Bombay High Court
The State Of Maharashtra vs M/S Saibaba Toody Company & Others on 11 August, 2016
Bench: A.I.S. Cheema
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.195 OF 1997
The State of Maharashtra,
Through Food Inspector,
Parbhani.
...APPELLANT
VERSUS
3) Shankar Gaud Vithal Gaud,
R/o-H. No.58, Ward No.7,
Jijamata Road, Parbhani.
...RESPONDENT
...
Mr. K.D. Mundhe, A.P.P. for Appellant.
Mr. S.P. Brahme Advocate for Respondent No.3.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 22ND JULY,2016.
DATE OF PRONOUNCING JUDGMENT: 11TH AUGUST, 2016.
JUDGMENT :
1. This Appeal is against acquittal. In the
trial Court, before the Chief Judicial Magistrate,
Parbhani in R.C.C. No.489 of 1992, the accused
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No.3 was present Respondent No.3 - Shankar Gaud
Vithal Gaud (here after referred as "accused
No.3"). He was tried alongwith the following two
accused :-
1) M/s. Saibaba Toddy Company,
H.No.58, Ward No.7,
Jijamata Road, Parbhani,
Tq. and Dist. Parbhani,
2) Kishanrao Bhujangrao Bhalerao,
Age:- 27 years, Occu:-
R/o. Dharephal, Tq. Basmath,
Dist. Parbhani.
. The matter related to complainant filed
by Food Inspector, Food and Drugs Administration,
Parbhani, PW-1 Sudhakar Patil who filed complaint
for contravention of Section 7 of Prevention of
Food Adulteration Act, 1954 (here after referred
as "the Act") along-with other provisions of the
said Act. The accused No.1 is a firm of which
accused No.2 was partner looking after the
business. Accused No.3 was working as servant. The
business was being operated from house No.58, the
address of the accused No.1. Respondent No.3
along-with the other two accused came to be
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prosecuted and was acquitted by the Chief Judicial
Magistrate, Parbhani on 29th November, 1996.
Against the acquittal, present Appeal came to be
filed against the three accused. This Appeal had
come up earlier before this Court and by Judgment
dated 23rd January, 2009 my then learned
Predecessor allowed the Appeal and the acquittal
was reversed and all the three accused came to be
convicted and sentence was passed. The matter was
carried to the Hon'ble Supreme Court. Criminal
Appeal No.1142 of 2010 preferred by the accused
No.2 came to be dismissed by the Hon'ble Supreme
Court and his conviction and sentence came to be
maintained. Criminal Appeal No.75 of 2012 of
present Respondent No.3 (Accused No.3) was allowed
by the Hon'ble Supreme Court by Judgment dated
15th September, 2015 as he was unrepresented when
the matter had come up before this Court and when
the Appeal was decided against him. Hon'ble
Supreme Court remanded the matter back to this
Court for fresh disposal in accordance with law.
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Thus, present matter has come up for decision of
the Appeal as regards accused No.3 only.
2. The case of prosecution in short is as
follows :-
(A) Complainant Food Inspector Sudhakar Patil
(PW-1) was working as Food Inspector for local
area of Parbhani District. The Chief Officer of
Municipal Council, Parbhani was appointed as local
health authority vide Government Notification
dated 15th April, 1983. The accused No.1 was
partnership firm of which accused No.2 was
managing partner. Accused No.3 was working as
servant in Respondent No.1. The business was of
collecting and selling Toddy. PW-1 Sudhakar Patil
along-with Panchas went to the premises of accused
No.1 on 29th January, 1992 at about 3.00 p.m.
Accused No.3 was present in the shop. PW-1
introduced himself and found that in the shop
there were 240 bottles of Toddy kept for sale.
They did not bear any label. They were not corked.
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The PW-1 undertook procedure under the Act and the
Prevention of Food Adulteration Rules, 1995
(hereafter referred as "Rules") to purchase sample
of Toddy. After duly drawing samples and following
the necessary procedure for purchase of Toddy and
after duly sealing the samples, the sample was got
analyzed from public analyst PW-4 Prakash
Kulkarni. Necessary consent for prosecution was
obtained from Joint Commissioner of Food and Drugs
Administration, Aurangabad division and the
complaint was filed.
(B) The matter came up before the Chief
Judicial Magistrate, Parbhani. Evidence before
charge was recorded. Then the charge came to be
framed at Exhibit 66. The accused pleaded not
guilty. The evidence was completed. The defence of
accused was of denial. For the prosecution, PW-1
Sudhakar Patil deposed. Further witnesses examined
were PW-2 Panch Vithal Shinde, PW-3 Shashikant
Bharne, then Chief Officer of Municipal Council,
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Parbhani and PW-4 Prakash Kulkarni, Public
analyst. The Chief Judicial Magistrate considered
the oral and documentary evidence and for reasons
recorded by him, acquitted the accused.
3. Being aggrieved, State has filed this
Appeal inter-alia against the present accused
No.3.
4. It has been argued by learned A.P.P. for
State that the Chief Judicial Magistrate while
acquitting the accused persons wrongly appreciated
the evidence and accused No.3 could not have been
acquitted. It is stated that accused No.3 was
found selling Toddy of which samples were drawn by
PW-1 and when one of the sample was got examined
from the public analyst, it was found to be
adulterated. The complete and correct procedure
under the Act and Rules was followed. The offence
was duly established against accused No.3. The
trial Court resorted to wrong reasonings and
grounds for acquittal of the accused. The A.P.P.
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submitted that Chief Judicial Magistrate wrongly
gave benefit to the accused on the basis that
evidence did not disclose that the Food Inspector
stirred the Toddy while collecting the samples in
three bottles. It is stated that the trial Court
wrongly held that the public analyst did not show
the date of analysis and so benefit was required
to be given to the accused. It is stated, trial
Court erred in holding that it was not proved that
the toddy was not adulterated and was not
injurious to health. According to him the sample
showed that it was adulterated and the accused was
required to be convicted.
5. Against this the learned counsel for
accused No.3 submitted that there was no proper
sealing of the samples as per the Rules under the
Act. The samples drawn were not stirred and they
did not represent the bulk of the contents. There
was no proof brought that the analysis of the
sample drawn was got done within forty days of
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seizure. The report of Analysis did not state that
the sample of toddy was injurious to health.
6. At the time of arguments, the learned
A.P.P. and counsel for the accused No.3 have been
heard, in the alternative, regarding sentence in
case this Court decides to reverse the acquittal
into conviction. The learned A.P.P. submitted that
the offence is serious and against public health
and severe punishment should be imposed. Against
this, the learned counsel for accused No.3
submitted that accused No.3 was only servant in
the shop concerned and he was not the owner of the
business. The counsel submitted that in view of
these facts lenient view should be taken against
accused No.3.
7. I have gone through the oral and
documentary evidence in the matter. The evidence
of PW-1 Sudhakar Patil shows that he was appointed
as Food Inspector in Pune Division as per the
Gazette dated 18th January, 1973 (Exhibit 19) and
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came to be transferred to Parbhani Division in
1990 (vide Exhibit 20). He joined the office of
Assistant Commissioner, Food and Drugs
Administration, Parbhani on 16th July, 1990 and
was authorized to Act as Food Inspector in
Parbhani District vide Gazette Notification dated
20th November, 1984 (Exhibit 22). His evidence is
that Chief Officer of Municipal Council, Parbhani
was the Local Health Authority Parbhani and Joint
Commissioner, Food and Drugs Administration,
Aurangabad was authorized to permit the
prosecution under the Act. Regarding these facts,
the Accused did not raise any challenge in the
cross-examination.
8. Evidence of PW-1 shows that accused No.1
was firm run by acting partner - accused No.2 and
accused No.3 was servant in the firm. According
to him, on 29th January 1992 he along with Panch
PW-2 Vithal had gone to the shop of the accused
and accused No.3 was present there. The evidence
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shows as to how PW-1 introduced himself and came
to know the name of the owner and partner of the
firm from accused No.3. He deposed that he
inspected the shop. There were 240 bottles of Tadi
i.e. Toddy for selling purpose kept in 20 plates,
each of 12 bottles. Each bottle was containing 650
ml. Tadi. They did not have cork or any label.
PW-1 deposed that accused No.3 told him that the
bottles had been filled in the morning from one
can. According to PW-1, he gave notice Exhibit 23
under Section 14 of the Act to this accused No.3
and inquired from him regarding the cash memo.
Accused No.3 informed that Toddy had been drawn
from Toddy tree by accused No.2 and there was no
price memo. The accused No.3 endorsed regarding
this behind Exhibit 23, which endorsement has been
proved by him at Exhibit 24. PW-1 has deposed
that he took Toddy from 3 bottles in one clean,
empty and dry pot and 1500 ml. Toddy was then
taken in another empty, dry pot by clean, dry and
empty measure for analysis from the accused No.3.
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Rupees Ten were paid as market price of Toddy.
Receipt Exhibit 25 was issued by accused No.3. The
evidence shows that this Food Inspector prepared
notice Exhibit 26 in Form VI under Rule 12 of the
Rules and it was given to accused No.3. He
separated 1500 ml. Toddy in dry and clean bottles
containing 500 ml. each. PW-1 deposed that he
mixed copper sulphate 5 gm. for preservation in
each bottle. He then corked the three bottles and
sealed them with the seal of his designation. He
fixed labels upon the samples with the signature
of Panch and himself. Each of the sample was
wrapped in paper and the same was pasted with gum
and kept in the wrap. Slip containing the
signature of L.H.O., code No.ABD/110/MCP Serial
No.850/19-92 was pasted around the wrapped bottle.
The evidence discloses that each of the bottle was
tied horizontally and vertically by the thread.
Each of the bottle was pasted with sealing wax
and their ends were sealed with the seal of
designation of PW-1 at four places out of which
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one was on the upper side and one was below and
the others were on the knot and body of the said
wrap. The signatures of the Panch as well as
accused No.3 were taken on the paper slip and the
wrapper in the pasted position. Their signatures
were also taken on four papers having the specimen
impression of the seal. One of the slip has been
proved at Exhibit 27. PW-1 deposed that he took
possession of all three bottles which had been
sealed. The evidence shows that the other 237
and ½ bottles were each wrapped by the paper on
its mouth and were sealed and seized and notice in
Form No.IV came to be issued to accused No.3 as
per Exhibit 28 and possession of those bottles was
given to accused No.3 and his endorsement
Exhibit 29 was obtained. From accused No.3 surety
bond for safe custody of those bottles was taken
vide Exhibit 30. PW-1 then drew Panchnama Exhibit
31 and copy of it was given to accused No.3 and
his acknowledgement was obtained.
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9. The evidence of PW-1 Sudhakar Patil is
corroborated by the evidence of PW-2 Vithal Shinde
regarding such incident and preparation of the
Panchnama Exhibit 31.
10. Evidence of PW-1 further shows that he
returned to his office with the sample bottles and
the documents. He prepared 7 copies of Form VII on
30th January 1992. One bottle and Form No.VII were
sealed in one packet and sent for analysis with
covering letter to the Public Analyst at
Aurangabad vide Exhibit 32. He proved the receipt
at Exhibit 33. His evidence is that copy of Form
No.VII and paper having specimen impression of
seal used upon the sample and outer cover were
separately also sent with covering letter to
Public Analyst vide Exhibit 34, of which receipt
is at Exhibit 35. Exhibit 35 shows that the same
was received in sealed condition. The evidence is
that two sample bottles and two copies of Form
No.VII were sealed in one packet and sent to Chief
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Officer (PW-3), Parbhani with a messenger Kulkarni
along with covering letter Exhibit 36. Receipt is
proved at Exhibit 37. Two copies of specimen seals
were also sent vide letter Exhibit 38, receipt of
which is at Exhibit 39. Steps were taken for
destruction of rest of Toddy. The Chief Officer
received the analysis report of Toddy and the
report was sent to Assistant Commissioner, which
was later on received by this PW-1 and the same is
at Exhibit 45. The evidence of PW-1 is that the
analysis report Exhibit 45 proved that the Toddy
contained total acid in excess and the volatile
acid was also in excess and the alcohol contents
were less than the permissible limit. The report
also showed that Toddy was showing presence of
chloral hydrate and that it did not confirm to the
standards of Toddy as per Item A.29.01 of Appendix
B of Prevention of Food Adulteration Rules 1955.
Thus the evidence of PW-1 is that the Toddy was
thus in adulterated form.
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11. Evidence of PW-1 further is that he sent
letter to the Chief Officer and came to know that
license had been issued to the firm only on 18th
March 1992 which is subsequent to the date of
incident. He collected information regarding the
partnership firm. All the concerned documents were
produced before the Assistant Commissioner and
consent of the Commissioner was obtained vide
Exhibit 59. The evidence of PW-1 is that after
receiving the necessary permission, the complaint
came to be filed.
12. If the cross-examination of PW-1 is
perused, he was asked and he disclosed that Toddy
can be preserved for 8 to 10 hours without
preservative but when preservative is added, it
can be preserved for many years. He accepted that
there are different parameters for fresh Toddy and
stale Toddy. His cross-examination shows that he
had used vertical cylinder to measure the Toddy.
It is revealed that the measure was his own and
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even the pots used were brought by him personally
and they were not supplied by the department. I do
not think that makes any difference. PW-1 was
further asked in cross-examination and once he
mentioned that he did not stir the Toddy before
filling the bottles but then he himself
volunteered that it was stirred. Although the
learned counsel for the accused has tried to argue
that there was no stirring of the Toddy, I find no
reason to disbelieve this PW-1 who corrected
himself to depose that he did stir Toddy before
filling the same in bottles. Apart from this, the
cross-examination does not show that the witness
was in any way shattered regarding the procedure
he followed for drawing of the samples. The
evidence supported by Panchnama Exhibit 31 remains
that PW-1 took Toddy from three bottles in one
clean, empty and dry pot and put them together
before he drew samples for analysis. In this
process naturally the Toddy got stirred. Even
otherwise the evidence is that the accused No.3
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had informed this PW-1 that the accused No.2 had
drawn the Toddy from Toddy tree and the evidence
is that the bottles had been filled in from a can
and had been kept in the morning. The bottles
themselves were kept ready for sale and thus they
represented the contents which were put up for
sale.
13.
The further cross-examination of PW-1
shows that he fastened the spot where the thread
was sealed by wax. His evidence is that article
concerned was injurious to health. He admitted
that the report of the public analyst did not
record as such that the sample was injurious to
health. But then when the evidence shows that the
sample did not meet the criterions as laid down in
the Act and Rules, it has to be held to be
adulterated. The witness was asked further details
regarding sending of documents to the Joint
Commissioner for sanction. There is general
suggestion that he did not follow mandatory
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provisions of the Rules. Going through the cross-
examination, it cannot be said that the witness
has been shattered at all.
14. State examined PW-3 Shashikant Bharne who
was Chief Officer, Municipal Council, Parbhani at
the concerned time. His evidence shows that PW-1
Sudhakar Patil had, on 30th January 1992 sent him
packets containing two samples and letter of
instructions separately. According to him, he had
issued receipt. His evidence is that he also
received filled up Form VII and specimen seal and
issued receipts on that count. He has proved the
letter Exhibit 38 and the receipts. His evidence
shows that on 10th March 1992 he received four
copies of the report of public analyst. He sent
one copy to the Assistant Commissioner, Food and
Drugs. According to him, on 21st May 1993 he sent
information which was called by Assistant
Commissioner vide Exhibit 47 and was informed on
17th October 1993 about lodging of the case
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against the accused. He deposed that he issued
notice to the accused under Section 13(2) of the
Prevention of Food Adulteration Act. Copies of the
said notices are proved at Exhibit 89 to 91 and
the acknowledgements at Exhibit 92 to 94. Only two
suggestions were given to this witness and both
are denied. The witness cannot be said to be
shattered regarding his evidence in any manner.
15. Then there is evidence of PW-4 Prakash
Kulkarni, the public analyst. His evidence is that
he received the sample in this matter on 1st
February 1992. The sample was analyzed by his
assistant under his supervision. The evidence is
that the sample did not confirm to the standard
and he prepared report in Form No.III on 6th March
1992 and sent four copies to Local Health
Authority by registered post. His evidence read
with Exhibit 45 is that the sample contained
Chloral Hydrate. According to this PW-4 Chloral
Hydrate is injurious to health. PW-4 proved
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Exhibit 45 and his signature on it. His cross-
examination shows that the result could be
different in case of fresh Toddy and in case of
stored Toddy. However the witness volunteered and
evidence showed that preservatives had been added
to the samples and the result would not get
affected. He was asked in the cross-examination
the date on which the sample was analyzed. He
could not state so. The cross-examination shows
that after preservative is added, the sample could
be saved for one year approximately. On being
asked, he has given name of his assistant as
Mrs. Pathak who analyzed the sample under his
supervision. The suggestion that it was not done
under his supervision, was denied.
16. Thus, if the evidence of PW-4 is perused,
it can be seen that after receiving the sample on
1st February 1992, the same was got analyzed and
by 6th March 1992 the report had been prepared and
sent. It is clear that in less than forty days as
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required by Rule 7(3) of the Rules of 1955, the
sample had been already analyzed and even report
had been prepared and sent. In fact in less than
40 days from date of incident the report was
already available after analysis. It is clear from
reading of Rule 7(2) of the Rules of 1955 that no
fault can be found with this witness if his
assistant analyzed the sample and he supervised
the analysis. Thus the arguments for accused on
this count have no substance.
17. The evidence of PW-1 Sudhakar Patil
proved the consent order issued by Joint
Commissioner, Aurangabad Division, Food and Drugs
under Section 20 of the Act giving consent in
public interest to prosecute the accused persons
including present accused No.3. Perusal of the
document Exhibit 59 shows application of mind by
the Joint Commissioner. Under Section 20 of the
Act the requirement is of granting of consent. It
is not a matter of sanction to prosecute.
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18. I have gone through the Judgment of the
Chief Judicial Magistrate and heard learned
counsel for Respondent No.3 - accused No.3. The
trial Court recorded the reason and it is argued
that consenting authority who issued Exhibit 59
should have been examined. I do not think that
merely because the consenting authority was not
examined the accused can get any benefit. The
consent shows application of mind by the
consenting authority. PW-1 proved the consent
which was received in official course. In the
cross-examination of PW-1 he was not put any
question regarding this consent order which he had
received, so as to question the correctness of the
same.
19. The other reason recorded by the trial
Court that date on which the sample was received
was not brought on record by the prosecution, has
no substance. I have already discussed that within
less than forty days of receipt of sample (or even
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the incident), the same was not only analyzed but
report sent. Thus, it cannot be said that Rule
7(3) of the Rules of 1955 was not complied.
20. The other reasoning recorded by the trial
Court that the report of the public analyst did
not mention that the Toddy was injurious to
health, also cannot be maintained. It is quite
apparent that Toddy did not comply with the
standards prescribed under the Rules of 1955.
Apart from this, there is specific evidence of
PW-4 the public analyst mentioning that Chloride
Hydrate was present in the sample, which was
injurious to health.
. Reasons recorded by trial Court to acquit
accused cannot be maintained.
21. For above reasons, I do not find that the
Judgment of acquittal as recorded by the trial
Court can be maintained against the Respondent
No.3 - accused No.3 The State proved its case
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beyond reasonable doubts.
22. For above reasons, I find that offence
punishable under Section 7(i) read with Section 2
(ia), (a) read with Section 16 (1)(a)(ii) and
offence under Section 7 (i) read with Section 2
(ia)(m) read with Section 16 (1)(a)(i) of the
Prevention of Food Adulteration Act, 1954 is
proved against the Respondent No.3 - accused No.3.
23. I have already heard learned counsel for
the accused and learned A.P.P. in the alternative
as to what should be the punishment in case the
acquittal is converted into conviction.
Considering the submissions and the quantum of
sentence as imposed against accused No.2 and
considering the fact that present accused No.3 was
only servant, it would be appropriate to impose
lesser sentence of imprisonment on him. I am aware
that much time has passed since the incident took
place. However, sentence of imprisonment is
necessary looking to the gravity of the offence
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and the fact that adulteration in food articles
puts the health of public at risk and also
considering the fact that Toddy is a drink mostly
consumed by citizens not coming from affluent
background. It is mostly consumed by poor people.
It would be appropriate that sentence of
imprisonment should remain and the accused cannot
be allowed to walk away by merely paying the fine.
Hence I pass following order:
O R D E R
(I) Criminal Appeal is allowed.
(II) The Respondent No.3 - accused No.3 -
Shankar Gaud Vithal Gaud is hereby
convicted for offences punishable under
Section 7(i) read with Section 2 (ia), (a)
read with Section 16 (1)(a)(ii) and
offence under Section 7 (i) read with
Section 2 (ia)(m) read with Section 16 (1)
(a)(i) of the Prevention of Food
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Adulteration Act, 1954 and sentenced to
suffer rigorous imprisonment for Six (6)
months and to pay fine of Rs.1000/-
(Rupees One Thousand). In default of fine,
he shall suffer further rigorous
imprisonment for Three (3) months.
(III) The Respondent No.3 - accused No.3
shall surrender to his Bail Bonds.
(IV) The period undergone as under-trial,
shall be set off under Section 428 of the
Code of Criminal Procedure, 1973.
(V) The trial Court shall ensure
execution of sentence.
[A.I.S. CHEEMA, J.]
asb/AUG16
