P. N. Bakshi, J. - (1.) THE applicant has been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to three months' R. I. and a fine of Rs. 500/- by the Chief Judicial Magistrate, Almora. His conviction and sentence have been confirmed in appeal by the Sessions Judge, Almora. Hence this revision.
(2.) SRI Devi Datt Pandey, Food Inspector, along with two others visited the shop of the applicant Lachcham Singh on 24th April 1976 at 11.30 A. M. He suspected that the accused was selling adulterated Dhania. After giving due notice he purchased a sample of Dhania and obtained a receipt in token of the sale. The Dhania was sealed in three packets of equal quantity. One such packet was sent to the Public Analyst for chemical examination. The report of the Public Analyst disclosed that the sample of Dhania contained extraneous matter beyond the permissible limit, vide Ex. Ka-3. Sanction for prosecution Ex. Ka-5 was granted by the Medical Officer of Health, Almora. The applicant was thereafter prosecuted and convicted as above. I have heard counsel for the parties. Two questions of law have been raised in this revision. The first question is that there has been no infringement of Rule A. 05.08 framed under the provisions of the Food Adulteration Rules. Secondly, that the Medical Officer of Health did not apply his mind to the question of sanction and therefore, the same is invalid and the prosecution of the applicant is legally vitiated. I shall consider the first submission now. The result of the analysis as disclosed in the report of the Public Analyst is as follows :- "Appearance : Sabut Dhania. Organic extraneous matter including 19.35 per cent. Insect damaged Dhania-23.20 per cent. Inorganic extraneous matters-2.78 per cent. Sound Dhania 74.02 per cent (sic) and I am of the opinion that organic extraneous matter including insect damaged Dhania and inorganic extraneous matter exceed the maximum permissible limit of 6 per cent and 2 per cent respectively." Learned counsel has submitted that as per the aforesaid report the total percentage of extraneous matter is 23.20 per cent. Out of this, insect damaged Dhania is 19.35 per cent. Therefore the balance of extraneous matter is 3.85 per cent. His argument is that the percentage of 3.85 per cent is much below than the permissible percentage of extraneous matter of 8 per cent by weight, as alleged by Rule A. 05.08, Appendix B. In order to test the correctness of this argument, it would be necessary to quote the rule in question :- "A. 05.08-CORIANDER (Dhania) whole means the dried mature fruits (seeds) of Coriandrum sativum (L). The proportion of extraneous matter including dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander and insect damaged seeds shall not exceed 8.0 per cent by weight. The amount of insect damaged matter shall not exceed 5 per cent by weight. Inserted by Notification No. GSR 1417 of 20-9-1976 with effect from 2-10-1976." The submission of the learned counsel is that the limit of 5 per cent prescribed for insect damaged matter was introduced with effect from 2nd October 1976. Prior to that, there was no limit and, therefore, the insect damaged contents of Dhania to the extent of 19.35 per cent would not be punishable on the date when the offence was committed viz, 27th April, 1976.
(3.) A reading of the aforesaid rule to my mind clearly indicates that the proportion of extraneous matter including dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander, and insect damaged seeds shall not exceed 8 per cent. The construction which the learned counsel for the applicant wants to place on this rule is that the permissible limit of 8 per cent would be applicable only to dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander. His argument is that the weight of the insect damaged seeds is not included in the permissible limit of 8 per cent but is in addition to that limit. In other words, learned counsel wishes to divide the rule into two portions. The first portion, which includes dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits and the second portion which includes, fruits other than coriander and insect damaged seeds. In my opinion, such a construction is neither possible nor reasonable. To my mind, the rule aforesaid exempts a total percentage of extraneous matter to the extent of 8%. This extraneous matter not only includes dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander but also insect damaged seeds. The use of the word 'and' in the rules indicates that the insect damaged category of extraneous matter would also come within the purview of the rule, apart from various other categories, which have preceded. It would be very unreasonable to infer that the rule intended to exempt insect damaged seeds to an unlimited extent. Such could not be the intention of the framers of the rules, because insect damaged food is likely to be injurious to public health. It is true that sometimes there is a natural growth of insects in seeds for which the seller may not be directly responsible, but at the same time such prolific growth of insecticide would certainly render the article of food unfit for human consumption. It is for this reason that the amendment in the aforesaid rule, mentioned above, was added on 2nd October, 1976, which permitted insect damaged matter in saleable articles of food not to exceed 5 per cent by weight. Rule A. 05.08, as it originally stood forbade totally the sale of coriander which was infested with insect damaged seeds, however, small the quantity may be. But realising the natural growth of this phenomena, the rule has given a latitude by permitting Dhania containing such extraneous matters of insect damaged seeds to be sold, provided it does not exceed a limit of five per cent. In my opinion, therefore, the aforesaid rule which permits the extraneous matter in coriander (Dhania) had set forth a maximum limit of S per cent by weight. After the amendment the position is that out of this 8 per cent the maximum insect damaged seed which is permissible with coriander is 5 per cent. Only a balance of 3 per cent is allowed as extraneous matter including dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander. For the reasons given above, I am not inclined to agree with the first submission made by the learned counsel for the applicant. In my opinion, the evidence on the record clearly established that the applicant is guilty of the offence under Section 7/16 of the Prevention of Food Adulteration Act for infringement of the Rule A. 05.03 framed thereunder.;