S.S.Dewan, J. - (1.) DEWAN Chand petitioner was convicted by the trial magistrate, Hissar under Section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act, 1954 for having been in his possession 13 kgs of insect -damaged sabat moong for sale at his shop and sentenced to two years' rigorous imprisonment and a fine of Rs. 2,000/ - or in default to undergo rigorous imprisonment for one year. On appeal, the Additional Sessions Judge, Hissar not only upheld his conviction but affirmed his sentence and hence the present revision petition.
(2.) THE case of the prosecution is that on 24 -9 -1975, Bhagwan Dass, Govt. Food Inspector formed a raiding party by joining with him Dr. S.S. Gulati, Medical Officer Incharge, Civil Hospital, Tohana; Bari Ram Peon of Health Department and Manohar Lal, a Cloth Merchant and approached the petitioner who was carrying on a kariana shop. The Food Inspector disclosed his identity to the petitioner and purchased 600 gms. of moong sabet. Out of the said stock of moong Sabat for analysis from him on payment of Rs. 1.20 paise as its price. After completing the formalities, one sample bottle was handed over to the petitioner and the second sample bottle was retained in the Health Department of the Civil Hospital, Hissar while the third one was despatched to the public analyst for analysis. The public analyst vide his report Ex. PD, opined that the sample of moong was insect infested and 12.5% of the sample moong was insect -damaged. On the complaint filed by the Food Inspector, the Petitioner was convicted and sentenced as referred to above. A number of contentions have been raised before me. They have been fully stated in the present petition. It will be sufficient to note that Mr. Ashok Bhan learned counsel for the petitioner argued everyone of the points which had been taken in the petition. It seems to me that the evidence led by the prosecution falls far short of proof that the moong containing the insect was unfit for human consumption, a fact which has to be proved by the prosecution; it cannot be presumed merely from the presence of an insect. The prosecution has not only got to establish that there is an extraneous matter but it must also prove that the said extraneous matter in the food has affected the general composition of the food item; that it has, aside from esthetical or like considerations become unfit for human consumption by the general composition becoming so affected as to make it unsound. It was held by the Supreme Court in Municipal Corporation, Delhi v. Khacheru Mal, (1976) 3 Cri. L.T. 150, that the phrase "or is otherwise unfit for human consumption" in section 2(i)(f) is to be read conjunctively and disjunctively. Sarkaria, J., speaking for the Court, observed; The adjectives filthy, putrid, disgusting, decomposed, rotten insect -infested refer to the quality of the article and furnish indicia for presuming the article to be unfit for human consumption, but the presumption may not be conclusive in all cases, irrespective of the character of the article and the nature and extent of the vice afflicting it. It is particularly so where the article is found to be insect infested, in which case it must be proved that the article was unfit for human consumption. The article could became unfit for human consumption by the insect found in the sample being alive or dead. It must be proved in each case as a fact that the article is unfit for human consumption. It will be for the judge to decide upon evidence whether the insect found was of such a nature to make the article unfit for human consumption; even the ipse -dixit of the public analyst may not be of much help by itself because even when there is a report of the public analyst the Court cannot abdicate its judicial function leaving it to be tried by the analyst as it were. The Court, Sarkaria, J., said, should reach its own finding. Such a finding has obviously to be reached by the application of mind to the actual evidence before it.
(3.) THUS , it is clear from the interpretation given to the words 'insect infestant' that only the presence of living or dead insects in a sample is not enough but there must be further evidence that it is unfit for human consumption. For these reasons, the petitioner is given the benefit of doubt and acquitted. Fine, if realised, may be refunded.;