R.N. Aggarwal, J.
(1) This is an appeal by the Municipal Corporation of Delhi against the judgment dated 30th July 1976 of Shri J.D.Kapoor, Metropolitan Magistrate, by which the learned Magistrate acquitted the respondent Jawala Parshad of the charge of selling adulterated 'Colour Channa Sweets'.
(2) The facts briefly are that on 31st October 1975, Food Inspector R.S. Awasthi visited the sweet meat shop of the respondent at Siri Niwas Puri Market and purchased 1500 gms. of colour channa sweets on payment of price for the purpose of analysis. One part of the sample was sent to the Public Analyst who gave the opinion that the sample is adulterated due to the presence of coal tar dye which is not amongst the list of permitted coal tar dyes. The report of the Public Analyst is important and it reads as follows:-
'Butyro-Refractometer Reading at 40' C of the extracted fat from sweets 42.1 Reichert value of the extracted fat 31-24 Baudouin Test of the extracted fact-Negative Colour-Tartrazine & unpermitted coal tar dye. Starch-Present.'
On the receipt of the report of the Public Analyst the Municipal Prosecutor filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act against the respondent. The respondent was also charged for selling sweets without a license.
(3) On 28th July 1976 the respondent filed an application before the Magistrate alleging that the sample taken was not sufficient for the purpose of analysis and that the Sample Ext. in possession of the Food Inspector be weighed. The Magistrate made an order for the production of the sample bottle in possession of the Food Inspector. The Food Inspector produced the sample bottle in his possession and it was weighted. The contents were found to weigh 475 gms.
(4) The learned Magistrate acquitted the respondent of the charge of adulteration on the ground that the quantity of the sample sent to Public Analyst was short than the quantity required to be sent under the rules and following the decision of Rajadas Gurunamal Pamanani v. The State of Maharasfra 1975(1) F.A.C. I held that the Public Analyst did not have the quantities mentioned in the rules for analysis and, thereforee, the report of the Public Analyst could not be accepted as correct. The learned Magistrate, however, found the accused guilty of the offence of selling sweets without a license and sentenced him to a fine of Rs. 500.00 or in default to undergo imprisonment for three months.
(5) Against the acquittal of the accused on the charge of selling adulterated sweets the Municipal Corporation has come in appeal.
(6) Mr. Arora, learned counsel for the respondent fairly conceded that the authority on the basis of which the learned Magistrate had acquitted the respondent has been over-ruled by the Supreme Court in State of Kerala etc. etc. v. Alaserry Mohammed etc. etc. and, thereforee, the acquittal of the respondent on the ground that the sample sent was short than the quantity required to be sent under the rules is not valid. We have perused the authority in the case State of Kerala (supra) and we find that their Lordships after discussing the various authorities and the relevant provisions of the Prevention of Food Adulteration Act had held as under :-
'......THEwhole object of Section Ii and Rules 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If, however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious, that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance. In our considered judgment the rule is directory and not mandatory. But we must hasten to reiterate what we have said above that, even so. Food Inspectors should take care to see that they comply with the rule as far as possible.'
We have perused the record and we find nothing in the record to show that the quantity of the sample sent to the Public Analyst was not sufficient to make to a correct analysis.
(7) Mr. Arora contended that there is not sufficient data in the report of the Public Analyst to come to a conclusion that unpermitted coal tar dye was used in the sample of channa sweets. Rule 28 of the Prevention of Food Adulteration Rules provides that no coal tar (Food Colour) or a mixture thereof except the one mentioned in the rule shall be used in food. Rule 29 prohibits the use of permitted coal tar (food colour) in or upon any food other than the one mentioned in the Rule. It is not disputed that permitted food colour could be used in the channa sweets. The Public Analyst found Tartrazine and unpermitted coal tar dye in the sample. The above finding of the Public Analyst clearly shows that unpermitted coal tar had been used in the preparation of the channa sweets. The Public Analyst need not have specified the nature of the unpermitted coal tar dye (food colour) used in the preparation of the sample.
(8) Mr. Arora lastly contended that a lenient view be taken in the matter of sentence. The offence took place in 1975. The respondent was acquitted by the Magistrate in 1976. More than 7 years have elapsed since the respondent was acquitted. In the circumstances we are of the view that the sentence of imprisonment should not be imposed on the respondent. We allow the appeal, set aside the order of acquittal and convict the respondent of the offence under Section 7 read with Section 16 of the Food Adulteration Act and sentence him to a fine of Rs. 2,000.00 , in default the respondent shall undergo an imprisonment for four months. The respondent shall deposit the fine in the trial court within four weeks. Failing which he shall be taken into custody to undergo the sentence of imprisonment imposed on him.
(9) Mr. Arora contended that in view of the conviction of the respondent for selling adulterated sweets his conviction for selling sweets without a license shall have to be set aside. Mr. Arora in this respect relied upon a Division Bench authority of this court reported as Municipal Corporation of Delhi v. Shri Darshan Kumar and State (1979) 1 F.A.C. 124. Mr. Justice V.D. Misra (as he then was) in the said case, speaking for the court, held :-
'.....If the intention of the Legislature was as contended on behalf of the Corporation, that the offender must also be punished with reference to the same article of food which has been found adulterated etc. and in respect of which there had been a contravention of any provision of the Act or of rules made there under, this could have been achieved simply by deleting the opening phrase completely. Had that been so, a person would have been punished not only for adulteration etc. of a particular article of food, but also for having contravened the provisions of the Act or the rules made there under with reference to the same article. We cannot substitute any other words for the words 'am article of food referred to in Sub-clause (i)'. It has been suggested that whereas Section 7 in Clause (iii) specifically refers to an article of food being sold under a license without any contravention of the conditions of the license, no distinction has been in Clause (iii). In our opinion it was absolutely unnecessary to make such a distinction. Sub-clause (ii) is a residuary clause. If it did not contain the opening phrase, all the offences would have been covered by this sub-clause. And that was the case before the amendment of 1964. But, as , have already explained the opening phrase takes out the articles of food which have been found adulterated etc. in terms of Sub-clause (1). In these circumstances we will be unjustifiably straining the language of Sub-clause (ii) to say that a vendor can also be punished for contravening the provisions of the Act or the rules made there under where in respect of the same article of food he is being punished for adulteration. We, thereforee, are in respectful agreement with the aforesaid ruling of the Division Bench of the Madhya Pradesh High Court.'
The above authority does support the contention of Mr. Arora. In the result we set aside the conviction of the respondent on the charge of selling sweets without a license. The fine of Rs. 500.00 imposed on the respondent for selling sweets without a piece would be refunded to him or the amount may be adjusted against the sentence of fine imposed on the respondent turn selling adulterated sweets.