N D M C Vs. MANGAT RAM DUGGAL

JUDGEMENT

(1.) This appeal is directed against the judgment dated 24/01/1979 of a Metropolitan Magistrate by which he had acquitted the respondent of the charge under Section 7 read with S. 16 of the Prevention of Food Adulteration Act. Facts of the case in brief are that on 24/07/1974 at about 4.30 p.m. Shri R. N. Malhotra, Food Inspector, had lifted a sample of Maida from the canteen being run by the respondent at Indian Oil Bhawan, Janpath, New Delhi.. Sample on being analysed by public analyst was found to be adulterated as it was found to be insect infested. The learned Magistrate appears to have acquitted the respondent on the short ground that the Food Inspector under the law was not entitled to lift the sample of Maida which was not kept for sale by itself but was being kept for being used in preparing another food article namely Samosas and he placed reliance on a judgment delivered by a single Judge of this Court in N.D.M.C. v. Subhash Malhotra, 1978 (2) FAC 118. In Punnu Ram v. M.C.D., 1978 (2) FAC 76, another judgment of a single Judge of this Court appearing in the same volume a different view has been taken. We would have analysed the reasoning of the two judgments in this case is order to decide as to which view was more appropriate, but it has become unnecessary to do so inasmuch as this point stands covered by a Full Bench Judgment of this Court in N.D.M.C. v. Shri Hardev Singh, 1980(1) FAC 472 : (AIR 1980 Delhi 224). The Supreme Court in Food Inspector, Calicut Corporation v. Charukattil Gopalan, 1972 FAC 9 : (1971 Cri LJ 1271) has already laid down the law on this point by holding that if a particular food article is kept for being used in preparing another food article the sample of the former could be lifted for the purpose of the Act. In that case sugar was kept for being used in preparing the tea and the tea was being sold and sugar as such was not kept for sale, yet it was held that sample of sugar could be lifted under Section 10(2) of the Act.

(2.) Support was being drawn from a judgment of the Supreme Court reported as N.D.M.C. v. Laxman, 1975 (2) FAC 444 : (1976 Cri LJ 547) for the contrary view. This judgment of the Supreme Court was not applicable on the proposition which arose for decision before the Full Bench. The Full Bench had analysed both the judgments of the Supreme Court and had held that the judgment given in Food Inspector, Calicut Corporation (supra) is applicable. So, the learned Magistrate was not right legally in rendering the acquittal of the respondent on this ground.

(3.) As far as the merits of the case are concerned it is indeed not disputed that a sample was lifted from the respondent and on analysis it was found to be insect infested. However, the contention of the learned counsel for the defence is that the public analyst was not right in opening that the sample was adulterated due to presence of some insects. The report of the public analyst which is Ex. PF shows that the sample on being analysed on 25/07/1975 was found to contain one live and one dead weevil and eight living and six dead white insects. The presence of so many insects live and die in a quantity of 200 gms. on the face of it appears to hold that the sample was insect infested. In Vijay Kumar v. State of Punjab, (1974) 3 SCC 769 : (1974 Cri LJ 615), insect infestation to the extent of 9-7% has held to be sufficient to hold the sample as adulterated. In M.C.D. v. Tek Chand, AIR 1980 SC 360 : (1980 Cri LJ 316), it was held that once a sample is found to be insect infested, then it can be said to be adulterated without further proof that the article was unfit for human consumption. In M.C.D. v. Ram Sarup, 1979 (II) FAC 143 : (1980 Cri LJ 216), the sample contained nine or ten white living insects, it was held that the sample was insect infested. So, in view of the above we hold that the sample of Maida in question was adulterated as it was insect infested.