IMPORTANT POINT
When sample of Besan was collected in 1988 and was found adulterated due to presence of kesari dal powder and Rule 44A forbidding sale of kesari dal in any form in the State was brought into force by notification in 2000, conviction for contravention of Rule could not be sustained.

JUDGMENT

Arijit Pasayat, J.-Appellant faced trial for alleged commission of offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in short the Act ). While the trial Court acquitted him, Madhya Pradesh High Court by the impugned judgment upset it.

2. Factual position as projected by prosecution in nutshell is as follows:

S.B. Dubey (PW-1) was appointed by the Government as Food Inspector. The accused Dinesh Kumar was having a kirana shop at Itava Road, Bhind. He used to sell Besan. On 29.3.1988 at about 3.00 p.m. the said Food Inspector went to his shop and inspected the articles and suspecting adulteration took a sample of Besan. He prepared Form No. 6 and thereafter 750 gms. of Besan was taken before the witnesses and Rs. 4.50/- being the price was given to the accused and receipt was obtained. The sample was divided into three equal parts and he sealed it in separate containers. Panchnama (Ex. P-4) was prepared on the spot. One sample was sent to Public Analyst, Bhopal and remaining two were deposited in the office of Local Health Officer. A report (Ex. P-8) was received and it was found that Besan was adulterated, on the basis of which a complaint was filed. The accused was charged under Section 7(1) read with Section 16(1)(a)(i) of the Act. He denied the charge, but claimed that on the date of occurrence the Food Inspector went to his shop and demanded Besan, but Besan was not at his shop and hence be brought from the neighbouring flour mill which, had come there for grinding. The sample was taken of that Besan. The prosecution examined Vimal Kumar Jain as (PW-2), besides S.B. Dubey (PW-1). Besides, it relied upon the documents Ex. P-1 to Ex. P-10. After considering the entire material on record and hearing the parties the accused was acquitted by the learned Chief Judicial Magistrate. The State of M.P. filed an appeal before the Madhya Pradesh High Court, Gwalior Bench. By the impugned judgment a learned Single Judge of the High Court held that the appellant has contravened relevant provisions of the Act and was, therefore, to be convicted. Reference was made to Rule 44A of the Prevention of Food Adulteration Rules, 1955 (in short the Rules ) and it was observed that sale of Kesari dal in any form was forbidden and even though the ash content was within permissible limit, accused-appellant was to be convicted for violation of Rule 44A of the Rules. Accordingly, he was sentenced to undergo imprisonment of six months and to pay a fine of Rs. 1,000/- with default stipulation.

3. In support of the appeal, learned counsel for the accused-appellant submitted that the occurrence took place on 29.3.1988, and at that point of time Rule 44A was not in operation in the State of the Madhya Pradesh and, therefore, the conviction as recorded is not maintainable.

4. Learned counsel for the State, however, supported the judgment submitting that sale of Kesari dal in any form is prohibited and, therefore, the mixture of Bengal Gram and Kesari dal exhibited for sale clearly was in contravention of the Act and Rules and, therefore, conviction was rightly recorded.

5. Under Rule 5 the definitions and standards of quality have been laid down in Appendix-B. Rule 5, inter alia, provides that the standard of quality of the various articles specified in Appendix-B are as defined in that Appendix. So far as Besan is concerned, standard is provided in serial A 18.04 of Appendix-B. The same reads as follows:

"A 18.04 : BESAN means the product obtained by grinding dehusked Bengal gram (Cicer arietinum) and shall not contain any added colouring matter or any other foreign ingredient.

Besan shall conform to the following standards :-

(a) Total ash Not more than 5 per cent.

(b) Ash insoluable in Not more dilute hydrochloric than 0.5 per acid