M.C.D. Vs. PREM CHAND

JUDGEMENT

(1.) Prem Chand, respondent, was prosecuted under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954. On Nov. 26, 1970, Sh. O.P. Khurana, Food Inspector of the Municipal Corporation of Delhi, went to the shop of Prem Chand at 2.30 in the after-noon. He saw that Prem Chand was selling "Amchoor Sabat". After disclosing his identity Sh. Khurana purchased "Amchoor Sabat" from Prem Chand. Notice had been given by Sh. Khurana that the sample was being purchased for the purposes of analysis to find out whether the same was adulterated or not. The sample taken was sent for analysis. On receipt of the report the Public Analyst to the effect that the sample sent to him was adulterated on account of insect infestation, Prem Chand was prosecuted. The trial court acquitted Prem Chand by placing reliance on a judgment of this Court given in Cri. Revision No. 120 of 1970 holding that inasmuch as the prosecution had failed to prove that there were living insects in the sample taken, no case of adulteration is made out. Municipal Corporation of Delhi has come up in appeal against that judgment.

(2.) Before us the case argued is somewhat different. It has been urged that the prosecution case is not only of insect infestation but that the article of food on account of presence of insect infestation was unfit for human consumption. Placing reliance on the decision of the Supreme Court in Municipal Corporation of Delhi Vs. Kacheroo Mal, 1975 (2) Prevention of Food Adulteration Cases 233, Mr. Singh, learned counsel for the appellant, urges that the acquittal be set aside and Prem Chand be convicted and sentenced.

(3.) Learned counsel for the respondent has urged that though the Public Analyst may have deposed while appearing as respondent's witness in the trial court that the article of food analysed by him was unfit for human consumption, the prosecution case against the respondent was not that the "Amchoor Sabat" sold by him was otherwise unfit for human consumption. The prosecution case was that the "Amchoor Sabat" sold by Prem Chand was adulterated on account of insect infestation. It has been urged that in this view of the matter no case has been made out for accepting the appeal. Reliance has been placed on a Division Bench decision of this Court in Mohinder Pershad Vs. State, 1972 Prevention of Food Adulteration Cases 474. Learned counsel for the respondent has also taken other points but it is not necessary to dilate upon them as we agree with him. The Public Analyst Sh. Prem Prakash Bhatnagar had not been produced as a witness by the prosecution. He was examined by the respondent as D.W. 1. This witness was examined primarily to depose whether there were any live insects in the sample that he had analysed, in view of the state of law at that point of time. He had deposed in examination-in-chief that there were no live insects. It was only very casual in cross-examination that this witness deposed that every article of food which had been acted upon by insects is unfit for human consumption. Thereafter he bad said that by looking at the report Ex. PW he could say that the sample in question was unfit for human consumption.