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2010(1) Crimes 648 (Del.)
DELHI HIGH COURT
Indermeet Kaur, J.
Mithilesh —Petitioner
versus
State —Respondent
Criminal Revision No. 619 of 2002 and Crl. M.A. Nos. 772-773 of 2002
Decided on 4.11.2009
For the Petitioner Mr. M.K. Singh and Mr. Vishal Gera, Advocates.
For the Respondent: Mr. Manoj Ohri, APP.
IMPORTANT POINT
Where sample of chilli powder was found adulterated because of presence of salt and incident was of the year 1993, sentence deserved to be reduced to three months imprisonment from one year.
Headnote:(i) Prevention of Food Adulteration Act, 1954—Section 7/16—Sample of chilly powder reported adulterated by public analyst as it contained salt as adultrant—Second sample examined by CFL was opined to be adulterated on two counts that total ash content exceeded maximum specified limit of 8.0% by weight and it was not free from presence of sodium chloride—Conviction by courts below—Revision—Contention that sodium chloride (salt) was a Class I preservative it could not be an adultrant was not acceptable—No provision in Act or Rules to show that presence of salt in sample of chilly was permissible—Courts below rightly held sample to be adulterated. (Paras 9 to 13)
(ii) Prevention of Food Adulteration Act, 1954—Section13—Certificate issued by Director CFL is final and conclusive evidence of facts stated therein—Difference in two reports i.e. report by public analyst and report of CFL could be looked into by court for ascertaining as to whether samples were representative or not—Sample to be representative if examined by two different experts could not have a total variation of + 0.3% in its sodium chloride content. (Paras 18 and 19)
(iii) Prevention of Food Adulteration Act, 1954—Section 7/16—Sample of chilly powder found adulterated by presence of salt—Sentence—Courts below awarded sentence of one year imprisonment and fine—Incident was of 1993 and petitioner was a petty shop- keeper—Sentence deserved to be reduced and reduced to three months RI. (Para 25)
Result: Revision disposed of.
JUDGMENT
Indermeet Kaur, J.— On 11.2.1993, Food Inspector S.K. Sharma under the supervision of Dr. Pawan Vats had lifted a sample of chilly powder from an open container from the shop of Mithilesh being run in the name and style of M/s Mithilesh General Store, 96A, MIG Flats, opposite GTB Hospital, GTB Enclave, Shahdara, Delhi. The sample was of 450 grams; it had been lifted after proper homogenization and put into three dry and clean glass bottles in equal parts; thereafter packed, fastened and sealed.
2. The public analyst vide report dated 7.4.1993 had opined the sample as adulterated because it contained salt as an adulterant. The report reads as under:
“Moisture 8.22%
Total ash 7.44%
A insoluble in dil. NCl. 0.34%
Non-volatile other extract 20.97%
Crude fibre 19.25%
Test for coaltar dye negative
Test for starch negative
Insect & Fungus nil
Microscopy Chillies structures
seen
Test for sodium chloride positive
Sodium chloride
(common salt) 2.54%”
3. The petitioner exercised his right under Section 13(2) of the Prevention of Food Adulteration Act (hereinafter referred to as PFA Act). The second sample was examined by the Director of the Central Forensic Laboratory (CFL) and the said report is dated 30.6.1993. The sample examined was opined to be adulterated on two counts:
(a) Total ash content exceeds the maximum specified limit of 8.0% by weight.
(b) It is not free from the presence of sodium chloride.
The contents of the report reads as under:
“1. Physical appearance Chilli powder free
infestation and mould from insect growth.
2. Moisture 6.32%
3. Total ash 9.72% by weight
4. Ash insoluble in dilute 0.89% by weight
HCl
5. Non-volatile ether 18.31% by weight
extract
6. Crude fibre 22.09% by weight
7. Test for presence of Negative added starch.
8. Test for presence of Positive sodium chloride
9. Sodium chloride content 2.5% by weight
10. Test for presence of Negative
colouring matter
11. Test for presence of Negative
turmeric
12. Microscopic
examination of the
sample revealed the
presence of structures
of chilli only.”
4. The trial court vide impugned order dated 30.3.2002 had held that the petitioner had violated the provisions of Section 2(ia)(a)(m) and was held guilty for the offence punishable under Section 7 read with Section 16(1) of the PFA Act. Vide order of sentence dated 6.4.2002, he was sentenced to undergo RI for a period for one year and to deposit a fine of Rs. 3,000, in default of payment of fine, to undergo SI for three months.
5. This judgment was the subject matter of an appeal before the Additional Sessions Judge who vide impugned order dated 30.7.2002 dismissed the appeal; no modification was made in the sentence either.
6. On behalf of the petitioner two broad submissions have been made before this court:
(i) It is submitted that sodium chloride (salt) is a Class I preservative; this is evident from Rule 53 of the PFA Rules, 1955. There are two classes of preservatives mentioned in Rule 53; Class-I preservative includes common salt. Under Rule 54 and Rule 55 there are certain restrictions imposed on the use of class-II preservatives; these restrictions are indicative of the intention of the legislature; i.e. on their free use; preservatives enlisted in the class-I category are those items which are essential for the health and well-being of an individual; that is why there are no restrictions imposed upon this category i.e. on Class-I preservatives; this is also so specifically stated in Rule 53. Salt essentially being a preservative cannot become an adulterant. Attention has also been drawn to the definition of ‘adulterant’ as contained in Section 2(i) and ‘adulterated’ as contained in Section 2 (ia) of the PFA Act. It is stated that unless the substance is injurious to the health of a person, it cannot be an adulterant and this is evident from the reading of sub-clause (b), (c), (d), (e) and (h) of Section 2 (i) (ia); all other categories as contained in Sect
