State of Maharashtra vs Shamuddin Kasimsaheb Momin

This appeal takes exception to the acquittal of respondent for the commission of an offence u/s 2(ia)(j) and Rule 47 r.w. 7(1)(v) punishable u/s 16(ia) of the Prevention of Food Adulteration Act, 1954.

The complainant A. D. Ajamsondkar was a Food Inspector appointed as such under the afore-mentioned Act of 1954. He along with Food Inspector Tiwari and two panchas on 9-1-1980 at about 2.00 p.m. went to a place near D.J. Gurkul High School, Balives Solapur. The respondent was standing there selling "Baraf-Cola". The complainant disclosed his identity and purchased 900 gms. of Baraf Cola. 75 ps. were paid to the vendor and a receipt taken from him. Intimation in Form No. VI was given as also a notice u/s 14-A. A receipt for this was obtained. The purchased Baraf Cola was divided into three equal parts and inserted into three clean, empty and dried bottles. Each bottle was properly corked, labeled and sealed. A panchanama was drawn up. The same day one of the samples was sent to the Public Analyst Solapur. The remaining two samples were sent to the Local Health Authority. The public Analyst examined the Baraf Cola and found it containing saccharine and non-permitted red colour. This rendered the Baraf Cola in contravention of the requirements of the afore-mentioned Act. The Joint Commissioner, Food and Drug Administration sanctioned the prosecution and therefore a complaint was lodged. Respondent pleaded not guilty.

In Support of its case the complainant examined himself, a panch and his colleague Tiwari. The complainant and the panch in their evidence mentioned that the commodity purchased was Baraf Cola. These witnesses did not speak of the article purchased being coloured Baraf Cola. Tiwari however said that after Baraf Cola weighing 900 gms. had been prepared, the respondent sprinkled red coloured liquid which he had in his possession. This is treated as an exaggeration by the learned Magistrate. Disbelieving that coloured Baraf Cola had been vended by the respondent or purchased by the complainant the learned Magistrate relying upon the Municipality Vs. Glaciers Cold Storage and Ice Mill and Others, held the appellant to be not guilty. Exception is taken to the acquittal in this appeal.

Counsel for the parties have been heard. It does appear that the learned Magistrate has taken a somewhat unusual view. The complainant and the panch do speak of the complainant purchasing Baraf Cola. Baraf Cola is no more or less than ice lollies or edible ices referred to at A. 07.04 in Appendix B of the Prevention of Food Adulteration Rules, 1955. The meaning of ice lollies given in this item is - "the frozen ice produce which may contain the permitted flavours, sugar, syrup, fruit, fruit juices, cocoa, citric acid, stabilizers or emulsifiers not exceeding 0.5 per cent by weight. It shall not contain an artificial sweetener."

Saccharine is an artificial sweetener and the Public Analyst''s certificate shows that he sample when tested for presence of saccharine gave out a positive indication viz. that the sample contained saccharine. Non-permissible colour agents are forbidden and the respondent had used a non-permitted colour. Let it be clear that the responded was vending Baraf Gola. As everyone conversant with that expression knows Baraf Gola is powdered ice with a sweetening and colouring liquid sprinkled on it. It is not mere ice powder - at least, that is not the form in which it is sold to children. Respondent was doing precisely what a Baraf Gola vendor does viz. had a stock-in-trade consisting of a slab of ice and a liquid kept in bottles. The liquid was of different colours and sweet to taste. Every vendor of ice lollies or edible ice powders the ice and fits the powderised ice to a stick upon which is sprinkled liquid of different colour and sweet in taste. A person purchasing Baraf Gola does not have to tell the vendor that he wants a sweetening or colouring agent to be put on it. The vendor assumes this to be the case and it is only when the purchaser does not want the sweetener and/or of colouring and/or the colouring agent that he has to give specific directions to that effect to the vendor. Therefore when the complainant and the punch do not speak of the purchase involving coloured Baraf Gola the implication is not that uncoloured and/or unsweetening powderised ice was purchased. Tiwari was therefore not making improvements in his statement but saying the obvious to remove an unnecessary ambiguity. The decision relied upon by the learned Magistrate has no application to the facts of the present case. In that case what had been collected was ice from ice slabs meant for sale from an ice Mill. That is not the position in the instant case. Here, it was not a mere piece of ice powdered or otherwise that the Food Inspector purchased. He purchased Baraf Gola which is the same as an ice lolly or edible ice referred to in item A. 07.04 of Appendix B of the Prevention of Food Adulteration Rules, 1955. The sample being in violation of the prohibitions against the use of non-permissible colours and also a sweetener respondent had committed the offence with which he was charged.

This brings me to the question of sentence. The statute prescribes a minimum sentence of three months imprisonment and a fine of not less than 500 rupees. Mr. Patankar representing the respondent pleads for a lesser sentence not including the imprisonment prescribed in view of the long time that has elapsed since the commission of offence. Respondent was vending an adulterated ice lollies on 9-1-1980 and we are today in the third week of January 1980. Justice will have been done by imposing on respondent S.I. for a day and a fine of Rs. 100/- In case the fine is not paid, appellant shall undergo additional S.I. for twenty days. Hence the order.

ORDER

Appeal allowed. The acquittal is reversed and respondent is convicted for the offence he was charged. He is sentenced to one day''s S.I. and a fine of Rs. 100/- In case the fine is not paid within two months from today the respondent shall undergo 20 days'' S.I.

Order accordingly.