Mohinder Paul Singh vs State of Punjab

V.S. Aggarwal, J.

A criminal complaint has been filed against petitioner Mohinder Paul Singh. It pertains to offences punishable under the Prevention of Food Adulteration Act, 1954. In the complaint it is contended that the Food Inspector inspected the premises of the petitioner on 27.11.1989 at 11.40 a.m. The petitioner was found having in his possession about 10 kilograms of cooked Dal in a pot. The Food Inspector disclosed his identity and purchased 600 grams of cooked Dal. A notice required under the law was served. The purchased Dal was converted into three dry and clean bottles and drops of formalin were added. The same were labelled, wrapped and paper slips placed in accordance with the procedure prescribed. One representative sample was sent to the Public Analyst, Punjab. The report was received which reads :

"I further certify that I have caused to be analysed the afore mentioned sample and declare the result of the analysis to be as follows :

Physical Appearance Contents in Whisky half.

Macro and Micro analysis No inspect detected. No mould growth.

Batyro Refractometer reading at 40oC. of the extracted fat 60.6

Baudouine test of the extracted fat Gives Red colour with HCl.

Test for soluble coal trar dyes :

(1) 1 : 1 HCl test = Positive, (2) 13 NH2 SO4 test = Positive, (3) Test for stannous chloride = Positive; Paper Chromatography = A red oil soluble coaltar dye detected and of the opinion that : contents of the sample contain an oil soluble coaltar dye of red shade which is an unpermitted colouring matter. Even the use of permitted food colours has not been allowed in such type of foods under the provisions of Rule 29 of PFA Rules, 1955.

Signed this 27th day of December, 1989."

Acting on the said report that the contents contained oil soluble coaltar dye, the complaint as such was filed. The learned Chief Judicial Magistrate summoned the petitioner as an accused. By virtue of the present petition, the petitioner seeks quashing of the complaint and the subsequent proceedings.

During the course of arguments, learned counsel urged that the report of the Central Food Laboratory had been received. It was at variance with the report of the Public Analyst. The complaint was not amended and, therefore, the proceedings could not continue. In the alternative he urged that no details of the yellow shade colouring matter had been given and in these circumstances it cannot be held that the Dal was adulterated. Before proceeding further and considering the said submissions, we may refer to the relevant extract of the report of the Central Food Laboratory which reads :

"1. Physical appearance = Greenish yellow coloured product.

Test for the presence of artificial colouring matter = Positive and identified as an yellow shade unpermitted colouring matter by paper chromatography.

Test for the presence of preservatives :

(a) Sulphur dioxide = Negative.

(b) Benzoic acid = Negative.

and I am of the opinion that the sample does not conform to the general standards laid down for an article of food under the provisions of PFA Act, 1954 and Rules thereof, in that :

(a) It is not free from the presence of an unpermitted yellow shade colouring matter.

The condition of the seals on the container and the outer covering on receipt was as follows :

"Intact and unbroken. The seals fixed on the container and cover tallied with the specimen seal impression sent separately along with the copy of the memo".

Taking up the first contention of the petitioner''s learned counsel reliance obviously is being placed on subsection (3) of Section 13 of the Prevention of Food Adulteration Act which reads as under :

"(3) The certificate issued by the Director of the Central Food Laboratory (under subsection (2B)) shall supersede the report given by the public analyst under subsection (1)."

It is on the strength of the aforesaid that it is alleged that once the report of the Central Food Laboratory which supersedes the report given by the Public Analyst, there cannot be any complaint that can proceed on basis of the report of the Public Analyst. The said submission indeed is not meritorious and necessarily has to be rejected. This is for the reason that complaint was filed on basis of the report of the Public Analyst. If subsequently the report of the Central Food Laboratory is received, it will supersede the report of the Public Analyst. The Food Inspector or the State can still apply for necessary modifications in the complaint. But merely because another report of the Central Food Laboratory has been received, will not imply that the complaint will not proceed. It is entirely for the learned Judicial Magistrate to appreciate the facts and conclude the effect thereto. This Court will not in this regard, at this initial stage express any opinion. But suffice to say that the complaint as such will not be quashed simply because another report of the Central Food Laboratory which is little at variance with that of the Public Analyst has been received.

Confronted with this position, the learned counsel pressed the second argument. According to him the details of the synthetic food colour has been given and, therefore, it cannot be termed that it is to be taken that the Dal was adulterated. Reference in this regard may be made to the relevant Rules (Prevention of Food Adulteration Rules, 1955). Rule 23 of the said Rules specifically states that the colouring matter cannot be added to any item of food except specifically permitted by the Rules. Rule 25 permits use of caramel. Under Rule 26 the natural colouring can be used. In any of the articles the said colouring matters have been described and detailed in Rule 26. Rules 28 and 29 read :

"28. Synthetic colours which may be used. No (synthetic food colour) or a mixture thereof except the following shall be used in food.

Colour Common name Colour Index (1956) Chemical Class

(1) (2) (3) (4)

Red Ponceau 4R 16255 Azo

Carmoisine 14720 Azo

Erythrosine 45430 Xanthene

Yellow Tartrazine 19140 Pyrazolone

Sunset Yellow CCF 15985 Azo

Blue Indigo Carmine 73015 Indigold

Brilliant Blue FCF 42090 Triarylmethane

Grean Fast Green FCF 42053 Triarylmethane.

..........

Use of permitted synthetic colours prohibited. Use of permitted synthetic colours in or upon any food other than those enumerated below is prohibited :

(a) Icecream, milk lollies, (frozen desserts);

(b) Biscuits, pastries, cakes, sugar boiled confectionery, lozenges and thread candies;

(c) Bottles or canned peas, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruit and synthetic soft drink concentrates;

(d) Nonalcoholic carbonated and noncarbonated readytoserve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages and fruit drinks;

(e) Custard powder; and

(f) Jelly crystal and ice candy."

Perusal of these rules shows that synthetic food colouring cannot be used except those mentioned in Rule 28. The synthetic colours can be used in the food articles mentioned in Rule 29. In other words; the same cannot be used in each and every item. Dal is not mentioned as one of the items under Rule 29.

Learned counsel contended that in large number of cases, the proceedings have been quashed by this Court and wanted to draw parity with the facts of the case. Reference to some of them can well be made.

In the case of Daulat Ram v. The State of Punjab, 1979(II) Prevention of Food Adulteration Cases 202, the sample of sweet balls had been taken. The opinion of the Public Analyst was that the sample was coloured with basic nonpermitted coal tar dye. This Court held that the Public Analyst has not been examined to give the details of the basis on which he came to this conclusion. The revision petition was allowed and the accused was acquitted. In paragraph 9 it had been held :

"In the instant case the Public Analyst simply stated that the sample was coloured with a basic nonpermitted coal tar dye. The prosecution did not examine the Public Analyst to give the details on the basis of which he came to this conclusion. It is not evident from the report of the Public Analyst that the coal tar dye used by the accusedpetitioner is not the permitted variety. The finding of the Courts below on the basis of the report of the Public Analyst thus is not based on legal evidence."

To the same effect was the decision of this Court in the case of Puran Chand v. The State of Punjab, 1980(II) Prevention of Food Adulteration Cases 116. Herein the Public Analyst had not given the particulars of prohibited dye. Since the same had not been given, the accused was acquitted. Reliance further was placed on the Single Bench decision of this Court in the case of Ravinder Kumar v. The State of Haryana, 1986(II) Prevention of Food Adulteration Cases 158. Herein the sample was taken of the sweet called Patisa. The report of the Public Analyst indicated that it contained unpermitted yellow basic coal tar dye. The Court held that no data is available as to how he had come to the conclusion that the coal tar dye was not permitted. The conviction and the order of sentence were set aside and the accused was acquitted. Reliance further was being placed on the decision in the case of Maya Ram v. The State of Punjab, 1987(II) Prevention of Food Adulteration Cases 320. Herein the sample taken was of Barfi. It contained colouring agents. A similar argument as in the present case was advanced. The accused was acquitted and it was held :

"The second test pertaining to colouring matter has been done by resorting to four methods i.e., wool double dyeing method, ether acetic acid method, paper chromatographic method and oil soluble coal tar dye method. Except for the third method employed, i.e., paper chromatography, the other methods have not brought forward any positive and categoric result. So far as paper chromatography is 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., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word ''chromatic'' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or nonpermitted is rather begging the question. No other data is available on the Public Analyst''s report as to how he had come to the conclusion that the coal tar dye was nonpermitted. It has already been noticed that rule 28 permits use of coal tar dye. The Public Analyst should have excluded in his opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweighing normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are nonexperts."

Similarly in the case of Rajinder Kumar v. State of Haryana, 1990(1) RCR (Crl.) 227 : 1990 All India Prevention of Food Adulteration Journal 7 , the sample taken was of Laddus. The Public Analyst did not mention the kind of prohibited yellow coal tar dye in his report. Since it was not so given, the accused was acquitted. Lastly, reference was made to the decision in the case of State of Punjab v. Satpal, 1992(1) Prevention of Food Adulteration Cases 263. The report of the Public Analyst herein indicated that there was coal tar dye. It was silent regarding the type of coal tar dye. It was held that Public Analyst should have mentioned the type of coal tar dye. The appeal of the State accordingly was dismissed.

It is apparent from the perusal of the facts of the above noted cases that the accused persons were acquitted because details of the type of coal tar dye used were not given. Otherwise also the coal tar dye had been used in articles mentioned in Rule 29 of the Prevention of Food Adulteration Rules. Therefore, the type of coal tar dye used was material. If no colouring material contemplated under Rule 28 could be used, then the type of coal tar dye becomes irrelevant. The presence of coal tar dye itself would make it an offence punishable under the Prevention of Food Adulteration Act. The above findings get support from the decision of the Supreme Court in the case of Prem Ballab and another v. The State (Delhi Admn.), 1977 Cri L.J. 12. A similar argument was advanced therein. The same was repelled holding :

"When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article. Clause (j) of Section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food or in other words, it is prohibited and yet the article contains a colouring matter. There is really no difference in principle between the two kinds of cases. Both are equally reprehensible; in fact the latter may in conceivable cases be more serious than the former. Where no colouring matter is permitted to be used in an article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it would clearly involve violation of clause (j) of Section 2(i)."

The position of the present case for purposes of the present order is identical. In Dal no coal tar dye colour or synthetic colour is permissible. The mere presence of the said colour would make it an offence and consequently keeping in view the decision in the case of Prem Ballab and another (supra), the petition must be held to be without merit. The decisions of this Court cannot be described to be the good precedents for the facts of this case because therein they pertained to items regarding which certain synthetic colours could be used. It is not so in case of Dal.

For these reasons, the petition being without merit must fail and is dismissed.