JUDGMENT

SEN, J. — This appeal by special leave is directed against the judgment and sentence of the Punjab and Haryana High Court dated March 3, 1982 by which the High Court has set aside the order of acquittal recorded by the Judicial Magistrate, First Class, Moga dated March 14, 1980 and convicted the appellant under Sec. 7 read with Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 (Act for short) and sentenced him to undergo rigorous imprisonment for a period of six months and a fine of Rs. 1,000/-, and in default, rigorous imprisonment for a further period of three months.

2. The questions in this appeal are, firstly, a question of law as to whether the word damaged appearing in the proviso to sub-section (2C) of S. 13 of the Act is susceptible of a wider construction as to include damage due to any cause including decomposition; and secondly a mixed question of fact and law, as to whether the kutcha khoya sold by the appellant was adulterated i.e. not of the nature, substance or quality prescribed by law.

3. The relevant facts are these. The appellant runs a sweetmeat shop at Sadar Bazar, Moga, On January 3, 1978 Dr. Paramjit Singh, Medical Officer, R. D. Ramnagar, District Faridkot, P.W. 2 along with Dr. Narinder Kumar, P. W. 3 visited the shop of the appellant disclosed his identity as a Food Inspector and demanded 750 grammes of kutcha khoya for analysis and purchased the same. The Food Inspector divided the kutcha khoya so purchased into three equal parts, put them into three polythene packs and added 18 drops of formalin to each. The polythene packs were warpped, labelled and sealed as required under S. 11 (1)(b). One part of the sample was sent by the Food Inspector to the Public Analyst, Chandigarh and the remaining two parts to the Local (Health) Authority, Faridkot as required by clause (a) of sub-section (1) of S. 11 for purposes of sub-section (2) thereof and sub-sections (2A) and (2E) of S. 13. The Public Analyst, Chandigarh by his report dated February 3, 1978 found the sample to be adulterated with sesame oil (til oil) besides being insects infested. The fat content of the sample was reported to be 25%. On the basis of the report of the Public Analyst, the Food Inspector lodged a complaint against the appellant before the Judicial Magistrate, First Class, Moga. The appellant entered appearance and duly exercised his right under sub-section (2) of S. 13. The learned Magistrate sent one of the two parts of the sample to the Director of the Central Food Laboratory, Calcutta for purposes of analysis under sub-section (2B) and the remaining part to the Local (Health) Authority as required under sub-section (2C) of S. 13 of the Act. The Director by his letter dated May 2, 1978 intimated that the sample received by him was decomposed and therefore unfit for analysis and added that the counter-part of the sample may be sent to him immediately for analysis and report. It appeals that for a period of six months apparently nothing was done. On November 10, 1978 the learned Magistrate forwarded the remaining part of the sample to the Director of Central Food Laboratory, Ghaziabad for purposes of analysis. The report of the Director, Central Food Laboratory, Ghaziabad dated Dec. 7, 1978 revealed that the sample was adulterated. The fat content was however stated to be 33.12% with a note added that "the extracted fat of 20.37% did not comply with the standards of milk fat for the State of Punjab". At the conclusion of the arguments, an application was made by the prosecution for clarification to be sought from the Director, Central Food Laboratory, Ghaziabad since the report was not clear. 83 The learned Magistrate however rejected the application and proceeded to judgment. He held that the certificate of the Director, Central Food Laboratory, Ghaziabad had the effect of superseding the report of the Public Analyst, Chandigarh under sub-section (3) of S. 13 and therefore it could not be looked into. He