Jaganmohan Reddy, J. - (1.) This appeal by certificate granted by the Delhi High Court under Article 134 (1) (c) of the constitution is against its judgment which confirmed the conviction of the accused of an offence under Section 9 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and against the enhancement of the sentence of imprisonment from the one till the rising of the court to six months R. I. which is the minimum prescribed under the Act together with a fine of Rs. 1,000 in default to undergo six months R. I.
(2.) The appellant is a sweetmeat seller. It is alleged that on September 1, 1965, Shri B. S. Sethi, Food Inspector appointed by the Central Government under Section 9 of the Act visited his shop and found that the appellant was selling coloured laddus. The Food Inspector purchased 1,500 grams of these laddus by way of a sample by paying him Rs. 9 as the price thereof. This sample was subdivided into three parts and was put into three separate bottles as required under Section 11 of the Act. One bottle was given to the accused, another was sent to the Public Analyst and the third was retained by the Food Inspector. The sample sent to the Public Analyst was analysed and a report was received from him on September 10, 1965 to the effect that the laddus were adulterated with unpermitted colour. Thereupon a complaint was filed against the accused and he was convicted by the Magistrate on October 17, 1966 and sentenced to imprisonment till the rising of the court and to pay a fine of Rs. 1,000, in default to undergo six months' R. I. It would appear that the Municipal Corporation filed before the Sessions Judge a revision for the enhancement of the sentence because the accused having been found guilty under the provisions of Section 7 read with Section 16 of the Act should have been awarded the minimum sentence of six months and a fine of Rs. 1,000 but instead he was sentenced to imprisonment till the rising of the court and a fine of Rs. 1,000 which was not in accordance with the mandatory provisions of S. 16 of the Act. The Sessions Judge, after hearing the parties accepted the contention of the Municipality and referred the case to the High Court recommending that the accused having been found guilty under the provisions of Section 16 of the Act should have been awarded a minimum sentence of six months and a fine of Rs. 1,000/- Before the High Court several contentions were raised on behalf of the accused one of which was that as his request for summoning the Public Analyst for cross examination had not been acceded to, he had been prejudiced, as such the entire proceedings against him were vitiated. The High Court however rejected this contention on the ground that Section 510 of the Code of Criminal Procedure had no application in that it only dealt with Chemical Examiner or an Assistant Chemical Examiner and other experts mentioned therein. It was also observed that where the accused desired to challenge the report of the Public Analyst under the act, he had to follow the procedure provided in Section 13 (2) for sending the sample to the Director of Central Food Laboratory for his examination, because any report given by him will supersede the report of the Public Analyst and would be final and conclusive as to the facts stated therein. Before us also a similar contention was urged by the learned Advocate for the accused Shri Hardev Singh who had produced before us the application made on behalf of the accused under Section 510 (2) for calling the Public Analyst which was summarily rejected on 28th August 1966. This contention urged before us has to be determined in the light of the relevant provisions of the Act.
(3.) It cannot be disputed that any person selling food with impermissible colouring matter contravenes the provisions of Section 7 which prohibits the selling of any adulterated food and would be punishable under Section 16 of the Act. What is adulterated article of food has been defined in Section 2 (i) and so far as it is related to colouring, sub-cl. (j) of Clause (i) of Section 2 provides that an article of food shall be deemed to be adulterated "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". Rules 23 and 27 of the Prevention of Food Adulteration Rules, 1955 prohibit the addition of any colouring matter except permitted by the Rules, and of inorganic colouring matters and pigments to any article of food. What is permitted and to what extent has been stated in Rules 24 to 26 and 28 to 31, but in so far as this case is concerned we may merely refer to Rules 26 and 28 the former of which gives a list of natural colouring matters that can be used and the latter with coal tar dyes. We are told that the Laddus which were being sold by the accused had yellow colour. If so, item 2 of Rule 28 prescribes that the only permitted colours are Tartrazine with colour index 640 belonging to Chemical class of Xanthene and Sunset Yellow FCF belonging to the chemical class Azo, and these alone can be used. It will therefore be incumbent on the Public Analyst to say whether the colour used is that which is permissible under any of the rules and if as in the report he has stated that the sample of the Laddus purchased by the Food Inspector was coloured with unpermitted colour, it would mean that the accused has not used any of the colours permitted under the rules. The report of the Public Analyst is as follows:- "Butyro Refractometer reading at 400C of the fat extracted from sweets-50-0 Baudouin test of the extracted fat - Positive Reichert value of the extracted fat 7.59 Colour - unpermitted. the same is adulterated due to 7.0 excess in Butyro Refractometer reading at 400C of the fat extracted from sweets, 20.41 deficiency in Reichert value of the extracted fat, Baudouin test of extracted fat being positive, and also coloured with unpermitted colour.;