Judgment:
A.S. Nehra, J.
1. The petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act by Judicial Magistrate 1st Class, Palwal and was sentenced to undergo R. I. for six months and a fine of Rs. 1,000/-. In default of payment of fine, the petitioner was further ordered to undergo R. I. for three months, by order dated March 7, 1986. Appeal filed by the petitioner was dismissed by learned Additional Sessions Judge (II), Faridabad on August 6, 1986 and hence this revision petition.
2. Brief facts of the case are that on 15-6-1982, at about 6.10 P.M. Shri Piare Lal, Food Inspector, Faridabad, accompanied by Dr. R. K. Sharma Gaur, went to the shop of the accused petitioner situated in Gau Khana Bazar, Palwai where he was found having about 20 Kgs of Ladoo Bundi for public sale in a Thal. The Food Inspector served him notice Exhibit PA after disclosing his identity and purpose and purchased 900 grams of Ladoo Bundi from the accused for analysis after associating Subhash Chander a non-official witness. An amount of Rs. 5.40 as price of Ladoo Bundi was paid to the accused against receipt Exhibit PB. The purchased quantity of Bundi was then divided equally into three dry and clean bottles and the bottles were corked, labelled and sealed with the seal of the Food Inspector. The same were then wrapped in a thick paper and the code number slip was pasted on each bottle and the same was re-sealed with the seal of Food Inspector and that of doctor R. K. Sharma Gaur. The signatures of the accused were obtained on each bottle in such a way that half of it fell on the code number slip and half on the wrapping paper. The spot memo Exhibit PC was also prepared. The signatures of the accused and the attestation of the witness were obtained on the memos Exhibit PA to PC. The food Inspector then prepared the memos in form No. VII with the seal impressions of the seal used and one sealed bottle alongwith copy of form No. VII was also sent to the public analyst, separately by registered post. On receipt of the report of the Public Analyst the sample was found coloured with unpermitted yellow coaltar dye. The Food Inspector thus filed this complaint and a copy of the result was also sent to the accused alongwith the forwarding notice. The accused got the second sample sent to the Food Laboratory for analysis and in its report Exhibit PF the Central Food Laboratory also opined that the sample showed the presence of non-permitted coaltardye.
3. On receipt of the complaint the accused was summoned and the statement of Piare Lal Food Inspector, was recorded as PW-1 and a charge-sheet under Section 7/16(1)(a) of the Prevention of Food Adulteration Act, was framed against the accused to which he pleaded not guilty and claimed to be tried.
4. Prosecution examined PW-1, Food Inspector and PW-2, Dr. R. K. Sharma Gaur. The report of the Public Analyst, Exhibit PD was tendered into evidence. In the opinion of the Public Analyst, the sample was coloured with unpermitted yellow coaltardye. The report of the Central Food Laboratory, Exhibit PF also gave the same report.
5. The accused, in his statement under Section 313 Cr. P. C. stated that no sample was taken from him and he has no shop in Gau Khana Bazar, Palwal. He also denied to have put signatures on any memo at the instance of the Food Inspector. Accused examined DW-1 Som Nath Aggarwal, Hand-writing expert, who deposed that he compared the alleged signatures of the petitioner on Exhibits PA to PC with his admitted signatures S-l on power of attorney, S-2 on, the statement of the accused and S-3 on the bail bond with the help of the enlarged photographs and found that the disputed signatures on memos Exhibit PA to PC were not written by the writer of signatures on S-l to S-3.
6. Mr. S. D. Bansal, Advocate, learned counsel for the petitioner has submitted that the report of the Public Analyst did not contain any reason for coming to a conclusion as to how the presence of unpermitted yellow coaltardye was detected. In support of his argument, he has relied upon Ravinder Kumar v. State of Haryana, (1986) 13 Cr. L. T. 26. In the case in hand, the operative part of the report Exhibit PD of the Public Analyst reads as under :--
' ... I further certify that I have caused to be analysed, the aforementioned simple and declare the result of analysis to be as follows :-1. Butyro refractometer reading at 40C -59.5 of ext.2. Baudouin test -Negative fat3. Wool double dyeing test -Positive.4. Acid dye -Absent5. Basic dye -Present6. Test for colour by paper chromatography -Unpermitted yellowbasic coaltardyepresent,and am of the opinion that the sample is coloured with unpermittedyellow basic coaltar dye.Signed this 9th day of July, 1982. Sd/-(Seal) Public Analyst.'
A bare perusal of the above report reveals that the Public Analyst had only applied the paper chromatography test for concluding the sample to be containing unpermitted yellow coaltar dye. The report is bereft of any indication whether any other test was conducted. It has been held by this Court in Maya Ram v. State of Punjab, 1987 (II) F. A. C. 320, thus --
'........the second test pertaining to colouring matter has been done by resorting to four methods, i.e. wool double dyeing method, other acetic acid method, paper chromatographic method and oil soluble coaltar-dye method. Except for the third method employed, i.e., paper chromatography, the other methods have not brought forward any positive and categoric result. So far as paper chromatography is concerned, the same could not bring forward whether the coaltar dye used was permissible or nonpermissible. The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc. etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of colours. Thus, paper chromatography would reveal that there is present food colouring on coaltar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had gone to the conclusion that the coaltar-dye was non-permitted It has already been noticed that Rule 28 permits use of coaltar-dye. The Public Analyst should have excluded in his opinion the possibility of all the five permitted coaltar-dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweigh normal judicial balancing If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of people who are non-experts.'
7. The above referred observations clearly indicate that paper chromatography test is not sufficient to conclude whether permitted or un-permitted coaltar-dye has been used, The expert is expected to imbibe reasons for his conclusion but strangely enough in the case in hand, the report Exhibit PD of the Public Analyst is not sufficient to conclude that the sample of Bundi contained unpermitted yellow coaltar-dye. If that is so, then it cannot be said that the petitioner was selling adulterated Bundi.
8. In view of the reasons recorded above, the revision petition is allowed. Conviction and sentence awarded to the petitioner is set-aside. Fince, if recovered shall be refunded to the petitioner