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TMI Blog1975 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: Date of Analysis: 10-1-1969. Insect-infested pieces of Kajus: 21.9% and I am of the opinion that the same is adulterated due to insect infested pieces of Kajus to the extent of 21.9%. On the preceding facts, the Food Inspector filed a complaint for prosecution of the respondent in respect of an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954 (herein after called the Act). The trial Magistrate convicted and sentenced him for six months rigorous imprisonment with a fine of Rs; 1000/-. Kacheroomal's appeal before the Additional District and Sessions Judge, failed. Against the order of the Additional Sessions Judge, he preferred a revision to the High Court. The revision was heard by a learned Judge who held that since no living insect was found in the sample pieces examined by the analyst, the same could not be called insect-infested within the contemplation of s. 2(i) (f) of the Act. The learned Judge was of the opinion that the presence of living insects is necessary before an article could be called 'insect infested . According to him, the intention of the legislature by using this word in s. 2(i)(f) in the sentence 'i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Dhanraj's case (supra) at page 688 of the report. We fully approve that reasoning and would extract it here: The expression 'insect-infested' was not defined in the Prevention of Food Adulteration Act and has, therefore, to be given its ordinary meaning. The word 'infest' appears to have been derived from the latin word 'infestate' which meant to assail or molest. According to the oxford English Dictionary (Volume V-at page 259) the word 'infest' means 'To attack, assail, annoy, or trouble (a person or thing) in a persistent manner, to visit persistently or in large number for purposes of destruction or plunder , to , swarm in or about, so as to be troublesome . In the same Dictionary the word 'infestation' is stated to mean: The action of infesting, assailing, harassing, or persistently mol resting . It is also mentioned that the word is now used (1) I. L. R. [1970] II Delhi 681. especially for- insects which attack plants, grain, etc. in large swarms . Thus-an article of food would be insectinfested , if it has been attacked by insects in swarms or numbers. It however seems to us that there is no justification for the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle-not being a proportion or percentage as would be covered by the rule, de minimis non curat lex-is putrid, filthy, disgusting, decomposed or insect infested, it would be deemed to be unfit for human consumption and therefore adulterated within the contemplation of s. 2(i)(f) . In any ` case, proceeds the argument, it is implicit in the report of the Public t Analyst that the article in question was found unfit for human consumption. This implication`according to the Iearned Counsel, flows from the Analyst's conclusion that the article was adulterated . Counsel has criticised the view taken by the Bench in Dhanraj's case that if for an article of food, no standard of quality or purity has been prescribed or no limits have been prescribed for the validity of its constituents, then sub-clause (1) of clause (f) of sec. 2 will not apply, and that the Public Analyst is not competent to say as to what extent of insect-infestation would make the article adulterated . The relevant part of Section 2 reads as under: (i) adulterated -an article of food shall be deemed to . be adulterated- (a) to (e) .. .. .. .. (f) if the article consists wholly ar in part of any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent-by weight (Item A.05.08). Similarly in the case of foodgrains, the proportion of 2() miligrams of insect-damaged grain per 100 miligrams sample of the grain, and 5 per cent by weight of fungus-damaged grain is not considered enough, to treat it as - 'adulterated' either under sub-clause (f ), or any of the other sub clauses of sec. 2(i). These illustrations unmistakably show that the mere fact that any part of an article was insect-infested may not be conclusion proof of its being 'adulterated' under sub-clause (f). In k other words, all the adjectives used in the subclause are a presumptive and not an absolute test of the quality of the article being unfit for human consumption. To be more particular, in the case of an article in respect of which the Rules do not prescribe any minimum r standard of purity or any minimum proportion of insect-infestation , that would exclude it from. the definition of 'adulterated article', it r will be a mixed question of law and fact, whether the insect-infestation is of such a nature, degree and extent as renders the article unfit for human consumption. The opinion of the Public Analyst who examines and analyses t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and extent as to make it unfit for human consumption. We have already pointed out that the Report of the Public Analyst, is admissible in proof of this fact. In Dhanraj's case (supra), the High Court after holding that in order to bring a case within the purview of the said sub-clause (c), it must be proved that the article is unfit for human consumption, proceeded to say something-which in our opinion is not correct-as to the proof this issue, as under: By referring to Appendix to the Prevention of Food Adulteration Rules, 1955 the learned counsel for the petitioners also urged that as for purposes of sub- clause (1) of clause (i) of section 2 no standard of quality had been prescribed for Kaju the Public Analysts were not justified i treating the samples found insect-infested above 5% lo be adulterated. There can hardly be any doubt that if for an article of food no standard of quality or purity has been prescribed or no limits have been prescribed for the variability of its constituents then sub-clause (f) of clause (i) of section 2 will not apply and for considering whether or not the article is adulterated it will have to be seen if any other portion of the defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said about it is that the opinion is dogmatic. He should say with particularity as to how and why the percentage of insect-infestation found by him lenders to sample unfit for human consumption. The additional reasons which he might give, in addition to the certain proportion of the sample being insect-infested, would enhance the value of his report, still further. It is not possible for us to speculate the reasons which the Public Analyst as an expert in the science might advance in support of his opinion. By giving the opinion that if the insect-infestation is above 5 per cent, the sample of Kaju pieces would be unfit for human consumption, the expert would not be laying down any standard of quality or Limits of variability which the Legislature in its wisdom has not prescribed. His opinion would be just a piece of evidence which has to be` evaluated by the Court in the circumstances of a particular case to reach a finding as to the unfitness or otherwise of the sample for human consumption. The question of varying. any standard of quality or limits of variability in the case of Kaju pieces does not arise because no such standard has been fixed either in the Act or in the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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