Criminal Revision No. 1788 of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No. 1788 of 2002 Date of Decision: April 28, 2009 Subhash ...........Petitioner Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Ashish Aggarwal, Advocate for the petitioner. Mr.Sidharath Sarup, Assistant Advocate General, Haryana Sabina, J. Petitioner was convicted for an offence under Section 16(1) (a)(i) of the Prevention of Food Adulteration Act, 1954 (for short `the Act') vide judgment dated 12.5.2000. Vide order of even date, the petitioner was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.1000/- by the Chief Judicial Magistrate, Panipat.. Aggrieved by the same, petitioner filed an appeal, which was dismissed by the Additional Sessions Judge, Panipat vide judgment dated 3.9.2002. Hence, the present revision petition. The case of the prosecution, as noticed by the appellate Court in paras 2 and 3 of its judgment, is reproduced here in below:- “ According to the allegations on 15.2.1993 at about 11.30 A.M., Govt. Food Inspector Shri A.N. Sharma accompanied by Doctor Criminal Revision No. 1788 of 2002 2 V.K.Malhotra inspected the premises of appellant at Devi Mandir road and found in his possession 15 kgs. of Guldana for public sale contained in a Thal. After disclosing his identity and serving notice in form VI, Ex.PA, Food Inspector demanded a sample of the article. He purchased 600 grams of the article after mixing the whole contents properly and made uniform, for analysis, against payment of Rs.9/- vide receipt Ex.PB. The article so purchased divided into three equal parts and put into three separate bottles which were stoppered, packed, securely fastened, wrapped and sealed on the neck with the seal of the Medical Officer. The bottles were then wrapped in a strong thick paper from top to bottom with the paper slip of the Local Health Authority, Panipat. The bottles were secured by means of strong twine and sealed with the seals of the Medical officer and Govt. Food Inspector. The sample was taken in the presence of a witness of the public namely Raghbir Singh. The spot memo Ex.PC was prepared. The signatures of the appellant and all the witnesses were obtained on all the memos Ex.PA to Ex.PC. 3. It was further alleged that one sealed bottle along with form- VII with specimen impressions of the seals used to seal the bottle was sent to the Public Analyst, Haryana, for analysis, through railway parcel. Another copy of the memo along with the seal impressions was sent separately by registered post to the Public Analyst, Haryana. Two sealed sample bottles/packets along with two copies of memo on Form-VII were deposited with the Local Criminal Revision No. 1788 of 2002 3 health Authority, Panipat. After receipt of the report of the Public Analyst, the article was found coloured with unpermitted orange coal tar dye and as such, the sample was found to be adulterated. After launching the complaint in the court, a copy of the report of the Public Analyst was sent to the appellant by the Local Health Authority.” Learned counsel for the petitioner has submitted that under rule 28-A and clause A of 26.02 of the Prevention of Food Adulteration Rules 1954 (`the Rules' for short) , no offence under the Act was made out. Reliance has been placed on a decision of the Court in Subhash Taneja vs. State of Haryana 1988(I) PB&HR 169. Learned State counsel, on the other hand, has submitted that as per the report of the Public Analyst, unpermitted orange coal tar dye has been used in Guldana and hence, the petitioner has been rightly convicted and sentenced by the Courts below. Rule 28 of the Rules reads as under:- [28[[Synthetic food colours]] which may be used.- No [[synthetic food colours]] or a mixture thereof except the following shall be used in food: _____________________________________________________________ S.No. Colour Common name Colour Index(1956) Chemical Class _____________________________________________________________ 1 2 3 4 5 1. Red Ponceau 4R 16255 Azo Carmoisine 14720 Azo Erythrosine 45430 Xanthene 2. Yellow Tartrazine 19140 Pyrazolone Sunset Yellow FCF 15985 Azo Criminal Revision No. 1788 of 2002 4 3. Blue Indigo Carmine 73015 Indigoid Brilliant Blue FCF 42090 Triarylmethane 4. Green Fast Green FCF 42053 Triarylmethane]] _____________________________________________________________ As per Appendix A Clause A 26.02 rules reads as under:- “[A.26.02-SUNSET YELLOW: Common Name Sunset Yellow Synonyms FD and C Yellow No.6 Janus Orange S, C.I.Food Yellow 3, Orange 2, Janune soil, EEC Serial No.E.10 Colour of 0.1 per cent Orange (M/V) solution in distilled water” A reading of the above reveals that the use of orange coal tar dye has not been prohibited under the Act. Public Analyst, however, has given his opinion vide Exhibit PD that the sample was coloured with unpermitted orange coal tar dye. In Subhash Taneja's case (supra), in para 3, it was held as under:- “3. It is contended on behalf of the petitioner that the use of orange if Coaltar dye has not been prohibited under the Act or the Rules framed thereunder. As such, the petitioner is not shown to have committed any offence under the Act. This contention is not without foundation. Rule 28 of the Prevention of Food Adulteration Rules shows that use of Sunset Yellow FCF Coaltar dye is permissible. Rule A.26.02 indicates that Sunset Yellow FCF dye is also known as Orange II Coaltar dye. It is,therefore, not understood as to on what data the Public Analyst has given the opinion that the sample contained unpermitted dye. Even otherwise the following observation of this Court in Criminal Criminal Revision No. 1788 of 2002 5 Revision No. 705 of 1981 Maya Ram vs. The State of Punjab, decided on July 15,1983 are pertinent:- “Thus the 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 Anayst's report as to how he has come to the conclusion that the coal tar dye was non-permitted. It has already 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 dye pertaining to red colour. As is plain, no such effect was made. Thus, the report of Public Analyst cannot be taken as the gospel truth and outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind, it would be in the nature of abdication of judicial functions. It is to be borne in mind that a 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 to a sizeable section of the people who are no-experts.” Public Analyst has not furnished any material to support his opinion that the unpermitted orange coal tar dye has been used in the sample. In these circumstances, the Courts below have erred in convicting and sentencing the petitioner for offence under Section 16(1)(a)(i) of the Act. Accordingly, this petition is allowed. Judgments of the Criminal Revision No. 1788 of 2002 6 Courts below are set aside. Petitioner is acquitted of the charge framed against him. (Sabina) Judge April 28,2009 arya