Kimti Lal vs State of Haryana

S.S. Dewan, J.

In this revision petition, Kimti Lal petitioner assails his conviction under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (for short the Act). The learned Chief Judicial Magistrate, Karnal, vide his order dated August 18, 1980, sentenced him to 6 months rigorous imprisonment and a fine of Rs. 1000/. On appeal, the learned Additional Sessions Judge, Karnal upheld his conviction and sentence. He has now come up in revision.

The broad outline of the prosecution case is that on 29th September, 1978. Megh Nath, Food Inspector, accompanied by Dr. J.S. Sohi and Dr. M.S. Rao went to the shop of Kimti Lal accused and purchased from him 600 grams of saunf for analysis on payment of Rs. 4/, as its price. The sample sent to the Public Analyst was found to be adulterated as it contained extraneous matter 6.2% against the maximum prescribed standard of 5%. The Public Analyst also found one living weevil and two rat droppings in the sample.

The case against the petitioner rests primarily on the unimpeachable testimony of Dr. J.S. Sohi, PW 1, Megh Nath, Food Inspector, PW 2, and Dr. M.S. Rao, PW 3. The accused petitioner denied the prosecution allegations and pleaded false complicity in the case but led no evidence in defence.

The main point that has been argued by the petitioner''s counsel is that even though the report of the Public Analyst disclosed that the sample contained one living weevil and 2 rat droppings, be sides containing extraneous matter to the extent of 6.2% yet there was nothing on the record to disclose that the sample of saunf was injurious to health or the same was unfit for human consumption. He, therefore, submitted that no offence has been committed. Reliance is placed upon a Division Bench decision of this Court in State of Punjab v. Raj Kumar 1983 FAC 200. In that case, it was observed that there was no evidence on the file that the saunf purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption and that the mere presence of insects in a sample would not render the same adulterated. But the Supreme Court appears to have taken a different view in Municipal Corporation of Delhi v. Tek Chand Bhatia, 1979(II) FAC 218. On the basis of this decision, it is not now necessary for the prosecution to prove in the case of insect infested food that the same was unfit for human consumption. This decision of the Supreme Court is complete answer to the arguments advanced by the learned counsel for the petitioner.

It was then argued on behalf of the petitioner that saunf is a primary food and the prosecution has not shown that the petitioner has deliberately added an extraneous matter to the saunf. The submission by the petitioner''s counsel seems to be misconceived. The proviso to section 2(ia)(m) of the Act reads thus :

"Provided that, where the quality or purity of the article being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this subclause."

It is the duty of the prosecution to show that the article is adulterated as defined in any of the subclauses of section 2(ia) of the Act. If the prosecution succeeds in showing that an article is adulterated as contemplated in the subclause (m) of section 2(ia) of the Act, never the less the article cannot be deemed to be adulterated, if the circumstances contemplated in the proviso are established. The prosecution cannot be expected to prove that the fall in the standards is not due to natural causes or beyond the control of human agency. It is for the accused who has been dealing with the article in question to adduce proof or rely on other material to show that the fall in standard is solely due to natural causes and beyond the control of human agency. In this regard no part of the burden of proof rests on the prosecution and the entire burden rests on the defendant. The proviso is in the nature of an exception to the clause (m) section 2(ia) of the Act; it is for the defence to establish the exception. Since the petitioner has not discharged the burden resting on him, he has been rightly convicted by the Courts below. No other point was argued.

The revision, therefore, fails and is herein dismissed. The revisions, who was admitted to bail as per order dated November 2, 1981, be got arrested to serve out his sentence in accordance with law.