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M.A. Thomas Vs. P.J. Abraham and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 380 of 1967 and Original Petn. No. 563 of 1968
Judge
Reported inAIR1969Ker146; 1969CriLJ615
ActsPrevention of Food Adulteration Act, 1954 - Sections 7, 13, 13(5) and 16
AppellantM.A. Thomas
RespondentP.J. Abraham and anr.
Appellant Advocate K. Chandrasekharan and; T. Chandrasekhara Menon, Advs.,;
Respondent Advocate Adv.-General and; State Prosecutor (Nos. 1 and 2 respectively) (in Crl. R.P. No. 380 of 1967)
DispositionPetition allowed
Cases ReferredMohanlal Chhaganlal Mithaiwala v. Vipanchandra R. Gandhi
Excerpt:
.....under sections 7 (1) and 16 (1) (a) challenged - validity and effect of certificate of director of central food laboratory in issue - certificate obtained from director of central food laboratory supersedes report of public analyst - document purporting to be certificate signed by director of central food laboratory final and conclusive - analyst or director need not be examined before report or certificate admitted in evidence - petitioner charged that he sold tea adulterated with coal-tar dye - certificate of director disclosed that no coal-tar dye present - held, conviction and sentence of petitioner set aside. - - 14 are satisfied by the data given in ex. 14 have been satisfied by the data relating to the same in ex. 9. in my opinion, the questions that arise when a report or a..........more than 10 per cent.it shall not contain any added colouring matter.'ex. p6, the report of the food analyst, discloses:'microscopic examination;the sample consists of tea only.total ash determined on tea dried to the constant weightat 1000c.8.0 per centalkalinity of soluble ash.2.0 per cent as k20water soluble ash.61.6 per cent of the total ash.ash insoluble in hcl.0.2 per cent.crude fibre.11.2 per cent.aqueous extract ob. tained by boiling dry sample (dried to constantweight at 1000c) with hundred parts of distilled water for onehour under reflux.85.5 per cent.a non-permitted orange coat-tar dye.present.and (i) am of the opinion that the said sampl' doea notconform to the standards prescribed for tea under the prevention of foodadul. teration rules, 1955, and is therefore.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The petitioner, the owner of a tea factory, has been convicted underSections 7(i) and 16(1)(a) of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment for 9 months and a fine of Rs. 1,000/- by the Sub-Divisional Magistrate; and the conviction and sentence have been confirmed in appeal by the Sessions Judge. The charge against the petitioner was that he sold tea adulterated by adding prohibited coal-tar dye.

2. The Food Inspector visited the tea factory on 28th January, 1967 and purchased 375 grams of tea dust from a stock stored and exposed for sale. The sample was divided into three parts and packed and sealed in three clean dry bottles; one bottle was handed over to the petitioner, another was sent to the Public Analyst the same day and the third was retained with the food Inspector. The report of the Public Analyst (Ex. P6) appears to have been signed on 7th May, 1967; and the prosecution was started on 4th July, 1967. The prosecution witnesses were examined on 15th July; and thereafter, the petitioner applied for having his sample tested by the Central Food Laboratory. On 18th July, the sample was sent to the Central Food Laboratory; and Ex. Cl dated 10th August, 1967, is the certificate issued by the Director of the Central Food Laboratory. Several contentions have been raised and have also been considered by the Lower Courts, Before me the main question argued relates to the validity, effect, etc., of the certificate of the Director of the Central Food Laboratory,

3. The standard that tea has to satisfy Is prescribed by A.14 in Appendix B of the Prevention of Food Adulteration Rules. A.14 is as follows:

'Tea means tea derived exclusively from the leaves, buds and tender stems oil plants of the Camellia genus and tea species. It shall conform to the following specifications:

(a)

Total ash determined on tea dried to constant weight at 10000.

5.0 to 8.0 per cent

(b)

Total ash soluble in boiling distilled water.

Not less than 40.0 per cent of total ash.

(c)

Ash insoluble In HCL.

Not more than 1.0 per cent.

(d)

Extract obtained by boiling dry tea (dried at constant weight at10000.) with l00 parts of distilled water for one hour under reflux.

Not less than 85 per cent.

(e)

Alkalinity of soluble ash.

Not less than 1.8 pet cent. and not more than 2per cent,expressed as K2O.

(f)

Crude fibre.

Not more than 10 per cent.

It shall not contain any added colouring matter.'

Ex. P6, the report of the Food Analyst, discloses:

'Microscopic examination;

The sample consists of tea only.

Total ash determined On tea dried to the constant weightat 1000C.

8.0 per cent

Alkalinity of soluble ash.

2.0 per cent as K20

Water soluble ash.

61.6 per cent of the total ash.

Ash insoluble in HCL.

0.2 per cent.

Crude fibre.

11.2 per cent.

Aqueous extract ob. tained by boiling dry Sample (dried to constantweight at 1000C) With hundred parts of distilled water for onehour under reflux.

85.5 per cent.

A non-permitted orange coat-tar dye.

Present.

and (I) am of the opinion that the said sampl' doea notconform to the standards prescribed for tea under the Prevention of FoodAdul. teration Rules, 1955, and is therefore adulterated. I am further ofopinion that the sample contains coal-tar dye. The addition of coal-tar dye totea is prohibited as per clause A.14 Appendix B of Prevention of FoodAdulteration Rules, 1955.'

The relevant portion of the certificate issued by the Director of the Central Food Laboratory (Ex. C1) shows:

''Total ash (on dry Weight basis).

8.7 per cent.

Ash soluble in boiling distilled water.

82.9 pec cent, of total ash.

Ash insoluble in HCL.

1-7 per cent.

Alkalinity of soluble ash.

1.15 per cent, as K2O.

Hot water extract (on dry weight basis).

81.8 per cent

Crude fibre.

18.4 pee cent.

Added colouring matter.

Absent.

Microscopic examination.

Structures other than tea are absent.

Opinion : The sample of tea is adulterated.'

I have quoted the above extracts in extenso as I feel that, for a proper appreciation of the discussion hereinafter, the extracts are essential.

4. For the purpose of comparison of the aforesaid three extracts, I shall treat clauses (a) to (f) in A.14 as one part and the portion relating to the colouring matter as another part. Now, comparing A.14 and Ex. P6, what appears is that all the requirements of the first part of A.14 are satisfied by the data given in Ex. P6 relating to that part. On the second part, Ex. P6 says that non-permitted orange coal-tar dye is present. Again, the result of microscopic examination is that the sample contains tea only. In the opinion portion of Ex, P6, the Public Analyst says that 'the sample does not conform to the standards prescribed for tea under the Prevention of Food Adulteration Rules, 1955, and is therefore adulterated'. This obviously relates to the first part in A.14; and this opinion of the Public Analyst appears to be wrong, because, as I have already pointed out, all the requirements of the first part of A.14 have been satisfied by the data relating to the same in Ex. P6. The Public Analyst then says that 'the sample contains coal-tar dye: the addition of coal-tar dye to tea is prohibited as per Clause A.14 Appendix B of the Prevention of Food Adulteration Rules, 1955'. Here the Public Analyst Is right.

5. Now, I shall compare Ex. C1 with A.14. Ex. C1 shows that on microscopic examination, no structures other than those of tea are present: it also discloses that crude fibre, one of the requirements in the first part of A.14, is less than 15 per cent. The sample however does not satisfy the standards prescribed by Clauses (a) to (e) in the first part of A.14. On the second part relating to the addition of colouring matter. Ex. Cl says that there is no added colouring matter. (It may be remembered at this stage that the charge against the petitioner was that he sold tea adulterated by the addition of prohibited coal-tar dye).

6. Under Section 11 of the Act, the sample taken has to be divided into three parts: one part has to be sent to the Public Analyst, another has to be kept with the Food Inspector and the third has to be given to the vendor. The prosecution is based on the result of the report of the Public Analyst. During trial, both the Food Inspector and the accused person (the vendor) are given the right to have the samples with them sent to the Central Food Laboratory for test and a certificate from its Director (vide Section 13(2)). When a certificate is obtained from the Director of the CentralFood Laboratory, the certificate supersedes the report of the Public Analyst (vide Section 13(3)). Sub-section (5) of Section 13 then prescribes:

'Any document purporting to be a report signed by a Public Analyst, unless it has been superseded under Sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act. .....:

Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein'.

7. Under Sub-section (5), both the report of the Public Analyst and the certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein; and under the proviso to the sub-section, any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. From the wording of this sub-section, it is clear that what is relevant as evidence in both the report and the certificate are only the facts stated therein, in other words, the data relating to the analysis, and not the opinion of the Analyst or the Director. This is clear from the wording of the Sub-section itself; and I do not think there is any need for any decision in support thereof. At any rate, P. K. Ali v. Food Inspector, Tellicherry, 1967 Ker LT 1095, Nagar Mahapalika Kanpur v. Ram Niwas, AIR 1964 All 349, Mohanlal Chhaganlal Mithaiwala v. Vipanchandra R. Gandhi, AIR 1962 Guj 44 and similar decisions may be referred to.

8. The language of Sub-section (5) in relation to the proviso thereto may now be considered. Both the report and the certificate may be used as evidence; this is what the sub-section says. But, when we come to the proviso, it says that the facts contained in the certificate of the Director shall be final and conclusive evidence. I may also reiterate that under Sub-section (3) the certificate supersedes the report.

9. In my opinion, the questions that arise when a report or a certificate comes up for consideration are whether it may be admitted in evidence and whether it is reliable. What Sub-section (5) does is to make the certificate and the report admissible in evidence: it does not make them reliable evidence. In other words, they are by themselves evidence; and the Analyst or the Director need not be examined before the report or the certificate is admitted in evidence. What the proviso to the sub-section does further is to make the data or the facts found on analysis or test by the Director to be final. In my opinion, finality and conclusive-ness are enjoined on the certificate of the Director to obviate the necessity of the examination of the Director as a witness and also to prevent the protraction of the proceeding by asking for a further or a better test or analysis. The Public Analyst may be called as a witness; and the court or the parties are not precluded from calling him. On the other hand, the Director of the Central Food Laboratory cannot be called as a witness. If the right to call him as a witness is also given, the proceeding will naturally be protracted. Thus, the purpose of enjoining finality on the report of the Director is only to achieve these ends.

Whether the certificate is reliable and good evidence and whether it discloses adulteration are questions to be decided by the Court. On these questions the certificate is not final and conclusive, excepting that, if the court decides to act on the certificate, it has to accept the data found by the Director as a result of his test as final and conclusive; and must then decide whether the sample is adulterated. On the last question, whether there is adulteration on the basis of the data supplied by the Director, even other evidence may be allowed vide, AIR 1962 Guj 44; and the proviso to Sub-section (5) of Section 13 does not appear to be a bar to this.

10. In this case, both the Lower Courts have held that the report of the Public Analyst has been superseded; and since the certificate of the Director discloses facts which show adulteration, the petitioner is liable to be convicted.

11. Both the Public Analyst and the Director of the Central Food Laboratory are experts; and they use scientific methods to analyse, test and find out the constituents of the samples sent to them. In this case, the analysis by one discloses that the sample contained coal-tar dye: the analysis by the other discloses that the sample did not contain coal-tar dye. The analysis by the former discloses that the constituents mentioned in the first part of A.14 were all satisfied: the analysis by the latter discloses that the constituents or their percentages do not correspond to the standards prescribed by clauses (a) to (e) of the first part of A.14. Microscopic examination by both shows that the samples contained only tea. In view of these, I find it difficult to treat the certificate (Ex. C1) as reliable evidence regarding the facts or the data found by analysis by the Director. It ispointed out by the counsel of the Food Inspector that since the certificate has superseded the report, the latter can no more be looked into even for ascertaining whether the certificate is reliable,

Even accepting this, what the certificate shows is that nothing was found added in the sample (the sample was tea only and it did not contain added coal-tar dye); and that the percentages of total ash and of ash insoluble in hydro-chloric acid were a little higher than the standards prescribed and the percentages of alkalinity of soluble ash, of total ash soluble in boiling distilled water and of hot water extract (on dry weight basis) were lower than the prescribed standards. Adulteration under the Prevention of Food Adulteration Act may be by the addition of baser or cheaper ingredients, by the addition of prohibited colouring matter, by the addition of prohibited preservatives, by not keeping the prescribed standards, by not keeping proper sanitary conditions, etc. In this case, it may be remembered that the charge against the petitioner is that he sold tea adulterated with added coal-tar dye; and that the certificate of the Director discloses that no coal-tar dye was present in the sample. The test by the Director took place about six months and a half after the samples were taken; and there is no knowing whether there was any possibility of the ash content and its alkalinity changing by lapse of time.

12. In view of all the aforesaid facts and circumstances, I feel it is quite unsafe to hold that the tea sold by the petitioner was adulterated.

13. The revision petition is allowed; the conviction and sentence are set aside; and the petitioner is acquitted.

14. In view of the acquittal of the petitioner, the writ petition is not pressed; and the same is dismissed without costs Revision petition allowed.


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