Gouri Shankar Agarwala vs State of Orissa

J. Das, J.—This criminal revision arises out of the appellate order dated 24-11-1984 passed by Sri B. Panigrahi, Sessions Judge, Keonjhar, in Criminal Appeal No. 64 of 1983 upholding the conviction and sentence dated 16-5-1983 convicting the Appellant u/s 16(1)(a)(i) of Prevention of Food Adulteration Act and sentencing him to undergo R. I. for one year and to pay a fine of Rs. 1,000/- and in default to undergo R.I. for six months.

The prosecution case briefly stated is that on 30-9-1980 at 11.00 A.M., the Food Inspector (P.W. 1) visited the grocery shop of accused Gouri Shankar Agrawala at Joda and found that the accused had exposed for sale Harad dal for human consumption. P.W. 1; suspecting the Harad dal to be adulterated served notice on the accused expressing his (P. W. 1) intention to take the sample of the Harad dal for analysis and purchased 600 grams of Hdrad dal on payment of Rs. 2.70 paise. The sample was divided in three equal parts and kept in three clear dry bottles. The bottles were packed, levelled and sealed and the signature of the accused was taken on the sample bottles. One sample bottle along with the memorandum was sent to the Public Analyst by registered parcel in accordance with the legal formalities. The other two sample bottles were sent to the C.D.M.O., Keonjhar. The Public Amlyst gave the report that the sample Harad dal was slightly adulterated. A copy of the report of the Public Analyst was sent to the accused. After obtaining the necessary consent of the C.O.M.O., P.R. was filed and thus the accused stood his trial and stands convicted and sentenced as above.

In his defence the accused stated that he brought the Dal from Rourkela against a cash memo and hence he has not committed any offence as he protected by the warrantee of the cash memo.

Both the trial Court and the appellate Court gave the finding that the Food Inspector has acted in accordance with the legal formalities and that the Harad dal in question was adulterated and the defence plea of warrantee is not reliable.

Heard argument from both sides on various points of law. I, however, find that the trial Court and the appellate Court, as well as the learned advocates for both sides have not given necessary attention to the crux of the case.

On the basis of the report of the Public Analyst Harad dal is said to be adulterated. The relevant portion of the report of the Public Analyst (Ext. 4) is as follows:

I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysts to be as follows:

Physical appearance shows that the sample is Harad dal.

Microscopic examination shows that it contains straches of Harad dal.

It is free from insects, clusters of moulds, rodent hair or excreta artificial colouring matter and boric acid but contains 0.2% Khesari dal.

Inorganic breign matter is nil by weight and organic foreign matter including Khesari dal is 0.2% by weight.

Damaged grain is nil by weight.

Weeviled grains (by count) is 1.0%

The less in weight by heating the pulverised grains at 130o 133o C for 2 hours is 11.1% and am of opinion that the article is a mixture of Harad dal with a small amount Khesari dal vide result No. 2, for which it can be claimed slightly adulterated and contravention of Rule 44-4.

From the opinion of the Public Analyst., it is clear that due to mixture of 0.2% Khesari dal, the Harad dal can be claimed to be slighlty adulterated and it can be said that it has contravened Rule 44-A.

Part VIII of Prevention of Food Adulteration Rules, 1955 provides for prohibition and regulating of sales on certain commodities.

Rule 44-A is as follows:

No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale:

(a) Kesari gram (Lathyrus sativus) and its products,

(b) Kesari dal (lathyrus sativus) and its products,

(c) Kesari dal flour (lathyrus sativus) and its products,

(d) a mixture of Kesari gram (lathyrus sativus) and Bengal gram (Cicer arietinum) or any other gram,

(e) a mixture of Kesari dal (lathyrus sativus) and Bengal-gram dal (Cicer crietinum) or any orher dal,

(f) a mixture of Kesari dal (lathyrus sativus) flour and Bengal gram (Cicer arietinum) flour or any other flour

In this case, Rule-44-A(e) applies and acccrding to that provision mixture of Kesari dal and Bengal-gram dal or any other dal is prohibited. In this case the Harad dal is said to be adulterated as a small amount of Kesari dal, i.e. 0.2% is found.

An article of food can be said to be adulterated within the meaning of Section 2(ia). The relevant provisions are quoted below for easy reference:

...''adulterated'' an article of food shall be deemed to be adulterated:

x x x x

2(m), If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health,

x x x x

According to the above provisions, an article of food shall be deemed to be adulterated, if either the quality or purity of the article falls below the prescribed standard or the quantities of constituents are present in quantities is not within the prescribed limit of variability.

Rule 44-A prohibits sale of Kesari gram or Kasari dal in any form as food and this rule also prohibits mixture of Kesari gram or Kesari dal with any other gram or any other dal used for human consumption. Rule 44-A however, does not prohibit production of Kesari dal by agriculture, or sale of Kesari dal for purposes of other than food such as cattle feed etc. Thus, a shop-keeper may sale Khesari dal not as a food for human, consumption but as cattle feed or any such purposes in the same shop in which he sells other articles of food. In such circumstances, a small quantity of Khesari dal being mixed with articles of food cannot be completely overruled.

In Appendix B of the Prevention of Food Adulteration Rules standards of qualities have been laid down for the articles of food menthned therein. As per the Entry A. 18.06 stlndlrds of foodgrains have been laid down and it is as follows:

A. 18.06 Food grains meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. Paddy is included in foodgrains and shall have different limits for refracticn where ever specified.

Foodgrains meant for human consumption shall conform to the following standards:

(i) General_Foodgrains shall be free from deleterious material including artificial colouring matter. The pesticide residue, if any, shall not exceed the prescribed permissible limit. Bajra and wheat grain shall not contain argit affected grains more than 0.06 per cent by weight.

(ii) Foreign matter_Foreign matter means any extraneous matter other than foodgrains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and and shall not exceed 1 per cent where as in case of paddy, it shall not exceed percent by weight. Organic matter which includes chaff, straw, weed seeds inedible grain, oilseed and other non-poisonous seeds shall not exceed 3 percent by weight

(iii) Damaged grain_Damaged grain means grains damaged by fungus, moisture or heating and wherein the damage is not superficial but the grains is affected internally, it shall not exceed 5 per cent by weight.

(iv) Insect damage_The amount of weeviled grains (by count) shall not be more than 10 per cent or Uric Acid content arising as a result of insect damage shall not exceed 10 milligrammes per 100 grammes, which ever is lower.

(v) Redent hair and excreta_Rodent hair and excreta shall not exceed 5 pieces per Kg. of the sample.

(vi) Moisture_The loss in weight by heating the pulverised foodgrains at 130�- 133o C for two hours shall not exceed 16 percent.

According to Clause (ii) of the entry foreign matter in the foodgrain within permissible limit does not make the foodgrain adulterated. This dause provides that organic matter which includes chaff, straw, weed seeds, inedible grain, oilseeds ana non-poisonous seeds shall not exceed 3 per cent by weight.

Thus, even if 3 per cent of organic foreign matter which includes inedible grain by weight is found in foodgrain, in cannot be said to be adulterated. In this case as per the report of the Public Analyst "Inorganic foreign matter is nil by weight and organic foreign matter including Khesari dal is 0.2% by weight." Thus, the organic foreign matter i.e. Khesari dal found in the Harad dal in question is much less than the prescribed limit. Hence, the Harad dal in question cannot be said to be adulterated.

In the circumstances, discussed above, this case clearly appears to be a mistake of fact and hence the accused-Petitioner is bound to be acquitted. The trial Court and the appellate Court have not taken into consideration the facts and provisions of law discussed above and hence the finding that the Harad dal in question is said to be adulterated, is erroneous. Although the Public Analyst has stated in his report, (Ext-I) lithe article is a mixture of Harad dal with a smla amount of Khesari dal vide result No. 3. for which it cannot be claimed slightly adulterated and contravention of Rule 44-A, still he has made no reference to entry A.18.06 of Appendix B quoted above, which laid down the standards of foodgrains and hence, the report of the Public Analyst is also incomplete and misguided. Hence, the report of the Public Analyst cannot be acted upon and on the basis of that report the Harad dal in question cannot be said to be adulterated.

In the result, the Criminal Revision is allowed and the impunged judgments are set aside and conviction and sentence passed against the accused-Petitioner are set aside.

Revision allowed.