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2001 DIGILAW 584 (KER)

A. Shaji v. State Of Kerala

2001-10-19

K.PADMANABHAN NAIR

body2001
Judgment :- The accused in C.C. 148 of 1999 on the file of the Additional Chief Judicial Magistrate Court, Trivandrum is the revision petitioner. The conviction and sentence imposed on the revision petitioner by the learned Additional Chief Judicial Magistrate under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (Act for short) and confirmed by the Sessions Judge are under challenge in this Criminal Revision Petition. The second respondent Food Inspector, Corporation of Trivandrum inspected the provision store conducted by the revision petitioner in T.C. 1/2278 near Medical College Junction at 10 a.m. on 3-2-1989 and purchased 750 gms. of 'Chamba rice' from the revision petitioner for the purpose of analysis after complying with the procedural formalities. The food article purchased was divided into three parts in accordance with the Rules and one part of the sample was sent to the Public Analyst for analysis. On analysis the food article was found coated with Kavi (red Ochre). Ext. P9 report proved by PW 4, the Analyst shows that sample was adulterated. On receipt of the report the complaint was filed alleging that the revision petitioner committed the offence punishable under Sections 2h, (j), 7 read with 16(1)(a)(i) of the Act. The learned Magistrate after trial found that the revision petitioner sold the food article to PW 1 the Food Inspector and the same was adulterated. The revision petitioner was found guilty of the offence punishable under Section 16(1)(a)(i) of the Act, convicted and sentenced to undergo imprisonment for six months and to pay a fine of Rs. 1000. The appeal filed by the revision petitioner before the Sessions Judge was dismissed confirming the conviction and sentence imposed on the revision petitioner. Those concurrent findings are under challenge in this revision petition. This Criminal Revision Petition came up for hearing on 4-10-2001. On that day the revision petitioner and his counsel were absent. Hence the Criminal Revision Petition was posted for orders after hearing the Public Prosecutor and perusing the records. Thereafter the revision petitioner filed Cri. M.P. 5368 of 2001 to review that order. That Criminal Miscellaneous Petition was allowed and the Criminal Revision Petition was posted for hearing and is disposed of after hearing both sides. Hence the Criminal Revision Petition was posted for orders after hearing the Public Prosecutor and perusing the records. Thereafter the revision petitioner filed Cri. M.P. 5368 of 2001 to review that order. That Criminal Miscellaneous Petition was allowed and the Criminal Revision Petition was posted for hearing and is disposed of after hearing both sides. The fact that PW 1 went to the provision store housed in the building bearing door No. TC 1/2278 at 10 a.m. on 3-2-1939 and at that time the revision petitioner was present in the shop is proved in this case. The evidence also shows that the revision petitioner sold 750 gms. of Chamba rice to PW 1. The rice purchased was divided into three parts by PW 1 in accordance with the procedure contained in Rules 14 to 17 of the Rules. Evidence adduced by PW 1 also shows that the independent witnesses present in the shop refused to attest the mahazar. Notice under Section 13(2) was also served on the revision petitioner. It is argued by the counsel for the revision petitioner that the only ground on which the food article was found to be adulterated was due to the presence of the foreign matter. It is contended that as per A.18.06.04 of Appendix B of Prevention of Food Adulteration Rules inorganic foreign matter should not exceed 1% by weight and in this case there is no evidence to show that the foreign matter contained in the rice had exceeded the permissible limit of 1%. It is argued that the analyst had admitted that the percentage of Red Ochre is not stated in the report and hence finding of analyst is not correct. A.18.06 of Appendix B of Rules was amended and A.18.06.04 to 14 were incorporated in Appendix B with effect from 29-11-1991 by G.S.R. 281(E) dated 29th May, 1991 and corrected by G.S.R. 648(E) dated 25th October, 1991. The sample involved in this case was taken on 3-2-1989. The standard for paddy as per A.18.06 of Appendix B of Food Adulteration Rules as on 3-2-1989 was as follows :- A.18.06 - FOODGRAINS meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. Paddy is included in foodgrains and shall have different limits for refractions wherever specified. Foodgrains meant for human consumption shall conform to the following standards : (i) General. Paddy is included in foodgrains and shall have different limits for refractions wherever specified. Foodgrains meant for human consumption shall conform to the following standards : (i) General. - Foodgrains shall be free from deleterious material including artificial colouring matter. The pesticide residue, if any, shall not exceed the prescribed permissible limit. Bajra and wheat grain shall not contain ergot affected grains more than 0.05 per cent by weight. (ii) Foreign matter. - Foreign matter means any extraneous matter other than foodgrains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud shall not exceed 1 per cent whereas in case of paddy, it shall not exceed 3 per cent by weight. Organic matter which includes chaff, straw, weed seeds, inedible grain, oilseeds and other non-poisonous seeds shall not exceed 3 per cent by weight. (iii) ...................................... Appendix B A.18.06 of the Rules permit presence of foreign matter up to 3% by weight in paddy. A reading of various items included in 'inorganic matter' shows that it contains only matters of natural origin. The defence taken by the revision petitioner before the learned Magistrate was that if the paddy is dried over a surface made up of burned bricks it will get a coating of Kavi. But in that case whatever be the colour of the substance, it can only be earth, clay or mud. Ext. P9 report of the Analyst reads as follows :- General The sample consists of parboiled rice and is coated with Kavi (Red Ochre) Foreign inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud Absent Foreign organic matter Absent Damaged grains Absent Insect damaged grains Absent Rodent hair and excreta Absent Moisture (the loss in weight by heating the pulverised food grains at 130 Degree Celsius-133 Degree Celsius) 14.1 per cent Coating Kavi (Red Ochre), an inorganic pigment present. Iron as Fe 2 O 3 11.0 parts per million and am of the opinion that the said sample is coated with Kavi (Red Ochre), an inorganic pigment and is therefore adulterated. The Analyst was examined as PW 4. In Chief Examination the Analyst gave evidence to the effect that the sample was coated with Kavi (Red Ochre) an inorganic pigment and hence the sample was adulterated. The Analyst was examined as PW 4. In Chief Examination the Analyst gave evidence to the effect that the sample was coated with Kavi (Red Ochre) an inorganic pigment and hence the sample was adulterated. During cross-examination PW 4 admitted that she had not mentioned the exact percentage of Kavi (Red Ochre) and she had not specifically stated whether the coating was of a uniform manner or not. Ext. P9 as well as the oral evidence of PW 4 clearly shows that the rice was coated with Red Ochre. The same is an inorganic pigment. An inorganic pigment is not a foreign matter of natural origin. It is an article of human creation. A reading of item No. (ii) of A.18.06 makes it very clear that only inorganic matters and organic matters of natural origin are included in the same. In Krishnankutty Nair v. George, 1986 Ker LT 871 : (1987 Cri LJ 1529), a similar question arose. The food article involved in that case was black gram dhal. It was found to be coated with talc which is a substance consisting of Magnesium silicate. This Court after considering the Explanation found as follows :- "....... Inorganic matters and the organic matters mentioned therein should be read applying the rule of ejusdem generis. That means, inorganic matters and organic matters of natural origin alone can be found in foodgrains up to the permissible limits and not any other kinds of inorganic matters or organic matters. Rule 27 of the Prevention of Food Adulteration Rules specifically prohibits the addition of inorganic colouring matters and pigments. This provision leads to the inference that inorganic pigments cannot be added to any foodgrains." It is true that in Food Inspector v. Sivarama Menon, (1990) 1 Ker LT 393 : (1990 Cri LJ (NOC) 172), this Court had found that talc which is chemically known as magnesium silicate is neither a pigment nor a colouring matter and hence the presence of talc will not make the food adulterated. In Sivarama Menon's case, this Court has not considered whether adding of an inorganic pigment which is an article of human creation will make the food adulterated. In Ext. P9 report it is very specifically stated that no foreign inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud was present in the sample. In Sivarama Menon's case, this Court has not considered whether adding of an inorganic pigment which is an article of human creation will make the food adulterated. In Ext. P9 report it is very specifically stated that no foreign inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud was present in the sample. The report further shows that the rice in question was coated with Kavi (Red Ochre). In Sivarama Menon's case the meaning of the word 'pigment' was discussed. The explanation given to the word 'pigment' in Condensed Chemical Dictionary, 10th Edition by Gessner G. Hawley is extracted in the decision. It reads as follows :- "Pigment. Any substance, usually in the form of dry powder, that impacts colour to another substance or mixture. Most pigments are insoluble in organic solvents and water." It is also stated that inorganic pigments are classified into five groups viz., metallic oxides, metal powder suspensions, earth colours, lead chromates and carbon black. In Encyclopedia Americana international Edition published in the year 1988, at page 447, the compounds of iron are described. It shows that one of important ores of iron is Red Ochre (Ferric Oxide) having the formula Fe 2 O 3 and is a metallic oxide. The use of Ferric Oxide is stated as follows :- "Ferric Oxide, Fe 2 O 3 is found in nature as one of the iron ores - hematite - and is used as a paint pigment in gas purification, in electronic pigments for TV, Radio, permanent magnets, electronic tapes, and in memory cores for computers." In page 448 the properties of Hematite is stated as follows :- "Hematite. Fe 2 O 3 or ferric oxide, is the most important of the iron ores. Its name is derived from the Greek haematites, meaning bloodlike. Pure hematite, which is a vivid red colour in powdered form, contains 69.94% iron and 39.06% oxygen." In New Webster's Dictionary of the English Language Deluxe Encyclopedic Edition, in page 360 the meaning of 'ferric oxide' is given as follows :- "Ferric oxide, chem. Its name is derived from the Greek haematites, meaning bloodlike. Pure hematite, which is a vivid red colour in powdered form, contains 69.94% iron and 39.06% oxygen." In New Webster's Dictionary of the English Language Deluxe Encyclopedic Edition, in page 360 the meaning of 'ferric oxide' is given as follows :- "Ferric oxide, chem. a dark-red iron oxide, Fe 2 O 3, appearing in nature as hematite and rust, or derived through synthesis, and used mainly as a pigment and for polishing metals." In page 803 the meaning of the word "red ocher" is given as : "A red, earthy mixture, containing iron oxide, used as a colouring agent." So it is clear that Kavi (Red Ochre) is an earthy form of Hematite and is used to colour paint. So it is a pigment and is a colouring material. Under Rule 23 of the Food Adulteration Rules addition of an inorganic colouring matter and pigment which are not permitted under the Rules is prohibited. In Moidu v. Food Inspector, Ernakulam Municipality, 1965 Ker LT 221, a Division Bench of this Court had held that no citizen has a fundamental right to manufacture or sell poisonous food and the sale of dhal coloured with non-permitted colouring matter is an an offence. Rule 23 provides that the addition of a colouring matter to any article of food except as specifically permitted in these Rules are prohibited. Rule 26 deals with natural colouring matters described in the Rules. Rule 27 prohibits adding of any inorganic colouring matters. Rule 28 deals with colouring matters which are permitted. Rule 27 reads as follows :- "27. Addition of inorganic colouring matters and pigments prohibited. - In organic colouring matters and pigments shall not be added to any article of food : Provided that chewing gum may contain Titanium dioxide (food grade) up to maximum limit of 1 per cent." The combined effect of Rules 23, 26 and 27 is that addition of any colouring matter to any article of food except as specifically permitted by Rule 28 will amount to adulteration under Section 2(1)(a)(j) of the Act and the same will attract the penalty under Section 16(1)(a)(i) of the Act. The revision petitioner has no case that the pigment used in this case is one permitted under Rule 28 of the Rules. The revision petitioner has no case that the pigment used in this case is one permitted under Rule 28 of the Rules. So the fact that the Public Analyst fall to mention the exact percentage of the inorganic pigment present in the sample is of no consequence at all. Both the Courts below have correctly found that the article sold in this case is adulterated. I do not find any reason to interfere with those findings. So the Revision Petition is only to be dismissed. In the result, the Revision Petition is dismissed. Petition dismissed.