Suresh Raghunath Gupte vs Taraknath Rajnarayan Mishra And ...
2001 Latest Caselaw 724 Bom

JUDGMENT

Pratibha Upasani, J.

1. This criminal appeal is filed by the appellant/original complainant, Suresh Raghunath Gupte, Food Inspector, Thane Municipal Corporation, Thane, being aggrieved by the judgment and order, dated 7.11.1985, passed by the Vth Additional Sessions Judge, Thane, in Criminal Appeal No. 137 of 1984. By the impugned judgment, the learned Vth Additional Sessions Judge. Thane, allowed Criminal Appeal No. 137 of 1984, filed by the original accused/respondent No. 1 herein, Taraknath Rajnarayan Mishra, set aside the conviction and sentence passed by the Chief Judicial Magistrate, Thane, under Section 16(l)(a)(2) of the Prevention of Food Adulteration Act, 1954, and acquitted the accused of the offence punishable under Section 7(1)(v) of the Prevention of Food Adulteration Act, 1954.

2. The prosecution case, in short, can be briefly narrated as follows :

The appellant herein/original complainant, Suresh Raghunath Gupte, was a Food Inspector, working in Thane Municipal Council. He filed

Criminal Case No. 1205 of 1981 in the Court of the Chief Judicial Magistrate. Thane. The averment made therein was that the accused/ respondent No. 1 herein, Taraknath Rajnarayan Mishra, sold adulterated milk to the complainant on 6.12.1980. In contravention of the provisions of the Prevention of Food Adulteration Act, 1954. The allegation against the accused was that while the complainant was working as a Food Inspector, for the Thane Municipal Council, he visited the shop of the accused known as Janata Dairy Farm, situated on Jamat Trust Property. 2nd Rabodi, Thane, at 10.30 a.m., on 6.12.1980. The complainant disclosed his identity and the purpose of his visit to the accused. Thereafter, he purchased some quantity of milk kept in the vessel, which was on the stove. The said milk was kept for sale. Hence the complainant called a panch in the said shop and in the presence of the said panch, he purchased 750 ml. of milk from the accused at the rate of Rs. 3 per litre and paid the amount of the said milk to the accused, for which the accused passed a receipt. Prior to the purchase of the said milk, the complainant had given a notice to the accused about his purpose to purchase the milk, as required, in Form No. V]. Thereafter, the complainant gave a notice to the accused under Section 14(a) of the Prevention of Food Adulteration Act, 1954 to disclose from where the milk had been purchased by him, Thereafter, the complainant divided the said milk, purchased by him, into three equal parts and put the same in three clean, dry and empty bottles. The further averment in the said complaint was that the complainant thereafter put 20 drops of Formalin in each bottle for preservation. The bottles were then closed with plastic corks and labels were fixed on each bottle for writing the sample number, nature of article and the name of the vendor. Each bottle was then wrapped in a brown paper. The ends of the bottles were closed with gum and on each of the bottles label of the Local Health Authority was separately pasted, which was signed by the said Authority. The same was pasted from the mouth to the bottom of the bottle, vertically. After sealing these bottles with a twine-string, panchanama was drawn.

As per the prosecution story, as narrated in the complaint, two sample bottles were then sent to the Local Health Authority of the Thane Municipal Corporation and the third sample bottle was sent to the Public Analyst, Pune, along with the specimen of the seal and Memorandum of Form No. VII, as required under the Prevention of Food Adulteration Rules, 1955. The Public Analyst gave his report on 23.12.1980. Thereafter, on 2.3.1981 the papers were sent to the Joint Commissioner, Food and Drug Administration, for obtaining sanction, which was received on 6.5.1981. Thereafter, on 22.5.1981 complaint came to be filed by the complainant in the Court of the Chief Judicial Magistrate, Thane.

3. The prosecution story further is that after filing of the complaint, the Local Health Authority sent intimation to the accused about the filing of the complaint, as required under Section 13(2) r/w Rule 9-A of the Prevention of Food Adulteration Rules, 1955, by letter dated 22.6.1981, which was served upon the accused on 25.6.1981.

4. In the Trial Court, evidence before charge came to be recorded and accordingly three prosecution witnesses were examined. On the basis of that evidence, charge was framed against the accused for the offence punishable under Section 7(1)(v) r/w Section 16(l)(a)(2) of the Prevention of

Food Adulteration Act, 1954. The accused pleaded not guilty to the said charge and claimed to be tried. It appears from the record that the appellant (accused) declined to cross-examine the witnesses as well the complainant after framing of the charge.

The learned Chief Judicial Magistrate, Thane, thereafter proceeded to hear the arguments of both the parties. On the basis of the evidence which was recorded, the learned Chief Judicial Magistrate came to the conclusion that the prosecution had succeeded in proving beyond reasonable doubt that the accused had sold adulterated milk to the complainant. The Trial Court, therefore, held the accused guilty of having committed offence under Section 7(i)(v), which is punishable under Section 16(l)(a)(2) of the Prevention of Food Adulteration Act, 1954, convicted and sentenced him to suffer R.I, for six months and to pay a fine of Rs. 2,000/-, in default to suffer further R.I. for six months.

Being aggrieved by the finding of conviction and the recording of sentence, awarded by the Trial Court, the accused preferred Criminal Appeal No. 137 of 1984 in the Court of Vth Additional Sessions Judge, Thane, who, after hearing both the sides, allowed the said appeal filed by the accused and acquitted him of the offence for which he was convicted.

Being aggrieved by the impugned judgment and order, the complainant has now approached this Court under Section 378(4) of the Code of Criminal Procedure. 1973.

5. We have heard Mr. A. R. Pitale, appearing for the appellant/original complainant, so also Mr. I. S. Thakur, learned A.P.P.. appearing for respondent No. 2 - State of Maharashtra. We have also gone through the evidence of the three prosecution witnesses and the impugned judgment and we find no infirmity in the same for the reasons given below.

6. The finding of the learned Vth Additional Sessions Judge. Thane, was that the appellant/accused in his criminal appeal had successfully proved that there was non-compliance of Rules 14, 17 and 18. by the complainant while sending the sample to the Public Analyst, Pune and this was the ground on which the criminal appeal, filed by the accused, was allowed and the finding of conviction and sentence, passed by the Chief Judicial Magistrate, Thane, was set aside and the accused was acquitted.

The learned Vth Additional Sessions Judge, Thane, has discussed at length, in paragraph 12 of his judgment, the entire evidence of the complainant, Suresh Raghunath Gupte and observed that in his entire evidence Mr. Gupte had nowhere stated that the outer cover, in which the sample bottles were sent, was sealed and that there was compliance of the mandatory provisions of Rule 17 of the Prevention of Food Adulteration Rules, 1955. In the impugned judgment, the learned Vth Additional Sessions Judge has rightly relied upon the Judgment of this Court, in Mohamad Ismail Mohamad Ibrahim v. State of Maharashtra, wherein it has been laid down that if the outer cover is not found to be sealed, it amounted to non-compliance of the mandatory provisions of Rule 17 and as such the accused was entitled to an order of acquittal. The learned Vth Additional Sessions Judge has also relied upon a decision of the Karnataka High Court

in State of Karnataka v. Doiphy, which again, in terms, lays down that non-compliance of the mandatory provisions of Rules 17 and 18 must result in an order of acquittal. Rule 17 deals with the manner of despatch of the containers of samples while Rule 18 deals with the memorandum and impression of seal to be sent separately.

After going through the evidence of the complainant Mr. Gupte and the provisions of Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955, we find that indeed there is non-compliance with the mandatory provisions of these Rules. It is also pertinent to note that the complainant, Suresh Raghunath Gupte, has nowhere stated in his evidence that before taking the sample he had stirred the milk. There is a manner of taking of sample of curd or milk. The stirring of milk, before taking of sample is absolutely necessary and not doing so, vitiates the conviction. We may, with advantage, refer to the decision of the Punjab and Haryana High Court in Hoshiar Stngh v. State of Punjab. There is no substantive evidence of the complainant which says that the wooden box in which the sample bottle was sent to the Public Analyst, was sealed as per the provisions of Rules 17 and 18. Thus, we find that the observations on this aspect made by the learned Vth Additional Sessions Judge and the finding arrived at, are correct which requires no interference.

The First Appellate Court has also rightly pointed out in the impugned judgment that the complainant has nowhere stated that the vessel in which milk of the quantity of 750 ml. was purchased and kept by him before pouring the same in three equal shares in three separate dry, clean and empty bottles, was also taken by him in a dry, clean and empty vessel. The First Appellate Court has rightly held that absence of such an averment is a fatal omission, going to the root of the matter. We have no hesitation in observing that the findings recorded by the Vth Additional Sessions Judge, Thane, were correct and we find no infirmity in them. This appeal, filed by the original complainant, therefore, is without any merit and deserves to be dismissed. Hence following order :

ORDER

7. This criminal appeal is dismissed.

8. Respondent No. 1/original accused is on bail. His bail bond stands cancelled and the surety discharged.