Kerala High Court
K.B.Devassikutty vs Food Inspector on 5 December, 2008
Author: A.K.Basheer
Bench: A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 742 of 2001(K)
1. K.B.DEVASSIKUTTY
... Petitioner
Vs
1. FOOD INSPECTOR
... Respondent
For Petitioner :SRI.SANTHOSH SUBRAMANIAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :05/12/2008
O R D E R
A.K. Basheer, J.
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Crl.R.P.No. 742 of 2001
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Dated this the 5th day of December, 2008
ORDER
Petitioner was tried for offences punishable under Sections 2(ia)
(a) (b) (j)7(i) 16(i-A)(i) of the Prevention of Food Adulteration Act, 1954 on the allegation that the sample of dehusked split grains of green gram dal (moong dal) did not conform to the standard prescribed under the Act and the Rules, inasmuch as "coal tar food colour tartrazine"
was found to be present in the sample.
2. The trial court, after considering the oral evidence of Pws.1 to 4 and the documentary evidence comprising Exts.P1 to P19 produced by the prosecution, found the petitioner guilty and he was accordingly convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- and in default to suffer simple imprisonment for two months. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence this revision petition.
3. In the nature of the issue that has been raised before me, it is not necessary to refer to the entire details of the prosecution case.
4. The only question that comes up for consideration is whether the order of conviction and sentence can be sustained in the light of the report of the Central Food Laboratory which was marked as Ext.P2 in the case. The relevant portion of the report of the Central Food Laboratory is extracted hereunder:.
"Appearance: Dehusked split grains of green gram dhall (Moong dal)."
Crl.RP.No.742/2001 2
5. It is obvious from the report that the Director of the Laboratory has come to the conclusion that the food article in question did not conform to the standard prescribed for moong dal because the article contained coal tar food colour tartrazine, though all other parameters were within the permissible limits.
6. It may be noticed that the sample of food was taken by the Food Inspector on October 12, 1993. Rule 28 of the Prevention of Food Adulteration Rules 1955 deals with coal tar (food colours) which may be used for colouring food articles. Rule 28 postulates that no coal tar (food colour) or a mixture thereof, except those given in the table shall be used for colouring food articles. Serial No.2 in the table in Rule 28 refers to tartrazine (yellow colour) with colour index No.19140.
7. Rule 29, as it stood prior to substitution/amendment made with effect from September 6, 1994 and 1997, prohibits use of permitted coal tar food colours in or upon any food other than those enumerated in the said rule. It is true that moong dal is not included in the enumerated food articles in Rule 29. Therefore if coal tar food colour is used in any food item other than those enumerated in Rule 29, it will attract the offence punishable under the Act and the Rules. In this context it may also be noticed that Appendix A.18.06 also prescribes that food grains meant for human consumption shall be free from added colouring matter. But a conjoint reading of Rules 28 and 29 will show that coal tar food colour tartrazine can be used in food or Crl.RP.No.742/2001 3 a mixture thereof.
8. As mentioned earlier, the Central Food Laboratory in its report had specifically referred to presence of coal tar food colour tartrazine only, whereas in Ext.P11 report of the Regional Analytical Laboratory a reference is made to presence of coal tar dye (colour index No.19140). Learned counsel for the petitioner has raised a contention that since tartrazine is permitted to be used in food, going by the provisions contained in Rule 28, it cannot be said that the food article was adulterated.
9. In this context learned counsel has also invited my attention to a decision of his Lordship Justice M.M.Punchi, as His Lordship then was, in Maya Ram v. State of Punjab 1987 (2) FAC 320. In that case which came up for hearing before the Punjab and Haryana High Court, the Public Analyst in his report had certified that the sample contained "red non-permitted basic coal tar dye." The Analyst had referred to paper chromatographic test. (There is no mention of the kind of test carried out by the two laboratories in the case on hand.) After referring to the chromatographic test, the learned Judge in Maya Ram's case had observed thus:
"..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 Crl.RP.No.742/2001 4 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 28 permits use of coal tar dye. The Public Analyst should have excluded in his 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 Analyst cannot be taken as the gospel truth outweigh normal judicial balancing"
10. Learned counsel for the petitioner has also invited my attention to sub-rule (9) and Rule 4 which has been newly incorporated prescribing the mode of analysis to be adopted . Admittedly the above amendment was with effect form February 2008. As noticed already, the sample in this case was taken in the year 1993.
11. In the absence of any material or data in the report of the Central Food Laboratory to indicate what was the test conducted to detect the presence of tartrazine, I am satisfied that the petitioner is entitled to be acquitted. Ordered accordingly.
12. It is made clear that I am taking this view in the peculiar facts Crl.RP.No.742/2001 5 and circumstances of the case, especially in the light of the pre- amended rule 28 which applies to the sample in question.
The revision petition is therefore allowed and the petitioner is acquitted.
A.K. Basheer Judge.
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