( 1 ) THE petitioner has challenged the correctness and legality of the conviction and sentence passed on him by the First Class Magistrate, Raichur, in CC. No. 1183 of 1970, and confirmed by the Sessions Judge, Raichur, in cr. A. No. 13 of 1972. The petitioner has been convicted for having committed an offence punishable under S. 7 read with S. 16 (l) of the Prevention of Food Adulteration Act (to be hereinafter referred to as the 'act'), and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000 in default to undergo simple imprisonment for a further period of six months as it was found that even after conviction of the petitioner, the petitioner had not made State a party-respondent in this revision petition, i directed Sri M. Ramakrishna, Government Pleader, who is present in court in connection with other matters, to take notice of this petition and argue on behalf of the State. He obliged the Court by taking notice immediately and argued on behalf of the State. ( 2 ) THE prosecution case is that at about 2-30 or 3-00 PM. on 7-2-1970 pw. 1 the Food Inspector went to the shop of the petitioner The petitioner is a retail dealer in grocery, articles. PW. 1 called PW. 2 Mahaboob and another person by name Abdul Salam who were nearby to witness his purchasing sample of Toor Dal from the petitioner. PW. 1 issued notice as per Ex. P1 to the petitioner that he was going to purchase sample of Toor dal fcr purposes of getting the same analysed by a Public Analyst. The petitioner received the notice Ex. P1. Then PW. 1 purchased 600 grams of tcor Dal by paying 0. 96 P. , the price of the same to the petitioner. The petitioner issued receipt Ex. P2 for having received 0. 96 P. for the sale of 600 grams of Toor Dal. Then PW. 1 got a panchanama recorded as per ex. P3. That panchanama is in regard to dividing of the sample of 600gms. into three packets and sealing the same and handing over one of the sealed packets to the petitioner. The two panchas PW. 2 Mahaboob and Abdul salam as well as the petitioner affixed their thumb impressions or signatures as the case may be on Ex. P3. The panchanama Ex. into three packets and sealing the same and handing over one of the sealed packets to the petitioner. The two panchas PW. 2 Mahaboob and Abdul salam as well as the petitioner affixed their thumb impressions or signatures as the case may be on Ex. P3. The panchanama Ex. P3 was recorded in the presence of all these persons. Thereafter PW. 1 sent one of the sealed sample packet to the Public Analyst at Bangalore, who sent his report as per Ex. P6 stating that the Toor Dal analysed by him contained prohibited colouring. It is on receipt of this report that PW. 1 lodged his complaint against the petitioner on 22-7-1970. ( 3 ) THE defence put forward by the petitioner is one of total denial. He has even denied having sold any Toor Dal to PW. l as contended by the prosecution. It may be mentioned at this stace that he has not attempted to explain his signatures below Exts. P2 and P3, and so also on the obverse of Exfl. ( 4 ) SRI B. S. Raikote, the learned Counsel for the petitioner, veheraently contended that the evidence of PW. 1 ought not to have been accepted and relied upon by the two Courts below in view of the fact that the only panch examiped i. e. , Mahaboob PW. 2 has not supported the prosecution in regard to the transaction of sale of Toor Dal by the petitioner to PW. 1 and dividing of that sample of Toor Dal into three packets as mentioned in Ex P3. He urged that it would not be safe to rely on the sole testimony of PW. 1, in this regard. The two Courts below have in my opinion rightly rejected such a contention put forward before them. As already mentioned above, Ex. P1 is the notice issued by PW. l to the petitioner before purchasing 600 grams of Toor Dal from the petitioner, and the petitioner has affixed his signature on the obverse of it. Ex. P2 is a receipt issued by the petitioner to PW. 1 for having received 0. 96 P. on selling 600 grams of Toor Dal to PW. 1. It bears the signature of the petitioner below it. Even the panchanama Ex. P3 which narrates that the sample of 600 grams of Toor Dal purchased by PW. Ex. P2 is a receipt issued by the petitioner to PW. 1 for having received 0. 96 P. on selling 600 grams of Toor Dal to PW. 1. It bears the signature of the petitioner below it. Even the panchanama Ex. P3 which narrates that the sample of 600 grams of Toor Dal purchased by PW. 1 was divided into three sample packets and sealed in the "presence of the petitioner and the two panchas, bears the signature of the petitioner. The petitioner as already narrated in the preceding paragraph has put forward no explanation to explain away these signatures of his on Exts. P1, P2 and P3. Merely because the panch PW 2 Mahaboob has not supported the prosecution, an inference cannot be drawn that the evidence of PW. 1, the Food Inspector, cannot be relied upon. The evidence of PW. 1 is cogent and consistent and is well-supported by documentary evidence. In the result, I have no hesitation in holding that the two Courts below were right in concluding that the petitioner did sell to PW. 1 600 grams of Toor Dal at about 2-30 or 3-00pm, on 7-2-1970 knowing full-well that PW. 1 was the Food Inspector and he was purchasing the same for getting the same analysed by a Public Analyst and that further on he did receive one of the three sample packets in sealed condition as prepared by PW. 1 in the presence of panchas. Sri Raikote nextly contended that the two Courts below ought not to have placed any reliance on the report Ex. P6 issued by the Public Analyst because the report does not show what colouring matter had been used in the food-stuff viz. , Toor Dal. He further contended that a mere statement that prohibited colour was traced, by the Public Analyst, would not be sufficient to establish that the food-stuff in question was adulterated as defined in Section 2 (j) of the Act. ( 5 ) EX. P6 discloses that the Public Analyst found damaged grains and prohibited colouring matter, and opined that the sample was adulterated. ( 5 ) EX. P6 discloses that the Public Analyst found damaged grains and prohibited colouring matter, and opined that the sample was adulterated. It is no doubt true that the opinion of the Public Analyst that the sample was adulterated is nothing but an opinion of an expert and such opinion cannot be used as evidence unless it is amply supported by data furnished by the Public Analyst so as to convince a Court that the opinion expresed by him is well-founded. Sri Raikote contended in this connection that what is narrated by the Public Analyst in Exhibit P6 that he detected prohibited colouring matter is nothing but the opinion of the Public analyst because the Public Analyst has not named the colouring matter in its proper terminology thereby enabling the defence to show that it was not prohibited colouring matter. I am not in agreement with this contention. ( 6 ) SRI Raikote placed reliance on the decision in Municipal Corporation gwalior v. Kishan Swaroop, AIR 1964 MP. 180. . It is laid down therein that if there was adulteration in any degree it was not for the Public Analyst to indulge in vague generalities nor should he be content merely by expressing his opinion. In such cases he should set out his findings with such clearness that the Court might be able upon the data he gave to form its own opinion as to whether the article was or was not adulterated". I have no hesitation in expressing with respect to the learned Judges that what is laid down in the above cited decision is the correct position in law. But the question on hand is whether what is now narrated bv the Public Analyst in Ex. P6 that he found prohibited colouring mater in the sample, is an opinion or ar observation of a fart. Sri Raikrte nextly Disced reliance on the decision in Public. Prosecutor v. Meenakutti Achi, 1970 Cr. L. J. 926. In this case the accused was convicted on the pround that the coaltar dyp used in preparation of ice-cream was not one of the permitted varieties. The report of the Public analvst was only to the effect that the sample of ice-cream contained coaltar dye which was not permitted to be used. The report did not even state the colour of coaltar dye. The report of the Public analvst was only to the effect that the sample of ice-cream contained coaltar dye which was not permitted to be used. The report did not even state the colour of coaltar dye. It did not even show that the analysis was done personally bv the Director of Central Food Laboratory as reouired under 8. 13 (2) of the Act. Sadasivan, J. held that the report of the Public analyst should contain factual data of the analysis to enable the Court to decide that the article of food is adulterated and that a vague opinion as to the content of coaltar dye was of no assistance to the Court in deciding whether the coaltar dye used was reallv not one of the permitted varieties. ( 7 ) I must express with all due respect to the learned Judge that I find myself unable to agree with the above said principle. S. 2 (i) of the Act lays down that an article of food shall be deemed to be adulterated if any colouring matter other than prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article. This is the provision concerned with the use of colouring matters in articles of food. S. 23 of the Act vests power in the Central Government to make rules. S. 23 (l) (j) of the Act reads as follows: 23 (1) The Central Government may, after consultation with the committee and subject To the condition of previous publeation make rules (j) Specifying the colouring matter and the maximum quantities thereof which may be used in any article of food. " p. is, therefore, seen that in order to establish that a particular sample of food is adulterated, the prosecution has to, in regard to the aspect of addition of colouring matter, establish that the colouring matter used is other than that prescribed in respect thereof, and in amounts not within the prescribed limits of variability. As to what are the permitted colours and what is the permitted maximum quantity is to be prescribed by the central Goverment by making Rules in that regard by exercising its powers under S. 23 (l) (j)of the Act. The Central Government has made Rules in this connection. Rules 26, 28 and 30 list the permitted colouring matters. As to what are the permitted colours and what is the permitted maximum quantity is to be prescribed by the central Goverment by making Rules in that regard by exercising its powers under S. 23 (l) (j)of the Act. The Central Government has made Rules in this connection. Rules 26, 28 and 30 list the permitted colouring matters. It has not made any rules in regard to the permitted maximum quantities. ( 8 ) SRI Raikote contended that when the Central Government has not made any Rules in regard to the permitted maximum quantities, the second ingredient found narrated above in S. 2 (j) of the Act, cannot be complied with and, therefore, the prosecution cannot be said to have satisfactorily established the offence of food adulteration in this case. I am unable to agree with this reasoning put forward by Sri Raikote for the simple reason that in rase this reasoning is adopted, even use of any large quantity of prohibited colouring matter or colouring matter not permitted by the Rules would not make out an offence of food adulteration. The only interpretation possible, in my opinion, is that the Central Government, while exercising its powers under S. 23 (1) (j) of the Act, thought it fit not to proscribe any quantities so that use of colouring matter not permitted under the Rules, may be even in any slightest quantity, should be an offence under the provisions of the Act. Therefore, the presence of colouring matter in food article which is not one of the colouring matters permitted to be used by Rules 26. 28 and 30 of the Rules, would satisfy the ingredients of Section 2 (j) of the Act. ( 9 ) IN this case, the Public Analyst has reported in Ex. P6 that prohibited colouring matter was detected. I have already expressed that I am not in agreement with the contention of Sri Raikote that it is an opinion of the public Analyst expressed in Ex P6. ( 9 ) IN this case, the Public Analyst has reported in Ex. P6 that prohibited colouring matter was detected. I have already expressed that I am not in agreement with the contention of Sri Raikote that it is an opinion of the public Analyst expressed in Ex P6. The decision in Public Prosecutor's case (2) relied upon by Sri Raikote is based on the assumption that finding of coaltar dye not permitted to be used amounted to an opinion of an expert as already pointed out, Rules, 26, 28 and 30 of the Rules framed by the Central Government in exercise of its powers under Ss 4 and 23 of the ad list the colouring matters permitted to be used in food stuffs. Whenever a sample of food is sent to a Public Analyst for analysis, in order to find out whether the sample is adulterated as defined by the provisions would be required to find out, so far as colouring matters are concerned of the Act. a Public Analyst or a Director of Central Food Laboratory whether those colouring matters permitted to be used as listed in Rules 26, 28 and 30 of the Rules, have been used or not. These authorities are not under any obligation to find out the type or the exact nature of the colouring matter used in a particular food sample. It is, therefore, certain that these authorities would be performing chemical tests prescribed for securing re-actions in regard to the presence of the colouring matters permitted to be used as per Rules, 26, 28 and 30 of the Rules. They would not because they are not required so to do perform tests prescribed for positively finding out what colouring matter has been used. On performing such prescribed chemical tests and on finding negative results in regard to all the permitted colouring matters, they would naturally come to a conclusion that the permitted colouring matters listed in Rules 26, 28 and 30 of the rules have not been used. That finding of a fact based on the observations made by the Public Analyst or the Director of Central Food Laboratory, when put in a positive manner would amount to stating that prohibited colouring matter has been used. Therefore, what is mentioned by the public Analyst in Ex. P6 in this regard is not an opinion of his. That finding of a fact based on the observations made by the Public Analyst or the Director of Central Food Laboratory, when put in a positive manner would amount to stating that prohibited colouring matter has been used. Therefore, what is mentioned by the public Analyst in Ex. P6 in this regard is not an opinion of his. but is a fact found bv him. Tn this VIew of the matter, I find myself unable to agree with the principle laid down in Public Prosecutor's case (2 ). S. 13 (5) of the Act makes it abundantly clear that any document purporting to be a report signed by a Public Analyst mav be used as evidence of the facts stated therein in any proceeding under this Act. The Supreme court has in Mangaldas v Maharastra State, AIR. 1966 SC. 128,dealt with this provision and has held that a renort of a Public Analvst is admissible as evidence and 1he facts mentioned therein could be relied upon as evidence and that examination of a Public Analyst in proof of the contents of a report furnished bv him would not be necessary. It is of course observed bv the Supreme Court that in case either the Court or any of the parties desires, nothing in law prohibits any of them from examininp a Public analyst on the renort ssued bv him. Thpre is no material available in this case 1o show that the fact's mentioned bv the Public Analyst in Ex. P6 which have becom evidence under S. 13 (5) of the Art, cannot be relied upon. Their Lordships have, in the very same decision, further observed that such a certificate is not onlv made admissible in evidence, but is riven finality of the facts contained therein bv the proviso to that sub-section. ( 10 ) THEREFORE, I have no besitation in holding that the prosecution has satisfactorily established that the petitioner had in fact sold to PW 1 adulterated food material, viz Toor Dal in question. Sri Raikote lastly contended that the petitioner is a retail dealer and, therefore, he must have purchased this food-stuff viz. , Toor Dal from a wholesale dealer having a wholesale dealers' licence according to the licensing Orders issued bv the Mysore Government under the provisions of the Essential Commodities Act and, therefore, such a vendor viz. Sri Raikote lastly contended that the petitioner is a retail dealer and, therefore, he must have purchased this food-stuff viz. , Toor Dal from a wholesale dealer having a wholesale dealers' licence according to the licensing Orders issued bv the Mysore Government under the provisions of the Essential Commodities Act and, therefore, such a vendor viz. , the petitioner, could not be held guilty of an offence of food adulteration under the provisions of this Act. He urged that element of mens rea is not taken away by any of the provisions of the Act and, therefore the prosecution ought to have established that this petitioner had sold this article either having knowledge or having reason to believe that the article of food was adulterated. This argument is repelled by S. 10 of the Act. It reads as follows:"10 (1 ). It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. (2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves (a) That he purchased the article of food (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. (3) Any person by whom a warranty as is referred to in S. 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence. " ( 11 ) THEIR Lordships of the Supreme Court in Mangaldas's case (3) have dealt with similar contention. They have held that the burden is on the accused to show absence of mens rea. That burden is not discharged by the petitioner in this case. In visw of the foregoing reasons, I find that this petition is Lable to fail and hence, dismiss the same. They have held that the burden is on the accused to show absence of mens rea. That burden is not discharged by the petitioner in this case. In visw of the foregoing reasons, I find that this petition is Lable to fail and hence, dismiss the same. --- *** --- .