State Of Maharashtra vs Natwarlal Nanabhai Suratwala And ...
2004 Latest Caselaw 186 Bom

JUDGMENT

P.B. Gaikwad, J.

1. State being dissatisfied with the order passed by the Chief Judicial Magistrate, Pune dated 8-10-1992 in Criminal Case No. 175 of 1989 acquitting the accused for the offences punishable under Section 7(1) read with Section 2(ia)(a) and 7(v) read with Rule 47(1) of the Prevention of Food Adulteration Rules and punishable under Sections 16 and 17 of the Prevention of Food Adulteration Act.

2. The facts in nutshell are that the Food Inspector Shri P. B. Sobale, filed complaint before the Chief Judicial Magistrate against Accused Nos. 1 to 6 being vendor, supplier and manufacturer of adulterated article Hira Sugandhi Pan Masala as the said article does not conform with test as laid down in Prevention of Food Adulteration Act and Rules 1955. It is further clear from the complaint that Food Inspector Shri Sobale was appointed as Food Inspector and posted at Pune. He visited the shop of the firm known as M/s. Hiralal Nanabhai Suratwala. Accused No. 1 is the vendor and acting partner of the said firm known as Hiralal Nanabhai Suratwala. The said firm deals with business of stocking and sale of the food articles including Hira Sugandhi Pan Masala. Accused No. 3 Jitendra Chandulal Shah partner of the firm M/s. Shah Kilachand Damodardas and Sons and this firm deals in wholesale business of food articles and the supplier of above food article i.e. Hira Sugandhi Pan Masala. Accused No. 5 Prabhakar Balasaheb Miraji is dealing in business of manufacturing of Hira Sugandhi Pan Masala. Accused No. 6 is M/s. Hira Trading Company i.e. the firm. The Food Inspector visited the premises belonging to Accused No. 1 firm in the month of March 1989 i.e. at about 11.30 am. He disclosed his identity and purchased 600 grams Hira Sugandhi Pan Masala. A panch was with him. The Food Inspector has also disclosed his intention that the food article being purchased was for sampling. The necessary formality of about sealing, packing was completed. He accordingly, paid an amount of Rs. 60/-. A receipt was obtained. A Notice under Section 14A was issued to the accused after complying necessary formalities. The panchnamawas accordingly prepared. The seal of Local Health Authority was pasted and accordingly the sample was despatched to the Public Analyst on 9-3-1989. The remaining counterpart of the sample was sent to the Local Health Authority as the same was divided in three equal parts. A report of Public Analyst about the said sample was received on 13-4-1989 and Public Analyst has given opinion that the sample bearing Local Health Authority's Slip No. 7673 does not conform of the Prevention of Food Adulteration Rules. The complainant Food Inspector thereafter collected necessary information and documents and accordingly moved the concerned Authorities under Section 20 to prosecute the accused. The Joint Commissioner, Food and Drug Administration has accordingly given sanction. It is also made clear in the complaint that the Food Inspector has given intimation to the Local Health Authority about filing of complaint and the Local Health Authority thereafter complied with Section 13(2) of the Prevention of Food Adulteration Act. The counterpart of the sample was sent to the Central Food Laboratory and the report of the Central Food Laboratory is received and the said report shows saccharin, artificial sweetener i.e. in violation of Rule 47 of the Food Adulteration Act. The accused being accordingly prosecuted. The evidence of the complainant was recorded before the charge. Certain documents are brought on record through the evidence. The charge was accordingly framed. The complainant thereafter again examined witnesses and Chief Judicial Magistrate after considering the evidence on record adduced by the prosecution concluded that the complainant has failed to comply with Rule 22A and 4(a) of the Prevention of Food Adulteration Rules and accordingly acquitted the accused for which they were charged. The said order of acquittal passed by the Chief Judicial Magistrate, Pune, is challenged by filing the present appeal.

3. In the Appeal I heard Shri Adsule, APP for the State and Mr. Borulkar for the accused at length. At the outset it is necessary to made it clear that this being an appeal against acquittal and therefore, it is necessary to see whether there is any perversity in appreciating the evidence on record. Reference is also necessary to one Authority , K. Lakshmana Rao v. The Public Prosecutor, State of Andhra Pradesh wherein it is observed to the following effect :

"Appreciation of Evidence -- Two views possible -- View taken by lower Court was one may not agree with that view and may be prepared to take another view is no ground to reverse judgment of acquittal."

The reference is also necessary to one another Authority i.e., , Ramesh Babulal Doshi v. State of Gujarat wherein it is observed to the following effect :

"The mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the "appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."

It is also necessary to make it clear that though the Court does not make any distinction between the appeal from acquittal and appeal from conviction so far the powers of the appellate Court are concerned, certain hand written rules of conviction have consistently been followed by rules while dealing with the appeals against acquittal. No doubt the High Court has no power to rule evidence and to arrive at its own independent (conclusion) whether the appeal is against acquittal or conviction. But while dealing with the appeal against acquittal the appellate Court has to bear in mind first whether there is a general presumption in favour of the innocence of the person facing any criminal case and that presumption is only strengthened by the acquittal. Second is every accused is entitled to benefit of reasonable doubt regarding his guilt when the trial Court acquitted him he was retained that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittal has to proceed more cautiously and only if there is absolute assurance of guilt of accused upon the evidence on record that the order of acquittal is liable to be interfered with or disturbed. It is in this background it is now desirable to see the factual aspect in the present case. I have already referred above the Chief Judicial Magistrate, Pune has acquitted the accused on the ground that the prosecution has not complied with the mandatory provisions under Section 13(2A) and Rule 22A and 4A of the Prevention of Food Adulteration Rules, 1955. A reference in this respect is necessary to Section 13(2-A).

Section 13 deals with report of public analyst qua 13A deals with the circumstances when an application is made to the Court under Sub-section (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisitions being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition.

Section 13(2B) deals with that on receipt of the part or parts of the sample from the Local (Health) Authority under Sub-section (2A), the Court shall first ascertain that the marks and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis, and the Courts below has observed that there is non-compliance of this particular provision 13 (2A) and (2B) as there is no certainty that the mark and seal of fastening as provided in Clause B being intact and as there is no evidence to that effect. So far as recourse to Rule 22-A is concerned, it is desirable to reproduce the said Rule :

Rule 22 deals with quantity of sample to be sent to the Public Analyst qua 22A deals with contents of one or more similar sealed containers having identical labels to constitute the quantity of a food sample and the said Rule 22A reads as under :

"Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to a part of the sample."

Rule 4 deals with Analysis of food samples. Rule 4(a) deals with samples of food for analysis under Sub-section (2) of Section 13 of the said Act shall be sent either through a Messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director. In the present case the sample was also analysed by the Central Food Laboratory and after analysing the evidence on record the Chief Judicial Magistrate concluded that report of Central Food Laboratory cannot be relied upon. Considering the evidence on record, the findings recorded by the Chief Judicial Magistrate, I do not find any infirmity in the said conclusion and as referred above when the order of acquittal is passed in conformity with the evidence on record and when I do not find any perversity in the conclusion arrived by the Courts below, I find that the order of acquittal needs to be confirmed. In the result appeal filed by the State is dismissed.