Judgment:
S.R.K. Prasad, J.
1. The State has preferred this appeal against the judgment of acquittal rendered in C.C.No.316 OF 1993 by the Judicial Magistrate of First Class, Kamareddy for the offence punishable under Sections16(1-A)(i), 7(i) and 2(ia)(f) of the Prevention of Food Adulteration Act, 1954.
2. The factual matrix that arise for consideration can be briefly stated as follows:-
The Food Inspector-PW-1 inspected the shop in the premises of the accused situate at Reddypet village in the presence of Chenna Chiranjeevulu and PW-2-P.Vijaykumar-. At that time, the accused was dealing the business in his shop. PW-1-Food Inspector noticed 50 Kgs of 'Atta' in a gunny bag. He purchased 600 grams of 'Atta' by tendering amount to the accused in the presence of mediators and thereafter issued a notice under Section 13(2) of the Act expressing his intention for sending sample for analysis. Thereupon, the sample was taken after following the prescribed procedure and sent to the Public Analyst. The Public Analyst sent his report wherein he opined that the sample was insect infested and it was adulterated. After obtaining the sanction order, P.W.1 launched prosecution against the accused. The plea of the accused is one of denial. The prosecution has examined the Food Inspector as well as the mediator-PW-2 in whose presence the sample was taken. It has produced the analyst report as well as the sanction orders and the cash receipt where under P.W.1 purchased the said 'atta'. Ex.P-15 is the copy of notice where under the analyst report was sent to the accused. Ex.P-16 is the postal receipt of the Analyst report, which has been stated to have been served under Ex.P-17. It also produced G.O., appointing P.W.1 as Food Inspector under Ex.P-22 and Ex.P-19 shows that PW-1 undergone training in the inspection of sampling work. Ex.P-18 is the appointment order of P.W.1 as Food Inspector. After considering the entire evidence of PWs.1 and 2 and the material placed before the trial Court i.e., Exs.P-1 to P-22, the Judicial Magistrate of First Class, Kamareddy recorded a finding that the accused us not guilty for the offence with which he was charged, more particularly on the ground that the Food Inspector had not stated in his report that the sample was unfit for human consumption. He has followed the principles laid down in State of Himachal Pradesh v. Balak Ram, 1979 Crl.L.J. 1500 and State (Delhi Administration) v. Puran Mal, 1985 Crl.L.J. 921.
3) The point that arise for consideration is whether it is necessary for the Analyst to mention that food article 'Atta' sent for analyst was unfit for human consumption and failure to mention the same ipso facto lead to the conclusion that the prosecution has failed to prove the offence?
4) It is clear from the evidence of PW-1 rendered along with PW-2 that the Food Inspector inspected the shop of the accused and purchased 'Atta' under Ex.P-1 cash receipt. It is also clear that he served his intention on the accused to send the sample to analyst under Ex.P-6. The fact that the sample has been purchased is probablized by Ex.P-4 panchanama and is also supported by PWs.1 and 2.
4) The contention of the learned counsel for the appellant is that the non-examination of other witnesses who is said to be present at the time of taking sample does not hold much water for the fact that he was not in the country. Moreover, the evidence of PW-2 corroborates the evidence of PW-1. The evidence on record is believable with regard to lifting of sample and there is no need to doubt the version of the prosecution for non-examination of other attestor of the mediatornama. Hence, the non-examination of other attestor is not fatal to the prosecution case. After taking sample and after following the procedure P.W.1 has sent it to the analyst as can be seen from Exs.P-8 and P-9. Thereafter, the analyst sent Ex.P-10 report with a covering letter Ex.P-11. Ex.P-10 was sent to the accused under Ex.P-12, which was addressed by PW-1 to the accused to furnish business particulars. The accused has given Ex.P-13 reply. Ex.P-14 is the sanction order.
3. It is mainly contended by the learned Public Prosecutor that the Analyst has found the sample as insect infested and adulterated and hence the prosecution is able to prove the offence and the finding arrived at by the trial Court is perverse and it lead to miscarriage of justice.
4. Whereas the learned counsel appearing for the accused contends that insect does not include a worm and an article which is infested is not covered and he placed reliance on the decision reported in M/s. Narkeldanga Roller Flour Mills v. The Corporation of Calcutta, : AIR1970Cal333 . He wanted to justify the judgment of acquittal on the ground that the Food Inspector has failed to prove that the sample was unfit for human consumption.
5. Adverting to the said contentions, the Apex Court had an occasion to deal as to what is meant by insect infested in a decision reported in Delhi Municipality v. Kacheroo Mal4. The relevant portion at paras 4, 9, 10, 13 and 14 reads as under:
'4. An article of food which is infested with living insects and is consequently unwholesome for human consumption, does not cease to be so and become wholesome, when these insects die out. The expression 'insect-infested' is to be construed in the contest of an article of food meant for human consumption. It takes its hue from the phrase 'unfit for human consumption' occurring at the end of the sub-clause. Thus construed, it means that the article so abounds in insects dead or living, that it is rendered unfit for human consumption.
(B) Prevention of Food Adulteration Act,(1954) , Ss 2 (i) (f) and13 - Mere insect infestation is not sufficient is not sufficient to hold the article as 'adulterated' - Further proof that the article was unfit for human consumption is a must.
9. The phrase 'or is otherwise unfit for human consumption' in Sec. 2(i) (f) has to be read conjunctively and not disjunctively. The adjectives 'filthy', 'putrid', 'disgusting', ' decomposed', 'rotten'......'insect infested', refer to the quality of the presuming the article to be unfit for human consumption. But the presumption may not be conclusive in all cases, irrespective of the character of the article, and the nature and extent of the vice afflicting it. This is particularly so, where an article is found to be 'insect-infested'.
10. In each case it must be proved that the article was unfit for human consumption. In the case of articles for which the Rules lay down any minimum standard of purity with reference to any of the vices specified in this sub-clause: mere proof of the fact that the impurity was in excess of that countenanced by the prescribed standard, would be conclusive to show that the article was unfit for human consumption.
13. In regard to cashewnuts, there is no statutory provision prescribing any minimum standard of purity with reference to the vice of 'insect-infestatio' or other adjectives used in this sub-clause. It will therefore, be for the Judge of fact to decide upon the evidence in the case. Whether the insect-infestation found was of such a nature and extent as to make it unfit for human consumption.
14. The opinion of the Public analyst who examines and analyses the sample, as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence. But, this does not mean that his ipse dixit would be conclusive and binding on the Court. It is for the Court to weigh his opinion and reach its own finding.'
6. As can be seen from the principles laid down in this decision that under Section 2(i)(f) of the Act has to be read conjunctively and not disjunctively. It is also observed by Supreme Court that Court cannot leave the determination of the samples to the whims and fancies of the Public Analyst. It is further observed that it is for the Court to weigh the opinion and record its own finding. In Delhi Administration v. Sat Sarup Sharma, 1994 SUPREME COURT CASES (Cri) 1720 the Apex Court has observed that the Public Analyst has not opined that the sample was either insect-infested or that it was unfit for human consumption on account of presence of meal worms or that it was otherwise unfit for human consumption will only lead to the giving a finding of guilty and it is held that the offence is not satisfactorily proved. The relevant portions at paras 3, 4 and 5 read as under:
3. We have seen the report of the Public Analyst in the present case. The Public Analyst after giving the composition of the food stuff expressed his opinion in the following terms:
4. As would be seen from the report of the Public Analyst, he has not opined that the sample of Suji was either 'insect-infested' or that it was unfit for human consumption on account of presence of meal worms in that or that it was otherwise fit for human consumption. In the absence of such an opinion, it is not possible for us to upset the order of acquittal recorded by the trial Magistrate or find fault with the order of acquittal. In taking this view we are fortified by a judgment of this Court in State ( Delhi Admn.) V.Puran Mal, where under somewhat similar circumstances this Court opined:
'Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated, for the Public analyst has not expressed his opinion that the lal mirchi powder was either worm-infested or insect-infested or that on account of the presence of the meal worms the sample was unfit for human consumption. Therefore, I am of the opinion that the prosecution has not established by any satisfactory evidence the requirement of Section 2(ia)(f) of the Act'.5. Since, the appellant has failed to establish, by any satisfactory evidence, the requirement of Section 2(ia)(f) of the Act, the judgment under appeal does not call for any interference. The appeal is accordingly dismissed. The bail bonds of the respondent shall stand discharged.'
7. It is clear from the principles laid down by the Supreme Court in the decision referred to supra that when the Food Inspector does not make a mention that it is insect-infested or worm-infested or unfit for human consumption in his analyst report, the accused are entitled to acquittal.
8. The entire thing depends upon the interpretation put on to the said clause. The Interpretation put on by the Supreme Court is that the word 'or' is 'otherwise' unfit for human consumption has to be read 'conjunctively' and not 'disjunctively'. The decision rendered in Mathukutty v. State of Kerala, : AIR1988Ker60 goes contrary to the decision of the Supreme Court when it is stated that clause (f) should be read 'disjunctively'. In that view of the matter, I am not inclined to follow the principle laid down in the aforesaid decision, which is contra to the Supreme Court decision. If the words are read 'conjunctively', it is absolutely necessary for the Food Inspector to make a mention that the food article is unfit for human consumption. But, the Supreme Court has categorically stated in the aforesaid decision that things cannot be left out to the whims and fancies of Food Inspector and Court has to decide on the basis of evidence. PW-1 has categorically stated in his evidence that the 'atta' sold is unfit for human consumption.
9. The short point for consideration is whether the evidence of PW-1 is sufficient to believe the prosecution version. I am of considered view that there is ample evidence that the sample is insect-infested and it is unfit for human consumption as per reliable evidence of PW-1 that it contains plenty of white worms and plenty of black beetles. Moreover, the Analyst also stated that it is insect-infested and adulterated. It is also clear that the sample is not in accordance with the standard prescribed. The standard prescribed under appendix to Prevention of Food Adulteration Rules categorically shows that it shall not contain any worms. In that view of the matter also, the sample drawn for analysis must be held to be adulterated, as it contains foreign substance other than the standard prescribed under clause A 18.01 in Appendix 'B' of Prevention of Food Adulteration Rules. If the Food Inspector does not mention that it is insect-infested and adulterated, there would be some justification in acquitting the accused. It is a case where the analyst has found that the sample is insect-infested and it is not in accordance with the standard as prescribed under clause A 18.01 in Appendix 'B' to the Prevention of Food Adulteration Rules.Hence, I am of the considered view that the food article, which has been sold, is adulterated. The trial Court has exhibited hyper-technical approach in giving a finding of acquittal in spite of Analyst's report that the sample is insect infested. The Court has to keep in mind the observation of the Supreme Court that the matter should not be left to the whims and fancies of the Food Inspector and it has to give its own finding by accepting the report of the analyst whether the sample is fit for human consumption. On the strength of the evidence placed before the Court, namely, the evidence of Food Inspector, I am of the considered view that miscarriage of justice occurred in this case.
10. On appraisal of the entire evidence, I am of the considered view that the article sold is an adulterated article as it is not in accordance with the prescribed standards under clause A 18.01 in Appendix 'B' 18.01 to the P.F.A. Rules and the finding of acquittal is liable to be set aside. I, accordingly, set aside the finding of the acquittal, as there is no proper appraisal of the evidence, which lead to miscarriage of justice.
11. Coming to the aspect of sentence, the learned counsel appearing for the accused wanted this Court to take a lenient view on the ground that the accused is a petty trader in a village doing business.
12. Adverting to the same, no doubt, the accused is a petty trader dealing with the goods in a village. It does not mean that he has to sell adulterated articles, which lead to the contribution of diseases when it is consumed. Selling of adulterated goods is an offence against the society. There is nothing wrong in selling goods and collecting reasonable price. But, it is not justified for any person to sell the adulterated articles of food and cause damage to the health of public. In any view of the matter, there is no previous conviction against the accused; A minimum sentence has to be awarded, namely, Rigorous Imprisonment for a period of three months. He is also liable to pay a fine of Rs. 100/-, in default of payment of fine, Simple Imprisonment for a week.
13. In the result, the judgment of acquittal in C.C.No.316 of 1993 on the file of the Judicial Magistrate of First Class, Kamareddy, is set aside. The accused/respondent is found guilty for the offence under Section 16(1-A)(i), 7(i) and 2(ia)(f) punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The accused is convicted and sentenced to undergo Rigorous Imprisonment for a period of three months and also sentenced to pay a fine of Rs. 100/-, in default of payment of fine, to suffer Simple Imprisonment for a week. The period of custody undergone, if any, shall be ordered to be given set off.
14. The criminal appeal is allowed accordingly.
15. Leave to the Supreme Court is granted, as it involves interpretation of the provisions of Section 2(ia)(f) of Prevention of Food Adulteration Act, 1954.