Kedarnath Singh vs State of Assam

V.D. Gyani, J.—The revision Petitioner a grocer was charged and tried for offence for having sold insect damaged Dhania punishable u/s 16(1)(a) of the Prevention of Food Adulteration Act of which he was found guilty by the trial Court. His conviction and sentence has been affirmed on appeal. Hence this revision petition.

I must at the outset note, that I am not conversant with the Assamese language in which the whole evidence has been recorded, but for the purpose of this Revision petition, in view of the only point as raised by the learned Counsel for the Petitioner, it is not necessary to go into evidence, nor its reappraisal is ordinarily permissible at this revisional stage, I am confining myself to the report dated 14.7.86 as submitted by the public Analyst Exp-12 which says:

PHYSICAL: INSSECT DAMAGED

GRAINS PRESENT IN EXCESS

Extraneous matter .... 8'' 15%

Insect damaged seeds .... 677%

and am of the opinion that the sample does not conform to the standards.

This report was superseded by the Report dated 24.10.86 from Central Food Laboratory Ex -19 which is reproduced below for ready reference:

Physical examination - Sample contains excessive amount of in sect damaged seeds but insects are not found. Extraneous matter - 177% (including 13''3% insect damaged matter)

Added colouring matter - Absent Microscopical examination. Dhania present. Foreign organic matter absent.

And I am of the opinion that the sample of Dhania (whole) is adulttreated.

The condition of the seals on the container and the outer covering on receipt was as follows:

The seals were intact and tailed with the specimen impression of the seals received separately along with the copy of memorandum on 8.10.86.

learned Counsel contended that the sanction for prosecution was vitiated in as much as, the report dated 24.10.86 of Central Food Laboratory which is materially at variance with the public Analyst''s report was not made available, nor could it be considered while according sanction for prosecution on 2.8.86 vide Ext. 14 It was urged that it could have been placed before the sanctioning authority and fresh sanction before launching prosecution should have been applied for and obtained. The order dated 2.8.86 according sanction for prosecution has taken in to account all relevent facts and report submitted by the Public Analayst. Considering the same the Chief Medical and Health Officer, Dibrugharh District, who has been vested with the authority vide Govt. Notification No. HLA/327/74/94 dated 2.2.79 accorded sanction to institute Prosecution against the Petitioner.

Now adverting to the point as raised by the learned Counsel for the Petitioner that the report received from the Central Food Laboratory is materially at variance with the report as submitted by the Public Analyast, but one thing is common to both the report that both the report say that the Dhania in question was adulterated and both the reports have noted that insect damaged grains were present in excess. As per report of the Central Food Laboratory no insects were found and the percentage insect damaged matter was 133% and foreign organic matter was absent from the sample. It can not, therefore, be said that there is any material variation in the two reports, they are basically the same. Secondly the submission as made by the learned Counsel if accepted, it would mean that the Central Food Laboratory report must be placed before the sanctioning authority which is not practicable under the Scheme of the Act. Sanctioning authority is approached on receiving the report of the Public Analyst. It is on obtaining of the report of the Public Analyst that the accused is informed u/s 13(2) of the PFA Act that if he so desires he should make an application to the Court within the prescribed time (10 "days) from the date of receipt of the intimation to get the article of food analysed by the Central Food Laboratory. In these process when the authority is approached for according sanction, the report of the Central Food Laboratory is not invariably available. Reading Section 20(1) as it is, it does not contemplate placing of report from the Central Food Laboratory for obtaining sanction for prosecution. Thus the point as canvassed, cannot be accepted. But there is one point which emerges from the reports of the Public Analyst and the Central Food Laboratory is that both the reports speaks insect damaged Dhania in the report submitted by the Central Food Laboratory there was no other foreign organic matter found nor any insect found. In face of these two reports, Section 2(f) may now be examined. It reads as follows:

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

Now insect-infested and insect-damaged are two different things. The definition speaks of insect-invested and not insect-damaged. The last clause'' or is otherwise unfit for human consumption'' which is residuary provision would apply to a case not covered by or falling within the preview of the proceeding clauses. As has been explained by the Apex Court in Municipal Corporation of Delhi Vs. Tek Chand Bhatia, if the phrase is to be read disjunctively, the mere proof that the article of food being filthy, putrid, rotten, decomposed or insect-infested would be per se sufficient to bring the case within the preview 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. In the instant case the reports do not say that Dahlia in question was insect-infested, therefore, it was incumbent on the prosecution to have proved that the article of food namely, Dhania as sold was unfit for human consumption, and there is no report to that effect nor any evidence. In a case where nine living worms were found in Red Chilly Powder but there was no report of it being unfit for human consumption nor any mention that the Chilly powder was insect-infested or that on account of presence of the worms as found the samples was unfit for human consumption, the Supreme Court held that the requirement of Section 2(1) (f) was not established (See. State (Delhi Administration) Vs. Puran Mal, The case at hand is no a stronger footing, inasmuch as, as per the reports of the Central Food Laboratory no insects were found nor any foreign organic matter was found and there is no mention in the report that the Dhania was insect-infested. All that is said in both the reports is '' insect-damaged''. In the circumstances, the Petitioner''s conviction as recorded by the trial Court and affirmed on appeal cannot be sustained . The basic requirement of article of food being adulterated has not been made out. The conviction and sentence is, therefore, liable to be set aside, it is accordingly set aside.

The accused Petitioner is acquitted of the charge framed against him. Fine if paid or deposited be refunded to the accused Petitioner. Petition allowed.