ORDER
R.P. Gupta, J.
1. This revision-petition is directed against confirming judgment of IV Addl. Sessions Judge, Raipur dated 31-3-1993 in Cr. Appeal No. 51/90 confirming the conviction and sentence passed by the Court of C.J.M., Raipur in Cr. Case No. 389/83 vide judgment dated 3-3-1990. The petitioner has been sentenced to R.I. for one year and fine of Rs. 1000/- and in default of fine R.I. for 3 months.
2. The petitioner was found guilty of offence of selling adulterated peppermint to food inspector PW 1 S.B. Mishra on 8-9-1982. The purchased peppermint was divided in 3 parts and one was sent to the public analyst. The public analyst found sulphated ash 2% and ash insoluble in dil. HCL 0.5% and reported that the sample did not confirm to the standard but no standard was mentioned in the report.
3. The trial court found that this accused had sold the sample and sampling was in accordance with law. The report of the public analyst proved beyond doubt that the sample did not confirm to the standard and that opportunity under Section 13(2) of the P.F.A. Act has been given to the accused in accordance with law but the accused avoided it to take notice sent to him under Section 2 of the Act. Nothing was said about sanction to prosecute him under Section 20 of the Act or absence of it by the prescribed authority i.e. health officer.
4. The appellate Court confirmed these findings.
5. The learned counsel for the petitioner has raised 2 basic points, the first is that there is no standard prescribed of peppermint in Appendix B and in the absence of such standard in Appendix B no opinion can be given that the food article was not confined to standard. Lastly it is urged that there is no compliance with requirement of Section 13(2) of the Act as no notice was served on the petitioner. If is urged that the notice was kept in a registered envelope which was returned with the report that the addressee was not found in spite of several attempts. It does not prove service of notice nor presumption can be drawn.
6. Shri Chaturvedi counsel for the State concedes that he has not been able to locate in Appendix B to P.F.A. Rules any item contained as perppermint. It is also conceded by the counsel for the State that the record does not show that any sanction for prosecution was proved on record. The sanction had to be by the Distt. Health Authority but there is no sanction order.
7. Since there is no standard prescribed for Peppermint in Appendix B, the report that it does not conform to standard, is of no use for prosecution unless it could be said that the article otherwise falls within definition of adulteration as given in Section which defines ‘adulterated’ as under:-
(ia)adulterated – an article of food shall be deemed to be adulterated –
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injuries to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;
(k) if the article contains any preservative in excess of the prescribed limits prohibited preservative or permitted;
(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which does not render it injurious to health.
8. If there is standard prescribed in Appendix B as per Rule 5 of the P.F.A. Rules, the article would have fallen within Clause (1) or (m), but that is not the case as no standard has been prescribed. There is nothing in the record of the public analyst to show that something present in it affected the quality of the article injuriously, or the nature, or it had any filthy, putrid, rotten or decomposed or diseased animal or vegetable substance or was unfit for human consumption. There is no evidence that the article could be covered under any of the Clauses (a) to (k) of this definition ‘adulterated’. The learned counsel for the State has not been able to point out if any of these clauses should be attracted. Clauses (1) and (m) are also not attracted. In these circumstances both the Courts below have erred legally in considering this article of food as adulterated.
9. There is no need to discuss on the objection regarding compliance or non compliance of Section 13(2) of the Act. The revision petition must succeed in view of what is found above. Hence the petitioner is acquitted of the charges. His conviction and sentences are set aside. The fine if paid shall be refunded.