Ramkumar, J.

This revision comes up for consideration before us on a reference made by a learned Judge, Justice M. Sasidharan Nambiar. According to the learned Judge, decisions of this Court in Food Inspector V. Sivarama Menon (1990 (1) KLT 393) and Beena V. State of Kerala (2010(2) KLT SN 17 (Case No.21) were rendered without adverting to an earlier decision of this Court in Krishnankutty Nair V. George (1986 KLT 871) and the ratio in those two decisions (Food Inspector V. Sivarama Menon (Supra) and Beena V. State of Kerala) (Supra) as well as the ratio in an unreported decision in Crl.R.P.No.140/1977 holding the view that the presence of talc (Magnesium silicate), which is neither a colouring matter nor a pigment in the very same food grain namely, black gram dhal, does not attract the prohibition under Rule 27 of the Prevention of Food Adulteration Rules, 1955 (the Rules for short) is ignoring the fact that even if talc is not a colouring matter or a pigment, talc is not a permitted inorganic matter as per the Explanation to the standard in A.18.06 in Appendix B to the Rules.

2. We heard Advocate Sri. Santhosh Subramanian, the learned counsel appearing for the revision petitioner and Advocate Sri. M.S. Breeze, the learned Public Prosecutor.

THE PROSECUTION CASE

3. The facts leading to this revision are the following:-

On 4-3-1994 at 4.45 p.m., the complainant namely, the Food Inspector, Chalakudy Circle (examined in this case as PW1) visited the revision petitioner’s shop by name “Janatha Stores” at Nellai and purchased, for the purpose of analysis, 750 grams of black gram dhall (urd whole without husk), after duly complying with the formalities prescribed under the Prevention of Food Adulteration Act, 1954 (“the Act” for short) and the Rules. One part of the sample of the said food article, on analysis by the Public Analyst, was found as per Ext.P12 Form III report to be adulterated, since the sample of black gram dhall was found coated with talc (Magnesium silicate) described as an inorganic pigment.

4. The Judicial Magistrate of the First Class, Irinjalakuda after trial, as per judgment dated 31-5-2000 found the revision petitioner guilty of the offence punishable under section 16(1)(a)(i) of the Act and sentenced him to undergo simple imprisonment for six months and to pay fine of 1,000/- and on default to pay the fine, to suffer simple imprisonment for two months. On appeal preferred by the revision petitioner before the Additional Sessions Court, Thrissur, the lower appellate court as per judgment dated 27-9-2002 dismissed the appeal confirming the conviction entered and sentence passed against the revision petitioner. It is pertinent to note that the only point which was urged before the lower appellate court, was that the sampling done by PW1 Food Inspector was not proper. Aggrieved by the concurrent orders convicting the revision petitioner for the above offence, he has preferred the present revision.

5. The only point, which arises for consideration in this revision, is as to whether the conviction entered and sentence passed against the revision petitioner are sustainable or not.

THE POINT

6. Even though the only point urged before the lower appellate court was that the sampling made by the Food Inspector was not proper and that court has repelled the said contention on merit, in all fairness to the counsel for the revision petitioner as well as to the referring Judge we propose to consider the contention urged on behalf of the revision petitioner in this revision that talc ((Magnesium silicate) is neither a colouring matter nor a pigment so as to attract Rule 27 of the Rules and that it being an inorganic substance the contents of which was found below 1%, the sample purchased from the revision petitioner is not adulterated.

ARGUMENTS FOR THE ACCUSED

7. Besides relying upon an unreported order dated 11-8-1978 in Cr.R.P.No.140/1977 and Food Inspector V. Sivarama Menon (Supra) and Beena V. Sta