District Food Inspector vs Shri Meghraj Sarmah

K.N. Saikia, J.—This criminal appeal is from the judgment and order of the Chief Judicial Magistrate, Sibsagar acquitting the Respondent of the charge u/s 16 of the Prevention of Food Adulteration Act (for short, ''the Act''). Samples of mustard oil collected from the Respondent vendor Shri Meghraj Sarma of Shri Shyam Stores of Jorhat-2 was reported by the public analyst to be adulterated.

At the trial the District Food Inspector, who was examined before the charge was framed, was allowed to be cross examined as P.W. 1; and an Office Peon and a nearby shopkeeper Were examined as P.Ws. 2 and 3 respectively. The public analyst was examined as a Court witness at the instance of the defense which examined no witness.

The learned Trial Court acquitted the Respondent on the grounds that from the deposition of the public analyst it transpired that the findings of the tests were noted down in figures which were calculated to arrive at the final results and those notes were the primary evidence in the case and the Court could have examined those figures and calculations thereof; but the public analysts report did not contain those figures; that the prosecution failed to give a definite history of the movement of the sample; that there was a possibility of human error in finding the results, howsoever little or remote it might be; and as the percentage of linseed oil reported to be present in the sample was not given, the prosecution had not been able to prove beyond reasonable doubt that the samples were adulterated, wherefore the accused was entitled to be acquitted on benefit of doubt.

The learned Public Prosecutor submits that the trial Court, misdirected itself in holding that prosecution failed to give definite history of the movement of the sample and it committed error of law in holding that the noted, figures and calculations made and recorded in the process of analysis constituted the primary evidence and their non-production entitled the accused to a benefit of doubt and acquittal, when the percentage of linseed oil present in the sample was not stated.

Mr. P. Barthakur, the learned Counsel for the Respondent replies submitting that the finding is in conformity with the law as pronounced by the Supreme Court.

Two questions arise from the rival contentions, namely, (i) whether it was necessary to give the entire history of the movement of the sample in this case and, if so whether it was to given? (ii) Whether non production of the notes, figures and calculations made and recorded in analysis, and failure to mention the percentage of linseed oil present in the sample of mustard oil would justify acquittal in such a case?

As regards the first question, P.W. 1 deposed that he gave one of the three bottles of sample to the accused and one bottle was sent to public analyst through C/S. He sent a memorandum (Ext. 3) in Form VII along with it and a true copy was also sent by post. Later he received the report of the public analyst (Ext. 4). In cross-examination he said that he sent the sample to the Public Analyst by Registered parcel and the postal registration receipt was kept in the office. The pickings, signatures and seals were not questioned. In the reports of public analyst (Ext. 4 and 8) it has been certified that he received the sample on 11.2.1972 properly sealed and fastened and that be found the seals intact and unbroken. Before the Court also the public analyst deposed to the same effect. He stated that he caused the samples to be analyzed. In cross-examination he said that his Assistants did the analysis but could not say who were those and could not give the exact date of analysis. He signed the report on 5.4.72. He further stated that the samples for analysis used to be received by authorized persons; kept in an ante room behind his chamber and used to be opened by different sets of persons for analysis. On the basis of the above evidence, in our opinion the trial Court bad no basis for holding that "the public analyst and for the matter of that the prosecution has failed to give a definite history of the movement of the sample".

The instant sample was collected on 7.2.72. Sub-section (1) of Section 11 of the Act prior to the amendment by Act No. 34 of 1976 required a part of the sample to be sent to the public analyst. Sub-section (1) of Section 13 before amendment in 1976 provided; "The Public Analyst shall deliver in such form as may be prescribed a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis". This report unless superseded by a certificate issued by the Director of the Central Food Laboratory could be used in evidence. The Public Analyst''s report contained the statement that the sample was found intact. It also said that the seal fixed on the container tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. It, of course did not state who analyzed or dealt with the sample at what stage, because that was not required by law. It was, therefore, not a requirement of law that the prosecution was to prove the entire history or track of the movement of the sample. The learned trial Court misdirected itself in insisting on such a proof and in doubting the Public Analysts'' certificate on that count.

The next question is that of contents of the reports. Exts. No. 8 and 4, contained declarations of the results of the analysis of sample No. 156/7.2.72 and 155/7.2.82 respectively to be as follows:

Saponification value - 18.35 .. 184.1

Iodine value - 140.8 .. 146.4

Free fatty Acids as Oleic Acid 0.53% .. 0.58%

B.R. Reading at 40''C-65''0 .. 65.0

Unsaponifiable matter - 1.06% .. 1.06%

Bellior''s test (T.T.) - 25/1c .. 24.5c

Hexabromide test - Positive .. Positive

Linseed Oil Present .. Present

The Public Analyst Shri P.K. Das in cross-examination stated that all the tests mentioned in Exht. 8 were separates that the results of the tests were noted down; that the figures were calculated to arrive at the final results for which there existed a counting note book at the laboratory maintained by each assistant; and that the Public Analyst personally entered the figures in the main Register. He further said that there were tests by which the percentage of linseed oil in mustard oil could be determined; and that British method was applied by the Assistants in the tests under his instruction. He, of course modestly said that very remote possibility of human error might be there. From the above reports and the depositions can it be said that the data on the basis of which the report that the sample was adulterated were not furnished and hence it was to be doubted?

Item A. 17.06 of App. 1 prescribed the standard as "Mustard Oil (Sarson-ka-tel) means the oil expressed from clean and sound mustard seeds, belonging to the compestris juncea or napus varieties of bressica. It shall be clear, free from rancidity suspended or foreign matter, separated water, added coloring, or flavoring substances or mineral oil.

(a) Butyro-refractometer reading at 40''C .. 58''0 to 60''5

(b) Saponification value .. .. 168 to 177

(c) Iodine value .. .. [96 to 110: Polybromide test shall be negative]

(d) Unsaponifiable matter .. .. Not more-than 1''2 percent by weight.

(e) Free fatty acid as Oleic acid .. .. Not more-than 3''0 percent.

(f) Bellier Test (Turbidity temperature-Acetic acid method) .. .. Not more-than 27''5''C

(g) Test for argomone oil .. .. Negative.

(h) Test for Hydrocyanic acid .. .. Negative]

The standard has been prescribed-but no test has been specifically prescribed for linseed oil''s presence; but it has to be free from foreign mattes. Linseed oil is a foreign matter to mustard oil. In the report presence of linseed oil is reported but its percentage is not stated under item A. 17.04-Linseed oil (Pisi-ka-tel) means the oil obtained by process of expressing clean and sound linseed (Linum usitatissium).

From the reports it would be seen that in several tests the samples did not conform to standard, apart from presence of linseed oil. In Jagdish Prasad alias Jagdish Prasad Gupta Vs. State of West Bengal, it his been ruled that standard prescribed by A 17.06 Laving been fixed after consultation with Central Committee of Food standards set up u/s 3 of Act, any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and he cannot contend that the standards are inconclusive or that they cannot be conformed by an ordinary vender who is not versed in the technicalities. It has further been ruled that where the report of the Public Analyst is that the sample is adulterated and application for sending the sample u/s 13(2) to the Director of Central Food Laboratory for examination not made and the report not superseded u/s 13(3) by the certificate of Director, conviction based on the report and evidence of Public Analyst would be proper. It was further held that where the Public Analyst''s report indicated the results of only three tests out of seven tests that ho had to make under item A. 17.06, report that the sample was adulterated, would not be ineffective or inconclusive so that conviction could be based on such a report. If the saponification value alone did not conform to standard it would be enough to call the sample adulterated.

In Dhian Singh Vs. Municipal Board, Saharanpur, it has been held that the report of Public Analyst need not contain mode or particulars of analysis, nor the tests applied but should contain the results of analysis namely, data from which it could be inferred whether the article of food was or was not adulterated.

Mr. Borthakur submits that Linseed oil was not injurious to health and the percentage of presence being not stated the sample could not be held to be adulterated. This submission is to be rejected in view of the law laid down by the Supreme Court, that even one test would be enough. Besides, in the State of Tamil Nadu v. R. Krishnamurty AIR 1989 S.C. 538, it was held that sale of gingelly oil mixed with groundnut oil was punishable u/s 16(1)(a)(i) read with Section 2(1)(a), notwithstanding the fact that the seller had expressly stated at the time of sale that it was intended for external use only. Both gingelly oil (item A. 17.11) and groundnut oil (item A. 17.03) and mustard oil (item A. 17.06) are; yet their Lordships of Supreme Court held their mixture to be punishable and that law will apply to the instant case. The modest statement by the Public Analyst that there could be possibility, though very remote, of human error in the findings would not in our opinion, make the report, which was not superseded, ineffective or inconclusive. There would, therefore, be no room for doubt or justification for giving benefit of doubt to the accused. The acquittal must, therefore, be set aside which we hereby do and hold the Respondent guilty of violation of Section 7(1) and punishable u/s 16(1)(a)(i) of the Act.

As regards the sentence, Mr. De fairly points out to us that the sample in this case was collected on 7.2.72 and the judgment of acquittal was passed on 30.7.74. More than a decade has thus rolled by since the date of taking sample. The special leave was granted and this appeal was admitted on 31.1.75. Somehow it has taken more than seven long years to dispose of this appeal. Under the above circumstances we are of the view that a custodial sentence after such a long time may be rather stringent. This appears to us to be a sufficient reason for imposing a lesser sentence that the prescribed minimum. Following Sarjoo Prasad Vs. The State of Uttar Pradesh, we feel that ends of justice and crime control may be met if the Respondent is sentenced to pay a fine of Rs. 1000/- (one thousand) only, and, in default, to undergo rigorous imprisonment for six months and we sentence him so.

The appeal is allowed.