The State Of Maharashtra vs Jhony Jaylal Wadhwani
2016 Latest Caselaw 625 Bom

                                                                       (909) Apeal 397-01

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION
    Amk




                                                                                         
                                 CRIMINAL APPEAL NO. 397 OF 2001

          The State of Maharashtra                                     ...Appellant




                                                                 
          Through Shri M. S. Kembalkar, Food 
          Inspector, Office of Jt. Commissioner, 
          Food & Drug Administration, 




                                                                
          Maharashtra State, Pune.

                                  Versus




                                                    
          Jhony Jaylal Wadhwani                                       ...Respondent
          Vendor & Proprietor of Neelam Food 
                                        
          Products, at 59/A, At Post Mundawa, 
          Pune-36
                                          .....
                                       
          Mrs. Manisha R. Tidke, APP for the Appellant-State.
          Mr.   Vishwajit   Sawant   a/w.   Ms.   Tanaya   Patankar,   Mr.   Prabhakar 
          Manohar Jadhav for the Respondent.
            


                                                      CORAM : S. B. SHUKRE, J. 
         



                                                                    th
                                                      DATE     : 15
                                                                       MARCH, 2016.
                                                                                   

          JUDGMENT 

1. This is an appeal preferred against the judgment and

order dated 18.11.2000 passed in R.C.C. No. 38 of 1999 by the Chief

Judicial Magistrate, Pune thereby acquitting the respondent of the

offences punishable various sections of Prevention of Food

Adulteration Act, 1954 (hereinafter referred to PFA Act in short).

Briefly stated, the facts are as under:

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2. The respondent was prosecuted by the State at the

instance of Food Inspector, Food and Drug Administration, Pune on

the allegations that on 19.05.1998 at about 12.30 p.m. the

respondent who was a vendor and proprietor of M/s. Neelam Food

Products situated at 59/A, Mundawa, Pune was found to be storing,

distributing and selling a food article, a Pan Masala under the brand

name Jani Khushbu scented Pan Masala which was adulterated and

not found to be in conformity with the standards prescribed for the

same under PFA Rules, 1955 read with relevant sections of the PFA

Act.

It is the case of the prosecution that the Food Inspector, on his

visit to the shop of the respondent on 19.05.1998 at about 12.30 p.m.

had purchased 15 packets of the said Pan Masala each of which

weighing 70 gms by making payment of Rs.285/- to the respondent

and then dividing 15 packets into 3 parts, each part comprising 5

sealed packets, prepared 3 samples required for the purposes of

inquiry and investigation for ascertaining whether the samples were

adulterated or not. They were tied horizontally and vertically by

means of a strong thread and seals were affixed to it. According to

the prosecution proper sealing procedure was adopted. On

20.05.1998, one sealed part of the sample together with mandatory

(909) Apeal 397-01

Form No. VII was sent to the Public Analyst, Kolhapur for analysis and

report. The remaining sealed parts were sent together with Form No.

VII to local Health Authority, Pune. The result of the analysis

disclosed that the sample examined did not conform to the standards

prescribed under the PFA Rules, 1955 read with relevant sections of

the PFA Act and found to be adulterated. It was particularly noted

that the sample contained ash, to the extent of 8.17%, which

percentage was slightly higher (by .17%) than the permissible limits.

Therefore, after obtaining consent to prosecute the respondent and

after completion of investigation, the complaint was filed against the

respondent.

3. As the respondent pleaded not guilty to the charge framed

against him and claimed to be tried, he was tried for the offences

under Sections 2(ia)(a), 2(ia)(m) read with Sections 7(i), 7(v) read

with Rule 42(zzz)(1) & under Section 16 of the PFA Act with which

he was charged. On merits of the case, the learned CJM found that

the prosecution failed to prove all the offences that were charged

against the respondent beyond reasonable doubt and, therefore, the

learned CJM acquitted the respondent of the said offences by his

judgment and order dated 18.11.2000. Not being satisfied with the

(909) Apeal 397-01

said order, the State chose to approach this Court in the present

appeal.

4. I have heard learned APP for the State-appellant and the

learned counsel for the respondent. I have carefully gone through the

record of the case including the impugned judgment and order. It is

seen from the impugned judgment and order that the learned CJM

has considered various inadequacies and lacunae in the procedure

adopted by the Food Inspector for sealing the sample, sending the

intimation regarding the prosecution of the respondent together with

the copy of the report and also the manner in which the consent was

accorded by the Joint Commissioner for prosecution of the

respondent and held that these inadequacies and insufficiencies were

fatal to the prosecution case and acquitted the respondent of the

offences with which he was charged in this case. The learned CJM

has also found that even on merits of the case, the prosecution case

against the respondent could not be accepted for the reason that the

ash contained in the sample analysed by the Public Analyst was only

marginally higher than the permissible limits and in the background

of the admitted fact that the sample was analysed by a Public Analyst

not at Pune, though available, but a Public Analyst at Kolhapur, found

(909) Apeal 397-01

that such marginal excess in total ash content could be attributed to

also error of judgment in the analysis and, therefore, further found

that benefit of doubt deserved to be given to the respondent.

5. In the facts and circumstances of the case, I find, as

rightly submitted by the learned Counsel for the respondent, that

these findings recorded by the learned CJM could not be said to be

representing an impossible view or arising out of some perversity or

arbitrariness committed while appreciating evidence on record. It is

an admitted fact that while taking the samples of the Pan Masala, the

contents of the samples were not put in a container as required under

Rule 14 of the PFA Rules, 1955. It is also an admitted fact that the

intimation about filing of the complaint against the respondent and

sending of the copy of the report to the respondent was all made after

a period of 45 days. The same should have been done within 40

days. The percentage of the total ash contained in the sample

analysed was 8.17%, which was just above the permissible limits by

about .17%. No explanation has been given by the complainant as to

why the sample was got analysed by him from a Kolhapur Laboratory

when the State Public Health Laboratory was available in Pune. It is

a matter of common knowledge that when substances are analysed by

(909) Apeal 397-01

two different laboratories, the results of their analysis may not be

identical and may vary slightly or marginally. If the sample in

question in this case had been examined by the laboratory at Pune, it

is quite likely that some variations might have emerged in the

analysis. The crossing of the permissible limits in this case as regards

the total ash content is only by .17% and this percentage is certainly a

marginal one and, therefore, as rightly held by the learned CJM

placing reliance upon the judgment in the case of Nortan Mal Vs.

State of Rajasthan, 1995 Supp (2) SCC 581, the benefit of doubt

must go to the respondent. Even the copy of the report of the Public

Analyst has been sent after the expiry of stipulated period of 40 days

which has resulted in causing of great prejudice to the defence of the

respondent. With such evidence on record, I do not think there was

any scope for the learned CJM to take another view.

6. In the circumstances, I am of the view no interference in

the impugned judgment and order is warranted. The Appeal stands

dismissed.

(S. B. SHUKRE, J.)