STATE, BY PUBLIC PROSECUTOR Vs. N. KESAVAN

JUDGEMENT

(1.) This is an appeal against the judgment of the learned Sub Divisional Judicial Magistrate, Sattur, acquitting the accused in C.C. No. 80 of 1976 on his file, against whom a complaint was filed by the Food Inspector, Thiruthangal Town Panchayat, for an offence under Sections 7(1) and 2(l)(i) of the Prevention of Food Adulteration Act, 1954, (to be referred to hereinafter as the Act) and Rule 28 of the Prevention of Food Adulteration Rules, 1955 (to be referred to hereafter as the Rules), punishable under Sec. 16(U(a)(i) of the Act, on the allegation that on 26th Feb. 1976, at about 9-30 A.M at door No. 317, Sivakasi-Virudhunagar Road, Thiruthangal, I he was in possession of Jeera Poori, a prepared sweet which was fit for human consumption and intended for sale to the public, and on analysis, it was found to be adulterated, containing 20.0 mgs. of metanil yellow per 100 grams of sample. A complaint was laid because the metanil yellow is a coal tar dye, the use of which in any food is not permitted.

(2.) On 26th Feb., 1976, at about 9.30 A.M., P.W. 1 who is the Food Inspector attached to Thiruthangal Town Panchayat, visited the hotel of the accused and found the accused having in his possession Jeera poori exhibited for sale. Jeera puri is a sweetmeat intended for human consumption, P.W. 1 demanded and purchased 600 grams of jeera poori for analysis and served Form VI notice (Ex.Pl) on the accused. The accused sold 600 grans of jeera Poori to P.W. 1 for a sum of Rs 3.15 and gave the cash receipt, Ex. P 2. P.W. 1 divided the sample into three equal parts and placed each of the j parts in three clean dry bottles, corked them, tied them with twine, sealed them with his official seal and pasted the label bearing No. 68 on each of the bottles. He again wrapped the bottles in brown paper, tied them with twine affixed his seal, pasted a lable bearing No. 68 to each bottle, and gave one bottle to the accused under an acknowledgement, Ex. P 3. Another bottle was sent along with Form VII notice to the Analyst for analysis. The Analyst-sent Ex. P4 reporting that the sample was artificially coloured by the addition of metanil yellow, a water soluble yellow coal tar dye which is not in the list of permitted coal tar dyes to be used in food. He also stated that R. 28 of the PF.A. Rules, 1955, prohibits the addition to food of any coal tar dye other than those permitted therein.

(3.) The accused, however, denied the offence, and pleaded not guilty to the charge frame i under Sections 7 (11 and 2 (1) (i) of the Act and R. 28 of the Rules, punishable under section 16 (I) (a) (i) of the Act. R. 22 of the Rules specifies in a table annexed thereto the quantity of sample food to be sent to the Public Analyst or Director for analysis. Item 14 therein is "prepared food ' and the approximate quantity of the same to be supplied to the public analyst or Director for analysis is noted as 500 grams. Since only 200 grams were sent for analysis, the learned Sub-Divisional Judicial Magistrate, relying on a decision of the Supreme Court in Rajal Das G. Pamanani Vs. State of Maharashtra, 1975 (1) FAC 1 acquitted the accused. However, in State of Kerala Vs. Alassery Mohammed, 1978 (1) FAC 145 the Supreme Court has considered the question whether R. 22 of the Rules is directory or mandatory and observed that :