- (1.) N. L. Ganguly, J. This is an application under Seption 482, Cr. P. C, on behalf of the partners of the firm M/s. Srawan Kumar and Company and M/s. Jaihind Bottling Company Pvt. Ltd. through its partner for quashing the pro ceedings in Complaint Case No. 373 of 1990 (State of U. P. through Nagar Swasthya Adhikari, Nagar Mahapalika, Kanpur v. M/s. Jaihind Bottling Co, Pvt. Ltd. and others) under Section 7/16, Prevention of Food Adulteration Act read with Rule 50.
(2.) THE Food Inspector inspected the premises of Firm M/s Srawan Kumar and Company, Halsi Road, Kanpur on 13-9-89 and sample of bottle of Limca was taken by the Food Inspector under Section 10 (6) of the Pre vention of Food Adulteration Act on the ground of violation of Section 2 (a) (e) of the Act. THE sealed bottle of the sample of Limca was found contain dead ants floating in the sealed bottle and the Food Inspector after following the necessary legal requirement and after serving the notice under Section 11 (1-a) of the Prevention of Food Adulteration Act filed complaints against the applicants and four other persons. THE present application is for quashing the proceedings in the criminal complaint filed by the manulacturer of the Soft drink "limca" on the ground that firstly the sample of sealed Limca was not sent to the Public Analyst for examination and report. If it is presumed that sample was sent to the Public Analyst for report, the prosecution of the appli cants is illegal for want of supply of the copy of the report of the Public Analyst to the accused persons. Secondly there is no material or allegation in the complaint that presence of some dead ants in the sealed bottle of Limca was injurious to health, as to bring the accused within the clutches of provisions of Food Adulteration Act. Thirdly, the court below has failed to pass orders on the application of the applicants for supplying the copy of the report of the Public Analyst, which seriously affects and prejudice of the applicants defence and lastly, it was urged that the valuable right of the accused persons under Section 13 (2-a) of the Act has been illegally withdrawn in the absence of copy of the Public Analyst. I have heard the learned counsel for the applicants at length. The first submission of the learned counsel for the applicants is that sample of sealed bottle of Limca was not sent to the Public Analyst for his report which itself is sufficient for quashing the proceedings under Section 7/16 of the Act. The prosecution allegation is clear that dead ants were found floating in the fluid of the Limca sealed bottles seeing by naked eye. If that may be the position, it cannot be said that the prosecution is liable to be quash ed only on the grounds that it was not sent for report of Public Analyst. The perusal of the complaint shows that in the bottom of the complaint, it has been mentioned that report of the Analyst enclosed. Thus, at this stage, it cannot be conclusively said that the sample was not sent to the Public Analyst at all. The allegation of the applicant that in spite of the application, copy of the report was not supplied to them, cannot be enquired into here in application under Section 482, Cr. P. C. It is for the trial court before whom the case is pending to enquire into and record finding in that aspect.
(3.) THE next question for consideration is that the prosecution for Food Adulteration cannot succeed unless it is shown that the adulteration was injurious to health. THE learned counsel is not correct in saying that unless it is shown that for prosecution and conviction under provisions of Section 7/16 ot me Act, it was necessary to prove that adulteration was injurious to health, fne Supreme Court as far hack as in AIR 1974 SC 434-Smt. Mani Bai and another v. State of Maharashtra held in para 6: "it is not for the prosecution in a case under the Act to show that the adulterated article of Food in question was, deleterious to health and if so, how much harmful affect it would have open the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated. So far as that aspect of the matter is concerned, in the present case, we find that the coconut oil which was purchased from Pran Jivan was adul terated as it did not conform to the prescribed standard". Thus, it is clear that for the prosecution under the Act, it was not necessary to show that the adulteration was deleterious and injurious to health. The provision of Section 2 (1-a) (2-e) of the Act is quoted below: "if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health". It is submitted that since it is not shown that the presence of dead ants in the sealed bottle was injurious to health, the prosecution is bound to fail. The sub mission is misconceived. Before the Supreme Court, the provision of Section 2 (1-a) (f) of the Act was considered in AIR 198j SC 360, Municipal Corpora tion of Delhi v. Tek Chand Bhatia. The provision of 2 (1-a) (f) is quoted as under: "if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or, vegetable substance or is other wise unfit for human consumption". The Hon'ble Supreme Court while interpreting Section 2 (l-a) (f) observed : "it is quite apparent that the words 'or' is otherwise unfit for human consumption and disjunctive of the rest of the words preceding them. It relates to a distinct and separate class altogether. It seems to us that the last clause 'or' is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being filthy, putrid, rotten, decomposed. . . . . . . . . or insect infested would be per se sufficient to bring the case within the perview of the word 'adulterated' as defined in sub clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption. If we examine the provisions of clause (e) and (f), the collocation of words and the adjectives used in the both of the said sections are similar and there is no difficulty in holding that it was necessary for the pro secution to prove both the things together about the contamination in the fluid contained in the sealed bottle alongwith the fact that the said contamination was injurious to health. The moment it is found that it was contaminated, it was covered within the meaning of the word "adulterated".;