Binod Singh Bhandari vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionist is a convict for commission of an offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954. As a consequence of the judgment of the conviction dated 8th June, 2011, as rendered by the Court of Chief Judicial Magistrate in Criminal Case No. 138 of 2006, State of Uttarakhand Vs.Vinod Singh Bhandari, the revisionist has been convicted and thus directed to undergo six months of rigorous imprisonment for commission of offence under Section 7 to be read with Section 16 of the Prevention of Food Adulteration Act, 1954 to be read with Rule 62 of the Rules as framed under the Act and a fine of Rs.1,000/- has been imposed and in an event of failure to deposit fine, as imposed, he has been further directed to undergo additional 10 days' of simple imprisonment. The said judgment of conviction was challenged by the revisionist in Criminal Appeal, being Criminal Appeal No. 29 of 2011, Binod Singh Bhandari Vs.State of Uttarakhand and the judgment of conviction dated 8th June, 2011 has been affirmed with dismissal of Criminal Appeal by the judgment dated 23rd August, 2012, which has been put to challenge in the present Criminal Revision.

At the time of hearing on admission of the Criminal Revision, the revisionist has been granted bail on 29th August, 2012. The contention of the learned counsel for the revisionist is that as far as the accusation made against the revisionist is concerned, the product, which was allegedly found to be in possession of the revisionist is Guttka and 58 pouches of sample of the said article were collected and sent to the public analyst for its analyst examination, who has submitted his report and had reported therein that the product on its chemical examination was found to contain gambier and magnesium carbonate, which the analyst submits that it was not within the permissible limit of chemical, which is otherwise permitted to be carried in food product and, hence, the revisionist submits that the said limit of chemical composition being that of 2%, happens to be in consonance to the provisions contained under Rule 62 of the Rules as framed under the Act, which provides that 2% would be the combination of magnesium carbonate or gambier, which would be permitted in a food product or article.

Whereas, on the contrary, if the reference as made to Appendix-B of Rule A-30 of the Act is considered, it provides that in relation to the food products, which was specified therein, it only contemplates inclusion of pan masala and gutka is not covered by it. Appendix-B of Rule A-30 is quoted hereunder :-

"[A-30. PAN MASALA means the food generally taken as such or in conjunction with Pan, it may contain -

Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits mulathi, sbermusa, other aromatic herbs and spices, sugar, glycerine, glucose, permitted natural colours menthol and non-prohibited flavours.

It shall be free from added coaltar coluring matter, and anyother ingredient injuries to health.

It shall also conform to the following standards, namely:-Total ash. - Not more than 8.0 per cent by weight (on dry basis).

Ash insoluble in dilute hydrochloric acid. - Not more than 0.5 per cent by weight (on dry basis).]"

Hence, the presence of 2% of magnesium carbonate and gambier in the product, which was recovered from the revisionist is Guttka and sent to the public analyst cannot be taken as to be the basis for convicting the revisionist for commission of the offence under Section 7/16 of the Act. As it is not a food product covered under the Act or the Rules framed thereunder, hence, he contends that the provisions of the Act itself will not apply, as not being defined as to be included in Food Product under the Act.

The issue, which crops up for consideration before the Court is that the prosecution under the provisions of the Act is permissible, it is in relation to the food as defined under Section 2 of Sub-section (v) of the Act. It pertains to the food as described therein, which includes the food which is to be consumed by the human being of composition or preparation as contained under the Act itself. Section 2 (v) of the Act reads as under :-

"[(v) "food" means any article used as food or drink for human consumption other than drugs and water and includes -

(a) Any article which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declares, by notification in the Official Gazette, as food for the purposes of this Act; ]"

Also if Rule 62 is taken into consideration, which is quoted hereunder, it restricts the limit of the presence of the chemical as referred therein, in relation to food articles contained under the Rules itself.

"[62. Restriction on use of anticaking agents : No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted.

[Provided that table salt, onion powder, garlic powder, fruit powder and soup powder may contain the following anticaking agents in quantities not exceeding 2.0 per cent, either singly or in combination, namely :-

(1) Carbonates of calcium and magnesium.

(2) phosphate of calcium and magnesium.

(3) silicates of calcium, magnesium, aluminium or sodium or silicon dioxide.

(4) myristates, palmitates or stearates of aluminium, ammonium, calcium, potassium or sodium.]]

Provided further that calcium, potassium or sodium ferrocyanide may be used as crystal modifiers and anti-caking agent in common salt, iodised salt and iron fortified salt in quantity not exceeding 10 mg/ kg singly or in combination expressed as ferrocyanide."

Rule 62 does not deal with gambier, alleged to be found in the samples of Guttka taken from the revisionist.

In its first proviso, which was substituted on 15th November, 1984 by GSR No. 764(E), it has provided the 2% permissible limit of magnesium carbonate in relation to the particular food product referred therein. It does not include the food product as covered by Rule A-30 and besides this since gutka is not falling within the ambit of definition of pan masala as defined therein, the restrictions of the proviso to Rule 62 cannot be attracted for the purposes of convicting the revisionist for the commission of the said offence, as it would not found as to be an article or food covered under the Act. Besides this, under Rule 62, it provides no upper limit of gambier, which was yet another chemical said to be found in the sample collected from the revisionist. The chemical composition provided under Rule 62, it does not include gambier in it. Hence, the Court is of the view that the limits of chemical composition would only be limited in its application to the product as contained under the proviso.

In that view of the matter, the present Criminal Revision is allowed. The impugned judgments of conviction are set aside. Since the revisionist is already on bail, he need not to surrender and the sureties as extended by him for availing bail would stand discharged.