K.N. Mudaliyar, J.
1. The two petitioners (accused 1 and 2) seek to revise their conviction under Section 16(1) (a) (i) read with Section 7 (ii) of the Prevention of Food Adulteration Act, 1954.
2. On 31st March, 1967 at about 9-30 a.m. accused-2, the salesman employed by accused-1 in his grocery shop was found in possession of compounded miskey asafoetida for sale. Accused-1 was the owner of the grocery shop. Accused-2 sold six ounces of the compounded miskey to the Food Inspector P.W. 1, which on analysis was found to be misbranded. It is unnecessary for me to notice the other facts or the circumstances of the case for meeting the argument of the learned Counsel (Mr. Vanamamalai).
3. Firstly, it was argued that the examination of the Public analyst of the sample in question revealed the result to the effect that the sample is artificially coloured by the addition of orange R.N., water soluble dye, derived from coal tar. The public analyst was of further opinion that as per clause A-04 in Appendix B to the Prevention of Food Adulteration Rules, 1955 compounded asafoetida should not contain any added colouring matter. He expressed his opinion that the sample was misbranded. On the basis of the contents of Exhibit P-3, the learned Counsel argued that the prosecution has not really proved that the orange R.N., water soluble dye, derived from coal tar does not fall under the permissive coal tar dyes enumerated in Rule 28. I am not able to accept this argument, for, it is crystal clear that the orange R.N., water soluble dye is certainly not one of the permissive coal tar dyes within the ambit of Rule 28. If that were so, it was certainly open to the accused to cite the public analyst and examine him or cross-examined for the proof of orange R.N., water soluble dye as one of the permissive coal tar dyes within the meaning of Rule 28. Later Mr. Vanamamalai was fair enough to bring it to the notice of the Court the ruling in B. Suryanarayana, In re (1968) 2 An.W.R. 135 : (1968) M.L.J. 443, and argued on the basis of the reasoning found in that judgment, that orange R.N., water soluble, dye does not come within the ambit of Rule 28.
4. Mr. Vanamamalai argued about the lack of proof of the sample being misbranded but later in view of the terms of Section 16 (1) (a) (i) and Section 2 (ix) (j) and (k) of the Act the argument was abandoned.
5. Mr. Vanamamalai eloquently pleaded that the quantity of the sample sent to the public analyst is not in consonance with the quantity prescribed under the rules. But he made it clear that he was pressing this only for the purpose of extenuating the crime. As long as the public analyst does not find the quantity insufficient to render an analysis fruitless or nugatory, this argument would not avail the petitioner.
6. It was certainly open to the Public Health Authorities to have pursued the matter and found out whether the vendor of this asafoetida is also equally guilty of the crime. It is certainly not the case of the prosecution that accused 1 or accused 2 had anything to do with the preparation of this admixture found in the sample. In view of this and certain other circumstances of the case, I consider that this is a case fit for reducing the sentence to the period of imprisonment already undergone by the petitioners Accused-1 is sentenced to pay a fine of Rs. 500 and in default to undergo rigorous imprisonment for six months. Time for payment of the fine one month from now.