A.P.SEN, J. - (1.) IN this appeal, on certificate, from a judgment of the Delhi High Court, by which it acquitted the respondent of an offence punishable under Section 16 (1)(a) of the Prevention of Food Adulteration Act, 1954, for the alleged contravention of Section 7(1) thereof, two questions arise, namely (1) whether even though the Public Analyst found in one of the reports, Ext. PE that a particular sample of cashew nuts purchased from the respondent's shop was 'insect -infested' to the extent of 20.6 per cent and that it contained living insects, that circumstance by itself was not sufficient to warrant a conviction, and (2) whether the respondent was protected by sub -section (2) of Section 19 of the Act inasmuch as he had purchased the cashew nuts in scaled tins from a dealer in cashew nuts under the invoice Ext. DW3/A, which contained a description of the goods as 'SW Best Bormia'.
(2.) THE facts of the prosecution case are these. The respondent is a partner of the firm M/s. Narain Dass Tek Chand, Khari Baoli, Delhi. The firm is engaged in wholesale business in dry -fruits including cashew nuts which it gets from different manufacturers. On August 1, 1968 three samples of cashew nuts were taken from its shop by the two Food Inspectors, S.L. Mehra, P.W.1 and H.K. Bhanot, P.W.3 from three sealed tins supplied by Sri Venkateswara Cashews, Panruti. These samples were duly forwarded to the Public Analyst, Delhi who by his three reports dated August 3, 1968 in Form III, Exts. PE, PE/1 and PE/2 found that all the three samples taken were 'insect -infested'. Of these, two were insect -infested to the extent of 20.6 and 20.7 per cent and the third to the extent of 5.63 Per cent.
(3.) THE Magistrate Ist Class, Delhi acquitted the respondent holding (1) that the respondent was a sleeping partner residing at Kanpur, and that there was nothing to show that he was incharge of and was responsible for the conduct of the business which was carried on at the shop of the firm at Khari Baoli, Delhi; (2) that alternatively, the invoice Ext. DW 3/A produced by the respondent contained a warranty which absolved him from liability, and (3) that the ratio of living insects to dead insects not having been given in the Public Analyst's report, there being no evidence to show that the cashew nuts in question were deleterious to health, and if so, how much harmful effect it would have upon the health of a person consuming them, the mere fact of the cashew nuts being insect -infested was not sufficient to bring home the charge. The Delhi High Court without going into the question as to whether the respondent was protected under sub -section (2) of Section 19, maintained the order of acquittal, holding that merely because an article of food is insect -infested, it cannot be treated as 'adulterated' within the meaning of Section 2(i) (f) of the Act unless it is further proved to be 'otherwise unfit for human consumption' within the meaning of the section following its decision in Dhanraj v. Municipal Corporation of Delhi, I.L.R. 1972(2) Delhi 681. In that view, it did not touch upon the other question namely, whether the invoice Ext. DW 3/A was sufficient warranty in law as to the purity of the article of food sold. The term 'adulterated' as defined in Section 2(i)(f) reads : "(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.";