Ram Sarup vs State of Haryana

Harmohinder Kaur Sandhu, J.

On 24th July, 1981 Shri Amar Nath Gupta. Government Food Inspector, inspected the premises of Ram Sarup Petitioner and found him in possession of 5 kilograms of Chilli powder, for public sale. The Food Inspector after disclosing his identity and giving a notice in writing to the petitioner purchased 450 grams of chilli powder for analysis on payment of Rs. 4.95. The chilli powder so purchased was divided into three parts and was sealed in three dry and clean bottles after observing necessary formalities. One sealed bottle was sent to the Public Analyst and the other two bottles were deposited with Local Health Authority, Bhiwani. The Public Analyst submitted his report Ex. PD according to which chilli powder was found to contain two living meal worms. The petitioner was then prosecuted for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. He was held guilty and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/ by Chief Judicial Magistrate, Bhiwani. Appeal filed by the petitioner against the judgment recording his conviction was dismissed by the learned Additional Sessions Judge, Bhiwani and the conviction of the petitioner was maintained. The present revision petition has been filed against the judgment of the Additional Sessions Judge dated 3041986.

I have heard Shri Mahesh Grover, learned counsel for the appellant, Shri P. S. Sullar, Assistant Advocate General, Haryana for the respondent and have perused the record.

The main contention of the learned counsel for the petitioner is that the prosecution had tendered in evidence report of the Public Analyst Ex. PD, but this report together with its contents was not put to the petitioner by the trial Magistrate when the petitioner was examined under Section 313 of the Code of Criminal Procedure and as this report was not put to the petitioner the whole trial was vitiated and conviction of the petitioner could not be maintained. In support of his contention he placed reliance on the case of Ram Chander v. The State of Haryana, 1982(11) Prevention of Food Adulteration Cases 331. In this authority it was held that :

"The purpose of Section 313 of the new Code is to enable the accused personally to explain any circumstance appearing in the evidence against him. The language employed is explicit interms indicating that a Court is required to question generally on the case to enable the accused to personally explain any circumstance appearing in the evidence against him. This makes it imperative that nothing vague has to be left by the court in the matter of questioning him on the case. Every material evidence for the prosecution has to be put to him for his personal explanation.

In the present case though the petitioner was told that the Public Analyst had submitted his report Ex. PD whereby his sample was found to be adulterated but the other contents of the report were not put to him so as to give him a chance to explain the presence of meal worms in the sample. This opportunity to explain was denied to the petitioner as he was not put the report of the Public Analyst specifically and the contents thereof with regard to the extent of adulteration. As such the conviction of the petitioner was liable to be set aside on this ground alone.

It was also argued on behalf of the petitioner that as per report of the Public Analyst the sample was not adulterated. Mere presence of two living mealworms itself was not sufficient to hold that the sample was adulterated unless it was shown that it was insect infested and was unfit for human consumption on account of the presence of the mealworms. To support this contention reliance was placed on the case reported as State (Delhi Administration) v. Puran Mal, 1983(2) Recent Criminal Reports 52 (SC) : AIR 1485 Supreme Court 741. This case also pertained to a sample of red chilli powder taken by the Food Inspector from the grocery shop of the accused. On analysis by the Public Analyst it was found to contain 9 living mealworms but the Analyst had neither stated that it was insect infested nor that it was unfit for human consumption on account of the presence of the mealworms nor that it was otherwise unfit for human consumption and there was no other evidence in support of the case of the prosecution that red chilli powder was adulterated. It was held that :

"It was not possible to hold that a worm and an insect are the same. Even if 9 worms found by the Public Analyst in the sample were considered to be the insects the certificate of the Public Analyst did not support the case of the prosecution that the Lal Mirchi powder was adulterated for the Public Analyst had not expressed his opinion that the Lal Mirchi powder was either worm infested to insect infested or that on account of the presence of the meal worms the sample was unfit for human consumption. Therefore, the prosecution had not established the requirement of Section 2(1)(b) of the Prevention of Food Adulteration Act."

In the instant case also the Public Analyst simply mentioned that the sample contained two living meal worms and did not say that the sample was insect infested or it was filthy, putrid disgusting rotten etc. and as such was unfit for human consumption. In view of both the authorities mentioned above, I accept the contentions of the learned counsel for the petitioner and find that conviction of the petitioner cannot be maintained. As the sample is not found to be adulterated, so the question of remanding the case for retrial so as to cover up the defect of not putting the contents of the report of the Public Analyst to the petitioner does not arise.

For the reasons recorded above this revision petition is accepted, conviction and sentence of the petitioner is set aside and he is acquitted of the charge. Fine, if already paid be refunded.