learned Counsel for the Petitioner, strongly relied on the proviso to Section 2 (ia) (m) and contended that the fall in the

standards was due to natural causes and beyond the control of human agency and therefore the article is not adulterated within the meaning of that

section. Learned Counsel relied upon the ruling in H.V. Bavanna v. State of Kerala. 1985 F.A.J. 293. That was a case of adulteration of milk. It

was found that there was deficiency of solids-not-fat by 2.4 per cent from the prescribed minimum. Relying upon this ruling, learned Counsel

pointed out that the prosecution expected to prove guilt of the accused beyond reasonable doubt by adducing evidence and the accused is not

expected to prove his case beyond doubt and it is enough if he establishes preponderance of probability for that purpose. That is a well known

proposition with which we have no quarrel. But, in my view, once the prosecution shows that an article of food is adulterated as defined in any of

the sub clauses of Section 2(ia) of the Act, the burden is shifted to the accused to prove that the fall in standard is solely due to natural causes and

beyond the control of human agency. It may be that the accused may adduce proof, or without adducing proof, may rely upon the materials in the

case itself to show that the fall in standard is solely due to natural causes and beyond the control of human agency. But, such proof is wanting in this

case and the accused has not adduced such proof to show that the circumstances contemplated in the proviso are established. Bhat, J. in Janar-

dhananan Nair v. Mohammed Kunju 1981 M.L.J. (Crl.) 160 also took the view that it is for the accused who has been dealing with the article in

question to adduce proof or to rely on other materials to show that the fall in standard is due to natural causes and beyond the control of human

agency. In Kamti Lal v. State of Harayana 1983 F.A.C. 204. Dewan, J. was of the opinion that it is the duty of the prosecution to show that the

article is adulterated, and once it is shown that the article is adulterated, it is for the accused who has been dealing with the article to adduce proof

that it is not adulterated within the meaning of Section 2(ia)(m) as contemplated by the proviso and that in that regard no part of the burden of

proof rests on the prosecution. In The Food Inspector, Penugonda Municipality Vs. Dwarampudi Gangireddy, Rama-nujulu Naidu, J. of the

Andha Pradesh High Court also took the same view and observed that once it is established by the prosecution that the sample is adulterated

within the meaning of Section 2(ia) (m) of the Act, the burden shifts on to the accused to establish that the adulteration was solely due to natural

causes and beyond the control of human agency so as to entitle him to escape from the mischief contained in the main sub clauses. I am therefore

of the view that the accused was rightly convicted. The revision fails and is dismissed .