Bombay High Court
The State Of Mah.Thr.Food ... vs Mohomad Arif Sheikh on 13 June, 2016
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.123/2002
The State of Maharashtra through
Food Inspector, Gadchiroli. .....APPELLANT
...V E R S U S...
Mohomad Arif Sheikh,
aged 22 years, r/o Wadsa (Desaiganj)
Dist. Gadchiroli. ...RESPONDENT
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Mr. S. S. Doifode, A.P.P. for appellant.
None for the respondent.
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ig CORAM:- V. M. DESHPANDE, J.
DATED :- 13.06.2016
J U D G M E N T
1. By this appeal, the State is questioning the judgment
and order of acquittal passed by the learned J.M.F.C., Desaiganj
dated 31.08.2001 in Regular Criminal Case No.14/1993 by which
the learned Magistrate acquitted the respondent of the offence
punishable under Sections 16(1) (a) (ii), 16 (1) (a) (i) read with
Section 2 (ia) (a), 2 (ia) (c), 2(ia) (m) and 7 (i) of the Prevention
of Food Adulteration Act.
2. I have heard Mr. S. S. Doifode, the learned A.P.P. for
the State. None appears for the respondent.
3. Complainant-Bhaskarrao Kokate (PW1) is a qualified
Food Inspector at Gadchiroli appointed under section 4 of the
Prevention of Food Adulteration Act. The respondent was
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proprietor of Mohd. Arif Kirana Stores, Desaiganj and was
engaged in the business of storing and selling of food articles.
On 16.12.1991 at about 5.00 p.m. the Food Inspector
Mr. B. S. Kokate along with pancha went to the shop of the
respondent. The respondent was present in his shop and selling
the food articles. The complainant disclosed his identity and told
the accused the purpose of visit. The complainant then inspected
the premises of the shop of the accused, demanded and purchased
450 gms. of Linseed oil from open tin for the purpose of test and
analysis under the provisions of Prevention of Food Adulteration
Act. The complainant paid Rs.16/- towards the cost of the Linseed
oil and obtained the cash receipt from the accused.
The complainant then issued a notice as per Form no.6
and also under Sec.14-A of the Prevention of Food Adulteration
Act to the accused. The complainant then drawn the sample of
Linseed oil as per procedure laid down under the Act and prepared
spot panchanama in presence of panch.
On 17.12.1991, the complainant sent one counter part
of sealed sample along with form VII to Public Analyst, Public
Health Laboratory, Nagpur in a sealed cover along with a
specimen impression of seal for test and analysis. The complainant
also handed over the remaining two counter part specimen
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impression of seal to the Local Health Authority, Gadchiroli in
sealed packet. The complainant also intimated the Local Health
Authority, Gadchiroli about sending of sample to the Public
Analyst, Nagpur for test and analysis. The complainant received
the report of Public Analyst dated 24.01.1992 through Local
Health Authority, Gadchiroli. As per the said report, the sample of
Linseed oil taken by the complainant does not confirm to the
standard of Linseed Oil as laid down in the Prevention of food
Adulteration Rules, 1955. Then, the complainant sent all the
original papers to the Local Health Authority, Gadchiroli
requesting them to send the same to the Joint Commissioner, Food
and Drugs Administration, Nagpur for consent to prosecute the
respondent. After receipt of the consent, the complaint case was
lodged.
4. In order to bring home the guilt of the respondent, the
prosecution examined two witnesses. They are Bhaskarrao Kokate
(PW1) and Vasant Gaurkar (PW2). The panch witness died during
the course of appeal, therefore, he was not examined. The
evidence of the complainant would show that when he visited the
Kirana shop of the respondent that time he did not take any
apparatus with him for taking the sample nor he was having any
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specific bottle used for taking the sample, sampling tube and
sampling triers while taking the sample. It is also seen from the
evidence that the tin from which the sample was taken was open
and he steered the tin by hand and not by any article. The
evidence of the complainant further shows that the pot in which
the sample was taken was provided by the respondent and that
time it was not sterilized by the complainant/appellant. He
strongly steered the oil from the pot.
In the light of the aforesaid nature of evidence, the
finding recorded by the learned Judge of the Court below that the
possibility cannot be ruled out that that the Food Inspector taken
the sample in the pot, which was not clean, empty and dry is not
perverse. The learned trial Judge has held that the Public Analyst
has not given the percentage of caster oil found in the sample in
his report Exh.33.
5. From the nature of the evidence, it is crystal clear that
with certainty it cannot be said that the sample was taken in dry
and clean pot and in view of the lack of clear cut evidence to show
that the sample was homogeneous, representing the whole bulk,
the possibility of prejudice as pointed out by the accused before
the Court below is not ill founded. In my view, the learned Judge
of the Court below has rightly appreciated the said aspect.
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6. By and now, it is well settled that just for asking, the
appellate Court should not interfere with the well reasoned
judgment of the trial Court. The appellate Court on reappreciation
of the prosecution case if reaches to a conclusion that the
approach of the Court below is perverse and the view taken by the
Court below is not possible on the evidence brought on record
then the appellate Court would be justified in interfering with the
order of acquittal.
In the present case, the learned A.P.P. is unable to
point out any perversity. Further, in view of the reappreciation, it
is crystal clear that the pot was not clean and, therefore, the
impugned judgment warrant no interference. Hence, following
order is passed.
Criminal Appeal No.123/2002 is dismissed.
JUDGE
kahale
