The State Of Maharashtra vs Mr. Narayan Bhausaheb Waman ...
2015 Latest Caselaw 238 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                                             
                   CRIMINAL APPEAL NO. 794 OF 2001




                                                  
     The State of Maharashtra                              ]
     at the instance of                                    ]
     Shri Suresh Vithal Joshi,                             ]




                                                 
     Food Inspector,                                       ]
     Food & Drug Administration,                           ]                   Appellant
     M. S. Pune.                                           ]         ...(Orig. Complainant)




                                
            V/s.

     1.     Mr. Narayan Bhausaheb Waman
                    ig                                     ]
            (Vendor)                                       ]

     2.     Mr. Dilip Bhausaheb Waman,                     ]
                  
            Proprietor of Himraj Ice Candy,                ]
            Both situated at Gat No.1490,                  ]
            Opp. ST Stand Shikrapur,                       ]
            Tal. Shirur, Dist.- Pune.                      ]           ...   Respondents
      


                                       ......
     Mr. A. S. Shitole, 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

order dated 3rd April, 2001 delivered in Regular Criminal Case

No. 164 of 2000 by Chief Judicial Magistrate, Pune, thereby

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acquitting the respondents of the offence punishable under

Section 16 read with Sections 7(i), 2(1a)(a), 2(1a)(m) of the

Prevention of Food Adulteration Act, 1954 (hereinafter referred

to as the "PFA Act", for short).

2 Briefly stated, facts of the case are as under:

(i) Respondent no.1 is the vendor. Respondent no.2 was

the proprietor of a firm Himraj Ice Candy situated at Gat

No.1490, Opposite ST stand Shikrapur, Taluka Shirur, District -

Pune from where the respondents were carrying on the business

of selling the Ice-cream. With a view to obtain sample of the Ice-

cream for ascertaining whether the Ice-cream being sold

conformed to the standards of Ice-cream set out in the PFA Act,

the complainant - Food Inspector along with one more Food

Inspector and panch witness visited the said shop of the

respondents at about 12.00 hrs. of 15th June, 1995. After

disclosing their identity and purpose of visit, they purchased 900

grams of Pista Ice-cream from respondent no.1 and divided it into

three equal parts. The three portions of the Ice-cream were put

in three clean, dry and empty bottles and formalin of requisite

quantity was added, as preservative to each of the bottles.

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The bottles were duly sealed as per the procedure prescribed

under the PFA Act and Rules framed thereunder. Notice in Form

No.VI in pursuance of Section 14-A of the PFA Act was issued to

respondent no.1. On 16th June, 1995, one sealed sample together

with original memorandum Form-VII with covering letter in

sealed condition were sent to Public Analyst, Pune for analysis

and report. Relevant documents and the remaining sample

portions were sent to Local Health Authority and Assistant

Commissioner (II) FDA Pune.

ig The report of the Public Analyst

showed that the sample of the Ice-cream did not conform to the

standards of Pista Ice-cream as per the PFA Rules, 1955.

Therefore, after obtaining consent from the Joint Commissioner, a

complaint was filed against the respondents.

(ii) Evidence before charge was adduced. The

respondents were allowed to cross-examine the witnesses of the

complainant. On being satisfied that a prima facie case was

made out, the learned Magistrate framed a charge for an offence

punishable under Section 16 read with Sections 7(i), 2(1a)(a),

2(1a)(m) of PFA Act against both the respondents to which they

pleaded not guilty and claimed to be tried. Further evidence was

led. On merits of the case, the learned Magistrate found that

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prosecution failed to prove beyond that reasonable doubt that the

offence that was charged against both the respondents, and

therefore, by his Judgment and order dated 3rd April, 2001, the

learned Chief Judicial Magistrate acquitted both 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 Shri Shitole, learned A.P.P. for the

Respondent - State of Maharashtra. None has appeared for the

respondents. I have carefully gone through the record of the case

including the impugned judgment and order.

4 Although, the learned A.P.P. has argued that the

acquittal of both the respondents recorded by the learned

Magistrate is the result of erroneous appreciation of evidence

available on record, the learned A.P.P. could not point out

from the evidence of the prosecution as to what circumstances

could have been held to be going against the present respondents

and could have been found to be sufficient to nail them in the

present case.

     5          The learned Chief Judicial Magistrate by carrying out





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a detailed analysis of the prosecution evidence in his judgment

found that there were several non-compliances with the

mandatory provisions of law, which cumulatively resulted in

creating a doubt about the entire prosecution case against the

respondents and rightly so.

6 The admissions given by the complainant P.W. 1-

Suresh Vithal Joshi in his cross-examination taken on behalf of

the respondents have dealt a fatal blow to the prosecution case.

He admits that 900 grams of Pista Ice-cream that was purchased

by him from the respondents was first placed by him in a steel pot

obtained by him from the respondents themselves. He also admits

that for transfer of the whole sample of the Ice-cream by dividing

it into three parts into three empty bottles, a spoon was used

which was collected by him from the respondents. If both these

articles were collected by him from the respondents, it was the

duty of the complainant to ensure that these articles were

cleaned and dried up before their use by him and this should have

been done either by him or by any of those accompanying him at

the spot itself. But, he admits that he did not do so. He also

admits that even though the whole sample that was purchased by

him was a frozen item like Pista Ice-cram, he did not send the

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sample to the Public Analyst at the same temperature and in the

same condition it was stored at the shop of the respondents. He

also admits that the wrapper of the sample was not stated to be

"folded in" in the punchnama, Exhibit - 36, which in fact is true,

if one peruses the punchanma. These admissions would together

make it clear that no proper procedure for taking sample of the

Ice-cream and also for sending it to Public Analyst for analysis

and report was followed, and it has created a doubt about the

genuineness of the report of the Public Analyst which says that

sample of the Ice-cream does not conform to standards of Pista

Ice-Cream. Therefore, the learned Magistrate by relying upon

the cases of State of Maharashtra Vs. Mohanlal

Hanumandas Vaishnowa & Anr.1, State of Maharashtra Vs.

Ram Murat Dube2, Nathi Lal Vs. State of U.P.3, has rightly

held that there being violation of mandatory provisions of PFA

Rules, the benefit of doubt deserves to be given to the

respondents.

7 There was also yet another violation of the mandatory

right of the respondents under Section 13(2) of the PFA Act.

The sample was taken on 15th June, 1995 and the complaint was

1) 1978 PFA Journal Page 183.

2) 1979 (I) PFA Case Page 282.

3) 1980 (I) PFA cases page 457.

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filed on 18th December, 1995. Thus, filing of the complaint was

after lapse of six months which resulted in denial of the right of

the respondents to get the second part of sample of Pista Ice-

cream, admittedly a perishable food article, analysed from

Central Food Laboratory under Section 13(2) of the PFA Act.

The learned Magistrate has also referred to such denial of right

of the respondents in his impugned judgment and order by

following the law laid down by this Court in the case of State of

Maharashtra Vs. Subhash Ramkrishna Uddappi4 and rightly

so.

8 In the circumstances, I find that no case has been

made out for making any interference in the impugned judgment

and order. The Appeal deserves to be dismissed.

     9               The Appeal stands dismissed.





                                                            (S. B. SHUKRE, J.)





     4 1979 (I) PFA Cases page 212.