M. K. SHAH, J. ( 1 ) THESE two appeals are filed by the State of Gujarat and the original complainant food inspector and are directed against the order of acquittal passed by the learned Judicial Magistrate First Class Kapadvanj in criminal case No. 1618 of 1976 acquitting the respondentaccused of the offences under sec. 7 (1) read with sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act 1954 (the Act) read With Rule 23 of the Prevention of Food Adulteration Rules 1955 (the Rules ). ( 2 ) FROM the shop of the accused on 17-2-1976 the complainant Food Inspector purchased a sample for the purpose of analysis of chilli powder weighing 450 gms and after following the necessary formalities divided the same into three parts in three bottles. The accused was prosecuted on receipt of the report of the Public Analyst to the effect that it contained Ash insoluble in dilute HCI at 3. 09% instead of the specified percentage of 1. 3% under the rules and that it contained oil soluble coal tar dye. A complaint was lodged against the respondent accused for the aforesaid offences before the learned Magistrate. ( 3 ) AT the request of the accused one of the three bottles in which sample was collected was forwarded to the Director of the Central Food Laboratory Calcutta for analysis by the learned Magistrate and the report of the Central for Laboratory Ex. 32 dated 30-9-1977 disclosed that it contained Ash insoluable in dilute HCI of 2. 9% and it also contained oil soluble coal tar dye. ( 4 ) ON the evidence led before him the learned Magistrate came to the conclusion that the written consent sanctioning the prosecution granted under sec. 20 of the Act in the instant case was not by the authority competent to grant that sanction. He further held that though there was coal tar dye found in the sample which was analysed by the Central Food Laboratory there was no indication as to what was the colour of the dye and that therefore it was not possible to say whether it was permitted dye or not. He also found that the total ash contained viz. 9. He also found that the total ash contained viz. 9. 9% was also more than the prescribed percentage which was 8% and he further held that as ash insoluble in dilute HCI was also more than specified percentage the same being 2. 9% instead of 1. 3%. However as he was of the opinion that the written consent sanctioning prosecution was not by the competent authority be acquitted the accused by his order dated 22nd May 1978 and it is the said impugned order which is the subject matter of challenge in these two appeals filed by the State of Gujarat and the original complainant Food Inspector. ( 5 ) MR. Desai the learned Advocate appearing for the original complainant in appeal No. 1318 of 197r drew my attention to the fact that in the instant case the sample was collected on 17th February 1976 At that time sec. 20 of the Act as it stood then provided thus :-20 No prosecution for an offence under this 24ct shall be instituted except by or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority. The proviso is not relevant for our purpose. ( 6 ) BY amending Act 34 of 1976 sec. 20 was amended and the amended section reads thus :- (1) No prosecution for an offence under this Act not being an offence under sec. 14 or sec. 14a shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order by the Central Government or the State Government. The proviso is not relevant for our purpose. ( 7 ) IN the instant case though the sample was collected on 17th February 1976 written consent for instituting prosecution was granted by the Local Health Authority and Chief Medical Officer of Health Kheda Jilla Panchayat Nadiad on 16th August 1976 who is authorised to give such written consent by a notification issued by the State Government. It was contended on behalf of the accused that as the offence took place before sec. It was contended on behalf of the accused that as the offence took place before sec. 20 was amended the written consent required for prosecution should be of the authority competent to grant such consent on 17th February 1976 that is prior to the amendment and not after the amendment. ( 8 ) THIS argument was accepted by the learned Magistrate. Obviously notification dated 7-7-1975 was in force which conferred powers under sec. 20 of the Act as it stood before the amendment authorising persons specified in column 2 of the schedule appended to the said notification to grant consent in respect of prosecution in respect of areas specified against column No. 13 of the Schedule. Column No. 13 described Chief Medical Officer of Health Kaira district (Nadiad) as the person and the areas included Kaira district excluding the areas comprised in Municipality of Nadiad Anand Petlad Cambay Borsad Kapadvanj Umreth and Nagar Panchayat Balasinor Dakor Mahemdabad Sojitra and Kaira. Thus so far as Kapadvanj is concerned the Chief Medical Officer of Health Kaira district Nadiad would not be the competent authority to issue consent if sec. 20 prior to amendment was to hold field. But after the amendment a fresh notification in supersession of the previous notification was issued on 26th April 1976 by which in the schedule at Sr. No. 7 the person mentioned is Chief Medical Officer on Health Kaira district (Nadiad) and against which the words each of local areas in the Kaira district are set out and therefore if the amended section is to operate then the consent in the instant case would be a valid one. Sec. 20 relates to institution of a prosecution and not to commission of the offence. The point of time when the prosecution is instituted and not the point of time when the offence is committed. Though the offence was committed on 17th February 1976 the prosecution was launched on 23rd August 1976 and therefore the relevant time would be the time after the amendment which came into force on and from 26th April 1976 and the consent therefore granted on 16th August 1976 by the authority specifically authorised in this behalf by the said notification dated 26th April 1976 in supersession on the previous notification dated 7th July 1975 will constitute a valid consent. ( 9 ) MR. ( 9 ) MR. Desai in this connection drew my attention to a decision of this Court by Talati J. in Criminal Appeal No. 867 of 1978 dated 30th November 1979 where also a similar question arose and after quoting sec. 20 the learned Judge has made the following observations with which observations I am in perfect agreement :-IT is not in dispute that the person who gave the written consent had the authority to give such consent after 1-4-1976. In fact after 1-4-196 Kapadvanj Municipality had no power left to give any such consent. The written consent is necessary for the purpose of instituting a prosecution. Criminal proceedings cannot be said to be instituted until a formal charge is openly made against the accused by complaint before a Magistrate. This one finds in Venkatamaiyas Law Lexicon Volume I on page 639 1971 Edition. Now this Criminal proceeding is instituted on 23-8-1976 Now therefore the court at the time of taking cognizance was bound to see whether on that day the prosecution was instituted with written consent of the prescribed authority That written consent was obtained on 16-8-1976. In view of the provisions contained in sec. 20 of the Act it cannot be suggested that the written consent of Kapadvanj Municipality was necessary on that day and that this written consent was rot proper. The finding of the learned Judicial Magistrate First Class Kapadvanj is clearly erroneous when he came to the conclusion that the written consent should have been obtained of the authority which had the authority on 4 In this view of the legal position as it emerges on amendment of sec. 20 of the Act there would he no doubt that the consent given by the competent authority in the instant case is valid one and the learned Magistrate was therefore patently in error in holding that the authority competent to grant consent was the one authorised to do so prior to amendment and in acquitting the accused on that ground. ( 10 ) WITH regard to the merits on going through the report of the Director Central Food Laboratory which is at Ex. ( 10 ) WITH regard to the merits on going through the report of the Director Central Food Laboratory which is at Ex. 32 it is clear that as per the analysis carried out by the Central Food Laboratory there was excess so far as total ash contents are concerned as also ash insoluble in dilute HCI contents are concerned It also shows that oil soluble coal tar dyes which was a colouring matter not permissible under the rules was added and thus the sample of the chilli powder analysed by the Central Food Laboratory was adulterated within the meaning of sec. 2 (1a) as also (m) of the Act. Rule 5 lays down that standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix. Turning to appendix Be find at item No. A. 05 05. 01 Chillies powder which means powder obtained by grinding clean dried chilli pods of Capsicum frutescens L/capsicum annum and it provides that chilli powder shall be dry free from dirt mould growth insert infestation extraneous matter added colouring matter and flavouring matter. It further provides that the chilli powder may contain any edible oil to a maximum limit of 2 per cent by weight under a label declaration for the amount and the nature of oil used and it then prescribes standards. The total ash prescribed is not more than 8. 0 per cent by weight and ash insoluble in dilute HCI is prescribed at not more than 1. 3 per cent by weight. Rule 23 provides23 The addition of a colouring matter to any article of food except as specifically permitted by these rules is prohibited. Rule 28 which relates to coal tar dyes which may be used says no coal tar dyes or a mixture thereof except the following shall be used in food. IT then sets out four colours viz red yellow blue and green. Rule 29 provides that use of permitted coal tar dyes in or upon any food other than those enumerated in that rule is prohibited and then items (a) to (o) are enumerated. Nowhere in these items (a) to (o) we find chilli powder. That means no coal tar dye of whatever colour is permitted to be added in chilli powder. Rule 29 provides that use of permitted coal tar dyes in or upon any food other than those enumerated in that rule is prohibited and then items (a) to (o) are enumerated. Nowhere in these items (a) to (o) we find chilli powder. That means no coal tar dye of whatever colour is permitted to be added in chilli powder. The learned Magistrate was therefore obviously in error in not reading these rules properly and in coming to the conclusion that because colour was not mentioned in the report about coal tar dye it was not possible to say whether permitted colour was used or not. It seems the learned Magistrate lost sight of Rule 29 which even in respect of permitted coal tar dye casts a total prohibition with respect to items which do not find a place in the list of items set out in that rule. Chilli powder is not one of the items set out in that rule and therefore no coal tar dye irrespective of colour to which it may belong is permitted to be added to any chilli powder. The accused was therefore clearly guilty of this breach and on this count alone he should have been held guilty of selling an adulterated article of food. ( 11 ) WITH regard to ash contents in insoluble in dilute HCI also as per the specific percentage the percentage found on analysis is in excess and the sample of chilli powder is adulterated on that count also. Of course so far as this aspect is concerned the learned Magistrate has held against the accused. But as he was of the opinion that there was no valid consent issued under sec. 20 he had passed the impugned order of acquittal. ( 12 ) MR. Shah the learned Advocate appearing for the accused seeks to support the judgment on other grounds though they were not taken up before the lower Court. He first of all draws my attention to the two reports of the Public Analyst which is at Ex. 24 and that of the Director of Central Food Laboratory which is at Ex. 32 and points out therefrom a divergence appearing in the results recorded by these two reports. Particularly he refers to the percentage of moisture which as per the report at Ex. 24 (Public analysts report) is 9. 768%; while the same is 4. 24 and that of the Director of Central Food Laboratory which is at Ex. 32 and points out therefrom a divergence appearing in the results recorded by these two reports. Particularly he refers to the percentage of moisture which as per the report at Ex. 24 (Public analysts report) is 9. 768%; while the same is 4. 5% only as per Ex. 32. Ash insoluble in dilute HCI as per Ex. 24 is 3. 009%; while the same is 2. 9% as per Ex. 32. As per Ex. 24 there is absence of any crude fibre in the sample analysed; while as per the Central Food Laboratorys report at Ex. 32 it is present to the extent of 23. 8% Mr. Shah therefore submits that such wide range of divergence between the two reports is suggestive of and should lead to an inescapable conclusion that the samples have been tampered with. In any case further submits Mr. Shah the matter is not free from doubt and the benefit of that doubt must go the accused. ( 13 ) I am unable to accept the contention of Mr. Shah. There is specific statutory provision contained in sec. 13 (3) which reads thus :-THE certificate issued by the Director of the Central Food Laboratory under subsec. (2-B) shall supersede the report given by the public analyst under sub-sec. (1 ). Sub-sec. (5) provides thus any document purporting to be a report signed by a public analyst unless it has been superseded under sub-sec. (3) or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceeding under this Act or under secs. 272 to 276 of the Indian Penal Code (45 of 1870)PROVIDED that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of good referred to in the proviso to sub-sec. (1) of sec. 16 shall be final and conclusive evidence of the facts stated therein. IT is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. (1) of sec. 16 shall be final and conclusive evidence of the facts stated therein. IT is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter when there is a report of Central Food Laboratory the report of the Public Analyst will for all practical purposes be treated as non-existent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question therefore of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they have to be strictly complied with. ( 14 ) BUT Mr. Shah then submitted that in any event the court in such cases should take a strict view of the matter if the require ments of the rule with regard to the manner of packing sealing and testing of samples is not strictly adhered to and with this aim in view Mr. Shah formulates the following points:- ( 15 ) THERE is breach of Rule 14 committed by the complainant inasmuch as the container in which initially the sample of the chilli powder was collected from where it was later distributed into three parts into three bottles is not shown to have been cleaned and dried and closed sufficiently tight to prevent leakage evaporation or in the case of dry substance entrance of maisture as provided in Rule 14 which at the relevant time read as under:-SAMPLES of food for the purpose of analysis shall be taken in clean dry bottles or Jars or in other suitable containers which shall be closed Sufficiently tight to prevent leakage evaporation or in the case of dry substance entrance of moisture and shall be carefully sealed. Now as the evidence shows as pointed out by Mr. Shah 450 gms. of chilli powder was collected first. The Food Inspector does not say as to in what container this quantity of chilli powder was first kept till it was distributed into three bottles. Now as the evidence shows as pointed out by Mr. Shah 450 gms. of chilli powder was collected first. The Food Inspector does not say as to in what container this quantity of chilli powder was first kept till it was distributed into three bottles. The Food Inspector in his evidence does say that chilli powder which was kept for the purpose of selling in the shop of the accused was kept in bags of paper and they were in powder form. He does say that he purchased 450 gms. of chilli powder and thereafter divided the same into three samples of 150 gms. into three empty dry clean glass bottles in equal parts. This in my opinion is sufficient compliance with Rule 14. There is nothing to show that before the same were put in three bottles they were kept in any other container as such. As a matter of fact they were lying in paper packets and in all probability they must have been weighed and thereafter kept in paper and then transferred to three bottles as aforesaid. In cross examination it is not suggested that any such container was used for keeping the sample when initially collected before it was distributed into three sample bottles. ( 16 ) MR. Shah then contends that there is breach of Rule 16 (b) and (c) inasmuch as that the evidence of the Food Inspector does not show that the paper used for wrapping the bottles was fairly strong thick paper as provided by Rule 16 (b) which reads thus:-ALL samples of food sent for analysis shall be packed fastened and sealed in the following manner namely :- (a) x x x (b) The bottle jar or other container shall then be completely wrapped in fairly thick paper. the ends of the paper shall be nearly folded in and affixed by moans of gum or other adhesive. ( 17 ) MR. Shah also contends that there is breach of Rule 16 (c) inasmuch as the Food Inspector has not stated that the twine or thread by means of which the paper cover was a strong twine or thread. the ends of the paper shall be nearly folded in and affixed by moans of gum or other adhesive. ( 17 ) MR. Shah also contends that there is breach of Rule 16 (c) inasmuch as the Food Inspector has not stated that the twine or thread by means of which the paper cover was a strong twine or thread. Rule 16 (c) provides thus:-THE paper cover shall be further secured by means of strong twine or thread both above and across the bottle jar or other container and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender of which one shall be at the top of the packet one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. It is true in the evidence specifically the Food Inspector does not say that the paper used for wrapping the sample was fairly strong thick paper and that the twine used for securing the paper cover was strong twine. But if we read his evidence a lithe carefully it would be clear that he has complied with this requirement of the rule. He has stated as follows:- after referring to affixing seal bearing the signatures of the panchas and seals being affixed on the knots the witness says that certain other formalities were also done as per the rule and while describing those formalities which were done as per the rule that is as provided under the above rule he refers to affixing of label on which signatures of panchas and the tradesmen were taken keeping of the bottles in paper affixing the fold with an adhesive and securing wrapper with twine and affixing seals on the knots as also at four places on the bottle. This in my opinion means that all the acts as prescribed by the rules were done in compliance with the rules. This in my opinion means that all the acts as prescribed by the rules were done in compliance with the rules. When he refers to the bottles being kept in paper according to the rule it means that they were kept in fairly strong thick paper as prescribed by the rule and when he refers to the wrapper being secured by twine as per rule it means that it was secured by means of a strong twine as prescribed by the rules. Here also there is no cross examination to suggest that the paper used was not fairly strong thick paper or that the twine used was not a strong twine. In my opinion there is no breach of Rule 16 (b) or (c) as contended by Mr. Shah. ( 18 ) MR. Shah lastly contended that in the instant case the report submitted by the Central Food Laboratory Ex. 32 merely contains analysis or result of the analysis and does not show the mode or method used by the Central Food Laboratory for deriving or deducting results. The report is therefore a perfunctory one and deprives the accused of an opportunity to show that it has not been arrived at by following a scientific method or following a method accurately. ( 19 ) MR. Shah in this connection strongly relies contain observation of the Supreme Court in Kisan Tuimbak Kothula and Others v. State of Maharashtra (1977) 1 S. C. C. 300. The Supreme Court upheld the conviction under sec 16 (1) (a) (i) and made the following observations:-THUS the conviction under sec. 16 (1) (a) and the exclusion of the proviso (i) are justified subject to what we have to say about the Public Analysts report and the criticism leveled thereon which bears on the guilty of accused No. 2. Then appear the observations on which Mr. Shah strongly relies which are at page 308 in para 15 :- counsel for the appellants correctly criticised the inadequacy of the Public Analysts certificate. Had there been a plea of not guilty we might have been forced to scrutinise how far the perfunctoriness of the public analyst had affected the substance of his conclusions. It is not enough to give a few technical data. It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at. It is not enough to give a few technical data. It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at. We need not probe the matter further notwithstanding the decisions reported in two English cases (Tortune v. Hanson 12 TLR 164 18 Cox CC 258:- 1896) 1 QBD 202 and Newby v. Sims 10 TLR 206:- 63 LJMC 228:- (1894) 1 QB 478 482 (cited before us) because the plea of guilty silences the accused. MR. Shah wants me to read in these observations a dictum by the Supreme Court that a report of the Public Analyst or certificate issued by the Public Analyst which merely records result arrived at without showing the method by which it was arrived at is not sufficient to base the finding that the sample is adulterated. I fail to see any such mandate or read any such universal rule in the observations of the Supreme Court. These observations are not even the nature of an obiter. They are in the nature of some passing thoughts which the Supreme Court set out on a particular aspect which it was not called upon them to consider as stated by it in so many words in view of the fact that the accused in that case had pleaded guilty and such a question therefore did not arise. Again the Supreme Court has merely stated that if the plea of guilty was not there the Supreme Court would have been forced to scrutinise how far the perfunctoriness of the Public Analysts report had affected the substance of the conclusion meaning thereby that in that case the Supreme Court would have entered into the question as to how perfunctoriness of the Public Analysts report has affected the substance of the conclusions arrived at by the Public Analyst and then the Supreme Court observed that it was not enough to give a few mechanical data and it is more pertinent to help the court with something more of the process by which the conclusion has been arrived at. But this does not and cannot mean that the Supreme:- Court has laid down a rule of universal application that if something more of the process by which the conclusion has been arrived at is not set out in the report it becomes a scrap of paper and that the conclusion recorded should not be relied on. Again the Supreme Court was dealing with a Public Analysts report and not the report of the Central Food Laboratory. From the judgment it is not possible to find out as to what were the exact contends of the Public Analysts report which was before the Supreme Court and whether the contents of the Central Food Laboratorys report before this court are similar to the ones of the report which was before the Supreme Court. ( 20 ) IN this connection a mere look at sec. 13 (2b) will show as to what are the contents necessary to be included in the report to be submitted by the Director of Central Food Laboratory. It reads thus:-2b On receipt of the part or parts of the sample from the Local (Health) Authority under sub-sec. (2a) the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-sec. (1) of sec. 11 are intact and the signature or thumb impression as the case may be is not tampered with and dispatch the part or as the case may be one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. It would be thus seen that the certificate has to be issued in a prescribed form and it has to specify only the result of the analysis. THERE is no dispute that the certificate issued as per Ex. 32 is in the prescribed form II and it does specify the result of the analysis. In this view of the matter no fault can be found with this certificate and the learned Magistrate was therefore obviously in error in coming to the conclusion that the accused was not guilty of the offences under sec. 16. 32 is in the prescribed form II and it does specify the result of the analysis. In this view of the matter no fault can be found with this certificate and the learned Magistrate was therefore obviously in error in coming to the conclusion that the accused was not guilty of the offences under sec. 16. The conclusions drawn by the learned Magistrate are based on misconception of law and the interpartition of the provisions contained in the Act and the Rules unworthyness of the conclusion drawn as also reasons advanced in support thereof by him are clearly demonstrated here in above. The order of acquittal is therefore not suitable and there is sufficient material on record to justify the recording of a finding of guilty against the accused for the offence under sec. 7 (1) read with sec. 16 (1) (a) (i) read with Rule 23. The result therefore will be the following order. . ( 21 ) APPEAL allowed. Order of acquittal set aside. The accused is convicted of the offences under sec. 7 (1) read with sec. 16 (1) (a) (i) of the Act read with Rule 23 of the Rules. With regard to sentence notice to be issued to the accused for hearing with regard to sentence returnable on 30-4-1980. ( 22 ) IN pursuance of the notice issued the accused is personally present along with his learned Advocate and he has filed an affidavit setting out the facts and circumstances praying for leniency being shown to him in view of the special facts of the case. But before 1 deal with the question of sentence my attention is drawn to the fact that the offence in the instant case technically speaking would not fall within sec. 16 (1) (a) (i) but would fall within sec. 16 (1) (a) (ii ). The breach committed was adding of colouring matter to an article of food not specifically permitted by the rules and thus prohibited. 16 (1) (a) (i) but would fall within sec. 16 (1) (a) (ii ). The breach committed was adding of colouring matter to an article of food not specifically permitted by the rules and thus prohibited. An article of food therefore cannot be said to be adulterated within the meaning of sub-clause (m) of clause (ia) of sec 2 which provides that an articles of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health However it will fall within clause (j) of sec. 2 (ia) which provides that an article of food shall be deemed to be adulterated if any colouring matter other than that prescribed in respect thereof is present in the article or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability. In this view of the matter the conviction will have to be for the offence under sec. 7 (1) read with sec. 16 (1) (a) (ii) and not sec. 16 (1) (a) (i) as earlier described because on the facts and material on record what is disclosed and established is an offence which will be punishable under sec. 16 (1) (a) (ii) and not sec. 16 (1) (a) (i ). It is true the accused was charged under sec. 16 (1) (a) (i) and not sec. 16 (1) (a) (ii ). But it is to be noted that in terms the charge Ex. 25 mentioned breach of clauses (a) (b) (c) (i) and (1) of sec. 2 (i) of the Act and the question therefore of any prejudice being caused to the accused does not arise in the instant case particularly when the prosecution was founded on an allegation that the accused committed an offence publishable under sec. 16 (1) (a) (i) by reason of the breach inter alia of sec. 2 (1) (j) of the Act. The accused 1 therefore committed for the offence under sec. 7 (1) of the sec. 16 (i) (h) (ii) of the Act. ( 23 ) IN view of the conviction being under sec. 7 (1) read with sec. 16 (1) (a) (ii) instead of sec. 2 (1) (j) of the Act. The accused 1 therefore committed for the offence under sec. 7 (1) of the sec. 16 (i) (h) (ii) of the Act. ( 23 ) IN view of the conviction being under sec. 7 (1) read with sec. 16 (1) (a) (ii) instead of sec. 16 (1) (a) (i) the learned Advocate for the accused was asked if he wanted to make any further submission with regard to the sentence over and above those which are made in the affidavit filed by the accused and beyond stating that the benefit of the proviso to sec. 16 (1) be given to the accused and lesser sentence than the minimum prescribed may be imposed on special facts of the case as set out in the affidavit no further submissions were made with regard to sentence. ( 24 ) MY attention was drawn to a decision of the Supreme Court in Prem Ballab and Another v. The State (Delhi Administration) A. I. R. 1977 S. C. 56. The Supreme Court was concerned in that case with the sale of Linseed oil which contained artificial dye and it held that it fell under sec. 2 (1) (j) and hence proviso to sec. 16 (1) cannot be invoked. The observations of the Supreme Court in this connection appearing at page 61 are very important and they aptly apply to the facts of the present case :-CLAUSE (j) of sec. 2 (i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food or in other words it is prohibited and yet the article contains a colouring matter. The Supreme Court later observed :- where no colouring matter is permitted to be used in an article of food what is prescribed on respect of the article is that no colouring matter shall be used and if any colouring matter is present in the article in breach of that prescription it would clearly involve violation of clause (j) of sec. 9 (i) still fur her the Supreme Court observed. 9 (i) still fur her the Supreme Court observed. WE take the view that even where the rules prescribe that no colouring matter or artificial dye shall be used in respect of an article of food clause (i) of sec 2 (i) would apply if it is found that some colouring matter or artificial dye is present in the article. Mere the linseed oil sold by the appellants contained artificial dye despite the prohibition in the Rules and hence the case was clearly covered by clause (j) of sec. 2 (i) and the linseed oil must be deemed to be adulterated under that clause. That would exclude the applicability of the proviso to sec. 16 (1) since the offence in this view would be one with respect to an article of food deemed to be adulterated under clause (j) of sec. 2 (i ). The appellants plea invoking the liberality of the provision enacted in the proviso to sec. 16 (1) must in the circumstances be rejected and the minimum sentence of imprisonment for six months must be maintained. ( 25 ) IN the instant case also the chilli powder sold by the accused contained coal tar dye despite the prohibition in the rules and hence the case is covered by clause (j) of sec. 2 (i) and the accused would not be entitled to the liberal provisions contained in the proviso to sec. 16 (1 ). Minimum sentence of six months will have to be imposed in the instant case in any event and taking into consideration the nature of the offence its gravity and the special circumstances which are set out in the affidavit of the accused in my opinion ends of justice will be met if the minimum sentence prescribed under sec. 16 (1) of the Act viz. six months R. I. and fine of Rs. 1 0 in default further R. I. for two months is awarded. Order accordingly. At the request of the learned Advocate for the accused 8 weeks time to surrender is granted to the accused. Acquittal set aside. .