V.D. Bhargava, J. - (1.) THIS is an application in revision Convicting the applicant, Under Section 5 of the U.P. Pure Food Act, 1950. The applicant maintains a factory whether Dal is prepared. A sample of Dal was taken by the Health Officer and there were three packets made. One was left with the applicant and the other was Sent to the Public Analyst for analysis. The report of the Public Analyst was that it contained coal tar colour. The packet which was with the applicant, was got examined by one Dr. Bhatia, who has given evidence that that colour was not in any way injurious to health. The complaint, which, was filed, was filed with the allegation that the sample contained artificial coal tar colour, the use of which is not permissible under the rules and it was prayed that a case under Section 4 of the U.P. Pure Food Act, 1950, be started against the applicant. Though the complaint had mentioned Section 4 the Magistrate convicted him under Section 5 of the aforesaid Act and against that conviction he filed an appeal which was dismissed. Now he has come up in revision.
(2.) LEARNED Counsel for the applicant has argued that the conviction under Section 5 of the U.P. Pure Food Act, 1950, was not maintainable for several reasons. Firstly, Under Section 34 of the Act. No person shall be tried for any offence against the provisions of this Act, or of any rule or bye -law made under unless a complaint in writing is made within three months of the commission of the offence... Learned Counsel lays stress on the words 'the offence', hence it was argued that the complaint was filed under Section 4 and, therefore, this section would be a bar, The complaint should have been filed under Section 5 of the U.P. Pure Food Act, 1950, specifically.
(3.) THE second line of argument is that as nowhere it has been said that the addition of the colour was injurious to public health, therefore, Section 5 of the Act would not apply. It was further contended that there was no evidence for the fact that it was the applicant who had either added or directed or permitted any other person to add any substance and in the absence of any such direct evidence to that effect there could be no conviction under Section 5. According to him, if his case comes at all, it comes under Section 4. Section 4(2) is to the following effect: Where rules prescribe the composition of or prohibit or restrict the addition to or abstraction of any substance from any food, (a) the addition of that substance: (i) if made in contravention of any of the rules, shall; and (ii) if made to an extent not exceeding the limit, in any, specified by any of the rules, shall, not for purposes of this Act, be deemed to render the food injurious to public health; It was said that since this contravention was, if at all, of Rule 67, the applicant could have been convicted under Section 4 and not under Section 5 of the Act. I need not go into the question of the applicability of Section 34 because, in my view, there is no evidence that the addition of the colour is injurious to the public health and, therefore, Section 5 will not apply and since the accused has been acquitted under Section 4 and there is no appeal on behalf of the State, the acquittal cannot be converted into conviction. I accordingly allow this application in revision, set aside the order of the Magistrate and acquit the accused. Fine, if paid, shall be refunded.;