BANWARI LAL Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted under Sections 7/15 of the Prevention of Food Adulteration Act and sentenced to 6 months' R.I. and a fine of Rs. 1000',-. His conviction and sentence has been maintained in appeal by the Addl. Sessions Judge, Kanpur. Hence this revision. I have heard learned counsel for the applicant and have also perused the impugned orders and the relevant documents on the record. According to the prosecution case, the Food Inspector visited the sweet meet shop of the applicant on August 24, 1976 at 10 A.M., and after disclosing his identity, he purchased half Kg. of Khoya Barfi on payment of price in accordance with the procedure prescribed by law. THE sample was divided into three parts, bottled and sealed. One sample phial was sent for analysis to the Public Analyst, whost report disclosed that the sample was coloured with two coal tar dyes, viz. Tetrazine and the other blue V.R.S. THE latter dye was prohibited. As such the sample was adulterated. After obtaining sanction the applicant has been prosecuted and convicted as above. Two points have been argued by learned counsel for the applicant. His first submission is that there has been a non-compliance of Rule 20 of the Prevention of Food Adulteration Rules inasmuch as the Food Inspector failed to mix formalin with the sample of Khoya Barfi in order to preserve its constituents and to ensure a fair analysis of the sample. In order to consider this submission, it is necessary to quote Rule 20 of the Prevention of Food Adulteration Rules, which is as follows: "20; Preservative in respect of milk, cream, ice cream, mixed ice cream, ice candy (Lahi, Khoa) and Gur. - THE preservative used in the case of samples of any milk (including toned, separated and Skimmed milk) standardised milk, Channa, skimmed milk Channa, cream, ice cream, mixed ice cream, ice candy, Dahi, Khoa and Gur, in liquid or semi liquid form shall be the liquid commonly known as 'formalin', that is to say, a liquid containing about 40 per cent, of formaldehyde in aqueous solution in the proportion of 3.1 Ml. (two drops) for 25 Ml. or 25 grams.)" THE mere reading of this rule indicates that formalin is required to be mixed with Khoya when it is in a liquid or semi liqiud form. Khoya Barfi which was purchased by the Food Inspector was neither in liquid or in semi liquid form. It was in a solidified state when it was sold. As such this rule would not be applicable in the instant case. A similar view has been expressed by the Delhi High Court in Annand Kishore and another v. State, (1979 prevention of Food Adulteration Cases page 20). THErein also it has been held that 'Khoya Pera is neither liquid nor semi liquid. No preservative is separately prescribed under the rules for Khoya Pera.........Pera contained sugar which itself was its preservative. Moreover what was to be examined by the Public Analyst or the Central Food Laboratory was the presence of an unpermitted coal tar dye and certainly no preservative has been prescribed in the rules against possible disintegration of the dye due to lapse of time.........the grievance in respect of violation of the rules is unfounded." Agreeing with the above view I hereby repel the first contention raised on behalf of the applicant. Secondly it is argued that coal tar dye blue V.R.S. is not permitted under the rules. In this connection learned counsel has referred to Rule 28 of the Prevention of Food Adulteration Rules as stood prior to its amendment in 1973. Rule 28 (unamended) prescribed the coal tar dye which may be used for colouring matter in articles of food. Item No. 3 was as follows; amended rule as quoted above was applicable. On comparing the old and the new rules, cited above, it is clear that blue VRS which had been included in the new rules. THErefore, it would not be correct to urge that the coal tar dye blue VRS .was a permitted dye and could be used for colouring items of food. Far the reasons given above, I do not find any substance even in the second submission made on behalf of the applicant. Both the courts below have, on a consideration of the evidence on the record and the circumstances of the case have come to the conclusion that the Khoya Barfi in question was mixed with an unpermitted coal tar dye and as such the guilt of the accused was fully established. I do not find any illegality or perversity in the findings recorded by the subordinate courts. A sentence of six months' R.I. and a fine of Rs. 1,000 is the minimum that can be levied in the circumstances of the case. THEre is no merit in this revision which is hereby dismissed. THE applicant is on bail. He shall be taken into custody forthwith to serve out the unexpired portion of the sentence of imprisonment. THE interim order passed by this court on November 22, 1977 staying realization of fine is also vacated.