Decided on February 22,1972



- (1.) This Appeal is by the State against the acquittal of the accused in C. Ci No, 26/67 on the file of Addl. Munsif Magistrate, Narasaraopet, on a charge under Sections 16 (1). and 7 read with Section 2 (1) (at of the Prevention, of Food Adulteration Act and Rule 44 (a) of the Rules ffame"d thereunder. The accused is a licensed wholesale dealer in Narasaraopet town having a shop at 13-1-166 on Vinukonda read, dealing in oils. food", grains, dhall. flours, etc. On 18-11-66 at about 10-00 A. M., P. W. the Food Inspector along with his Sanitary Maistry P. W. 3 and some others including P. W. 2 inspected the stoop of the accused and found a bag containing four maunds of flour exposed for sale along with other food stuffs and on being questioned, the accused statad that it was,peas flour and thereupon P. W. 1 the Food Inspector served a notice on him and purchased from him 600 grams of peas flour and paid 0-70 paise and obtained a receipt. Thereafter he divided the flour intathree parts, put it in three clean bottles, labelled and sealed them, gave one bottle to the accused and of the remaining two bottles, one bottle M. O. 1 was sent to Court and another bottle M. O. 2 was sent to the Public Analyst and his report Ex. P4 showed that it contained a total ash of 2.4% and ash insoluble in hydrochloric acid 0.23% and further microscopic examination revealed that it contained 75% peas flour and flour of Bengal gram and Kesaridal to the extent of 25% and therefore it was adulterated, On receipt of this report, the charge sheet was filed for the offence as stated above. In support of the case, P. Ws. 1 to 5 were examined.
(2.) The accused did not deny the sale, but slated that he was not present in the-shop and that he was sent for and was compelled to sign in the document prepared there. No witness was examined in his defence. At his instance the bottle M. O. 1 that was sent to the Court was sent to the Director of Central Food Laboratory at'Calcutta for analysis and Ex. Cl his report disclosed that the mkrbscopic examination revealed that in the sample sent, peas dhall was found mixed with Bengal gram dhall and Kesari dhall and therefore the sample was adulterated. Th6 accused then produced the bottle that was given to him by the Food InSfjeetor P, W. 1 arid at his request this was sent to the Director of Central Food Laboratory, Calcutta and Ex. C2 his report showed that microscopic examination revealed that there was admixture of Kesaridhall flour in the peas flour. In both the reports Exs. Cl and C2 the percentage of admixture of other flours along with the peas flour had not been given. The Magistrate footed that the accused sold peas flour to P. W. 1. He, however, held that the microscopic examination conducted by the Director of Central- Food Laboratory was riot sufficient for inferring that the sample of peas flour contained Kesaridhall flour, that sufficient data for inferring the same has not been furnished and therefore the prosecution has failed to prove the guilt of the accused beyond reasonable doubt, and acquitted the accused of the charge. Hence this appeal.
(3.) The only point urged in this appeal is regarding the acceptability of the reports of the Director of Central Food laboratory. Of the two Kerala decisions followed by the Magistrate, the first i. e. P. Sreedharan v. Food Inspector1 was concerned with the sale of tho Kesaridhall which was a prohibited item and on physical and microscopic examination by the analyst it was certified to be having the characteristic of lac dhall otherwise known as Kesari dhall Ltthyrus Sativus)-and it was stated that tae Analyst's certificate was not satisfactory as it was not stated therein what the characteristics noted by the Analyst were, that no factual data had been given, that what it contained is only a final opinion of the Analyst and if such an opinion is conclusive about the nature of the article, the guilt of the accused is really decided by the Public Analyst and not by the Court and that cannot be the position in law. To the same effect is the decision of the same Court in State of Kerala v. Narayan Nair which is also a case of selling Kesaridhall, otherwise known as Lac Dhall a prohibited article. Here also it was stated by the Analyst that on microscopic examination what he found was that the sample represents one of Kesari or Lac Dhall. It was p inted out there that analysis means "Resolution into simple elements ; determination of composition of substances (Chemical) identification of elements or compounds present (qualitative); determination of precise amounts of elements etc. present (quantitative)," that none of those methods of analysis seem to have been resorted to by the Director of the Central Food Laboratory as can be seen from the result of the analysis stated by him, thsit the expert should put before Court the materials which induced him to come to his conclusion so that the Court may form its own conclusion on those materials and therefore it should be held that there was no proper analysis by the Director of Central Food Laboratory, that he has however tried to escape by-saying that the article resembles lac dhall and as there is no evidence, no conviction can be based on it.;

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