RAJESH KUMAR Vs. THE STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The revisionist was convicted in Criminal Case No. 824 of 1980 under Sections 7/16 P.F.A. Act by Ist Munsif Magistrate Bijnor on 18.11.81 and sentenced to undergo R.I. of one year and pay fine of Rs.1500.00 for selling adulterated ice candy. Criminal Appeal No. 1160 of 1981 filed by him was dismissed on 23.2.82 by Ist Additional Sessions Judge, Bijnor. He has now come to this Court in revision. Two points have been urged in this revision. The first is that there is violation of Rules 19 and 20 of the Rules framed under the P.F.A. Act, that the Public Analyst does not say that the un-permitted dye found in the ice-candy was injurious to health and, therefore, it is not a case in which the minimum sentence prescribed by Sections 7/16 of the P.F.A. Act should have been awarded. The sample was taken on 25.5.78 by the Food Inspector, Sri M.C. Sharma at about 8.00 A.M. The revisionist was running an ice candy factory. The Food Inspector after introducing himself purchased 90 gms. of ice candy, paid him 36 paise, obtained its receipt and also the signature of Jagpal Singh, who was accompanying the Food Inspector. he sent this sample for examination by the Public Analyst, who found it to be coloured with un-permitted coal tar dye namely Rhodamin-B. After the receipt of this report papers were submitted to the Chief Medical Officer, Bijnor who accorded permission to prosecute the revisionist and thereafter the complaint was filed. A copy of the report along with the required notice was also sent to the revisionist as required by Section 13 (2) of the Act. The trial court as well as the appellate court believed the prosecution version of the case. The contention of the revisionist was that he operates tempo, does not carry on ice candy factory that his signature was obtained by the Food Inspector as a witness and that he has been falsely implicated due to enmity was disbelieved. Rule 19 of the Rules framed under the P.F.A. Act says that "Any person taking sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis." This rule permits the Food Inspector to add a prescribed preservative to the sample but does not make it obligatory upon him to do so. Rule 20 of the aforesaid Rules lays down that "the preservative used in the case of samples of any milk including toned, separated and skimmed milk standardised milk chhenna, skimmed milk, chhenna cream, ice cream, mixed ice cream, ice candy, dahi, khoa or khoa based and paneer based sweets, such as Kalakand and Burfi chuteny and prepared foods, gur, prepared coffee and prepared tea in liquid and semi-liquid form shall add the liquid commonly known as "formalin" that is to say a liquid containing about 40 percent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams. The above Rule prescribes that the preservative which may be added to samples of milk etc. shall be formalin. Neither Rule 19 nor Rule 20 compels the Food Inspector to add any preservative to samples of milk etc. The articles of food mentioned in Rule 20 decompose quickly and if this is to be prevented and the articles are to be kept fit till they are analysed the prescribed preservative has to be added to the same in the required quantity. If no preservative is added the article is likely to decompose before the time it is analysed by the Public Analyst. In order to prevent decomposition addition of preservatives is prescribed in Rule 20. In Nagar Swastha Adhikari, Nagar Mahapalika, Agra Vs. Vishambher Nath, 1978 (15) ACC 401 (SC) , formalin added was found by the Director of Central Food Laboratory to be 1 ml. per 100 ml. of milk while it ought to have been of the strength of 4 ml. per 100 ml. of milk. The Court while taking all the facts into consideration and also the fact that fat contents found by the Public Analyst only one month and ten days after taking of the sample were very much more in excess and the report of the Director of Central Food Laboratory showing the same too have been reduced by 6% the probability of the analysis being affected by the lapse of a long period of over eight months and on account of lesser quantity of formalin being present cannot be in doubt. In that case the Public Analyst and the Director, Central Food Laboratory were required to report about the percentage of milk fat and milk solids not fat in the milk sample taken by the Food Inspector. In the instant case the Public Analyst was not required to report about the contents of milk fat and milk solids not fat. He has reported that un-permitted coal tar dye was used in the sample for colouring. No preservative has been prescribed in the Rules against possible disintegration of the dye due to lapse of time. It appears as to whether the sample contained un-permitted coal tar dye or not would not be effected by the addition or not addition of the preservative. The Food Inspector in his statement has no doubt admitted that he did not mix any formalin with the sample taken by him but that was not necessary as the fat content and solids non fat were not required to be analysed by the Public Analyst. He has reported as already stated about the use of the un-permitted coal tar dye and for giving that report addition or not addition of the formalin would not have effected the result of the analysis. It has also been argued that since the coal tar dye used in the ice candy cannot be said to be injurious for health, the minimum punishment is not required to be given. The courts below have awarded one year's R.I. and imposed Rs.1500.00 as fine. I think in the circumstances the sentence of 6 month's R.I. and fine of Rs.1000.00 would meet the ends of justice. The revision is dismissed on merits. The sentence awarded is, however, reduced to six months R.I. and fine of Rs.1000.00. In default of payment of fine the revisionist would undergo three months further R.I. The revisionist is under custody. He would serve out the sentence awarded by this Court. Revision Dismissed.