Municipal Corporation Of Delhi v. Bishan Sarup & Ors.

R.N, Aggarwal, J.:— This is an appeal by the Municipal Corporation of Delhi against the judgment of the Additional Sessions Judge Shri B.B Gupta dated 9th March, 1976 whereby the learned Judge acquitted the respondents of the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

2. On 7th February, 1974 the Food Inspector R.S.D Sharma (PW. 1) visited the business premises of the firm M/s. Richhomal Bishan Sarup of which Bishan Sarup is one of the partners. The Food Inspector took two samples of Ghee: One from a sealed tin and the other from a tin containing about 1½ K.G of ghee. The first sample conformed to the prescribed standard. The second sample on analysis by the Public Analyst was found to be adulterated due to O. 12 excess in the moisture percent.

3. On receipt of the report of the Public Analyst the Municipal Prosecutor filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act against the firm and its partner Shri Bishan Sarup.

4. During the pendency of the trial on an application by the accused the sample in the possession of the Food Inspector was sent to the Director, Central Food Laboratory, for examination. The director vide its report dated 26th March 1975 found the sample to be adulterated. The results of the various tests by the Director were as follows:

“Moisture = 0.2% Butyro-refractormeter reading at 40°C = 44.0 Reichert value = 25.7 Free fatty acid as Oleic acid = 2.4% Baudouin test = Negative Test for Cottonseed oil = Negative Added Coaltar colour = absent.

OPINION: The sample of the Ghee is adulterated.”

The report of the Public Analyst was as follows:

“Butyro-refractometer reading at 40°C = 42.7 Reichert value = 28.6 Free fatty acids as Oleic acid = 1-232% Moisture = 0.42% Baudouin Test—Negative Helphen Test = Negative

COLOUR—no artificial colour present and am of the opinion that the same adulterated due to 0.12 excess in moisture percent.”

5. The trial Magistrate in view of the report of the Director found the accused guilty and sentenced the firm to a fine of Rs. 8000/- and Bishan Sarup to imprisonment till the rising of the court and a fine of Rs. 7000/-.

6. The Additional Sessions Judge held that the ghee was lying in a frozen state in the tin and the Food Inspector had taken the sample without heating and mixing the ghee and that the samle was not homogenous and representative sample and, therefore, according to the Judge that could be the reason for the conflicting reports. The Additional Sessions Judge further held that the accused were tried on the basis that the sample contained 0.12 excess in moisture percent and whereas as per the report of the Director the mositure content was within the prescribed standard but the sample was declared to be adulterated because the reichert value was lower and the butyro-refractometer in excess of the prescribed standard, and that there was neither any complaint nor were the accused tried on the facts found by the Director.

7. P.W 1 Shri Sharma, Food Inspector, in cross-examination stated that the ghee was in fozen condition and that the sample was taken by him out of a tin containing about 1 K.G of ghee. The witness further deposed that he had not heated the ghee before taking the sample. P.W 3 Food Inspector K.K Sharma gave evidence that the ghee was in frozen condition and the sample was taken out of a tin containing about 1½ or 2 K.G of ghee.

8. From the above evidence of the Food Inspector, it is clear that the ghee was in a frozen state in the tin and the sample was taken without heating and mixing the ghee. The Public Analyst found the sample to be adulterated due to 0.12 moisture percent in excess. The Director found the moisture contents within the prescribed limit but the reichert value was found lower and the Butyro-refractometer reading in excess of the prescribed limits. The two reports are a little puzzling and we find it difficult to say with certainty whether the sample was adulterated or that the difference in the two analysis arose out of defective sampling.

9. The accused in defence examined Shri A. Pandey (D.W 1), Senior Scientific Officer, Shriram Institute for Industrial Reserach. D.W 1 testified that the sampling procedure for taking a sample of ghee is that it should be taken after mixing the sample in bulk and taking a portion out of a homogenous mixture for taking representative sample. He further deposed that it was necessary that the sample should be stored in an air-tight bottle so that it may contain no air and moisture, etc. and it should not be exposed to light relation during storage.

10. On an examination of the record we are of the view that it is possible that the various tests performed by the Public Analyst and the Director gave different results because of defective sampling.

11. The learned counsel for the Corporation contended that the report of the Director obliterates the report of the Public Analyst and, therefore, it is not legally permissible to look at the report of the Public Analyst. There is no doubt that under Section 13(3) the report of the Director supersedes the report of the Public Analyst but on the peculiar facts of this case we think it cannot be safely said that the sample was adulterated. The Additional Sessions Judge has given benefit of doubt to the accused and we and no sufficient reason to interfere with the order of acquittal

12. We, however, do not agree with the observation of the learned Additional Sessions Judge that since there was no complaint or a trial on the facts found by the Director the conviction was vitiated. The Prevention of Food Adulteration Act is a Self contained Code. Section 10 empowers the Food Inspector to take sample of articles of food for the purpose of analysis and send the same for analysis to the Public Analyst. Section 11 lays down the procedure that is to be followed by the Food Inspector in the taking of drastic changes in Section 132) (unamended there have been drastic changes in Section 13 by Act 34 of 1976) gave a right to the vendor after the institution of the prosecution to have one of the counter parts of the sample sent to the Director of Central Food Laboratory for certificate and the law further made the report of the Central Food Laboratory final and conclusive evidence of the facts stated therein. A reading of Section 13 makes it clear that its object was to afford an opportunity to the accused to get the sample analysed if he so desired by the Central Food Laboratory whose certificate was to be final and conclusive proof of the facts stated therein. Under the unamended Section 13 of the vendor could not only exercise the right to have the sample tested by the Director, Central Food Laboratory after the prosecution was instituted.

13. We are of the view that the fact that the Director found the sample to be adulterated for reasons different to the one given by the Public Analyst would not render the prosecution instituted on the basis of the report of the Public Analyst invalid.

14. We find from the record that the report of the Director, Central Food Laboratory, Calcutta, was put to the accused and he was given full opportunity to explain it and produce evidence in defence.

15. However, for the reasons stated earlier we dismiss the appeal.