RADHEY LAL GUPTA Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted by the Additional Munsif-Magistrate, Haldwani under section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a tine of Rs. 1000/-. In default of payment of fine he is to undergo three months' rigorous imprisonment. In appeal his conviction and sentence were maintained by the Sessions Judge, Nainital. Hence this revision. THE prosecution case is that on 15th September, 1976, at about 12 noon, the Food Inspector visited the shop of the applicant. He purchased six hundred grams of Suji (Simolina) for Rs. 1/20, divided it in three equal parts and sealed it in three clean dry phials on the spot. He prepared its memo Ex. Ka-2 in the presence of the witnesses. He obtained the signature of the applicant in token of the receipt of the money. One of the phials was sent by the Food Inspector for analysis to the Public Analyst. He reported vide Ex. Ka-4 dated 15th October, 1976, that the article of food was adulterated, since it contained Gluten at 4.5 per cent., which was less than the prescribed standard of 6% and also that the sample contained living insects. After obtaining the requisite sanction the applicant was prosecuted and convicted as above. THE applicant pleaded not guilty. He alleged that the Suji in question had been purchased by him from another firm M/s. Om Prakash Agarwal, Haldwani. He alleged that the sample was taken from his shop in packets and not in phials. He claimed to have given this information to the Food Inspector at the time when the sample was taken Hoti Lal D. W. was produced in support of the defence case. Two main points were argued before me by the applicant's counsel. One was that an article of Food which is insect infected need not be unfit of human consumption and that it was necessary for the Public Analyst to give his opinion on that question. He has also argued that the presence of insects, as shown by the Public Analyst in his report, is by itself no guarantee that the insects existed also on the date when the sample was taken. THE insects could be born in the sample of Suji even during the interim period of the taking of the sample and its analysis, due to several factors. THE next point argued by him was that it is not possible to extract gluten contents of Suji. Gluten is so inextricably mixed with the rest of the contents of Suji that it is beyond the power of human agency to separate the same without the article of food losing its identity and ceasing to exist completely. Since both these questions were important questions of law and since Dr. S.B. Singh, Public Analyst, who had submitted the instant report, had not been examined in the court below, I summoned him in this Court and recorded his statement on 24th October, 1978. I shall now discuss each of the questions raised by the applicant's counsel. From a perusal of Ex. Ka-4 it is clear that the sample contained living insects "Namoonay mein jiwit kiday payay gayay". It is true that the report does not mention that the insect infected article examined by the Analyst was unfit for human consumption. Dr. Singh has stated that in the analysis reports only details are given without expressing any opinion whether the presence of living of dead insects make the article unfit for human consumption. A Perusal of Form III framed under Rule 7 (3) of the Food Adulteration Rules, shows that there is a column where in the Public Analyst is required to express his opinion with regard to the contents of the sample analysed by him. Under Section 13 (5) of the Prevention of Food Adulteration Act any document purporting to be a report signed by the Public Analyst, unless it is superseded under sub-section (3), of any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated there in any proceedings under this Act or under sections 272 to 276 of the Indian Penal Code. It is thus clear that the report of the Public Analyst constitutes legal evidence in the case. It is, therefore, not necessary at all to produce the Public Analyst in every prosecution under the Prevention of Food Adulteration Act. Of course, it is open to the court to accept the report or to reject it. But in order to assess the value and reliability of the report, it becomes very essential that while expressing his opinion in Form III, the Public Analyst should not only give the result of the analyst but also express an opinion as to whether the article of food analysed by him is injurious to health and unfit for human consumption. A close scrutiny of Section 2 of the Act indicates that in several sub-sections mentioned therein, it is necessary for the prosecution to prove that the sample contains a constituent, partly or wholly, which injuriously affects the health of a citizen or renders it unfit for human consumption. Unless the injurious effect on human life is established it would not constitute an offence, even if the article of food does not prescribe to the recognised standard. In my opinion, therefore, it is all the more necessary that the Public Analyst must express his opinion in his report, which he submits on Form III of Rule 7 (3) of the aforesaid rules, as to whether the foreign impermissible ingredient present in the sample of analysis is deleterious to health or unfit for human consumption. THE report of the Public Analyst being incomplete it became necessary to summon Dr. Singh. He has, however, stated before this Court that the presence of insects in Suji certainly makes the article unfit for human consumption. He was u-.able to state whether the presence of dead insects in Suji Makes it unfit for Human consumption, because he had not experimented it. However, in the present case we are concerned with living insects found in the sample in question and on the basis of the statement of the expert it can safely be held that the presence of living insects in an article of food renders it unfit for human consumption. Under section 2 (f) of the Act, an article of food shall be deemed to have become adulterated if the article is insect infected or is otherwise unfit for human consumption. Both these expressions are not exclusive of each other, but are conjunctive. For an article of food to be adulterated under this section it has not only to be insect-infected but also unfit for human consumption. THE Supreme Court has already taken the same view in its decision reported in Municipal Corporation of Delhi v. Kacherpo Mai (1), as I have mentioned above, the Public Analyst has categorically stated that the insect-infected article is unfit for human consumption. In these circumstances, I have no hesitation in holding that the sample on the date of its analysis by the Public Analyst was adulterated within the meaning of section 2 (f) of the Prevention of Food Adulteration Act. THE matter, however, does not rest there. THE other limb of the same argument of the applicant's counsel has to be considered. According to him the insects may have grown during the period that the sample was taken by the Food Inspector and it was finally analysed by the Public Analyst. THE sample in question was taken by the Food Inspector from the shop of the applicant on 15th September, 1976. Dr. Singh has stated that the said sample was received by him on 17th September, 1976. It was given to the Analyst for analysis on 25th September, 197f. According to Dr. Singh the sample must have been analysed on 25th or 26th September, 1976. THE analysis is conducted by Experts, who are science graduates and post graduates, under the supervision of the Public Analyst. THEre is nothing wrong with this Procedure. But in the instant case the report of the first analysis was perhaps not found satisfactory and therefore, the sample was given for the second analysis on 5th October, 1976. On the basis of the second report No. 26416 dated 15th October, 1976, which was the final report, the applicant has been prosecuted. It is not clear from the statement of Dr. Singh as to when the second analysis was actually done in between the period 6th October to 15th October, 1976. From a perusal of Form III framed under Rule, 7 (3) of the Food Adulteration Rules, 1 find that there is no specific column to indicate the exact date when the analysis is conducted. THE only, relevant column is the one which refers to the date of which the report is signed by the Public Analyst. In the instant case the report has been signed by the Public Analyst on 15th October, 1976. It would be more in the fitness of things if from III also contains a column indicating the exact date of analysis so that this may be, prima facie, obvious from the report itself and is not left to be speculated upon or decided as a controversial question of fact. Dr. Singh's statement discloses that he had given the first sample of analysis on 25th September, 1976 and it must have been analysed on 25th or 26th September, 1976. It would, therefore, be reasonable to infer that the same procedure must have been followed when the sample was sent for a second analysis on 5th October, 1976. In other words in all probability the second sample was analysed on 5th or 6th October, 1976 and the report was subsequently signed on 15th October, 1976. Having arrived at the above finding a question arises whether there could be natural growth of insects in the sample in question between the period 15th September, 1.976, when the sample was taken and 6th October, 1976, when the sample was analysed for the second time. Dr. Singh has averred that generally insects grow within a period of 15 days to one month. THE growth can be earlier, if the sample is taken in cloth or paper container, because such containers are liable to absorb much moisture. THE evidence on the record indicates that the sample was not taken in paper or in cloth containers but was taken in tight fit closed glass phials I have no reason to doubt the statement of the Food Inspector on this score. Dr. Singh, has, however, also stated that if the samples are taken in tight fit glass containers, there still can be a natural growth of insects therein, but the period of growth would be roughly between one to two months, depending upon the season. He has vouched that the month of September is a rainy season and therefore, the growth of insects in that month can be earlier than the period stated by him. As has been mentioned by me above, the period between the taking of sample and the second analysis was three weeks. Reading the statement of Dr. Singh as a whole on this aspect of the matter, 'the probability of the insects having grown within a period of three weeks during the months of September, which is admittedly a rainy season, cannot be totally ruled out. In this view of the matter, it cannot be said with any degree of certainty that the sample in question was insect-infected on the date when it was taken by the Food Inspector viz., on 15th September, 1976. In view of this finding the applicant cannot be held guilty of the offence on this ground. THE next question for consideration is with regard to the deficiency in the gluten contents of the sample. According to the prescribed standard the contents of gluten in Suji should be six per cent. From the statement of Dr. Singh, who has consulted the relevant papers produced by him, it appears that in the first analysis of the sample the gluten content was 4.1 per cent. This analysis was conducted on 25th/26th September, 1976. This analysis was no; found to be satisfactory with the result that the sample was analysed for the second time on 5th/6th October, 1976, as held by me above. THE second analysis disclosed that the sample contained gluten contents to the extent of 4.5 per cent. Dr. Singh has stated that in the first case moisture was less and in the second case moisture was more and that has resulted in the difference in gluten contents. He has stated that up to a difference of .1 per cent, we do not consider it necessary to have a third analysis. THE method by which analysis has been conducted had been detailed by Dr. Singh in his statement. This method is prescribed under the rules and has been stated by Dr. Singh as follows : "Add 15 ml. of water to 2 grams of sample taken in a basin and work up into a dough with the aid of a spatula. Taking care that none adheres to the spatula finally. Allow to stand for 1 hour. THEn put the dough in a piece of clot and wash in a gentle stream of cold water until starch and soluble matters are removed. Collect the gluten from the cloth and place in a beaker containing cold distilled water for 1 hour. Remove the gluten from water, press dry between the palms to squeeze out moisture as far as possible, spread it in a tired dish and dry for 24 hours at 100 centigrade, cool in a desiccators and weigh." Dr Singh has elaborated his statement by clarifying that the cloth used for analysis was very fine Muslin Tanzeb' cloth. Learned counsel for the applicant has submitted that use of Tanzeb cloth may have affected the percentage of gluten contents which has been shown in the analysis. He urges that gluten being a sticky substance can stick on to Tanzeb cloth. He has referred to the report of the 'Processed Cereals and Pulses Sectional Committee, AFDC 32, appointed by the Central Government and which has been approved by the Agricultural and Food Products Division Council. Reference is also made to the Indian Standard Specification for Suji or Raya (Semolina) (First Revision). UDC 664.331. Appendix of the above report mentions that a piece of bolting silk cloth with an aperture of 0.16 mm. size should be used for sieving the dough prepared for the purpose of analysis. Learned counsel has also placed reliance upon the Fifth Edition of Modern Cereal Chemistry by D.W. Kent-Jones, Ph. D., B.Sc., F.R.I.C. and A.J. Amos. Ph. D., B.Sc, F.R.I.C., Analytical and Consulting Chemist (Liverpool, England, the Northern Publishing Co., Ltd., 1957). THE method of analysis of Suji mentioned therein is as follows : "Make 20 g. of flour into a normal dough with the requisite amount of water (usually 10 to 12 ml.). This can be done either with a spatula or in a small mixer. Allow the dough to stand "in a bowl of tap water for one hour at room temperature. THEn knead the dough by hand under a gentle stream of tap water-about 250 ml. per min. Do not use muslin or any such substance to contain the dough. But take care in the early stage or washing to retain all the gluten while the starch washes away. It is desirable to have under the dough a stretched out piece of silk which allows the starch to pass, but which will catch any small pieces of gluten which break off in washing. Such pieces should be collected and added to the gluten in the final stages of washing. Wash for 10 mins. THE weight of the wet gluten can be recorded as well as that of the dry gluten, i.e., after drying on a tired filler paper in an oven at 100C. for 24 hrs." It is clear there from that there is a prohibition laid down for the use of Muslin or any such substance to contain the dough. It appears that this prohibition is based upon the fact that gluten can get struck or absorbed in Muslin or any other such substance but not in silk cloth. On an analysis of the above authorities it would be reasonable to infer that percentage of gluten in the instant sample could have diminished, as a result of the use of Muslin cloth. Dr. Singh has further stated that if gluten is separated from Suji in the manner stated above, apart from the gluten the rest of the starch and minerals are washed away and case to exist. In other words, if gluten is extracted, as mentioned above, then the original article does not remain in existence. This opinion seems to lead to the inevitable conclusion that it is not possible to extract gluten from Suji while retaining the original character of Suji as such. In the end referring to the diminution in the contents of gluten the Public Analyst has given the following opinion. "THE only reasonable explanation which can be offered when the contents of gluten is less than the minimum standard of six per cent., is, to be found in the fact that the Suji is prepared a long time back and then with the passage of time and atmospheric impact thereon and the storage condition, the gluten contents diminishes. In the rainy season its deterioration would be faster." Having regard to all the circumstances mentioned above, the probability of a mistake having occurred, in the analysis so far as the gluten contents is concerned, cannot be totally ruled out. Further the probability that the gluten contents diminish below the prescribed standard due to atmospheric impact and storage conditions also cannot be ruled out. For the reasons given above, I am of the opinion that the applicant cannot be held guilty even on this ground. This revision application is accordingly allowed. THE conviction of the applicant under Section 7/16 of the Prevention of Food Adulteration Act and the sentence imposed there under, are set aside. THE applicant is on bail. He need not surrender. His bail-bonds are hereby discharged. A copy of this judgment shall be sent to the Chief Secretary, U.P. Government, Lucknow for information and necessary action.