Criminal Revision Application No.120 of 2003

4th March, 2015.

Petitioner Counsel: Mr. S.S. BORA
Respondent Counsel: Mr. V.P. KADAM

Cases Cited:
Suresh Ranghunath Gupte Vs. Taraknath Rajnarayan Mishra & Anr., 2001 ALL MR (Cri) 1996=2002 Bom. C.R. (Cri.) 236 [Para 4]
State of Maharashtra Vs. Bhaskar Rajeshwar Gangshettiwar & Ors., 2003 Bom. C.R. (Cri.) 1617 [Para 4]
State of Gujarat Vs. Prajapati Amratlal Natvarlal, 2008 Cri.L.J. 4065 (Guj) [Para 4]
State of Gujarat Vs. Mukeshkumar Mansukhlal Shah & Ors., 2009 (3) Crimes 259. (Guj) [Para 4]
Laxmandas Sarvottamdas Doshi & Co. Vs. State of Maharashtra, 1975 BCI (0) 73 [Para 4,12]
Delhi Administration Vs. Amar Chand, 2012 (4) Crimes 525 [Para 4,12,13]

JUDGMENT

JUDGMENT :- By filing the present Revision Application, the applicant is challenging his conviction and Order of sentence imposed upon him by the learned Chief Judicial Magistrate, Nanded dated 09/04/1999 in R.C.C. No. 564/1998. By the said Judgment, the applicant is convicted for the offence u/s 7 (i), 2 (ia)(a), 7 (v) read with Rule 29 punishable u/s 16 (1) (a) (ii) and 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954 [hereinafter referred as the 'Act' for the sake of brevity]. He was directed by the learned Chief Judicial Magistrate to suffer Simple Imprisonment for six months and pay fine of'1,000/-[Rupees One Thousand], in default to suffer Simple Imprisonment for one month. The Criminal Appeal No. 36/1999 filed by the applicant to challenge the Judgment and Order passed by the learned Chief Judicial Magistrate, is also dismissed by the learned Additional Sessions Judge, Nanded on 28/03/2003. Hence, the present Revision application.

2. Heard Mr.S.S.Bora, the learned counsel for the applicant and Mr. V.P. Kadam, the learned A.P.P. for the respondent - State in extenso. With their able assistance, I have gone through the record and proceedings.

3. The learned counsel for the applicant did not dispute the fact that the complainant gave visit to the establishment of the applicant by name " M/s Keshav Traders " situated at Taroda Naka, Nanded. He has also not disputed that on 24/02/1998, the complainant/Food Inspector purchased 'Moog Dal' for the purpose of sample from the shop of applicant.

4. The learned counsel for the applicant challenged the conviction of the applicant on following 2 grounds (i) that the complainant has committed breach of Rule 14 of the Prevention of Food Adulteration Rules, 1955 [hereinafter referred as the 'Rules' for the sake of brevity] made under the Act. According to the learned counsel, since the said Rule is mandatory in fraction on the part of the Food Inspector to follow the same, entails his acquittal and (ii) Another submission of the learned counsel is in respect of Rule 28 of the Rules. According to the learned counsel, ' Tartrazine ', a synthetic food colour can be used in the food. In order to substantiate his submission, he has relied on following reported cases

(1) Suresh Ranghunath Gupte Vs. Taraknath Rajnarayan Mishra & anr., 2002 Bom. C.R. (Cri.) 236 : [2001 ALL MR (Cri) 1996].

(2) State of Maharashtra Vs. Bhaskar Rajeshwar Gangshettiwar & Ors., 2003 Bom. C.R. (Cri.) 1617.

[both reported cases are from Bombay High Court].

(3) State of Gujarat Vs. Prajapati Amratlal Natvarlal 2008 Cri.L.J. 4065 [Gujarat High Court].

(4) State of Gujarat Vs. Mukeshkumar Mansukhlal Shah & Ors., 2009 (3) Crimes 259. [Gujarat High Court].

[The aforesaid decisions (3) and (4) were cited by the learned counsel to buttress his submission in respect of Rule 14 of the Rules ].

(5) Laxmandas Sarvottamdas Doshi & Co. Vs. State of Maharashtra, 1975 BCI (0) 73.

(6) Delhi Administration Vs. Amar Chand 2012 (4) Crimes 525

[These 2 cases, (5) and (6), were relied upon by the learned counsel in respect of Rule 28 of the Rules].

5. It is the submission of the learned counsel for the applicant that the evidence of complainant [P.W.1] is completely silent in respect of the procedure and the manner which he has followed while sending the sample for analysis. He, therefore, submitted that the present Revision Application needs to be allowed.

Per contra, the learned A.P.P. has submitted that both the Courts below have correctly evaluated the evidence brought on record in respect of Rule 14 of the Rules. He submitted that since the findings regarding the conviction of the applicant is based on the available evidence, the present Revision Application needs to be dismissed.

6. For appreciating the rival contentions, let us have a survey of Rule 14 of the Rules. Part V of the Rules deals with sealing, fastening and despatch of samples. The said part opens with Rule 14.

Rule 14 reads as under :

" Manner of sending samples for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed ".

7. The evidence of Prakash Dattatraya Patki [P.W.1], the complainant would reveal that on 24/02/1998 he made visit along with panch witness Maroti Nagoji Chunchunwad [P.W.2]. The applicant was present in the shop as the Proprietor. The complainant disclosed his identity as Food Inspector and his intention to take sample for the analysis. He found one big tin container of 'Moog Dal' kept for sale. He demanded 750 Gms. of 'Moog Dal' for sample purpose and analysis. He paid ' 18/and obtained receipt [Exh. 13]. Then he issued notice in Form No. 6 [Exh. 14] stating that food article was purchased for analysis. Thereafter, he issued notice u/s 14A of the Act [Exh. 15] to the applicant calling upon the information to disclose the name of the supplier. Then he prepared 3 equal parts of the purchased 'Moog Dal' and each part was taken in dry, clean and empty plastic jar, which was firmly corked. This is the evidence in respect of manner of sending the sample as contemplated under Rule 14 of the Rules.

Worth to note, the independent witness Maroti Nagoji Chunchunwad [P.W. 2], the panch witness did not support the prosecution.

8. From the available evidence on record, it is clear that the complainant [P.W.1] has stated that the samples were kept in clean and dry bottles. However, it is clear that after the purchase of sample, he did not immediately keep the said sample in clean and dry plastic jar. The evidence of the complainant would disclose that after drawing sample, firstly he proceeded to issue notice in Form No. 6 and notice u/s 14A of the Act to the applicant and thereafter he divided the sample in 3 equal parts and then each part was taken in dry, clean and empty plastic jar. The evidence of the complainant is completely silent, as to where it was kept after the purchase of the sample during the process of issuance of notice. It is not clear from the evidence as to whether the place at which the sample was divided in 3 equal parts was clean and dry.

9. The requirement as laid down under Rule 14 of the Rules is mandatory requirement and it is to be completely complied with. The evidence of the complainant is completely silent as to from where he has procured dry, clean and empty plastic jar, wherein the sample was kept by him. His evidence or the panchanama [Exh. 16] does not show that the jars were with him when he made visit to the shop of the applicant. It was obligatory on the prosecution to lead the positive evidence in respect of the compliance of Rule 14 of the Rules.

10. Further, in the cross examination, the complainant [P.W.1] has stated as under :

" I do not know which good was sold in weighing scale prior to using it for sample weighing ".

The evidence of the complainant is also silent that when he visited the shop of the applicant, the scale was with him. The evidence of the complainant is completely silent about the cleanliness of the scale.

11. In the present case, the report of the Public Analyst is at Exh. 29. The said report clearly reflect that the sample of 'Moog Dal' is in conformity with all standards. However, according to the said report, while testing for colour, the Public Analyst detected synthetic colour viz. 'Tartrazine'.

12. According to Rule 28 of the Rules, 'Tartrazine' can be used in foodgrains.

The learned A.P.P. submitted that Rule 29 of the Rules prohibits such synthetic colour in 'Moog Dal'. In the case of Laxmandas Sarvottamdas Doshi & Co. Vs. State of Maharashtra [cited supra], the food article was 'Tur Dal' and the report of Public Analyst also reveals that it was having 'Tartrazine', whereas in the case of Delhi Administration Vs. Amar Chand [cited supra], the food article was 'Dal Moth'. In paragraph 6 of the said Judgment, it is observed as under :

" Rule 28 of the PFA Rules permits use of certain synthetic food colours or mixtures thereof in food. One of the colours that is permissible to be used in food is yellow, commonly known as Tartrazine. Rule 29 prohibits use of permitted synthetic food colours in the food items other than those mentioned therein. Clause (b) thereof provides for use of permitted synthetic food colours including Tartrazine in the savouries such as Dal Moth etc. There is no dispute that Dal Moth is a foodgrain within the meaning of Article A.18.06 of Appendix B. Since there is no specific standard of Dal Moth mentioned in the Articles starting from A.18.06.01 to A.18.06.130, which prescribes standards for other foodgrains such as wheat, maize, jwarbazra, rice, masoor, urad, moong etc., Dal Moth would be covered under the residuary Article A.18.06.14 which prescribes standards for all other foodgrains which are not specified in the Articles A.18.06 to A.18.06.13. As per general standards of foodgrains as provided in A.18.06, the foodgrain was to be free from argemone maxicana and kesari in any form and also from added colouring matter. Beside this, there are other specifications with which we are not concerned. Now, having noted that Tartrazine being synthetic food colour and permissible in the food as per Rule 28 and Dal Moth which is undisputedly a food item, then, as per Rule 28, this is not a prohibited colour. Making a harmonious construction of provisions contained in Rule 28 and Article A.18.06, it may be said that Tartrazine though a synthetic food colour would not fall in the category of added colouring matter, which are prohibited in foodgrains ".

13. When the provisions of the Act and the Rules made thereunder are stringent, the compliance of the Rules is not only mandatory but it has to be observed strictly. In the present case, as found in the preceding paragraphs of this Judgment, the mandatory compliance of Rule 14 of the Rules was not adhered with strictly coupled with the fact that, as observed in the case of Delhi Administration Vs. Amar Chand [cited supra], on harmonious construction of the provisions in Rule 28 and Article A.18.06 of Appendix 'B' of the Rules, it can be said that 'Tartrazine' though a synthetic food colour, would not fall in the category of added colouring matter, which are prohibited in foodgrains.

14. Hence, I pass the following order :

(1) The present Revision Application is allowed.

(2) The Judgment and Order dated 09/04/1999 passed by the learned Chief Judicial Magistrate, Nanded in R.C.C. No. 564/1998 convicting the present applicant for the offence u/s 7 (i), 2 (ia)(a), 7 (v) read with Rule 29 punishable u/s 16 (1) (a) (ii) and 16 (1) (a) (i) of the Act together with the Judgment and Order dated 28/03/2003 passed by the learned Additional Sessions Judge, Nanded in Criminal Appeal No. 36/1999 are hereby quashed and set aside.

(3) The present applicant is acquitted for the offence u/s 7 (i), 2 (ia)(a), 7 (v) read with Rule 29 punishable u/s 16 (1) (a) (ii) and 16 (1) (a) (i) of the Act. His bail bonds stand cancelled. Fine amount paid by the applicant be refunded to him.

(4) Rule is made absolute.

Revision application allowed.