Public Prosecutor vs K.N. Ramachandran and Another

K.N. Mudaliyar, J.—The State has filed this appeal against the acquittal of the accused-respondents (K.N. Ramachandran and K.N. Venkatachalam) in respect of an offence punishable under S. 7(1) and S. 16(1) (a)(1) read with S. 2(ix) (j) of the Prevention of Food Adulteration Act.

The two accused-respondents are brothers. They are running a hotel at door No. 37, Market Road, Pollachi. The second accused-respondent is the licensee for running the hotel business. On 17th January, 1966 at 9-45 a.m. the Food Inspector of Pollachi Municipality, Sri Samraj John, P.W. 1, went to the hotel of the accused-respondents and found the first accused-respondent to be in charge of the hotel. P W. 1 got suspicion that the Jilebis offered for sale, at the hotel might contain prohibited colouring matter. Therefore, he purchased 12 Jilebis from the first accused and got a cash voucher Ex. P-l for Rs. 3.60 p. In the presence of P. Ws. 2 and 3 P.W. 1 intimated the first accused that the sample of the jilebis purchased under Ex. P-l would be sent to the Public Analyst, Madras for analysis. Further, he has served the notice under Form VI marked Ex P-2 on the first accused. P. Ws. 2 and 3 attested Ex. P-2. P.W. 1 divided the jilebis into three equal parts and put them in three separate dry and clean bottles brought by him, closed them tightly with tin lids and packed and sealed them at the hotel Itself. One of the three bottles was given to the first accused and his acknowledgment was obtained in the receipt, Ex. P-3. of the remaining two bottles, one was sent to the Public Analyst for analysis. The remaining third bottle was retained by P.W. 1. The report, Ex P-4 was received by P.W. 1 from the Public Analyst. One finds from the contents of Ex P-4 that the sample Jilebi taken from the hotel of the accused-respondents contained metanil yellow, a by-product of coal tar, the use of which is prohibited under Rule 28 of the Rules framed under the Prevention of Food Adulteration Act.

During the trial of the case P. Ws. 2 and 3 did not support the prosecution case. They were treated as hostile by the prosecution and were cross-examined.

The plea of the accused-respondents is as follows: The first accused has stated that the Jilebis prepared in their hotel were not prepared with metanil yellow colouring matter, that though P.W. 1 purchased 12 jilebis from their hotel, as evidenced by Ex. P. 1,.P.W. 1 did not put the jilebis in the bottles in the presence of the first accused, that P.W. 1 went out of the shop after purchasing the Jilebis and returned about thirty minutes later and then gave one bottle to the first accused and obtained his signature in the relevant prosecution documents. The second accused has stated that the hotel business Is in the sold charge of the first accused; that he (second accused) is running a timber business at a different place and that he had nothing to do with the hotel business and that he merely got the licence In his name in order to put his younger brother in business.

The learned Additional First Class Magistrate rejected the statutory explanation given by the accused-respondents. He believed the evidence of P.W. 1 and accepted the report of the Public Analyst and convicted the two accused-respondents.

In the appeal before the learned Additional Sessions Judge of Coimbatore Division the two accused-respondents were acquitted. The learned Additional Sessions Judge chose to believe the testimony of P.W. 1. He repelled the veiled the suggestion that P.W. 1 might have packed some other jilebis instead of the Jilebis purchased from the hotel of the respondent. The learned Judge further held that the quantity of sample sent to the Analyst was certainly adequate for the Analyst to carry out his test. The learned Appellate Judge repelled the other arguments advanced in behalf of the accused-respondents herein. But the learned appellate Judge ultimately found that Ex. P. 4 the report of the Analyst, merely says that the sample contained metanil yellow colouring matter, but it has not given the details as regards the quantity takes for analysis and the percentage of the prohibited colouring matter found in the sample. The learned appellate Judge chose to act on a report in the ''Indian Express" dated 29th October 1966 and found, that in the absence of details In the report of the Analyst, the report of the Analyst suffers from the same defect, which has been pointed out by Sadasivam, J., in Crl. Ap. 652 of 1964 dated 27th October 1966. The learned appellate Judge at one stage observed in the body of the judgment as follows:

It is no doubt a moot point for consideration as to whether the percentage of colouring matter would come into play in cases where the use of the coloured matter is absolutely prohibited unlike cases where the use of a certain percentage is permitted.

In the light of the principles of law settled by the Supreme Court 1 would examine whether the reasoning in the judgment of Sadasivam, J in Crl. Ap. No. 652 of 1964 would avail the accused-respondents in the state of evidence found on record.

Rules 28 and 29 of the Prevention of Food Adulteration Rules are extracted here below:

Coal tar Dyes which may be used. No coal tar dyes except the following shall be used in foods:

(a) Indigotina (F.D. C. Blue No.2)

(b) Orange 1 (F.D. C. Orange No. 1)

(c) Amaranth (F.D.C. Red. No. 2)

(d) Erythrosine (F.D. C. Red. No. 3)

(e) Tratrazine (F.D. C. Yellow No. 5)

Use of permitted synthetic organic colours or coal tar dyes prohibited:

Use of permitted synthetic organic colours or coal tar dyes In or upon any food other than those enumerated below Is prohibited:

(a) Ice-cream including mixed ice-cream.

(b) Dairy products except milk, dahl, butter, ghee, chhana, condensed milk, cream and baby foods.

(c) Smoked fish

(d) Egg preparations

(e) Sweets including pastry and confectionery.

(f) Fruit products as per specifications under Fruit Products Order

(g) Non-alcoholic beverages except tea, coco and coffee.

A combined reading of the two rules would impose a total ban or prohibition on the use of metanil yellow, whatever may be Its quantity found in ''any food.''

Mr. N.S. Sivam, learned counsel for the accused-respondents relied heavily on the reasoning found in the judgment of Sadasivam J. in Crl. Ap. 652 of 1964 in his attack on the contents of the report of the Public Analyst, Ex. P.4. A perusal of the judgment shows that the learned judge has adversely commented on the analysis of the Public Analyst on more than one ground. He has referred to its failure to give percentage of a substance called ''metanil yellow'' In the sample. He has referred to its failure in the report to mention how many grams of the sample of the food stuff, namely, jangiri, were taken for analysis and what percentage of metanil yellow was found In the sample. The learned Judge referred to the decision of the Kerala High Court in In Re: V.K. Abdul Azeeze and Another, where the prohibited adulterant was coal tar but "it was Immaterial whether the coal tar was mentanil yellow or other variety." The learned Judge further referred to a decision of the Mysore High Court in Mary Lazaro v. State of Mysore 1965 M.L.J. Rep. Cri. 18 where it was observed that a report of the Analyst could be accepted as evidence only if it was prepared after full and through compliance with the rules". The learned Judge also observed that Rule 14 of the rules framed under the Act enjoins that the sample for the analysis should be sent in clear dry bottles or other suitable containers. The evidence in the case before the learned Judge was that the sample of jangiri was put in cigarette tins but the evidence of P.W. 1 did not show that he had cleaned the cigarette tins of any impurity. It was possible, the learned judge opined, that even if some small quantity of metanil yellow was found in the sample. It might have come from the impurities in the cigarette tins. The learned Judge further observed: "If this circumstance is taken along with the insufficient data given In the report, Ex-P. 4, It Is not possible to state that the acquittal of the accused is either wrong or calls for any Interference in an appeal". It emerges clearly from the above summary that the learned Judge did not base his decision In the unreported judgment (Crl. Ap. 652 of 1964) solely on the fact that the conclusion of the Public Analyst about the sample containing metanil yellow was not sufficient for the purpose of proving the offence under the Prevention of Food Adulteration Act. Sadasivam J relied on certain other Infirmitive features which justified his conclusion in that judgment.

In City Corporation, Trivandrum v. Antony AIR 1964 Ker 107 Govinda Menon J held that the certificate of the Analyst should contain the factual data which the analysis should reveal and not merely the opinion of the Public Analyst as to what that indicated about the nature of the article of food, that the opinion of an expert by Itself might be relevant but would carry little weight with a court unless it was supported by a clear statement of what he noticed and on what he based his opinion, that his report should be full and complete and take the place of evidence which he would give if he had been called to court as a witness, that he must state the grounds of the opinion which he gave, that the mere mention that certain tests were applied and certain results were obtained might be relevant as a piece of evidence, but would not be conclusive. The learned Judge further held that in the case before him the sample of milk had conformed to the standard, but the question was whether the milk was adulterated with water and that the whole case depended on the report of the Public Analyst and that the prosecution eight to have called him as a witness and that his evidence as to how he came to the conclusion that water was added must have bees placed before the court so that the court might form its own conclusions about the opinion of the analyst. In paragraph 5 of the judgment in that case the material part of the certificate, Ex-P. 4 is extracted. There is a reference to the percentage of the "solids not fat'', ''fat'' and freezing point (Hortwet''s method)''. The Public Analyst expressed the opinion that the sample contained not less than seven percent (7%) of the added water as calculated from the freezing-point (Hortwet''s method) and was therefore adulterated. The learned Judge did not find any substantial or compelling reasons to set aside the order of acquittal in the case cited.

While considering the scope of sub-section (5) of S. 13 of the Prevention of Food Adulteration Act, the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, referred to the decision in City Corporation, Trivandrum v. Antony ILR 1962 Ker. 439 on this aspect. Their Lordships of the Supreme Court stated that they failed to see the necessity of stating in the report as to how the calculations had been made by the Public Analyst. They held further that the report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken.

The learned Public Prosecutor''s contention is that Ex P. 4, the report of the Public Analyst, contained sufficient data, on the basis of which the Analyst has reached his conclusion, and he relies on the rat o found in paragraph 7 of the judgment of the Supreme Court in Dhian Singh Vs. Municipal Board, Saharanpur, The relevant passage containing the ratio, on which the learned Public Prosecutor relied, Is extracted here below:

The only other question canvassed before us Is that the report of the analyst could not have afforded a valid basis for founding the conviction as the date on the basis of which the analyst had reached his conclusion is not found in that report, or otherwise made available to the court. We are unable to accept this contention as well. It is not correct to say that the report does not contain the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas''s case referred to earlier. The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur v. Sri Ram 1963 All.L.J. 765 wherein it is observed:

that the report of the Public Analyst under S. 13 of the Prevention of Food Adulteration Act, 1954, need not contain the mode or particulars of analysis nor the test applied, but should contain the result of analysis, namely, data from which it can be Inferred whether the article of food was or was not adulterated as defined in S. 2 (1) of the Act.

Their Lordships of the Supreme Court referred to a report somewhat similar to the one in Mangaldas''s case (4) and held that the report contained the data on the basis of which the analyst had reached his conclusion. It may be recalled that in the decision In Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, the report of the Public Analyst, Ex.P.4, considered by Govinda Menon J. In City Corporation v. Antony ILR 1962 Ker. 439 was subjected to the critical scrutiny of the Supreme Court. Their Lordships of the Supreme Court approved the law on the subject as stated in the decision in Nagar Mahapalika of Kanpur Vs. Sri Ram and Another, Mr. N.S. Sivam, learned Counsel for the respondents, argued that in the decision of the Supreme Court in Dhian Singh Vs. Municipal Board, Saharanpur, ) one finds two particulars more than the report of the Public Analyst, Ex P.4, in the present appeal contains. He mentions the two particulars as:

Coal tar dye identified: Metanil Yellow. (Colour Index No. 138), Tintometer reading on Lovibond scale 4.0 Red Units Plus 0.1 yellow unit coloured with a coal tar dye, namely, metanil yellow (colour Index No. 138) which is not one of the coal tar dyes permitted for the food-stuffs under rule No. 28 of the Prevention of Food Adulteration rules, 1955.

He reinforced his argument by stating that the certificate of the Public Analyst should contain the actual data and not merely his opinion as to what the data Indicated about the nature of the article, and he relied on the following observations found In Nagar Mahapalika of Kanpur Vs. Sri Ram and Another, . It is source seen in the Kerala case that the data are obviously insufficient. But it is also true that in Dhian Singh Vs. Municipal Board, Saharanpur, there are one or two particulars in the report of the Public Analyst. But I am unable to see as to how that would affect the merits of the present appeal in the light of the data found in Ex.P.4 In this case, which is as follows:

I hereby certify that I.P.S Nataraja Sarma, M.A.,A.R.I.C., Public Analyst for Pollachi municipality duly appointed under the provisions of the prevention of Food Adulteration Act, 1954, received on the 19th January 1966, from the Food Inspector, Pollachi Municipality, a sample of marked No. 1496 for analysis properly sealed and fastened and that I found the seal in tact and unbroken, and identical with the specimen impression of the seal received from the Food Inspector.

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

It is quite apparent that Ex-P. 4 was not challenged by any of the accused-respondents as inadequate when it was put into evidence. I am satisfied that it contains the necessary data in support of the conclusion that the sample of Jangiri examined by him showed adulteration. The report sets out the result of the analysis and the examination of the nature of the colour in the sample The relevant examination of the sample showed the presence of metanil yellow, a water soluble yellow dye derived from coal tar, the use of which in food is prohibited. In my view, this could well be regarded as adequate to satisfy the mind of a Judge or a Magistrate dealing with the facts. No doubt, the report says, "I further certify that I have caused to be analysed the above named sample and declare the result of the analysis to be as follows". This would show that what was done was done under the supervision of the Public Analyst and that should be regarded as quite sufficient. In Nagar Mahapalika of Kanpur Vs. Sri Ram and Another, I notice that the purchase by the Food Inspector was of laddus. The subsequent analysis of the laddus as seen in the report of the Public Analyst was that the sample was coloured with a coal tar dye namely, metanil yellow which is not the coal tar dyes permitted for use to foodstuff under Rule 28 of the Rules. From the full report of the Public Analyst In the Allahabad case the two relevant particulars are extracted here below:

Test for the presence of coal tar dye... positive. Coal tar dye Identified...... Metanil yellow and am of the opinion that the sample is coloured with a coal tar dye, namely, metanil yellow, which is not one of the coal tar dyes permitted for use in foodstuffs under Rule 28 of the Prevention of Food Adulteration Rules, 1955.

As compared with the report In the present case, I find substantial similarity of the particulars in Ex-P. 4 with the particulars in the report of the Public Analyst in the Allahabad case. In my view the data In Ex P. 4 contain facts, from which It can be ascertained in what respect the Sample varied from the prescribed standard. As observed by me earlier the law prohibits totally the use of metanil yellow. If the law prohibits the use of a preservative or dye or prescribes the preservative or dye which alone can be used, the analysis need be qualitative and not quantitative, the material factor being the existence or non-existence of a prohibited or prescribed preservative or dye. Consequently, the report of the Public Analyst shall be admissible in evidence and shall be used as such, even if it does not give the quantity of prohibited or prescribed article found in the sample. Metanil yellow has not been Included in the coal tar dyes detailed In Rule 28. In other words, metanil yellow cannot be used for colouring sweetmeats, and If this dye is detected in the Sample, the said article of food shall, in the eye of law, be adulterated. In such a case, only qualitative analysis is necessary. The Public Analyst analysed the sample in question and found therein metanil yellow, a coal tar dye, prohibited under Rule 28. In the eye of law, therefore, jilebis which the respondents were selling were an adulterated article of food. The Proposition of law as stated by the learned Judges of the Allahabad High Court in Nagar Mahapalika of Kanpur Vs. Sri Ram and Another, (paragraph 33 of their judgment at page 278) has been approved of by the Supreme Court in Dhian Singh Vs. Municipal Board, Saharanpur, .

Applying the principles of law enunciated above, I am bound to reverse the finding of the learned Additional Sessions Judge of Coimbatore that Ex. P.4, the report of the Public Analyst, does not give any details such as the quantity taken for analysis and the percentage of the colouring matter found in the sample. As regards the quantity taken for analysis, which was noticed by the learned Additional Sessions Judge, I am of the view that Rule 22 of the Rules prescribes the quantity early as an approximate quantity and even sending a smaller quantity would be proper compliance with the rule, unless the Central Food Laboratory finds difficulty In making analysis, because of the smallness of the quantity and prejudice Is caused to the accused. No grievance has been made about the quantity sent for analysis by the accused-respondents in the trial court. The learned Sessions Judge himself In an earlier portion of his judgment states that the argument relating to the quantity cannot be accepted, since it is for the Public Analyst to say whether the quantity sent for analysis was adequate or not for the purpose of analysis. The learned Additional Sessions Judge lost sight of his own finding in the earlier part of his Judgment. The learned Sessions Judge erred in demanding the need for the quantitative analysis and the consequential percentage of the prohibited colouring matter. This is totally unnecessary as the coal tar dye is prohibited completely. There is no need for quantitative analysis in the case of totally prohibited coal-dyes.

The order of the learned Additional Sessions Judge acquitting the accused-respondents is set aside. The order of the trial Magistrate convicting the accused-respondent is restored. The accused respondents are accordingly convicted under S. 7(1) and S. 16(1)(a)(i) read with S. 2(ix)(j) of the Prevention tine of Food Adulteration Act and sentenced to pay a fine of Rs. 350 each in default to undergo rigorous Imprisonment for six weeks. They will also undergo Imprisonment till the rising of the court, and it is presumed that the respondents would have already undergone the imprisonment till the rising of the court. The appeal by the State is allowed. Time for payment of fine is one month.