Bombay High Court
The State Of Maharashtra vs Surendra Bhagirath Somani & Anr on 26 August, 2015
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1033 OF 2001
The State of Maharashtra ]
At the instance of - ]
Shri S. S. Deshmukh, ]
Food Inspector, Solapur, ]
C/o/ Asstt. Commissioner, ]
Food & Drug Administration, ]
M. S. Central Administrative ]
Bldg., Solapur. ] ... Appellant
Versus
1 Surencdra Bhagirath Somani ]
Age 27 years, Vendor of M/s. ]
Laxminarayan Traders, ]
Sushil Nagar No.2, Plot No.1, ]
Near Bharti Vidyapeeth, ]
Vijapur Road, Solapur. ]
2 Bhagirath Hiralalji Somani ]
Prop. of M/s. ]
Laxminarayan Traders, ]
Sushil Nagar No.2, Plot No.1, ]
Near Bharti Vidyapeeth, ]
Vijapur Road, Solapur. ] ... Respondents
......
Mr. Deepak Thakur, A.P.P. for the Appellant - State.
......
CORAM : S.B. SHUKRE, J.
DATED : AUGUST 26, 2015.
ORAL JUDGMENT :
This is an Appeal preferred against the judgment and
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order dated 30th April, 2001, delivered in Regular Criminal Case
No. 318 of 1999 by the Chief Judicial Magistrate, Solapur, thereby
acquitting the respondents of the offence punishable under
Section16 (1)(a)(ii) of the Prevention of Food Adulteration Act,
1954 read with its relevant sections.
2 Briefly stated, facts of the case are as under:
Respondent No.1 was the vendor and respondent no.
2 was the proprietor of M/s. Laxminarayan Traders, situated at
Sushil Nagar No.2, Plot No.1, Near Bharti Vidyapeeth, Vijapur
Road Solapur. They were found to be storing for sale Badishep
(Fennel Seeds), a food article, in adulterated form, which fact was
confirmed after its sample purchased in sufficient quantity by the
Food Inspector from the respondents was sent to the Public
Analyst for analysis and report after following due process. Since
the Public Analyst's report was positive for adulteration, consent
was given by the Competent Authority for launching of
prosecution against the respondents. Accordingly, they were
prosecuted for the offences punishable under Section 16(1)(a)(ii)
together with other relevant sections of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to as "PFA Act", for
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short). On merits of the case, the learned Chief Judicial
Magistrate found that prosecution failed to prove beyond
reasonable doubt the offence that was charged against both the
respondents and therefore by her judgment and order dated 30 th
April, 2001, acquitted the respondents of the same. Not being
satisfied with the same, the State is before this Court in the
present Appeal.
3 I have heard learned A.P.P. for the Appellant - State.
None has appeared on behalf of the respondents. I have carefully
gone through the record of the case including the impugned
judgment and order.
4 Although learned A.P.P. for the State has taken
exception to the impugned judgment and order on the ground
that they do not reflect proper appreciation of evidence of the
prosecution, I beg to defer with him for the reasons stated in the
forgoing paragraphs.
5 Admittedly, the report of Public Analyst given in the
present case does not bear any date. In the case of State of
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Maharashtra Vs. Gangadhar Kisan Paitwar 1, it has been held
that if the report of the Public Analyst does not bear date of
analysis, the report looses its evidentiary value and conviction
cannot be based upon such a report of the Public Analyst. The
learned Magistrate, relying on this very case, held that report of
the Public Analyst submitted in the present case being devoid of
date of analysis had no evidentiary value. The view so taken by
the learned Magistrate is absolutely in accordance with the
settled principles of law.
6 Rule 9A of the PFA Rules 1955 makes it mandatory
for the prosecution to send information of launching of
prosecution together with report of the Public Analyst to the
accused within ten days of launching of the prosecution. This
provision of law has been held to be mandatory in several cases
decided by various High Courts. Some of such cases have been
referred to in the impugned judgment. They are (1) Pimpari
Chinchwad Nagarpalika Vs. Giriraj Chiranjilal Sharma2 and
(2) The State of Punjab Vs. Dilip Singh 3. Admittedly, in the
instant case, the prosecution was launched on 29th November,
1999 and the accused received its information together with
1) 1983 All India PFA Journal, Page 283
2) Mh.L.J. 1999 (2) Page 608.
3) All India PFA Journal, 1990 Page 104.
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report of the Public Analyst on 4 th January, 2000 i.e. after a period
of one month and five days. This would establish clear violation
of Rule 9A, a mandatory provision of law. The defect arising from
such violation is incurable as it prejudicially and irreversibly
impacts the defence of the accused. The benefit, therefore, must
go to the accused i.e. the respondents. The learned Chief Judicial
Magistrate has, therefore, rightly recorded acquittal of the
respondents by holding that prosecution has failed to prove
beyond reasonable doubt its case against the respondents.
ig No
interference with the impugned judgment and order is warranted.
7 Appeal stands dismissed.
(S. B. SHUKRE, J.)
