Bombay High Court
The State Of Maharashtra vs Rajkumar Bakelal Gupta & Ors on 23 September, 2016
Bench: Prakash Deu Naik
1 of 14 Apeal.143.1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.143 OF 1997
The State of Maharashtra
through A.J.Khatavkar, Food Inspector,
Food and Drug Administration (MS),
Mhatre Building, Pen, District Raigad Appellant
versus
1. Rajkumar Bakelal Gupta (Vendor),
person in-charge at the time of sampling of
M/s.Maruti General Stores,
At Post Aapta, Tal.Panvel, Dist.Raigad.
2. Radhesham Mevalal Gupta,
License Holder and proprietor of
M/s.Maruti General Stores,
At Post Aapta, Tal.Panvel, Dist.Raigad. Respondents
Mr.K.V.Saste, Assistant Public Prosecutor, for Appellant.
None present for Respondents.
CORAM : PRAKASH D. NAIK, J.
Date of reserving the judgment : 16 August 2016
Date of pronouncing the judgment : 23 September 2016
JUDGMENT :
1. This appeal is preferred by the State by invoking Section
378(1) of Code of Criminal Procedure, 1973 (`Code') against the
judgment and order of acquittal dated 30 October 1996 passed by
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Judicial Magistrate, First Class, Panvel in Regular Criminal Case
No.74 of 1994. Respondent nos.1 and 2 were the accused who were
prosecuted before the said Court in the said proceedings.
2. Brief facts of the prosecution case are as follows :
(a) The complainant is a duly appointed Food Inspector who
was authorised to institute the complaint. Accused no.1 is a vendor
in-charge of M/s.Maruti General Stores at village Aapta from whom
the sample of food article "refined Soybean Oil" was collected.
Accused no.2 is the license holder and proprietor of M/s.Maruti
General Stores;
(b) On 19 May 1993, the complainant Mr.Khatavkar visited
the premises viz. Maruti General Stores. Accused no.1 was found in-
charge of the shop and he was selling food articles. The complainant
disclosed his identity and intention of drawing food samples for test
and analysis. The complainant accordingly purchased 450 gms of
Soyabean Oil kept in a unlabelled tin for sale. The sample was
divided into three parts and rapped in seal by following relevant
procedure;
(c) The complainant forwarded one sealed part of the
sample to the Public Analyst, Public Health Laboratory, Pune by hand
delivery on 20 May 1993 along with necessary forms as per rules.
The remaining two samples were sent to local health authority on 20
May 1993 by hand delivery;
3 of 14 Apeal.143.1997
(d) The complainant received original copy of report of
Public Analyst through local health authority on 16 June 1993. The
report revealed that food sample drawn from accused on 19 May
1993 is adulterated within the meaning of Section 2(ia)(a), (b), (c)
and (h) of The Prevention of Food Adulteration Act, 1954 (`the said
Act');
(e) The complainant processed the papers and forwarded
the same to the Joint Commissioner, Food and Drugs Administration,
Konkan Division for obtaining sanction for prosecution. After
receiving the papers, the authority accorded sanction for prosecution
against both the accused for an offence punishable under Section
7(i) read with Sections 2(ia)(a), 2(ia)(b), 2(ia)(c) and 2(ia)(h)
punishable under Section 16 of the said Act;
(f) The complainant lodged the complaint in the Court on
15 March 1994. On 16 March 1994, the complainant through
Assistant Director, FDA, Pen issued notices to both the accused under
Section 13(2) of the said Act and informed them about filing of the
complaint. By the said notices, accused were called upon to exercise
their right to get the sample analysed from the Director, Central Food
Laboratory, Gaziabad;
(g) The Judicial Magistrate, First Class,sent a sample to the
Central Food Laboratory, at Gaziabad (`CFL Gaziabad') for analysis
on the application of the accused. It was received by the CFL,
Gaziabad on 11 January 1995 and the analysis report was received
on 18 February 1995.
4 of 14 Apeal.143.1997
3. A charge was framed against the accused on 17 August 1996
for offences under Sections 7(i) read with Sections 2(ia)(a), 2(ia)
(b), 2(ia)(c) and 2(ia)(h), punishable under Section 16 of The
Prevention of Food Adulteration Act, 1954.
4. The prosecution examined the complainant as PW no.1 and
the panch for the seizure as PW no.2. The panch has not supported
the prosecution case and was declared hostile. On completing the
evidence, the statement of the accused was recorded under Section
313 of the Code. The JMFC by judgment and order dated 30
October 1996 acquitted both the accused of all the charges. The
State has preferred present appeal against the said judgment and
order of acquittal.
5. The prosecution examined the complainant Mr.Anant
Khatavkar as PW no.1 and Mr.Arun Durgavale (Panch) as PW no.2.
The complainant (PW no.1) has deposed that he was appointed as
Food Inspector in Food and Drug Administration (F.D.A.) on 19 May
1993. He visited M/s.Maruti General Stores at village Aapta,
Tal.Panvel. He was accompanied by panch witness. Accused no.1
was selling food articles in the said shop. He came across a tin
containing refined Soybean Oil without any label or brand. The said
oil was stored for the purpose of sale. The witness purchased 450
gms. of Soyabean oil from the said accused. He preserved the
sample of Soybean oil in bottles. A panchanama was drawn in the
presence of panch. He forwarded one sealed bottle sample of the
said oil to the Public Health Laboratory, Pune. On 20 May 1993, he
5 of 14 Apeal.143.1997
sent a specimen of seal impression along with a copy of Form-7 in a
sealed envelope to the public analyst with covering letter. He further
stated that two samples were sent to local public health authority on
20 May 1993. On 2 July 1993, he received analysis report from local
health authority. The report indicated presence of castor oil in the
Soyabean oil. Therefore, the oil sealed by the accused was not up to
the standard and it was adulterated. On inquiry, it was revealed that
accused no.2 is the proprietor of the said shop. The complainant
thereafter forwarded documents to the Assistant Commissioner, FDA,
Pen. He was directed to file a complaint against both the accused
vide consent order issued by Joint Commissioner, FDA, Pune.
Thereafter he lodged the complaint against both the accused. He
further stated that after filing the complaint, by letter dated 15
March 1994, he informed LHA, Pen about filing of the complaint
against the accused. The local health authority produced the
samples in the Court. The same were sent to CFL, Gaziabad on the
application of the accused. The report was received from the said
Lab in a sealed envelope. The said witness was cross examined by
the defense. In the cross examination, it was stated by PW no.1 that
for want of receipt of sanction letter, there was delay in filing the
complaint in the Court. There is a delay of about nine months. He
admitted that after sending the proposal to FDA for sanction, he did
not pursue the matter. The sanction letter did not specify the
documents/case papers perused for the purpose of grant of sanction.
The sanction letter does not mention the time and quantity of the
sample. He further stated that the CFL, Gaziabad had received the
sample on 11 January 1995. Certificate of analysis was issued on 28
February 1995.
6 of 14 Apeal.143.1997
PW no.2 who was examined as a panch witness for the
inspection and seizure conducted by PW no.1, has not supported the
prosecution case. The witness was declared hostile by the
prosecution and was cross examined. However, evidence of the said
witness was not supporting the prosecution.
6. The chronology of the events which led to the prosecution, can
be summaried as follows :
1 19.5.1993 The incident of seizure had taken place.
ig 450 gms. Of Soybean oil was purchased
and samples were obtained on the same
day.
2 20.5.1993 One part of samples was forwarded to
public analyst by hand delivery and two
samples were forwarded to local health
authority by hand delivery (Exh.85)
3 16.6.1993 The public analyst submitted his report.
It was opined that the sample contains
Caster Oil and was adulterated (Exh.94).
4 09.07.1993 Documents forwarded to Local Health
Authority for referring it to Commissioner
for obtaining consent for prosecution
(Exh.97).
5 16.2.1994 Letter by Assistant Commissioner, FDA
enclosing consent of Joint Commissioner
for prosecution.
6 15.3.1994 The complainant was directed to file a
complaint, which was filed on 15.3.1994.
7 16.3.1994 Notices were issued to the accused under
Section 13(2) of the Act.
7 of 14 Apeal.143.1997
8 16.4.1994 Application by accused to Court for
sending the samples to CFL, Ghaziabad.
9 21.10.1994 Requisition by Court to produce the
sample.
10 14.11.1994 Sample produced in Court.
11 29.11.1994 The JMFC forwarded a sample to CFL,
Gaziabad for analysis.
12 11.1.1995 The sample was received by CFL on 11
January 1995.
13 28.2.1995
ig The CFL, Gaziabad forwarded its report
(Exh.106).
7. On completing the evidence, statement of the accused was
recorded and thereafter the Trial Court acquitted both the accused.
During the pendency of this appeal, this Court issued a bailable
warrant against Respondent no.2 vide order dated 15 June 2016.
The Police Inspector, Rasayani Police Station has submitted a report
dated 11 July 2016 to this Court that Respondent no.2 (accused
no.2) was reported to be dead. A photostat copy of the death
certificate is also placed on record. In the said certificate it is stated
that Respondent no.2 Radhesham Mevalal Gupta has expired on 21
September 2011. The JMFC, Panvel vide report dated 27 July 2016
intimated to the Assistant Registrar of this Court about report
submitted by police to this Court and also enclosing the photostat
copy of the death certificate of Respondent no.2. In view of the
aforesaid circumstance, the appeal as against Respondent no.2
(Accused no.2) stands abated.
8 of 14 Apeal.143.1997
8. The prosecution and the defense advanced arguments after
completion of recording of evidence. Learned prosecutor before the
Trial Court submitted that the prosecution has proved its case and
the accused deserves to be convicted. Learned advocate for the
accused raised several contentions and submitted that the
prosecution has failed to establish its case and the accused deserves
to be acquitted. It was submitted that the Food Inspector has not
properly followed the procedure while collecting the samples. The
Trial Court has not accepted the said submission which is apparent
from the reasons given in paragraph 7 of the judgment. The defense
further submitted that the Food Inspector did not steer the Soyabean
oil and, therefore, the sample is not refined oil. It was also
submitted that there is non application of mind on the part of the
authority granting permission for prosecution. Both these
submissions were also rejected by the Trial Court by giving cogent
reasons. It was further submitted that the report of the public
analyst is not in accordance with the procedure. It was submitted
after about one month. It was also submitted that there is no
compliance of Section 13(2) of the said Act. The Trial Court,
however, recorded a finding that till the filing of the complaint, there
was no fault on the part of authorities in compliance of the
procedural safeguards.
9. The Trial Court, however, observed that the provisions of
Section 13(2) of the Act, so far as they relate to the time stipulated
for sending the report of analysis by the Director, CFL, Gaziabad, are
not followed. The certificate issued by the public analyst cannot be
9 of 14 Apeal.143.1997
considered. As per Section 13(3) of the Act, the certificate issued by
the Director of CFL under sub section (2B) of Section 13 shall
supersede the public analyst's report. It was further observed that
under Section 13(2B) of the Act, it is the duty of the Court that, on
receipt of the part or parts of the sample from the Local Health
Authority under sub-section (2A), the Court shall first ascertain that
the mark and seal or fastening as provided in clause (b) of sub-
section (1) of Section 11 are intact and the signature or thumb
impression, as the case may be, is not tampered with, and dispatch
the part or, as the case may be, one of the parts of the sample under
its own seal to the Director of the Central Food Laboratory who shall
thereupon send a certificate to the Court in the prescribed form
within one month from the date of receipt of the part of the sample
specifying the result of the analysis.
10. It was further observed that under Rule 4, sub-rule (1) of The
Prevention of Food Adulteration Rules, 1955 (`the said Rules'), the
samples of food for analysis under sub-section (2) of Section 13 of
the Act shall be sent either through a Messenger or by registered post
in a sealed packet, enclosed together with a memorandum in Form-I
in an outer cover addressed to the Director. Sub-rule (2)of Rule 4
requires the container as well as the outer covering of the packet
shall be marked with a distinguishing number; and under sub-rule
(3) of Rule 4, a copy of the memorandum and a specimen impression
of the seal used to seal the container and the cover shall be sent
separately by registered post to the Director. Sub-rule (4) of Rule 4
requires the Director or an officer authorized by him to compare the
seals on the container and the outer cover with specimen impression
10 of 14 Apeal.143.1997
received separately and shall note the condition of the seals thereon.
Section 13(2) of the Act provides a right to the accused to make an
application to the competent Court within ten days from the letter
received by him from Local Health Authority communicating the
accused copy of report of the result of the analysis, to send the
sample of the article of food already tested by Local Health Authority
along with report to Central Food Laboratory.
11. It is further observed by the Trial Court that the complaint is
filed within stipulated time on 15 March 1994 and notices were also
sent in time on 16 March 1994. The accused preferred an
application for sending the sample to the CFL on 16 April 1994. The
samples were dispatched on 29 November 1994. The samples
appears to have been produced in the Court on 14 November 1994.
Sub-section (2A) of Section 13 provides that the local health
authority is required to forward the parts of sample to Court within a
period of five days from the date of receipt of such requisition. The
Court further observed that from Roznama dated 31 October 1994, it
appears that the requisition was sent on 21 October 1994 and the
part of sample was produced in the Court on 14 November 1994.
Therefore, it is clear that there is non compliance of Section 13(2A)
of the Act. Sub-section (2B) of Section 13 is also not complied with
by CFL which was required to send its report within one month from
the receipt of sample for analysis. This is borne out from the report
Exhibit-106. It is stated that the sample of refined oil was received
on 11 January 1995 with memorandum dated 29 November 1994
from the Court and was found fit for analysis and has been analysed.
The report Exhibit-106 was dated 28 February 1995. Therefore, it is
11 of 14 Apeal.143.1997
clear that same was not forwarded within one month from the date
of its receipt.
12. The learned advocate for the accused placed reliance upon the
decision in the case of Jayantilal Suratwala and another Vs. State of
Maharashtra (1985)2-BCR-287. In the said decision it was observed
that finality of the certificate issued by the CFL can be considered on
the compliance of mandatory requirement of Section 13(2B) of the
Act and Rule 4 of the Rules. The Trial Court further placed reliance
upon the decision in case of Gopinath Mote Vs. State of Maharashtra
reported in (1980)(1)-Prevention of Food Adulteration Cases-page
112; and the decision in the case of State of Maharashtra Vs.
Omprakash Agarwal reported in 1983(2)-BCR-572. Reliance was
also placed on the decision in case of Mohanlal Vs. State of Haryana
reported in 1984-All India Prevention of Food Adulteration Journal-
385. In the said case, the sample was analysed by the Director, CFL
after one month and two days and there was violation of Section
13(2B) of the Act, which had resulted into acquittal of the accused.
The Trial Court, therefore, acquitted the accused primarily on the
ground of contravention of mandatory provisions contained in
Section 13(2A) and (2B) of the Act and Rules made thereunder.
13. I have perused the evidence on record. The prosecution case is
based upon seizure conducted on 19 May 1993. The prosecution has
relied upon several documents. The Act stipulates the procedure
which is required to be followed by the authorities and non
compliance of the mandatory safeguards would obviously give
benefit of doubt to the accused. The main issue involved in the
12 of 14 Apeal.143.1997
prosecution is about adulteration of food articles seized by the Food
Inspector. While prosecuting the accused, it has to be proved that all
requisite procedural safeguards are complied with, with a view to
come to the conclusion that the sample seized from the food vendor
is adulterated. Section 13 of the Act relates to the report of Public
Analyst. As per Section 13(1) of the Act, the Public Analyst shall
deliver in such form as may be prescribed, a report to the local health
authority of the result of analysis of the article of food submitted to
him for analysis. As per Section 13(2), on receipt of report of the
result of analysis under sub-section 1 to the effect that the article of
food is adulterated, the local health authority shall, after institution
of the prosecution against the persons from whom the sample of
article of food was obtained, forward in such manner as may be
prescribed, a copy of the report of the result of the analysis to such
person/s informing them that if it is so desired, they may make an
application to the Court within a period of ten days from the date of
receipt of a copy of the report to get the sample of the article of the
food kept by the local health authority analysed by the CFL. As per
sub-section (2A) of Section 13, when an application is made to the
Court under sub-section (2) of Section 13, the Court shall require the
local health authority to forward the part or parts of the sample kept
by the said authority and upon such requisition being made, the said
authority shall forward the part or parts of the sample to the Court
within a period of five days from the date of receipt of such
requisition. As per sub-section (2B) of Section 13, on receipt of the
part or parts of the sample from the local health authority under sub-
section (2A), the Court shall first ascertain that the mark and seal or
fastening as provided in clause (b) of sub-section (1) of Section 11
13 of 14 Apeal.143.1997
are intact and the signature or thumb impression, as the case may be,
is not tampered with, and dispatch the part or, as the case may be,
one of the parts of the sample under its own seal to the Director of
the Central Food Laboratory who shall thereupon send a certificate to
the Court in the prescribed form within one month from the date of
receipt of the part of the sample specifying the result of the analysis.
As per sub-section (2D), until the receipt of the certificate of the
result of the analysis from the Director of the CFL, the Court shall not
continue with the proceedings pending before it in relation to the
prosecution. As per Section 13(3), the certificate issued by the
Director of CFL under sub-section (2B) shall supersede the report
given by the public analyst under sub-section (1).
14. From the aforesaid provisions, it is apparent that it is the right
of an accused under Section 13(2B) of the said Act to get the sample
analysed by CFL by filing an application on receipt of notice of filing
a complaint. In the present case, the complaint was filed on 15
March 1994. The notices were issued to the accused. The accused
preferred an application for sending the sample to CFL. The sample
was produced in the Court on 14 November 1994 and the same was
dispatched on 29 November 1994. It is also clear that as per Section
13(2A) of the Act, the local health authority has to forward the
sample to the Court within a period of five days from the date of
receipt of requisition. The requisition was send to the local health
authority on 21 October 1994 and the sample was produced in Court
on 14 November 1994. Therefore, there is violation of Section
13(2A) of the said Act. The report of CFL was received on 28
February 1995. The report was not sent by the CFL to the Court
14 of 14 Apeal.143.1997
within one month from the date of receipt of sample specifying the
result of analysis. Hence, there is non compliance of Sections 13(2B)
of the Act, which vitiates the prosecution initiated against the
accused and they deserve to be acquitted. The report of Central Food
Laboratory superseded over the report of Public Analyst. In the
event of non compliance of Sections 13 (2A) and 13(2B), the said
report cannot be relied upon which would affect the right of accused.
Hence, I find that the finding given by the Trial Court does not
require any interference and the Trial Court has rightly acquitted the
accused. The appeal preferred by the State, therefore, fails and the
judgment and order of the Trial Court deserves to be confirmed.
15. Hence, I pass following order :
(a) Criminal Appeal No.143 of 1997 stands abated as against
Respondent no.2 (Accused no.2);
(b) Criminal Appeal No.143 of 1997 stands dismissed.
(PRAKASH D. NAIK, J.)
MST
