S.N. Shanker, J.
(1) This is a reference by the learned Additional Sessions Judge, Delhi, recommending an enhancement of the sentence awarded to the accused.
(2) Brief facts are that the accused is a sweetmeat seller. On 1/9/1965, Shri Bakhat Singh Sethi, Food Inspector. appointed by the Central Government under section 9 of the 16 Adulteration Act (hereafter called 'the Act') visited his shop and found that he was selling coloured Laddoos. Shri Bakhat Singh Sethi purchased 1500 grams of these Laddoos by way of sample and paid him Rs. 9 as their price vide receipt Exhibit P.A. The sample was divided into three parts and was put into three separate buttles. One buttle was given to the accused, one was sent to the Public Analyst and the third was retained by the Food Inspector. On 10/9/1965, the Public Analyst analysed the sample and gave the following report :-
'BUTYRO Refractometer reading at 40; C of the fat extracted from sweets-50.0, Baudouin test of the extracted fat-positive, Riechert value of the extracted fat-7.59 Colour-unpermitted.
** * the same is adulterated due to 7.0 excess in Butyro Refractometer reading at 40' C of the fat extracted 'from sweets, 20.41 deficiency in Riechert value of the extracted fat, Baudouin test of extracted fat being positive, and also coloured with unpermitted colour.'
After receipt of the report of the Public Analyst, a complaint was filed under section 7/16 of the Act by the Municipal Corporation. Delhi, against the accused. The learned trial Magistrate, by his judgment dated 17/10/1966, found the accused guilty and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 1,000 in default of payment of the fine, the accused was further to undergo rigorous imprisonment for a term of six months. The conviction was based on the finding that the sample, recovered from the accused, was adulterated and contained artificial coloring material in contravention of the requirements of the Act.
(3) Aggrieved from this order, the Municipal Corporation moved the Sessions Judge for reference and the learned Sessions Judge. after hearing the parties, has recommended that the accused, having been found to be guilty under the provisions of section 16 of the Act, should have been awarded a minimum sentence of six months and a fine of Rs. 1,000, and that the order of the trial Magistrate, sentencing him to imprisonment till the rising of the Court and the fine of Rs. 1,000 was nto in accordance with the mandatory provisions of section 16 of the Act.
(4) The learned counsel for the Municipal Corporation, appearing in support of the reference, has drawn my attention to section 16 of the Act, the relevant part of which reads as under :-
'16.(1) If any person :-
(A)whether by himself or by any toher person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food:-
(I)which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of Public Health, * * * * * * * *
(5) He shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall nto be less than six months but which may extend to six years and with fine which shall nto be less than one thousand rupees :
(I)if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 or misbranded under sub-clause (k) of clause (ix) of that section, or
(II)if the offence is under sub-clause (ii) of clause (a), the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine less than one thousand rupees or of buth imprisonment for a term of less than six months and a fine of less than one thousand rupees.
Sub-clause (1) of clause (i) of section 2 of the Act reads as under:
'2.In this Act unless the context toherwise requires,-
(I)'ADULTERATED'-ANarticle of food shall be deemed to be adulterated- * * * * (1)if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits or variability;
The contention of the learned counsel is that in the instant case the offence found against the accused was that the Laddoos had been adulterated by him with unpermitted colour and, as such, even though, covered by section 16(a)(i) the offence did nto fall under section 2(i)(1) of the Act, and, thereforee, the trial Magistrate had no jurisdiction to award a punishment lesser than the minimum sentence prescribed in the Act.
(6) He contended, and I think rightly, that sub-clause (1) of clause (i) of section 2 of the Act related to cases concerning the quality or purity of the article found to be below the prescribed standard or when its constituents were in excess of the prescribed limits, and did nto cover a case where an unauthorised coloring material was found to be mixed with the article sold. Such an adulteration will clearly fall within sub-clause (j) of section 2(i) of the Act. The learned counsel for the accused has nto said a word to controvert this position. Under these circumstances, I am of the view that the learned trial Magistrate should have convicted the accused to a minimum sentence of six months imprisonment in addition to a fine of Rs. 1,000.
(7) The learned counsel for the accused, relying on sub-section (6) of section 439 of the Code of Criminal Procedure, has, however, urged that he is entitled to show cause against the conviction, and contends that on the material on this record the learned trial Magistrate should have recorded a clear acquittal against his client. Reliance is placed by him on U.J.S. Chopra v. State of Bombayd) , wherein their Lordships held that even though the appeal filed by the accused in that case had been dismissed by the High Court and that order of dismissal was final and no further revision could bs initiated by the accused against the conviction, but as soon as the state applied for enhancement of the sentence and a ntoice was issued to the accused, he became entitled under section 439( ) to again challenge his conviction, and the previous dismissal of his appeal in the circumstances would have no bearing on the new situation created by the enhancement application. The learned counsel for the Municipal Corporation has nto controverter this position and, under these circumstances, the whole matter has been argued denovo on merits.
(8) The first contention raised by the learned counsel for the accused is that the certificate of the Public Analyst is vague in so far as it does state the precise unpermitted colour with which the Laddoos in question are stated to have been adulterated, nor does it give the exact percentage of quantity of the coloring material- alleged to have been used. He has placed strong reliance on State v. Gum Lal Jeeva Shah(2) Food Inspector, Hozhikode v. Muthuswamy Nadar(3) and State v. Suhati Ram and antoher (4). The submission of the learned counsel is that the certificate of the Public Analyst should contain the factual data which the analysis should reveal and nto merely his opinion as to what that data indicates. He says that if the certificate merely gave the final opinion of the Public Analyst, it would nto be sufficient to base conviction, because, having regard to the special provisions contained in this Act relating to the nature and effect of this report, it will tantamount to a decision of the point in issue by the Public Analyst and nto by the Court.
(9) The contention raised, prima fade, sounds very plausible, but the proposition enunciated is nto at all attracted to the facts of this case. As stated earlier, what the accused has been found guilty of, is adulteration of the Laddoos sold by him with coloring material, toher than that prescribed in or authorised by the Act. Rule 23 of the Prevention of Food Adulteration Rules, 1955 (hereafter called 'the Rules') framed under the Act, reads as under:-
'23.The addition of a coloring matter to any article of food, except as specifically permitted by these rules, is prohibited.'
This rule in positive terms prohibits the addition of any coloring matter to any article of food except as specifically mentioned in the Rules that followed. Rule 26 then enumerates nine natural coloring principles, that could be used in or upon any article of food. Rule 22 further names the coal-tar dyes or a mixture thereof, which could lawfully be used in food. The combined effect of rules 26 and 28, read with rule 23 of the Rules, thereforee, is that the addition of any coloring matter to any article of food, except as specifically permitted by rules 26 and 28, is prohibited, and their addition would amount to adulteration to attract the penalty under section 16(a)(i) of the Act. In order, thereforee, to sustain conviction under this provision, it is wholly irrelevant to find as to what actually was the substance that had been used for the purpose of coloring a particular article of food, if it is proved that the coloring matter used is nto one of those which had specifically been permitted by the Rules.
(10) In Guni Lal Jeeva Shah's case (supra), relied upon by the learned counsel for the accused, the article in question was 'chilies', in respect of which, under rule 5 of the Rules made under the Act, it was in terms provided in Appendix 'B' that 'chilies could contain nto more than I per cent foreign organic matter; nto more than 8 per cent ttoal ash and nto more than 1.25 per cent ash insoluble in hydrochloric acid.' The operative part of the report of the Public Analyst in that case read as follows :-
'IT is highly adulterated with extraneous vegetable matter.'
Under these circumstances, the learned Judges held that as the presence of foreign organic matter in the chilies was nto wholly ruled out, it was essential for the Public Analyst to specify the percentage of the organic matter, found by him, to prove the offence charged against the accused. There is no question of any percentage of 'the coloring material being permissible in the present case. and, as such, it was nto at all necessary for the Public Analyst to specify or to give the percentage of the coloring material present in the Laddoos.
(11) Muthuswamy Nadar's case (supra), the second, case relied upon, related to sweets. The sample, on analysis, was found to contain a coal-tar dye, but, the use of coal-tar dye, toher than those enumerated in rule 28, was permissible. Under these circumstances, the learned Judges observed that the report of the Public Analyst should have specified the particular coal-tar dye with which the accused was alleged to have altered the sweets.
(12) Similarly, in Suhati Ram's case (supra), the third case relied upon by the learned counsel for the accused, the facts were wholly different. The operative part of the report of the Public Analyst in that case simply stated that 'in my opinion this sample is adulterated.' In the second line of the same report, it was further stated : 'In my opinion, the greater part of this sample consists of fat or oil which is foreign to the pure substance.' It was under these circumstances that the learned Judges observed that the report of the Criminal Analyst should contain factual data, which the analysis should reveal and nto merely the opinion of the Public Analyst as to what the data indicates about the nature of the article of food.
(13) In the case before us, the coloring material used by the accused, was nto one of those permissible under the Act, and, thereforee, it was nto at all necessary for the Public Analyst to investigate and report as to the identity of the substance that had actually been used for the coloring, nor was it necessary for him to record a finding in his report as to the quantity or percentage of the material that had been used. I find support for my conclusion in regard to the contents of the report in this case from the observations in the Division Bench judgment in Municipal Corporation of Delhi v. Sat pal Kapur and antoher(5), where the learned Judges of the Punjab High Court held that it was nto necessary in every case for the Public Analyst to state the exact quantity of foreign substance present in the sample sent to him and that when the foreign substance happened to be one, the presence of which was absolutely prohibited, it was unnecessary to state its quantity.
(14) In view of the above discussion, I do nto find any merit in the contention of the learned counsel for the accused.
The second contention, raised by the learned counsel, was that the accused had applied to the learned trial Magistrate for the summoning of the Public Analyst for cross-examination under the provisions of sub-section (2) of section 510 of the Code of Criminal Procedure, but this request was nto acceded to. This, the learned counsel contended, was a material irregularity, which resulted in grave prejudice to the accused and vitiated the entire proceedings against him.
(15) I find little substance in this submission also. Section 510 of the Code deals with the report of a Chemical Examiner. Subsection (1) of this section provides that any document purporting to be a report of the Chemical Examiner or Assistant Chemical Examiner to Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer in the Mint, may be used as evidence in any enquiry. Sub-section (2) of this section then gives a right to the parties to apply to the Court to summon and examine any such person as to the subject-matter of his report. This sub-section, very obviously, envisages the summoning and examining of only those persons, who are specified in sub-section (1) of this section. The Public Analyst, appointed under the Act, is nto a Chemical Examiner or an Assistant Chemical Examiner to Government, as contemplated by sub-section (1) of section 510. The application of the accused under section 510 of the Code was thus clearly misconceived and was rightly rejected. In cases, where the accused desired to challenge the report of the Public Analyst under the Act, he had to follow the procedure provided in section 13. Sub-section (2) of section 13 provides that in such a case the accused-vendor should make an application to the Court for sending the part of the sample, delivered to him under section 11(1)(c), to the Director of the Central Food Laboratory for his examination and certificate, who, in turn, was bound to furnish a certificate to the Court in the prescribed form containing the result of his examination and such a certificate would operate to supersede the certificate of the Public Analyst. Reference in this connection may be made to Municipal Committee, Amabala v. Bakshi Ram,(6) where the provisions of section 13 of the Act, came up for consideration and it was held that section 13(2) of the Act prescribed a procedure for the accused to challenge the report of the Public Analyst, and, the remedy provided having nto been adopted, the report of the Public Analyst was a good piece of evidence and could nto be ruled out. There is, thus, no force in the grievance of the accused that the proceedings are vitiated because the Public Analyst had nto been called for cross-examination.
(16) The third contention raised by the learned counsel for the accused related to the third sample taken in compliance with section 11 of the Act and retained by the Food Inspector, which, he said, was deliberately nto produced by the prosecution in Court and which, according to him, vitiated the whole trial. The contention of the learned counsel was that a reference to rules 15 and 16 of the Rules framed under the Act showed that all buttles or jars or toher containers containing the samples for analysis had to be properly packed and labelled in the manner prescribed by the Act, and that the purpose of the third sample was to show that this packing and the labelling by the prosecution had been properly done, and that it was necessary for the prosecution to produce this third Sample in Court in proof of the dye packing and labelling. This contention also is without substance. The Act no where enjoins a duty on the prosecution to produce the third sample in Court even when it is nto asked for. Sub-section (2) of section 13 further throws light on the purpose for which the third sample is taken and retained by the Food Inspector. It reads as under :-
'13.(1)* * *
(2)After the institution of a prosecution under this Art., the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in subclause (i) or sub-clause (iii) of clause (c) of sub-section (1) of section Ii to the Director of the Central Food Laboratory for a certificate; and on receipt of the application, the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are in tact and may then dispatch the part of the sample under its own seal to the Director of the Central Food Laboratory, who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.'
(17) A reference to the statement of P. W. 2, dated 2/3/1966, shows that the sample retained by the Food Inspector in this case was always available and could be produced, but no request was made on behalf of the accused for its production, nor was it ever suggested on his behalf, during the trial, that the samples had nto been properly packed and labelled. Under these circumstances, the non-production of the third sample in Court does nto, in any manner, vitiate the conviction of the accused in this case.
(18) Lastly, the learned counsel, very strenuously, urged that no proper report of the Public Analyst had been obtained in this case because Shri Bakhat Singh Sethi, who sent the sample to the Public Analyst for analysis, was nto a validly appointed Food Inspector entitled to do so under the powers conferred by clause (b) of sub-section (1) of section 10 of the Act. It was urged that the relevant ntoification appointing him to act as a Food Inspector was issued on 6/4/1961, when he held two shares of Rs. 10.00 each in D.M.C. Co-operative Society, which was running a store dealing in the business of milk, butter and ghee, and, thereforee, had a financial interest in the sale of articles of food arid, as such, his appointment was hit by the proviso to section 9 of the Act. The learned counsel for the Corporation very strongly refuted the position and contended that the mere fact that Shri Bakhat Singh Sethi, on the date of his appointment as Food Inspector, was a member of D.M.C. Cooperative Society, which carried on the business and which, in itself, was a body corporate separate and distinct from its members, did nto tantamount to Shri Bakhat Singh Sethi having a financial interest in the sale of an article of food within the meaning of the proviso to section of the Act. He says that it is also in evidence that Shri Bakhat Singh Sethi had resigned from the membership of this society immediately thereafter and that in September, 1965, when he took the sample of the accused and sent the same for analysis, he was definitely nto a member of the D.M.C. Co-operative Society and, thereforee, could nto be said to have been hit by the proviso to section 9 of the Act. It is further maintained that even if the appointment of Shri Bakhat Singh as Food Inspector was in any manner found to be bad, that did nto make any difference because he still remained a member of the public entitled to purchase the Laddoos from the accused and also entitled to have them analysed from the Public Analyst
(19) Reference is invited to section 7 of the Act, and it is contended that what is prohibited by law is that no person shall manufacture for sale, or store, or sell or distribute any adulterated food, and what is punishable under section 16 of the Act is the sale of the adulterated food.
(20) It is, undoubtedly, true that while sub-clause (b) of section 10(1) of the Act confers powers on the Food Inspector to have the sample analysed from the Public Analyst, section 12 makes it clear that in spite of this provision in the Act, there would be ntohing to prevent a purchaser of any article of food, even though he may nto be a Food Inspector, from having such an article analysed by the Public Analyst. The learned counsel for the accused, relying on the words: 'toher than a food inspector', occurring in section 12, contends that any sample, sent by a person as a Food Inspector, would nto be a proper submission of the sample under section 12, if the sender was nto a Food Inspector in fact. I do nto, however, see my way to agree to this submission. Section 12 will come into play whenever the person sending the sample is either nto the Food Inspector or is nto found to be so eventually. A similar question came up for decision before the Calcutta High Court in Sewal Ram Agarwala and antoher v. Empei'or(7), and it was held that even if the Sanitary Inspector, who submitted the samples to the Analyst, was nto authorised to exercise those powers in that particular place, samples submitted must be deemed to have been submitted for analysis under the Act, and the special rule of evidence contained in section 14 of the Bengal Food Adulteration Act, 1919, under which the certificate of the Public Analyst was made admissible in evidence without formal proof, will apply. In Mahindra Nath Banerjee and antoher v. Jyofish Chandra Dutta,(8) antoher Division Bench of the same Court held that even though in the case before the learned Judges of the Calcutta High Court, it was provided that the Sanitary Inspector, who obtained the samples and sent them for examination, was nto specially authorised under the Bengal Food Adulteration Act to do so, he could still take the sample and send it to the Public Analyst for examination, as a private individual. It is, thereforee, nto correct to contend that there was no valid report of the Public Analyst as envisaged in the Act and that on that account the conviction of the accused was vitiated.
(21) In this view of the matter and as a result of the finding that Shri Bakhat Singh Sethi was competent as an ordinary purchaser to send the sample to the Public Analyst for analysis, it is nto necessary to go into and examine the toher contentions raised by the learned counsel for the Corporation in this regard.
(22) The net result, thereforee, is that in my view the accused has' rightly been convicted under the provisions of section 7 read with section 16 of the Prevention of Food Adulteration Act. Having regard to the mandatory provisions of section 16, as the offence, found proved against him, was nto covered by sub-clause (1) of clause (i) of section 2 of the Act, the learned trial Magistrate should have awarded him a minimum sentence of six months and a fine of Rs. 1,000. The learned counsel for the Corporation contends that the facts of this case call for a more deterrent sentence, but, as the accused is an old man, the minimum sentence prescribed for the offence will meet the ends of justice in this case.
(23) The order of Shri C. R. Negi, Magistrate 1st Class, Delhi, is accordingly modified to this extent and the accused is sentenced to simple imprisonment for a period of six months and to pay fine of Rs. 1,000.00.