Raj Kumar vs State Union Territory, Chandigarh

Dr. Sarojnei Saksena, J.

Petitioneraccused has challenged the lower Appellate Court''s judgment dated 3.2.1998 whereby his conviction under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (in short the `Act'') awarded by the trial Court''s judgment dated 26.9.1994 sentencing him to undergo rigorous imprisonment for six months with a fine of Rs. 1000/ in default to further undergo rigorous imprisonment for one month is affirmed.

Brief facts of the case are that on 12.3.1992 Shri O.P. Gautam, Government Food Inspector, visited the petitioner''s premises and a sample of Badana Sweet was taken from him for analysis. As per the provisions of the said Act and Rules framed thereunder, one sealed sample was sent to the Public Analyst for analysis. As per the report of the Public Analyst, sample was found to contain colour with unpermitted orange coaltar dye which was not permitted under 1955 Rules framed under the Act. On that premise, complaint for the aforesaid offence was submitted against the accusedpetitioner before the lower Court.

On being summoned, accusedpetitioner availed his statutory right under section 13(2) of the Act, whereupon second sample was sent to the Director, Central Food Laboratory, Mysore for analysis. The Director, Central Food Laboratory, submitted its report, which is exhibited as Ex. PG.

After recording precharge evidence, charge for the aforesaid offence was framed against the accusedpetitioner and thereafter recording the remaining evidence and the defence evidence adduced by the accusedpetitioner, the learned Magistrate, on appraisal of the evidence on record, found the accused guilty of the said offence and accordingly, convicted him as stated at the very outset.

Petitioneraccused filed an appeal challenging his conviction and sentence which also resulted in dismissal. Hence, this revision.

The only contention raised by the petitioneraccused in this revision is that on the basis of the report of the Public Analyst (Annexure PD) and report of he Director, Central Food Laboratory, Exhibit PG, he should not have been convicted for the said offence. Learned Counsel valiantly argued that from these reports, it is not proved by the prosecution that the sample was adulterated under the provisions of the Act. He contended that from the Analyst''s report, it is evident that paper chromatographic test was applied and on the basis of this test, it was held by the Public Analyst that the sample contained unpermitted orange coaltar dye. On the basis of the five tests held by him, the Public Analyst opined that the sample is coloured with unpermitted orange coaltar dye. Relying on Nandu v. State of Haryana, 1994(1) ACR 467; Gir Raj Parshad v. State of Haryana, 1993(3) RCR 117 and Sham Sunder v. The State of Haryana, 1997 Criminal Law Times 210 learned counsel submitted that paper chromatographic test is not sufficient to detect the presence of unpermitted coaltar dye.

Learned Standing Counsel appearing for the respondent, simply stated that the Courts below have rightly held the petitioner guilty of the said offence and have rightly convicted him for the said offence.

After hearing the rival contentions, in my considered view, revision is liable to be accepted.

In Gir Raj Parshad''s case (supra) sample of Laddu Bundi was taken; Public Analyst applied paper chromatography test and found that the sample contained unpermitted coaltar dye. The High Court held that paper chromatography test was not sufficient Public Analyst was expected to imbibe reasons for his conclusion. Hence, on that ground, accused was acquitted.

In Nandu''s case (supra) it is observed by the High Court that vagueness of the report of the Public Analyst vitiates the prosecution. In that case, sample of Balu Shahi was taken; Public Analyst in his report did not specifically opine that the article of which sample was taken contained unpermitted coaltar dye for the purpose of colouring Balu Shahi. It was held that Rules permit orange colouring of food articles. Hence, it is held that no conviction can be passed on such unspecific report. Accordingly, conviction was set aside.

Rule 28 of the Prevention of Food Adulteration Rules, 1955 gives a list of synthetic colours which may be used for colouring in a food article. It provides that no synthetic food colour or mixture thereof except the following should be used in food. It has given a list of four colours. Second reads as under :

Colour Yellow; common name. artrazine

Sunset Yellow FCF.

A.26.02 of the said Rules specifies food colours. A.26.01 provides for use of tartrazine. Its colour determined therein is Colour of the 0.1 per cent (w/v) solution in distilled water Yellow.

It further provides General requirements :

"The material shall not contain more than 10 parts per million of copper and 20 parts per million on chromium when tested by the method prescribed in 3 and 4 of IS : 1699 (ParII)1963, Methods of Sampling and Test for Coalter Food Colours, Part. II."

It has also given a list of (ix) requirements which, tartrazine shall comply with. A.26.02, reads as under :

"A.26.02 Sunset Yellow RCF N.L. Common name Sunset Yellow

Synonyms Sunset Yellow EG, Para Orange, FD & C. Yellow. No 6 Janne Oranege S, June `Sunset'', FCF C.I. Food Yellow S, Lebensmittel Orange No. 2

Colour Colour of the 0.1 per cent (w/v) solution in distilled water Orange."

General requirements :

"The material shall not contain more than 10 parts per million of copper and 20 parts per million of chromium when tested by the methods prescribed in 3 and 4 of IS: 1969 (Part II)1963 Coaltar Food Colours, Part II."

It further provides :

"Sunset Yellow FCF shall also comply with the (viii) requirements enumerated therein."

In this case, Public Analyst''s report Exhibit PD reads as under :

x x x

x x x

a) x x x

b) x x x

c) x x x

d) Paper Chromatography test Unpermitted orange coaltar dye present. Opinion The sample is coloured with unpermitted orange coaltar dye.

When the second sample was sent to the Director, Central Food Laboratory, in the three tests, result was negative. Fourth test was test for the presence of an artificial colouring matter. The result was positive and identified as an unpermitted orange red shade colouring matter. On that basis opinion was that "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, it is not free from the presence of an unpermitted orange red shade colouring matter."

This type of report and opinion were considered in Sham Sunder''s case (supra). Relying on Som Parkash v. State of Haryana, 1993(2) FAC 63; Giriraj Parshad v. State of Punjab, 1993(2) FAC 71; State of Haryana v. Rattan Lal, 1993(2) FAC 9 and Subhash Aneja v. State of Punjab, 1989(1) FAC 169, it was held that Public Analyst conducted paper chromatography test only and opined that unpermitted orange coaltar dye was present. While testing another sample of Gajarpak, Director, Central Food Laboratory, vide his report Exhibit PF, opined that nonpermitted coaltar dye identified as Orange GII was present. Thus, in his opinion, the sample showed presence of nonpermitted coaltar dye. Hence it was held that both the reports cannot be accepted because paper chromatography test is not sufficient to detect the presence of unpermitted coaltar dye and as per the report of the Director, Central Food Laboratory sample contained Orange GII coaltar dye, which is also a permitted coaltar dye under the Prevention of Food Adulteration Rules, as is evident from a plain reading of Rule 28 and Rule A.26.02 of the Prevention of Food Adulteration Rules.

In this case, report of the Public Analyst is based on paper chromatography test, which is not conclusive to arrive at the conclusion that unpermitted coaltar dye was used. The Director, Central Food Laboratory, has simply said that the sample contained unpermitted orange red shade colouring matter and on that basis he opined that it is not free from the presence of unpermitted orange red shade colouring matter. Whether this unpermitted orange red shade colouring matter is not permissible under Rule 28 or not is not the report of the Director. From both these reports, it is not evident that colouring material used in the sample was unpermitted as per Rule 28 or A.26.02. Hence, in my considered view, on the basis of these reports, accusedpetitioner cannot be held guilty for the said offence.

Resultantly, revision is allowed. Conviction and sentence of the accused is hereby set aside. Fine, if deposited, be repaid to the accused.