Cri. Rev. Appln. No. 181 of 1991

21st March, 2000

Petitioner Counsel: M. P. GALERIA
Respondent Counsel: V. B. GANATRA

JUDGMENT

JUDGMENT :- The applicant-State of Maharashtra has challenged the order of the learned Judicial Magistrate F.C. Court No. 3, Solapur dated 3rd July 1991 passed below Exhibit 1 in criminal Misc. Application No. 7 of 1991. It is unfortunate that this revision application of 1991 had remained pending for more than nine years and even when the matter was notified for hearing for one reasons or the other, no progress was made even when the matter was notified before me as per the request made by learned Addl. Public Prosecutor Mr. Galeria, to enable him to get the instructions from the complainant Food Inspector, I had adjourned the matter.

2. I have heard Mr. Galeria the learned Addl. Public Prosecutor at length and during the hearing, he took me through the order under challenge as well as the documents from the original record as the record and proceedings are called for from the trial Court. During the hearing, I was also taken through the relevant provisions of Food Adulteration Act and Rules as well as the Notification issued in respect of the restriction of using the 'brominated vegetable oil' (hereinafter referred and called as "B.V.O.") as well as the report of the Public Analyst in respect of the articles seized by the Complainant Food Inspector.

3. I have also heard Mr. Ganatra, the learned counsel who appeared on behalf of the respondent and during the hearing, he took me through the order passed by the learned Magistrate and he highlighted that as found from the earlier order passed by the learned magistrate, the said order of the learned Magistrate was not challenged and he accordingly submitted that as found from the record, the respondent has challenged the report of the Public Analyst from the beginning and according to him, learned magistrate has not taken any cognizance on the complaint and as found from the record, the Food Inspector had filed the complaint subsequently on 24th June 1991 and as found from the order, the learned Magistrate has not taken any cognizance on the complaint filed by the Complainant. Mr. Ganatra has also while arguing the matter, vehemently urged that even on going through the Memo of Revision Application, the applicant has not disclosed the relevant fact about the date of manufacturing of the articles which were seized by the Complainant from original Respondent no. 1 and the same is very relevant for the purpose of examining the order under challenge and according to him, the Applicant-complainant has with some ulterior motive, kept back from the Court while referring to the Notification issued from time to time. He submitted that the learned Magistrate has rightly decided the application and while exercising my revisional jurisdiction, the order under challenge is not required to be interfered and prayed for dismissal of the revision application.

4. The order under challenge is passed by the learned Magistrate on an application filed by the Complainant on 15th January 1991 wherein the complainant has prayed for certain directions as per the provisions of Section 11(5) of the Prevention of Food Adulteration Act (Hereinafter referred to as the 'said Act'). While filing such application, the complainant has placed reliance upon certain documents viz. the copy of the report of the Public Analyst dated 31-12-1990. Even in the application, the complainant has joined only Shri Anilkumar S. Nana who was the partner of M/s. Ganeshraj Agency doing business at Solapur and as per the complaint, the complainant being Food Inspector has visited the shop of Respondent Anilkumar on 5th December 1990 and at that time, Shri Anilkumar was present who was looking after the business in the capacity as a partner. On that date, the complainant has inspected the shop and drawn four samples viz. Rasana Orange Soft Drink, Rasna Mango Ripe Soft Drink Concentrate; Rasna Kesari Eliachi Soft Drink Concentrate and Rasana Kalakhatta Soft Drink Concentrate. It is also the case of the Complainant that the said samples seized, were manufactured by Pioma Industries, Panchvati, Ahmedabad. It is further found that the said samples were sent for analysis and as reported by the Public Analyst Solapur, some of the samples viz. sample of Rasana Orange Soft Drink and Rasana mango concentrate, contained B.M.O. and the Public Analyst has submitted his report on 31st December 1990. At this juncture, I have also gone through the report of Public Analyst dated 31-12-1990 and found the description in the report which I reproduce hereinunder :

Sr. No.of the sample	Name of Vendor
Code No.SMC (ii)	Label : Rasana Soft Drink-concentrate Mango Ripe Mfg. by PIOMA INDUSTRIES Panchwati Ahmedabad 380006, Copy right Registration No. A-24086/79 ; PKD 3/90, 2675 Mfg. Lic. No.1518	b) Dulcine : Negative
		c) Cyclamate : Negative
		d) Colour
		Detected : Ta-rtra-zine
		Sunset yellow FCF.
		e) Brominated Vegetable oil : Positive.
Serial No. 546/90	Physical Appearanc
	Yellowish Orange powder in packet and yellowish orange liquid in bottle	a) Saccharine : Negative.

and I am of the opinion that the above sample of Rasana Mango Ripe Soft drink concentrate bearing code No. SMC(ii) and serial no. 546/90 contains Brominated vegetable oil and hence unfit for human consumption."

The complainant has also produced the food articles before the Court as provided under section 11(4) of the said Act and it is accordingly prayed that necessary directions as per provisions of section 11(5) of the said Act, be issued. It is also to be noted that at that stage, no complaint was filed and complainant has moved the learned Magistrate by producing the sample with the record and sought for direction as per provisions under section 11(5) of the said Act. It is further found that in response to the notice from the Court, the Respondent Anilkumar had appeared and filed reply to the application of the Complainant in detail and as per reply dated 25th March 1991, it is the case of the respondent-Anilkumar that contentions of the complainant that the samples of Rasana orange and Rasana mango Soft Drink concentrate were found B.V.O. and therefore found unfit for human consumption, were denied. The respondent Shri Anilkumar has also denied the analysis done by the Public Analyst thereby disclosing that the said sample contained B.V.O. and at that stage, the Respondent has not admitted the report of the Public Analyst. It is further the case of the Respondent in reply that the seized articles viz. Rasana Orange and Rasana mango Ripe both were packed in the month of March 1990 viz. these seized articles were manufactured for sale prior to 16th April 1990 and if at all, the report of analysis showing that sample contained B.V.O. is admitted then also considering the date of manufacturing of articles i.e. in the month of March, 1990, that was not prohibited and even considering this fact, the Respondent has denied the case of the Complainant in respect of application made praying for taking necessary action under section 11(5) of the said Act. I have gone through the reply filed by the Respondent.

5. Mr. Galeria the learned Addl. Public Prosecutor has vehemently urged that the learned magistrate has committed error in deciding the application of the Food Inspector as no opportunity was given to the complainant to prove the case against the accused and without taking cognizance of the complaint as per order dated 4-7-1991 as per the provisions of section 190(1)(a) of the Code of Criminal procedure, for contravening the provisions of Rules 60 and 61 of the Food Adulteration Rules 1955 (Hereinafter referred to as the 'said Rules') punishable under section 16 read with section 17 of the said Act, and the learned Magistrate has disposed of the complaint without taking any cognizance on the complaint bearing Regular Criminal Case No. 91 of 1991 and by filing separate revision application, the applicant has challenged the said order in criminal revision application No. 209 of 1991 and the order of the learned Magistrate dated 4th July 1991 in Regular Criminal Case No. 90 of 1991, wherein the learned Magistrate has also simultaneously not taken cognizance and the said order is also challenged by preferring application no. 192 of 1991. It is further found that application being Misc. Application No. 1807 of 1991 filed by the Applicant in criminal revision application no. 181 of 1991 wherein the Applicant-complainant has prayed for stay of the operation of the order passed by the learned Magistrate directing that Rasana Orange and Rasana Mango Ripe Soft Drink Concentrate to be returned to the Respondent. While taking me through the original records and proceedings including the report of the Public Analyst in respect of sample seized from the Respondent no. 1. it is the contention of Mr. Galeria that the learned Magistrate was not right in disposing of the application by returning the seized articles to the Respondent and further the learned Magistrate was not right in not taking cognizance against the Respondent and there is prima facie case against the accused for the offence under the Act. Mr. Galeria submitted that as per the Complainant, he has seized sample of articles from the Respondent under the panchanama and in presence of panchas, after seizing the said articles, the same were sent for public analysis as contemplated under the Act and as per the report of the Public Analyst, it is found that sample contained B.V.O. which is unfit for human consumption and in view f the report of the Public Analyst, there is prima facie case against the accused and he accordingly, submitted that the order of the learned magistrate passed on a complaint filed by the Complainant by not taking cognizance, deserves to be set aside. He inturn, submitted that the order passed by the learned magistrate on an application filed by the complainant by returning the seized articles in favor of Respondent, is also not legal and deserves to be set aside.

6. On the other hand, Mr. Ganatra the learned counsel appearing for the Respondent had vehemently urged that initiation of seizure by the complainant is also unauthorised, not legal and against the provisions of the Act and the Rules and if the seizure itself is not legal, how the respondent can be considered that they have committed the offence under the Act. According to Mr. Ganatra while taking me through the record that at the initial stage when the notice was issued in respect of application filed by the Complainant for seeking directions from the learned Magistrate, as per the provisions of Section 11(5) of the Act in respect of the seized articles and in response to the said Notice, the Respondent No.1 appeared and detailed reply was filed on the application filed by the complainant and in the said reply, several contentions were taken pertaining to the issue regarding the seizure of articles as well as on the report of the Public Analyst. As per the report of the Public Analyst, it indicates that the sample contained B.V.O. which is unfit for human consumption. At the initial stage in the reply, the Respondent has not accepted the said report and as found from the reply, it is the case of the Respondent while not admitting the report that the sample contained B.V.O. It is further found from the reply to the notice and it is their contention that the articles seized by the Food Inspector clearly show that the articles were packed in the month of March 1990 and denied that the sample contained B.V.O. It is further found from the reply that even the B.V.O. was present, then such B.V.O. was permissible as per the relevant provisions of the Act upto 16th April 1990 and admittedly, the seized samples were packed in the month of March 1990, it cannot be held that B.V.O. was prohibited at the relevant time i.e. in the month of March 1990 when use of such B.V.O. was permissible upto 16th April 1990. Mr. Ganatra accordingly submitted that from the initial stage, the respondent no. 1 has challenged the report of taking several contentions including the seizure effected by the Complainant against the relevant provisions of the Act and Rules. It is also found from the record that the draft Notification issued by the Ministry of Health and Welfare New Delhi on 7th February 1989 and in the said draft Rules made under the Provisions of Food Adulteration Act (Amendment Rules) 1989, it came into effect on the date of publication in the official gazette and in the Prevention of Food Adulteration Rules of 1955 in Rules 60 and 61 words "B.V.O." were inserted. The said Notification dated 7th February 1989, was issued by the Ministry of health and Family Welfare Department on 29th March 1990 referring to the earlier draft Notification and while inviting objections and suggestions, it it was found that as per the said Notification which came into effect from the date of publication in the official gazette in the Food Adulteration Rules, in Rules 60 and 61 B.V.O. shall be inserted and as per the amendment made in sub-rule (1), shall remain in force upto to date inclusive of 15th April 1990. According to Mr. Ganatra, in view of the Notification dated 29th March 1990 and earlier Draft Notification dated 7th February 1989, the use of B.V.O. was restricted only from 16th April 1990 and in view of the fact that samples were packed in the month of March 1990, even such using of B.V.O. was permissible and accordingly, it cannot be said that the accused can be held responsible for the offence under the Prevention of Food Adulteration Act. In support of his submission, while taking me through the record, he submitted that from the date of issuance of the Notice, the report of the Public Analyst was objected and even earlier when the matter was before the Magistrate in the month of April, the learned Magistrate has directed the complainant to lead evidence in support of report of the Public Analyst. He took me through order passed by the learned Magistrate directing the Complainant to lead evidence in support of his case and even when the matter was adjourned by the learned Magistrate, the learned Magistrate has directed the Complainant and parties to lead evidence and these orders being judicial orders were not challenged by the Complainant and admittedly no evidence is led by the Complainant in respect of the report which the Complainant has relied upon and ultimately, the learned Magistrate has decided the application by returning the seized articles to the Respondent.

7. On the other hand, the learned counsel Mr. Ganatra, appearing for the respondent, has vehemently urged that the initiation of the seizure by the complainant is also unauthorised, not legal and against the provisions of said Act and said Rules and if the seizure itself is not legal, there cannot be any consideration that the Respondent has committed any offence under the said Act. He next contended that at the initial stage when the notice was issued in respect of application filed by the complainant when the complainant has moved the learned Judicial Magistrate F.C. Solapur by making an application on 15th January 1991 seeking directions from the Court as per provisions of section 11(5) of the said Act in respect of seized articles and in response to the said notice, the respondent no. 1 appeared and detailed reply was furnished in respect of the application made by the Complainant and in the detailed reply, several contentions were raised on behalf of Respondent pertaining to the issue regarding the seizure of articles as well as the report submitted by the Public Analyst for which the report of the Public Analyst indicates that the sample contained B.V.O. which according to him is unfit for human consumption. In the said reply, the report of the Public Analyst was not accepted by the respondent and it is also their case that the report is not admitted that sample contained B.V.O. It is further brought to the notice in reply by the Respondent that the seized articles by the Food Inspector clearly show that articles were packed in the month of March 1990 and though it is the contention that the sample does not contain B.V.o. and even though it is presumed that the B.V.O. was present, then such B.V.O. was permissible as per the relevant provisions of the Act i.e. upto 16th April 1990 and admittedly when the samples seized were packed in the month of March 1990, it cannot be held that B.V.O. was prohibited at the relevant time viz. in the month of March 1990 when use of such B.V.O. was permissible upto 16th April 1990. Accordingly, it is the case of the Respondent in the said reply by denying that the report as well as several contentions were taken in respect of seizure effected by the Investigating Officer which is against the provisions of the Food Adulteration Act. Mr. Ganatra, the learned counsel appearing for the respondent has also in support of his submission, submitted that in view of the draft notification issued by the Ministry of Health and Family Welfare New Delhi on 7th February 1989, in the draft Rules made under the prevention of Food Adulteration Act (Amendment Rules) 1989, it came in to effect on the date of publication in the official gazette and in the Prevention of Food Adulteration Rules 1955 in Rule 60 and 61 words "B.V.O." shall be inserted. He next submitted that as per the draft notification dated 7th February 1989, a notification was issued by the Ministry of Health and Family Welfare department of health on 29th March 1990 referring to the earlier draft notification dated 7th February 1989 and while inviting objections and suggestions, it was found that as per the said Notification which came into effect from the date of publication in the official gazette in the Food Adulteration Rules 1955 in rules 60 and 61 "B.V.O." shall be inserted at the end and the amendment made in sub-rule (1) shall remain in force upto and inclusive of 15th April 1990. According to Mr. Ganatra that in view of the notification dated 29th March 1990 and earlier draft Notification dated 7th February 1989, the use of 'B.V.O.' was restricted only from 16th April 1990 and in view of the fact that sample packed were of March 1990 even such using of B.V.O.' is permissible and accordingly, there is nothing to suggest that the accused can be held responsible for the offence under the Prevention of Food Adulteration Act. He next submitted that even at the first point of time when the notice was issued by the Court in respect of the application filed by the Complainant, it is the Respondent who had appeared and report of the Public Analyst relied upon by the Complainant, was objected and Court while considering the application even at earlier point of time in the month of April while passing order, has directed the Complainant to lead evidence in support of the report of Public Analyst. He accordingly took me through the earlier order passed in the month of April 1991 and even subsequently when the matter was kept by the learned Magistrate in the month of March 1991 for recording of evidence, even at that stage, the learned Magistrate has also while adjourning the matter, has directed the Complainant and the parties to lead evidence and these orders were not challenged by the Complainant and admittedly no evidence is led by the Complainant in respect of the report which the Complainant has relied upon and ultimately, the learned magistrate has decided the application by returning the seized articles to the Respondent. Mr. Ganatra has also while arguing the matter, placed reliance upon the judgment of the Supreme Court as well as of this Court pertaining to the facts of the present case viz. matters pertaining to Adulteration Act as well as the decision of this Court in the matters pertaining to the Drugs Act. He accordingly submitted that in view of the fact that the learned Magistrate has not taken cognizance on the complaint which was filed much later in the month of June 1991 and even as per the provisions of the Act, which I will refer to hereinabove, there is no question that one has to accept the report of the Public Analyst and accordingly, Mr. Ganatra has submitted that the order passed by the learned Magistrate in all the proceedings be confirmed. Mr. Ganatra further makes a statement before this Court that even in view of the order passed by the learned Magistrate returning the seized articles in favour of Respondent, he submitted that considering the fact that the articles were packed in March 1990 and considering the expiry date i.e. March 1993, even thereafter, further seven years have elapsed, the Respondent is not at all interested in claiming such articles and he submitted that the Court may direct while disposing of the matter that the articles seized and lying with the Respondent be ordered to be destroyed.

8. To appreciate the contentions raised before me, it is necessary for me to refer to the application made by Food Inspector before the learned Magistrate on 15th January 1991, in the said application, the applicant has shown Shri. Anilkumar as Nana as Respondent, who was partner of M/s. Ganeshraj Agency who is dealer in food articles. As per the applicant, the respondent is the distributor of food articles viz. "Soft Drink concentrate Rasana" manufactured by Pioma Industries, Panchvati Ahmedabad, the Food Inspector has visited the shop of the respondent situated at Solapur on 5th December 1990 and at that time, Shri. Anilkumar was present in the shop and was looking after the business. On inspection of the shop by the Food Inspector, he noted certain food samples which he inspected under the Prevention of Food Adulteration Act 1954 and Rules and it is also the case of the applicant that these samples were manufactured by Pioma Industries at Ahmedabad. After the inspection under the Food Adulteration Act and Rules, the Food Inspector has seized the said stock of 'Rasana Soft Drink concentrate' found in possession of the respondent under section 10(4) of the said Act. In the application, the applicant has stated that the said samples were sent for Public Analysis at Solapur and as per the report submitted by the Public Analyst, certain samples were found containing B.V.O. and the same is unfit for human consumption and contravenes the provisions of Food Adulteration Rules 1955. Accordingly, the applicant has prayed for directions as per the provisions of Section 11(5) of the Prevention of Food Adulteration Act 1954. In the application, the applicant has also placed reliance upon the copy of the report of the Public Analyst bearing nos. 165, 166 and 167 of 31st December, 1990. In view of the application submitted by the applicant Food Inspector, the notice was issued to the Respondent and detailed reply was filed by the Respondent through advocate dated 25th March 1991 and in the said reply, the Respondent has denied the case of the Food Inspector and also denied the report of the Public Analysis containing B.V.O. which according to the report, is unfit for human consumption. It is also to be noted that in the reply filed by the Respondent contentions were also taken about the illegal seizure of the articles by the applicant and even it is the contention of the Respondent that as found from the report of the Public Analyst, the seized articles were packed in the month of March 1990 and therefore, sale was prior to 16th April 1990 and though the Respondent has denied the report of the Public Analyst having B.V.O. it is the submission of the Respondent that even the B.V.O. was permissible upto 16th April 1990 and even there is no contravention of any provisions of the said Act and Rules. It is their case that it is necessary to prove the report of Public Analyst by examining witness as the report was not admitted by the Respondent and it is prayed that articles seized by the Food Inspector be unconditionally returned to the Respondent as per the provisions made under the said Act.

9. At this juncture, I am required to refer to certain provisions of the Prevention of Food Adulteration Act, as under :

Sub-section (vii) of section 2 of the Act defines 'local area' which means :

"Local area" means any area, whether urban or rural, declared by [the Central Government or the State Government] by notification in the Official Gazette, to be a local area for the purposes of this Act.

Sub-section (viii) of section 2 of the said Act, defines "local authority", which means :

"Local authority" means in the case of -

(1) a local area which is -

(a) Municipality, the municipal board or municipal corporation;

(b) a cantonment, the cantonment authority;

(c) a notified area, the notified area committee ;

(2) any other local area, such authority as may be prescribed by [ the Central Government or the State Government] under this Act'.

Sub-section (ix)(f) of section 2 deals with:

"if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act".

Section 8 deals with 'Public analysts', which is reproduced below :

"The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for which local areas as may be assigned to them by the Central Government or the State Government, as the case may be ; Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a public analyst under this section : [Provided further that different public analysts may be appointed for different articles of food.]

Section 9 deals with "Food Inspectors" which reads as under :

(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be :

Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this Section.

(2) Every food inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860) and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf.]

Section 10 deals with "Powers of Food Inspectors', which reads as under :

(1) A food Inspector shall have power - (a) to take samples of any article of food from -

(i) any person selling such article ;

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee ;

(iii) a consignee after delivery of any such article to him ; and

(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken;

(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (health) Authority, to prohibit the sale of any article of food in the interest of public health.]

The relevant section is sub-section (4) of Section which reads as under :

If any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided [and he shall, in either case, take a sample of such article and submit the same for analysis to a public analyst]"

Provided that where the food inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly.]

[4-A] Where any article of food seized under sub-section (4) is of a perishable nature and the Local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed.]

Section 11 prescribes the Procedure to be followed by food inspectors, which reads as under :

[(1) When a food inspector takes a sample of food for analysis, he shall -

(a) give notice in writing then and there of his intention to have it so analyzed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14-1 ;

(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed ; Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person ;

(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority ; and

(ii) send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section and sub-sections (2-A) and (2-E) of Section 13.

(2) Where the part of the sample sent to the public analyst under sub-clause (i) of clause (c) of sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector dispatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the public analyst for analysis.]

(3) When a sample of any article of food [or adulterant] is taken under sub-section (1) of sub-section (2) of Section 10, [the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be], in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.

[(4) An article of food seized under sub-section (4) of Section 10, unless destroyed under sub-section (4-A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst :]

Provided that if an application is made to the magistrate in this behalf by the person from whom any article of food has been seized, the magistrate shall by order in writing direct the food inspector to produce such article before him within such time as may be specified in the order.

[(5) If it appears to the magistrate on taking such evidence as he may deem necessary -

(a) that the articles of food produced before him under sub-section (4) is adulterated or misbranded, he may order it -

(i) to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or

(ii) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or

(iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or

(iv) to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to confirm to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order ...."

Sub-Section (1) and (2) of Section 13 of the Act reads as under :

(13) Report of Public Analyst -

[(1) The public analyst shall deliver, in such form as may be prescribed as report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the local (Health) Authority analysed by the Central Food Laboratory.."

Sub-Section (5) of Section 13 of the Act reads as under :

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1960) :

[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1-A) of Section 16] shall be final and conclusive evidence of the facts stated therein.]

Section 16 deals with penalties. As found from the Prevention of Food Adulteration Rules 1955, part IV provides for 'public analyst' and 'food inspector' and rule 6 deals with 'qualification of public analyst'. Rule 8 deals with 'qualification of food inspector' and rule 9 deals with the 'duties of the food inspector'.

10. Part VII deals with the 'packing and labelling of foods'. Rule 32(f) deals with 'the month and year in which the commodity is manufactured or prepacked :'

In part XII deals with 'Anti-Oridants, emulsifying and Stabilising [And Anticaking Agents]'.

The words "brominated vegetable oil" as found in the foot note, was omitted by notification No. G.S.R. 454(E) Dated 15th April 1988 till 15th April 1990 and reinserted by G.S.R. 411(E) dated 29th March 1990 with effect from 29th March 1990 till 15th April 1990.

As found from the record, the Ministry of Health and Family welfare Department of Health, had issued notification dated 7th February 1989 and as per the said notification, the objections and suggestions were invited and it was suggested in the draft Rules which I reproduce hereinbelow :

(1) These Rules may be called 'Prevention of Food Adulteration (Amendment) Rules 1990 and they shall come into effect on the date hereof.

(3) Under the Food Adulteration Rules 1955, hereinafter referred as the Rules, in Rule 60 and 61 following words shall be inserted at the end viz. :-

"and brominated vegetable oil".

And thereafter, the Ministry of Health and Welfare had issued Notification on 29th March 1990 referring to the earlier notification dated 7th February 1989 and considering the objections and suggestions from the public and having considered by the Central Government the Central Government had therefore, in exercise of powers conferred under sub-section (1) of Section 23 after consultation of the Central Committee of Food Standard, makes and amends the following Rules namely :- (1) These Rules may be called of 'Prevention of Food Adulteration IInd Amendment Rules 1990. (2) They shall come into force on the date of publication in the official gazette.

11. As per the said Notification dated 29th March 1990 in rule 60 and 61, the words 'Brominated Vegetable Oil' were inserted and further as per the sub-rule (2), the amendment made in sub-rule (1) was retained in force upto 15th April 1990.

12. Keeping this in mind and the fact that the Food Inspector had seized the food articles from the respondent Shri Anilkumar on 5th December 1990 and according to the Applicant, the said food samples were seized from the batch which was packed in the month of March 1990, meaning thereby that the manufacturer had packed the said food articles in the month of March 1990. The Court is also required to keep in mind that manufacturers are also required to follow the requirements of law under Excise Act and Rules and the Manufacturer has also to give account of such manufactured articles/samples and also required to clear the said articles under the Provisions of Excise Act and it is not in dispute that such seized articles were packed by the Manufacturer from the Respondent no. 3 when the Food Inspector had purchased the samples which were packed in the month of March 1990. After the articles were seized and sent for analysis, it found and as per the report of Public Analyst dated 31st December 1990, that it contained the 'brominated vegetable oil' and the report was submitted in form no. 3 as per rule 7(3) by the Public Analyst. Even the report also shows that articles examined by the Public Analyst was packed in the month of March 1990 (3/1990). After the report was received, the Food Inspector has submitted an application on 15th January 1991.

13. As per the provisions under section 11(4), the application was moved by the Food Inspector before the Magistrate, wherein it is the case of the applicant-Food Inspector that as the food articles were seized from the respondent as per sub-section (4) of section 10, he has prayed for directions as per the provisions of Section 11(5) of the Act. As referred to earlier in sub-section (5) of Section 11, the Magistrate on taking such evidence as he may deem necessary, pass order in the manner prescribed in sub-section (5) and even restore the articles from whose possession the articles were seized. Accordingly, the Magistrate issued notice to the Respondent to consider the application of Food Inspector and pass the order as per section 11(5) of the Act. It is also to be noted that before that even the Complainant has also not filed any complaint though the report of the Public Analyst was reached to him. Therefore, no cognizance was taken. At the first stage, when the Respondent Anilkumar in response to the notice, had appeared before the Magistrate and detailed reply was filed and indicated that the Food Inspector had illegally seized the food articles and also denied the fact about the report of the Public Analyst containing 'brominated vegetable oil' and respondent has denied that sample of 'Rasna Orange and Rasna Mango Ripe Soft Drink Concentrate' contained the 'brominated vegetable oil' and therefore, unfit for human consumption. In paragraph 6 to the reply, the respondent had also furnished the facts about the article packed which are found and admitted even by the applicant Food Inspector that it was packed in the month of March 1990 and the manufacturer had manufactured and packed the said food article in the month of March 1990 and the sale effected was prior to 16th April 1990 and even the 'brominated vegetable oil' was found as per the report, was not banned in view of the notification introduced on 16th April 1990. It is further found in the reply that it is the Food Inspector to prove that the alleged sample found, was correctly analysed by correct method of analysis in respect of alleged presence of 'brominated vegetable oil' and as per the provisions of sub-section (5A) of section 11, the request was made that the Magistrate may record the evidence and accordingly, it is contended that it is mandatory and obligatory upon the applicant to examine the Public Analyst as a witness so that the respondent has opportunity to cross-examine him to test the correctness of the analysis and correctness of the report and no reliance can be placed on the report of the Public Analyst. In short, it is the case of the Respondent that even the article was seized on 5th December 1990 and as per the notification dated 29th March 1990 the brominated vegetable oil' was inserted in rules 60 and 61 and the amendment came into force on 16th April 1990 and even as per the Public Analyst, the 'brominated vegetable oil' was not banned from the date of the report of the Public Analyst. Considering the reply filed by the Respondent, the learned Judicial Magistrate F.C. as per order dated 19th April 1991, while keeping the application pending in respect of two articles i.e. Rasana Orange and Rasana Ripe Soft Drink, has retuned the articles to the respondent and the applicant and respondent were directed to adduce evidence in support of their contention and infact, the Magistrate has kept the matter for evidence.

14. It was submitted by Mr. Ganatra the learned counsel appearing for the respondent that this order passed by the Magistrate on 19th April 1991 was not challenged by the applicant and infact, as directed by the Magistrate, the matter was kept for adducing evidence. When the matter was adjourned for evidence, even thereafter, the matter was notified before the learned Magistrate on 24th June 1991 and even considering the application and the order passed earlier on 19th April 1991, the learned Magistrate as per order dated 24th June 1991, has directed the prosecution to adduce evidence as per earlier direction and the matter was adjourned. It is brought to my notice that even subsequent order was passed by the learned Magistrate on 24th June 1991, which was not challenged by the applicant Food Inspector and the matter was kept for recording of evidence. It is thereafter, a pursis was filed by the applicant Food Inspector on 24th June 1991 stating that the report of the Public Analyst is sufficient to hold that the food articles seized, were contained 'Brominated vegetable Oil' and the same is unfit for human consumption and prayed for suitable order in the matter. Infact, the applicant has chosen not to lead any evidence to prove the report of the Public Analyst. Accordingly, in view of the stand taken by the applicant Food Inspector not to lead evidence, the learned Magistrate has proceeded with the hearing of the Misc. application No. 7 and considering the Notification issued earlier on 15th April 1988 in rule 60 and 61, words 'brominated vegetable oil' were omitted and considering the Notification which was issued on 7th February 1989 and the Notification dated 29th March 1990, the learned Magistrate has held that 'brominated vegetable oil' was permitted to be used in the food product upto 15th April 1990 and he further observed that any product which contained such 'brominated vegetable oil' was allowed to be used from 7th February 1989 to 15th April 1990 as emulsifying agent and stabilising agents. The learned Magistrate has also observed that the seized food articles were manufactured by Pioma Industries in the month of March 1990 and the same was packed in March 1990 even as contended by the applicant Food Inspector. He further observed that no such Notification was issued recalling back the said 'brominated vegetable oil' prior to April 1990 as emulsifying and stabilising agents and accordingly, the learned Magistrate has passed order returning the articles in favour of respondent in view of section 11(6) of the Act. It is this order which is under challenge by the Food Inspector.

15. In view of the fact that even it is not in dispute by the Food Inspector that the food articles seized from the respondent were seized on his visit on 5th December 1990 and the food articles seized, were packed in the month of March 1990. As per the report of the Public Analyst, the said articles were found having 'Brominated vegetable oil' which is unfit for human consumption. Even in the said report, the Public Analyst has also mentioned that the articles were packed in the month of March 1990.

16. At the first stage when the notice was issued to the Respondent, the Respondent has challenged the report of the Public Analyst and even he has challenged that the Food Inspector has illegally seized the food samples which is against the said Act and Rules and further he has disclosed that the articles seized from the Respondent were packed and manufactured in the month of March 1990 and 'brominated vegetable oil' was not prohibited upto 16th April 1990. There was no such ban on such using of 'brominated vegetable oil' prior to 16th April 1990 and particularly in the month of March 1990 when the articles were packed. At the first stage, the respondent has while challenging the report as well as challenging the action of the Food Inspector about the seizure of the articles, has requested the learned Magistrate to direct the parties to lead evidence to prove the report and considering the contentions raised by the Respondent the learned Magistrate has kept the matter for adducing evidence and even when the matter was again notified before the Magistrate, the learned Magistrate has referring to the earlier order, directed the parties to lead evidence in support of their case. These orders were not challenged by the complainant and when the matter was notified before the Magistrate, the Food Inspector has while filing pursis, submitted that the report of the Public Analyst is sufficient to hold that the articles seized from the Respondent, contained the 'Brominated Vegetable Oil' and the same is unfit for human consumption.

17. Considering the stand taken by the Food Inspector, the learned Magistrate, has relying upon the Rules and Notification issued on 29th March 1990 referring to the earlier Notification wherein the suggestions and objections were invited as per the Notification 7th February 1989, the Government has as per Rule 2 in the Food Adulteration Rules 1955 in rule 60 and 61, the words 'Brominated Vegetables Oil' were inserted and further as per sub-rule (2) of Rule 2, the said amendment has remained in force upto 15th April 1990, considering the fact that Food Inspector has seized the Food articles from the Respondent on 5th December 1990 and even he has admitted that even the articles were manufactured and packed in the month of March 1990 and considering the report of the Public Analyst having found 'Brominated Vegetable Oil', the learned Magistrate has relying upon the Notification dated 29th March 1990 wherein the amendment to Rule 60 and 61 came into force by adding the words 'Brominated Vegetable Oil' and the said amendment came into force after 15th April 1990, the learned Magistrate has disposed of the application by returning these two articles in favour of Respondent. It is also to be noted that till then if the Complainant has not filed any complaint and there was no exception to the taking of the cognizance by the Magistrate and in view of the fact that the learned Magistrate has passed the order while disposing of the application under section 11(6) of the Act. As observed earlier, that the complainant has not filed complaint and the learned Magistrate has not taken cognizance and on an application filed by the complainant, the learned Magistrate has passed order while disposing of the application under section 11(6) of the Act and I have to observe that even at that stage the complainant has not joined any other person namely the Manufacturer and it is only subsequently when the complaint was filed the Manufacturer was joined. Before that the learned Magistrate has already disposed of the application being application No. 7 of 1991. In my view, the order of the learned Magistrate was based on notification issued by the Central Government dated 29th March 1990, by issuance of such notification B.V.O. was banned from 16th April 1990 and taking that view, the learned Magistrate was right in deciding the application Exhibit 7.

18. I have also to observe that though the learned Magistrate has passed order to return the seized food articles in favour of Respondent, Mr. Ganatra the learned counsel appearing for the Respondent has submitted that as the seized articles were manufactured in the month of March 1990 and considering the period of three years from March 1990, the said seized articles were expired in the month of March 1993 and even thereafter more than seven years have been elapsed, the Respondent is not interested in these articles. Accordingly, it will be in the fitness of things to direct the Applicant to destroy the said articles which were seized from the Respondent no. 1 on 5th December 1990. Accordingly, the rule is discharged. However, the order directing the return of articles in favour of Respondent no. 1 is set aside and it is ordered that the said articles seized on 5th December 1990 from the respondent no. 1 be destroyed within six weeks from today and the Food Inspector is directed to report the same to the concerned Magistrate immediately as well as to the Respondent no. 1 so also to the Manufacturer about the action taken by him by destroying the articles.

19. In view of the above, the above revision application is dismissed. Rule is discharged.

Revision dismissed.