V.D. Misra, J.
(1) The revision is directed against the judgment of Addition Sessions Judge upholding the conviction of the petitioner under Section 7/16 Prevention of Food Adulteration Act ; and the sentence of six months rigorous imprisonment and a fine of Rs. 1000.00, in default, to undergo 4 months rigorous imprisonment. Ram Singh, Food Inspector, purchased a Sample of white ''Chinas" (white grams) from the petitioner for analysis on April 25,1968. it was divided into three equal parts, put in three clean and dry jars and each jar was sent to the Public Analyst the same day, who declared the sample to be adulterated because of insect infestation Delhi Municipal Corporation filed a complaint against the petitioner under Section 7/16 Prevention of Food Adulteration Act (hereinafter referred to as the Act) The Trial Magistrate found the petitoner guilty and convicted him and sentenced him as aforesaid. His appeal was dismissed by the additional Sessions Judge. Mr. Ghanshyam Das, learned counsel for the petitioner, contends that the report of the Public Analyst, Ex Pe, not reliable since he did not carry out the test for Uric acid as required by A is 6 of appendix B to the Prevention of Food Adulteration Rules, 1955. He further contends that the report does not show that there was 'insect infestation* in terms of Section 2(i)(f) of the Act. The repore of the Public Analyst is as under :-
''THEsample was in fit condition for analysis. Date of Analysis 27.
4. 1968. Insect infested chana grams-6.9% Kala Chana:--- Contains living insects and am of the opinion that the same is adulterated as Chana grains are insect infested containing living insects''
(2) In order to appreciate the arguments of the learned counsel, the standard of quality laid down for Food Grains at A 18.66 in Appendix B as well as Section 2(i)(f) of the Act may be reproduced :-
''A.18.06-Foodgrains meant for human consumption shall fulfill the following standard of quality, namely - (i) General : Grain shall be free from deleterious material and insecticide residues in excess of the prescribed permissible limits. (ii) Foreign matter. Which includdes sand, gravel dirt, stones, pebbles straw stems chaff, cockles, oilseeds and other nonpoisonous seeds, but excludes other foodgrains shall not exceed 4% by weight. (iii) Damaged grain-Grain that is damaged by fungus, moisture, or heating, and wherein the damage is not superficial but grain is affected internally, shall not exceed 5% by weight. (iv) Insect damage-The Uric acid content arising as a result of insect damage shall not exceed 20 milligrammes per 100 grammes sample of the grain, (v) Moisture content-The loss in weight due to moisture content shall not exceed 16% and shall be determined by accurately weighing about 2g. of well mixed sample in a dry, tarred dish (provided with cover) and drying the dish with contents in an oven at 100 C for 4 hours. Cool in a dessicator and weigh Repeat drying, cooling and weighing until the weight is constant."
(3) The relevant portion of Section 2 of the Act is in the following terms:-
"2.In this Act unless the context otherwise requires, (i) "Adulterated" an article of food shall be deemed to be adulterated- (f) if the article consists wholly or in part of any filithy, putrid, disgasting rotten, decomposed, or diseased animal or vegetable sub" stance or is insect-infested or is otherwise unfit for human consumption ; (i) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability ;"
(4) During the course of arguments I decided to examine Shri Prem Parkash Bhatnagar, Public Analyst. It may be pointed out that he was not the Public Analyst who had sent the report Ex. P. E. which was given by his predecessor. He stated that insect infestation takes place first and thereafter the food grains are damaged by the insects. Once the food grains have been damaged by insects, the insects may be found prevent in those foodgrains or they may be absent. In order to find out the damage done by the insects. Uric acid test as laid down in item A. 18.66 of Appendix B under the heading insect damage' is necessary. In case the food grains have been washed Uric acid may not be found present. According to the practise of this witness, he would give the extent of camage by insects and will also mention their presence if they are found present. He would net declare the food grains adulterated if the insect infestation or the insect damage was below 5 percent. In case no living insect was found present but the food grain was found to be damaged then his report would be to the effect that the food grains were insect damaged. In case living insects were present as well as the food grains were found to be damaged, his report would show the article as "insect infested" He would further show percentage of the grains found to be insect infested. For this purpose he would take into consideration those damaged grains in which insects are found present. Whenever he would find grains damaged by insects he would hold the test to find out the preserce of Uric Acid. In case only the insects were found present but there was no damage to the food grams' there would be no necessity of finding out the presence of Uric Acid since it was not meant to find out the extent of living insects
(5) "INSECT-INFESTED' and 'insect damage' are two different things. There may be 'insect infestation' without there being any 'insect damage' or vice versa. It is also possible that there may be 'insect infestation' as well as 'insect damage'. Insect damage' is the damage done to the food grains by insects. The extent of such damage is to be found out by finding out the content of the Uric a,cid, and in case it exceeds 20 milligrammes per 100 grammes sample of the grain, the article becomes adulterated under Section 2(i)(1) since the Uric acid is present in quantity which is in excess of the prescribed limit of variability as given in A. 18. 06 of Appendix B
(6) But, what is insect infested' ? Can the presence of couple of insects in an article make it 'Insect-infested', as suggested by the learned counsel for the State ? According to Webstar's New International Dictionary Volume I page 1274 'infest' means to trouble greatly by number or by frequency of presence ; to assail or annoy persistently and in numbers ; to frequent and molest harass; as flies infest dogs and cats". This definition read in the term 'insect-infested' shows that there has to be a large number of insects present in an article before it can be said to be 'insect-infested' Presence of few insects will not make the article of food come under the mischief of 'insect infested' it is neither possible nor desirable to lay down the number of insects or their percentage whose presence will make an article of food 'insect infested' it will depend on an article of food and the percentage of insects found.
(7) The duty of the Public Analyst under section 13 of the Act is is analyze article of food submit, d to him for an dysis and delier to the food inspector a report of the restult of his analysis. This report, unless superseded by a certificate of the Director of the Central Food Laborstery under sub section (2) of Section 13 of the Act, may be used as evidence of the facts stated therein in proceedings under the Act, without the Public Analyst being produced as a witness The opinion of the Public Analyst based on his analysis whether an article of food is adulterated or not, cannot be used evidence. If the prosecution wishes to prove the opinion of Public "analyst then the Public Analyst must be produced as a Witness during the trial. It is for the courts to decide whether an article of food is adulterated or not after taking into consideration the facts found by public Analyst on analysis, and also taking into consideration his opinion if he he has appeared as a witness.
(8) In the instant case since the prosecution based its case on the white grams being insect-infested, it was not necessary for the public analyst to find out, the extent of Uric acid present therein in terms of A, 18. 06. It is true that Shri P.P. Bhatnagar, Public analyst, has stated that it is his practise to hold this test also. The holding of such a test may make the article of food adulterated under Section 2(i)(1) of the Act, in addition to its being insect infested But the absence of such a test cannot be said to make the report, Ex. P.E, unreliable.
(9) , The only question which now remains to be decided is whether the white grams were insect infested. Shri P. P. Bhatnagar, Public Analyst, has stated that foodgrains found insect infested up to 5 per cent, are not declared adulterated by him and it is only when the precentage is more that these are shown adulterated. Toleration of the presence of insects up to 5 percent. is only a standard set by him for his own guidance It also shows that the mere presence of insects by itself rightly not being treated as "insect infested". In the instant case the report is by Shri Sudhama Roy, Public Analyst. He does not seem to have followed the practice of Shri P. P Bhatnagar in as much as he did not find out the extent of Uric acid present in the insect damaged grains. However., he has shown insect infested Ghana grains present to the exent of 6 9. per cent. He has also stated that living insects were found and Ghana grains, which were insect infested, contained living insects. In my opinion, the presence of 6 9% of the Ghana grains containing insects will not make the sample in question to be "insect infested". Since the learned Additional Sessions Judge did not take into consideration the meaning of ''insect infested", he erred in holding that the mere presence of living insects was prohibited.
(10) The result is that the revision is accepted aud the conviction and sentence of the petitioner are set aside.