Shambu Dial vs State of Haryana

B.S. Yadav, J.

On 10th July, 1972 P.W. 1 Megh Nath, Government Food Inspector, accompanied by P.W. 2 Dr. K.C. Singhal and Mool Chand Peon inspected the shop of the accused situated in village Nangal Dargu. After observing usual formalities prescribed under the Prevention of Food Adulteration Act, 1954 (for short the Act) and Prevention of Food Adulteration Rules, 1955 (for short the Rules), the Government Food Inspector purchased 450 grams of ajowan from the accused out of about 2 Kgs of ajowan contained in a pipi. He divided the purchased quantity of ajowan into thee equal parts and each part was separately put in one clean and dry bottle. The bottles were then duly stoppered, labeled and fastened. One part of the sample along with Form VII was sent to the Public Analyst. A copy of Form VII with the impression of seal used was separately sent under registered post to him. The public Analyst vide report Exhibit PD opined that the sample contained 14.1% organic extraneous matter as against the maximum prescribed standard of 3%. On receipt of the above report the Government Food Inspector filed a complaint against the petitioner.

The petitioner, when examined under section 313, Criminal Procedure Code, denied the persecution allegations and pleaded that he was not carrying on any shop. In his defence the had examined D.W.1 Ram Kumar and D.W.2 Umrao, who have supported his plea.

The learned trial court believed the prosecution evidence and convicted him under section 16(1)(a)(i) of the Act and sentenced him to undergo rigorous imprisonment of six months and to pay a fine of Rs. 1000/. Imprisonment in default of payment of fine was also awarded. The petitioner filed an appeal but the learned Additional Sessions Judge (II), Narnaul, who heard it dismissed the same. The petitioner has now come to this court in revision.

To appreciate the arguments advanced by the learned counsel for the petitioners, it is necessary to reproduce here clauses (1) and (m) of section 2(ia) of the Act.

"2. In this Act unless the context otherwise requires :

(ia) `adulterated'' an article of food shall be deemed to be adulterated :

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(i) if the quality or purity of the articles falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health

(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:

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 cases and beyond the control of human agency, then such articles shall not be deemed to be adulterated within the meaning of this subclause."

There can be no two opinions that ajowan is to be considered as agricultural produce in its natural form and would, therefore, fall in the category of primary food as defined in clause (xiia) of section 2 of the Act.

The standard of purity of ajowan has been laid down in clause A.05.23 of item A.05 titled `Spices and Condiments,'' in Appendix B appended to the Rules as follows :

"A.05.23 Ajowan (Bishop''s weed) means the dried pipe seeds of Trachyspsrmum ammi (Linn) Sprague. The proportion or organic and inorganic extraneous matter shall not exceed 3 per cent and 2 per cent respectively. The seeds shall be free from living insects, insect fragments and rodent contamination visible to the eyes.

"Extraneous matter" has been clarified in Note (1) appended at the end of that item as follows :

`The extraneous matte wherever prescribed under this item shall be classified as follows :

(a) Organic extraneous matter such as chaff, stems, straw.

(b) Inorganic extraneous matter such as dust, dirt, stones and lumps of earth."

As noticed earlier, in the sample seized from the petitioner organic extraneous matter was found present to the extent of 14.1 per cent as against the maximum of 3 per cent. Therefore, the question that arises is whether in the present case the sample can be treated as adulterated.

The learned counsel for the petitioner has argued that in the present case the report of the Public Analyst is silent upon the point whether the article was injurious or noninjurious to health and, therefore, it cannot be held to be adulterated under either clause (1) or (m) a of section 2(ia) of the Act and such deficient report warrants the acquittal of the petitioner. In support of his contention he has relied upon State of Haryana v. Rama Nand, 1982 P. L. R. 649 wherein it was remarked :

"Also the report of the PUblic Analyst is deficient whether the article was injurious or noninjurious to health and thus does not carry out the purposes of either clause (1) or (m) of the proviso in section 2(ia) of the Act. Such deficient report alone warrants as to maintain the order of acquittal of the respondent, besides other reasons mentioned heretofore."

I am of the opinion that in case the Public Analyst has not mentioned in his report that the sample was injurious to health then it will have to be held that the adulterants present in the sample beyond the prescribed limits of variability did not render it injurious to health and, therefore, clause (m) of section 2(ia) of the Act will apply. In Amrik Singh v. The State of Punjab, 1983 Cr. L.J. 709 (F.B.) and Parma Nand v. State of Haryana 1984(2) Rent Criminal Reports 487 (DB); 1984 Cr. L.J. 1491 (DB) , the Public Analyst, to whom the sample of primary food, in each case, was sent for analysis, had neither opined that the adulterants had rendered the article of food injurious to health nor he had opined in the negative. In the former case, in a sample of Sabat Mash, weighing 250 grams, two rat droppings as against the permissible limit of 5 piece of rodent excrete per Kg. were found. In the latter case, in the sample of cumin (Safed Jeera) seeds, 5.2 per cent edible seeds other than cumin seeds as against he permissible limit upto 5 per cent edible seeds, were found. In both the cases, this Court held that the articles of food were adulterated as defined in clause 2(ia)(m) of the Act. In the case of ajowan the outside limit of organic extraneous matter has been fixed at 3 per cent but in the sample seized from the petitioner it was found to contain 14.1 per cent. Therefore, it will be deemed to be adulterated within the meaning of the said clause.

The learned counsel for the petitioner next argued that the Public Analyst has not particularised the nature of the organic extraneous matter and has also not opined that it was not beyond the human agency nor due to the result of natural causes and as the onus to prove these factors is upon the prosecution, therefore, the sample cannot be held as adulterated and the accused is entitled to acquittal. In support of this argument also reliance was placed upon Rama Nand''s case (supra). However, in view of the observation made in Amrik Singh''s case (supra) the observations made to the contrary in Rama Nand''s case (supra) cannot be deemed to be good law. In Amrik Singh''s case (supra) a similar argument was raised and it was repelled by a Full Bench of this Court by making the following observations :

"The main C1, (m) prescribes the essentials which would bring the article within the net or the mischief of being adulterated. Plainly enough, the prosecution is, therefore, under an obligation to establish the ingredients thereof and the fact that it falls below the prescribed standard. Once that is done, the proviso is a clear Exception thereto which would exempt or take the matter out of the arena of criminality if its provisions are duly established. Inevitably it would follow that the accused person who wishes to take the benefit of this Exception and extricate himself from the not of culpability, has to himself discharge the burden of establishing ingredients of the proviso. Even otherwise, the larger rule of evidence is that the onus to prove the negative is not to be placed on a party. Clearly enough, the article of `primary food'' herein would be in the custody and possession of the accused person and it is within his special knowledge as to the peculiar natural causes inducing decay etc., (which would make the foodstuff substandard and further where these would be beyond the control of human agency) which he wishes to plead as defence. To place this burden on the prosecution would indeed be placing an impossible onus hardly capable of being ever discharged and thus virtually rendering the main provision of C1. (m) nugatory. Nor can it be left out of mind that we are dealing herein with an antisocial offence. On principle as well as on the plain construction of this provision, it appears that the burden of establishing the requisites spelt out in the proviso, lie squarely on the accused person and not on the prosecution."

In Parma Nand''s case (supra) a Division Bench of this Court has remarked as follows :

"The moment the prosecution establishes that the food sample was adulterated, then the onus shifts on the accused to establish that such adulteration was not the handiwork of the human agency. If he does so then the proviso would not be attracted and he would be liable to be punished for the offence under S. 16 of the Act."

Therefore, it was for the accused to show that the adulterants were present in the sample beyond the prescribed standards due to natural causes or beyond the control of human agency. The accused has not led any evidence on this point. In fact, even in his statement under section 313, Criminal Procedure Code, he did not take any such plea. The only plea taken by him was that he did not carry on a karyana shop, his plea and the evidence led by him has been disbelieved by both the learned courts below.

The learned counsel for the petitioner next argued that in the present case the affidavit, Exhibit PF of the messenger, who had taken the sample to the Food Analyst, was defective in as much as in the endorsement made by the Magistrate at testing the affidavit, the name of the deponent and the date on which it was sworn have not been mentioned. He, therefore, argued that as the affidavit has not been properly attested, it is not admissible in evidence. In support of his arguments he has placed reliance upon State of Haryana v. Pirthi, 1977 C.L.R. (Pb. & Har.) 263. There is no dispute that except with the above omissions there is no other defect in the attestation of the affidavit by the Magistrate. I am doubtful if these omissions would render the affidavit invalid.

Even if the affidavit is excluded from consideration even then the accused is not entitled to acquittal on that ground because in such cases there is no necessity to examine the messenger who delivers the sample to the Public Analyst for analysis as the report is admissible in evidence per se. In the report of the Public Analyst, Exhibit PD, it is mentioned :

"I hereby certify that I, Surinder Kumar, Public Analyst, for all the local areas, Haryana duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954 received on the 12th day of July, 1979 from Shri Megh Nath a sample of Ajwoin No. M/79/57 seized from Shri Shambu Dayal for analysis properly sealed and fastened and that I found the seals intact and unbroken. The seals fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis."

That endorsement shows that the seals on the sample were found intact and unbroken and tallied with the specimen impression of the seal separately sent by the Food Inspector. In State of Punjab v. Bhagwan Dass Jain, 1981 Cr. L.J. 48 a Full Bench of this Court marked as follows :

"The Court has to presume that all official acts are carried out and done in a regular and lawful manner. In spite of that the legislature and the lawmaking body. in the cases governed by the Act and other similar laws, where the report of the Public Analyst, Chemical Examiner and other experts is per se tendered in evidence has provided safeguards, like the manner of sealing and despatch of the incriminating articles and also for crosschecking the identity of the articles seized and sealed. So long as the acts performed by the Food Inspector and other officials are not shown to be motivated, nothing can be presumed in favour of the accused regarding the tempering or interference with the sample without any basis. If the accused wants an inference to be drawn in his favour, then he has to create circumstances in support of that as interference with the sample or its substitution is a question of fact. Unless there is a basis for such an inference the Court, simply on the argument on behalf of the accused, cannot go to unreasonable limits to imagine imaginary possibilities of interference in the sample during transit to the Public Analyst after it leaves the hands of the Food Inspector."

The observations made in that case were approved by another Full Bench of this Court. The judgment is reported as State of Haryana v. Isher Dass, 1985(2) Recent CR 105 (RB) 1985 Cr. L.J. 106 . In both these cases the messenger who had taken the sample to the Public Analyst, had not been examined nor his affidavit was tendered in evidence.

It may be mentioned here that the learned counsel of the petitioner has relied upon a judgment tendered by me which is reported as Hari Om v. State of Haryana, 1982(1) FAC 66 wherein I had held that if the messenger who takes the sample to the Public Analyst, is not examined by the prosecution as a witness, then the accused is entitled to acquittal. While rendering that judgment I had followed another Single Bench judgment of this Court. That judgment of mine was rendered on 11th September, 1981. The judgment of the Full Bench rendered in Bhagwan Dass Jain''s case (supra) was not brought to my notice at that time. In view of the judgments of the Full Benches referred to above, observation of mine made in Hari Om''s case (supra) will cease to hold the field.

Lastly reduction in the sentence was prayed for. It was argued that in the present case sample seized was of primary food and no constituent harmful to health was found in it. It was also pointed out that the case is pending since 1979. Considering these submissions I reduce the sentence of imprisonment awarded to the petitioner to three months.

For the foregoing reasons I do not find any force in the present revision petition and dismiss the same with above modification in the sentence.