M.C.D. Vs. LACHHMAN DASS

JUDGEMENT

(1.) This reference by Shri Joginder Nath, Additional Sessions Judge, under section 438 of the Code Criminal Procedure has been made in the following circumstances : on 26th Nov., 1971 a Food Inspector of the Delhi Municipal Corporation purchased Amchur Sabat from the shop of Lachhman Dass, respondent herein, for the purposes of analysis. The sample was analysed by the Public Analyst who found it to be adulterated as it was insect infested. The insect infestation was found to be 51.3 per cent by weight. A complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the "Act") was filed against the respondent. The Judicial Magistrate trying the case found the respondent guilty of the offence charged with and sentenced him to imprisonment till the rising of the court and a fine of Rs. 1,000.00 and in default of payment of fine to undergo simple imprisonment for 3 months.

(2.) The Municipal Corporation preferred a revision petition to the Sessions on the ground that the case did not fall within the proviso to section 16 of the Act and, therefore, the Magistrate could not impose a sentence less than the minimum prescribed in the section. Shri Joginder Nath who heard the revision petition has made a recommendation that the sentence awarded to the respondent be enhanced to the minimum sentence of rigorous imprisonment for 6 months and a fine of Rs. 1,000.00.

(3.) Shri Gurcharan Singh, learned counsel for the respondent, contended that the testimony of Dr. P. Diesh (CW 1) is not in the nature of an expert evidence and his testimony is not admissible in evidence and if his evidence is excluded from consideration, there is no material on the record to find that the sample in question, which was found to be insect infested, was unfit for human consumption and, therefore, the conviction of the respondent is not legal. I do not find any merit in the contention. The Public Analyst had on analysis found the sample to be insect infested to the extent of 51.3 per cent. He also found dead insects and their fragments and eggs present in the sample. Dr. P. Diesh, Additional Director General of Health Services, was examined as a court witness. He gave evidence that if Amchur Sabat is insect infested, it is certainly disgusting and that insect infestation of food may lead to harmful effects by the presence of metabolic produced by the presence of such insects which may cause harmful effects. He further stated that if living or dead insects or even eggs are found in an article of food, there is no necessity of calculating Uric Acid in order to determine its fitness for human consumption. Dr. Diesh is an M.B.B.S. and is a Member of the Central Committee for Food Standards. There appears to be no doubt that the testimony of Dr. Diesh is in the nature of an expert evidence and would be admissible in evidence.