JUDGMENT
1. This revision is filed against the judgment and sentence passed in CrlA No. 18 of 1994 on the file of II Addl. Sessions Judge, Cuddapah. The trial Court found tlie accused guilty for the offence punishable under Section 7 read with Section 16(1)(a)(1) of the Prevention of Food Adulteration Act. On appeal the judgment and sentence passed by the trial Court were confirmed by the appellate Court.
2. The learned Counsel appearing for the petitioner submitted that the Food Inspector purchased 600 grams of Atta (wheat powder) by paying Rs.2.70 towards its costs on 23-3-1990 at 12 Noon. The tin contained 7 Kgs of atta. On suspicion that atta was adulterated, sample was taken. The said sample was sent to the Public Analyst on 24-3-1990. The Public Analyst received the same on 28-3-1990. In the report it is stated that specimen impression of seal were checked and compared by Kusuma Kumari. Learned Counsel further submitted that what is the result of checking whether the seals were correct or not is not made clear in the report. It is his further contention that the sample contained alcoholic acidity (with 90% alcohol) expressed as Sulphuric Acid-0.20%, and the same should contain not more than 0.18% on dry weight basis. Therefore, the adulteration was found to the extent of 0.02%. According to the Counsel this is a meagre adulteration. He further submitted that the Public Analyst tested the sample sent by the Food Inspector after 37 days. Hence, there is every possibility of the sample getting infested with insects cannot be ruled out. In support of his contention, he relied on a judgment of the Supreme Court in Nortan Mat v. State of Rajasthun, 1995 SCC (Crl.) 780. It reads as follows:
“Almost two decades back, on 13-8-1976, the Food Inspector purchased from the appellant chilly powder for analysis in accordance with the Prevention of Food
Adulteration Act, 1954 and the Rules framed thereunder. Under the Rules, the variables of chilly powder are provided in item A.05.05.01. Total ash permissible is not more than 8 per cent by weight. Here, according to the Public Analyst, the total ash found in the sample obtained from the appellant was 8.38 per cent by weight. There was, thus, excess of .38 per cent by weight almost a 300th part of the substance. Not only is the variable minimal (for that alone could be no defence), but there could be a possibility of error of judgment in analysis. The functions of the Public Analyst being that of an expert, his word in that regard in the normal circumstances is to be given considerable vveightage. But the same cannot be put on the pedestal of being the gospel truth. The statute has plenty of flexibility in which the Court can fish to arrive at a proper solution. The adulteration found in instant case being marginal, the possibility of there being an error of judgment in analysis and the matter being very old, as mentioned at the outset, we think it would be unsafe to uphold the conviction of the appellant as was recorded by the High Court in reversal of that of the trial could who had initially acquitted the appellant of the charge. In this view of the matter, we allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge.”
In view of this observation, the adulteration is only to the extent of 0.02 per cent and cannot be called as high. Further by virtue of Section 11 (4) of the Prevention of Food Adulteration Act, 1954 an article of food seized under sub-section (4) of Section 10, unless destroyed under sub-section (4-A) of that Section, and any adulterant seized under sub-section (6) of that Section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst. PW1 categorically stated that
he did not comply with the requirement of this provision and no sample was sent to a Magistrate as soon as possible or within 7 days after the receipt of the report of the public analyst. The provisions are statutory and also mandatory. ThePWl should strictly comply with the requirements of law. In this case, the provision of Section 11(4) is not complied with. Therefore, for more than one reason, the revision has to be allowed and it is accordingly allowed. Consequently, the judgment and sentence of the appellate Court are set-aside. The fine amount, if any, paid by the petitioner shall be refunded to him.