Delhi High Court
Delhi Administration vs Amar Chand on 21 May, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. L.P. No. 266/2012
Date of Decision: 21.05.2012
DELHI ADMINISTRATION .... PETITIONER
Through: Mr. Manoj Ohri, Advocate
Versus
AMAR CHAND ......RESPONDENT
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
+ Crl. M.A. No. 6327/2012 (Exemption) in CRL.L.P. 266/2012
Allowed, subject to all just exceptions.
Application is disposed of.
+ CRL.L.P. 266/2012
1. This is an appeal U/s 378 (3) Cr.P.C. by the Delhi Administration
against the judgment of Learned ASJ whereby the judgment of
conviction dated 26.08.2011 and order on sentence dated 08.09.2011 of
the respondent U/s 7/16 of the PF Act were set aside.
2. The respondent Amar Chand was convicted by the Learned M.M.
vide judgment dated 26th August, 2011 U/s 7/16 of the PF Act and
sentenced to undergo RI for one year with fine of Rs.5000/-, in default of
payment of which for additional imprisonment of ten days. The
respondent preferred appeal against the said order of conviction and
sentence before the Learned Additional Sessions Judge who vide his
impugned judgment dated 19.11.2011 set aside the order of conviction
and sentence and acquitted the respondent. This order of acquittal has
been assailed by the State in the present leave petition.
3. The respondent was conducting business in foodgrains. Sample of
"Dal Moth" was taken by the Food Inspector which on analysis by the
Public Analyst was found to be adulterated being coloured with synthetic
colouring tartrazine. The Public Analyst gave his report in this regard as
Ex. PW 1/F. Before the Learned M.M., the prosecution had examined
three witnesses including the Food Inspector. In the appeal before the Ld.
ASJ the challenge to the order of conviction was mainly on the ground
that the use of synthetic colouring tartrazine was not prohibited under
Rule 28 and 29 of the Prevention of Food Adulteration Rules. It was also
the plea of the respondent convict that the report of the Public Analyst
had been given after much delay of analysis of sample and so had lost its
evidentiary value.
4. The present leave petition has been filed by the State alleging that
"Dal Moth" falls within the category of foodgrains under Article A.18.06
and A.18.06.14 of Appendix B of the PFA Rules in which the addition of
colour was not allowed and so the sample article was not covered in the
list given in Rule 29. It is alleged that the synthetic colouring tartrazine
was not permissible under the PF Rule though its quantity was not
mentioned by the Public Analysis in his report.
5. I have heard learned counsel for the State and perused the record.
6. Rule 28 of the PFA Rules permits use of certain synthetic food
colours or mixtures thereof in food. One of the colours that is permissible
to be used in food is yellow, commonly known as „Tartrazine‟. Rule 29
prohibits use of permitted synthetic food colours in the food items other
than those mentioned therein. Clause (b) thereof provides for use of
permitted synthetic food colours including Tartrazine in the savouries
such as Dal Moth etc. There is no dispute that Dal Moth is a foodgrain
within the meaning of Article A.18.06 of Appendix B. Since there is no
specific standard of Dal Moth mentioned in the Articles starting from
A.18.06.01 to A.18.06.130, which prescribes standards for other
foodgrains such as wheat, maize, jwar-bazra, rice, masoor, urad, moong
etc., Dal Moth would be covered under the residuary Article A.18.06.14
which prescribes standards for all other foodgrains which are not
specified in the Articles A.18.06 to A.18.06.13. As per general standards
of foodgrains as provided in A.18.06, the foodgrain was to be free from
argemone maxicana and kesari in any form and also from added
colouring matter. Beside this, there are other specifications with which
we are not concerned. Now, having noted that Tartrazine being synthetic
food colour and permissible in the food as per Rule 28 and Dal Moth
which is undisputedly a food item, then, as per Rule 28, this is not a
prohibited colour. Making a harmonious construction of provisions
contained in Rule 28 and Article A.18.06, it may be said that Tartrazine
though a synthetic food colour would not fall in the category of added
colouring matter, which are prohibited in foodgrains.
7. In the case of M/s Laxman Dass Sarvotam Doshi & Company Vs.
Maharashtra 1975 FAC 153 the sample related to Tur Dal which was
reported adulterated as coloured with coal tar dye tartrazine and was held
to be not adulterated food`grain U/s 2(ix) (d) of the Act. Similarly, in the
case of K.B. Devassi Kutty‟s case, Criminal Revision 742 of 2001
decided on 5.12.2008 by Kerala High Court the sample of de-husked split
grain of green gramm dal was reported adulterated by analyst as coloured
with coal tar food colour tartrazine and in that case also the conviction
was held to be not sustainable.
8. Moving further it is noted that the sample was taken on 10.11.2005
and the Public Analyst completed the analysis on 17.11.2005 whereas he
signed his report don 29.1.2005. There was apparently delay in signing
the report by the Public Analyst. In case of Babubhai Ranchhodbhai
Chauhan Vs. State of Gujarat, High Court of Gujarat held as under:-
"Counsel urges that when the analysis was made on
September 01, 1989 and when the Report came to be signed
only on September 08, 1989, the Report would lose the
evidentiary value. In support of this contention learned
counsel places reliance upon the decision rendered by this
court in criminal appeal No. 200 of 1987 decided on
February 24, 1994 (Coram: N.N. Mathur,J). Placing
reliance upon a decision rendered by the Division Bench of
the High Court of Bombay, this court has taken the view that
if the Report of the Public Analyst was not made at the same
time when the sample was analyzed but was made later on,
then the basis of the notes of the analysis made at the time of
analyze will cease to have the evidentiary value. In the case
before the Bombay High Court the very same was the fact
situation, in as much as the Report has not been made and or
signed on the date on which the analysis was done. The same
principle would apply and in my view the Report in the
instant petition also lose its evidentiary value."
9. In view of the law enunciated by the Gujarat High Court as above,
much reliance cannot be placed upon the report of the Public Analysis
who analyzed the sample on 17.11.2005 and finalized by singing it on
29.11.2005.
10. In view of my above discussion, I see no illegality or infirmity in
the order of the Learned ASJ and hence the leave cannot be granted to
prefer an appeal against the said judgment. The leave petition is
dismissed in limine.
M.L. MEHTA, J.
MAY 21 , 2012
pkv
