Shiv Prasad Dubey vs State of Madhya Pradesh

N.K. Gupta, J.—The applicant was convicted for commission of offence u/s 7(i) read with Section 16(1)(a)(i) and Section 14A read with Section 16(1C) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954") vide judgment dated 2.11.1996 passed by the Chief Judicial Magistrate, Rewa in Criminal Case No. 857/1992 and sentenced with six months'' RI with fine of Rs. 1000/- and one month''s RI with fine of Rs. 500/-. In Criminal Appeal No. 83/1996, the learned Third Additional Sessions Judge, Rewa vide judgment dated 21.9.1999 dismissed the appeal in toto. Being aggrieved by the aforesaid judgments, this criminal revision is preferred by the applicant.

The prosecution case, in short, is that Shri Shesh Prasad Dubey (PW-1) was authorized as Food Inspector in the Flying Squad for the Rewa Division at the relevant time. On 24.1.1992 he went along with other Food Inspectors to the Village Chaakghat. He visited the shop of the applicant situated at Village Chaakghat. He found that the applicant was selling various articles including the confectionery candies (hereinafter it would be referred to as "sugar candies"). The complainant gave his introduction to the applicant and proposed to purchase 900 gms. of hard boiled sugar candies kept in one glass jar. Thereafter he purchased 900 gms. coloured sugar candies and thereafter the purchased sugar candies were apportioned in three equal parts and each part was duly sealed in a polythene bag. The slips given by the Local Health Authority were also pasted on the packets. The memo of entire procedure was prepared and thereafter one part of the sample was sent to the Public Analyst and it was found that the sample did not confirm to the standard and hence it was found adulterated. The applicant could not show the name of the vendor etc. and also batch number and manufacturing date about those sugar candies, and therefore a complaint was filed for various offences of the Prevention of Food Adulteration Act. A notice u/s 13 of the Act was also given but the applicant did not apply for re-examination of the sample from the Central Food Laboratory.

The applicant-accused abjured his guilt. He took a plea that the complainant was demanding some money and since he could not give any bribe, therefore a false case was prepared against him. However, no defence evidence was adduced.

The learned Chief Judicial Magistrate after considering the prosecution evidence convicted and sentenced the present applicant as mentioned above whereas the appeal preferred by the applicant was also dismissed in toto.

I have heard the learned counsel for the parties.

For consideration of the points raised by the learned counsel for the applicant, it would be apparent that first of all the report given by the Public Analyst should be compared with the standard. In Appendix B of Prevention of Food Adulteration Rules, 1955 at Article A. 25.01 the standard is fixed for sugar boiled confectionery and as many as 34 clauses are given relating to such confectionery. If the report Ex. P-17 of the Public Analyst is considered, then its result is mentioned as under:

If the report of the Public Analyst is compared with the standard given in Article A. 25.01, then the standard is fixed as under:

It is provided that in the boiled confectionery if spices are used as centre filling, then ash insoluble in dilute Hydrochloric acid shall not be more than 0.4 per cent. The Food Inspector did not mention in the seizure memo that what was the colour of those sugar candies and whether they were plain sugar candies or any spices filling was present in those candies, and therefore looking to the standard of the analysis in Article A. 25.01 of the aforesaid Rules as compared with the result of the analysis, then it would be apparent that the tests of sulphated ash as well as ash insoluble in dilute HCL appear to be within the limit of standard given in the Prevention of Food Adulteration Rules and the sample could be said to be adulterated only on the basis of colour used in the sugar candies.

Relating to the colouring matter in food articles, the Rules 26 to 29 may be persued. According to the Rule 29(b) use of permitted synthetic food colours is not prohibited for confectionery articles. According to the Rule 26 of the PF Rules, natural colours could be added in edibles. According to the Rule 28, synthetic food colours could be added whose common name was given in the rules for red colour. It was mentioned that red colour bearing in ponceau 4r, Carmoisine and Erythrosine could be used in the edibles. In the present case the Public Analyst has mentioned in the report Ex. P-18 that non-permitted basic colour was present in red candies. However, the name of that dye is not mentioned by the Public Analyst which was found in the colour. When the analysis is done for the synthetic colour, then it was the duty of the Public Analyst to give the name of colour dye to show that such colour was used that was prohibited under Rule 28 of the PF Rules. But unfortunately the Public Analyst did not give the name of prohibited colour dye which was found present in the sugar candies bearing red colour. Under such circumstances, the analysis was incomplete and by simply mentioning that prohibited red colour was found, it cannot be said that such synthetic dye was found in the red sugar candies which was not permitted according to the Rule 28 of the PF Rules, and therefore by incomplete report of the Public Analyst, it could not be said that the sample taken by the Food Inspector was having the prohibited colour dye in it.

The Food Inspector Shesh Prasad Dubey has prepared the case against the applicant for coloured sugar candies, but he did not mention that how many candies were purchased by him in 900 gms. weight. He did not mention that what was the colour of the candies purchased by him. Amongst purchased candies, how many candies were of red colour. Under such circumstances, it cannot be said that the Food Inspector purchased any candy of red colour. The sample was not taken according to the norms of the natural justice.

The independent witness of the seizure memo Lallu Ram (PW-2) has turned hostile. It is natural that an independent witness can be won over by the accused, and therefore he could have turned hostile. Though, it is natural phenomenon yet the Food Inspector is expected to take independent witnesses of the entire procedure of taking sample. If the various documents like Form-C (Ex. P-7), seizure memo Ex. P-8 and memo of entire procedure Ex. P-10 are perused, then it would be apparent that the Food Inspector Shri Dubey took only one independent witness of Chaakghat and other witnesses were Shri K.G. Singh Food Inspector and Constable Siyasharan. It is true that Chaakghat was a small place, and therefore so many persons could not be found at the spot. However, the shop of the applicant was in a market, and therefore the Food Inspector could take the independent witnesses while taking the sample. Food Inspector has used his companions as witnesses which shows the purpose as witnesses and by that act it appears his guilty conscious and mal intention to harassing the applicant. Under such circumstances, the selection of the witnesses done by the Food Inspector Dubey creates a doubt. In the procedure of seizure adopted by him, he did not mention as to why he did not take the independent witnesses for the entire proceeding. If some Food Inspectors were going in the flying squad to create cases, then each of them have an interest to make the various cases of food adulteration to complete their target, and therefore each of them have an interest that the case of their companion should be completed, and therefore taking a Food Inspector to be a witness indicates that an interested witness was taken specifically, hence the entire procedure adopted by the Food Inspector doubtful. The sample was taken of coloured sugar candies and out of such coloured candies no other colour was found to be prohibited except the red. The manufacturer did not use any prohibited colour in orange, blue, green, yellow or other candies then it was not expected from him that he would have used prohibited red colour in those sugar candies. Possibility cannot be ruled out that after taking the sample it was not sealed before the applicant and some red candies of prohibited dye were added in the sample by the complainant.

On the basis of the aforesaid discussion, it would be apparent that the procedure for taking sample adopted by the Food Inspector was highly doubtful. He did not take two independent witnesses while taking the sample. He did not mention that what was the colour of sugar candies purchased by him and he did not specify the number of candies of a particular colour. Similarly, the remaining tests of purchased sugar candies were according to the standard prescribed in Article A.25.01 of the Appendix B of the Food Adulteration Rules except the prohibited colour, but the Public Analyst did not mention that which prohibited colour was used in the sugar candies, and therefore the analysis done by the Public Analyst was incomplete and it cannot be said that the prohibited synthetic colour was used in red sugar candies amongst so many candies purchased by the Food Inspector, and therefore the applicant could not be convicted for the offence of Food Adulteration.

The trial Court has also convicted the applicant for the offence u/s 14A read with Section 16(1C) of the Act. If the provisions of Section 14A are perused, then every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food. If any food is found adulterated, then liability of adulteration not only falls with the vendor but it also falls with the manufacturer or distributor. But as and when the packing of that food article is opened, then liability of distributor and manufacturer ceases to exist. In the present case, the Food Inspector Dubey has found that the sugar candies were kept in a glass jar and there was no packing of those sugar candies, and therefore if the name of the manufacturer would have been informed by the applicant, then nothing could be done by the Food Inspector against the manufacturer. Therefore, it cannot be said that it was required for the applicant to inform the name and address of the manufacturer of the sugar candies. Hence, it cannot be said that the applicant has violated the provisions of Section 14A of the Act, and therefore he could not be convicted for the offence u/s 16(1C) of the Act. When the packet was already opened and nothing could be done against the manufacturer, then there was no necessity for the vendor to inform the name of manufacturer, and therefore when he did not violate the provisions of Section 14A, then no such offence was made out against him and he could not be convicted for that offence.

On the basis of the aforesaid discussion, the revision filed by the applicant can be accepted. Consequently, it is hereby accepted. The conviction as well as the sentence directed by both the Courts below for the offence u/s 7(i) read with Section 16(1)(a)(i) and Section 14A read with Section 16(1C) of the Prevention of Food Adulteration Act, 1954 is hereby set aside. The applicant is acquitted from all the charges appended against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present the applicant is on bail, his presence is no more required, and therefore it is directed that the his bail bonds shall stand discharged.

A copy of this order be sent to the trial Court as well the appellate Court along with their records for information.