Anna Chandy, J.
1. This is a reference by the learned Sessions Judge, Tellicherry recommending that the conviction and sentence entered against the accused for offences under the Food Adulteration Act be quashed as the main item of evidence against them namely the certificate of the Public Analyst that the item of food sold by the petitioners was adulterated is not pf a conclusive nature.
2. The facts are not in dispute. The respondents are the Proprietor and the Salesman of a grocery shop in Cannanore. On 21-12-1960 the Food Inspector of the Cannanore Municipality bought some Thuvara dhall from the shop for purposes of analysis. The sample was analysed by the Public Analyst and certified to be adulterated. The petitioners were tried before the District Magistrate, Teilicherry who convicted them under Section 16(1)read with section 7 of the Prevention of Food Adulteration Act and sentenced them each to pay a fine of Rs. 50/- or in default to undergo simple imprisonment for 14 days. The matter was taken in revision before the Sessions Judge, Tellicherry. The learned Judge felt that the certificate of the Public Analyst was not valid as it was too vague and did not contain enough data. He has therefore recommended that the conviction and sentence entered by the trial Court be set aside.
3. We must say that we cannot find our way to accept the learned Judge's recommendation. It seems to us that there should be no difficulty in accepting the certificate as proof that the sample analysed was adulterated. The certificate reads thus:
'I further certify that I have analysed the afore-mentioned sample, and declare the result of my analysis to be as follows: Metanil Yellow (Coal-tar dye) ... ... Present.and am of the opinion that the said sample contains metanil yellow, a coal tar dye, the addition of which in food is not permitted by rules and is therefore adulterated.'
The learned Judge argues that the certificate is not valid as it does not show what was the sort of examination that the Analyst conducted 'whether it was microscopic or macroscopic or what was the percentage of the coaltar dye that was present, so that as has been put, the court may, though not an expert form its own judgment on the materials''-A decision of this Court reported in City Corpora tion of Trivandrum v. T. R. Reddiar, 1962 Ker LT 199: (1963 (1) Cri LJ 123) was cited by the learned Judge to support his view. That decision to which one of us was a party cannot be made to apply to this case where the facts arc entirely different. There the Public Analyst's Certificate was merely to the effect that the sample of shall analysed was adulterated as it showed characteristics of lac that known as Kesari dhall (Lathyrus Sativus) and it was held by this Court that a conviction cannot be sustained on that certificate as it is not possible to ascertain what the characteristics noticed by the Analyst were. It was further observed therein:
'It is not possible to lay down any hard and fast rule as to what particulars should be shown in the Analyst's report as the same may vary in each case. Thus, while it may be necessary to give the data regarding the proportion of the component-parts in commodities like milk, ghee, etc., the position may be different where the article sold may be misbranded or entirely different from what it purported to be.''
We do not feel that the views quoted above can, be considered as an authority for the position that a certificate to the effect that certain prohibited dye was present in the food stuff is too vague to be acted upon.
4. The learned District Judge raises a twofold objection to the certificate in this case, viz., that it does not reveal what type of tests were conducted by the Analyst and that it does not specify the quantity of the dye found present in the sample.
5. We do not think that a quantitative analysis of the adulterant should be insisted upon in this case. Rule 28 of the Food Adulteration Rules insists that coaltar dyes except those mentioned therein should not be used in food stuffs. Where the analysis shows that such a prohibited dye is used, the food stuff must be considered adulterated under the Act irrespective of the quantity of the adulterant As the very use of the dye is prohibited, it seems quite without meaning to enquireas to how much of the dye was used. A number of decisions of the various High Courts were cited before us in support of the position that the Analyst should have mentioned the percentage of the adulterant found in the sample. A reading of these cases shows that the adulterant involved is not of the type used in this case, viz., a prohibited variety of a coaltar dye. For instance in Bhagwandass v. State. AIR 1962 Punjab 419 where it was held that a quantitative analysis should have been performed, the extraneous matter involved was saccharine in a bottle of aerated water which did not carry the prescribed label. The learned Judge observed:
'In the case of a firm manufacturing aeratedwaters in some of which saccharine is used as a sweetening element, while in others only some form of sugar and not saccharine is used, it is better if the report of the analyst contains some indication of the quantity of saccharine because if the quantity of saccharine is only slight its presence mightbe due to an accident, it being possible for traces of saccharine to remain in a bottle which had not properly been washed before being filled with liquid sweetened with sugar.'
Similarly another decision of the same court Nandu Ram v. The State 1962-64 Pun LR 57: (1962 (2? Cri LJ 579) where quantitative analysis was insisted upon was a case where a sample of milk was certified to be adulterated as it contained morewater than permissible. On the other hand where the adulterant was sulphuric acid it was held that the certificate need show merely the presence ofthe adulterant. In Delhi Municipal Corporation v. Satpal, AIR 1962 Punj 524 where a sample of Vinegar was found to contain traces of sulphuric acid the court observed:
'When the foreign substance happens to he one the presence of which is absolutely prohibited in that particular article of food, it would be unnecessary to state the quantity.'
We would respectfully agree with this view. Wethink that where extraneous matter of a type likeprohibited varieties of coaltar dyo is used theAnalyst's report certifying to its presence in thefood without specifying the exact quantity of theadulterant is sufficient to support a conviction.
6. As for the question whether an Analystshould have mentioned what tests were conducted by him, that too should be answered in the negative. Among the cases cited by the learned defence counsel in support of his position that the Analyst should have enumerated the tests conducted by him was a decision by one of us reported in Food Inspector, Kozhikode v. Muthuswamy Nadar, 1962 Ker LT 865. In that case where some sweets were certified to be adulterated as they contained 'a prohibited variety of coaltar dye', it was held that the certificate which did not reveal the data on which the opinion was based was insufficient. Though the adulterant is of the same type in these two cases the crucial difference is that there the Analyst did not name the extraneous matter found, but merely stated it was coaltar dye of 'the prohibited variety'. Such a certificate which does not even identify the adulterant was considered entirely valueless and it was held that as the Analyst failed to name the dye used he should have given the data on which he based his conclusion that a certain type of dyo was used, namely, whether he positively identifie_d a prohibited variety of coaltar dye or whether his tests were directed to prove that none of the permitted rarities were used. The facts of the present case are entirely different. The certificate shows that Metanil Yellow a prohi-mited coaltar dye was used. In such a case thereis no need for the court to insist that the report should contain the technical processes by which the presence of the dye was identified. If he defence had any bona fide dispute as to the correctness of the analyst's report it was always open to there as provided for in Section 13 to send a sample for analysis by the Central Food Technological Institute. It may also be pointed out that the accused here could not have escaped liability even if the certificate did not name the type of coaltar dye used. Rule 29 lays down that even the permitted varieties of coaltar dyes cannot be used in food stuffs except those enumerated therein and we do not find shall among the items mentioned.
7. Thus in our view of the matter, the findingof the learned Judge that the certificate is not conclusive cannot be accepted. The reference is rejeered and the conviction and sentence are confirmed.