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Gujarat High Court
Judgename :S.M.SONI
SUMANCHANDRA B.TRIVEDI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL1355 of .
Decided On : 10/11/1993
Learned Counsel has contended that the reading arrived at by the Public Analyst is not according to the specified method of calculating the reading for unsaponifiable matter. He has drawn the attention of this court to Manual of Methods of Tests and Analysis for Food, which is published by the Director General of Health Services, Ministry of Health, Family Planning and Urban Development, Government of India, New Delhi. In the Preface, it is stated that these methods of tests having been recommended by the Sub-Committee and approved by the Central Committee for food standards are published for the guidance of all concerned and that this Manual is published with a view to form uniformity amongst the analysts in their method of analysis.
[Para 4]
Under this Manual, method for determination of unsaponifiable matter is described. From this, it appears that insaponifiable matter is a residue, after the deduction of the weight of fatty acid contained thereon. This is made clear by the method of calculation. Therefore, to conform with the standard prescribed in A.19 of Appendix B of the Rules when it is provided that it shall not have insaponifiable matter exceeding 1.25%, that matter reading must be after deducting the weight in gram of fatty acid. If the reading arrived at by the Public analyst, which is 1.40%, is proved to be after deduction of fatty acid, then it can be said to be a reading for the purpose of A.19 of Appendix B of the Rules. Mr. Boman, who is examined by the prosecution before the court, has in terms stated that reading referred to in his report is without deducting the weight of fatty acid in gram. In his report, weight of fatty acid is shown to be 0.25%. If this reading of the fatty acid is deducted from the reading of unsaponifiable matter, which is 1.40% then according to the Manual and in his view, the correct reading of unsaponifiable matter is 1.15% only and it is in compliance with the specification prescribed under the Rules.
[Paras 4 & 5]
When the Public Analyst himself has deposed on oath that his reading arrived at 1.40% does not appear to be correct, it is hazarduous to rely on such reading and to hold that the sample is not as per the specification so far as Unsaponifiable matter is concerned. When the Public analyst has specifically stated that the result of unsaponifiable matter certified as 1.40% does not appear to be correct, there is nothing wrong on the part of the learned Magistrate if he has not relied upon the same and held that so far as that part of adulteration is concerned, the prosecution has failed to prove the same.
[Para 5]
The prosecution was launched against the accused on the basis of the report of the Public Analyst that the sample taken was not as per the specification prescribed. From the evidence of Mr. Boman it is clear that certain aspects of analysis for the purpose of calculation were not taken into consideration and the reading as to unsaponifiable matter was arrived at incorrectly. If alleged deduction of fatty acid would have been given credit in arriving at the calculation of unsaponifiable matter, the only finding which would remained against the accused was the Holdes test and in view of the admission of Mr. Boman before the court that if reading of unsaponifiable matter would have been less than 1. 25% he would not have failed the sample even if the Holdes test was found positive, this finding also would not have remained. If this situation would have been there, which has ultimately found by the evidence of Mr. Boman, then Mr. Boman might not have given the certificate to the effect that the sample failed and there would not have been any prosecution of the accused persons.
[Para 7]
( 1 ) APPELLANT orig. complainant has by this appeal challenged the order of acquittal dated 13. 2. 84 recorded by the Judicial Magistrate, First Class, Kalol in Criminal Case no. 343 of 1974.
( 2 ) COMPLAINANT purchased a sample of vanaspati at about 11. 15, A. M. on 27. 8. 73 from accused no. 13, who was sitting in the shop of accused no. 12. After duly observing the necessary formalities of taking sample, the same was sent to Public Analyst at Baroda, who, in his report dated 26. 9. 73 found that the sample does not conform to the standards laid down under Prevention of Food Adulteration Rules, 1955 (Rules for short ). The complainant then placed that report before the concerned authority, seeking necessary sanction to prosecute the accused and on obtaining necessary sanction, criminal complaint was filed against the accused. Accused no. 12 had purchased the said sample from accused no. 11, who had purchased the same from accused no. 6, who has in turn purchased the same from accused no. 1. Accused nos. 2,3,4 and 5 are the office-bearers of accused no. 1 (accused no. 4 was the Manager of accused no. 1-company. However, he has died pending trial ). Accused nos. 7 and 8 are the partner and manager respectively of accused no. 6 and accused nos. 9 and 10 are the persons who have also purchased vegetable ghee from accused no. 6. Separate cases were filed against accused nos. 9 and 10. The complainant examined necessary witnesses and after preliminary enquiry, on being satisfied that there is material to frame charge against the accused, the learned Magistrate framed the charge against the accused on 10. 10. 82 (Ex. 136 ). In the charge, it is specifically mentioned that the sample purchased from the accused is not as per specification inasmuch as on analysis of the same, the mineral oil is found. Accused nos. 1, 6 and 11 and other concerned accused were also charged in view of their sale without warranty. On completion of the evidence on the part of the complainant, plea of the accused of both of the learned Advocates for the prosectuion as well as the defence, recorded the order of acquittal. Against the order of acquittal, present appeal has been filed.
( 3 ) ). Learned Counsel Mr. M. I. Patel appearing for the applellant has challenged this order of acquittal on the ground firstly that the learned Magistrate has erred in reading the evidence of Boman and concluding that the prosecution has failed to prove that the sample vanaspati taken from the accused did not conform to the standards specified, more particularly on the question of unsaponifiable of the standard prescribed, and, secondly that Holdes test being found positive, the sample contained mineral oil, which is prohibited in edible oils as provided in clause 17 of the Rules, as the vanaspati is refined edible oil or oils subjected to a process of hydrogenation in any form. Mr. Patel, therefore, contended that even in vanaspati if mineral oil is found present, then the sample is not as per the standard specified.
( 4 ) WE will first deal with specification pertaining to unsaponifiable matter. A. 19 of Appendix B of the Rules provides for the standard of quality of vanaspati, which is admittedly an article of food. It reads as under:- a. 19. Vanaspati means any refined edible vegetable oil or oils, subjected to a process of hydrogenation in any form. It shall be prepared by hydrogenation from groundnut oil, cotton seed oil and sesame oil or mixtures thereof or any other harmless vegetable oils allowed by the Government for the purpose. It shall confirm to the standards specified below: (I) It shall not contain any harmful colouring, flavouring or any other matter deleterious to health. (II) No colour shall be added to hydrogenated vegetable oil unless so authorised by Government, but in no event any colour resembling the colour of ghee shall be added. (III) If any flavour is used, it shall be distinct from that of ghee, in accordance with a list of permiss
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