Ram Niwas vs State of Haryana

R.L. Anand, J.

This is a criminal revision and has been directed against the judgment dated 9.7.1985 passed by the Court of learned Addl. Sessions Judge, Rohtak who affirmed the judgment and order dated 30.11.1984 passed by the learned Sub Divisional Judicial Magistrate, Jhajjar who convicted the petitioner under section 16(1)(a)(1) of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/ and in default of payment of fine the petitioner was directed to undergo rigorous imprisonment for 2 months.

The brief facts of the case can be described as follows :

On 5.8.1982, at about 8.00 p.m., Sant Lal the then Govt. Food Inspector Rohtak PW1 accompanied by Dr. J. Chanda PW3 came to the shop of the petitioner situated near the office of the Municipal Committee, Beri and found 3 kgs. of hard boil confectionery (Mithi golis) in three closed packets for public sale. After disclosing his identity, Sant Lal GFI purchased 600 gms of hard boil confectionery from one of the three packets after opening the same on payment of Rs. 6/ vide receipt Ex. PB. These were divided into three packets, put in the three dry clean bottles which were then separately corked, wrapped, labelled and sealed as required under the rules. Spot memo Ex. PC was also prepared. Prem Narain PW who witnessed the seizure of the sample also attested the spot memo. Ex. PC and receipt Ex. PB. One of the said sealed bottles containing the samples of the heard boil confectionery purchased from the petitioner was got analysed and on analysis it was found to be adulterated inasmuch as it was found coloured with unpermitted red basic coal tar dye. Report Ex. PD dated 3.9.1982 was sent by the Public Analyst Haryana to the Local (Health) Authority, Rohtak. On the receipt of the said report complaint Ex. PE was filed by Shri Balwan Singh the then Govt. Food Inspector, Rohtak.

After filing the complaint in the court, memo Ex. PG was sent to the petitioner per registered post regarding launching of prosecution against him. A copy of the report of Public Analyst was also sent to him and he was duly informed that he could get the sample reanalysed from the Central Food Laboratory if he so desired.

Upon appearance of the petitioner in the court statement of Sant Lal GFI was recorded as PW 1 and on the basis of his statement, the petitioner was charged under section 7(1) read with Section 16(1)(a)(1) of the Prevention of Food Adulteration Act by the Court of learned SDJM, Jhajjar.

After the framing of the charge, Sant Lal GFI was crossexamined by the petitioner. Balwant Singh GFI PW 2 and Dr. (Mrs.) J. Chanda PW 3 were also examined while Prem Narain, independent PW, was given up as having been won over by the petitioner. On the closure of the prosecution evidence, statement of the accused under section 313 Cr.PC was recorded in which the incriminating circumstances appeared against him were put to him. The petitioner denied the prosecution version. However, he admitted that the GFI had come to his shop and had taken away the hard boiled confectionary which were lying there in the almirah. He alleged that he had purchased the same from M/s Brij Lal Krishan Lal, Qilla Road, Rohtak for personal use of his children, but he had forgotten to deliver the same to his children. It was further pleaded by the petitioner that Sant Lal GFI had himself taken out the hard boiled confectionary in question from his almirah and he had even shown the bill of purchase of the same to the GFI but the latter declined to consider the same by saying that it might be shown in the court. In defence the petitioner examined Brij Lal PW1 and appeared as his own witness as DW2.

The learned Magistrate vide impugned judgment dated 30.11.1984 believed the prosecution version and disbelieved the defence version and convicted and sentenced the petitioner in the manner as stated above. Aggrieved by his conviction, the petitioner filed the first appeal in the Court of learned Addl. Sessions Judge, Rohtak who vide impugned judgment dated 9.7.1985 dismissed the appeal by holding as follow :

"9. Sh. H.L. Malik, Advocate appearing for the appellant has assailed the conviction and sentence of the appellant primarily on the three grounds. In the first instance, he submitted that the appellant had purchased the hard boiled confectionary, a part of which was seized by the FI for analysis, from Brij Lal DW1 vide cash memo Ex. DA and that this version of the appellant has also been supported by said Brij Lal. He then referred to the provisions of Section 14(2) and 19 of the Act, according to which a cash memo, or bill in respect of the article of food given by a dealer to the vendor shall be deemed to be a complete defence and suffice to warrant the acquittal of the vendor. Relying upon Nath Mal Patodi and another v. The Corporation of Calcutta, 1967 Cr.L.J. 347, the ld. counsel for the appellant submitted that even on the assumption that the appellant did not serve notice of warranty upon the P.I. at the time of the seizure of the sample from him and even if the warranty is not in the prescribed form, even then it would remain valid and would be complete defence provided the vendor is in a position to connect the article of food with the warranty. He cited Beharilal Aggarwalla and another v. The Corporation of Calcutta, AIR 1970 Cal. 450 in support of his submission that the vendor was not legally bound to examine the dealer from whom he had purchased the food article as a defence witness and submitted that in this case the accused has even examined the vendor Brij Lal DW1 to prove that the hard boiled confectionary in question was sold by him. In this background, the ld. counsel for the appellant submitted that the appellant is protected u/s 19 of the Act. Reliance was also placed in support of these submissions on Amar Chand and others v. State of Punjab, 1984(1) CLR 603 and Chaudhuri Gopal Krishana Murthi v. State, 1978 Cri. L.J. 1365. The ld. Public Prosecutor however refuted the submissions of the ld. Counsel for the appellant and submitted that the cash memo Ex. DA does not pertain to the hard boiled confectionary, which was purchased by the FI from the appellant for analysis. Hence the appellant cannot get any benefit of section 14 and 19 of the Act.

So far as the principle of law canvassed by the ld. counsel for the appellant and laid down in the authorities noticed in the preceding para of this judgment is concerned, there is no gainsaying. However, there is no substance in the submission of the ld. counsel for the appellant that the hard boiled confectionary in question was purchased by the appellant from Brij Lal vide cash memo Ex. DA. The perusal of the cash memo Ex. DA shows that it pertains to the sale of toffee (and not of hard boiled confectionary). Brij Lal DW1 stated that this firm had sold toffees to the appellant vide cash memo Ex. DA. However, he clarified that the toffees and hard boiled confectionary (mithi golis) are not identical inasmuch as the toffees are covered by wrappers while hard boiled confectionary is not covered by wrappers. His statement thus shows that his firm had sold toffees each piece of which is covered by wrapper to the appellant. However, Sant Lal GFI PW1 had purchased hard boiled confectionary and not toffees from the appellant. The hard boiled confectionary is separate distinct article of food having distinct standard. The standard of hard boiled confectionary is given at clause A.25.01 of Appendix B of the Act, while the standard of toffees is given in clause A. 25.02. At the stage of prosecution evidence by crossexamination or otherwise it was not the case of the appellant that each piece of mithi golis purchased by the FI from him was separately wrapped in a piece of paper. It was only in his own statement as DW2 that the appellant came forward with the version that paper was wrapped on each of the pieces of articles of food purchased from him by the SFI. Had there been a semblance of truth in this version of the appellant, then from the very beginning, he would have joined issue with the prosecution to bring home the point that food article in question purchased from him by the GFI has been wrongly described by him as mithi golian/hard boiled confectionary though factually it was liable to be classified as toffee, as each piece was wrapped in a separate piece of paper. In this background, I am unable to accept the defence version that the hard boiled confectionary of which the sample was taken by Sh. Sant Lal GFI from the appellant and which was found to be adulterated was purchased by the appellant from Sh. Brij Lal vide cash memo Ex. DA. The result is that the appellant cannot be given the benefit of sections 14(2) and 19 of the Act and cannot be absolved of the charges framed against him.

The ld. counsel for the appellant next assailed the conviction of the appellant on the ground that the FI has contravened the provisions of rule 22A of the Prevention of Food Adulteration Rules, 1955 inasmuch as he had opened the packet containing about 1 kg. of hard boiled confectionary and had purchased 600 gms therefrom for the purpose of analysis. He submitted that the opening of the sealed container for obtaining the sample was not permissible under the rules and since there is violation of the rule 22A ibid, hence the appellant merits to be acquitted. In this context, reliance was placed on Gurdial Chand and others v. The State of Punjab, 1983(1) FAC 208, Amar Nath v. State of Punjab, 1981 CC Cases 251 (P&H) in which it was held by Hon''ble Mr. Justice Surinder Singh of our own High Court that opening of the sealed tin of vanaspati ghee or sealed packet of haldi powder by the FI for taking the sample is violative of rule 22A ibid, warranting quashing of the prosecution/acquittal of the vendor concerned. The ld. Public Prosecutor however cited State of Punjab v. Devinder Kumar & others, 1983(1) FAC 99, which was also noticed and relied upon by the ld. Sub Divisional Judicial Magistrate Jhajjar, wherein a Bench of the Supreme Court has held that rule 22A of the rules does not state that where a sealed container contains large quantity, then that what is required for the purpose of analysis, then the sealed container as such should be taken as sample and no sample can be taken after opening the sealed container. It was further held that there is no legal requirement which compels the FI to send the sealed container as such to the Public Analyst even though it contains a quantity which is larger than what is required to be taken as sample under rule 22. It was further held that rule 22A is a corollary to rule 22A. The view taken by the Punjab High Court to the contrary was thus held to be erroneous by the Supreme Court.

There is no evidence on the file to show that the packet of hard boiled confectionary lying at the shop of the appellant was factory sealed or that it was manufactured by any standard manufacturing company and bearing the printed label and declaration. Assuming that the hard boiled confectionary was lying in a sealed packet bearing lable declaration of the manufacturer, even then since the contents of said packet were about one kg. and thus more than the quantity which was required by the FI for the purpose of analysis, hence it was not obligatory on the FI to purchase the sealed packet as such for the purpose of analysis in view of the interpretation given to rule 22A ibid by the Hon''ble Judges of the Supreme Court in the case of State of Punjab (supra). The principle of law laid down in the case of Amar Nath and Gurdial Chand and another (supra) by Hon''ble Mr. Justice Surinder Singh to the contrary is thus no longer good law and hence it cannot be followed.

The ld. counsel for the appellant next submitted that there is violation of rule 7(3) of the Prevention of Food Adulteration Rules 1985 in this case inasmuch as the report Ex. PD of the Public Analyst seems to have not been delivered to the local Health Authority within 45 days. Relying upon Om Parkash v. State of Punjab, 1984(2) FAC 136, the ld. counsel for the appellant submitted that the appellant is entitled to take benefit of this violation. There is, however, no merit in this submission as well. The sample of the hard boiled confectionary in question was taken from the appellant, on 5.8.1982. The report Ex. PD is dated 3.9.1982. Thus the report was prepared in less than a month of the taking of the sample by the Public Analyst. The complaint Ex. PE is dt. 20.9.1982, though it was filed in the court on 27.9.1982. Since the complaint was prepared on 20.9.1982 i.e. within 45 days of the taking of the sample of the hard boiled confectionary from the appellant, hence the inference is inescapable that Ex. PD was delivered to the local Health Authority by the Public Analyst within the prescribed period of 45 days of the receipt of the sample. The appellant had ample opportunity to ascertain the date of receipt of the report from Dr. Mrs. J. Chanda Local Health Authority. However, he did not join issue with the prosecution in this respect. This point was also not urged in the lower Court. Since there is no proof on the file that the report Ex. PD of the Public Analyst was delivered to the Local Health Authority more than 45 days after the receipt of the sample, hence it cannot be held that there is violation of rule 7(3) ibid."

Still not satisfied with the findings of the first appellate Court the present revision, which I am disposing of with the assistance rendered by Mr. V.K. Jain, Sr. Advocate, assisted by Mr. Raman Sharma and Mr. J.L. Malhotra, Advocate on behalf of the petitioner and Shri S.S. Pattar, AAG, Haryana on behalf of the State. I have gone through the record of this case and I am of the considered opinion that this revision deserves to be succeeded.

The learned Sr. Counsel Shri Jain invited my attention to the report Ex. PD of the Public Analyst and stated that according to this report permitted coal tar dyes was allegedly used in the preparation of "Mithi golis" but this report is silent about the particular type of coaltar dye used therein and the Public Analyst has not been examined by the prosecution in order to give the details of basis of his conclusion that coaltar dye found in the sample was not permitted and as such as the article was unfit for human consumption. In support of his contention, Shri Jain, learned Sr. Counsel has placed reliance on Om Parkash v. The State of Haryana, 1991(3) RCR (Crl.) 659 : 1992(2) Chandigarh Law Reporter 260 and in State of Haryana v. Girdhari Lal, 1992(2) Chandigarh Law Reporter 520 : 1992(3) RCR (Crl.) 207 , a Division Bench of this Court, in para No. 9 of the judgment had held as follows :

"Part VI of the Prevention of Food Adulteration Rules, 1955, covers the subject ''colouring matter''. Rule 23 specifically prohibits the addition of colouring matter to any article of food except as permitted by these Rules. Rule 28 provides that coartar (food colours) are permitted to be used which are provided in the columns in the table, which is part of the rule. So far as the red dye is concerned, there are five classes being Ponceau 4 R, Carmoisine, Fast Red E, Amarnath (Amaranth ?), Ery throsine, and each of them has been assigned colouring index as also chemical classification. In the instant case, the Public Analyst has opined that there was a red nonpermitted basic coaltar dye. But his opinion, as in plain, is based on two tests, microscopic examination and detection of colouring matter. So far as the first test is concerned, that has not and could not reveal the chemical composition of the coaltar dye. The second test pertaining to colouring matter has been done by resorting to four methods, i.e. wool double dyeing method, ether acetic acid method, paper chromatographic method and oil soluble coaltar dye method, Except for the third method employed, i.e. paper chromatograph, the other methods have not brought forward any positive and categoric result. So far as paper chromatography is concerned, the same could not bring forward whether the coaltar dye used was permissible or non permissible. The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between nonmixing solvents etc. and which present the substances as a chromatogram, such as a serious (series ?) of visible bands in a vertical tube. And the word ''Chromatic'' is meant to pertain to, or considering (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 coaltar dye was nonpermitted. It has been noticed that Rule 28 permits use of coaltar dye. The Public Analyst should have excluded, in his opinion, the possibility of all the five permitted coaltar dyes pertaining to red colour. As is plain no such efforts was made. Thus the report of the Public Analyst cannot be taken as the gospel truth to outweigh normal judicial balancing. If the Courts were to blindly follow the report of the Public Analyst, then, to our mind, it would be in the nature of abdication of judicial functions. It is to be borne in mind that 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, at least a sizable section of the people who are nonexperts."

A reading of the judgment of the Hon''ble Division Bench would show that in the sample taken in that case acid dye was found absent and basic dye was found present and the test for colour was done through paper chromatography and thus the Public Analyst came to the conclusion that the sample contained unpermitted acid coaltar dye. The attack was given by the petitioner of the said case and the relevant findings of the Hon''ble Division Bench are contained in para No. 9 of the judgment which I have already reproduced above.

If the ratio of the said judgment is taken for assistance while visualising and scrutinising the report Ex. PD, it will show that the Public Analyst had not declared in this report the details of the colour matters which were in the contravention of the Food Health Authority Notification No. 8/242 FH81/1974 dated 29.3.1982. He has also not stated what are the unpermitted red basic coaltar dye regarding which the violation has allegedly been made. Moreover in order to reach the conclusion that unpermitted red basic coaltar dye was used by the petitioner, the Public Analyst had adopted the test of paper chromatrography which is not the sure test. If the report Ex. PD is taken from the record as not a satisfactory piece of evidence, there will be a yawning gap to connect the petitioner with the crime.

This aspect of the case has not been discussed by the trial Court as well as by the First Appellate Court. The learned counsel appearing on behalf of the State has not been able to dispute the legal proposition propounded by the Hon''ble Division Bench of which I am bound.

Resultantly, this revision petition is hereby allowed. The judgments of both the court below are hereby set aside. The petitioner stands acquitted of the charge against him. Fine if paid by the petitioner shall be refunded to him.