Devinder Raj vs The State of Punjab

Ujagar Singh, J.—Dr. B.D. Dogra exercising the powers of a Food Inspector, came to the shop of the Petitioner in Onkar Nagar and he was found present there. The Food Inspector after disclosing his identity and purpose of his visit, found 10 Kgs of grounded dal of Maha, contained in gunny bag, kept for sale, in the shop of the Petitioner. Dal weighing 1500 grams was purchased as a sample after making the entire lot of dal homogenous, for a sum of Rs. 9.75 against receipt Ex. PB, signed by the Petitioner and PW Des Raj. The Food Inspector completed the other formalities required for the purpose. After getting the report Ex. PB from the Public Analyst, the Food Inspector filed the complaint Ex. PE. Copy of the report Ex. P1 was sent to the Petitioner vide registered letter, postal receipt of which is Ex. P. 2. The acknowledgement receipt was not received back.

After taking cognizance, the Petitioner was charged u/s 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called as the Act). It is also worth mentioning that the Food Inspector before purchasing the sample of dal had given notice Ex. PA to the Petitioner. The prosecution examined PW1. Dr. B.D. Dogra and PW2 Iqbal Singh and thereafter it closed its evidence after tendering affidavit Ex. PF of Satpal furnishing the link evidence.

Petitioner was examined u/s 313 Code of Criminal Procedure and he completely denied the case of the prosecution and took up a specific plea that he had not kept the dal for sale but for consumption of animals. He examined DW1 Des Raj who supports his plea. After considering the facts of the case the trial Court convicted the Petitioner tinder the said offence and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. In defult of payment of fine he was further directed to undergo rigorous imprisonment for three months.

The Petitioner filed an appeal against his conviction and sentence but the Sessions Court declined to interfere and this revision has been filed to challenge the order of conviction and sentence awarded to the Petitioner.

PW-1 Dr. B.D. Dogra the complainant has supported the complaint and his testimony is corroborated by PW2 Shri Iqbal Singh Head Clerk in the office of Local Health Authority as he accompanied PW1 to the shop of the Petitioner and was present at the time of purchasing dal for analysis. The report Ex. PD given by the Public analyst shows that the macro and micro analysis was done on 13.9.1984 and one living insect, three dead insects and three rat droppings were detected. It was further found that organic extraneous matter was 0.39%, insect damaged grain 1.26% and foreign edible seeds was 0.5% add the ingorganic extraneous matter was nil. The report only contains the facts found on analysis and the opinion expressed is as under:

Contents of the sample contained four living and dead insects and three rat droppings.

There is no further opinion as to what is the effect of four living and dead insects and three rat droppings in the dal.

In his statement u/s 33 Code of Criminal Procedure the Petitioner after denying the allegations of the prosecution took up a specific defence that at the time of giving sample he had told the doctor that the dal was meant for consumption by the animals. Des Raj witness also supported the Petitioner to have told this to the doctor. Inspite of this, the doctor took the sample. He further stated that apart from these facts, he had a board in front of his shop to this effect.

The learned Counsel for the Petitioner laid stress that the sample could not be dubbed as adulterated as the contents found in it did not fulfil the requirements of Section 2(1)(f) and Section 7/16 of the Prevention of Food Adulteration Act. He has further argued that the sample was taken on 12.9.84 whereas the test report was prepared on 12.10.1984 and thus, there was delay of about 30 days in conducting the test. He has further pointed out that September being the rainy-season, formation of insects during the period of 30 days, in the contents of sample, could not be ruled out. The state counsel has vehemently supported the conviction by the courts below.

I have heard the arguments and have gone through the record. The statement of DW1 Des Raj, who was cited as a witness for the prosecution, is that on 12.9.1984 a doctor cams to the shop of the Petitioner for taking sample and he demanded a sample from the Petitioner out of the dal in his possession The Petitioner told him that the dal was meant for consumption by the animals. He also stated that in front of the shop of the Petitioner a Board in Punjabi was present and inspite of the indication on the board the doctor had taken the sample. The prosecution after examining PW1 Dr. B.D. Dogra and PW2 Iqbal Singh, had given up this witness as having been won over.

The learned Counsel has referred to Municipal Corporation of Delhi v. Kacharoo Mal (1976) 3 Cr. L.T. 150, where after making a reference to a case of Dhan Raj v. Municipal Corporation of Delhi 1973 Cr. L.J. 433, the following observations were reproduced:

The expression ''insect-infesed'' was not defined in the prevention of Food Adulteration Act and has, therefore, to be given its ordinary meaning. The word ''infest'' appears to have been derived from the latin word ''infestate'' which meant to assail or molest. According to the Oxford English Dictionary (Volume V at page 259) the word ''inafest'' means, "To attack, assail, annoy, or trouble (a person or thing) in a presistent manner," "to visit persistently or in large number for purpose of destruction or plunder", "to swarm in or about, so as to be troublesome" In the same dictionary the word ''infestation'' is stated to mean: "The action of infesting, assailing, harassing, or persistently molesting". It is also mentioned that the word is now used especially for ''insects'' which attack plants, grain etc. in large swarms" Thus an article of food would be ''insect infested ", if it has been attacked by insects in swarms or numbers. It however seems to us that there is no justification for the view that insect infestation would only continue so long as the insects continue to be alive. If an article of food is attacked by insects in large swarms or numbers and for some reasons these insects die, the mere fact that the article of food has no longer living insects but has dead insects will not change its character of being insect infested.

he relevant part of Section 2 of the Act reads as under:

(i) "adulterated"--an article of food shall be deemed to be adulterated--

(a) to (e) ....

(f) If the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or deceased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption.

After interpreting the above said Clause (f) the apex Court in this judgment observed that the phrase ''or is otherwise unfit for human consumption'' can be read conjunctively and not disjunctively. After some eleboration the following observation was made:

We would prefer the first construction as it comports best with reason, commonsense, realities, the tenor of this provision and the main purpose and the scheme of the Act.

In that case, the report of the Public Analyst was silent as to whether on account of the insect infestation found by him in the sample of kaju pieces the article was unfit for human consumption. In this case also, as noted above, the report of the Public Analyst Ex. PD is silent about the article being unfit for human consumption. In another case. Municipal Corporation v. Tek Chand Bhatia (1980) 7 Cr. L.T. 195, cited by the counsel a different view has been taken and Kacheroo Mal''s case (supra) has been distinguished on the ground that in regard to cashew nuts there was at the material time, no statutory provision prescribing any minimum standards of purity. It was futher laid down as follows:

We are of the opinion that the High Court was clearly wrong in its interpretation of Section 2(1)(f). On the plain language of the definition section, it is quite apparent that the words ''or is otherwise unfit for human consumption'' are disjunctive of the rest of the words preceding them. It relates to distinct and separate class altogether. It seems to us that the 1st clause ''or is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being ''filthy, uptrid rotten, decomposed... or insect infested'' would be per se sufficient to bring the case within the purview of the word ''adulterated'' as defined in Sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption.

Another case relied upon by the learned Counsel is State (Delhi Administration) Vs. Puran Mal, , wherein both the above cases i.e. Kacharoo Mal''s and Tek Chand Bhatia''s cases (supra) were discussed in detail and it was held as under: (with reference to the former case).

with utmost respect we are not able to share this view and would hold that the observations made in the judgment, should be confined to the particular facts of that case.

ultimately, it was held that even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of public analyst does not support the case of the prosecution that the Lalmirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the Lalmirchi powder was either worm-infested or insect-infested or that on account of the presence of meal worms the sample was unfit for human consumption. With these observations, the judgment of the High Court was not interfered with and the appeal was dismissed.

In the present case also Ex. PD report of Public Analyst does not not indicate that the dal was either worm-infested or insect-infested or that on account of the presence of four living and dead insects and three rat droppings, the sample was unfit for human consumption. Thus, it cannot be said that Dal in possession of the Petitioner was adulterated.

PW1 Dr. B.D. Dogra, admitted in cross examination that he has not given any note on the documents that the dal in possession of the Petitioner was kept for sale for human consumption. PW2 Iqbal Singh Head Clerk who was accompanying PW1 admitted in cross-examination that the Food Inspector had not given any note in writing on the documents to show that the dal was meant for human consumption. From this evidence on the file, the prosecution cannot be said to have been successful in proving that the dal in possession of the Petitioner was actually for sale for human consumption. In any case the Petitioner is entitled to benefit of doubt.

In view of the above discussion, this Criminal Revision is accepted, conviction and sentence awarded to the Petitioner is set aside and he is acquitted of the charge. Fine, if already paid, be refunded to the Petitioner.