State by Public Prosecutor vs Chelliah Pillai and another

Ratnavel Pandian, J.—The State represented by the Public Prosecutor has preferred this appeal against the judgment of the learned Sub

Divisional Judicial Magistrate, Sattur in C.C. No. 26 of 1974 on his file, acquitting the accused of the offence under Ss.7 and 16(1) read with S.(1)

(j) of the Prevention of Food Adulteration Act.

It is the case of the prosecution that on 13th November, 1973 at about 5-00 p.m. in Door No. 176, No. 4 Road, Sattur, in the coffee hotel of

the 1st accused, the 2nd accused was found telling Halwa which was intended for human consumption and which contained coal-tar dye. It was

not permitted for use in any food article for human consumption.

The prosecution examined one witness, i.e., P.W. 1 who is the Food Inspector. P.W. 1 testified that he visited the 1st accused''s hotel and

purchased 300 grams of Halwa, divided the same into three parts, put the same in three clean dry bottles and one bottle was sent to the Public

Analyst and on his report (Ex. P 4) it was found that the sample was artificially coloured by the addition of Metanil Yellow coal-tar dye which is

not in the list of permitted coal-tar dyes to be used in food. The estimation of Metanil Yellow in the sample was 3-2- mgm. per 100 grams of

sample. On receipt of Ex.P-4, P.W. 1 filed the complaint against accused-1 and 2. P.W. 1 was recalled and cross-examined.

When the accused were questioned on the evidence against them, the 1st accused filed a written statement stating that he was not present at the

time of the inspection by P.W. 1 and be was not aware of the taking of sample and he was not managing the affairs of the hotel though the licence

stands in his name. The 2nd accused has stated that he did not know anything about the occurrence. As I have already stated, P.W.1 has deposed

that he has complied with all formalities as contemplated under the said Act and purchased the sample.

The learned Magistrate has acquitted the accused on the following two grounds: (1) that though the bottle was packed in the presence of the

witnesses, those witnesses have not been examined by the prosecution before the Court and if they were examined, they would speak whether the

bottle was clean and dry and it was packed in their presence; and(2) that it was admitted by P.W.1 that there was some gap in M.O. 1 and the

Halwa was not packed in butter paper.

In my view, the above reasoning of the learned Magistrate is totally incorrect in view of Ex. P-4, wherein the Public Analyst has stated that he

received the sample of Halwa property sealed and fastened and found that the seal was intact and unbroken. Therefore, the abovesaid reasoning

cannot be sustained.

The second point raised by the learned Magistrate viz., whether the sample in adulterated has to be decided by the court on the date so supplied

and in doing so, the date supplied by the Central Food Laboratory will have to be given precedence in accordance with Section 13(3) of the Act

and in the process of analysis, prudence dictates that border line variations as have to be ignored and it has to be remembered that the fact and

solid standards are likely to vary due to extraneous causes as well, and that the principle of marginal error and the various factors which contribute

to such error cannot be ruled out. He further slates that according to Exhibit P-4, the estimation of matanil yellow in the sample was 3-2- milligrams

per 100 grams of the sample and therefore the question is whether in the process of analysing the article, the agency analysing is prone to commit

marginal errors and whether the benefit of such errors should not be given to the accused and thus giving the benefit of doubt arising from the

variation, he has acquitted the accused on the second ground.

After going through the records, I am unable to conceive the second reasoning of the learned Magistrate .It has been held in Abdul Azeez. In re

1964 M.L.J. Cri.259 by a Division Bench of Kerala High Court thus:

Rule 38 of the Food Adulteration Rules insists that coal-tar dyes except those mentioned therein should not be used in food-stuffs Where the

analysis shows that such a prohibited dye is used the food-stuff mutt be considered adulterated under the act irrespective of the quantity of the

adulterant.-... Where extraneous matter or a type like prohibited varieties of coal-tar dye is used, the Analyst''s report certifying to its presence In

the food without specifying the exact quantity of the adulterant is sufficient to support a conviction.

The certificate shows that Metanil Yellow a prohibited coal-tar dye was used. In such a case there is no need for the court to insist that the report

should contain the technical processes by Which the presence of the dye was identified.. ... It may also be pointed out that the accused here could

not have escaped liability even if the certificate did not name *the type of coal-tar dye used Rule 28 days down that even the permitted varieties of

coal-tar dyes cannot be used in food- stuffs except those enumerated therein and dhall is not among the items mentioned.

The same view has been taken by various High Courts in various decisions.

The learned Magistrate, it seems, is completely ignorant of the fact that Metanil Yellow is a prohibited variety of coal-tar under R.28 of the

Food Adulteration Rules and therefore the question of variations of data does not arise and has no consequence. Therefore, applying the

abovesaid principle laid down in the decision in Abdul Azeez, In Re (1) (1964 M.L.J. Cri) 259) , I hold that the second ground on which the

learned Magistrate has acquitted the accused is completely incorrect and cannot be sustained. For the above reasons, I set aside the order of

acquittal passed by the learned Magistrate and convict the accused in respect of the charge framed against them. But on the question of sentence I

am of the view that the ends of justice will be met if the Respondents herein (accused) are released on probation of good conduct. Accordingly I

direct the Respondents herein to be released u/s 4(1) of the Probation of Offenders Act, on their each executing a bond for a sum of Rs. 500/-, to

appear and receive sentence whenever called upon during a period of one year and in the meantime to keep peace and be of good behaviour. The

bonds shall be to the satisfaction of the Sub Divisional Judicial Magistrate, Sattur. The State appeal is allowed.