State (Delhi Admn.) vs Fateh Chand And Anr.
2007 Latest Caselaw 641 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred against the judgment dated 12th February, 1996 whereby the learned Metropolitan Magistrate acquitted the respondent of the charges under Section 7/16 of the Prevention of Food Adulteration Act.

2. Food Inspector had collected sample of edible Catechu (katha) from the shop of the respondent. The sample was sent to Central Food Laboratory for analysis. The report of the Central Food Laboratory was as under:

1. Physical appearance : Pale brown coloured product : Passes the test

2. 5.0 ml of 1.0% aqueous solution & 0.1% solution of : Passes the test ferric ammonium sulphate shall give a dark green colour, which on the addition of sodium hydroxide solution shall change to purple

3. Moisture (dried to constant weight at 100 C = 16.3% by weight

4. Water insoluble residue (dried at 100 C) = 0.96% by weight (determined by boiling water)

5. Alcohol insoluble residue = 6.52% by weight

6. Total ash (on dry weight basis) = 2.16%

7. Ash insoluble in HCL = 1.33% on dry weight

8. Added artificial coloring matter = Absent

9. test for the presence of gambier = Negative

and I am of the opinion that the sample does not conform to the standards laid down for catechu (edible) under the provisions of PFA Act 1954 and Rules thereof, in that:

(a) The amount of ash insoluble in HCL exceeds the maximum specified limit of 0.5% on dry weight basis.

(b) Moisture content exceeds the maximum specified limit of 16.0% by weight.

3. Prosecution was launched against the respondent on the basis of the fact that the sample of edible catechu did not conform to two parameters, one moisture being 16.3% as against limit of 16 % and amount of ash soluble in HCL exceeding from 0.5% on dry weight.

4. Before Trial Court, the respondent had taken the stand that catechu (katha) in question was 'Bhatti katha' and not 'Machine katha' and the sample conformed to the parameters prescribed for 'Bhatti katha' and there was no adulteration. The Trial Court observed that the sample of catechu was not conforming to the standard only on the point of moisture content. The moisture in the sample katha was found as 16.3% against 16%, trial Court acquitted the appellant holding that such a small variation can be due to improper sampling and an error on the part of the analyst. The ash soluble content on dry weight basis in 'Bhatti Katha' were prescribed as 1.5% while the ash in soluble content were found only 1.33% on dry weight basis which was well within the prescribed limit of 'Bhatti Katha'. Since at the time of sampling, the Food Inspector had not checked the shop for rest of the 'katha' lying in the shop in gunny bags but took the sample of 'katha' from the counter, this raises doubt about the fact whether the 'katha' kept on counter in a polythene was 'Machine katha' or 'Bhatti katha'. Had the inspector checked gunny bags, he could have found out the label or the marking on the gunny bag and seen whether it was a 'Machine katha' or 'Bhatti katha'.

5. The sample in question was also tested by Public Analyst and the report of the Public Analyst shows that the moisture on dry basis was only 16% and not 16.3% and there was no starch, there was no foreign material and the ash insoluble in dilute HCL on dry weight basis was 2%.

6. The variation between the report of the Public Analyst and the report of Central Food Laboratory throws in the manner of testing of Public Analyst as well as Central Food Laboratory. One Laboratory is giving ash in soluble content about 1.33% while other laboratory is giving it as 2% for the same sample, while all other parameters are more or less at the same level. Neither the analyst nor the complainant had given any reason for such variation.

6. Section 2(1)(a) gives definition of adulterated article. Proviso to sub section a-m read as under:

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;

(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;

(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(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;

(g) if the article is obtained from a diseased animal;

(h) if the article contains any poisonous or other ingredient which renders it injurious to health;

(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) if any coloring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed coloring matter which is present in the article are not within the prescribed limits of variability;

(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;

(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

7. A reading of above proviso would show that there can be fall in the constituents below the prescribed limits due to natural causes also and beyond the control of human agency and if fall is for such causes which are beyond the human agency, the article cannot be said to be adulterated. In the present case, there is no foreign matter found in the catechu; one laboratory is giving ash insoluble content as 1.33% and the other laboratory as 2%. There was time gap between the testing of the samples by two agencies. This variation in the test results of two laboratories in respect of ash in soluble content can only be either ascribed to natural causes or to the faulty testing procedure. Moreover in any test result, the measurement cannot be accurate to 100% and there is bound to be some least count error. For example if the temperature is shown as 16 degree the actual temperature may be either 15.6 degree or 16.4 degree, still it would be shown as 16 degree. Similarly, where least count is 01 mm, a measurement below one mm would not be reflected by the instrument. Whenever scientific measurements are done in laboratory, the laboratory should also give the percentage of error to which its result can vary. However, I find that in most of the reports this percentage error is not given and the causes of fall in percentage for natural reasons is not give which results into change in parameters despite the fact that there is no adulteration.

8. I consider that in the present case, even if the catechu is considered to be a machine catechu, the variation in result of two laboratories throws doubt on the testing methods and considering the proviso that there can be natural causes and the fact that the article was found satisfying all other parameters, there is no reason to interfere with the order of the Metropolitan Magistrate. Accordingly, the appeal is hereby dismissed.