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Judgment
Sathar Sayeed, J.—The petitioner who was convicted by the Courts below under SS. 7 (ii), 16 (1) (a) (i) and 2 (ix) (i) of the Prevention of
Food Adulteration Act and who was sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000 in default to suffer rigorous
imprisonment for three months, has filed the above criminal revision case.
The facts of the case are that on 27th December, 1978 at about 9-00 a.m., P.W.I, the Food Inspector, purchased 600 grams of ''Kesari
powder'' after issuing a memo, Ex. PI, to the petitioner. The bill for the sale of 600 grams of Kesari powder was issued by the petitioner to P.W 1
for RS. 12, which is marked as Ex. P 2. A statement, Ex. P 4 was also obtained by P.W. 1 from the petitioner to the effect that the petitioner has
sold Kesari powder''. The Kesari powder purchased under Ex. P2 was sent to the Public Analyst and the Public Analyst has sent a report, Ex. P
The Public Analyst opined that the sample tested by him contains a coal tar dye not permitted for use in any food. It is on the basis of this
report sent by the Public Analyst, a case was filed against the petitioner after informing the petitioner the result of the Public Analyst.
When the petitioner was questioned under S. 313, Crl. P.C. with respect to the offence, he has stated as follows:
On the basis of the evidence adduced by the prosecution, the trial Court convicted the petitioner holding that the petitioner is liable under SS. 7
(ii), 16(1) (a) (i) and 2 (ix) (i) of the Prevention of Food Adulteration Act and sentenced him to rigorous imprisonment for six months and also
imposed a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for three months. Against the conviction and sentence of the petitioner,
C.A. No. 271 of 1979 was filed before the Sessions Cou7rt, Salem. The learned Sessions Judge, on a review of the evidence and also after
hearing the arguments, confirmed the conviction and sentence imposed on the petitioner by the trial Court, and dismissed the appeal. It is against
this dismissal of the appeal, the above criminal revision case has been filed.
The petitioner in his grounds of revision contends that the Courts below ought to have held that Ex. P 2 cannot be relied upon and that Exs. P1
P3 and P4 have been obtained under coercion and threat and inducement "" and consequently, they should not have been considered at all by the
courts below. Inter alia in the grounds of revision, the petitioner contends that on the evidence adduced by the Food Inspector (P.W.I), there is no
case of misbranding, because the wrapper on which the article was sold to P.W.I clearly contains the words ""Non-edible, Synthetic coal tar dyes
for Industrial purpose."" Apart from the grounds of revision, the learned counsel for the petitioner contends before me that the evidence adduced in
this case, more particularly the evidence of P.W.I, clearly shows that the petitioner has not sold ""kesari powder"" but has only sold a packet over
which it has been boldly printed as ""nonedible, Synthetic coal tar dyes for Industrial purpose"" and under the circumstances, the petitioner cannot be
convicted and sentenced under SS. 7 (ii), 16 (1) (a) (i) and 2 (ix) (i) of the said Act.
The facts in this case are very clear. P.W.I, the Food Inspector, went to the shop of the petitioner and demanded ""kesari powder"" on 27th
December, 1978 at about 9.00 A.M. The petitioner herein has given three packets, each packet weighing 200 grams, to P.W.I under Ex. P2.
Even on the packets, which are said to have been sold by the petitioner, it has been clearly printed that they are not food articles but on the other
hand ""non-edible synthetic coal tar dyes for Industrial purpose"". P.W.I, on seeing the packets, would not have arrested the petitioner or charge-
sheeted him under the aforesaid sections, for, the ""Kesari powder"" purchased by P.W.I was not in loose form but was in a sealed packet over
which it was boldly printed as stated above. In any event, P.W.I after purchasing 600 grams of kesari powder under Ex. P2, has also taken a
statement from the petitioner that what he sold was kesari powder. But, when the petitioner was questioned by the Court under S. 313, Crl. P.C.
with reference to the statement, Ex. P4 given by the petitioner to P.W.I the petitioner has stated that this statement was taken under coercion and
threat.
The counsel appearing for the petitioner has also shown before me a similar packet which was sold by the petitioner to P.W.I which on a
reading appears to be a packet containing ""non-edible synthetic coal tar dyes for industrial purpose"". In this regard, P.W.I was questioned in cross
examination with reference to the purchase made by him from the petitioner. He has stated ""Wrapper Food article
. This itself shows that if P. W. 1 has seen the packets, he would not have purchased, for, it has been boldly and specifically printed on the seal of
packets as ""non-edible synthetic coal tar dyes for Industrial purpose"", and not a article of Food. No doubt, when the contents of these packets
purchased by P.W.I were sent to the Public Analyst, the Public Analyst has sent a report, Ex. P10 wherein he has opined that the sample contains
a coal-tar-dye not permitted for use in any food.
In order to charge a person under S. 7 (it) of the Prevention of Food Adulteration Act (Central Act 37 of 1954) as amended, it has to be
shown by the prosecution that the article sold by the person is a misbranded food article. ''Misbranded'' has been defined under S. 2 (ix) of the Act
as follows:-
Mis-branded""-An article of food shall be deemed to be misbranded-
(a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold,
and is not plainly and conspicuously labeled so as to indicate its true character :
(b) if it is falsely stated to be the produce of any place or country;
(c) if it is sold by a name which belongs to another article of food;
(d) if it is so colored, flavored or coated, powdered or polished that the fact that the article is damaged, concealed or if the article is made to
appear better or of greater value than it reallyis ;
(e) if false claims are made for it upon the label or otherwise;
(f) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name
and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability
prescribed under this Act.
(g) if the package containing it or the label on the package bears any statement, design or device regarding the ingredients or the substances
contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents ;
(h) if the package containing it or the label on the package bears the name of a fictitious individual or company as manufacturer or producer of the
article.
(i) if it purports to be, or is represented as being, for special dietary uses, its label bears such information as may be prescribed concerning its
vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses.
(j) if it contains any article flavoring artificial coloring or chemical preservative, without a declaratory label stating that fact, or in contravention of the
requirements of this Act or rules made thereunder ;
(k) if it is not labeled in accordance with the requirements of this Act or rules �made thereunder;
Misbranded"" article of food shall be deemed to be misbranded if it is an imitation of, or is a substitute for, or resembles in a manner likely to
deceive, another article of food under the name of which it is sold, and is not plainly-and conspicuously labeled so as to indicate its true character.
It can also be said as a misbranded article of food if it is falsely stated to be the product of any place; or country and if it is sold by a name which
belongs to another article of food and if false claims are made for it upon the label or otherwise or if it is so colored, flavored or coated, powdered
or polished that the fact that the article is damaged, is concealed or if the article is made to appear better or of greater value than it really is. On a
close scrutiny of the definition of the word ""misbranded"", I do not find that the article sold by the petitioner to P, W. I can be said to be one as
''misbranded'' falling within S. 7 (ii) of the Act. It is not denied by P. W. 1, that he has purchased three packets, each packet weighing 200 grams
of kesari powder. The article purchased was not in loose form, but as stated above it was in a sealed packet over which it has been specifically
printed as ""Non-edible Synthetic coal tar dyes for Industrial purpose."" P.W.I has specifically admitted in his cross-examination that if he had read
the wrapper, he would not have purchased the same as food article. The packets which were purchased by P.W. 1 were opened before the trial
Court. Even on M.O.2 which is one of the packets purchased by P.W. 1 it was clearly written as ""Non-edible synthetic coal-tar-dyes for
Industrial purpose."" Then, the question arises as to how under the circumstances, the petitioner has signed Ex. P4 statement given by him to P.W.
I may state that the petitioner, even in his statement under S. 313, Crl. P. C, has stated that this statement, Ex. P4 was obtained by P.W. 1
under threat and coercion. Under the circumstances, I am of the view that the article purchased by P.W. 1 from the petitioner cannot be said to be
''Kesari powder'' or that it is a misbranded article coming within the definition of the word ""misbranded"" under S. 2 (ix) of Central Act 37 of 1954
as amended.
The learned counsel for the petitioner has cited before me a judgment rendered by Paul, J., in C.A. No. 848 of 1977, dated 29th September,
1978 and seeks refuge under this judgment. In that case, the petitioner was charged under SS. 7 (ii) and 16 (1) (a) (i) of the Prevention of Food
Adulteration Act, 1954 read with S. 2 (ix) (k) of the Act and R. 45 of the Prevention of Food Adulteration Rules, 1955, on the ground that on
16th December, 1976 at about 1.30 p.m. the Food Inspector purchased three bottles of Honey Rex from the first respondent who is a retail
merchant for Rs. 14.40 p. for the purpose of sampling and the price of the bottles was paid to the first accused and a cash receipt was obtained.
The certificate issued by the Public Analyst in that case showed that the sample contained honey, glucose, sucrose and Vitamin A and the
observation of the Public Analyst was that R. 45 of the Prevention of Food Adulteration Rules, 1955 requires that no person shall use the word
''honey'' or any word that suggests honey on the label of any food that resembles honey, but is not pure honey. The defence put forward by the
accused in that case was, that he sold the bottle only as Honey Rex and not as honey. Paul, J. while construing S. 7 (ii) of the Act and R. 45 of the
Rules framed thereunder, observed that
On the labels on these bottles it is not the word ''honey'' that has been used but the word ''Honey Rex'' ; and further on the label itself it is definitely
stated that it contains glucose, sucrose, vitamin A and honey. Therefore, merely because the word ''honey'' forms a part of the trade name ''Honey
Rex'', which has been put on these bottles and when the contents of the bottles were not pure honey but were honey, sucrose, glucose and Vitamin
A, it cannot be said to have been misbranded. The purchaser has been made aware of by making it clear on the label that the contents of the bottle
are glucose, sucrose, vitamin A and honey and that the contents are not pure honey and no purchaser is likely to be deceived into purchasing
Honey Rex under the impression that it is pure honey.
The learned Judge ultimately came to the conclusion that by manufacturing for sale or selling or storing these bottles of Honey Rex, the
manufacturer or the storer or the distributor or seller of these bottles of Honey Rex would not be guilty of an offence punishable under SS. 7 (ii)
and 16 (a) (i) of the Prevention of Food Adulteration Act, 1954 read with S. 2 (ix) (k) of the Act and R. 45 of the Prevention of Food
Adulteration Rules. I am in complete agreement with the views expressed by Paul, J. In the instant case before me, the article that was purchased
under Ex. P2 under the alleged name of kesari powder'' is 60 grams of kesari powder which in fact is not the ''kesari powder''. On the outer cover
of the packet one could clearly find and it has been printed as ""Non-edible Synthetic coal tar dyes for Industrial purpose"". Even P.W. 1 states that
if he has read the printed matter on the outer cover, he would not have purchased the same as kesari powder. Under the circumstances, the
petitioner cannot be said to have sold a misbranded article to P.W.I.
However, the Courts below on this aspect have come to the conclusion that the petitioner sold ''Kesari Powder'' on demand by P.W.I labeling
as ""Non-edible, Synthetic coal tar dyes for industrial purposes and ''Methanil Yellow'' and selling it for consumption of food for human beings
necessarily denotes that it was kept as an article of human consumption branding it as an article intended for industrial purposes. I do not agree.
The very fact that the packet which was sold by the petitioner to P.W. 1 where in it was written as ""Non-edible Synthetic coal-tar-dyes for
Industrial purpose"" and ''Methanil Yellow"", clearly shows that the article sold was not food article, but that it was intended for industrial purposes.
Under the circumstances, I am of the view that the conviction and sentence imposed on the petitioner by the Courts below cannot sustain.
That apart, the learned counsel appearing for the petitioner has cited a decision reported in Luxmi Chand Rustogi, etc. and Others Vs.
Corporation of Calcutta and Another etc., and contends that the facts of this case are similar and hence prays for acquittal of the petitioner. That
was a case where the Food Inspector went to the oil shop of the accused therein and took 2/3 samples of coconut oil from him in the presence of
witnesses after observing all the formalities. Such oil was stored there. and exposed for sale for human consumption. The accused therein was
charged under S. 7, read with S. 16(1) (i) of the Prevention of Food Adulteration Act, 1954. The defence in that case was that it was non-edible
and perfumed oil, not meant for human consumption. A Bench of the Calcutta High Court held that ""on the label of the tin it was clearly written
Circus Brand non-edible perfumed coconut oil."" The plea of the accused was that the sample taken from the tin was not meant for human
consumption since it was perfumed non-edible oil. On the facts of the case, the Court held that the oil taken from the tin over which it was found
printed on the label, was non-edible and perfumed coconut oil, and so it cannot be held that the oil taken and stored was for human consumption.
In the instant case before me, I may state that the packets were purchased by P.W.I over which it was printed as ""Non-edible Synthetic coal-
tar-dyes for Industrial purpose"" and P.W.I frankly conceded in his evidence that if he had seen this matter over the packets purchased by him, he
would not have purchased it as ""Kesari powder"". That apart, the petitioner, at the earliest point of time, has contended in his statement under S.
313, Crl. P.C. that Ex. P4 was takes from him under threat. Under the circumstances, on going through the judgments of the courts below, I am of
the view that the petitioner, cannot be charged under S. 7 of the Act for selling misbranded article. In view of the above facts, the conviction and
sentence imposed on the petitioner by the Courts below are set aside and this criminal revision case is allowed. If the petitioner has paid the fine
amount, the same will be refunded to him.