“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Crl.Rev.Pet.No. 1328 of 2002() ------------------------------ CRA.305/2000 of ADDL. SESSIONS COURT (ADHOC),FAST TRACK -I, THRISSUR CC.97/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------- K.S. RAJAN, S/O. SREEDHARAN, KARANATTU VEEDU, PANTHALLOOR, NELLAI, THRISSUR DISTRICT. BY ADV. SRI.P.M.SEBASTIAN SRI.SHEJI P.ABRAHAM SRI.SANTHOSH SUBRAMANIAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: ------------------------------------------------------ 1. FOOD INSPECTOR, CHALAKKUDY CIRCLE, CHALAKKUDY. 2. STATE OF KERLALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 1328 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th September, 2011 O R D E R Ramkumar, J. This revision comes up for consideration before us on a reference made by a learned Judge, Justice M. Sasidharan Nambiar. According to the learned Judge, decisions of this Court in Food Inspector V. Sivarama Menon (1990(1) KLT 393) and Beena V. State of Kerala (2010(2) KLT SN 17 (Case No.21) were rendered without adverting to an earlier decision of this Court in Krishnankutty Nair V. George (1986 KLT 871) and the ratio in those two decisions (Food Inspector V. Sivarama Menon (Supra) and Beena V. State of Kerala (Supra)) as well as the ratio in an unreported decision in Crl.R.P. No.140/1977 holding the view that the presence of talc (Magnesium silicate), which is neither a colouring matter nor a pigment in the very same food grain namely, black gram dhal, does not attract the prohibition under Rule 27 of the Prevention of Food Adulteration Rules, CRRP 1328/2002 2 1955 (the Rules for short) is ignoring the fact that even if talc is not a colouring matter or a pigment, talc is not a permitted inorganic matter as per the Explanation to the standard in A.18.06 in Appendix B to the Rules. 2. We heard Advocate Sri.Santhosh Subramanian, the learned counsel appearing for the revision petitioner and Advocate Sri. M.S. Breeze, the learned Public Prosecutor. THE PROSECUTION CASE 3. The facts leading to this revision are the following:- On 4-3-1994 at 4.45 p.m., the complainant namely, the Food Inspector, Chalakudy Circle (examined in this case as PW1) visited the revision petitioner's shop by name “Janatha Stores” at Nellai and purchased, for the purpose of analysis, 750 grams of black gram dhall (urd whole without husk), after duly complying with the formalities prescribed under the Prevention of Food Adulteration Act, 1954 (“the Act” for short) and the Rules. One part of the sample of the said food article, on analysis by the Public Analyst, was found as per Ext.P12 Form III report to be adulterated, since the sample of black gram dhall was CRRP 1328/2002 3 found coated with talc (Magnesium silicate) described as an inorganic pigment. 4. The Judicial Magistrate of the First Class, Irinjalakuda after trial, as per judgment dated 31-5-2000 found the revision petitioner guilty of the offence punishable under section 16(1)(a)(i) of the Act and sentenced him to undergo simple imprisonment for six months and to pay fine of 1,000/- and on default to pay the fine, to suffer simple imprisonment for two months. On appeal preferred by the revision petitioner before the Additional Sessions Court, Thrissur, the lower appellate court as per judgment dated 27-9-2002 dismissed the appeal confirming the conviction entered and sentence passed against the revision petitioner. It is pertinent to note that the only point which was urged before the lower appellate court, was that the sampling done by PW1 Food Inspector was not proper. Aggrieved by the concurrent orders convicting the revision petitioner for the above offence, he has preferred the present revision. 5. The only point, which arises for consideration in CRRP 1328/2002 4 this revision, is as to whether the conviction entered and sentence passed against the revision petitioner are sustainable or not. THE POINT 6. Even though the only point urged before the lower appellate court was that the sampling made by the Food Inspector was not proper and that court has repelled the said contention on merit, in all fairness to the counsel for the revision petitioner as well as to the referring Judge we propose to consider the contention urged on behalf of the revision petitioner in this revision that talc ((Magnesium silicate) is neither a colouring matter nor a pigment so as to attract Rule 27 of the Rules and that it being an inorganic substance the contents of which was found below 1%, the sample purchased from the revision petitioner is not adulterated. ARGUMENTS FOR THE ACCUSED 7. Besides relying upon an unreported order dated 11-8-1978 in Cr.R.P.No.140/1977 and Food Inspector V. Sivarama Menon (Supra) and Beena V. State of Kerala CRRP 1328/2002 5 (Supra), the learned counsel appearing for the revision petitioner made the following submissions before us in support of his contention:- Even though the expression “primary food” as defined under Section 2 (xiia) of the Act means any article of food being a produce of agriculture or horticulture in its natural form, it has been held in State of Kerala V. Thankappan (1982 KLT 343) that articles of food such as food grains, pulses, cereals etc. takes their edible form only when dehusked. In other words, food grains, pulses or cereals can be considered to be primary food in edible form only after the outer covering has been removed by dehusking. To put it differently, the process of milling for the purpose of dehusking is an inevitable process to render the article of food edible as a primary food. Blackgram is extensively grown in the Deccan area. Magnesium Silicate (talc) is an inorganic matter which is included in the lumps of earth, clay and mud. There is , therefore, every possibility of the said inorganic matter also getting pulverized in the de-husking process and getting CRRP 1328/2002 6 mixed with the black gram dhal. If the presence of such magnesium silicate is within 1% by weight of the sample, as in this case, the sample cannot be held to be adulterated. At page 200 of Volume 9 of Encyclopedia Britannica (India), “talc” is described as a common silicate mineral found with other rock forming minerals. Again at page 56 “silicon” is described as a non-metallic to semi metallic chemical element and found in abundance in the Earth's crust. At page 137 of Volume 6 of Encyclopedia Britannica (India), it is observed that “magnesium” which is a chemical element does not occur free in nature but as compounds such as sulphates, oxides and carbonates. Likewise, the meaning of the word “magnesium” and the meaning of the word “silicon” given at pages 862 and 1327 of Webster's Encyclopedic Unabridged Dictionary of the English language confirm s the above fact. Thus, “magnesium silicate” which is an inorganic substance if present within 1% by weight of the blackgram whole , is liable to be ignored. Since magnesium silicate is not a colouring agent or a pigment as held in the CRRP 1328/2002 7 decisions cited, Rule 27 of the Rules is also not attracted. The conviction entered and the sentence passed against the revision petitioner overlooking the above legal position cannot be sustained. JUDICIAL EVALUATION 8. We are afraid that we find ourselves unable to agree with the above submissions. Before considering the decisions cited on behalf of the revision petitioner and also the decision in Krishnankutty Nair V. George (Supra) made mention of in the reference order, it is necessary to consider the relevant standards which were in vogue when those decisions were rendered. 9. Prior to 29-11-1991 all food grains were clubbed under one standard namely, A.18.06 of Appendix B to the Rules. The said standard read as follows:- “A. 18.06 - FOODGRAINS meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. Paddy is included in food grains and shall have different limits for refractions wherever specified. Food grains meant for human consumption shall conform to the following standards: (i) General - Food grains shall be free from CRRP 1328/2002 8 deleterious material including artificial matter. The pesticide residue, if any, shall not exceed the prescribed permissible limit. (Bajra and wheat grain shall not contain ergot affected grains more than 0.05 per cent by weight). (ii) Foreign matter - Foreign matter means any extraneous matter other than food grains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud shall not exceed 1 per cent whereas in case of paddy, it shall not exceed 3 per cent by weight. Organic matter which includes chaff, straw, weed seeds, inedible grain, oilseeds and other non- poisonous seeds shall not exceed 3 per cent by weight. iii) Damaged grain - Damaged grain means grains damaged by fungus, moisture or heating and wherein the damage is not superficial but the grain is affected internally, it shall not exceed 5 per cent by weight. iv) Insect damage - The amount of weevilled grains (by count) shall not be more than 10 per cent or Uric Acid content arising as a result of insect damage shall not exceed 10 milligrammes per 100 grammes, whichever is lower. v) Rodent hair and excreta - Rodent hair and excreta shall not exceed 5 pieces per kg. of the sample. vi) Moisture - The loss in weight by heating the CRRP 1328/2002 9 pulverised food grains at 130o - 133o C for two hours shall not exceed 16 per cent” (emphasis supplied) But with effect from 29-11-1991, over and above A.18.06, which itself was revised, separate standards were fixed for 13 items of specific food grains which are wheat, maize, jawar and bajra etc. including “urd whole”. The standard for “urd whole” was fixed under A.18.06.06. A.18.06 as substituted with effect from 29-11-1991 reads as follows:- “(A.18.06) - food grains meant for human consumption shall be whole or broken kernels of cereals, millets an pulses. In addition to the undermentioned standards to which food grains shall conform, they shall be free from argemone, maxicana and kesari in any form. They shall be free from added colouring matter. The food grains shall not contain any insecticide residues other than those specified in column (2) of table or rule 65 and the amount insecticide residue in the food grains shall not exceed the limits specified in column (4) of the said Table.” The standard which was fixed for “urd whole” was A.18.06.06, which reads as follows:- “(A.18.06.06) - - Urd whole - Urd whole shall consist of seeds of the pulses (phaseolus mungo Linn). It shall be sound, dry, sweet and wholesome. It shall also conform to the CRRP 1328/2002 10 following standards, namely: (i) Moisture - Not more than 14 per cent. by weight (obtained by heating the pulverised grains at 1300 C to 1330 C for two hours. ii) Foreign matter - Not more than 3 per cent. by weight out of which inorganic matter shall not exceed 1 per cent. by weight. iii) Other edible grains - Nor more than 4 per cent by weight. iv) Damaged grains - Nor more than 5 per cent. by weight. v) Weevilled grains - Not more than 6 per cent. by weight. vi) Uric acid - Nor more than 10 mg. per kg. vii) Mycotoxin including aflatoxin - Not more than 30 micrograms per kilogram. Provided that the total of foreign matter , other edible grains and damaged grains shall not exceed 9 per cent. by weight” (emphasis supplied). 10. After laying down standards for the 13 items of food grains as A.18.06.01 to A.18.06.13, a residuary standard was fixed as A.18.06.14 for those food grains not covered by A.18.06.01 to A.18.06.13. After A.18.06.14, an Explanation was added as follows:- CRRP 1328/2002 11 “Explanation - For the purposes of items 18.06 to 18.06.14: a) “foreign matter” means any extraneous matter other than food grains comprising of:- i) inorganic matter consisting of metallic pieces, sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud, animal filth and in the case of rice, kernels or pieces of kernels, if any, having mud sticking on the surface of the rice, and ii) organic matter consisting of husk, straws, weed seeds and other inedible grains and also paddy in the case of rice. b) “poisonous, toxic and/or harmful seeds” means by seeds which if present in quantities above permissible limit may have damaging or dangerous effect on health, organoleptic properties or technological performance such as dhatura (D.fastur linn and D. stramonium linn), corn cokle (Agrestamma gtrhaga, Machai Lallium remulenum linn), Akra (Victa species). (c ) “Damaged grains” means kernel or pieces of kernels that are sprouted or internally damaged as a result of heat, microbe, moisture or weather, viz., ergot affected grain and kernel bunt grains. (d) “Weevilled grains”: means kernels that are partially or wholly bored by insects injurious to grains but does not include germ eaten grains and egg spotted grains. CRRP 1328/2002 12 (e) “Other edible grains” means any edible grains (including oil seeds) other than the one which is under consideration”. (emphasiz supplied). 11. Thus, with effect from 29-11-1991 “inorganic matter”, which is a component of “foreign matter” in all food grains (other than rice) covered by A.18.06 to A.18.06.14, can only be metalic pieces, sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud and animal filth. In the case of “urd whole” for which the standard is A.18.06.06, inorganic matter in the foreign matter should not exceed 1% by weight. This means that any of the inorganic matters enumerated under the Explanation above can be present and that too up to 1% by weight and not more than that. Since the Explanation does not take in “talc” as one of the inorganic matter which any of the food grains can consist of, even if talc is present below the permissible limit of 1% by weight, the same is liable to be ignored. This is because “talc” is not a permitted inorganic matter under the Explanation referred to above. In other words, if any of the food grains contains “talc”, whatever be CRRP 1328/2002 13 its percentage, the same can only be held to be an extraneous substance added without any authority. 12. In Crl.R.P. No.140/1977 the black gram dhal was purchased on 17-8-1974 at a time when there was only a common standard for all food grains namely, A.18.06 and inorganic matter, which was a component of foreign matter, defined under Clause (ii) thereunder was an inclusive definition which would not exhaust the various items mentioned therein. In other words, it was open for the accused to content that “talc” also could fall under the inorganic matter prior to 29-11-1991. It was when the above standard was in vogue that Justice Subramonian Poti relying on the Encyclopedia of Chemical Technology, Volume 13 and Thorpe's Dictionary of Applied Chemistry Volume VII held that talc is neither a colouring matter nor a pigment and therefore the presence of 0.8% talc in the sample of black gram dhal would not attract the prohibition under Rule 27 of the Rules. The above view based on scientific data was taken in disagreement with the opinion of Public Analyst in that case that talc was added as a CRRP 1328/2002 14 colouring matter in the black gram dhal. On that view of the matter, the conviction concurrently entered by the courts below was set aside and the accused persons were acquitted. 13. In Krishnankutty Nair's case (Supra) also the black gram dhal was purchased in the year 1981 i.e., long before the amendment which came into effect from 29-11- 1991. The Public Analyst opined that the sample in that case contained 0.7% by weight of “talc” (magnesium silicate) an inorganic pigment and was therefore adulterated. The accused took up the defence under section 19 of the Act to contend that he had purchased black gram dhal from a wholesaler under a warranty. Thereupon the Food Inspector sought impleadment of the warrantor under section 20A of the Act. The Magistrate disallowed the said request of the Food Inspector. Assailing the order of the Magistrate, the Food Inspector appealed to this Court. During the hearing of the appeal, the accused contended that since the percentage of “talc” (which is an inorganic matter) in the sample was less than 1%, it was within the CRRP 1328/2002 15 permissible limits as stipulated in clause (ii) of 18.06 of Appendix B of the Rules wherein the words “foreign matter” were defined. The said contention of the accused was repelled by Justice Sreedharan holding inter alia that even if the said clause (ii) contained an inclusive definition of inorganic matter so as to hold that “talc” also could be included in the definition, inorganic and organic matters taken in by clause (ii) had to be of natural origin and not articles of human creation. It was further held that since the Public Analyst had opined that the talc was an inorganic pigment, the food article was kept for sale in breach of Rule 27 as well. The appeal was accordingly allowed permitting the Food Inspector to implead the warrantor and directing that the trial shall be conducted afresh. 14. In Food Inspector V. Sivarama Menon (Supra) the purchase of black gram dhal was in the year 1986 i.e., long before the amendment. The Public Analyst opined that since the sample contained 0.34 percentage of “talc” (magnesium silicate) which is an inorganic pigment, it is adulterated. The Magistrate, however, acquitted the accused holding CRRP 1328/2002 16 inter alia that since the percentage of “talc” which is an inorganic matter was less than 1% and therefore within the permissible limits prescribed by clause (ii) of A.18.06 as it stood then, and also since “talc” was not a pigment or colouring agent, Rule 27 of the Rules was not attracted. In the appeal against acquittal, filed by the Food Inspector, Justice K.G. Balakrishnan relying on the decision in Crl.R.P. No.140/1977 and also adverting to the Condensed Chemical Dictionary, 10th Edition by Gessner G. Hawley held that “talc” is neither a colouring agent nor a pigment so as to attract Rule 27 and since the presence of “talc” was within the permissible limit of 1%, there was no adulteration. The appeal by the Food Inspector was accordingly dismissed. 15. In Beena's case (Supra) the black gram dhal (split pulse of urd) was purchased on 16-9-2004, which is long after the amendment which came into effect on 29-11-1991. The Public Analyst opined that since the sample is coated with an inorganic matter namely, talc, it is miss-branded as per Section 2(ix)(d) of the Act. On the accused exercising the right under section 13(2) of the Act, the second sample CRRP 1328/2002 17 was dispatched to the Central Food Laboratory which also arrived at the same opinion as that of the Public Analyst. Thereupon the accused filed Crl.M.C. No.2537/2006 before this Court for quashing the proceedings on the ground that presence of “talc” in the urd whole (black gram dhal) would not contravene Rule 27 of the Rules. Justice Sasidharan Nambiar accepted the contention of the accused and relying on the decision Food Inspector V. Sivarama Menon (Supra) quashed the proceedings. 16. While Crl.R.P. No.140/1977 and Food Inspector V. Sivarama Menon (Supra) were decided at a time when the standard fixed for food grans was the one existing prior to 29-11-1991, the purchase of food article in Beena's case (Supra) was long after the amendment of the standard to which the Explanation referred to earlier was applicable. Since “talc” does not figure among the items enumerated under “inorganic matter” covered by the Explanation, the question as to whether “talc” is a colouring agent or pigment was really irrelevant for consideration in Beena's case. Going by the Explanation applicable to A.18.06 to CRRP 1328/2002 18 A.18.06.14, “talc” is not a permitted inorganic matter which could be present in the food grain kept for sale after 29-11-1991. It is presumably because of this reason that the very same learned Judge has made the present reference for the obvious reason that the learned Judge while deciding Beena's case (Supra), had overlooked the applicability of the Explanation to the facts of that case. We are of the view that the learned Judge is fully justified in entertaining the doubt as to whether “talc” can be treated as one of the permitted inorganic matter. 17. We are not impressed by the argument of the learned counsel for the revision petitioner that magnesium silicate (talc) is an inorganic matter occurring in lumps of earth or clay in areas where black gram is cultivated and therefore during the harvest such lumps of earth or clay containing talc may get into the pulverizer along with the black gram during the de-husking process thereby accounting for its presence in the de-husked black gram whole. There is no material produced before us to show that “talc” is usually found in the soil where black gram CRRP 1328/2002 19 cultivation is raised, so as to merit acceptance of the revision petitioner's contention. On the contrary, page 200 of Volume 9 of Encyclopedia Britannica (India) containing the meaning of “talc”, it is stated that “talc” is used as a filler in ceramics, paint, paper, roofing materials, plastic and rubber; talc is used as a carrier in insecticides; talc is used as a mild abrasive in the polishing of cereal grains. This reinforces our conclusion that ”talc” is an added matter involving human intervention When as per the Explanation referred to above “talc” does not constitute an item of inorganic matter which the food grains covered by A.18.06 to A.18.06.14, can comprise of, it is idle for the revision petitioner to contend that if the presence of “talc” in the food grains is below 1% by weight, there is no adulteration. Hence even if it can be held that “talc” is not a colouring agent or a pigment so as to attract Rule 27 of the Rules, since “talc” is not a permitted inorganic matter, its presence, even if it is below 1% by weight, is not permitted. Hence the presence of “talc” in the sample in question even if below 1% by weight renders the sample adulterated. We CRRP 1328/2002 20 therefore answer the reference as follows:- After 29-11-1991 “talc” which is magnesium silicate is not one of the permitted inorganic matter which can be present as a foreign matter in all food grains, in view of the Explanation made applicable to standards A.18.06 to A.18.06.14 of Appendix B of the Rules. That being the position, any food grains containing “talc” even if below 1% by weight will be deemed to be adulterated. We, therefore, hold that Beena's case (Supra) was wrongly decided and the said case is hereby overruled. 18. In view of the above legal position, the conviction entered and the sentence passed against the revision petitioner, although for different reasons, do not warrant any interference by this Court. This revision petition is accordingly dismissed. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn