The Delhi Administration sought leave to appeal against an acquittal where the respondent sold insect-infested wheat flour. The court dismissed the petition, holding that a small number of insects does not constitute infestation under the Prevention of Food Adulteration Act, 1954.
Application for leave to appeal dismissed with costs.
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..... Petitioner
Through: Ms. Radhika Kolluru, APP
OM PRAKASH
versus Through:
..... Respondent
CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI
O R D E R % 04.08.2016
The present leave petition has been preferred to seek leave to appeal to assail the judgment dated 01.06.2009 passed by the learned ACMM-II in CC No.24/1996 titled Delhi Administration v. Om Prakash. By the impugned judgment, the complaint preferred under Section 7/16 of the Prevention of Food Adulteration Act, 1954 by the petitioner has been dismissed.
The sample in question was of wheat flour/atta. The Public Analyst found that a sample of 250 gm. of atta was adulterated because it was insect infested with 16 insects per kg of the sample. Section 2(ia)(f) of the aforesaid Act provides that the food article shall be considered as adulterated “ if the article consists wholly or in part of any filthy, putrid, rotten,
decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; ”.
The learned ACMM dismissed the complaint and acquitted the respondent/ accused on the ground that merely because there were four live insects found in the sample of 250 gm which translated to 16 insects in one kg atta, the same could not be considered to be insect infested. In this regard, reliance was placed on the decision in New Delhi Municipal Committee v. Chamanlal and the State , 1980 (1) PFA Cases 272, wherein it was held:
“ .... .... As to the connotation of the expression “insectinfested” the Supreme Court put its seal of approval on the Bench decision of this court in Dhanraj vs. Municipal Corporation of Delhi, 1972 FAC 335 in which Jagjit Singh, J. had brought out the whole position quite lucidly. To be concise it was held by the Division Bench that “an article of food would be insect-infested”. It if has been attacked by insects in swarms or numbers, if an article of food is attacked by insects in large swarms or numbers and for some reason those insects die, the mere fact that the article of food has no longer living insects but has dead insects will not change its character of being insect-infested”. Applying this criterion to the case in hand, there can be no manner of doubt that the presence of three living insects in the counter part of the sample weighing 250 gms which was sent to the Public Analyst can by no stretch of reasoning be called to be insect-infested. Certainly, it can not be said to have been swarmed by insects. The number of insects present was by no means large. Hence, looking from this angle the testimony of the Public Analyst was rightly discarded by the learned Magistrate as being merely ipsedixit ”.
The submission of learned counsel for the petitioner is that the learned Magistrate has not considered the aspect that the food article was adulterated
also on account of the fact that the same is covered by clause (a) of Section 2(ia), which provides that the food article shall be deemed to be adulterated:
“( a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be ”;
She also places reliance on the decision of a Division Bench of this court in State v. Dinesh Kumar , 1986 Crl LJ 1527.
I do not find any merit in either of these submissions. Since the aspect of adulteration on account of the food article being “insect infested” is covered by Section 2(ia)(f) of the Act, on the same aspect, it may not be possible to invoke Section 2(ia)(a).
In any event, clauses (a) and (f) of Section 2(ia) cover different fields. It is not the case of the prosecution that the food article was not atta i.e. it was not of the nature, substance or quality demanded by the purchaser. The presence of dead or live insects at the rate of 16 per kg, as found by the Public Analyst in the present case, cannot be said to render the quality of the substance lower than what is represented to be.
Reliance placed on Dinesh Kumar (supra) appears to be misplaced, for the reason that in this case, the court did not address itself to the issue as to what amounts to insect infestation. The said aspect has been squarely considered by this court in Chaman Lal (supra) relied upon by the ACMM.
For the aforesaid reasons, I find no merit in this petition. Dismissed.
VIPIN SANGHI, J
AUGUST 04, 2016 sr
3 issues framed by the court
Whether presence of 16 live insects per kg of wheat flour amounts to insect infestation under Section 2(ia)(f) of the Prevention of Food Adulteration Act.
Whether the food article is adulterated under clause (a) as not being of the nature or quality demanded when merely containing insects.
Whether reliance on State v. Dinesh Kumar is appropriate where the core issue of insect infestation was not addressed.
Colour shows how this judgement treated each authority
New Delhi Municipal Committee v. Chamanlal and the StateRelied on¶15
New Delhi Municipal Committee v. Chamanlal and the State
Dhanraj vs. Municipal Corporation of DelhiReferred¶15
Dhanraj vs. Municipal Corporation of Delhi
State v. Dinesh KumarDistinguished¶21
State v. Dinesh Kumar
2 provisions across 1 enactments
DELHI ADMINISTRATION
OM PRAKASH
VIPIN SANGHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
