State of Haryana vs Girdhari Lal

A.S. Nehra, J.

This appeal is directed against the judgment dated 30.10.1985 passed by the Additional Sessions Judge, Jind, by which the respondent has been acquitted of the charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act.

A complaint under Section 16(1)(a)(i) read with Section 7 of the Act was filed by the Government Food Inspector Balwan Singh PW1 against the respondent on the allegations that on 8.3.1983 at 3 p.m., the Government Food Inspector accompanied by Dr. Bal Ram PW3 and Surinder Kumar PW, visited the shop of the respondent. The respondent was found in possession of 10 kgs. of barfi sweet for sale in the show case. The Food Inspector served the respondent with notice Exhibit PA and purchased 600 grams of barfi sweet from the respondent, vide receipt Exhibit PB, for the purpose of analysis. the purchased barfi sweet was divided into three equal parts and each of the three parts was separately sealed by the Food Inspector with his seal in accordance with the Rules. One part of the sample was sent to the Public Analyst, Haryana Chandigarh. The Public Analyst, Haryana, vide his report Exhibited PD, found the sample to be adulterated for the reason that is contained non permitted red basic coal tar dye, whereas no such dye is permitted under the Act to be used in the preparation of barfi sweet. On the receipt of the above report, complaint Exhibit PE was filed against the respondent by the Food Inspector.

The prosecution, in order to prove the charge against the respondent, examined Government Food Inspector Balwan Singh PW1, Dr. M.S. Dhawan PW2 and Dr. Bal Ram PW3 and thereafter the evidence of the complainant was concluded.

The statement of the respondent, as envisaged in Section 313, Code of Criminal Procedure, was recorded in which the respondent denied the allegations of the complainant as a whole and further submitted that his thumb impressions were forcibly taken on papers under the threat that, in case he refused to put his thumb marks on the papers, he would be implicated in some other case. The respondent further submitted that he did not sell any barfi sweet to the Government Food Inspector as he was not indulging in the business of selling sweets, that he had gone to prepare sweets on the occasion of the marriage of the daughter of Jeet Singh DW1 who gave him 5 kgs. of sweets, in which the barfi sweet was also included and the sweet he had kept in his shop was not for sale; that he disclosed this fact to the Food Inspector but he did not pay any heed. The respondent examined Jeet Singh SW1 who stated that the respondent had gone to prepare sweets at this house on the occasion of the marriage of his daughter that the respondent prepared sweets on 5th, 6th and 7th of March, 1983, and he came back at 12 noon on 8.3.1983; that in total the respondent was given 5 kgs of sweets by him and, in that, one kg. of sweet was of barfi and the remaining stuff was of different sweets.

The trial Magistrate believed the prosecution version and convicted the respondent under Section 16(1)(a)(i) of the Act and sentenced him to under go rigorous imprisonment for 9 months and to pay a fine of Rs. 1000/ and, in default of payment of fine, to undergo further rigorous imprisonment for 3 months.

The respondent, on an appeal filed by him before the Additional Sessions Judge, Jind was acquitted on 30.10.1985.

The learned counsel for the appellant has urged that, according to the report Exhibit PD of the Public Analyst, Haryana, the sample of barfi sweet has been found to be adulterated, therefore, the respondent is liable to be convicted and the learned Additional Sessions Judge has erred in law in acquitting the respondent. The sample purchased from the respondent by the Food Inspector when sent to the Public Analyst, brought forward the following analysis :

"I hereby certify that I Surinder Kumar Anand, Public Analyst for all the local areas, Haryana, Union Territory of Delhi and Union Territory of Chandigarh, duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 14th day of March, 1983 from Sh. Balwant Singh a sample of barfi sweets No. B27/83 seized from Sh. Girdhari Lal, for analysis, properly sealed and fastened and that I found the seals intact and unbroken. The seals fixed on the container and the outer cover of the sample was in a condition fit for analysis.

I further certify that I have caused to be analysed, the aforesaid mentioned sample, and declare the result of analysis to be as follows :

Butryo refractometer reading at 40039.8 of ext. fat.

Baudouin test ..... (Negative)

Wool double dyeing test ....... Positive

Acid/dye ...... Absent

Basic dye ....... Present

Test for colour by paper chromatography : ........ Un permitted red basic coal tar dye present.

Starch ........ Absent.

and am of the opinion that the sample contains unpermitted red basic coal tar dye".

The main point for consideration in this appeal is whether the said report satisfies the conscience of the Court that the coal tar dye (food colouring) was a non permitted one.

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 coal tar (Food colors) 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 4R, Caramoisine, Fast Red E, Amarnath, Erythrosine 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 non permitted basic coal tar dye. But his opinion, as is plain, is based on two tests, macroscopic 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 coal tar dye. The second test pertaining to colouring matter has been done by restoring to four methods, i.e., wool double dyeing method, other acetic acid method, paper chromatographic method and oil soluble coal tar 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 coal tar 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 non mixing solvents etc. and which present the substances as a chromatogram, 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 coal tar dye. But on that test to conclude that it was permitted or non permitted 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 non permitted. It has 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. This, the report of the Public Analyst cannot be taken as the gospel truth to outweigh normal judicial balancing. If the Courts were to bindly 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 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, at least a sizeable section of the people who are non experts.

In view of the above mentioned discussion, the report of the Public Analyst cannot form the basis of conviction of the respondent. Accordingly, we find no merit in this appeal and the same is dismissed.