Radhe Shyam vs State of Punjab

G.S. Chahal, J.(Oral)

Radhe Shyam petitioner by means of this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India seeks quashing of the complaint dated 1390. Annexure P1 and consequent proceedings pending in the Court of Chief Judicial Magistrate, Ropar.

The petitioner is being prosecuted for an offence under Section 16 of the Prevention of Food Adulteration Act. According to the allegations contained in the complaint dated 1390 Annexure P1, the Food Inspector visited the premises of the petitioner on 12th October, 1989 and found him in possession of ten packets of Soya Chunks weighing 200 grams each for sale. After serving notice in form VI, he purchased three packets of soya chunks as sample. The sample packets were sealed separately and one of the same was sent to the Public Analyst. The Public Analyst declared the sample to be adulterated on the basis that on chromatography test, sunset yellow FCF was found present, that colour found was a coaltar food colour not permissible and the fact of this colour was not mentioned on the label and there was contravention of Rules 24 and 32 of the Prevention of Food Adulteration Rules.

The provisions of Section 32(e) of the Prevention of Food Adulteration Act had been struck down by the Supreme Court in Dwarka Nath and another v. The Municipal Corporation of Delhi 1972 Prevention of Food Adulteration Cases 1.

With respect to the use of sunset yellow coaltar dye, learned counsel has urged that paper chromatogram test is not a sure test and should not be relied upon. In support of his arguments, he has relied upon the following observation of M.M. Punchhi, J. in Maya Ram v. The State of Punjab 1987(II) Prevention of Food Adulteration Cases 320.

".....So far as paper chromatography is concerned, the same could not bring forward whether the local coaltar dye used was permissible or nonpermissible. The ordinary dictionary meaning of chromatography is that it is a method of separating substances in mixture which depend on selective absorption, partition between nonmixing solvents, etc., and which present the substances as a chromatography 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 coaltar 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 outweigh 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, atleast a sizable section of the people who are nonexperts."

I agree with the contention of the learned counsel for the petitioner that the trial of the petitioner on the basis of report of the Public Analyst Annexure P2 cannot end in conviction. Thus the continuation of prosecution of the petitioner would tantamount to abuse of process of the Court.

I hereby, allow this petition and quash complaint dated 1390 Annexure P1 and consequent proceedings.