Whether accused can be convicted on the basis of microscopic examination of food article in food adulteration case?

Equivalent Citation: 2015ALLMR(Cri)1873, 2015(2)BomCR(Cri)325, 2015CriLJ3558,2015(4)crimes 343 Bom

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 209 of 2002

Decided On: 09.02.2015

Appellants: Shantilal
Vs.
Respondent: The State of Maharashtra

Hon'ble Judges/Coram:V.M. Deshpande, J.

Criminal - Acquittal - Lack of evidence - Sections 2(i-a), (a), 2(i-a)(m), 7(v) of Prevention of Food Adulteration Act, 1954 - Present appeal filed against order whereby Appellant was convicted for offence punishable u/s. 7(i) read with 2(i-a), (a), 2(i-a)(m) and Section 7(v) read with Rule 50 punishable u/s. 16(1)(a)(ii) and 16(1)(a)(I) of Act - Whether - Held, clear from report of Public Analyst that chemical tests were performed and sample was found fit as per prescribed standard - Therefore, only on basis of microscopic examination, it could not be said that Foreign starch was found - No quarrel that Public Analyst, who adopted microscopic test, was not provided by Legislature - When Legislature had not approved such test, therefore, conviction could not be based on such microscopic examination, especially when on chemical test, 'Besan' was found to be in conformity with standard - Therefore, impugned order of conviction was set aside - Appeal allowed.

1. Being aggrieved by the Judgment and Order of conviction dated 01/03/2000 passed by the learned Chief Judicial Magistrate, Nanded in R.C.C. No. 566/1998, thereby the learned Magistrate convicted the applicant for the offence punishable u/s. 7(i) read with 2(i-a), (a), 2(i-a)(m) and Section 7(v) read with Rule 50 punishable u/s. 16(1)(a)(ii) and 16(1)(a)(I) of the Prevention of Food Adulteration Act, 1954 and Rules thereunder and sentenced to suffer simple imprisonment for one year and to pay fine of ` 5,000/-[Rupees Five Thousand only], in default to suffer simple imprisonment for three months on all counts, together with the Judgment and Order dated 06/08/2002 passed by the learned Additional Sessions Judge, Nanded in Criminal Appeal No. 19/2000, by which the learned lower appellate Court dismissed the Appeal and confirmed the Judgment of conviction, the applicant herein prefers the present Criminal Revision Application.

2. Heard Mr. S.S. Bora, the learned counsel for the applicant and Mr. S.A. Ambad, the learned A.P.P. for the respondent-State in extenso.

3. The learned counsel for the applicant submitted that the impugned orders are erroneous and can not stand to the scrutiny of law. According to him, the order of conviction can not stand on the touch-stone of law in view of the report of Public Analyst [Exh. 31] and the Consent order [Exh. 39].

Per contra, the learned A.P.P. submitted that the Courts below have correctly assessed the prosecution case and have rightly convicted the applicant.

4. Mr. P.D. Patki, the Food Inspector was appointed by the State Govt. u/s. 9 of the Prevention of Food Adulteration Act, 1954 [hereinafter referred as the 'Act' for brevity]. His appointment was also published in the Govt. Gazette.

5. The applicant is the vendor and proprietor of M/s. New Bhandari Kirana Bhusar and Provisions Stores, Shivaji Nagar, Nanded and engaged himself in the business of sell of food articles including food article ' Besan'.

6. Mr. Patki, the complainant, visited shop of the applicant on 18/03/1998 along with panch Prakash Patki. That time, he disclosed his identity to the applicant. He purchased 750 gms. of 'Besan' from the applicant and paid ` 16/- [Rupees Sixteen only], cost of the said article. He then divided the said food article in 3 equal parts of 250 gm. each in empty plastic jar. The jars were sealed. Labels were put. On 19/03/1998, he sent one part of the sample along with memorandum in Form No. VII to the Public Analyst, District Public Health Laboratory, Jalgaon for test and analysis in sealed packet by registered post parcel. He received the analytical report from the Public Analyst, Jalgaon bearing No. 84 dated 20/04/1998. According to the said report, the sample does not confirm to the standard of 'Besan' as per the Prevention of Food Adulteration Rules, 1955. Thereafter, he sought consent for initiating prosecution against the applicant and thereafter the complaint was filed in the Court of the Chief Judicial Magistrate, Nanded.

7. 'Besan' is a food article within the meaning of Section 2(v) of the Act and Rules made thereunder. Part III of the Rules deals with the definition and standard of quality. Rule 5 under the said part reads as under :

" Standards of quality of the various articles of food specified in [Appendices B, C and D to these rules are as defined in those Appendices] ".

8. A.18.04 of Appendix 'B' deals with 'Besan'. It reads as under :

" BESAN means the product obtained by grinding dehusked Bengal gram (Cicer arietinum) and shall not contain any added colouring matter or any other foreign ingredient.
'Besan' shall conform to the following standards :-

(a) Total ash-Not more than 5 percent.
(b) [Ash insoluble in dilute hydrochloric acid]-Not more than 0.5 per cent ".

9. Thus, as per the aforesaid, 'BESAN' has to confirm the standard in respect of total ash and ash insoluble in dilute Hydrochloric Acid [HCL].

10. Exh. 31 is the report by the Public Analyst. The report reads as under :

" Appearance-Creamish coloured coarse powder.

(1) Total Ash-2.42 %
(2) Ash insoluble in HCL-0.22 %
(3) Microscopic Examination-Gram starch + Foreign starch observed.
(4) Test for B.O.A.A.-Negative.
(5) Test for Colour-No extraneous Colour and I am of the opinion that the sample of 'Besan' bearing Code No. ABD/22/N and Sr. No. 5255 does not confirm to the standards of 'BESAN' as per Item No. A. 18.04 of the Appendix ' B' of the P.F.A. Rules, 1955 ".

Thus, from the report, it is clear that food article sent for analysis was in conformity with the standard as mentioned at A. 18.04 of Appendix 'B'. However, according to the report, on microscopic examination, the Public Analyst found Gram starch + Foreign starch.

11. Both the Courts below have convicted the applicant since on the microscopic examination, the Public Analyst found Gram starch + Foreign starch.

12. The learned counsel for the applicant seriously attacked on the said finding given by the learned trial Court as well as the appellate Court based on the microscopic examination.

According to him, there is no such microscopic examination as available in the Act, which was applicable to the present case. He placed reliance on the decision of Madhya Pradesh High Court in Criminal Revision No. 103/2002 in the case of Dhanraj Jaiswal Vs. State of M.P. Through Food Inspector reported at manupatra-MANU/MP/0755/2006, also reported case from Gujarat High Court reported in MANU/GJ/0131/2008 : 2008 Cri. L.J. 4065 in the case of State of Gujarat Vs. Prajapati Amratlal Natvarlal. He also relied upon the decision of Apex Court reported in MANU/SC/0134/1980 : (1982) 1 Supreme Court Cases 350 in the case of Jagdish Chandra Vs. State of Uttar Pradesh and submitted that in absence of any chemical test or analytical process, the opinion of the Public Analyst has no value, which is based on microscopic examination.

13. In Jagdish Chandra's case, the Apex Court was dealing with an issue when the Public Analyst did not perform the chemical test. In the said case also, the only test that was performed to identify the sample, was the microscopic examination of the sample. In that behalf, the Apex Court has observed in paragraph 4 as under :

" Rules (Items) A. 05.06 and A. 05.06.01 of the Prevention of Food Adulteration Rules provide as under :

A. 05.06. Cinnamon (Dalchini) Whole means the dried pieces of the inner bark of Cinnamomum Zeylanicum nees. It shall not contain chinese cassia (Chini Dalchini) or any other foreign vegetable matter. It shall contain not less than 0.5 per cent (v/w) of volatile oil.

The amount of insect damaged matter shall not exceed 5 per cent by weight.
Explanation-The term "insect damaged matter" means spices that are partially or wholly bored by insects.
A.05.06.01. Cinnamon (Dalchini) Powder means the powder obtained by grinding the dried inner bark of Cinnamomum Zeylanicum knees. The cinnamon powder shall conform to the following standards :

Moisture-Not more than 12.0 per cent by weight. Total ash-Not more than 8.0 per cent by weight. Ash insoluble in dilute HCL-Not more than 2.0 per cent by weight. Volatile oil-Not less than 0.5 per cent (v/w).

A glance at the above Rules would show that the percentage of the various ingredients such as ash, insoluble in HCL, or volatile oil or moisture in the sample in question, can not be ascertained with any degree of accuracy by mere ocular examination under a microscope. Chemical tests, including treatment of the ash in the sample with Hydrochloric Acid would be a must. Since in the instant case, the sample was not subjected to any chemical test or analytical process, the opinion of the Public Analyst was not entitled to any weight whatever ".

14. In the present case, it is clear from the report of the Public Analyst that chemical tests were performed and the sample was found fit as per the prescribed standard and, therefore, only on the basis of microscopic examination, it can not be said that the Foreign starch was found. There is no quarrel that the Public Analyst, who adopted microscopic test, is not provided by the Legislature. When the Legislature has not approved such test, therefore, the conviction can not be based on such microscopic examination, especially when on the chemical test, 'Besan' was found to be in conformity with the standard.

15. Further, the consent [Exh. 39] shows that the consent was given on the Consenting Authority being noticed that the sample was adulterated because it shows "Foreign starch" and not "Gram starch" as stated in Exh. 31.

16. The reasoning given by the learned lower appellate Court that microscopic examination of the slides can show the existence of "Gram starch" and "Foreign starch" and it does not require any chemical test, is without any basis or rationale. In that view of the matter, the conviction can not stand to the scrutiny of law.

17. Hence, I pass the following order :

(1) The Judgment and Order of conviction dated 01/03/2000 passed by the learned Chief Judicial Magistrate, Nanded in R.C.C. No. 566/1998 together with the Judgment and Order dated 06/08/2002 passed by the learned Additional Sessions Judge, Nanded in Criminal Appeal No. 19/2000 are quashed and set aside.
(2) The applicant Shantilal Bansilal Bhandari is acquitted of the offence punishable u/s. 7(I) read with 2(i-a), (a), 2(i-a)(m) and Section 7(v) read with Rule 50 punishable u/s. 16(1)(a)(ii) and 16(1)(a)(I) of Prevention of Food Adulteration Act, 1954 and Rules thereunder.
(3) His bail bonds stand cancelled.
(4) The fine amount, if any paid, be refunded to the applicant.

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