Jagdish Chandra vs State

P.N. Bakshi, J.—The applicant has been convicted u/s 7/16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced to 6 months'' RI and a fine of Rs. 1000/-. In default of payment of fine, he is to undergo a further period of imprisonment for 2 months. His conviction and sentence has been confirmed in appeal by the Sessions Judge, Fatehpur. Hence this revision.

I have heard learned Counsel for the applicant and have also perused the impugned order. I have also carefully examined the record of the case.

According to the prosecution case, the Food Inspector Sri R. S. Kushwaha visited the shop of the applicant in village Kishanpur on 20th October, 76, at 12.15 p. m. He was accompanied by another Food Inspector Sri G. D. Singhal. After giving due notice to the applicant, he purchased 450 grams of Dalchini for Rs. 2.25. The same was divided into 3 equal parts and put in 3 separate bottles which were duly wrapped and sealed. Two of these bottles were kept in the office of the Chief Medical Officer and the third was sent by the Food Inspector to the Public Analyst. The report of the Public Analyst (Ex. Ka 3) disclosed that the sample did not contain dalchini, but was cent per cent foreign bark. After obtaining sanction from the Chief Medical Officer vide Ex. Ka.3 a complaint was filed against the applicant, who was thereupon, prosecuted and convicted as above.

Both the courts below on a consideration of the evidence on the record and the circumstances of the case have come to the conclusion that the guilt of the accused has been fully established. They have held the offence of adulteration proved to the hilt.

Counsel for the applicant has made a few submissions.

To begin with, he attacked the report of the Public Analyst dated 20th November(sic) 76 which runs as follows;

Foreign bark 100% Dal Chini Nil Volatile Oil 0.5%V/W

Microscopy: Structures of inner bark of Cinnamomum Zeylanicum Nees not present.

In the opinion of the Public Analyst the sample does not contain Dal Chini but cent percent foregin bark.

Learned Counsel contended that the microscopic test which has been conducted according to the report of the Public Analyst was not sufficient to prove the case of adulteration. He prayed that the Public Analyst be summoned and asked to give details regarding the analysis. At his request 1 summoned Sri S. B. Singh, Public Analyst, Government of U.P., Lucknow. I examined him on 3rd September, 79. Sri Singh has described the method by which the microscopic examination was conducted. He has vouched that the only test which is conducted in his department for the purpose of determining whether Cinnamon is pure or impure, is the microscopic test. He has sworn that the microscope that is used in his department is powerful enough to enable them to clearly visualise the distinction between the fibres and starch etc. present in cinnamon and cassia, He has given the details of these distinctions. Thereafter Sri Singh has stated that by use of the words foreign bark in his report what he meant was any other bark except Cinnamomum Zeylanicum Nees (dalchini). He has further elaborated the expression by deposing that "by the remark foreign bark cent per cent in my report what I mean is that the bark was not cinnamon at all. I do not mean that it was either Indian or Chinese Cinnamon". He has also vouched that ''According to the specimen as given in Serial No. A.05.06, Cinnamon (Dal Chini) is the inner bark of Cinnamomum Zeylanicum Nees. I have judged the foreign bark from the standard as provided in the above Sl. No. which comes from Ceylon. It did not conform to that standard at all. On the date when the sample was analysed there was no standard for Chini Dal Chini."

From a perusal of this statement, I have no doubt that microscopic test which was conducted in the office of the Public Analyst, was the proper test and that the sample of ''Dal Chini'' in question contained cent per cent foreign bark, which was not Dal Chini at all. In this view of the matter, I find no force in the first submission, made by the applicant''s counsel.

It has been next contended that there has been infringement of Section 11(1)(c) (i) & (ii) of the Prevention of Food Adulteration Act under which it was mandatory for the Food Inspector to send one part of the sample to the Public Analyst and the remaining two parts to the Local (Health) Authority. It has come in the evidence of the Food Inspector that he had divided the sample in question into 3 parts and had duly wrapped and sealed the bottles. He has also deposed that one bottle had been sent by him for analysis along with the memorandum in form VII paper No. 9-A. He has also deposed that two bottles, he deposits with the Local (Health) Authority. The Food Inspector had vouched that he prepared form No. VII on the spot. It is dated 20th October, 76. While sending one bottle along with Form No. VII to the Public Analyst, I find that a note has been made therein at serial No. 3, that a copy of this memo along with the second and third phials of the sample is sent herewith to the District Medical Officer of Health Fatehpur. These entries have not been challenged by the applicants counsel. As such I have no hesitation in holding that there has been full compliance of the procedure prescribed u/s 11(1)(c)(i) and (ii) of the Prevention of Food Adulteration Act by the Food Inspector. There if thus, no merit in this second contention, raised by the applicant''s counsel.

The applicant''s counsel has also argued that there has been an infringement of Rule 18 of the Prevention of Food Adulteration Rules, which provides that a copy of the memo and the specimen of the seal used for the purpose of sealing the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. It will be pertinent to observe here that no such contention has been raised on behalf of the accused-applicant before any of the courts below. Even in this Court, though as many as 14 grounds of revision have been taken, there is not a single ground of revision which challenges the infringement of Rule 18 of the Prevention of Food Adulteration Rules. These are questions of fact which cannot be allowed to be raised haphazardly without being agitated at the proper stage. Moreover, Serial No. 2 of the memo in form No. VII which has not been challenged on behalf of the applicant, is to the effect that "a copy of this memo and the specimen impression of the seal used to seal the packet of the sample, is being sent separately by post." I have no reason to doubt the correctness of the entries in this form. 1 have further no reason to doubt that the Food Inspector whose testimony is very straight forward and impressive and who had taken all due precautions to send one part of the sample to the Public Analyst, immediately was oblivious of his duty and did not send a copy of memo and the specimen of seal separately to the Food Inspector as required by law. As already mentioned, the Food, Inspector was never cross-examined on this question and as such I am convinced that the circumstances and the evidence on the record justify a reasonable inference that Rule 18 framed under the Prevention of Food Adulteration Act was complied with. The Sessions Judge has rightly observed that whatever was done in this case was to ensure to the best that the sample bottle of the sample could not be changed. In this view of the matter, 1 am of the opinion that even the third contention of the applicant has no legs to stand on.

The applicant''s counsel has not contended that, there is evidence to indicate that Chinese Cinnamon is grown at several places in India in the south. Therefore, the sample should have been judged from the Indian standard and not from the standard of Dal Chini which comes from Ceylon. The Public Analyst has given a very clear statement on this question. He has said that on the date when the sample was analysed, there was no standard prescribed for Chini Dal Chini; the only standard that was prescribed was for Cinnamon which comes from Ceylon and it is from that standard alone that the sample of Cinnamon had to be judged. Thus, this contention of the applicant''s counsel also fails.

At last, applicant''s counsel has sought the protection of Section 2(m) Proviso of the Prevention of Food Adulteration Act. In my opinion, the benefit of this proviso cannot be given because according to the report of the Public Analyst, the bark of the sample that was examined was not cinnamon at all. It was neither Indian nor Chinese Cinnamon as stated by the Public Analyst. The mere presence of 0.5 percent volatile oil cannot convert the foreign bark into Cinnamomum Zeylanicum Nees (Dal Chini).

For the reasons given above, I do not find any force in this revision, which is hereby dismissed. The applicant is on bail. He shall be taken into custody forthwith to serve out the remaining portion of his sentence. The interim order passed by this Court on 23-2-78 staying realisation of fine is hereby vacated.