Judgment:
S.R. Brahmbhatt, J.
1. The appellant State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure challenging the judgment and order dated 27th March, 1996 passed by the learned Judicial Magistrate First Class, Bhavnagar in Summary Case No. 808 of 1988 acquitting the respondent accused of the charges under Section 7 and 16 of the Code of Prevention of Food Adulteration Act, 1954 (herein after referred to as 'the Act' for short). This court (Coram : A.N. Divecha, J.) vide order dated 1.10.1996 admitted the appeal and the hearing was expedited.
2. The case of the appellant in short is that the original complainant Food Inspector, as such in the Bhavnagar District, visited the shop of the vendor accused on 7.11.1987 situated at Vartej at about 9.30 AM. He had called panch witness Shri Narsang Haribhai Mori. After introducing himself as a Food Inspector and informing the accused vendor that he had came to collect the sample, he purchased 750 grams of Split Pulse (Dal) Moong popularly known as Mag Dal out of 2 Kgs. Mag Dal kept in an open wooden box. The necessary notice under Form 6 was issued and the Food Inspector obtained the signature of the vendor thereon. The same is produced at Ex.32. The receipt of payment for price of 750 grams being Rs. 5=25ps. was also obtained and it is produced at Ex.33 on the record. The sample food article was, thereafter divided into three equal parts and collected in a dried, cleaned, orderless glass bottle. The glass bottles were tighten with wooden seal so as to prevent moisture or any other particles from getting into it. After applying the seal and containing the requisite details, the panchnama was drawn of the incident of collecting the sample. One part of the sample food article was sent to the Public Analyst after filling the memorandum in Form No. 7, which is produced at Ex. 34. The intimation of sample being sent to the Public Analyst was sent to the Local Health Authority, Bhavnagar, copy whereof is produced at Ex.35. The receipt, of parcel sent through State Transport to Public Analyst Bhuj, dated 7.11.1987 is produced at Ex.36. The registered AD receipt for receiving the memorandum and impression of seal is at Ex.39. The remaining two parts of the sample food article were sent to the Local Health Authority as required under the law. The Public Analyst in his report indicated that the food article in question contained webs and was not in conformity with the standard laid down in Prevention of Food Adulteration Rules, 1955 (herein after referred as 'the Rules' for short) and therefore, the Food Inspector obtained permission from the Local Health Authority for instituting the prosecution against the accused. On 27.11.1987 the consent came to be accorded for lodging the prosecution, which is produced at Ex.48. The complaint was thus lodged on 29th March, 1988.
3. After instituting the complaint, the Local Health Authority issued notice under Section 13(2) of the Act to the accused informing him that the remaining samples could be tested at the end of Central Food Laboratory as required under the law and that he can move an application to the court within 10 days from the receipt of the notice. Along with the notice, the report of the Public Analyst was also sent to the accused as stipulated under law. The accused availed an opportunity of having tested the samples food article at Central Food Laboratory at Gaziyabad. The report of the Central Food Laboratory, Gaziyabad is produced at Ex.53, which also indicates the presence of 6 dead insects, 4 live insects and 8 insect webs in the sample. The sample seems to have been examined on 10.5.1988. After recording the plea of denial, the trial Court proceeded further. The trial Court has after discussing the evidence on record come to the conclusion that the prosecution has failed in proving the case beyond doubt and therefore, the accused deserves to be acquitted and acquitted the accused accordingly. The order of acquittal dated 27th March, 1996 is impugned in the present appeal.
4. Shri Shah, learned Addl.P.P. submitted that the learned trial Court has erroneously acquitted the accused on the ground that there was no proof of adulteration established by the prosecution. Shri Shah has submitted that the report of the Central Food Laboratory being a conclusive evidence, could not have been ignored by the trial Court. Shri Shah has further submitted that the report of the Central Food Laboratory at Ex.53 clearly go to prove the presence of as many as 6 dead insects, 4 live insects and 8 webs and it can well be said that the sample food article was unfit for human consumption and provisions of Food Adulteration Act were squarely attracted, in view of this, the learned trial court seems to have erred in law and fact and the judgment deserves to be quashed and set aside and as factum of article being unfit for human consumption is proved, the accused be convicted and visited with appropriate punishment.
5. This court has perused the record and proceedings of the case. This appeal deserves to be disposed of only on a limited ground that the report of the Central Food Laboratory produced at Ex.53 does not indicate that the sample food article in question was unfit for human consumption. The trial Court has relied upon the decision of the Apex Court in case of Municipal Corporation of Delhi v. Kacheroo Mal, reported in : 1976CriLJ336 and rightly found that the prosecution has failed in bringing the guilt home on the part of the accused. The relevant portion of the Apex court's judgment deserves to be set out as under :-
Spara 7 : The phrase or is otherwise unfit for human consumption can be read conjunctively as well as disjunctively. If it is read conjunctively, that is, in association with what precedes it, sub-clause (f) with slight consequent rearrangement and parenthesis would read like this: If the article is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insect infested, (b) or on account of any other cause. In this view of the sub-clause proof of 'un-fitness of the article for human consumption' is a must for bringing the case within its purview.
Para-8 : If the phrase is to be read disjunctively, the mere proof of the whole or any part of the article being filthy, putrid, disgusting, rotten ... or insect-infested would be conclusive to bring the case within the mischief of this sub-clause, and it would not be necessary in such a case, to prove further that the article was unfit for human consumption.
Para 9 : We would prefer the first construction as it comforts best with reason, common sense, realities, the tenor of this provision and the main purpose and scheme of the Act. The adjectives filthy putrid, disgusting, decomposed, rotten ... or insect-infested refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption. But the presumption may not be conclusive in all cases, irrespective of the character of the article, and the nature and extent of the vice afflicting it. This is particularly so, where an article is found to be 'insect infested'. There as some articles of food in respect of which the Rules framed under the Act, lay down the minimum proportion of insect infestation or insect damage which is not deemed to make the article unfit for human consumption. For instance, in the case of Nutmeg (Jaiphal) the proportion of extraneous matter and infestation shall not exceed 3.0 per cent by weight (Item A.05.16 of the Prevention of Food Adulteration Rules, 1955). In the case of Coriander (Dhania) the proportion of extraneous matter including dirt and insect damaged seeds shall not exceed 8.0 per cent by weight (Item A.05.08). Similarly, in the case of food-grains the proportion of 20 milligrams of insect damaged grain per 100 milligrams sample of the grain, and 5 per cent by weight of fungus-damaged grain is not considered enough to treat it as adulterated either under sub-clause (f) or any of the other sub-clause of Section 2(i).
para-10: These illustrations unmistakably show that the mere fact that any part of an article was insect infested may not be conclusively proof of its being 'adulterated' under sub-clause (f). In other words, all the adjectives used in the sub-clause are a presumptive and not an absolute test of the quality of the article being unfit for human consumption. To be more particular, in the case of an article in respect of which the Rules do not prescribe any minimum proportion of insect infestation, that would exclude it from the definition of 'adulterated article', it will be a mixed question of law and fact, whether the insect infestation is of such a nature, degree and extent as renders the article unfit for human consumption. The opinion of the Public Analyst who examines and analysis the sample, as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence. A Public Analyst is supposed to be specially skilled in the science of dietetics. As an expert in the science, he is competent to opine and testify about this fact.
6. In the instant case, as it could be seen from the record of the Central Food Laboratory at Ex.53, the Director of Central Food Laboratory has not opined in unequivocal terms that the sample food article was injurious to health or that it was unfit for human consumption. Definition of adulterated under Section 2(ia) deserves to be set out as under :-
Section 2(ia) : Adulterated - an article of food shall be deemed to be adulterated-
(a) to (e) ...
(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; ....
It would also be expedient to set out the then existing standard prescribed for food grain, which obviously included Split Pulse (Dal) Moong, as at the relevant time, it appears that no specific standard for this specific food article called 'Split Pulse (Dal) Moong was provided.
7. In appendix ' B, Item No. A.18.06 as it stood then read as under :
SA.18.06 ' Food Grains meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. Paddy is included in food grains and shall have different limits for refractions wherever specified.
Food grains meant for human consumption shall conform to the following standards :-
(i) General ' Food grains shall be free from deleterious material including artificial colouring matter. The pesticide residue, if any, shall not exceed the prescribed permission limit. [Bajra and wheat grain shall not contain ergot affected grains more than 0.05 percent by weight].
(ii) Foreign matter, - Foreign matter means any extraneous matter other than food grains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbled, stones, lumps of earth, clay and mud shall not exceed 1 per cent whereas in case of paddy, it shall not exceed 3 per cent by weight.
(iii) Damaged grain : Damaged grain means grains damaged by fungus, moisture or heating and wherein the damage is not superficial but the grain is affected internally, it shall not exceed 5 per cent by weight.
(iv) Insect damage:- The amount of weevilled grains (by count) shall not be more than 10 per cent or Uric Acid content arising as a result of insect damage shall not exceed 10 milligrammes per 100 grammes, whichever is lower.
(v) Rodent hair and excreta ' Rodent hair and excreta shall not exceed 5 pieces per kg. Of the sample.
(vi) Moisture ' The loss in weight by heating the pulverized food grains at 130'-133' C for two hours shall not exceed 16 per cent.
Thus, as it could be seen from the definition of the Adulterated Food Article and the then existing standard provided for the sample food article, it can well be said that the ratio laid down by the Apex Court in case of Municipal Corporation v. Kacheroo Mal (Supra) would also be applicable in the facts and circumstances of the present case also. In the instant case, the report of the Public Analyst dated 28th November, 1987 at Ex.44 mentions against Column 6 that Insect infestition ' absent and against Column 8 ' Webs : 5 pieces of webs. The report from the Director of Central Food Laboratory dated 17th May, 1988 at Ex.53 is conspicuously silent about the fact that whether the sample food article was unfit for human consumption. The Central Food Laboratory, as it appears from the record, seems to have examined the sample food article on 10.5.1988. It is established position of law that once the report of Central Food Laboratory is obtained, then the report of Public Analyst would pale into insignificance. In view of this, the only piece of evidence in respect of adulteration, could be the report of the Central Food Laboratory at Ex.53. When this report itself does not unequivocally state that the subject sample food article was 'unfit for human consumption', it would not be proper to rely upon such a piece of evidence for upsetting the order of acquittal, in the present appeal.
8. This court sitting in an acquittal appeal is mindful that ordinarily the findings of the trial Court need not be disturbed and reversed unless and until it is manifestly established beyond doubt by the appellant that the trial Court's judgment is so perverse as to result into miscarriage of justice. In the instant case, the appellant could not demonstrate any such perversity, on the contrary as it is stated herein above, the trial Court seems to have correctly relied upon the decision of the Apex Court in recording acquittal of the accused.
9. In view of this, the report of Central Food Laboratory dated 17.5.1988 at Ex.53, a sole piece of evidence for adulteration itself cannot be said to be an evidence capable of answering the ingredients of adulterated food laid down in the law. As the prosecution has failed in proving the case beyond reasonable doubt, the impugned order does not call for any interference.
10. In view of this, the judgment and order of the trial Court dated 27th March, 1996 passed in Summery Case No. 808 of 1988 by learned JMFC, Bhavnagar does not call for any interference in the present appeal and appeal deserves to be dismissed and is accordingly dismissed.