Gulab Chand Gupta, J. - (1.)This is State's appeal under Sec. 378(1) and (3) of the Code of Criminal Procedure against the judgment dated 3-9-1979 passed by Shri R.P. Tiwari, II Additional Sessions Judge, Durg, acquitting the respondent Ganeshram of offence under Sec. 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954.
(2.)The case of the prosecution is that on 6-7-1977 the Food Inspector, Shanker Rao purchased 450 grams of Khaskhas from the respondent which has been found adulterated according to the report of the Public Analyst, Raipur, Ex. P-7. The Public Analyst found that the sample of Khaskhas contained 0.995 per cent. Organic extraneous matter; 4.69 per cent moisture and 27.77 per cent non-volatile extracts. According to the Public Analyst the sample was below standard. The case was tried by the Chief Magistrate, Durg who convicted the appellant for the offence and sentenced him to rigorous imprisonment of six months and a fine of Rs. 1,000.00 and in default of payment of fine to a further rigorous imprisonment of 6 months. On appeal the learned Additional Sessions Judge held that the report of the Public Analyst does not give the weight on the basis of which the percentage is arrived at. Relying on the decision of this Court in Karam Chand Vs. State of M. P., 1978 M.P.L. J. Note 4 , learned Additional Sessions Judge held that the data on the basis of which the sample was held to be below standard was missing and hence the responsibility cannot be fastened on the accused person. Learned Additional Sessions Judge also held that it was for the prosecution to prove the case against the accused persons beyond doubt. In the absence of such a proof the conviction and sentence was set-aside and the accused respondent acquitted.
(3.)The case has been argued with vehemence by Shri A. P. Shukla, learned Deputy Government Advocate. His submission is that the burden of proving his innocence lies on the accused persons which the accused person has failed to discharge. According to the learned counsel, the only obligation of the prosecution is to file the report of the Public Analyst and get it exhibited in the Court. In case any further material or data was required it was for the respondent accused person to summon Public Analyst and obtain the same. Learned counsel also placed reliance on Sec. 2(ia)(l) of the Act to show that the offence has been committed. I must confess that inspite of lot of patience hearing and serious efforts made by me I have not been able to understand the argument of the learned counsel. The challan as originally filed, was for an offence punishable under Sec. 16(1) of the Act. Sec. 16(1) prescribes penalties for various offences prescribed under the Act. The offence is committed under Sec. 7 which prohibits manufacture for sale or storage or distribution of adulterated food. Adulterated food has been defined under Sec. 2(ia) of the Act. Sub-section (1) of this section on which the reliance is placed reads as under :
"If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health."
Under this section the prosecution has not only to establish the quality or purity falls below the prescribed standard but has also to prove that it renders injurious to health. Nothing has been brought out in this case to show that quality of the article was below the standard prescribed as a result of which it becomes injurious to health. No doubt, the standard of poppy has been prescribed under the Food Adulteration Rules, 1955 but that by itself is not sufficient to show that the Khaskhas had become injurious to health. Under the circumstances, I am unable to agree with the learned counsel that any case under the aforesaid sub-section has been made out. I am equally unable to appreciate the submission of the learned counsel that the prosecution is not required to prove anything and the burden of establishing his innocence is on the accused-respondent. No law or authority has been cited to justify such an argument. Such a proposition is also contrary to criminal jurisprudence besides being in contravention of principles of natural justice. The report of the Public Analyst can be admitted in evidence without examining the Public Analyst himself but the opinion contained in the report is neither conclusive nor binding unless the conclusion is based on sufficient data so that the Court can itself consider the correctness thereof. In the instant case the learned Additional Sessions Judge has held that though the percentage of various components has been stated the weight on the basis of which the percentage is arrived at is not stated. It cannot be denied that it is for the Court to determine whether the sample supplied for test confirmed to the standard prescribed by the Rules and it is not for the Public Analyst to say so. In the absence of factual data or reasons for arriving at the conclusion, the report has been held vague. It was not the responsibility of the respondent accused to summon the Public Analyst and obtain the factual data. That was the burden on appellant State which they have failed to discharge.