CHAMAN LAL Vs. M.C.D. AND STATE

JUDGEMENT

(1.) On Sept. 13, 1976 at about 3.00 P.M., Food Inspector, R.S. Tyagi, P.W. 2, visited Shop No. 116 A, Kamla Nagar, Delhi, where the petitioner Chaman Lal carries on a grocer's business. The said Food Inspector purchased 600 gms. of Bishop's weed from him and divided it into three equal parts and filled it in three clean and dry bottles which were sealed in the presence of the vendor Chaman Lal and one witness as is evident from the memo Ex. PC. He forwarded one container to the Public Analyst who reported on Sept. 16, (1976) that the same contained 2.72% inorganic extraneous matter which was thus 0.72 per cent in excess of the permissible quantity thereof. The other two parts were sent by him to the local (Health) Authority for purposes of sub-section (2B) of section 13 of the Prevention of Food Adulteration Act, 1954, (hereinafter the Act). At that time, the Municipal Health Officer was the Local (Health) Authority. A prosecution was instituted against the petitioner under section 16 of the said Act by the Municipal Corporation of Delhi through the Assistant Public Prosecutor of the said Corporation on Nov. 8, 1976. During the trial, the accused made an application for having the sample analysed by the Central Food Laboratory, Calcutta. One of the two sample bottles was produced before the learned Magistrate on Jan. 6, 1977, by a clerk of the Municipal Health Officer, who had by now ceased to the Local (Health) Authority, because by a notification of Oct. 5, 1976, the Assistant Drugs Controller had been appointed the Local (Health) Authority. The learned Magistrate verified the seals and fastening of the bottle and found the bottle perfect in all respects, The bottle was accordingly thereafter sent to the Central Food Laboratory which by its report dated Feb. 8, 1977 reported that the sample contained an excessive amount of inorganic extraneous matter, i.e. 9.5 per cent (as against 2.72 per cent found by the Public Analyst). The learned Magistrate by his order dated Oct. 11, 1977, found the petitioner guilty under sections 7 and 16 of the said Act and sentenced him to rigorous imprisonment for 21/2 years and to a fine of Rs. 2,000.00 in default whereof to rigorous imprisonment for one year. The 'learned Additional Sessions Judge, on appeal, upheld the conviction, but reduced the sentence to rigorous imprisonment for one year and to a line of Rs. 2,000.00 in default whereof to rigorous imprisonment for 3 months. Hence, this revision.

(2.) The learned counsel challenged the conviction upon several ground, namely:-

(3.) I have considered the matter, and it appears to me that for the reasons presently to be stated, the petitioner must succeed on the last of the aforesaid grounds, and it will therefore, not be necessary to examine the merits of the remaining points. It was urged that taking the prosecution case as best as it could be, the sample, in order to prove the offence, must be of a representative character of the food article in question. The learned counsel relied upon a Full Bench decision of this court reported in Municipal Corporation of Delhi and another Vs. Bishan Sarup, 1972 FAC 273 , in which it was held that it was open to the accused to show that the sample sent for analysis could not be taken to be a representative sample of the article of food from which it was taken, and if this contention is found to be correct, conviction based on the certificate of analysis will not be sustainable. It was pointed out that the difference regarding the percentage of inorganic matter present in the sample found by the Public Analyst and the Director, Central Food Laboratory, is simply alarmingly so much that absence of uniformity in the samples needs no proof or argument to be established. It is writ large. Inorganic matter, according to the note below item No. A.05 23 of App. B to the Prevention of Food Adulteration Rules, 1955, means dust, dirt, stones and lumps of earth. The wide difference between the two reports shows clearly that the article which was only near about 21/2 kilos in all, was not properly mixed in a homogeneous manner and then divided into three parts. If the article of food has been properly mixed, this difference would not have occurred. The learned counsel submitted that a similar question arose in M.C.D. Vs. Chhaju Lal, 1972 F.A.C. 692 . It was sample of curd taken without churning the article meant for sale. The sample was not considered to be a representative one and the acquittal of the accused was considered justified. There is a considerable force in this submission for one more reason. It can be visualised that if due precaution is not taken at the time of taking a sample and its division into three equal parts out of any non-liquid and dry article not in a powdered form in which certain amount of non soluble adulterant such as earth, dust or stones is permitted, then it is most likely that the entire sample itself or any of its three parts may be free from such matter, or may contain only the permissible amount or may contain the entire prohibited matter. The accused took up this plea in his examination under section 313 Cr. P.C. and urged this point particularly before the learned Additional Sessions Judge, who rejected that he had divided the sample of 600 gms. in three equal parts on a piece of paper and then had put each part separately in the bottle. There is absolute absence of evidence that the article was thoroughly mixed up before the sample was taken or that the sample was thoroughly mixed up before it was divided into three parts, so that all the samples contained equal quantities of the article and the adulterant. The evidence of the Food inspector and the documents prepared by him do not show that each part contained 200 gms. of sample, because no weighment took place before the samples were put into the respective bottles. The Public Analyst and the Director, Central Food Laboratory, have not said anything in their certificates about the quantity of the sample received by them. This, to my mind, is a fatal defect in the prosecution. Without weighment of the quantity of the sample, how can it be said that the sample contained 200 gms. each It is extraordinary to find that the Food Inspector put the sample on a piece of paper and divided it into three parts and yet he was sure that each part contained equal quantities, no more, no less. The question that does naturally arise in such cases is how' this should be done. It is primarily a matter to be prescribed by the Rules, but the Rules appear to be silent on this point. One way that I can think of, would be to separate the prohibited matter from 600 gms. of the sample divide the article and the extraneous Inorganic matter into three equal parts separately by weighment and then put each such part in each of the container. Until some such thing is done, there is no guarantee that the three parts were uniform in their quantity and character. To borrow the words of Bhagwandas Vs. The State and another, AIR 1962 Pub. 419 , it is of the utmost importance to ensure that the three samples are of uniform quality. Otherwise, the whole value of the check and of counter-check is completely lost. It was therefore correctly urged that the sample not being of uniform and representative character, it would be most unsafe to convict the petitioner. Consequently, I hold that in the circumstances of the case, the accused deserves to be given the benefit of doubt.