Bombay High Court
Gurumukhadas S/O Hotchand ... vs The State Of Mah. Thr. The Food ... on 19 October, 2016
Bench: I.K. Jain
1 judg. rev.52.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Revision Application No.52 of 2011
Gurumukhadas s/o Hotchand Bhojawani,
aged about 55 years, Occ.-Business,
Proprietor of M/s. Sindh Kirana Stores,
At Bada Bazar, Bhandara,
Tahsil and District Bhandara. .... Applicant
Versus
The State of Maharashtra,
through the Food Inspectors,
the Food and Drugs Administration,
Bhandara, Tahsil and District Bhandara. .... Non-applicant
Shri Anjan De, Advocate for applicant.
Shri P.S. Tembhare, Additional Public Prosecutor for non-applicant.
Coram : Kum. Indira Jain, J.
Dated : 19th October, 2016.
J U D G M E N T [Per Kum. Indira Jain, J.]
This Revision Application takes an exception to the
judgment and order dated 17-02-2011 passed by the
learned Sessions Judge, Bhandara in Criminal Appeal No.
23 of 2009 and judgment and order dated 18-04-2009
passed by the leaned Chief Judicial Magistrate, Bhandara
in Regular Criminal Case No.228 of 2005.
2 judg. rev.52.11.odt
2] For the sake of convenience applicant is referred as
an 'accused' and respondent as 'prosecution' in their
original status as were referred before the trial and
appellate Courts.
3] The prosecution case briefly stated is as under :-
Complainant was appointed as Food Inspector. On
09-09-2005 he visited M/s Sindh Kirana Stores at Bada
Bazar, Bhandara. Accused was dealing in edible oil and
other grocery articles on wholesale and retail basis.
During inspection of the shop complainant found 40
packed tins each tin weighing 15 Kg. of groundnut oil
(Royal Gold Brand Mungfalli Tel). Two barrels containing
refined Soyabean oil each having 180 Kg. oil were also
found stored for sale. In the present case controversy is
in respect of 40 packed tins of groundnut oil. So far as
Soyabean barrels are concerned separate prosecution was
launched and accused was acquitted of the offences
alleged therein.
4] It is the case of prosecution that complainant
purchased 750 gms. of groundnut oil filled the same in
glass bottle and duly sealed the sample. He issued notice
to the accused under Section 14-A of the Prevention of
3 judg. rev.52.11.odt
Food Adulteration Act, 1954 (hereinafter referred as
'PFA Act' for brevity) and asked him to produce purchase
bills of groundnut oil. Accused failed to disclose the name
and address of the person from whom oil was purchased.
Though accused made an endorsement on notice that he
would submit the purchase bills within 2-3 days he failed
to comply. Reminder was issued to the accused and he
informed that he did not have purchase bills. In the
meanwhile report from Public Analyst was received stating
that groundnut oil sample was not conforming to the
prescribed standard.
5] Accused was not prosecuted for the charge of
storing for sale, adulterated oil. Complaint was restricted
to the charge that accused contravened the provisions of
Section 14-A of the Act and made him liable to
punishment under Section 16(1-C) of the Act. It was also
alleged in the complaint that accused prevented the
complainant from proceeding against manufacturer and
distributor of the adulterated groundnut oil and thereby
committed an offence punishable under Section 16(1)(d)
of the PFA Act. Charge came to be framed against the
accused vide Exhibit-37. He pleaded not guilty to the
charge and claimed to be tried. He raised multiple
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defences as under :-
(i) Groundnut oil was available in open
market and one can purchase the
same without bills.
(ii) Law does not prohibit such purchase
even when purchased without bills.
(iii) Accused is not prosecuted for
allegedly storing adulterated oil which
should be the main charge and the
solitary charge under Section 14-A
would not sustain in law.
(iv) Accused has shown purchase bills to
the complainant on his first visit but he
did not accept the bills.
(v) All the tins were packed each
containing a label clearly showing the
name of manufacturer.
(vi) False implication.
6] In support of its case prosecution examined
complainant Bhaskar Gopal Nandanwar Food Inspector
and a panch witness Prakash Motiram Panjawani. On
going through the evidence adduced in the case learned
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Magistrate convicted the accused of the offences
punishable under Sections 16(1-C) and 16(1)(d) of the
Prevention of Food Adulteration Act and sentenced him to
undergo simple imprisonment for six months and to pay a
fine of Rs.1000/- each in default to undergo simple
imprisonment for three months each. Both the sentences
were directed to run concurrently.
7]
Accused challenged the judgment of conviction
before the Sessions Court in appeal. Considering the
evidence and material placed on record appellate Court
dismissed the appeal. Hence this revision.
8] Heard Shri Anjan De, learned Counsel for the
applicant and Shri P.S. Tembhare, learned Additional Public
Prosecutor for the State. After giving anxious
consideration to the facts and circumstances of the case,
submissions advanced on behalf of the parties, evidence
on record and the judgment delivered by the trial Court
and the appellate Court, for the below mentioned reasons
this Court is of the opinion that the prosecution could not
establish the charge against the accused and the order of
conviction is unsustainable in law.
6 judg. rev.52.11.odt
9] At the outset it may be mentioned here that edifice
of the prosecution case rests on the solitary evidence of
Food Inspector (PW-1) Shri Nandanwar. So far as
(PW-2) Panjawani panch witness is concerned he did not
support the prosecution.
10] It appears from the evidence of (PW-1)
Shri Nandanwar that on 09-09-2005 he visited the grocery
shop of the accused along with panch witness Prakash
Panjawani. He explained the purpose of his visit to the
accused. He found 40 packed tins each containing 15 kg
groundnut oil stored in the shop. Complainant purchased
750 gms. of groundnut oil from the accused, divided the
same in three equal parts and duly sealed the samples.
Inspection note (Exhibit-16), panchanama (Exhibit-22)
came to be drawn and a notice under Section 14-A was
issued to the accused. Complainant admits in his cross
examination that all 40 tins were packed and were
containing labels showing the name and address of
manufacturer. He also admits that he did not proceed
against the manufacturer whose description was
mentioned on the label. It is also an admitted fact that
no prosecution was launched for storing the groundnut oil
which according to the prosecution was found adulterated
7 judg. rev.52.11.odt
by the Public Analyst. The only charge against the
accused is under Section 14-A of the PFA Act which reads
as under :-
"14-A. Vendor to disclose the name,
etc., of the person from whom the
article of food was purchased.- Every
vendor of an article of food shall, if so
required, disclose to the Food Inspector
the name, address and other particulars of
the person from whom he purchased the
article of food.]"
11] The crucial question that crops up here is whether
contravention of Section 14-A alone would attract penal
action in the absence of launching of prosecution for the
charge of storing for sale, adulterated oil. The object of
Food Adulteration Act is to have a check on
manufacturers, distributors, dealers or agents and make
them more responsible for the marketing of the food
articles. Section 14-A basically deals with disclosure of
the name of the person from whom accused had
purchased the food articles and in case of non disclosure
liable for contravention of provisions of Section 14-A of
the Act.
8 judg. rev.52.11.odt
12] In the case on hand it is not in dispute that all 40
tins were packed. They were containing labels with clear
name and address of manufacturer. Complainant did not
explain either in complaint or in evidence what did he do
on getting the information through the label on packed
tins of groundnut oils. It was for him to show that even
though the name and address of manufacturer was shown
on the label he required the information from the accused.
Unless such requirement is established provisions of
Section 14-A of the Act would not be attracted.
Complainant has miserably failed and both the Courts
have ignored this important aspect of law.
13] It can be further seen from the reasoning recorded
by the trial Court and the First Appellate Court that almost
negative burden was placed on the accused. This is not
permissible in criminal prosecution. Prosecution has to
stand on its own legs and then the turn comes to the
accused to disprove the facts established against him.
14] The next contention raised by the applicant is
regarding non compliance of Section 13(2) of the PFA Act.
As admitted by complainant no prosecution was taken up
for storing for sale, adulterated oil. No opportunity was
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given to the accused to send the oil sample to C.A.,
thereby depriving him of his right to challenge the
sample. Prosecution failed to assign any reason for not
prosecuting the accused when sample was found
adulterated. In view of these facts elicited in the cross
examination of complainant grounds raised on behalf of
applicant cannot be said to be without substance.
15]
So far as contravention of Section 14-A is concerned
it is punishable under Section 16(1-C). Prosecution could
not duly establish that accused contravened the
provisions of Section 14-A as the requirement under
Section 14-A is not proved by the prosecution.
16] Regarding contravention punishable under Section
16(1)(d), it can be seen from the simple reading of the
provisions of Section 16(1)(d) and Section 16(1-C) of the
Act that it is a distinct offence. If it is a distinct offence
Section 20 prohibits the prosecution to be launched
without sanction. For want of sanction even the alleged
offence under Section 16(1)(d) would not sustain against
the accused.
17] In this view of the matter this Court is of the opinion
10 judg. rev.52.11.odt
that the charge levelled against the accused was not duly
proved. The view taken by the trial Court and the First
Appellate Court is not based on proper appreciation of
evidence and is unsustainable in law. In the result
Revision Application needs to be allowed. Hence, the
following order :-
(i) Criminal Revision Application No.
52 of 2011 is allowed.
(ii) Impugned judgment and order passed
by the learned Chief Judicial Magistrate,
Bhandara in Regular Criminal Case No.
228 of 2005 and judgment and order
passed by the learned Sessions Judge,
Bhandara in Criminal Appeal No.
23 of 2009 dated 17-02-2011 are
quashed and set aside.
(iii) In consequence thereof applicant-
accused is acquitted of the offence
under Section 14-A punishable under
Section 16(1-C) and 16(1)(d) of the
Prevention of Food Adulteration Act.
11 judg. rev.52.11.odt
(iv) Bail bonds of the applicant-accused
stand cancelled.
(v) In the circumstances of the case no
order as to costs.
(vi) Rule is made absolute in the aforesaid
terms.
ig JUDGE
Deshmukh
