State (Delhi Administration) vs Ramesh Chand
1986 Latest Caselaw 47 Del

JUDGMENT

Aggarwal, J.

(1) This is an appeal by the Delhi Administration against the judgment of Shri K. B. Andley, Additional Sessions Judge, allowing the appeal of the accused Ramesh Chand and acquitting him of the charge under section 7 read with section 16 of the Prevention of Food Adulteration Act. (hereinafter called 'the Act').

(2) The relevant facts are these. On 6th November 1982 at about 3.45 p.m. Shri R. K. Ahuja, Food Inspector, purchased a sample of Kaju for analysis under the Prevention of Food Adulteration Act and Rules from the premises of Super Store, J-21/ 15B, B. K. Dutt Market, Rajouri Garden, New Delhi. The Food Inspector divided the sample in three equal parts and bottled it in three separate bottles. One part of the sample was sent to the Public Analyst for analysis and report. The Public Analyst in his report dated 7th December 1982 found the sample to contain 11 per cent of insect damaged Kaju against the maximum prescribed standard of 5.0 per cent. He further found that 28 per cent of the contents have been damaged by mould growth. The contents were further found to contain 36 living and dead insects.

(3) On the receipt of the above report the Municipal Prosecutor filed a complaint under section? read with section 16 of the Act against the accused Ramesh Chand, Proprietor of the Shop.

(4) On an application made by the accused, another part of the sample was sent to the Director, Central Food Laboratory, Calcutta for examination and report. The Director found the sample to be adulterated.

(5) The accused at the trial took the defense that the Kaju out of which the sample was taken, was totally damaged and he had put it aside on a table near the Freezer packed in a polythene bag and it was not for sale. He further stated that the Food. Inspector had not added any preservative to the sample and he had also not sterilised the bottles in which the sample was taken. He further stated that he was not given any copy of the notice and that the price of the Kaju was also not paid to him. The accused in support of his defense examined a neighbouring shop keeper D.W. 1 Jagmohan D.W. 1 deposed that cashew-nuts were lying in a polythene bag and the accused bad told the Food Inspector that the said cashew-nuts had been discarded and were not for sale. He further deposed that the cashew-nuts were taken out of the polythene bag.

(6) The learned trial Magistrate on an appreciation of the evidence found the accused guilty of the offence charged with and he sentenced the accused to rigorous imprisonment for two years and to a fine of Rs. 4000, and in default of payment of fine to undergo simple imprisonment for six months.

(7) Against his conviction and sentence the accused filed an appeal.

(8) The learned Additional Sessions Judge, by a curious and unintelligible process of reasoning has come to the conclusion that the Kaju, was not for sale for human consumption and further that under section 10(2) of the Act the Food Inspector could not have taken sample of an article of primary food unless such article was intended for sale as food. The Additional Sessions Judge allowed the appeal and quashed the conviction and sentence.

(9) We are of the view that the reason given by the Additional Sessions Judge for allowing the appeal is totally untenable. The taking of the sample of Kaju by the Food Inspector has not been disputed by the accused. His defense was that about 1/K. Gs. of Kaju which were totally damaged and insect injected was kept apart by he packed in a polythene bag and that Kaju was not meant for sale.

(10) The Food Inspector at the time of the taking of the sample had given notice under rule 12 of the Prevention of Food Adulteration Rules (hereinafter called 'the Rules') to the accused Ramesh Chand. Ex. Pb is the said notice. It is recorded in the notice that the sample of Kaju has been taken from ajar of glass. The accused has acknowledged the receipt of the copy of the notice in writing. Ex. Pa is the receipt regarding the payment of the price of the sample of Kaju. Ex. Pc is the inventory regarding the seizure of the sample. Both the said documents contain the signatures of the accused. P.W. 3 Fod Inspector R. K. Ahuja testified that on 6th November 1982 he had gone to the shop of the accused and purchased 900 grams of Kaju on payment of price of Rs. 63 for purposes of analysis and thereafter divided the sample in three equal parts and bottled in three clean and dry bottles and thereafter scaled the bottles in accordance with the Rules. The Food Inspector in cross-examination stated that Kaju was lying in a jar on the counter along with other jars containing other food articles. The Food Inspector denied the suggestion that the Kaju was lying in a polythene bag on a table and it was not for sale. The Food Inspector further deposed that when he took the sample insects were visible in the sample and he also saw that the Kaju was insect damaged. The Feed inspector denied the suggestion that no copy of. the notice was given to the accused. He also denied the suggestion that no price was paid.

(11) P.W. 5 J.P. Bhardwaj who was accompanying the Food Inspector supported the prosecution case and testified that the Kaju was lying in a glass jar in the front portion of the shop.

(12) We find from the record that it was never the case of the accused until the Food Inspector R. K. Ahuja was cross-examined on 16th August. 1983 that the Kaju was insect infested and damaged at the very time the sample was taken and had been kept apart packed in a polythene bag as 'waste'. This defense was taken by the accused for the first time in the cross- examination of the Food Inspector on 16th August 1983 and thereafter in his statement at the trial on 24th August 1983. The accused had filed an application under section 13(2) of the Food Adulteration Act on 13th April 1983. The cose pleaded in the application was that there were no insects when the sample was lifted. It was not the case of the accused at that time that as the Kaju was insect infested and damaged he had kept it apart as a 'waste' and it was not meant for sale.

(13) We are of the view that the above defense has been taken only after the Food Inspector had obliged him in making the statement that the Kaju out of which the sample was taken was insect infested and damaged and that insects could be seen in the Kaju when he took the sample.

(14) In the notice Ex. Pb it is clearly written that Kaju has been taken from a jar of glass. The copy of that notice was given to the accused and he acknowledged the receipt of the copy in writing on Ex. PB. We are not prepared to accept the pica of the accused that no copy of the notice was given to him. If the Kaju was not meant for sale and it was lying 'discarded' to be destroyed the accused would not have waited till 16th August, 1983, to take the defense that the Kaju was not meant for sale and would have immediately complained to the higher authorities and also taken this plea from the very start of the trial. In that case also, the accused would not have made an application for sending the counterpart of the sample for examination to the Director.

(15) Shri Soni, learned counsel for the accused, contended that the article of food in question was primary food and under section 10(2) of the Act the Food Inspector was not competent to take the sample. We do not agree in this contention. The relevant portion of section 10 reads as follows : "10(2).Any food inspector may enter and inspect any place where any article of-food is manufactured, or stored for sale, or stored for the manufacture of any other article or food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis : Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food."

(16) From a reading of the proviso, it is clear that it is applicable only if the article is primary food and Js not intended for sale as such food. It is nobody's case that the Kaju in question was not stored for sale. The defense is that the Kaju out of which the sample was taken was insect damaged and, therefore, kept apart for being destroyed. The Kaju was otherwise intended for sale. We have not believed the defense of the accused. We believe the Food Inspector that the Kaju oat of which the sample was taken was stored in a glass jar and it was intended for sale as such food.

(17) The New Columbia Encyclopedia (4th Ed. 1975) defines. the word "cashew" as under: "'cashew', tropical American tree of the family Anacardiaceae, valued chiefly for the cashewnut of commerce. The tree's acrid sap is used in mating a varnish that protects woodwork and books from insects. The fruit is kidney-shaped, about an inch in length, and has a double shell. The kernel, which is sweet, oily, and nutritious, is much used for food in the tropics after being roasted to destroy the caustic juice. It yields a light-coloured oil said to be the equal of olive oil and is utilised in various culinary ways. In the West Indies it is used for flavor wine, particularly Madeira, and is imported into Great Britain for this purpose. The nut grows on the end of a fleshy, pear-shaped stalk, called the cashew apple, which is white, yellow or red. juicy and slightly acid, and is eaten or fermented to make wine. Cashews are classified in the division Magno Liophyta, class Magnoliopsida,. order Sapindales, family Anacardiaceae."

(18) From the above it is clear that the nuts are detached from the fruit and then sun dried and thereafter after undergoing some processes they are marketed and sold and eaten as food. (Also see Encyclopedia Britannica) (Micropaedia Ready Reference and Index Vol. Ii page 609).

(19) Section 2(xii-a) defines the word "primary food" and the definition reads as under : "PRIMARY food" means any article of food, being a produce of agriculture or horticulture in its natural form".

(20) We are of the view that the sample in question though an agriculture produce was not in its natural form. Therefore, it would not come within the definition of primary food as given in the Act. Mr. Soni in support of his contention referred to the following cases : (1) Shiv Chand Rai v. The State of Haryana, 1983 (II) F.A.C. 309(1) and State of Haryana v. Rama Nand, 1982 (II) F. A. C. 167(2). We have carefully gone through the said cases and we are of the view that they are distinguishable on facts and are not applicable to the case in hand.

(21) Rule 48-B of the Rules lays down the standard for dry fruits and nuts and it provides that the dry fruits and nuts like raisins, currants, figs, cashewnuts, apricots almonds, may contain not more than 5 per cent of insect-damaged fruits and nuts, by count. The sample of cashew-nuts has to conform to the standard prescribed in the rule.

(22) In any case, our finding is that the cashew-nuts out of which the sample was taken was stored by the accused for sale as an article of food. Therefore, the proviso to section 10(2) would not be applicable.

(23) Mr. Soni contended that the accused had on 13th April 1983 made an application under section 13(2) of the Act for sending the counter part of the sample in the possession of the Local Health Authority for examination and report to the Director, Central Food Laboratory and the said application was wrongly rejected by the trial Magistrate on the ground that it is barred by time and that it was only in August, 1983 in view of the decision of this Court in Kamal Oil & Allied Industries Pvt. Ltd. V. Delhi Administration 1982 (II) F.A.C. 320(3) that the learned trial Magistrate ordered for sending the counter part of the sample to the Director, Central Food Laboratory and because of the earlier illegal rejection of the application by the court there was inordinate delay in the examination of the counter-part of the sample by the Director and this had resulted in a great prejudice to the accused.

(24) The complaint was filed against the accused on 29th January 1983. As required by law, a copy of the report and the result of the analysis was sent to the accused. The accused under section 13(2) of the Act was required to make an application to the court within a period of 10 days from the date of the receipt of the copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboralury. The application under section 13(2) was made by the accuse on 13th April 1983. This was not within the period prescribed by law. The Magistrate rejected the application on 13th April 1983 as barred by time. On 30th August 1983 in view of the decision of the court in Kamal Oil's case (supra) the Magistrate ordered that the counter parts of the sample be produced in the court on 5th September 1983. The counter parts of the sample were produced in the court on 5th September 1983 and they were examined by the accused and the accused made the following statement : "I have seen the two counter-parts of the sample taken out from the sealed packet. The marking, fastening and sealing of both these counter-parts are intact and there is no tampering with the same. My signature appear on each counter-part which are partly on the paper slip and partly on the wrapper of each counter-part and are mine. I have selected one counter-part which may be sent to Director, Cpl for analysis."

(25) The order of the court also shows that the samples were found to be properly sealed, marked and fastened. The counterpart of the sample was examined by the Director and he found it to be adulterated. The sample was found, to be in a condition fit for analysis. We find no prejudice had been caused to the accused by the delay in the sending of the counter-part of the sample.

(26) Even otherwise also we fail to see how this contention helps the accused. The accused , his statement. at the trial accepts that the Kaju of which sample was taken was insect infested and damaged. His defense, as already stated, was that it was not meant for sale. This defense we are not accepting.

(27) Shri Soni contended that according to the Food Inspector the cashew-nuts were damaged and infected with insects and that no customer would have purchased the cashew-nuts in that state. This argument is wholly devoid of merit. No shop-keeper is expected to expose or exhibit for sale an article of food which is adulterated. It is a matter of common experience that some customers before purchasing an article of food examine it and some do not do so. This argument of Mr. Soni instead of helping the accused aggravates the offence. It means the accused knew that the Kaju kept in the shop is unfit for human consumption and still he exposed or exhibited it for sale,

(28) For the reasons stated we set aside the judgment of the learned Additional Sessions Judge and restore the judgment of the trial Magistrate. We are of the view that the sentence' imposed on the accused by the learned Magistrate is proper and appropriate in the circumstances of this case. The accused does not deserve any leniency and he deserves a deterrent sentence. The accused shall be immediately taken into custody to undergo the sentence awarded to him.