Food Inspector vs Balkisan Bansilal Chandak And ...
2004 Latest Caselaw 863 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard Mr. Mandpe, learned A.P.P. for the appellant and Mr. A.V. Bhide, learned Advocate for the respondents.

These two appeals are directed against the judgment and order of acquittal of respondents of offence under Section 2(ia)(a) read with Section 7(i) read with Section 16(1-a) and Section 17 and Section 2(ia)(m), Section 7(i) read with Section 16(1-a) read with Section 17 of Prevention of Food Adulteration Act, 1954 by Judicial Magistrate First Class, 2nd Court, Khamgaon in Criminal Case No. 147/1989 and Summary Criminal Case No. 1578/1985 passed on 18-7-1990. Hence these appeals are being disposed of by this common judgment.

2. The facts leading to the prosecution against the respondents are as follows :--

The respondent No. 4 (original accused No. 4), M/s. Chandak Trading Company was a registered Partnership Firm dealing in grocery business having its shop on Main Road, , Khamgaon. Original accused Nos. 1 to 3 were partners of the said partnership firm. The complainant-Shri Prakash B. Patki (P.W. 1) who was Food Inspector duly appointed and posted at Buldhana at the relevant time along with Food Supervisor Shri Konnure and panch Sakharam Arjun Gawande on 13-6-1985 at 9.00 a.m. Visited the grocery shop of the firm. Respondent No. 1 (Original accused No. 1) in his capacity as partner of the firm was present in the shop. The complainant disclosed him his identity and inspected the shop. He found a tin containing groundnut oil kept for sale. The complainant disclosed his intention to purchase groundnut oil from the tin for analysis and issued notice under Section 14(a) of the Prevention of Food Adulteration Act (hereinafter referred to as P.F.A. Act). Complainant purchased 450 grams of groundnut oil on cash payment of 6-95 ps. by issuing notice in Form No. VI. The complainant divided the oil in three equal parts and collected each part in dry, clean and empty bottles, corked the bottles tightly and affixed labels signed by accused No. 1, he himself and panch on each bottle. He then put all three bottles in three separate brown paper envelopes, closed the envelopes with gum and affixed the paper slip of local health authority on each packet and then tied all the three packets with twine horizontally and vertically and impressed four seals on each packet i.e. one on the top, other at the bottom and two on either sides of the bottles. Paper slips were then cross signed by the accused, complainant and panchas and accordingly panchnama was prepared which was signed by the witnesses and accused No. 1.

3. The complainant on the same day and time, thereafter purchased 450 grams of Kardi Oil that was kept for sale in the shop. For that he made cash payment of Rs. 6.20 by issuing notice of his intimation in Form No. VI. He thereafter divided the oil in three equal parts and collected each part in dry, clean and empty bottles and corked each bottle tightly and affixed the labels with signature of accused No. 1, of his signature and panch on each bottle. He put all three bottles in three separate brown paper envelopes and all the envelopes were closed with gum and affixed paper slips of local health authority on each packet and all the three packets were tied horizontally and vertically with twine and were signed by himself, accused No. 1 and panch with cross-signatures and then four seals were impressed on each packet and then accordingly seizure panchnama was prepared.

4. On the next day i.e. 14-6-1985 complainant sent one of the samples of groundnut oil and Khardi oil along with copy of Form No. VII and covering letter in sealed envelopes to the Public Analyst, Amravati by hand delivery. On the same day he separately sent his specimen seal and signature along with copy of Form No. VII in a sealed envelope of Public Analyst. Remaining two bottles of sample of groundnut oil and Kardi oil with two copies of Form No. VII in each sample were sealed and handed over to local health authority at Buldhana. The complainant received report of Public Analyst through local health authority at Buldhana and sample of groundnut and Kardi oil was found to be adulterated inasmuch as the sample did not conform to the standards prescribed under the rules made (under) the P.F.A. Act. The complainant sent all the papers to the Joint Commissioner, Food and Drugs Administration, Nagpur for his consent and he received consent order of Joint Commissioner on 7-11-1985. He also called for information about the status of partnership firm accused No. 4. On 19-12-1985 complainant lodged separate complaint in the Court for sample of groundnut oil and kardi oil and also gave intimation about the same to the Local health Authority, Buldhana. On 24-12-1985 i.e. within 10 days from lodging of the prosecution Local Health Authority, Buldhana served on accused copy of Public Analyst Report calling upon them to exercise their right to get the sample analysed from Central Food Laboratory, Gaziyabad as contained in Section 13(2) of the P.F.A. Act. In respect of adulteration of groundnut oil the complaint filed by the complainant was registered as Regular Criminal Case No. 47/1989 (original summary Criminal Case No. 1580/1985), while in respect of adulteration of sample of kardi oil the complaint lodged by the complainant was registered as summary Criminal Case No. 1578/1985. In both the cases after recording evidence before charge, the charge was framed vide Exhibits 41 and 39 in respective cases. The accused pleaded not guilty to the charge and claimed to be tried. The factum of visit of complainant, Food Inspector at the time and day, when samples were taken is not disputed. The prosecution examined in all four witnesses in each case including complainant-Prakash Patki. Atmaram Vhatkar (P.W. 2), Sakharam Gawande (P.W. 3) and Pimpalkar. The accused controverted and also denied the evidence of prosecution witnesses and also denied the claim that the groundnut oil as well as kardi oil was found to be adulterated. It was specifically contended by the defence that the groundnut oil and kardi oil purchased on that day from the shop, was not adulterated. It was very vehemently contended that Food Inspector while drawing the sample has not followed the procedure and as such there are basic irregularities in collecting the sample. In both the cases it was specifically contended by the defence that the sample bottle containing groundnut oil and kardi oil were not at all sealed. Defence also controverted the consent order issued by Joint Commissioner Shri Joshi. It was contended that there has been contravention of mandatory provisions contained in Rules 14 and 16(a) of Food Adulteration Rules, 1955 (hereinafter referred to as Rules). It was contended that the report of Public Analyst was received after a period of four months. That there is delay in sending the report, abnormally as it was caused prejudice to the accused, inasmuch as they were deprived of their right under Section 13(2) of the P.F.A. Act of sending the one part of sample for further analysis.

5. The trial Court after hearing the counsel for the complainant and the defence, perusing the records in both the cases as also the evidence recorded accepted that the complainant was competent to take samples, being duly authorised as Food Inspector and that he has drawn sample of groundnut oil and kardi oil from the shop of the firm. The contention of defence challenging the validity of consent order issued by Joint Commissioner Shri Joshi is rejected by the trial Court. The trial Court found that there was no irregularity or contravention of rules in drawing the sample. The trial Court rejected the contention of defence as regards the defence being deprived of exercising right under Section 13(2) of P.F.A. Act as the sample in each case was received after inordinate delay of about 4 months from the date of drawing the sample. The trial Court rightly found that the said defence was available to the accused only if accused had applied to the Court for sending the sample for further analysis as required under Section 13(2) of P.F.A. Act. The trial Court has stated in its judgment that unless that right is exercised, defence cannot get any benefit of the fact that there was inordinate delay in sending the report of P.A. to the accused. However, in case of sample of groundnut oil the trial Court found that there has been breach of mandatory provisions contained in Rules 14 and 16 of the Rules inasmuch as the sample bottle was not sealed independently and that there is no evidence to show that the sample bottle was properly corked tightly so as to prevent it from leaking. In case of sample of groundnut oil, therefore, there was according to the trial Court contravention of Rule 16(a) of the Rules as almost two parts of the samples were not produced before the Court. But so far as the sample of Kardi oil is concerned as two sample bottles were already produced before the Court at the trial, the trial Court did not find any contravention of Rule 16(a) of the Rules, but there was contravention of mandatory Rule 14 of the Rules even in respect of the sample of Kardi oil. Therefore, on the basis of this finding the trial Court found that the prosecution has utterly failed to bring home the guilt to the accused. The breach of mandatory provision contained in Section (rule) 14 of the P.F.A. Rules was found to be fatal to the prosecution against the respondents. In the result the trial Court acquitted the respondents in both the criminal cases. Hence both the appeals are filed against the order of acquittal.

6. The learned A.P.P. Mr. Mandpe for the appellant vehemently contended that the finding recorded by the trial Court regarding non-compliance of Rules 14 and 16(a) is against material on record. He pointed out that drawing of sample by complainant is not disputed. The trial Court has on the basis of evidence on record accepted the claim of complainant regarding drawing of the sample, sealing of the samples, being in conformity with the provisions under the Rules. The trial Court has committed error in holding that there was no compliance of Rules 14 and 16(a) of the Rules. He therefore, urged that the appeals be allowed and the orders of acquittal passed against the respondents be set aside and the respondents should be convicted and sentenced accordingly. As against that the learned counsel for the respondents-Mr. Bhide supported the judgment of the trial Court. He pointed out from the evidence of complainant-Patki that the container in which the sample was called was not clean. It is a matter of record, from the container the sample was collected in three clean and dry bottles. The complainant has admitted that the bottle in which sample was collected was not sealed. He submitted that the requirement of Rule 14 is that the sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or any other suitable container which shall be closed sufficiently, tied to prevent leakage evaporation or in the case of dry substance entrance of moisture and shall be carefully sealed. He submitted that the complainant has admitted that the sample bottle was not sealed. The Food Inspector only after corking bottle tightly it was wrapped in brown paper packet and that packet was sealed by affixing slips on all sides i.e. on the top, bottom and both the sides of the packet. The sample bottle is required to be sealed by pasting a seal on its mouth with signatures of complainant, panchas and the accused. He therefore, urged that the trial Court has rightly acquitted the respondents as there was breach of mandatory provisions contained in Rules 14 and 16(a) of the Rules.

7. He submitted that there being no error in the judgment of the trial Court in acquitting the respondents and the reasons assigned by the trial Court being legally sustainable, no interference is called for.

8. It is not necessary to scrutinise the evidence of complainant in detail. It is suffice to say that in respect of drawing the samples of groundnut oil and Kardi oil that was purchased by the complainant from respondent No. 1, there is no dispute and the trial Court has accepted the evidence of complainant as also documentary evidence on record to hold that no illegality has been committed by the complainant in that regard. In respect of contention of defence that prejudice has been caused to the accused, as they were deprived of right under Section 13(2) of the P.F.A. Act, the trial Court has rightly observed that in the absence of any application by the accused for sending the sample for analysis in exercise of right contained in Section 13(2) of the P.F.A. Act, the respondents cannot claim that prejudice has been caused to them merely because there was inordinate delay in receiving of the report of P.A. after the sample was analysed. It is found that the respondents were served with the notice along with report of Public Analyst within 10 days from the launching of the prosecution. Thus as per Section 13(2) of the P.F.A. Act the accused were open to exercise their right to get sample analysed from the Central Food Laboratory. Admittedly, the accused did not exercise their right. The Apex Court in AIR 1967 SC 970 : (1967 Cri LJ 939) Municipal Corporation, Delhi v. Ghisa Ram, held that "Where there is denial of this right on account of deliberate conduct of the prosecution, the vendor, in his trial is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continues to be evidence in the case of the facts contained therein. The vendor had asked for the sample to be sent to the Director of Central Food Laboratory who had reported that the sample had become highly decomposed and so was not fit for analysis, It was noticed that no preservative was added to the sample in curd, which was the subject-matter of trial. However, it was further observed that if the accused did not choose to exercise this right, the case could be decided on the basis of the report of Public Analyst."

9. It was contended by Mr. Bhide, the learned counsel for the respondents that copy of the Public Analyst was served on the accused after six months and this was per se prejudicial to the accused. He also urged that groundnut oil is susceptible to rancidity and in all probability it was not in proper condition at the time when accused were served with the copy of Public Analyst Report. However, as held by the Apex Court in AIR 1971 SC 1277 : (1971 Cri LJ 1075) Babulal Hargovinddas v. State of Gujarat, when there is no expert's evidence to show that article which was called in sample bottle was properly preserved, was not fit for analysis, in the circumstances the accused should have exercised their rights of analysis from Central Food Laboratory, if the accused would have exercised their right, in that case there would have been report of the Central Food Laboratory that the sample was not fit for analysis and the accused could have claimed benefit of delay in launching the prosecution. This being not done as held in the case cited above, accused cannot get benefit.

10. Though Mr. Bhide learned counsel for the respondents submitted that Mr. Joshi, Joint Commissioner was not competent to issue consent order. The trial Court has rightly justified the consent order issued by the Joint Commissioner, Shri Joshi. It was found that Joint Commissioner, Shri Joshi was authorised to grant written consent. Therefore, no infirmity or illegality is committed when Mr. Joshi who was holding the charge of Joint Commissioner issued consent order. The issuance of the consent order by him was in no say sub-delegation of the powers.

11. As regards non-compliance of Rule 145 of the F.P.A. Rules in both the cases the complainant has candidly admitted in his evidence that the sample bottles were not sealed. The requirement of Rule 14 of the P.F.A. Rules is that the sample bottle should be corked and sealed. Therefore, in the case before hand admittedly the sample bottle was not sealed. It is true that the sample bottle in each case has been wrapped in brown paper packet and this packet was duly sealed by affixing slips on all sides with the signatures of complainant, accused and panchas. But that cannot be said to be sufficient compliance of Rule 14. The trial Court has rightly referred to the decision of our High Court in 1986 Cri LJ 931, Bhojumal Dhanumal Kundal v. Shripur Warwade Municipal Council, Shirpur, wherein it is held that Rule 14 is mandatory. My attention has been drawn to the specific wording of Rule 14 wherein it is stated that "Samples of food for the purpose of analysis shall be taken in clean, dry bottles (sic) and shall be carefully sealed." Therefore, the trial Court has rightly found that there was non-compliance of mandatory Rule 14 as a consequence of which report of the Public Analyst cannot be read in evidence, In case of the sample of groundnut oil there was also non-compliance of Rule 16(a) inasmuch as there is no evidence that the sample bottle was duly tightly corked so as to prevent leakage. In that case remaining two sample bottles were not produced before the Court. Trial Court found that remaining two bottles were not produced before the Court. As per the evidence of complainant-Patki all the three bottles were closed, labelled and sealed in the same manner. It was, therefore, natural to presume that the sample bottle sent to the Public Analyst for analysis was in the same condition, (sic) remaining two sample bottles. However, the prosecution has not produced the remaining sample bottles. Therefore, the trial Court found much substance in the submission of the counsel for the accused that adverse inference should be drawn against the prosecution. Thus, there was no evidence that the sample bottle was corked sufficiently tight so as to prevent evaporation. In addition to that as admitted by the complainant-Patki that the sample botlle was not sealed, therefore, there was non-compliance of Rule 16(a) of P.F.A. Rules. In view of this contravention of mandatory provisions of Rules 14 and 16 the report of the P.A. in both the cases cannot be read in evidence and, therefore, to prove that the samples which were drawn were adulterated. It is found that the reasoning given by the trial Court for holding the respondents not guilty is reasonable and sustainable in law. If that is so then as held by the Apex Court in Catena of decisions, there is no justification that the Appellate Court to interfere with the judgment of acquittal. In 2003 All MR (Cri) 2635 (SC) Kunju Muhammed and Khumani v. State of Kerala, the Apex Court while considering the appeal against conviction by the High Court on reversal of acquittal by the trial Court observed that order of acquittal can be interfered with only if there is absolute assurance of guilt of the accused, upon the evidence on record. The Apex Court further held that it is well settled that the Appellate Court would not be justified in interfering with the order of acquittal unless same is found to be perverse.

12. In the decision of our High Court in 2003 Cri LJ 3639, State of Maharashtra v. Haribhau Krishnaji Deshmukh, it is held that : Power of interfering with the order of acquittal is equal to that of interfering with the order of conviction and it can be done for substantial and compelling reasons or it may be said that sufficient and cogent reasons or for strong reasons. Unless appeal has strong reasons to interfere with the order of acquittal it need not be done. Where two views are possible on appreciation of evidence and the Court ordering acquittal, has taken one view, it is reasonably possible and the Appellate Court enquiring into the correctness of the acquittal on re appreciation takes another view, but according to the criminal jurisprudence, benefit must go to the accused and the High Court should refrain from interfering with such acquittal. The order of acquittal can be set aside if the view taken by the Appellate Court is sustainable in law and perverse.

13. Thus on scrutiny of evidence on record, I have found that the view taken by the trial Court in acquitting respondents was reasonable and legally sustainable . Therefore, there is no reason for me to interfere with the order of acquittal. Hence the order.

ORDER

14. The appeals are dismissed.