SHIV CHAND RAI Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON 31st July, 1979, the petitioner was found in possession of a bag containing 10 kgs of ginger dry (Sonth). The Food Inspector purchased samples therefrom. A sample was sent to the Public Analyst. His report dated 28th August, 1979, revealed, that the sample contained 4 dead weavl and was 90% insect damaged against the maximum prescribed standard of 5%. On that analysis the Public Analyst opined that the sample was unfit for human consumption. The petitioner thereupon was tried for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. He was awarded the minimum sentence of 6 months' rigorous imprisonment and ordered to pay a fine of Rs. 1,000/ -; in default further 3 months' rigorous imprisonment. His effort to get it set aside in appeal proved futile.

(2.) THE learned counsel for the petitioner has primarily relied on a decision of a Division Bench of this Court (to which I was a party) in State of Haryana v. Rama Nand, Criminal Appeal No. 470 -DBA of 1980, decided on 25th January, 1982. In that precedent, the concept of 'primary food' has been explained elaborately. It has also been pointed out therein that there are curbs imposed under Section 10 of the Act on the powers of the Food Inspector regarding primary food. If a primary food is not intended for sale as such food, the Food Inspector has no power to take samples. It was spelled out that the reason for such law was that primary food being a product of agriculture in its natural form was available for inspection to the naked eye to the seller as also the buyer and that the seller at any time, finding or suspecting such food to have become adulterated within the meaning of the Act, could give out his intention that it was not meant for sale. In this manner, the Food Inspector could be prevented from taking samples thereof.

(3.) IN the instant case, the positive case of the petitioner right from the beginning was the Sonth with him was not meant for sale for human consumption. In other words, the petitioner at the time of compulsive sale to the Food Inspector was aware that such food had become adulterated within the meaning of Act. Even, otherwise, such a high percentage of insect damaged matter does got to show that at the time of sale it cast visible to the naked eye that Sonth was insect infested and it was no intended for sale. Though it is true that the sample was taken in rainy season, to which no preservative was added, and the same was analysed in the Food Laboratory in four weeks' time, giving a doubt that it could have got insect infested, but not to the extent of such a high percentage as it has been found to. It is inferential that right from the beginning at the time of compulsive sale, Sonth had became unfit for human consumption and had not been intended for sale. The Food Inspector, in buying the same despite protests of the petitioner (though he has chosen to deny it) seems to have not been aware of the curb put to his power under Section 19 of the Act. Additionally, even the Public Analyst does not say that the food analysed was injurious or non -injurious to health as is the legal mandate under the amended law taken note of in Rama Nand's case (supra). As is plain, the law laid down in the aforesaid authority is fully applicable to the facts of the present case.