Salesman liable for selling adulterated banana chips with prohibited tartrazine; not permitted under PFA Rules 28-29.

O R D E R

The concurrent verdicts of the Judicial First Class Magistrate Court-II, Sulthan Batheri and the Additional Sessions Court (Adhoc)-II, Kalpetta convicting and sentencing the petitioner for the commission of offence under Section 16 (1A)(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) are under challenge in this revision petition.

2. The allegation against the petitioner is that the one Kilogram of banana chips, which the Food Inspector, Mananthavady purchased on 23.10.1997, from the shop where the petitioner was working as Salesman, was found to have contained the synthetic food colour ‘tartrazine’, upon analysis at the laboratory.

3. The Trial Court convicted the petitioner for the commission of the aforesaid offence by relying on the prosecution evidence which consisted of the oral testimonies of PW1 to PW4 and the documents marked as Exts.P1 to P24. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Judge who considered the appeal, declined to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed confirming the conviction and sentence. Aggrieved by the aforesaid concurrent verdicts of the Courts below, the petitioner is here before this Court with this revision petition.

4. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

5. The verdicts of the Courts below are assailed by the learned counsel for the revision petitioner upon two grounds. Firstly, it is contended that ‘Tartrazine’ is a permitted synthetic food colour as per Rule 28 of the Prevention of Food Adulteration Rules, 1955 (for short ‘the Rules’), and hence the criminal prosecution launched against the petitioner, was bad in law. The decision rendered by the Hon’ble Supreme Court in Mahesh Chander @ Mahesh Chandh v. State of Haryana [SLP (Crl) No.4706/2019] is also relied on by the learned counsel for the petitioner in support of the above argument. It is true that Rule 28 of the Rules permits the use of ‘Tartrazine’ to give yellow colour to any food item specified in Rule 29. However, banana chips are not a food item coming under those items enumerated under Rule 29. Therefore, the contention of the petitioner in the above regard, is totally fallacious. InMahesh Chander (supra), the Hon’ble Supreme Court was dealing with the issue regarding the synthetic food colour ‘Tartrazine’ added to ‘dal moong dhuli’ which is a food item coming under Rule 29 of the Rules. It is due to the aforesaid reason that the Hon’ble Supreme Court set aside the conviction and sentence of the appellant in that case. As far as the present case is concerned, the addition of ‘Tartrazine’ as a synthetic food colour to banana chips, is not permitted under any of the provisions of the Rules and the Act. Therefore, the conviction and sentence of the petitioner by the Courts below, cannot be assailed upon the aforesaid ground.

6. Another argument advanced by the learned counsel for the revision petitioner is that the petitioner was only a Salesman of the shop concerned and hence he is not liable to be penalised for the adulterated food stored for sale in that shop by the owner of that shop. It is further argued that the owner of that shop, who was arraigned as the second accused, had been acquitted by the Appellate Court. The argument of the learned counsel for the revision petitioner, in the above regard, is also devoid of merit.

Going by the provisions contained inSection 16(1A)(i) of the Act, any person who sells adulterated food, is liable to be proceeded against for the commission of the aforesaid offence.