Prem Prakash, J. - (1.) THE Nagar Mahapalika, Lucknow, has obtained this rule in revision, under Section 439 of the Old Code of Criminal Procedure, to enhance the sentences awarded to P. Gurnani and Kanhaiya Lal Gurnani under Section 7, read with Section 16 of the Prevention of Food Adulteration Act, 1954 (to be hereinafter referred to as the Act). Each of them has been sentenced to a fine of Rs. 125/- and simple imprisonment till rising of the court by Sri V. N. Awasthi, Magistrate 1st Class, Lucknow.
(2.) THE case of the prosecution was that P. Gurnani was the proprietor of the shop carrying on the business under the name of M/s. Gurnani Provisions Stores and Kanhaiya Lal Gurnani used to sell food articles at the said shop for and on behalf of P. Gurnani. On 31st August, 1969 Kanhaiya Lal Gutnani sold 600 grams of 'Saboo Dane ke Phool' to the Food Inspector, Sri Krishna Mohan Srivastava (PW 1) for Rs. 3.85. THE Food Inspector served the accused with the notice on Form VI intimating therein that the purchased 'Saboo Dane Ke Phool' were meant for analysis by the Public Analyst. THE purchased 'Saboo Dane Ke Phool' were divided into three separate phials, one of such phials was sent to the Public Analyst whose report shows that the sample sent to him was coloured with coaltar dyes, namely (1) Rhodamine and (2) Melachite gree, the use of which is prohibited by the Rules framed under the Act. THE Food Inspector examined himself. THE two accused acknowledged the various ingredients of the crime. P. Gurnani admitted that he was the proprietor of the business and that Kanhaiya Lal Gurnani had sold the article to the Food inspector on his behalf. He further acknowledged that the sample of Sago flower was taken by the Food Inspector from his shop and that it was found coloured with prohibited dyes. Acting on the pleas of guilty, coupled with the statement of the Food Inspector, the learned Magistrate came to the conclusion that offence under Sec. 7 (i), read with Section 16 of the Act had been brought home to both the accused. As we have already stated above, he awarded the sentence of imprisonment till the rising of the court and a fine of Rs. 125/-. The revisionist contends that the sentence was in contravention of Section 16 of the Act. Learned counsel for the respondents has, on the other hand, urged that the court had a discretion under the Proviso to Section 16 (1) to impose a sentence of imprisonment less than six months for adequate and special reasons. We have, therefore, to see whether the case falls within Section 16 (1) (a) (i) or falls within clause (i) or (ii) of the Proviso to the section, as it stood before the Prevention of Food Adulteration (Amendment) Act, 1976. Section 2 of the Act, as it stood before the Amendment Act contained the following definition of the term 'adulterated' :- "In this Act unlets the context otherwise requires ; (1) 'Adulterated' in article of food shall be deemed to be adulterated......... (j) if any colouring matter other than that prescribed in respect thereof and in amounts of not within the prescribed limits of variability is present in the article........."
(3.) WHEN an article of food is coloured by any matter other than the colouring matter prescribed in respect thereof by Act, it is a clear case of the article being adulterated, and it shall be deemed to be adulterated under clause (j) to Section 2 (1). The proviso to Section 16 (1) would not be attracted. Now, the report of the Public Analyst shows that the sago flowers sold by the respondents contained artificial dyes which are clearly prohibited under the rules. Rule 23 provides that addition of colouring matter except as specifically permitted is prohibited. Rule 28 specifies coaltar dyes which shall be used in food. The dyes with which the sold article had been coloured were prohibited dyes under Rule 28. That being so, the case was clearly covered by clause (j) of Section 2 (1) and the article must be deemed to have adulterated under that clause. That would exclude the applicability of the proviso to Section 16 (1) since the offence in this view would be one with respect to an article of food deemed to be adulterated under clause (j) of Section 2 (1). The appellants' contention invoking the liberality of the provision enacted in the proviso to Section 16 (1) must, in the circumstances, be rejected and the minimum sentence of imprisonment for six months must have been awarded-see Prem Ballabh v. The State (Delhi Administration), AIR 1977 SC 65. The trial court was plainly in error in not awarding the minimum sentence in conformity with Section 16 of the Act. Learned counsel for the respondents has endeavoured to challenge their convictions as provided under Section 439 (c) of the Code of Criminal Procedure. But in our opinion the contentions have no substantial merit. There was evidence of the Food Inspector showing that P. Gurnani was the proprietor of the business and that Kanhaiya Lal Gurnani had sold the sample on his behalf. The report of the Public Analyst is clear on the point that it was coloured with prohibited dyes. Counsel has, however, relied upon the decision of the Supreme Court in the ease of R. G. Pamnani v. State of Maharashtra, AIR 1975 SC 189 and has vigorously argued that since the Food Inspector did not obtain the quantity as required by rule 22 and the Public Analyst had not in consequence the quantity mentioned under the Rules for Analysis, no reliance can be placed in violation of the statutory provision upon the analysis done by the Public Analyst. In his submission 'Saboo Dane Ke Phool' was a 'Prepared Food' described at serial 14 of Rule 22 in which case the quantity of sample of food to be sent to the Public Analyst should have been at least 500 grams and not 200 grams, sent to the Analyst in the present. In our opinion the argument is not tenable.;