Charanjit Ahuja vs Senior Health Inspector Railway Food Inspector, Northern Railway, Ambala Cantt.

N.K. Agrawal, J.

This is a petition under Section 482, Criminal Procedure Code, for quashing a criminal complaint filed by the Senior Health Inspector, Northern Railway, Ambala Cantt. against the petitioneraccused, Charanjit Ahuja, the vending contractor, Railway Station, Ambala, and Baru Ram, his Salesman.

It has been stated in the criminal complaint that chilli powder was found in possession of the Salesman, Baru Ram, at the time of inspection and the same was found, after analysis, to be substandard and not within the specifications provided in Appendix `B'' under Rule 5, Prevention of Food Adulteration Rules, 1955. The Inspector took on November 29, 1989 a sample of chilli powder from Baru Ram, the salesman, employed by Charanjit Ahuja. It was sent to the Public Analyst, Haryana, Chandigarh, for analysis. After receiving report from the Public Analyst, criminal complaint was filed in the court of Special Railway Magistrate, Ambala Cantt.

Learned counsel for the petitioner, Shri D.S. Sawhney, primarily advanced two arguments against the prosecution :

(1) The paper chromatography test conducted by the Public Analyst is not sufficient to reach a conclusion that the Chilli powder was adulterated.

(2) The Chilli power was not meant for sale by the vendor at the Railway Platform but was to be used in the preparation of eatables.

The certificate of the Public Analyst, Haryana, under Section 13(5) of the Prevention of Food Adulteration Act, 1954, has been attached with the criminal complaint. A copy of the certificate (Annexure P.2) has been filed with the petition. At serial No. 9(d), the following entry has been recorded by the Public Analysist :

"9. Test for colours :

(d) Paper chromatography test = Added prohibited red oil soluble coal tar dye present."

The opinion recorded by the Public Analyst reads as under :

"The sample contains added prohibited red oil soluble coal tar dye whereas it should be free from added colouring matter."

Shri D.S. Sawhney, learned counsel for the petitioneraccused, has placed reliance on a decision of this Court in Maya Ram v. The State of Punjab, 1987(II) F.A.C. 320. That was a case where paper chromatography method of analysis was employed. Other methods of analysis had not brought forward any positive and categoric result. It was held that so far as paper chromatography test was concerned, the same could not bring forward whether the coal tar dye used was permissible or nonpermissible. The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between nonmixing solvents, etc.

Similar view has been taken by this Court in Pawan Manocha v. The State of Punjab, 1992(2) F.A.C. 217, where it has been held that paper chromatography test is not a sure test.

In State of Haryana (Govt. Food Inspector) v. Rattan Lal, (1993) XX Cr.L.T. 79, a similar matter happened to arise against before a Division Bench of this Court in a criminal appeal and it was held that paper chromatography test was not sufficient to conclude whether permitted or nonpermitted coal tar dye had been used.

In Sham Sunder v. The State of Haryana, (1997) XXIV Cr.L.T. 211 and in Ram Niwas s/o Lachhman Dass Goel v. The State of Haryana, (1997) XXIV Cr.L.T. 493, similar view has been taken about the adoption of the paper chromatography test.

Since a consistent view has been taken about the paper chromatography test and such a test has been viewed with disapproval, the plea of the learned counsel for the petitioneraccused succeeds.

The second plea taken by the learned counsel for the petitioneraccused relates to the use of the chilli powder by the vending contractor. It is argued that the vending contractor was not selling the chilli powder as such but had kept it as a stock for use in the preparation of eatables. There is nothing on record to show that the chilli powder was meant for sale. The vendor was engaged in the preparation and sale of eatables at the Railway platform. He was not selling the chilli powder.

In State of Haryana v. Inder Singh, 1991(3) Recent C.R. 116 , a similar matter was examined and a Division Bench of this Court took the view that if the food was stored for a purpose other than for sale, it did not fall within the mischief of the provisions of the Prevention of Food Adulteration Act. In that case, sample of milk was taken from a tea stall and the said sample, on analysis, was found to be adulterated. Since the milk was kept for preparation of tea and not for sale, it was held that no offence was made out.

In view of the nature of the business of the petitioneraccused, it cannot be said that the chilli powder was found in his possession for the purpose of sale and not for consumption. I am inclined to take the same view as taken by the Division Bench of this Court in the case of Inder Singh (supra).

In the light of the above discussion, the petition succeeds and the prosecution launched on the basis of the criminal complaint is found to be not sustainable in law. The order of the learned Magistrate taking cognizance on the aforesaid criminal complaint filed by the Senior Health Inspector is quashed.