M.S. Nesargi, J.
1. The petitioner has challenged the correctness and legality of the conviction and sentence passed on him by the First Class Magistrate. Raichur in C.C. No. 1183 of 1970, and confirmed by the Sessions Judge, Raichur in Criminal Appeal No. 13 of 1972. The petitioner has been convicted for having committed an offence punishable under Section 7 read with Section 16(1) of the Prevention of Food Adulteration Act (to be hereinafter referred to as the 'Act') and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for a further period of six months.
2. As it was found that, even after conviction of the petitioner, the petitioner had not made State a party respondent in this revision petition, I directed Sri M. Ramakrishna Government Pleader who is present in court in connection with other matters to take notice of this petition and argue on behalf of the State. He obliged the court by taking notice immediately and argued on behalf of the State.
3. The prosecution case is that at about 2-30 P.M. or 3-00 P.M. on 7.2.1970 P.W. 1 the Food Inspector went to the shop of the petitioner. The petitioner is a retail dealer in grocery, articles P.W. 1 called P.W. 2 Mahaboob and another person by name Abdul who were nearby to witness his purchasing sample of Toor Dal froth the petitioner P.W. 1 issued notice as per Ex. P-1 to the petitioner that he was going to purchase sample of Toor Dal for purposes of getting the same analysed by a Public Analyst. The petitioner received the notice Ex. P-1. Then P.W. 1 purchased 600 grams of Toor Dal by paying 0-96 P. the price of the same to the petitioner. The petitioner issued receipt Ex. P-2 for having received 0-96 P. for the sale of 600 grams of Toor Dal. Then P.W. 1 got a panchanama recorded as per Ex. P-3. That panchanama is in regard to dividing of the sample of 600 grams into three packets and sealing the same and handing over one of the sealed packets to the petitioner. The two panchas P.W. 2 Mahaboob and Abdul Salam as well as the petitioner affixed their thumb impressions or signatures as the case may be on Ex. P-3. The panchanama Ex. P-3 was recorded in the presence of all these persons. Thereafter P.W. 1 sent one of the sealed sample packets to the Public Analyst at Bangalore, who sent his report as per Ex. P-6 stating that the Toor Dal analysed by him contained prohibited colouring. It is on receipt of this report that P.W. 1 lodged his complaint against the petitioner on 22.7.1970.
4. The defence put. forward by the petitioner is one of total denial. He has even denied having sold any Toor Dal to P.W. 1 as contended by the prosecution. It may be mentioned at this stage that he has not attempted to explain his signatures below Exhibits P-2 and P-3, and so also on the obverse of Ex. P-1.
5. Sri B.S. Raikote the learned Counsel for the petitioner, vehemently contended that the evidence of P.W. 1 ought not to have been accepted and relied upon by the two courts below in view of the fact that the only panch examined i.e. Mahaboob P.W. 2 has not supported the prosecution in regard to the transaction of sale of Toor Dal by the Petitioner to P.W. 1 and dividing of that sample of Toor Dal into three packets as mentioned in Ex. P-3. He urged that it would not be safe to rely on the sole testimony of P.W. 1, in this regard. The two courts below have in my opinion rightly rejected such a contention put forward before them. As already mentioned above. Ex. P-1 is the notice issued by P.W. 1 to the petitioner before purchasing 600 grams of Toor Dal from the petitioner and the petitioner has affixed his signature on the obverse of it. Ex. P-2 is a receipt issued by the petitioner to P.W. 1 for having received 0-96 P. on selling 600 grams of Toor Dal to P.W. 1. It bears the signature of the petitioner below it. Even the panchanama Ex. P-3 which narrates that the sample of 600 grams of Toor Dal purchased by P.W. 1 was divided into three sample packets and sealed in the presence of the petitioner and the two panchas bears the signature of the petitioner. The petitioner as already narrated in the preceding paragraph has put forward no explanation to explain away these signatures of his on Exhibits P-1, P-2 and P-3. Merely because the panch P.W. 2 Mahaboob has not supported the prosecution, an inference cannot be drawn that the evidence of P.W. 1. the Food Inspector cannot be relied upon. The evidence of P.W. 1 is cogent and consistent and is well-supported by documentary evidence. In the result. I have no hesitation in holding that the two courts below were right in concluding that the petitioner did sell to P.W. 1 600 grams of Toor Dal at about 2.30 or 3.00 P.M. on 7.2.1970 knowing full well that P.W. 1 was the Food Inspector and he was purchasing the same for getting the same analysed by a Public Analyst and that further on he did receive one of the three sample packets in sealed condition as prepared by P.W. 1 in the presence of panchas.
6. Sri Raikote nextly contended that the two courts below ought not to have placed any reliance on the report Ex. P-6 issued by the Public Analyst because the report does not show what colouring matter has been used in the food stuff viz. Toor Dal. He further contended that a mere statement that prohibited colour was traced by the Public Analyst would not be sufficient to establish that the food-stuff in question was adulterated as defined in Section 2(j) of the Act.
7. Ex. P-6 discloses that the Public Analyst found 2% damaged grains and prohibited colouring matter, and opined that the sample was adulterated. It is no doubt that the opinion of the Public Analyst that the sample was adulterated is nothing but an opinion of an expert and such opinion cannot be used as evidence unless it is amply supported by data furnished by the Public Analyst so as to convince a Court that the opinion expressed by him is well founded. Sri Raikote contended in this connection that what is narrated by the public analyst in Ex. P-6 that he detected prohibited colouring matter is nothing but the opinion of the Public Analyst because the Public Analyst has not named the colouring matter in its proper terminology thereby enabling the defence to show that it was not prohibited colouring matter. I am not in agreement with this contention. Sri Raikote placed reliance on the decision in Municipal Corporation Gwalior v. Kishan Swaroop : AIR1965MP180 . It is laid down therein that.
if there was adulteration in any degree it was not for the Public Analyst to indulge in vague generalities nor should he be content merely by expressing his opinion. In such cases he should set out his finding with such clearness that the court might be able upon the data he gave to form its own opinion as to whether the article was or was not adulterated.
I have no hesitation in agreeing, with respect with the learned Judges that what was laid down in the above cited decision is the correct position in law. But the question on hand is whether what is now narrated by the Public Analyst in Ex. P-6 that he found prohibited colouring matter in the sample, is an opinion or an observation of a fact, Sri Raikote nextly placed reliance on the decision in Public Prosecutor v. Meenakshi Achi 1970 Cri LJ 926 (Mad). In this case the accused was convicted on the ground that the coaltar dye used in preparation of ice-cream was not one of the permitted varieties. The report of the Public Analyst was only to the effect that the sample of Ice-cream contained coaltar dye which was not permitted to be used. The report did not. even state the colour of coaltar dye. It did not even show that the analysis was done personally by the Director of Central Food Laboratory as required under Section 13(2) of the Act, Sadasivam, J., held that the report of the Public Analyst should contain factual data of the analysis to enable the court to decide that the article of food is adulterated and that a vague opinion as to the content of coaltar dye was of no assistance to the court in deciding whether the coaltar dye used was really not one of the permitted varieties. I must express with all due respect to the learned Judge that, I. find myself unable to agree with the abovesaid principle Section 2(j) of the Act lays down that an article of food shall be deemed to be adulterated if any colouring matter other than prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article. This is the provision concerned with the use of colouring matters in articles of food. Section 23 of the Act vests power in the Central Government to make Rules. Section 23(1)(j) of the Act reads as follows:
23(1) The Central Government may. after consultation with the Committee and subject to the condition of previous publication, make rules-
(j) specifying the colouring matter and the maximum quantities thereof which maybe used in any article of food.
It is therefore seen that in order to establish that a particular sample of food is adulterated! the prosecution has to in regard to the aspect of addition of colubrine matter establish that the colouring matter used is other than that prescribed in respect thereof, and in amounts not within the prescribed limits of variability. As to what are the permitted colours and what is the permitted maximum quantity is to be prescribed by the Central Government by making Rules in that regard by exercising its powers under Section 23(1)(j) of the Act. The Central Government has made Rules in this connection. Rules 26, 28 and 30 list the permitted colouring matters. It has not made any rules in regard to the permitted maximum quantities. Sri Raikote contended that when the Central Government has not made any Rules in regard to the permitted maximum quantities, the second ingredient found narrated in Section 2(j) of the Act, cannot be complied with and, therefore the prosecution cannot be said to have satisfactorily established the offence of food adulteration in this case. I am unable to agree with this reasoning put forward by Sri Raikote for the simple reason that in case this reasoning is adopted, even use of any large quantity of prohibited colouring matter or colouring matter not permitted by the Rules would not make out an offence of food adulteration. The only interpretation possible in my opinion is that the Central Govt. while exercising its powers under Section 23(1)(j) of the Act, thought it fit not to prescribe any quantities so that use of colouring matter not permitted under the Rules, may be even in any slightest quantity should be an offence under the provisions of the Act. Therefore, the presence of colouring matter in food article which is not one of the colouring matters permitted to be used by Rules 26, 28 and 30 of the Rules, would satisfy the ingredients of Section 2(j) of the Act.
8. In this case, the Public Analyst has reported in Ex. P-6 that prohibited colouring matter was detected. I have already expressed that I am not in agreement with the contention of Sri Raikote that it is an opinion of the Public Analyst expressed in Ex. P-6. The decision in Public Prosecutor's case 1970 Cri LJ 926 (Mad) relied upon by Sri Raikote is based on the assumption that finding of coaltar dye not permitted to be used amounted to an opinion of an expert. As already pointed out Rules 26, 28 and 30 of the Rules framed by the Central Government in exercise of its powers under Sections 4 and 23 of the Act list the colouring matters permitted to be used in food stuff. Whenever a sample of food is sent to a Public Analyst for analysis, in order to find out whether the sample is adulterated as defined by the provisions of the Act, a Public Analyst or a Director of Central Food Laboratory would be required to find out so far as colouring matters are concerned, whether those colouring matters permitted to be used as listed in Rules 26, 28 and 30 of the Rules, have been used or not. These authorities are not under any obligation to find out the type or the exact nature of the colouring matter used in a particular food sample. It is therefore, certain that these authorities would be performing chemical tests prescribed for securing reactions in regard to the presence of the colouring matters permitted to be used as per Rules 26, 28 & 30 of the Rules. They would not-because they are not required so to do-perform tests prescribed for positively finding out what colouring matter has been used. On performing such prescribed chemical tests and on finding negative results in regard to all the permitted colouring matters they would naturally come to conclusion that the permitted colouring matters listed in Rules 26, 28 and 30 of the Rules have not been used. That finding of a fact based on the observations made by the Public Analyst or the Director of Central Food Laboratory, when put in a positive manner would amount to stating that prohibited colouring matter has been used. Therefore, what is mentioned by the Public Analyst in Ex. P-6 in this regard is not an opinion of his but is a fact found by him. In this view of the matter. I find myself unable to agree with the principle laid down in. Public Prosecutor's case.
9. Section 13(5) of the Act makes it abundantly clear that any document purporting to be a report, signed by a Public Analyst may be used as evidence of the facts stated there in any proceeding under this Act. The Supreme Court has in Mangaldas v. Maharashtra State : 1966CriLJ106 dealt with this provision and has field that a report of a Public Analyst is admissible as evidence and the facts, mentioned therein could be relied upon as evidence and that examination of a Public Analyst in proof of the contents of a report furnished by him would not be necessary. It is of course observed by the Supreme Court that in case either the Court or any of the parties desires, nothing in law prohibits any of them from examining a Public Analyst on the report issued by him. There is no material available in this case to show that the facts mentioned by the Public Analyst in Ex. P-6 which have become evidence under Section 13(5) of the Act, cannot be relied upon. Their Lordships have in the very same decision further observed that such a certificate is not only made admissible in evidence but is given finality of the facts contained therein by the proviso to that sub-section. Therefore, I have no hesitation in holding that the prosecution has satisfactorily established that the petitioner had in fact sold to P.W. 1 adulterated food material, viz. Toor Dal in question.
10. Sri Raikote lastly contended that the petitioner is a retail dealer and, therefore he must have purchased this food-stuff viz. Toor Dal from a wholesale dealer having a wholesale dealers' licence according to the Licensing Orders issued by the Mysore Government under the provisions of the Essential Commodities Act and therefore such a vendor viz., the petitioner, could not be held guilty of an offence of food adulteration under the provisions of this Act. He urged that element of mens rea is not taken away by any of the provisions of the Act and therefore the prosecution ought to have established that this petitioner had sold this article either having knowledge or having reason to believe that the article of food was adulterated. This argument is repelled by Section 19 of the Act. It reads as follows:
19(1). It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of arty adulterated or misbranded article of food if he proves-
(a) That, he purchased the article of food-
(i) in a case where a licence is prescribed for the sale thereof from a duly licensed manufacturer, distributor or dealer;
(ii) in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.
Their Lordships of the Supreme Court in Mangaldas's case : 1966CriLJ106 have dealt with similar contention. They have held that the burden is on the accused to show absence of mens rea. That burden is not discharged by the petitioner in this case.
11. In view of the foregoing reasons. I find that this petition is liable to fail and hence dismiss the same.