OM PARKASH AND ORS. Vs. STATE AND ANR.

JUDGEMENT

(1.) This is an application under Sec. 482 of the Code of Criminal Procedure and under Art. 227 of the Constitution of India assailing the order of Mr. J.D. Kapur, Metropolitan Magistrate, dated Oct., 17, 1975. On Dec. 8, 1973 Food Inspector S.D. Sharma of the Municipal Corporation of Delhi took samples of Amchur which was stored in a number of bags in the Godown of M/s Bulaki Dass Devi Dayal at Dharamsala Madhoo Dass, Pili Kothi, Delhi. Three samples were taken. They were sent to the Public Analyst and were found to adulterated. The Godown having been sealed by the Food Inspector where 54 bags of Amchur were lying. The petitioner moved an application on Nov. 6, 1974 asking for the return of bags of Amchur. When this matter came up before Mr. S.N. Kapur, the then Metropolitan Magistrate dealing with this case, he decided to adopt the procedure of of I.S.I. sampling because the Public Analyst informed the court that it will take a lot of time to analyse nearly 75 samples. The result was that by order dated Nov. 26, 1974 sample from four bags were taken. These were analysed and found to be fit for human consumption. Before the bags could be ordered, Mr. J.D. Kapur, the present Metropolitan Magistrate dealing with the case, took over. He came to the conclusion that the method of sampling adopted by his predecessor was not correct. However, instead of taking a sample from each bag, he directed the contents of the rest of the bags, which were 47 in number, to be mixed up and out of that lot four samples be taken for analysis.

(2.) I find that whereas Mr. S.N. Kapur, Metropolitan Magistrate, had committed a mistake in following the method of random sampling according to the I.S.I. procedure (which in fact applies to machine made articles), the present Magistrate went wrong in deciding to mix up the contents of ail the bags. It has been held by this Court that even if the same article of food is kept in different containers, samples from each container can be lifted, and if more than one sample are found to be adulterated one case for each sample found to be adulterated can be registered against the vendor. In these circumstances it was necessary to take a sample from each of the bags because those bags, which did not contain adulterated Amchur, could be sold by the petitioner in the market.

(3.) Mr. D.C. Mathur, learned counsel for the petitioner, submits that there is no order of seizure by the Food Inspector and so Sec. 11 was not applicable. It is a question of fact and I cannot decide it in the exercise of inherent jurisdiction. Moreover, I find that the application moved by the petitioner was under Sec. 11(5) of the Prevention of Food Adulteration Act. He did not raise this question before the trial court at any relevant stage till the impugned order was passed. I would, therefore, hold that there was a seizure under Sec. 10 when the Food Inspector sealed the Godown.