- (1.) HEARD learned counsel for the parties and perused the record of the learned courts below.
(2.) THE facts in this case are not in dispute. On 31-12-75 at 12. 15 p. m. , Food Inspector Kaushal Kishore purchased 450 gms. of Coriander (Dhania) powder for analysis on due payment of price. THE sample taken by the Food Inspector was duly sealed and was sent to the Public Health Laboratory Udaipur for examination. THE public analyst vide report Ex. P. 5 found that the sample of coriander powder was adulterated due to presence of 'haldi' powder. THE learned courts below accepted this report & the petitioner was convicted of offence u/s 7/16 of the Prevention of Food Adulteration Act (for short 'the Act' ). THE petitioner was sentenced to undergo R. I. for six months and to pay a fine of Rs. 1000/- and in default to undergo further R. I. for 1 1/2 months. THE learned counsel for the petitioner does not challenge the aforesaid concurrent findings of the learned courts below but submits that the learned courts below have failed to take into consideration the substantive law pertaining to adulteration as was obtainable on 31. 12. 75. He submits that on the relevant date the use of 'haldi' powder as natural colouring matter was permissible and hence the petitioner did not commit any offence at all. The learned P. P. opposes the revision petition and submits that since the public analyst has found the coriander powder to be adulterated, this Court must hold the same to be adulterated and should not interfere. I have considered the rival contentions. To constitute an offence u/s 7/16 of the Act, it was necessary for the prosecution to show that (i) petitioner had sold any edulterated food; or (ii) any misbranded food ; or (iii) any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the license; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of Public health; or (v) any article of food in contravention of any other provision of this Act or any rule made thereunder. Clauses (ii) to (v) of Sec. 7 of the Act are not attracted to the present case and the prosecution has tried to build up its case on the basis of clause (i) viz. , that the petitioner had sold adulterated food. Sec. 2 (i) of the Act, as it stood on the relevant date, reads as follows: - "s. 2. Definitions: In this Act unless the context otherwise requires- (i) "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 is 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; (c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof; (d) if any constituent of the article has been, wholly or in part, abstracted so as to affect injuriously the nature, substance or quality thereof; (e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health; (f) if the article consists wholly or in part of any filthy; purtrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption; (g) if the article is obtained from a diseased animal; (h) if the article contains any poisonous or other ingredient which renders it injurious to health; (i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health ; (j) if any colouring matter other than the prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article; (k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; (l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. " In the present case, the allegation is that the coriander powder was adulterated because there was presence of 'haldi' powder. Ex. P. 5, report of the Public Health Laboratory, Udaipur does not indicate the extent of the presence of 'haldi' powder in the sample. Under the Prevention of Food Adulteration Rules, 1955, turmeric is a permissible natural colouring matter which can be used. The relevant rule 26 reads as follows: - "r. 26. Natural colouring matters which may be used: Except as otherwise provided in these Rules, the following natural colouring principles, whether isolated from natural colours or produced synthetically may be used in or upon any article of food. (a) Cochineal or Carmine (b) Carotin and Carotenoids (c) Chlorophyll (d) Ribeflavin Lactoflavin (e) Caramal (f) Annatic (g) Ratanjot (h) Saffron (i) Curcumin (Haldi) or Turmeric. " Reading this clause along with clause (i) of Sec. 2 of the Act would go to show that the presence of turmeric powder in the sample of Coriander did not make it an adulterated food. In this context, it would be proper to re-call the defence of the petitioner urged before both the courts below was that he used to sell turmeric powder also and since a common spoon was being used for taking out coriander powder and turmeric powder coriander powder might have received traces of turmeric powder. The learned courts below have not accepted this contention. The learned trial court observed that if from the same spoon turmeric powder and coriander powder was being sold, the petitioner should have first cleaned the spoon and then should have sold the coriander powder. The learned Addl. Sessions Judge has vaguely stated that the plea is not acceptable. Both the courts below did not examine various sub-clauses of S. 2. which defines an adulterated article of food. The learned p. p. could not show me under which of the sub-clauses of sub sec. (1) of Sec. 2 the case of the petitioner would fall. As I have already stated above, the report of the Public Health Laboratory does not show the extent of the turmeric powder in the sample of the coriander powder. At one place it stated: "added colouring matter Added colour of Haldi found present. " It did not state that actually turmeric powder itself was present in the sample and if so, to what extent. While giving the opinion it was stated that the sample is adulterated due to presence of 'haldi' powder. Here also the extent of 'haldi' powder was not indicated. It may be stated so far as other ingredients were concerned, the public analyst took care to state the percentage of various other ingredients of the powder. Such a report cannot be used against the petitioner in support of the charge that the turmeric powder was an adulterated one. The defence of the petitioner in the particular circumstances of the case cannot be said to be untenable or false or improper. It has to be remembered that in all 450 gms. of coriander powder had been taken. If 'haldi' powder had been added as a colouring material, then it was not a prohibited colouring material, as pointed out above. Rule 26 permitted use of turmeric powder as natural colouring material unless otherwise provided. Hence, I am of the view that in the present case charge u/s 7/16 of the Act has not been proved against the petitioner.
(3.) NO other point was urged before me. In view of what I have stated above, I accept this revision petition, set aside the conviction of the petitioner for offence u/s 7/16 of the Act and set aside the judgment of the learned courts below and acquit him of the said charge. The petitioner is on bail and, therefore, he need not surrender to his bail bonds. His bail bonds are cancelled. .;