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TMI Blog1982 (1) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in Tek Chand Bhatia's case supra). It is in these circumstances that the appeal was admitted and has been placed before us. 2. The facts are straight and simple The accused-respondent aged about 70 years is a shopkeeper at Retail Market, Hali Mandi, Gurgaon. On 2-12-1977, the Food Inspector visited his shop and found him to be in possession of 18 kgs. of 'Sabat Haldi' (turmeric fingers) for sale contained in a gunny bag. The Food Inspector served the requisite notice in accordance with the Food Adulteration Rules and purchased 600 grammes of 'Sabat Haldi1 for analysis. The same was divided into three equal parts and bottled in three dry and clean bottles which were duly labelled and stoppered and securely fastened. The Public Analyst, to whom one such sample was sent, received the sample on 6-12-1977 and caused it to be analysed on 12-1-1978, after a period of one month and six days. The result of his analysis has been noticed earlier. The respondent on that score was prosecuted on complaint filed by the Food Inspector who supported it, by his own evidence as P.W. 1, by Dr. S. P. Ghai P.W. 3 accompanying him, and the report of the Public Analyst. As said befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed 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; Additionally, the definition of primary food was given in Clause (xii-a) which too may be noted: (xii-a) 'primary food means any article of food, being a produce of agriculture or horticulture in its natural form: These changes have been brought about by the Parliament seemingly on the report of the Joint Committee on the Prevention of Food Adulteration (Amendment) Bill, 1974 published at page 10 of the Gazette of India Extraordinary, Part-II, of Jan. 5, 1976. Cl. 12 thereof, which is relevant for the purpose, would be worthy of being taken note of: The Committee has given very careful thought on the provisions suggested in the clause relating to the penalties to be awarded for various types of offences under the Act. The Committee is of the Opinion that while persons who indulge in deliberate acts of adulteration should be punished severely, it should, at the same time, be ensured that innocent people are not unnecessarily harassed. The Committee has, accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 per cent by weight. Explanation . The term 'insect damaged matter' means spices that are partially or wholly bored by insects. 5. There can be no manner of doubt that turmeric whole even in the dried state would be in its natural form and be 'primary food'. Now under Clause (f) of Section 2(ia), an article of food which is insect-infested would be deemed to be adulterated, and there has to be no further finding that it was unfit for human consumption as per the rule laid down by the Supreme Court in Tek Chand Bhatia's case 1980 Cri LJ 316)(supra). In other words, whatever the degree of insect infestation, the article of food would be adulterated. As heldin Kache-roo Mai's case 1976 Cri LJ 336)(supra, the presence of dead or alive insects would not make any difference and the article would be all the same insect-infested. Thus the presence of a live weevil and a dead meal worm in the sample as also insect damaged turmeric fingers, as found, would render the article adulterated. But what is the effect of els. (1) and (m) of Section 2(ia) is to be seen. 6. Prior to 2-10-1976, there was no standard of quality or purity prescribed for whole turmeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 16 is imposable. If adulterated food is not primary food, then other considerations apply with which we are not concerned in the present case. 8. Reverting to the facts of the present case, the Public Analyst has reported that turmeric fingers were insect damaged up to 7.7 per cent. Presumably what he meant by the percentage was by weight and not by count. Nowhere has he said whether the article with such percentage of damage was injurious to health or non-injurious to health, or that the presence of insects, or adulteration caused by insect damaging, was due to human agency. The article of food, if attacked by insectes, whether germinated from within the article or visited from without, would first get insect-infested and then insect-damaged. It would thus seem to us to be defeating the intention of the law-makers by employing Clause (f) of Section 2(ia) merely to insect infestation and not making the proviso applicable in relation to primary food. Rather, it(would promote the intention of the lawmakers to initially apply els. (1) and (m) read with the proviso to primary food, and then see if it is sub-standard due to natural causes and beyond the control of human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e article at his own expense to confirm it to the quality and purity of the standard prescribed. The object is to safeguard producers and keepers of primary food from the harassment of the Food Inspectors and give them a protective umbrella if the article, being primary food, was not intended by them for sale as food for human consumption. 10. Now here the possibility cannot be ruled out that the turmeric fingers found With the petitioner could be visited by insects from outside, lying as they were in a gunny bag wherein such article is normally stored or the insects to have germinated within. They could come there from without due to natural causes and beyond the control of human agency, It is wholly chimerical and inconceivable that an adulterator would add insects of his own t0 an article for profit making. Also the report of the Public Analyst is deficient whether the article was injurious or non-injurious to health and thus does not carry out the purposes of either of els. (1) and (m) with the proviso in Section 2(ia) of the Act. Such deficient report alone warrants us to maintain the order of acquittal of the respondent, besides other reasons mentioned heretofore. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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