The burden of proof in establishing the exception under the proviso to Section 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 rests on the defendant.

The State is aggrieved by the judgment of acquittal of the judicial Magistrate of the First Class, Changanacherry in S.T. No. 58 of 1978 wherein the present respondent was charged under Section 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) read with Section 7(1)(a) and Item A.05.09 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (for short the Rules).

2. P.W. 1, the Food Inspector Changanacherry Circle laid the complaint against the respondent under the above provisions of the Act and Rules alleging that on 6-12-1977 at about 1.30 p.m. he went to the provision shop belonging to the respondent near Pathanad junction of Kangazha Panchayat and after satisfying the formalities required by law, purchased a sample of cumin seeds from the respondent and dealt with the sample in accordance with the provisions of law. One of the samples sent to the Public Analyst brought forth the report, Ext. P-5, in which the Public Analyst stated that the sample does not conform to the standards prescribed for cumin seeds. After observing further formalities required, complaint was filed.

3. The respondent pleaded not guilty before the trial court. The prosecution examined five witnesses and marked Exs. P-1 to P-7. the defence did not tender any evidence. The trial court held that the Public Analyst's report does not form to the standard prescribed for cumin seeds in the Rules and that, in any event, cumin seeds being primary food and there being no evidence that the respondent was responsible for the addition of Extraneous seeds, acquitted him. The acquittal is now challenged.

4. Article A.05.09 of Appendix B of the Rules states thus:

"Cumin (Safed Jeera) whole means the dried seeds of Cuminum Cyminum (L). The proportion of extraneous matter including dust, stones, lumps of earth, chaff, stalk, stem or straw shall not exceed 7.0 per cent by weight. The proportion of edible seeds other than cumin seeds shall not exceed 5.0 per cent by weight."

5. The report of the Public Analyst shows that the sample contains 77.7% by weight of cumin seeds, 1.8% by weight of extraneous matter including dust, stones, lumps of earth, chaff, stem or straw and 20.5% by weight of seeds other than cumin seeds. The Public Analyst has further reported that the sample does not conform to the standards prescribed for cumin seed and is therefore adulterated.

6. As per the standards prescribed in the Rules, portion of edible seeds other than cumin seeds shall not exceed 5% by weight. The Public Analyst has not specifically mentioned in his report regarding the percentage by weight of edible seeds other than cumin seeds. He has given percentage by weight of "seeds other than cumin sees." It may be that portion covered by 20.5% by weight consists entirely of edible sees or entirely of non-edible seeds or a mixture of both. It is true that the Public Analyst could have given a better report. If the trial Magistrate so thought he could have summoned the Public Analyst to give better particulars. It was open to the defence also to make such a move. But I do not think this could be a ground of acquittal, since no prejudice is caused to the accused and the report contains adequate material.

7. Besides the 5% allowance for edible seeds, the Rules permit up to 7% extraneous matter including dust, etc. Non-edible seeds can be taken to be such extraneous matter. If that be so, the percentage of extraneous matter including non-edible seeds cannot exceed 7% by weight. If we add the percentage of permitted edible seeds to this, the total permitted allowance on the two counts is only 12%. In the sample the total percentage of extraneous matter together with seeds other than cumin seeds is sample does not conform to the standards prescribed by the Rules. The learned Magistrate was in error in coming to a contrary conclusion.

8. The ground of acquittal is on the basis that cumin seed is primary food and prosecution has not