S.H. Sheth, J.
1. The complainant-food inspector of Bhavnagar Municipality has filed this appeal against the order of acquittal recorded m favour of accused No. 1 and 2 by the learned Judicial Magistrate First Class, at Bhavnagar in Criminal Case No. 367, decided by him on 24th September 1973. By the impugned order the learned Magistrate has acquitted both the accused of the charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
2. The facts of the case briefly stated, are as follows:
The food inspector sent prosecution witness Suleman Karim to the shop of the accused for purchasing yellow food colour which has been described in this case as 'Mitho Pilo'. This expression when literally translated into English means 'sweet yellow'. The witness told accused No. 2 to sell to him this food colour. Accused No. 2 sold it to him and prepared a cash memo, ex. 6 in respect thereof. The food inspector who had sent the witness to the shop of the accused immediately went there and told accused No. 2 that food colour was purchased by the witness at his instance for analysis with the object of finding out whether it was adulterated or not. He followed the procedure prescribed in respect thereof by the prevention of food adulteration Act and divided the purchased quantity into three equal parts. He sealed them in the presence of accused No. 2 and the witness. Having carried out the necessary for malities of packing and sealing the three parts of the purchased quantity of food colour he gave one to accused No. 2 in the presence of the witness and sent another to the public analyst at Bhuj with his Memorandum and seal. He also sent a copy of the memorandum and a specimen impression of the seal by registered post to the public analyst. He received the report from the public analyst and found that the food colour sold by accused No. 2 was adulterated with metanil yellow coal tar dye the report of the public analyst also stated that the food colour did not conform to the standards laid down under the Prevention of Food Adulteration Rules, 1955.
3. The food inspector thereupon obtained the necessary sanction to prosecute the accused. After having obtained it he instituted the present prosecution against the accused. He led his own evidence and the evidence of P.W. Suleman Karim and produced the report of the public analyst the learned Magistrate at the end of the trial took the view that P.W. Suleman Karim was a butcher and was, therefore, under great influence of the food inspector who was also the sanitary inspector in his capacity as the sanitary inspector the complainant food inspector was required to discharge some duties in regard to the maintenance of sanitation in the premises where P.W. Suleman Karim had been or was supported to carry on his slaughtering operations. He, therefore, disbelieved the evidence of P.W. Suleman Karim and acquitted the accused.
4. It is that order of acquittal which is called in question by the complainant in this appeal which he has filed after obtaining special leave from this Court.
5. The principal question which has arisen for my determination in this appeal is whether what was sold by accused No. 2 to P.W. Suleman Karim was an article of food within the meaning of that expression given in the Prevention of Food Adulteration Act, 1954.
6. Mr. Patel who appears on behalf of the accused has very seriously contended before me that what was sold by the accused to the food inspector through P.W. Suleman Karim was not an article of food. The expression 'food' has been defined by Section 2(v) in the following terms:
'Food' means any article used as food or drink for human consumption other than drugs and water and includes-
(a) Any article which ordinarily enters into, or is used in the composition or preparation of human food, and
(b) Any flavouring matter or condiments.
The expression 'adulterated' has been defined by Clause (i) of Section 2. It lays down several forms of adulteration all of which need not be reproduced for the purpose of this case. It inter alia provides thus:
An article of food shall be deemed to be adulterated-
(a) If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
... ... ... ...(j) If any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article;
... ... ... ...(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits.
7. Mr. Ravani has argued that the learned Magistrate was in error in disbelieving the evidence of P.W. Suleman Karim because what was sold by accused No. 2 is not only proved by the testimony of that witness but by other documents also. Now in his evidence P.W. Suleman Karim who was sent by the food inspector to the shop of the accused has stated that he went to the shop of the accused and told him that he wanted to purchase 'mitha' Colour for Jalebi. Accused No. 2 sold it to him. The complainant arrived there, gave notice to accused No. 2 and carried out the necessary formalities and divided the purchased quantity in three parts. He drew up the panchnama in his presence. The accused in their shop had been selling thread, buttons, powder etc.
8. The food inspector Saiyad Mohmad Alarakh, P.W.L. Ex. 2, has corroborated P.W. Suleman karim in his evidence after having deposed to the facts to which P.W. Suleman karim has deposed. He has further stated that he sent it to the public analyst at Bhuj whose report he received. The report of the public analyst stated that the food colour sold by accused No. 2 to P.W, suleman karim was adulterated. An attempt was made on behalf of the accused in the cross-examination of the complainant-food inspector to show that what he had sold was not a food colour but colour for dyeing cloth. Mr. Ravani has asked me to appreciate the evidence of the complainant and P.W. Suleman karim in light of two documents, exs. 5 and 7. Ex. 5 is the notice which the food inspector gave to accused No. 2 on the spot. He has stated therein details of food in the following terms.
Having written this expression in English he has added in bracket below in Gujarati 'edible sweet yellow colour'. Ex. 7 is the receipt which accused No. 2 issued to the food inspector on the spot and in which he stated that he had sold to the food inspector of Bhavnagar Municipality 'edible sweet yellow colour' and that he had received a part thereof as sample. Mr. Ravani has argued that it was an error on the part of the learned Magistrate to have acquitted the accused merely on the ground that the evidence of P.W. Suleman karim was not reliable. Prima facie his argument is justified. It was an error on the part of the learned Magistrate to have read the evidence of P. W. Suleman karim in isolation. It was necessary for him to read it in light of the evidence of the complainant food inspector and in light of the notice, Ex. 5 and the receipt, Ex. 7. If he had done so, he would have prima facie come to the conclusion that accused No. 2 had sold to P.W. Suleman karim what purported to be a food colour. Even if P.W. Suleman karim was not employed by the complainant food inspector to purchase the food colour but if he himself had gone to the shop of the accused and purchased the food colour, he could have hardly been disbelieved because his evidence would have received support from the notice which he issued to the accused and the receipt which accused No. 1 gave him. Therefore, the fact that P.W. Suleman karim asked accused No. 2 to sell to him a food colour and that accused No. 2 sold him what purported to be a food colour can hardly be disputed. The learned Magistrate was, therefore, in error in recording his conclusion in so far as this aspect was concerned.
9. However, it does not bring to an end the controversy which has arisen before me. Mr. Patel has argued that it is necessary for the prosecution to prove that whit accused No. 2 sold was an article of food. If accused No. 2 represented that it was a food colour and if P.W. Suleman Karim purchased it as a food colour believing it to be so, but if it really was not a food colour, it cannot bring home to the accused the charge under the Prevention of Food Adulteration Act, 1954. Mr. Patel has further argued that at the most all that can be said against the accused is that what the accused did by selling to P.W. Suleman Karim something purporting to be a food colour was to cheat or deceive P.W. Suleman Karim if it really was not a food colour. According to him, even if far was so, it would not be sufficient to bring home to the accused the charge under the Prevention of Food Adulteration Act, 1954. In other words, it is the contention of Mr. Patel that irrespective of what the accused represented to P.W. Suleman karim and irrespective of what P.W. Suleman Karim asked accused No. 2 to sell it is the bounden duty of the prosecution to prove, in a case under the Prevention of Food Adulteration Act, 1954, that what was sold by accused No. 2 to P.W. Suleman Karim was an article of food.
10. In support of that contention of his he has placed reliance upon the unreported decision of the Supreme Court in Shah Ashu Jaiwant v. The state of Maharashtra Criminal Appeal No. 119 of 1971 decided on 18th August 1975. The principle which has been laid down in that decision is that the prosecution must prove that what the accused sold was an article of food meant for human consumption. It was a case in which til seeds were sold by a dealer to the Food Inspector. The accused contended in that case that the til-seeds which he had sold and which were found to have been adulterated were sold by him only for Pooja that is to say, for being burnt like incense or thrown into fire in the course of Pooja and not for human consumption. In the context of that contention the Supreme Court has laid down that it is the duty of the prosecution to show on evidence that what was sold by a dealer was an article of food meant for human consumption.
11. The question whether what was sold by a dealer was an article of food is bound to arise in every case. However, in a large number of cases the proof of that fact will not at all be difficult. As for example, in case of such articles of food as wheat-flour, ghee, milk, butter and such other things it is very easy for a court of law to conclude that it was an article of food and was sold, unless the circumstances otherwise show for human consumption. However, what holds good in cases of such articles of food does not necessarily hold good in cases of certain other articles like colours. A dealer may sell in the name of a food colour a colour which may not be a food colour. The bill or receipt which he issues may purport to show that he had sold a food colour. The evidence of the complainant may show that has had demanded to purchase a food colour and that what the dealer purported to sell to him was a food colour. However, what happens in a case where a dealer purports to sell in the name of a food colour something which is not a food colour? By doing so he may dupe his customer or purchaser and he may cheat or deceive him as well, but it would not be sufficient to bring home to him the charge under the Prevention of Food Adulteration Act, 1954. In cases of such articles which cannot be said to be ex facie articles of food it is always necessary for the prosecution to show that what was sold by a vendor or dealer was an article of food. A dealer or vendor cannot be convicted of an offence under the Prevention of Food Adulteration Act if he sold something in the name of a food colour which was not a food colour and which could not enter into the preparation of food. In the instant case, the defence of the accused is that they had sold a colour for dyeing cloth. The report of the Public Analyst merely describes, the sample seat to him as a food colour and does not state that what he had analysed was really a food colour. The argument which Mr. Patel has raised is that the accused has not sold a food colour at all. What he had sold in the name of 'mitho pilo' was not a food colour. In marginal cases of this type unless there is cogent proof to show that the article which was sold by the accused was a food colour, he cannot be convicted of an offence under the Prevention of Food Adulteration Act, 1954. Merely because the complainant has stated in his evidence that he had purchased food colour and merely because the bill issued by the accused show that he had sold 'edible mitho pilo', in absence of any cogent proof to show to that what the accused had sold to the complainant was in fact a food colour, the charge under the prevention of food adulteration Act, 1954 cannot be brought home to him. This aspect really disposes of the appeal.
12. However, it has also been argued that what was sold by the accused as a food colour was adulterated with something which could not be mixed with it. Reliance has been placed upon some of the rules in the Prevention of Food Adulteration rules, 1955. Part VI in the said rules deals with colouring matter. Rule 23 lays down that the addition of a colouring matter to any article of food, except as specifically permitted by the said rules, is prohibited. It is, therefore, clear that nothing else except a permitted colouring matter can be added to an article of food. Rule 24 has no relevance for the purpose of the present case. Rule 25 permits the addition of caramel without any label declaration. Rule 26 is very important for the present purpose. It deals with natural colouring matters which can be used. The opening part of that rule states as follows:
Except as otherwise provided in the rules the following natural colouring principles whether isolated from natural colours or produced synthetically may be used in or upon any article of food.
13. Thereafter follows a list of colouring matters specified in items (d) to (i) in that rule. Yellow food colour does not appear to answer the description of any of the colouring matters or principles specified in that rule. Mr. Ravani and Mr. Nanavati have argued that Rule 26 is not exhaustive and does not lay down a complete list of colouring matters which can be used in or upon an article of food. According to them, there can be a colouring matter, addition to those specified in Rule 26, which can be used in or upon an article of food. They have laid emphasis on the expression 'may be' in order to emphasize that the list is illustrative and not exhaustive. In my opinion, the argument advanced by Mr. Ravani and Mr. Nanavati is well-founded. On having a close look at Rule 26 it does not appear to me that the items specified in Rule 26 exhaust colouring matters which can be used in or upon an article of food. It is necessary in this connection to look at the definition of 'food' in order to find out whether a colouring matter can be 'food'. I have reproduced that definition in the earlier part of this judgment. In light of that definition it is clear that any article which ordinarily enters into the composition or preparation of human food is, amongst others, a food. A food colour which is used for colouring sweets and other articles of food can be said to be an article which enters into the composition or preparation of human food itself. Therefore, yellow food colour is an article of food within the meaning of Clause (v) of Section 2 of the Prevention of Food Adulteration Act, 1954. Such a food colour can be used in or upon any article of food without violating Rule 26. When a yellow food colour is an article of food and can be used in or upon any article of food for colouring it, it can only be used in consonance or conformity with the provisions of Rule 28. It lays down as follows:
Nno coal-tar dyes or a mixture thereof except the following shall be used in food.
The exceptions specified in the table attached to Rule 28 show four colours, viz. Red, yellow, blue and black. So far as yellow food colour is concerned, the coal-tar dyes or a mixture thereof which answers any one of the following two descriptions can be added within the meaning of Rule 28:
2. Sunset yellow FOR
There are the common names of those two coal-tar dyes. Their chemical names are as follows:
Rule 28 makes it clear that the use of coal-tar dyes or a mixture thereof in the preparation of food is not completely prohibited. Certain varieties or forms of them have been permitted by Rule 28. Two varieties of coal-tar dyes or a mixture thereof have been permitted to be mixed with yellow food colour. What the accused sold was found to contain metanil yellow coal tar dye which does not answer the description of tartrazine or sunset yellow for. It is, therefore, clear that if the prosecution had shown that what the accused sold to the complainant was yellow food colour, then the accused would have been liable to be convicted for having sold it with adulteration of metanil yellow coal-tar dye not specified in or permitted under Rule 28. Rule 28 goes a step further and prohibits the use of permitted coal-tar dyes (see Rule 28) in articles of food other than those specified in that rule. However, I am not concerned in the instant case with the application of Rule 29 because what was sold by the accused to the complainant did not answer the description of any of the articles of food specified in Rule 29. Rule 30 prescribes the maximum limit of permitted colours which can be used. Since I am of the opinion that the prosecution has failed to adduce adequate and satisfactory proof to show that what the accused sold was in fact a food colour and nothing else, the prosecution cannot succeed in this case.
14. Therefore, for the reasons stated by me in this judgment this appeal against acquittal must fail. I confirm the order of acquittal recorded by the learned Magistrate in favour of the accused not for the reasons stated by him in his judgment but for the reasons stated by me in this judgment.
The appeal fails and is dismissed.