Nandu vs State of Haryana

H.K. Sandhu, J.

The brief facts leading to the filing of the present petition are that on 29th December, 1981, Food Inspector Amar Nath Gupta went to the premises of the petitioner in the company of Dr. Jia Lal and found him in possession of three kilograms of ''Balu Shahi'' which was meant for sale. The Food Inspector after disclosing his identity, purchased 1500 grams of ''Balu Shahi'' by way of sample, for analysis and the article so purchased was divided into three equal parts and was sealed into three dry and clean bottles as per rules. One sealed bottle was sent for analysis to the Public Analyst, Haryana, Chandigarh, while the other two sample bottles were deposited with Local Health Authority. The Public Analyst vide report Ex. PD found the Balu Shahi to be adulterated as unpermitted orange coaltar dye had been used in the preparation of ''Babu Shahi''. Copy of the report was sent to the petitioner and complaint was presented in Court.

The prosecution examined Food Inspector Amar Nath Gupta as PW 1 and Dr. Jia Lal as PW 2. The petitioner in his statement under Section 313 Cr.P.C. denied the allegations against him and pleaded that in fact sample was not taken from his shop. It was taken from his neighbour''s shop and he was asked to sign certain papers as a witness. The petitioner after trial was held guilty for an offence under Section 16(1)(a)(i) of the Food Adulteration Act, 1954 (for short ''the Act'') and was sentenced to undergo rigorous imprisonment for a period of six months and a fine of Rs. 1000/ by Chief Judicial Magistrate, Bhiwani vide his judgment dated 5th June, 1986.

Aggrieved by the judgment recording his conviction and sentence the petitioner filed an appeal which was dismissed by the learned Sessions Judge, Bhiwani on 6th November 1986. The petitioner has now come to this Court in revision.

I have heard Mr. I.S. Balhara, Advocate, with Mr. Raj Singh Chahar, Advocate, the learned counsel for the petitioner and Mr. S.S. Gill, Assistant Advocate General, Haryana, for the respondent and have perused the record.

It was argued on behalf of the petitioner that there was violation of Section 13(2) of the Act as on receipt of the report of the result of the Public Analyst to the effect that article of food was adulterated, the Local Health Authority after institution of the prosecution against the petitioner did not send a copy of the report of the result of the analysis to him informing him that he could make an application to the Court within a period of 10 days from the date of receipt of the copy of the report. The petitioner was in this way deprived of his valuable right to get the second sample analysed by the Central Food Laboratory by making an application to the court. It was urged that although complaint was filed on 15.12.1982 no notice was received by the petitioner of this complaint till 1983. This contention of the learned counsel is, however, belied by the documents Ex. PF and Ex. PG. Ex. PF is a letter addressed to the petitioner by Local Health Authority, Bhiwani whereby he was informed of the result of the analysis of the sample and a copy of the report of the Public Analyst, Haryana, declaring the sample as adulterated was also sent to him on 17.2.1982 i.e. just two days after the institution of the complaint. Ex. PG is the postal receipt vide which the copy of the report was sent to the petitioner under registered cover. In these circumstances it cannot be said that the petitioner was deprived of his valuable rights to get the second sample analysed by Central Food Laboratory.

It was next argued on behalf of the petitioner that the prosecution failed to prove that the article of which sample was taken contained unpermitted orange coaltardye. The report of the Public Ex PD to that effect was quite vague and conviction of the petitioner on the basis of the same could not he sustained. The learned counsel referred to Rule 28 of the Prevention of Food Adulteration Rules, 1955 which is as under :

"No coaltar (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

XX XX XX XX

Yellow Tartrazine Sunset 19140/15985 Pyrazolone Azo

Yellow FCR

xx xx xx xx

xx xx xx xx

Sunset Yellow FCF N.L., the common name of which is sunset Yellow is described in Appendix B Rule A.26.02 as Sunset Yellow EF, para Orange, FD&C. Yellow No. 6, Janune Orange S, Jaune ''Sunset'', FCF C 1. Food Yellow 8, Lebensmittel Orange No. 2. It was, thus, urged that there are various forms of orange colour, use of which has been permitted in preparation of articles of food and the material to show that the colouring material used was not one of those which had specifically been permitted by the rule. I accept this contention of the learned counsel. It is correct that the Public Analyst was not required to find out as to what actually was the substance that had been used for the purpose of colouring ''Balu Shahi''. But when the rules permit the use of orange colouring of certain varieties when it was necessary for the Public Analyst to specify that the article of food of which sample was taken, did not contain coloring material which had been specifically permitted by the rule. The report of the Public Analyst is, thus, not definite and no conviction can be maintained on the basis of this vague and unspecific report.

As a result I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him of the offence with which he was charged.