JUDGMENT
S. Muralidhar, J.
1. This appeal filed by the State is directed against the judgment dated 20th February, 1984 passed by the learned Additional Sessions Judge, Delhi (ASJ) in Criminal Appeal No. 147 of 1981.
2. By the impugned judgment dated 20th February, 1984 the learned ASJ allowed the appeal filed by the Respondents against the judgment dated 30th October, 1978 passed by the learned Metropolitan Magistrate, Delhi (MM) convicting the Respondents for the offences under Sections 7 read with 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act) and the order dated 3rd November, 1978 whereby the Respondents were sentenced to undergo rigorous imprisonment of nine months and a fine of Rs. 1,500/- each, and in default of the payment of fine, they would further undergo rigorous imprisonment of three months.
3. Food Inspector Shri Gurdas purchased a sample of Lal Mirchi powder from M/s. Janta Shudh Masala Store from its premises No. 489/20-B, Gandhi Nagar, Delhi on 7th July, 1977 at about 5.00 pm. The sample was sent to the Public Analyst on the next day i.e. 8th July, 1977. The test report of the sample of the Public Analyst indicated the following results:
Date of analysis - 14.7.77. Moisture - 7.6% by weight. Total ash - 7.92% by weight. Ash insoluble in oil HCL - 0.68% by weight. Non volatile other extract - 15.09% by weight. Crude fibre - 25.57% by weight. Artificial colour - Absent. Insect infestation - Nil. Microscopic examination - 5% extraneous organic matter- Present. Rodent hairs and excreta - Nil. and am of the opinion that the same is adulterated due to the presence of extraneous organic matter to the extent of 5.0%.
4. The Respondents were challaned for the offences under Section 7 of the PFA Act read with 2(1) and (m) thereof. The trial court noticed that the report of the Public Analyst indicated the presence of 5% extraneous organic matter and on that basis the Public Analyst had opined that the Lal Mirchi powder of which the sample was taken, was adulterated. Referring to the Prevention of Food Adulteration Rules, 1955 (PFA Rules) and the standards laid down in the Appendix B thereto, the learned MM noticed that Item No. A.05.05.01 defined what was Chillies and Capsicum (Lal Mirchi) and rejected the submission that the reference to organic matter in the report was vague.
5. The learned ASJ however differed from the view expressed by the learned MM on this point. Referring to Haisburys Laws of England, Third Edition, Volume 17, Paragraph 8971 which required the Public Analyst not to indulge in vague generalities but to set out his findings with “such clearness that justice may be able upon the data he gives to form their own opinion as to whether the article was or was not adulterated,” the learned ASJ opined that the report “suffers from vagueness.” The decision of this Court in Navnit Lal v. MCD 1989 (II) F.A.C. 141 was also relied upon for this purpose. Accordingly, the appeal was allowed by the impugned order.
6. The contention of Mr. Lao, learned APP appearing for the Appellant State was that there was absolutely no requirement under the PFA Rules for the Public Analyst to separately indicate what type of extraneous organic matter was found in the sample. The permissible limit of extraneous matter was 1% whereas here it was 5%. As long as the letter of the PFA Rules was complied with, it could not be said that the report was vague.
7. The submission of Mr. Thareja, learned Counsel appearing for the Respondents on that other hand was that the opinion of the Public Analyst was based on a merely physical examination of the sample through microscope. This could not have indicated with precision the percentage of the extraneous organic matter. He pointed out that they are two kinds of tests, the physical test and the Chemical test. Unless the Chemical test is also conducted it will not be possible to know the exact nature of the organic substances that has caused adulteration. In the instant case, according to him, there was no Chemical test conducted to show the presence of any adulteration. Given that the physical observation only generally referred to organic substances, only a Chemical test would have confirmed its nature to determine if was an adulterating substance. In these circumstances, merely relying upon the physical examination of a small sample through microscope was an unsafe piece of evidence to determine adulteration.
8. This Court finds considerable merit in the submission of learned Counsel for the Respondents.
9. In the first place the definition of adulterated requires to be noticed. The relevant portion of Section 2(ia) PFA Act reads:
2(ia) “adulterated” – an article of food shall be deemed to be adulterated-
(a) to (k) ….
(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health;.
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
10. The standards set out in the relevant clause of the PFA Rules concerning the substances involved in the present case reads as under:
A.05.05 – Chilles and Capsicum (Lal Mirchi) Whole means the dired ripe fruits or pods of the Capsicum annum L & Capsicum frutescens L. The pods shall be free from mould, living and dead insects, insect fragments, rodent contamination. The product shall be free from extraneous coloring matter, coating of mineral oil and other harmful substances.
It shall conform to the following standards-
(i) Extraneous matter – Not more than 1.0% by weight.
(ii) Unripe and marked fruits – Not more than 2.0% by weight.
(iii) Broken fruits, seed and fragments- Not more than 5.0% by weight.
(iv) Moisture – Not more than 11.0% by weight.
(v) Total ash on dry basis – Not more than 8.0% by weight.
(vi) Ash insoluble in dilute HCL on dry basis – Not more than 1.3% by weight.
(vii) Salmonella – Absent in 25g.
(viii) Insect damaged matter – Not more than 1.0% by weight.
A.05.05.01 – Chillies and Capsicum (Lal Mirchi) Powder means the powder obtained by grinding clean ripe fruits or pods of capsicum annum L and capsicum frutescens L. It shall be free from mould, living and dead insects, insect fragments, rodent contamination. The powder shall be dry, free from dirt, extraneous coloring matter, flavouring matter, mineral oil and other harmful substances. The chilli powder may contain any edible vegetable oil to a maximum limit of 2.0 per cent by weight under a label declaration for the amount and nature of oil used.
11. On a perusal of the above standards, it is not possible to accept the plea of learned Counsel for the Appellant that the Public Analyst was required to do nothing more than merely indicate that there was some extraneous organic matter. The standards indicate the type of possible organic matter like mould, dirt, dead insects and insect fragments that are likely to found as adulterating substances. Surely it was not intended by the law makers that the report of test analysis should leave the question of what precisely is the adulteration vague and unidentified. In such a case a physical examination may alone not be enough. It is only a Chemical examination that can show the nature of the extraneous organic matter and whether it is beyond the limits in terms of Section 2(ia), (1) and (m) read with the PFA Rules.
12. In the instant case, the report of the Public Analyst merely states that there is some extraneous organic substance without specifying the precise nature of the organic matter that is found to be causing adulteration. The description is indeed vague. The definition in Section 2(ia), (1) and (m) PFA Act of the word “adulteration” indicates that the article which is “injurious to health” and is present at a level beyond the permissible limit, should in fact be identified as such. The test report in the instant case does not satisfy that requirement. The prosecution must therefore fail.
13. Accordingly, there is no merit in the appeal and it is dismissed as such. In the circumstances, there will be no orders as to costs.