R.L. Khurana, J.@mdashThe Petitioner, Daulat Ram, stands convicted by the learned Sub-Divisional Judicial Magistrate, Rampur, vide judgment dated 30-6-1994 for the offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954, (for short the Act) and sentenced to rigorous imprisonment for a period of one year and to fine of Rs. 2,000/-. In default of payment of fine, the Petitioner was sentenced to undergo simple imprisonment for a period of two months.
2. The conviction and sentence imposed upon the Petitioner by the learned Magistrate was affirmed in appeal by the learned Sessions Judge Kinnaur at Rampur vide judgment dated 9-4-1997 passed in Criminal Appeal No. 1-R/10 of 1995/94.
By virtue of the present petition, the Petitioner has approached this Court assailing the conviction and sentence imposed upon him by the two Courts below.
3. Briefly stated, the facts of the present case are these. On 24-8-1990 at about 3.30 p.m., the Food Inspector Shri B.L. Justa, purchased 600 grams of "Suji" as sample from the Petitioner out of about 3 Kgs. kept in a wooden box for sale to the general public. Such sample of "Suji" on having been sent to the Public Analyst was found to be adulterated since the same was found to be containing 26 living and dead insects. On the receipt of the report Ex. PD from the Public Analyst, the necessary written consent was obtained from the competent authority for the prosecution of the Petitioner. A complaint was thereafter presented before the learned Magistrate on 27-12-1990 for the prosecution of the Petitioner for the offence u/s 7 read with Section 16(1)(a)(i) of the Act.
4. The prosecution in order to substantiate its case, examined P.W. 3 Sh. B.L Justa, Food Inspector, P.W. 1 Sher Singh and P.W. 4 Balak Ram the alleged two independent witnesses in whose presence the sample of "Suji" was purchased by the Food Inspector, and P.W. 2 Dhanl Ram, the Dealing Assistant in the office of Chief Medical Officer, Shimla.
5. The learned Magistrate upon consideration of the material placed before him convicted and sentenced the Petitioner as aforesaid. Such conviction and sentence was affirmed in appeal by the learned Sessions Judge.
6. The learned Counsel for the Petitioner at the very out set has contended that the sample was not made homogeneous and representative before it was taken and as such a prejudice has been caused to the Petitioner, it was further contended that mere presence pf insects per se was not sufficient to fasten the guilt on the Petitioner within the ambit of Section 2(i-a)(f) of the Act and that it would also be necessary to return a finding that sample was unfit for human consumption on account of its being so insect-infested. It was also contended that since the sample was taken and analysed during the month of August, that is, during the rainy season, there was every possibility of the infestation having taken place during the period intervening the date of taking of the sample and the date of analysis.
7. On the other hand, it was contended by the learned Assistant Advocate General that once the article of food "Suji" in the present case is shown to be insect infested, the same is adulterated within the meaning of Section 2(ii-a)(f) of the Act and it is not required further to show that the said article of food is unfit for human consumption.
8. In Bhagat Ram v. State of H.P. 1986 Shim. L.C. 281 the Division Bench of this Court, had the occasion of examining the following two questions:
(a) Whether insect infestation per se would be sufficient to hold the sample adulterated within the ambit of Section 2(i-a) of the Act or it would also be necessary to return a finding that the said sample is unfit for human consumption on account of its being so insect infested; and
(b) The procedure required to be followed in order - to obtain a homogeneous and representative" sample of articles of food when collected with the object of finding the extent and degree of insect damaged matter or insect infestation.
9. While dealing with the first question, the Division Bench took note of the diametrically opposite views taken by two different Benches of equal strength of the apex Court in
10. The Division Bench, having observed that the apex Court not having said the last word on the controversy whether mere proof of insect-infestation would bring the guilt home to the accused or it would be necessary to give a finding that infestation is of such a nature and degree as to render the article of food unfit for human consumption, addressed itself to the various provisions of Act to make a endeavour to fathom out the true meaning thereof, it was held:
What is insect-infestation ''In test'' means to over-run or spread in large numbers so as to be unpleasant or unsafe (see Puran Mai''s case). An article of food would be insect-infested if insects are present therein in swarms or numbers (see: Kechahru Mal''s case. Can an article of food swarming with insects be fit for human consumption? Answer to the above query has to be in the negative. To put it some what differently in order to determine if an article food can be deemed to be insect infested and, therefore, adulterated, the extent and degree of infestation should be such as to render it unfit for human consumption. Therefore, no Court of law can categorise a sample insect-infested unless it is also of the opinion that the sample is unfit for human consumption on that account. It follows that the prosecution can invariably strengthen its case by adducing evidence to show that the sample in question has been rendered unfit for human consumption due to the presence of insects in number, as found. Failure to adduce such evidence per se cannot, however, be fatal to the prosecution case if the Court can justifiably conclude from the mere extent and degree of infestation that the article of food has thereby become unfit for human consumption. It may be stated here that such a conclusion has to be arrived at by the Court itself (after applying its own mind) and not by following blindly the ipse dixit of the experts, notwithstanding the fact that their opinion would constitute legal evidence to be kept in view for arriving at the aforesaid conclusion.
To sum up, an article of food has to be unfit for human consumption due to presence of insects in large number in order ot hold it insect-infested and, therefore, adulterated within the meaning of Section 2(i-a)(f).
11. On the second question referred to at (b) above, the Division Bench emphasised the need of following the "method of quartering" by the Food Inspector for the purpose of dividing the sample into three parts. It was held:
Before parting with this case, we would like to put down a few other aspects which have come to our notice during the hearing of these revisions. In all the three cases in hand, the respective Food Inspector purchased sample and thereafter divided it into three parts out of which one part duly packed and sealed was sent to the public Analyst. A very vital question which arises is whether the Food Inspector followed the method of quartering for the purpose of dividing the sample into three parts. This method has been described in an authoritative book on the subject viz., Chemical Analysis of Foods and Food products (Second Edition) by Morris B. Jacobs. The procedure of quartering has been described at page 10 in the following words:
A method in common usage for obtaining representative samples is the procedure of quartering. Combine the portions obtained from various sections of the lot and, after mixing as thoroughly as possible by rolling in a sheet or blanket, if the sample is large, or paper, if the sample is of moderate size, from the material into a cone. Flatten the cone into a circular shape and divide into quarters. Take two opposite quarters, that is, quadrants 1 and 3, and repeat the above process. However, after dividing into quarters this time, the opposite quarters to those used before, namely, quadrants 2 and 4, are taken. This process is continued until a sample small enough for submission for analysis is secured.
Manifestly, the above procedure is required to be followed in order to obtain a representative sample. This appears to be a must when samples of foodgrains or articles like Ajwain are collected with the object of finding the extent and degree of insect-damaged matter or insect-infestation. There can be no denying the fact that insect-damaged matter would be comparatively light in weight and would accumulate at the top when shaken in a container. Where the Food Inspector does not strictly adhere to the procedure of quartering, the possibility of a greater proportion of insect-damaged matter being put in one part, specially that part which is sent to the Public Analysts for examination, cannot be altogether ruled out. Similarly, it also stands to reason that the three parts made by the Food Inspector should equally divide the insects. If so, the report of the Public Analyst with respect to the extent and degree of insect-damaged matter or insect-infestation may result in serious errors due to the concentration of such matters and/or insects in the sample which is sent to the Public Analyst. The failure to obtain a proper sample makes a subsequent analysis worthless'' observes Morris B. Jacobs at page 6 of his book referred to above.
12. Having answered the two above referred to questions, the Division Bench further sounded a note of caution to the Courts while dealing with the cases of insect-damaged matter or insect- infestations, in the following terms:
Another point which needs serious consideration concerns the life-cycle of an insect. After all, the criminal liability of the accused has to be determined with respect to the state of the sample, meaning thereby the extent and degree of insect infestation or the presence of insect-damaged matter, on the day when the sample is collected. The insect, however, are known to multiply repidly. In this connection, expert evidence discussed in
In the present case nothing has come on the record to show that same was made homogeneous and representative before it was taken and sealed in three equal parts. The method of quartering was never followed in the present case. Therefore, failure on the part of thee Food Inspector to obtain the proper sample, has rendered its subsequent analysis worthless and the Petitioner cannot be held guilty.
13. There is yet Anr. aspect of the case. It has come in the statement of P.W. 3 the Food Inspector that he did not notice any insect in the sample at the time he took three sample and divided the same in three parts. The sample was taken in the month of August, that is, during the rainy season. Therefore, there was every likelihood of the same having become insect infested during the intervening period. This fact also finds support from the fact that inspite of the sample of "Suji" he found infested with insects, the same was not found insect damaged. Therefore, infestation could have been of recent origin at the time when the sample was analysed.
For the foregoing reasons, the conviction and sentence imposed upon the Petitioner by the two Courts below cannot be sustained.
Resultantly, the present Petitioner is allowed. The conviction and sentenced imposed upon the Petitioner by the learned Magistrate and as affirmed in appeal by the learned Sessions Judge are set aside and he is acquitted of the offence u/s 7 read with Section 16(1)(a)(i) of the Act. The Petitioner is on bail. His bail bonds shall stand cancelled and discharged. The amount of fine, if already deposited, shall be refunded to him forthwith.
