1996 Supreme(Guj) 492

Gujarat High Court
Judgename :A.N.Divecha
STATE OF GUJARAT - Appellant
Versus
HANIFBHAI V.NEDARIYA - Respondent
CRIMINAL APPEAL 1246 of 1992
Decided On : 10/08/1996

Headnote:(a) Prevention of Food Adulteration Act, 1954 - Sec. 2(1a) (o) & (F) - Adulterated - Definition of - Expression `or it is otherwise unfit for human consumption occurring in the definition clause need to be read disjunctively and as a residuary provision - Sample of turmeric power found to be heavily injested with living & dead insects & larvae is covered under the definition of `adulterated - No further proof that it was unfit for human consumption necessary - Contrary conclusion reached by learned trial Magistrate was not sustainable.

       It would be quite proper at this stage to look at the relevant portion of the definition of the term Adulterated contained in Sec. 2(ia)(f) of the Act. It has been provided therein that an article of food shall be deemed to the adulterated if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or, vegetable substance or is insect-infested or is otherwise unfit for human consunption.

       [Para 8]

       The expression or it is otherwise unfit for human consumption occurring in the aforesaid provision contained in the definition clause of the Act has been held to be read disjunctively and it was held to be a residuary provision. In that case, the sample of cashew nuts was proved to be insect-infested. In that context, the Apex Court held that no further proof that the article was unfit for human consumption was necessary.

       [Para 9]

       The report of the Public Analyst at Exh. 30 on the record of the trial court quite clearly shows the sample to the insect-infested. It was found to be containing more than 50 living and dead grain-moths and larvae. In that view of the matter, the sample in question could be said to be adulterated within its meaning contained in Sec. 2 (ia)(f) of the Act.

       [Para 10]

       (b) Prevention of Food Adulteration Act, 1954 - Sec. 13(2) - Prevention of Food Adulteration Rules, 1955 - Rule 9-A - Service of notice within ten days of institution of prosecution - Nature of the provision directory and not mandatory - In order to derive any benefit under prejudice to accused flowing from its non-compliance has to be shown to the court - In the case notice was sent to the accused very much within ten days and admittedly accused has not demanded analysis of other sample - In the facts accused could not claim that notice being served after six months of first sale of sample to respondent he was deemed the valuable right of getting other sample examined by Central Food Laboratory - This benefit was available to accused only if he had got the other sample sent to Laboratory & Analyst had found the other sample unfit for analysis on account of passage of time.

       It is true that Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (the Rules for brief) requires service of the notice under Sec. 13(2) of the Act within ten days from institution of the prosecution aginst the accused. No grievance could be made regarding non-compliance therewith. The complaint was lodged in the court of the Chief Judicial Magistrate at Himatnagar on 8th April, 1991. The notice under Sec. 13(2) at Exh. 34 on the record of the trial court was sent on 18th April 1991, very much within ten days as required by Rule 9-A of the Rules. Even otherwise, in its ruling in the case of T.V. Usman vs. Food Inspector, Tellicherry Municipality reported in Judgment Today 1994 (1) Supreme Court at page 260, the Supreme Court has held Rule 9-A of the Rules to be directory and not mandatory. Prejudice to the accused flowing from its non- compliance has to be shown to the court.

       [Para 12]

       In the present case, neither accused has demanded the other samples to be analysed by the Central Food Laboratory on receipt of the notice at Exh. 34 on the record of the trial court. It cannot be gainsaid that Sec. 13(2) of the Act confers valuable right on the accused for getting the other sample examined by the Central Food Laboratory and the report of the Central Food Laboratory is made conclusive and, if it shows the sample to be unadulterated, the accused would stand benefitted thereby. If the Central Food Laboratory finds that the sample sent to it was unfit for analysis on account of passage of time, the accused would stand benefitted regarding correctness of the report of the Public Analyst on the basis of which the prosecution against him is launched. If however no sample is sent to the Central Food Laboratory, it would be difficult to assume in favour of the accused that the other samples of the article of food purchased from him by the complainant were so degenerated as had become unfit for analysis or had become insect-infested by passage of time.

       If it was found by the Central Food Laboratory that the sample sent by it for analysis was insect-infested on account of passage of time, different considerations would have arisen. In that case, the respondents as accused could have very well pleaded that they could not get an opportunity to verify the correctness of the Public Analysts report. When the respondents-accused did not avail of their right to get the other samples examined by the Central Food Laboratory under Sec. 13(2) of the Act, they cannot make a grievance that they were sent the report of the Public Analyst after the expiry period of six months for consumption of Turmeric powder as packed in the plastic bag from which the complainant purchased the sample for the purposes of the Act and they could not therefore get the other samples tested by the Central Food Laboratory.

       [Para 13]

       (c) Prevention of Food Adulteration Act, 1954 - Secs. 16(1-A)A & 19(2) - Sale of any adulterated or misbranded article of food - No liability arises when purchased from manufacturer or distributor or a dealer - In the case admittedly respondent No. 1 purchased the article of food in question from respondent No. 2 in packed condition and sold it to complainant in the same condition - No allegation that article of food while in possession of respondent was not properly stored - In that view of matter respondent No. 1 could not be held guilty of offence charged with - However respondent No. 2 can not escape his penal liability.

       The conditions for claiming benefit of Sec. 19(2) of the Act by respondent No. 1 are fully satisfied. He admittedly purchased the article of food in question from respondent No. 2 in packed condition and he sold the same in the same packed condition to the complainant. Respondent No. 2 is implicated in this case as a manufacturer or distributor of the article of food in question. It is nobodys case that the article of good in question while it was in possession of respondent No. 1 was not properly stored. That could have been the defence of respondent No. 2 herein. He has not come with that defence. In that view of the matter, respondent No. 1 herein cannot be said to be guilty of the offence with which he has been charged. Since respondent No. 2 has sold the article of food in question either as a manufacturer or as a distributor or as a dealer to respondent No. 1 and that article of food is found to be adulterated, respondent No. 2 cannot escape from his penal liability. He has to be convicted of the offence punishable under Sec. 16(1-A)(i) of the Act.

       [Para 14]