1. The petitioner-Dinesh Kumar, is a shopkeeper and carrying on business in village Gumma under the name and style of Messrs Chauhan and Brothers. On 28-6-1991 the Food Inspector Shri J.K Patyal at about 10:25 a.m had purchased 750 grams of “Besan” as sample for the purpose of analysis from the petitioner. At that time the petitioner was having about 70 kgs. of “Besan” for sale to the general public. Such sample of “Besan” on having been analysed was found to be adulterated since it was found to contain wheat and maize starch as an admixture. Besides, eight living and dead insects were found present in the sample. A complaint for the prosecution of the petitioner was, therefore, made by the Food Inspector before the learned Judicial Magistrate (I), Shimla. During the trial, the petitioner made an application under S. 20-A of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) for impleading Messrs Jagat Ram Mukandi Lal and Company, Parwanoo, as an accused on the ground that the “Besan” from which sample was taken by the Food Inspector was purchased by him from the said firm under invoice Ext. DB. The learned Magistrate had impleaded the firm Messrs Jagat Ram Mukandi Lal as a co-accused.
2. The petitioner and the firm impleaded as a co-accused pleaded not guilty and claimed trial. The learned Magistrate upon consideration of the material placed before him acquitted Messrs Jagat Ram Mukandi Lal and Company of the offence under S. 16(1)(a)(i) of the Act. The learned Magistrate came to the conclusion that the petitioner had failed to prove that the “Besan” was purchased by him from the said firm vide invoice Ext. DB.
3. In so far as the petitioner is concerned, he was convicted by the learned Magistrate for the offence under S. 16(1)(a)(i) of the Act and sentenced to simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-. In default of payment of fine, the petitioner was sentenced to simple imprisonment for a further period of one month.
4. The conviction and sentence imposed upon the petitioner by the learned Magistrate was confirmed in appeal by the learned Sessions Judge on 1-6-1998.
5. While assailing the conviction and sentence imposed upon the petitioner by the two Courts below, the following contentions were raised:—
(1) Sample was not made homogeneous;
(2) The petitioner is entitled to the benefit of Section 19(2) of the Act; and
(3) Provisions of Rules 17/18 of the Prevention of Food Adulteration Rules not complied with by the Food Inspector.
6. I have heard the learned counsel for the parties and have also gone through the record of the case.
Contention No. (1):
7. The “Besan” sample of which was taken from the shop of the petitioner was found to be adulterated by the Public Analyst vide his report Ext. P-6 on two counts, namely, it contained wheat and Maize starch as an admixture and that the sample contained eight living and dead insects.
8. It was contended by the learned counsel for the petitioner that the sample before being taken was not made homogeneous by following the method of quartering in order to obtain representative sample. In support, the learned counsel has placed reliance on a decision of a Division Bench of this Court in Bhagat Ram v. State of H.P, ILR 1986 HP 578: (1987 Cri LJ 671).
9. There is no denying that in the present case while taking the sample the Food Inspector did not follow the method of quartering, therefore, the sample cannot be said to be a representative one for the purpose of adulteration on account of insect infestation.
10. Even if the “Besan” is taken to be not insect infested, the same was adulterated on the ground of presence of foreign ingredients like wheat and maize starch.
11. This Court in Bisheshwar Dass v. State of H.P, 1998 (1) Sim LC 222, has held that the process of quartering is not applicable when the sample of “Besan” is found to be adulterated on account of foreign ingredient.
12. A contention was raised by the learned counsel for the petitioner that the Public Analyst in his report Ext. P-6 has not mentioned the total contents of wheat and maize starch found in the sample and in the absence of the same, the sample cannot be described as adulterated. In support, reliance was placed by the learned counsel for the petitioner on the decision of a learned single Judge of Punjab and Haiyana High Court in Varinder Kumar v. Union Territory, Chandigarh, 1993 (1) FAC 17.
13. Item No. A. 18.04 of Appendix-B to the Prevention of Food Adulteration Rules, 1955 (for short: the Rules) defines “Besan” as meaning the product obtained by grinding dehusked Bengal gram (Cicer aretinum) and shall not contain any added colouring matter or any other foreign ingredient. It has to conform to the following standard:—
(a) Total ash not more than 5 percent. (b) Ash insoluble in HCI Not more than 0.5 percent.
(Emphasis supplied)
14. The words “and shall not contain any added colouring matter or any other foreign ingredients” occurring in the definition of Besan, quoted above, came up for consideration before this Court in Bisheshwar Dass's case (supra). It was held that the moment the presence of any colouring matter or any other foreign ingredient is found in the sample of “Besan”, the same would fall within the ambit of the word “adulterated” as defined under Section 2(1-A) of the Act since such sample would not be conforming to the prescribed standard.
15. A Full Bench of Punjab and Haryana High Court also in State of Punjab v. Teja Singh, 1976 (2) FAC 44, has held that a marginal deviation from the prescribed standard laid down by the Act cannot be ignored.
16. Therefore, the two Courts below have rightly held the “Besan” to be adulterated since it was found to contain foreign ingredients like wheat and maize starch as admixture.
Contention No. (2):
17. Section 19(2) of the Act provides:—
“A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves:—
(a) that he purchased the article of food:—
(i) in a case where a licence is prescribed for the sale” thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.”
18. The case of the petitioner is that the “Besan”, from which the sample was taken by the Food Inspector, was purchased by him under invoice Ext. DB from Messrs Jagat Ram Mukandi Lal and Company of Parwanoo, which firm was impleaded as a co-accused under Section 20-A of the Act on an application having been made in this regard. The “Besan” was sold to the Food Inspector as sample by the petitioner in the same condition as purchased by him from the said firm.
19. Ext. DB is the original invoice (bill) dated 18-6-1991 whereby certain foodgrains were purchased by the petitioner from the firm Messrs Jagat Ram Mukandi Lal. A perusal of the same shows that “Besan” is not shown as one of the items purchased by the petitioner. The learned counsel for the petitioner has contended that “Besan” in Ext. DB has been described as “G. Beat”.
20. Shri Des Raj, partner of Messrs Jagat Ram Mukandi Lal and Company, in his statement under Section 313, Code of Criminal Procedure has denied having sold “Besan” to the petitioner vide Ext. DB, though he has admitted the invoice Ext. DB to be of his firm.
21. As stated above, “Besan” is not mentioned as one of the items in Ext. DB. The onus was, therefore, on the petitioner to prove that “Besdn” was purchased by him from the firm Messrs Jagat Ram Mukandi Lal and Company vide Ext. DB. There is nothing on the record to show that “G. Beat” described in Ext, DB means “Bosan”. In the absence of evidence, the two Courts below have rightly held that the “Besan” has not been proved to have been purchased by the petitioner from Messrs Jagat Ram Mukandi Lal and Company. The petitioner has, therefore, rightly been denied the benefit of Section 19(2) of the Act.
Contention No. (3):
22. Rule 17 of the Rules provides for the manner in which the containers of samples are required to be despatched. The proviso to the rule lays down that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form-VII shall contain the following additional information, namely:
(a) Grade.
(b) Agmark label No./Batch No.
(c) Name of packing station.
23. It is the admitted case of the prosecution that the sample of “Besan” was taken from a container bearing Agmark seal.
24. Ext. P.4 is the memorandum in Form-VII prepared by the Food Inspector. A bare perusal of the same shows that the requisite information as required under the proviso to Rule 17 has been duly mentioned and incorporated therein. Therefore, it cannot be said that there has been no compliance of Rule 17 of the Rules.
25. Rule 18 of the Rules requires that a copy of the memorandum in Form-VII and the specimen of the seal used in sealing the containers of sample, shall be sent in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day.
26. The Food Inspector while appearing as PW.-2 has categorically stated that a copy of Memorandum in Form-VII and the specimen of the seal was separately sent to the Public Analyst in a sealed cover. He was not cross-examined on this aspect by the petitioner. Therefore, this part of the statement of the Food Inspector will be deemed to have been admitted by the petitioner.
27. In the report Ext. P-6 also there is a mention of the specimen of the seal having been received by the Public Analyst separately.
28. In N. Sukumaran Nair v. Food Inspector, Mavelikara, Mavelikara, 1996 (2) FAC 21: (1995 Cri LJ 3651), it has been held by the Hon'ble Supreme Court, on similar facts, as under (at Page 3652 of Cri LJ):
“It has vehemently been urged by Mr. V.A Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial Court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW-1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but; at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in cross-examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals even though in printed form are available compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground.”
29. Thus, in the present case as well, it cannot be said that there has been noncompliance of Rule 18 of the Rules.
30. As a result, there being no merit in the present petition, the same is dismissed. The petitioner, who is on bail is directed to surrender himself to his bail bonds before the learned trial Court within four weeks from today to receive and serve out the sentence imposed upon him.
31. Petition dismissed.
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