Delhi District Court
Sh. C. S. Dev vs Food Inspector on 29 March, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CR No. 53/11
1. Sh. C. S. Dev
Hotel Duke and Restaurant
8, Netaji Subhash Marg,
Daryaganj, Delhi-110002.
2. Sh. H. S. Bhatiya
Hotel Duke and Restaurant
8, Netaji Subhash Marg,
Daryaganj, Delhi-110002.
3. Hotel Duke and Restaurant
8, Netaji Subhash Marg,
Daryaganj, Delhi-110002. ..... Revisionists
versus
Food Inspector,
Department of PFA,
GNCT. ..... Respondent
Date of institution of the revision : 19.10.2011
Date of reserving judgment/order : 22.03.2012
Date of judgment / order : 29.03.2012
JUDGEMENT :
1. The revision petition u/s 397 of the Code of Criminal Procedure (hereinafter referred to as "Cr.PC") against the order dated 07.06.2011 vide which the trial against the revisionists has been proceeded after summoning them.
2. The facts in brief are that on 23.03.2011 at about 03.00 p.m., Food inspector Usha Kiran had purchased 1500 CR No. 53/11 Page No. 1 of 10 -2- gms of "Sela Basmati Rice" from the revisionists / accused, who had stored the same for preparation of food articles for sale at his hotel M/s Duke Hotel and Restaurant and were divided into three equal parts by putting each packet as one counterpart and were sealed as per PFA Rules. One counterpart of the sample was sent to Public Analyst, who vide his report dated 11.03.2011 reported that the sample was adulterated because it was coloured with synthetic colouring matter i.e. Sunset yellow fcf.
3. On completion of investigation, a criminal complaint was filed against the revisionists. On 07.06.2009, Ld. MM summoned the accused persons in the said complaint case.
4. Aggrieved by the said order, the present revision has been filed.
5. It is argued on behalf of the revisionists that the rice, sample of which had been taken by Food Inspector, was not intended for sale but was for self consumption of the employees of the hotel. It is submitted that the revisionists were earlier running a restaurant, but had surrendered his licence for running a restaurant and was only having a guest house in the premises and no food item was provided for sale. He further submitted that this fact of rice not being meant for sale, had been told to the Food Inspector at the time the sample was taken and had also been mentioned on the documents prepared. It is submitted that since the sample of rice taken was not not intended for sale, no case under The CR No. 53/11 Page No. 2 of 10 -3- Act would have been made against the revisionists.
6. Ld. Special PP on behalf of the Department has argued that the present revision is not maintainable as these grounds for discharge can be agitated by the revisionists before the Ld. MM.
7. I have heard the arguments and perused the record. My observations are as under :
8. The main crux of the argument of the revisionists is that the rice, sample of which was taken from his premises, were not intended for sale. The Ld. counsel has relied upon case "State v. Udayram Rupram Oza, 1988 (79) Bom LR 372", wherein it has been held that the expression "store" in Section 7 means "storing for sale" and, therefore, storing of an adulterated article of food for purpose other than the sale would not constitute an offence u/s 16 (i)(a). He has also relied upon the case "Food Inspector v. Cherukattil Gopalan & Anr, AIR 1971 SC 1725", wherein also similar observations have been made.
9. In the case of "MCD v. Laxmi Narain Tandon etc., AIR 1976 SUPREME COURT 621", a reference was made to the definition of "Sale" under the Food Act, which reads as under :
"sale" with its grammatical variations and cognate expressions means the sale of any article of food whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer CR No. 53/11 Page No. 3 of 10 -4- for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article."
It was held that the supply or offer of food by a hotelier to a customer when a consolidated charge is made for residential accommodation and other amenities, including food, it amounts to a "sale" of an article of food. It is, thus, evident that an offer for an article of food for a money consideration irrespective of whether such consideration is ascertainable, as a distinct type or is an inseparable item of a consolidated charge for a number of thing, would bring it within the mischief of "sale".
10. Therefore, in so far as the argument in regard to the food item being for sale or not is concerned, it is a disputed fact whether the rice, which was found stored in the kitchen of the premises of the revisionists, was meant to be served as a food to the residents of the guest house or was intended only for consumption of the employees of the guest house. It is a matter which can be determined only after recording of the evidence and, therefore, the summoning of the accused at this stage cannot be faulted on this ground.
11. However, it is pertinent to note that as per the report of the Public Analyst dated 11.03.2011, the sample of rice was found adulterated because it was coloured with the synthetic colouring matter namely Tartrazine and sunset yellow fcf. The other parameters provided in the standard have all CR No. 53/11 Page No. 4 of 10 -5- been found to be within the prescribed limits. The question which, thus, arises is whether presence of synthetic colour per se would make it a sample to be adulterated and an offence punishable under the Act.
12. The first aspect for consideration is that the test applied by the Public Analyst for detecting the adulteration was the chromatography test. The reliability of Chromatography Test was considered in the case of "Maya Ram v. State of Punjab, 1987 (II) Prevention of Food Adulteration Cases 320", wherein it was observed as under :
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that rule 28permits use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public CR No. 53/11 Page No. 5 of 10 -6- Analyst cannot be taken as the gospel truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are non-experts."
13. The reliability of this paper chromatography test was also considered in the case of "Charanjeet Ahuja v. Senior Health Inspector, Northern Railways, Ambala Cantt, 1999 (2) RCR (Criminal) Punjab & Haryana", wherein the paper chromatography test had been applied for testing sample of "Chilly Powder", it was held that the said test was not a sure test. Reliance was placed upon the similar observations made by the Division Bench of Punjab & Haryana High Court in the case of "State of Haryana v. Ratan Lal (1993) XX CR.L.T. 79", wherein also it was held that this test was not sufficient to conclude whether permitted or non- permitted coal tar dye had been used.
14. The question here is whether the colour as observed in PA report was an artificial colour or could it be a natural colour. The test applied could have only detected presence of colour but not whether the colour was inherent or an added one. To distinguish between the two, further chemical tests would have to be performed. The PA report CR No. 53/11 Page No. 6 of 10 -7- does not show what test was conducted to know whether the whole soluble colour present in the sample was natural or added one. In these circumstances, the sample could not be conclusively stated to be adulterated.
15. The second aspect for consideration is whether mere presence of "sunset yellow" colour, would make the sample adulterated.
16. Admittedly, the sample article "Sela Basmati Rice" collected by the Food Inspector, as per the certificate of Public Analyst was found confirming to all the standards as prescribed in the Rule A.18.06.09 except on account of presence of extraneous synthetic food colour which was identified as Sunset yellow. This food colour is one of the permitted food colour provided under Rule 28 and its use is permitted in food articles specified in Rule 29. Even though "Sela Basmati Rice" split is not covered by food articles described under Rule 29, the question, which arises is whether the mere presence of this colour would render its nature, substance or quality as one not demanded by the buyer as well as to the prejudice of the buyer and it is to be further considered whether the presence of such colour would render it injurious for the buyer.
17. To appreciate the nature of adulterant present in the food article, it would be worthwhile to reproduce the relevant part of the definition of the "adulterated" as contained in sub-clause (a) and (b) of Section 2 (ia) of the Act, which reads as follows :
CR No. 53/11 Page No. 7 of 10 -8-"2(ia) "adulterated" - 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;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;"
18. In the present case, the relevant Section would be sub-clause (a) and sub-clause (b). This aspect was analyzed by Hon'ble Delhi High Court in the case of "Khushi Ram v.
The State and Anr., 1984 (II) FAC 256". In Khushi Ram's case sample was of "Bari Ilaichi" and the sample was held to be adulterated on account of presence of mineral oil as reported by the Public Analyst as the standard for "Bari Ilaichi" as provided at A.05.04.02 specified that article should be free from added colouring matter. It was observed that though the report of the Director, test for mineral oil was stated to be positive but it nowhere gave the quantity, weight or proportion by way of percentage of the mineral oil present in the sample "Bari Ilaichi". In the absence of quantity, weight and proportion, it was possible that the presence of mineral oil in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) of the Act nor was there any evidence whatsoever to show that CR No. 53/11 Page No. 8 of 10 -9- the presence of mineral oil in the sample could affect injuriously the nature, substance or quality of the sample of "Bari Ilaichi" as contemplated in Section 2(ia) (b) of the Act. It was, therefore, held that in the absence of any evidence in regard to the prejudice or injurious affect of the presence of mineral oil on the sample, the petitioner was entitled to be exonerated.
19. The Khushi Ram's case was relied upon in recent judgment by Hon'ble Delhi High Court in the matter of "State v. Dwarka Dass, 2007 (1) FAC 229". It was a case in regard to the presence of mineral oil in the sample of "Kali Mirchi". After making a reference to the case of Khushi Ram and observing that there was no evidence to show the prejudice or the injury that could be caused to the purchaser on account of presence of mineral oil in "Kali Mirchi", the petitioner was acquitted.
20. The case of presence of Tartrazine (permitted coal tar dye) in sweet drops was considered in the case of "Shiv Narayan v. State of Haryana, 1996 (2) FAC 313 (Punjab & Haryana)" and it was held that mere presence of Tartrazine, which is a permitted colour for foods mentioned in Rule 29, cannot be said to be injurious to health as the use of prohibited colours, the petitioner was accordingly acquitted.
21. Similar matter was considered in "K.B. Devassi Kutti v. Food Inspector, Criminal Revision No. 742/2001 dated 05.12.2008", wherein the petitioner had been convicted for sample of de-husked split guine green daal, CR No. 53/11 Page No. 9 of 10
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which was reported to be not confirming to standard under the Act and Rules as cold tar colour Tartrazine was found to be present. The conviction was set aside.
22. The facts involved in the present case are similar to those discussed above. The Public Analyst's report merely gives the presence of colour Sunset yellow, which is not permissible for "Sela Basmati Rice". However, Sunset yellow is a permitted colour for the category of foods specified in Rule 29, which shows that per se it is not a prohibited colour. For the food to be considered as adulterated, it has to be further shown that its presence was injurious or prejudicial to the purchaser. However, there is no weight, quantity or proportion of Sunset yellow specified in the collected sample from where the injurious effect of the presence of Sunset yellow could be inferred. It is possible that it may be present in negligible amount. The prosecution, therefore, has not been able to establish that the sample of "Sela Basmati Rice" came within the definition of adulterated as provided u/s 2 (ia) of the Act.
23. The revision is accordingly allowed. Revisionists / accused are accordingly discharged. Their bail-bonds and surety-bonds stand cancelled.
24. Trial Court Record be sent back along with the copy of this order.
25 Revision file be consigned to the Record Room. Announced in the open Court on 29th Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CR No. 53/11 Page No. 10 of 10