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The State of Gujarat Etc. Vs. KutubuddIn Isafali Kushalgadhvala Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1981CriLJ908; (1980)2GLR167
AppellantThe State of Gujarat Etc.
RespondentKutubuddIn Isafali Kushalgadhvala Etc.
Cases ReferredPrem Ballab v. The State
Excerpt:
- - 867 of 1978, dated 30th november, 1979 where also a similar question arose and after quoting section 20, the learned judge has made the following observations with which observations i am in perfect agreement: the finding of the learned judicial magistrate, first class, kapadvanj is clearly erroneous when he came to the conclusion that the written consent should have been obtained of the authority which had the authority on 4-2-1976. in this view of the legal position as it emerges on amendment of section 20 of the act, there would be no doubt that the consent given by the competent authority in the instant case is valid one and the learned magistrate was, therefore, patently in error in holding that the authority competent to grant consent was the one authorised to do so prior to.....m.k. shah, j.1. these two appeals are filed by the state of gujarat and the original complainant-food inspector, and are directed against the order, of acquittal passed by the learned judicial magistrate, first class, kapadvanj in criminal case no. 1618 of 1976 acquitting the respondent-accused of the offences under section 7(1) read with section 16(1)(a)(i) of the prevention of food adulteration act, 1954 ('the act') read with rule 23 of the prevention of food adulteration rules, 1955, ('the rules').2. from the shop of the accused, on 17-2-1976, the complainant food-inspector purchased a sample, for the purpose of analysis, of chilli powder weighing 450 gms., and after following the necessary formalities, divided the same into three parts in three bottles. the accused was prosecuted in.....
Judgment:

M.K. Shah, J.

1. These two appeals are filed by the State of Gujarat and the original complainant-food inspector, and are directed against the order, of acquittal passed by the learned Judicial Magistrate, First Class, Kapadvanj in criminal case No. 1618 of 1976 acquitting the respondent-accused of the offences under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ('the Act') read with Rule 23 of the Prevention of Food Adulteration Rules, 1955, ('the Rules').

2. From the shop of the accused, on 17-2-1976, the complainant food-inspector purchased a sample, for the purpose of analysis, of chilli powder weighing 450 gms., and after following the necessary formalities, divided the same into three parts in three bottles. The accused was prosecuted in receipt of the report of the Public Analyst to the effect that it contained Ash insoluble in dilute HCI at 3.009% instead of the specified percentage of 1.3% under the rules and that it contained oil soluble coal tar dye. A complaint was lodged against the respondent-accused for the aforesaid offences before the learned Magistrate.

3. At the request of the accused, one of the three bottles in which sample was collected, was forwarded to Director of the Central Food Laboratory, Calcutta for analysis by the learned Magistrate and the report of the Central Food Laboratory Ex. 32 dated 30-9-1977 disclosed that it contained ash insoluble in dilute HCI of 2.9% and it also contained oil soluble coal tar dye.

4. On the evidence led before him, the learned Magistrate came to the conclusion that the written consent sanctioning the prosecution granted under Section 20 of the Act in the instant case was not by the authority competent to grant that sanction. He further held that though there was coal tar dye found in the sample which was analysed by the Central Food Laboratory there was no indication as to what was the colour of the dye and that, therefore, it was not possible to say whether it was permitted dye or not. He also found that the total ash contained viz. 9.9% was also more than the prescribed percentage which was 8% and he further held that as ash insoluble in dilute HCI was also more than specified percentage, the same being 2.9% instead Of 1.3%. However, as he was of the opinion that the written consent sanctioning prosecution was not by the competent authority, he acquitted the accused by his order dated 22nd May 1978 and it is the said impugned order which is the subject matter of challenge in these two appeals filed by the State of Gujarat and the original complainant food inspector.

5. Mr. Desai, the learned Advocate appearing for the original complainant in appeal No. 1328 of 1978, drew my attention to the fact that in the instant case, the sample was collected on 17th February, 1976. At that time, Section 20 of the Act as it stood then, provided thus:

20 (1) No prosecution for an offence under this Act shall be instituted except by or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority.

The proviso is not relevant for our purpose.

6. By amending Act 34 of 1976, Section 20 was amended and the amended section reads thus:

(1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A, shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government.

The proviso is not relevant for our purpose. In the instant case, though the sample was collected on 17th February, 1976, written consent for instituting prosecution was granted by the Local Health Authority and Chief Medical Officer of Health, Kheda Jilla Panchayat, Nadiad, on 16th August, 1976, who is authorised to give such written consent by a notification issued by the State Government. It was contended on behalf of the accused that as the offence took place before Section 20 was amended, the written consent required for prosecution should be of the authority competent to grant such consent on 17th February 1976 that is prior to the amendment and not after the amendment.

7. This argument was accepted by the learned Magistrate. Obviously, notification dated 7-7-1975 was in force which conferred powers under Section 20 of the Act as it stood before the amendment, authorizing persons specified in column 2 of the schedule appended to the said notification to grant consent in respect of prosecution in respect of areas specified against column No. 13 of the Schedule. Column No. 13 described Chief Medical Officer of Health, Kaira district (Nadiad) as the person and the areas included Kaira district excluding the areas comprised in Municipality of Nadiad, Anand, Petlad, Cambay Borsad Kapadvanj, Umreth and Nagar Pinhead, Balas nor, Dakar Mahemdabad, Sojitra and Kaira. Thus, so far as Kapadvanj is concerned, the Chief Medical Officer of Health, Kaira district, Nadiad would not be the competent authority to issue consent if Section 20 prior to amendment was to hold field. But after the amendment, a fresh notification in supersession of the previous notification was issued on 26th April, 1976 by which in the schedule, at Sr. No. 7 the person mentioned is Chief Medical Officer of Health, Kaira district (Nadiad) and against which, the words each of local areas in the Kaira district' are set out and therefore, if the amended section is to operate, then, the consent in the instant case would be a valid one. Section 20 relates to institution of a prosecution and not to commission of the offence. The point of time when the prosecution is instituted and not the point of time when the offence is committed. Though the offence was committed on 17th February, 1976, the prosecution was launched on 23rd August, 1976 and, therefore, the relevant time would be the time after the amendment which came into force on and from 26th April, 1976 and the consent, therefore, granted on 16th August 1976 by the authority specifically authorised in this behalf, by the said notification dated 26th April, 1976 in supersession of the previous notification dated 7 th July 1975 will constitute a valid consent.

8. Mr. Desai, in this connection, drew my attention to a decision of this Court by Talati, J. in criminal appeal No. 867 of 1978, dated 30th November, 1979 where also a similar question arose and after quoting Section 20, the learned Judge has made the following observations with which observations I am in perfect agreement:

It is not in dispute that the person who gave the written consent had the authority to give such consent after 1-4-1976, In fact, after 1-4-1976, Kapadvanj Municipality had no power left to give any such consent. The written consent is necessary for the purpose of instituting a prosecution. Criminal proceedings cannot be said to be 'instituted' until a formal charge is openly made against the accused by complaint before a Magistrate. This one finds in Venkataramaiya's Law Lexicon, Volume I on page 639, 1971 Edition. Now this criminal proceeding is instituted on 23-8-1976. Now, therefore, the Court at the time of taking cognizance was bound to see whether on that day the prosecution was instituted with written consent of the prescribed authority. That written consent was obtained on 16-8-1976. In view of the provisions contained in Section 20 of the Act it cannot be suggested that the written consent of Kapadvanj Municipality was necessary on that day and that this written consent was not proper. The finding of the learned Judicial Magistrate, First Class, Kapadvanj is clearly erroneous when he came to the conclusion that the written consent should have been obtained of the authority which had the authority on 4-2-1976.

In this view of the legal position as it emerges on amendment of Section 20 of the Act, there would be no doubt that the consent given by the competent authority in the instant case is valid one and the learned Magistrate was, therefore, patently in error in holding that the authority competent to grant consent was the one authorised to do so prior to amendment and in acquitting the accused on that ground.

9. With regard to the merits, on going through the report of the director Central Food Laboratory which is at Ex. 32, it is clear that as per the analysis carried out by the Central Food Laboratory, there was excess so far as total ash contents are concerned as also ash insoluble in dilute HCI contents are concerned. It also shows that oil soluble coal tar dyes which was a colouring matter not permissible under the rules was added and thus the sample of the chilli powder analysed by the Central Food Laboratory was adulterated within the meaning of Section 2(1a) as also (m) of the Act. Rule 5 lays down that standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix. Turning to appendix B, we find at item No. A.05.05.01 chilli powder which means powder obtained by grinding clean dried chilli pods of Capsicum frutescens L/Capsicum annum, and it provides that chilli powder shall be dry, free from dirt, mould growth, insert infestation, extraneous matter, added colouring matter and flavouring matter. It further provides that the chilli powder may contain any edible oil to a maximum limit of 2 per cent by weight under a label declaration for the amount and the nature of oil used, and it then prescribes standards. The total ash prescribed is not more than 8.0 per cent by weight and ash insoluble in dilute HCI is prescribed at not more than 1.3 per cent by weight. Rule 23 provides-

23. The addition of a colouring matter to any article of food except as specifically permitted by these rules is prohibited.

Rule 28 which relates to coal tar dyes which may be used says-

No coal tar dyes or a mixture thereof except the following shall be used in food.

It then sets out four colours viz. red, yellow, blue and green. Rule 29 provides that use of permitted coal tar dyes in or upon any food other than those enumerated in that rule, is prohibited, and then items (a) to (o) are enumerated. Nowhere in these items (a) to (o), we find chilli powder. That means, no coal tar dye of whatever colour is permitted to be added in chilli powder. The learned Magistrate was, therefore, obviously in error in not reading these rules properly and in coming to the conclusion that because colour was not mentioned in the report about coal tar dye, it was not possible to say whether permitted colour was used or not. It seems, the learned Magistrate lost sight of Rule 29 which even in respect of permitted coal tar dye casts a total prohibition with respect to items which do not find a place in the list of items set out in that rule. Chilli powder is not one of the items set out in that rule and, therefore, no coal tar dye irrespective of colour to which it may belong, is permitted to be added to any chilli powder. The accused was, therefore, clearly guilty of this breach and on this count alone, lie should have been held guilty of selling an adulterated article of food.

10. With regard to ash contents insoluble in dilute HCI also, as per the specific percentage, the percentage found on analysis is in excess and the sample of chilli powder is adulterated on that count also. Of course, so far as this aspect is concerned, the learned Magistrate has held against the accused. But as he was of the opinion that there was no valid consent issued under Section 20, he had passed the impugned order of acquittal.

11. Mr. Shah, the learned Advocate appearing for the accused seeks to support the judgment on other grounds, though they were not taken up before the lower Court. He, first of all, draws my attention to the two reports of the public analyst which is at Ex. 24 and that of the Director of the Central Food Laboratory which is at Ex. 32 and points out therefrom a divergence appearing in the results recorded by these two reports. Particularly, he refers to the percentage of moisture which, as per the report at Ex. 24 (Public analyst's report) is 9.768%; while the same is 4.5% only as per Ex. 32. Ash insoluble in dilute HCI as per Ex. 24 is 3.009%; while the same is 2.9% as per Ex. 32. As per Ex. 24, there is absence of any crude fibre in the sample analysed; while as per the Central Food Laboratory's report at Ex. 32, it is present to the extent of 23.8%. Mr. Shah, therefore, submits that such a wide range of divergence between the two reports is suggestive of and should lead to an inescapable conclusion that the samples have been tampered with. In any case, further submits Mr. Shah, the matter is not free from doubt and the benefit of that doubt must go to the accused.

12. I am unable to accept the contention of Mr. Shah. There is specific statutory provision contained in Section 13(3) which reads thus:

The certificate issued by the Director of the Central Food Laboratory under Sub-section (2-B) shall supersede the report given by the public analyst under Sub-section (1).

Sub-section (5) provides thus:

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 or under Sections 272 to 276 of the Indian Penal Code (45 of 1860).

Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to Sub-section (1) of Section 16 shall be final and conclusive evidence of the facts stated therein.

It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the public analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is a report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, be treated as nonexistent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst, which has already been superseded, does not arise. These are statutory provisions and they have to be strictly complied with.

13. But Mr. Shah then submitted that in any event, the Court in such cases, should take a strict view of the matter if the requirements of the rule with regard to the manner of packing, sealing and testing of samples is not strictly adhered to, and with this aim in view, Mr. Shah formulates the following points:

There is breach of Rule 14 committed by the complainant inasmuch as the container in which initially the sample of the chilli powder was collected from where it was later distributed into three parts into three bottles, is not shown to have been cleaned and dried and closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture, as provided in Rule 14 which at the relevant time, read as under:

Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.' Now, as the evidence shows, as pointed out by Mr. Shah, 450 gms. of chilli powder was collected first. The food inspector does not say as to in what container, this quantity of chilli powder was first kept till it was distributed into three bottles. The food inspector in his evidence does say that chilli powder which was kept for the purpose of selling in the shop of the accused was kept in bags of paper and it was in powder form. He does say that he purchased 450 gms. of chilli powder and thereafter divided the same into three samples of 150 Gms. into three empty, dry, clean glass bottles in equal parts. This, in my opinion, is sufficient compliance with Rule 14. There is nothing to show that before the same were put in three bottles they were kept in any other container as such. As a matter of fact, they were lying in paper packets and in all probability, they must have been weighed and thereafter kept in paper and then transferred to three bottles as aforesaid. In cross-examination, it is not suggested that any such container was used for keeping the sample when initially collected before it was distributed into three sample bottles.

14. Mr. Shah then contends that there is breach of Rule 16(b) and (c) inasmuch as that the evidence of the food inspector does not show that the paper used for wrapping the bottels was fairly strong thick paper as provided by Rule 16(b) which reads thus:

All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:

(a) x x x(b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive.

15. Mr. Shah also contends that there is breach of Rule 16(c) inasmuch as the food inspector has not stated that the twine or thread by means of which the paper cover was secured was a strong twine or thread. Rule 16(c) provides thus:

The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which, one shall be at The top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of sender.

It is true, in the evidence, specifically the food inspector does not say that the paper used for wrapping the sample was fairly strong thick paper and that the twine used for securing the paper cover was strong twine. But if we read his evidence a little carefully, it would be clear that he has complied with this requirement of the rule. He has stated as follows:

(Matter being in Gujarati omitted in this report-Ed.)

After referring to affixing seal bearing the signatures of the panchas and seals being affixed on the knots, the witness says that certain other formalities were also done as per the rule; and while describing those formalities which were done as per the rule, that is as provided under the above rule, he refers to affixing of label on which signatures of the panchas and the tradesmen were taken, keeping of the bottles in paper, affixing the fold with an adhesive and securing wrapper with twine and affixing seals on the knots as also at four places on the bottle. This, in my opinion, means that all the acts as prescribed by the rules were done in compliance with the rules. When he refers to the bottles being kept in paper according to the rule, it means that they were kept in fairly strong thick paper as prescribed by the rule and when he refers to the wrapper being secured by twine, as per rule, it means that it was secured by means of a strong twine as prescribed by the rules. Here also, there is no cross-examination to suggest that the paper used was not fairly strong thick paper or that the twine used was not a strong twine. In my opinion, there is no breach of Rule 16(b) or (c) as contended by Mr. Shah.

16. Mr. Shah lastly contended that in the instant case, the report submitted by the Central Food Laboratory Ex. 32, merely contains analysis or result of the analysis and does not show the mode or method used by the Central Food Laboratory for deriving or deducing results. The report is, therefore, a perfunctory one and deprives the accused of an opportunity to show that it has Not been arrived at by following a scientific method or following a method accurately.

17. Mr. Shah, in this connection, strongly relies on certain observations of the Supreme Court in Kisan Trimbak Kothula v. State of Maharashtra : [1977]2SCR102 . The Supreme Court upheld the conviction under Section 16(1)(a)(i) and made the following observations:

Thus the conviction under Section 16(1)(a) end the exclusion of the proviso (i), are justified; subject to what we have to say about the Public Analyst's report and the criticism levelled thereon which bears on-the guilt of accused No. 2.

Then appear the observations on which Mr. Shah strongly relies which are at page 308 in para 15:

Counsel for the appellants correctly criticised the inadequacy of the public analyst's certificate. Had there been a plea of 'not guilty' we might have been forced to scrutinise how far the perfunc-toriness of the public analyst had affected, the substance of his conclusions. It is not enough to give a few technical data. It is more pertinent to help the Court with something more of the process by which, the conclusion has been arrived at We need not probe the matter further, notwithstanding the decisions reported in two English cases (Fortune v. Hanson (1896) 12 ITR 164 : 18 Cox CC 258 : (1896) 1 QBD 202 & Newby v. Sims 10 TLR 206: 63 LJMC 228 : (1894) 1 QB 478 482) (cited before us) because the plea of 'guilty.' silences the accused.

Mr. Shah wants me to read in these observations a dictum by the Supreme Court that a report of the public analyst or certificate issued by the public analyst which merely records result arrived at without showing the method by which it was arrived at, is not sufficient to base-the finding that the sample is adulterated. I fail to see any such mandate or read any such universal rule in the observations of the Supreme Court. These observations are not even in the nature of an obiter. They are in the nature of some passing thoughts which the Supreme Court set out on a particular aspect which, it was not called upon them to consider as stated by it in so many words, in view of the fact that the accused in that case had pleaded guilty and such a question, therefore, did not arise. Again, the Supreme Court has merely stated that if the plea of guilty was not there, the Supreme Court would have been forced to scrutinise how far the perfunctoriness of the public analyst's report had affected the substance of the conclusion, meaning thereby that in that case, the Supreme Court would have entered into the question as to how perfunctoriness of the public analyst's report had effected the substance of the conclusions arrived at by the public analyst and then the Supreme-Court observed that it was not enough to give a few mechanical, data and it is more pertinent to help the Court with something more of the process by which the conclusion has been arrived at. But this does not and cannot mean that the Supreme Court has laid down a rule of universal application that if something mere of the process by which the conclusion has been arrived at is not set out in the report, it becomes a scrap of paper and that the conclusion recorded should not be relied on. Again, the Supreme Court was dealing with a public analyst's report and not the report of the Central Food Laboratory. From the judgment, it is not possible to find out as to what were the exact contents of the public analyst's report which was before the Supreme Court and whether the contents of the Central Food Laboratory's report before this Court are similar to the ones of the report which was before the Supreme Court.

18. In this connection, a mere look at Section 13(2B) will show as to what are the contents necessary to be included in the report to be submitted by the Director of Central Food Laboratory. It reads thus:

(2B). On receipt of the part or parts of the sample from the Local (Health) Authority under Sub-section (2A), 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 intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts 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 part of the sample specifying the result of the analysis.

It would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis. There is no dispute that the certificate issued as per Ex. 32 is in the prescribed Form II and it does specify the result of the analysis. In this view of the matter, no fault can be found with this certificate and the learned Magistrate was, therefore, obviously in error in coming to the conclusion that the accused was not guilty of the offences under Section 18, The conclusions drawn by the learned Magistrate are based an misconception of law and the interpretation of the provisions contained in the Act and the Rules, unworthiness of the conclusion drawn as also reasons advanced in support thereof by him are clearly demonstrated hereinabove. The order of acquittal is, therefore, not suitable and there is sufficient material on record to justify the recording of a finding of guilt against the accused for the offence under Section 7(1) read with Section 16(1)(a)(i) read with Rule 23. The result, therefore, will be the following order:

Appeals allowed. Order of acquittal set aside. The accused is convicted of the offences under Section 7(1) read with Section 16(1)(a)(i) of the Act read with Rule 23 of the Rules. With regard to sentence, notice to be issued to the accused for hearing with regard to sentence, returnable on 30-4-1980.

19. In pursuance of the notice issued, the accused is personally present along with his learned Advocate and he has filed an affidavit setting out the facts and circumstances praying for leniency being shown to him in view of the special facts of the case. But before I deal with the question of sentence, my attention is drawn to the fact that the offence in the instant case technically speaking would not fall within Section 16(1)(a)(i) but would fall within Section 16(1)(a)(ii). The breach committed was on addition of colouring matter to an article of food not specifically permitted by the rules and thus prohibited. An article of food therefore, cannot be said to be adulterated within the meaning of Sub-clause (m) Of Clause (ia) of Section 2 which provides that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. However it will fall within Clause (j) of Section 2(ia) which provides that an article of food shall be deemed to be adulterated if any colouring matter other than that pre-j scribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability. In this view of the matter, the conviction will have to be for the offence under Section 7(1) read with Section 16(1)(a)(ii) and not Section 16(1)(a)(i) as earlier described because on the facts and material on record, what is disclosed and established is an offence which will be punishable under Section 16(1)(a)(ii) and not Section 16(1)(a)(i). It is true that the accused was charged under Section 16(1)(a)(i) and not Section 16(1)(a)(ii). But it is to be noted that in terms, the charge Ex. 25 mentioned breach of Clauses (a), (b)(c), (j) of Section 2(ia) of the Act and the question, therefore, of any prejudice being caused to the accused does not arise in the instant case, particularly when the prosecution was founded on an allegation that the accused committed an offence punishable under Section 16(1)(a)(i) by reason of the breach inter alia of Section 2(ia)(j) of the Act. The accused 1 therefore committed the offence under Section 7(1) read with Section 16(i)(h)(ii) of the Act.

20. In view of the conviction being under Section 7(1) read with Section 16(1)(a)(ii) instead of Section 16(1)(a)(i), the learned Advocate for the accused was asked if he wanted to make any further submission with regard to the sentence over and above those which are made in the affidavit filed by the accused, and beyond stating that the benefit of the proviso to Section 16(1) be given to the accused and lesser sentence than the minimum prescribed may be imposed on special facts of the case, as set out in the affidavit, no further submissions were made with regard to sentence.

21. My attention was drawn to a decision of the Supreme Court in Prem Ballab v. The State (Delhi Administration) : 1977CriLJ12 . The Supreme Court was concerned in that case with the sale of Linseed oil which contained artificial dye, and it held that it fell under Section 2(1)(j) and hence proviso to Section 16(1) cannot be invoked. The observations of the Supreme Court in this connection appearing at page 61 are very important and they aptly apply to the facts of the present case:

Clause (j) of Section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food or in other words, it is prohibited and yet the article contains a colouring matter.

The Supreme Court later observed:

Where no colouring matter is permitted to be used in an article of food, what is prescribed in respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it would clearly involve violation of Clause (j) of Section 2(i).

Still, further, the Supreme Court observed:

We take the view that even where the rules prescribe that no colouring matter or artificial dye shall be used in respect of an article of food, Clause (j) of Section 2(i) would apply if it is found that some colouring matter or artificial dye is present in the article- Here the linseed oil sold by the appellants contained artificial dye despite the prohibition in the Rules and hence the case was clearly covered by Clause (j) of Section 2(i) and the linseed oil must be deemed to be adulterated under that clause. That would exclude the applicability of the proviso to Section 16(1), since the offence in this view would be one with respect to an article of food deemed to be adulterated under Clause (j) of Section 2(i). The appellants' plea invoking the liberality of the provision enacted in the proviso to Section 16(1) must in the circumstances, be rejected and the minimum sentence of imprisonment for six months must be maintained.

22. In the instant case also, the chilli powder sold by the accused contained coal-tar dye despite the prohibition in the rules and hence, the case is covered by Clause (j) of Section 2(i) and the accused would not be entitled to the liberal provisions contained in the proviso to Section 16(1). Minimum sentence of six months will have to be imposed in the instant case in any event and taking into consideration the nature of the offence, its gravity and the special circumstances which are set out in the affidavit of the accused, in my opinion, ends of justice will be met if the minimum sentence prescribed under Section 16(1) of the Act viz. six months' R.I. and fine of Rs. 1,000/-, in default, further R. I. for two months is awarded. Order accordingly. At the request of the learned Advocate for the accused 8 weeks' time to surrender is granted to the accused.


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