P.N.Bakshi - (1.) THE applicant has been convicted under Section 7/16 of the P.F.A. Act, and sentenced to six months' R.I. and a fine of Rs. 1000/-. In default of payment of fine he is to undergo three months R.I. His conviction and sentence have been maintained in appeal by the Sessions Judge, Kanpur. Hence this revision.
(2.) THE prosecution case is that the Food Inspector purchased a sample of Safed Zeera from the shop of the applicant on 24th May 1977 in accordance with the formalities prescribed by law. One of the sample phials was sent for analysis to the Public Analyst, whose report disclosed that it contained organic extraneous matter 9% inorganic extraneous matter -12% and Zeera 90.88%. In his opinion organic extraneous matter exceeded the maximum limit of 3%. After obtaining the requisite sanction the applicant has been prosecuted and convicted as above. I have heard counsel for the applicant and have also perused the impugned orders. Learned counsel has argued that under SI. No. A.05.09 of Appendix B the permissible limit of extraneous matter was 7% & the proportion of edible seeds other than cumin seeds was not to exceed 5%. The report of the Public Analyst is incomplete because it has not given the extent of edible seeds. The submission is that the report should be rejected. In the note attached to SI. No. A.05 of Appendix B, which came into force on 13-2-1974 by G. S. R. No. 205, extraneous matter was classified as follows : (a) Organic extraneous matter such as dust, dirt, straws. (b) Inorganic extraneous matter such as dust, dirt, stones, lumps of earth. By sub-clause (2) of the same note out of the permitted extraneous matter in item No. A.05.09 (safed Zeera), the inorganic extraneous matter was not to exceed 2% by weight. In other words, organic extraneous matter was not to exceed the maximum limit of 5%. Reading SI. No. A.05 along with SI. No. A.05.09 the inference seems to be inevitable that the maximum permissible limit of organic extraneous matter in Cumin (safed Zeera) is 5% and inorganic extraneous matter is 2% and edible seeds other than cuminum seeds is 5% by weight. The report of the Public Analyst with respect to the sample in question, in the instant case mentions the organic extraneous matter at 9% and inorganic extraneous matter is '12% and Zeera is 90.88% . It is thus clear that apart from organic, inorganic matter and Zeera, the sample did not contain any other foreign matter i.e., it did not contain edible seeds other than cumin seeds. If such seeds were present, there is no reason why the Public Analyst would also not have mentioned their proportion in his report. Thus the absence of any mention as to the existence and the extent of edible seeds, other than cumin seeds, will not in any way, lessen the value of the report so as to cast any doubt upon its correctness. The Public Analyst is not expected to mention in the report items foreign to the sample of Zeera, which do not exist therein. He has clearly noted in the result of the examination that the organic extraneous matter , exceeded the permissible limit of 5% . In my opinion, such a report is a perfectly valid and reliable document, whose correctness cannot be doubted. I find no substance in this contention raised on behalf of the applicant's counsel.
(3.) LEARNED counsel has then argued that the defence taken up by the accused has not been considered by the Sessions Judge. He has placed before me the entire statements of Badri Prasad DW 1 and Satya Narain DW 2. The defence taken up by the accused was that the Zeera from which the sample was taken was not exposed for sale. It was stored for the purpose of cleaning its impurities. LEARNED counsel argues that under section 10 (1) (a) (ii) of the Prevention of Food Adulteration Act, the Food Inspector was not empowered to take such a sample for analysis. On a careful consideration of the statements of both these witnesses, I am of the opinion that there is no merit in the defence taken up by the accused. No receipt has been produced to show that Satya Narain sold the Zeera in question to the accused applicant. The Zeera itself was kept in a tasla along with the other articles and was being exhibited for sale. As such, the defence appears to be concocted. It was considered and rightly rejected by the trial court, since the appellate court has not made any specific mention of the defence, hence I have allowed the learned counsel for the applicant to place the statements of the witnesses and have considered the same. The Zeera was being sold at the shop of the accused-applicant and was duly purchased by the Food inspector in accordance with law. There is no merit in this contention also. Lastly it is also argued that the Public Analyst, Lucknow had no power to examine the sample in question. It should have been examined by the Public Analyst of Varanasi. This question entails investigation into facts. It was never urged in any of the courts below. I do not feel justified in allowing the applicant to raise this factual question now.;