Full Judgment
L. Rath, J.
1. The petitioner was prosecuted Under Section 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') and was convicted to R1 for six months and fine of Rs. 1000/-, in default to R1 for one month more. The conviction and the sentence having been upheld in appeal, the present revision has been preferred. The brief facts of the prosecution are that the petitioner was running a canteen inside Rourkel Steel Plant and on 16-12-1988 when his shop was raided, he was found to be selling adulterated Jilapi. The Food Inspector (PW 1) who raided the shop along with PW 2, a driver of the N A C , purchased 1.5 kgs. of Jilapi and 375 grams of soyabin oil which he also suspected to be adulterated and dividing the purchased articles into parts, sent samples of those for analysis by the Public Analyst. The report of the Public Analyst was received on 2-2-1989 to the effect that the Jilapi was adulterated having used non-permitted coal-tar dye but the soyabin oil was found not adulterated. The prosecution report was filed by the Food Inspector after obtaining the consent of the C. D. M. O. [Local (Healthy Authority] on 12-7-1989. The petitioner was given intimation on 15-7-1989 regarding launching of the prosecution but he did not take steps to require the Local (Health) Authority to send the sample retained by him for analysis by the Central Food Laboratory. During the trial the prosecution examined PWs 1 and 2 in support of its case. The plea of the petitioner was one of denial and he did not also examine any witness on his behalf. The trial Court accepted the evidence led by the prosecution and held the petitioner guilty.
2. Mr. Mohanty, the learned counsel for the petitioner has urged in assailing the conviction and the sentence of the provisions of Section 13(2) of the Act to have been not complied with inasmuch as it is his case that the petitioner was never intimated about receipt of the report of the Public Analyst, the consent in the case of the Local (Health) Authority to have been given without application of mind to the facts of the case, the prosecution to have been vitiated because of non- examination of independent witnesses, and Rule 29 of the Prevention of Food Adulteration Rules (hereinafter referred to as 'the Rules') as expressly authorising the use of coal-tar food colours for which no offence is said to have been committed by the petitioner. The submissions raised are stoutly refuted by the learned Additional Standing Counsel contending that the Public Analyst's report was in fact sent to the petitioner and that the fact of such despatch was proved through the Registered A. D. as also the registration receipt and the evidence of PW 1. He also argues of the consent to have been validly given and the prosecution case to have been well established through the evidence of PWs 1 and 2. Besides, Rule 28 of the Rules is relied upon to show that coal-tar dye, Orange No. 2 is not a permitted colour for user.
3. Without going into the questions raised on either side, this case can be disposed of on two admitted positions. The entire prosecution case rests upon the fact that the Jilapi purchased was adulterated having used non-permitted colour, i. e. coal-tar dye, Orange No 2. Rule 28 of the Rules shows coal-tar food colour, inter alia, with common name as Sunset Yellow FCF to be usable food stuffs. Appendix-B to the Rules, in Entry A.26.02 gives the synonym of the Sunset Yellow FCF, inter alia, as Lebensmittel Orange No, 2. Since the petitioner has been found to have used coal-tar orange colour No. 2 in preparation of the Jilapi, it was for the prosecution to have established that it was not a colour which was covered by the synonyms described in Appendix-B to the Rules. It was never stated by PW 1 that coal-tar dye. Orange No. 2 was not the Lebensmittel Orange No. 2, As Labensmittel Orange No. 2 is permitted for user, it was for the prosecution to have established by clinching evidence that the offending colour as found by the Public Analyst was excluded from the synonyms under AppendixB. The view taken is supported by 1988(I) FAC 183 (Prem Chandra v. State of U. P.).
4. That apart, there is also another grave defect in launching of the prosecution. The raid of the petitioner's canteen was made on 16-12-1988 on which day the sample was purchased. The sample sent to the Public Analyst was received by him on 21-12-1988. The analysis by the Public Analyst was made on 27-1-1989 and the report sent by him was received by the Local (Health) Authority on 2-2-1989. The prosecution report was thereafter drawn up on 22-4 1989 but was filed on 12-71SS9. Intimation was issued to the petitioner Under Section 13(2) of the Act on 15-7-1989. Thus in between the raid and the intimation given to the petitioner, about seven months expired. Admittedly Jilapi was a perishable commodity. It is however not in the evidence of PW 1 that any preservative was added to the Jilapi. If the preservative was not added, there was hardly any point in sending the report of the Public Analyst to the Petitioner as the sample retained by the Local (Health) Authority was bound to have lost its character for analysis and indeed even without adding preservative the analysis by the Public Analyst more than a month after could have little effect. In that view of the matter, the prosecution cannot be said to have established the case beyond reasonable doubt against the petitioner.
5. In the result, the revision succeed. Conviction and sentence of the petitioner are set aside.