P.N. Bakshi, J.
1. The applicant has been convicted under Section 7/16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act and has been sentenced to 6 months R. I. and a fine of Rs. 1000/-. His conviction and sentence has been confirmed in appeal by the Sessions Judge, Meerut. Hence this revision.
2. I have heard the learned Counsel for the applicant and have also perused the impugned orders. According to the prosecution case a sample of emarti was purchased by the Food Inspector from the applicant. He paid Rs. 4.80 paise and the total quantity purchased was 600 Grams. This sample was divided into 3 separate phials. One of the phials in the possession of the Food Inspector was sent for analysis. The Public Analyst disclosed that the sample was coloured. with an unpermitted coal tar dye, namely matanial yellow dour index of 1956 No. 13065. On receipt of the obove report sanction for prosecution was obtained. The applicant has been prosecuted and convicted on the above facts. Both the courts below have held the prosecution case established beyond all reasonable doubt after consideration of the evidence on the record both oral and documentary.
3. Counsel for the applicant has argued that only 600 Grams of Emarti had been taken as a sample by the Food Inspector, which was divided into three separate phials, each phial contained 200 grams. He has pointed out to Rule 22 of the Prevention of Food Adulteration Rules and has referred to item No. 14 relating to prepared food under which the approximate quantity to be taken is 500 grams. He urges that in the instant case since only 200 grams of Emarti was sent in the phial despatched to the public Analyst, the quantity was inadequate and could not be properly analysed. In this connection learned Counsel has referred to a decision of the Supreme Court reported in 1975 All Cri C 156 in which it appears that the Supreme Court has made observations that Rule 22 framed under the Prevention of Food Adulteration Rules was mandatory. This question however was reconsidered by a larger bench of that court, which is reported in 1978 All Cri C 109 (SC). In that Supreme Court decision, it has been clearly ruled that Rule 22 of the-Prevention of Food Adulteration Rules is directory and not mandatory. I am bound by the decision of Supreme Court. It may be further noted that the quantity, which is required under Rule 22 is just an approximate quantity to be supplied. This indicates that sufficient latitude or margin has been left on either side with regard to the quantum of the sample that is to be taken for the purposes of analysis.
4. Learned counsel has also argued in this connection that even if Rule 22 is held not to be mandatory, yet the inadequate quantity which has been supplied for analysis is not sufficient for the Public Analyst to give a correct report thereon. He submits that unless the full quantity is sent, it would not be sufficient for him to analyse the sample properly and to give a correct report. There is nothing in the report of the public analyst to indicate that the quantity of the sample which was sent to him was inadequate for him to proceed with the analysis. It was open to the applicant, if he admitted (questioned ?) the correctness of the report of the Public Analyst, to summon him and to cross-examine him on this question. This right, which has been given to him under the Act, has however not been availed by him. Therefore, the only reasonable inference that can be drawn is that the quantity which was sent for analysis was sufficient for the purpose for which it has been sent. In this view of the matter, I am of the opinion that the report of the Public Analyst cannot be overruled on account of this objection taken by the applicant's counsel.
5. The next point argued by the learned Counsel is that no preservative has been added to the sample of Emarti. He urges that after a few days, the sample must have deteriorated. In this connection, it would be relevant to point out to Rule 19 of the Prevention of Food Adulteration Rules which runs to the following effect:
Any person taking a 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.
Under the Rules as they exist at present, the only one which prescribes the use of a particular preservative is Rule 20. Under that Rule 20 formalin has to be added to milk, cream, icecream, mixed ice cream, ice candy, dahi, Khoa, and gur. No other Rule has been pointed out to me to indicate that any preservative has been prescribed at any time with regard to Emarti which is the item with which we are concerned at present. Therefore, the inference is inevitable that when a sample of Emarti is taken by the Food Inspector, it is not necessary for him to add a preservative to it. Here again, it may be mentioned that in the report of the Public Analyst it has been specifically mentioned that the sample was in a fit condition for analysis. Had the sample deteriorated as a result of non-mixing a preservative to it, I find no reason why such a certificate should have been given by the Public Analyst in his report. Here I again may mention that if the applicant desired to question the correctness of the report on the ground that the sample was not in a fit condition for analysis because a preservative was not added thereto, it was open to him to get the Public Analyst concerned summoned and cross-examined. This has not been done. For the reasons given above I do not find any merit in this contention raised by the learned Counsel for the applicant.
6. Lastly it is urged that the sentence awarded to the applicant is excessive, I am of the opinion that in cases where an unpermitted dye is used for colouring eatables, it would not serve the cause of justice to give a lesser sentence. As such unpermitted colours are injurious to health, the applicant could not be allowed to play with the health of citizens at the cost of making profit. In my opinion this is not a fit case in which I should take a lenient view and interfere on the question of sentences.
7. For the reasons given above, this revision application is dismissed. The applicant is on bail. He shall be taken into custody forthwith to serve out the unexpired portion of the sentences of imprisonment.