Shri Santoshkumar Ramchadnra ... vs The State Of Maharashtra
2017 Latest Caselaw 5695 Bom

Judgment

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                                        1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

      CRIMINAL REVISION APPLICATION NO.58 OF 2005

Shri Santoshkumar Ramchandra Rathi,
Aged about 35 years, 
R/o Namdeo Ward No.16, Malgujari
Pura, Tahsil and District Wardha.           ..... Applicant.

                                 ::   VERSUS   ::

The State of Maharashtra,
Through Mr. S.P. Nandanwar,
Food Inspector, Food and Drug
Food and Drug Administration,
Wardha, Tahsil and District Wardha.           ..... Non-applicant.

================================================================
          None for the applicant.
          Mrs. K.R. Deshpande, Addl.P.P. for the non-applicant/State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : AUGUST 7, 2017.



ORAL JUDGMENT

1. None for the applicant. Learned Additional Public

Prosecutor Mrs. K.R. Deshpande appears for the non-

.....2/-

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applicant/State.

2. By this criminal revision application, the

applicant is challenging judgment and order of conviction

passed by learned Chief Judicial Magistrate First Class at

Wardha on 17.9.1999 in Regular Criminal Case No.210 of 1993,

by which the present applicant was convicted for the offence

punishable under Section 16(1)(a)(i) and 16(1)(a)(ii) of the

Prevention of the Food Adulteration Act, 1954 (for short, "the

said Act"). On such conviction, the present applicant was

directed to suffer rigorous imprisonment for 3 months and to

pay a fine of Rs.1000/- and in default of payment of fine

amount to suffer rigorous imprisonment for 1 month.

3. An appeal, which was carried by the applicant

bearing Criminal Appeal No.30 of 1999, was dismissed by

learned Sessions Judge at Wardha vide his judgment dated

.....3/-

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10.3.2005.

4. This Court, vide order dated 15.3.2005, admitted

the present criminal revision application and released the

present applicant on bail.

5. In absence of learned counsel for the applicant,

with assistance of learned Additional Public Prosecutor Mrs.

K.R. Deshpande for the non-applicant/State, I have gone

through the record and proceedings.

Few facts will be necessary for just decision in the

present case.

6. PW1 Shri Sudam Paikuji Nandanwar was

appointed as Food Inspector under Gazette Notification

Exhibit 14 dated 20.11.1984 so also further Notification

published in the Government Gazette Exhibit 15 on 21.10.1993

for Wardha.

.....4/-

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7. On 6.8.1992, Food Inspector Shri Sudam

Nandanwar visited a commercial establishment known as

'Rathi Tea Company at Wardha' along with PW3 pancha Dilip

Hargovindas Dron, who did support the prosecution. At the

time of visit of Food Inspector Shri Sudam Nandanwar, the

present applicant was present in the premises and was

conducting business. Food Inspector Shri Sudam Nandanwar

disclosed his identity and explained that he wished to inspect

the shop and wished to obtain samples of food articles stored

in the shop for sale. Inspection report Exhibit 16 was

prepared. He noticed that the applicant had stored about 10

Kilograms of Tea in open Gunny Bag and some packets of

'Umang Brand Tea'. He took samples on dry clean paper,

which was blank, which was supplied to him by the present

applicant at the request of Food Inspector Shri Sudam

Nandanwar. After purchase of samples, he paid amount and

.....5/-

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obtained receipt Exhibit 17. Thereafter, he issued a copy of

Form No.VI Exhibit 18 to the present applicant. He also

issued a Notice Exhibit 19 under Section 14-A of the said Act.

8. Thereafter, Food Inspector Shri Sudam

Nandanwar divided quantity of 450 Kilograms loose Tea in 3

equal parts and each part of loose Tea was put in separate dry

clean and empty containers. Then, he put the paper slips

issued by the Local Health Authority at Wardha bearing Code

No.WRD/24/ND at serial No.2324. The same were sent to

Public Analyst at Nagpur which was received by the said

office on 10.8.1992.

9. The Public Analyst at Nagpur gave its report

Exhibit 36 on 17.9.1992. He found that the sample of Tea

powder was not contaminated or it was not found to be

adulterated of any foreign material.

.....6/-

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10. The matter could have been stopped there.

However, the Assistant Commissioner, Local Health Authority

at Wardha sent the remaining samples to Public Analyst at

Pune on 20.10.1992. The Public Analyst at Pune gave its

report Exhibit 31. According to the said report, the sample of

Tea was having Iron Filling PPM.

11. Thereafter, consent Exhibit 39 was given by the

Joint Commissioner (Nagpur Division), Food & Drugs

Administration, Maharashtra State, Nagpur and the present

applicant was prosecuted on the complaint presented by Food

Inspector Shri Sudam Nandanwar.

12. Learned Additional Public Prosecutor Mrs. K.R.

Deshpande for the non-applicant/State submits that no fault

can be attributed to the Local Health Authority at Wardha in

sending another samples for analysis in view of provision of

.....7/-

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Sub-section (2-E) of Section 13 of the said Act. She submits

that once the said right was exercised by the Local Health

Authority and upon that when the Public Analyst at Pune

gave report Exhibit 31, which clearly shows that sample of

Tea was found to be having foreign material namely Iron

Filling. She also submits that this particular aspect was

correctly evaluated by the Appellate Court. Therefore, she

submits that there is no merit in the present criminal revision

application and the same be dismissed.

13. Undisputedly, samples were sent to two different

Public Analysts; (i) at Nagpur, and another at Pune.

Report Exhibit 36 of the Public Analyst at Nagpur

shows that sample at serial No.2324 concerning about the

present applicant is clean sample, whereas report Exhibit 31

of the Public Analyst at Pune is having Iron Filling.

.....8/-

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14. Report Exhibit 36 of the Public Analyst at Nagpur

is dated 17.9.1992. The said report shows that samples were

received on 10.8.1992 by the office of the Public Analyst at

Nagpur from the Food Inspector at Wardha.

Report Exhibit 31 of the Public Analyst at Pune is

dated 19.11.1992. The said report shows that sample at serial

No.2324 was received by the office of the Public Analyst at

Pune from the Assistant Commissioner, Local Health

Authority at Wardha.

15. The evidence of PW2 the Assistant Commissioner,

Food and Drugs Administration at Wardha Shri Baban

Baburaoji Gayki shows that he received the report of the

Public Analyst at Nagpur on 19.9.1992. According to his

evidence, the report of the Public Analyst at Nagpur shows

that Tea powder was genuine and reported to have standard

.....9/-

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and, therefore, he decided to send another sealed packet to

another Public Analyst for re-analysis and it was sent by him

on 22.9.1992.

16. Sub-section (2-E) of Section 13 of the said Act,

reads as under:

"Section 13. Report of Public Analyst.-- [(1) The Public Analyst shall deliver,......... ........

(2-E). If, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.]"

From the said provision, it is clear that the power

.....10/-

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is vested with the Local (Health) Authority to send other part

of samples to any other Public Analyst for analysis.

17. Aforesaid provision of Sub-section (2-E) of Section

13 of the said Act opens with, if, after considering the report,

if any, of the Food Inspector or otherwise, the Local (Health)

Authority is of the opinion that the report delivered by the

public analyst under sub-section (1) is erroneous, the said

Authority can send the sample for re-analysis to any other

public analyst.

18. Thus, for exercising powers under Sub-section (2-

E) of Section 13 of the said Act, firstly there should be a report

of a Public Analyst given under Sub-section (1) of Section 13 of

the said Act and it should be before the Authority. Once that

report is before the Local Health Authority and if the

Authority is of the opinion that the report is erroneous, the

.....11/-

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said Authority can send the other sample for re-analysis.

19. In the present case, report Exhibit 36 of the Public

Analyst at Nagpur was before PW2 the Assistant

Commissioner, Food and Drugs Administration at Wardha

Shri Baban Baburaoji Gayki on 19.9.1992. According to the

evidence of Shri Baban Gayki, he decided to send report of the

Public Analyst at Nagpur for showing Tea power is upto

standard and genuine. Shri Baban Gayki is totally silent in

his evidence that after perusing report Exhibit 36 of the

Public Analyst at Nagpur, it was his opinion that the said

report is erroneous.

20. Further, merely stating from the witness-box that,

according to the Local Health Authority, the report is

erroneous is his opinion, is not sufficient. There should be a

contemporaneous document duly recorded by such a Local

.....12/-

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Health Authority pointing out reasons as to why he is forming

an opinion that the report of a Public Analyst, which he had

received under Sub-section (1) of Section 13 of the said Act, is

erroneous one. The powers given to the Local Health

Authority, in my view, are not unfettered powers. However,

for exercising the said powers, firstly it is obligatory on the

part of a Local Health Authority to record a reason as to why

he is noticing the report is erroneous. In the present case,

nothing such has happened.

21. Further, the evidence of PW1 Food Inspector Shri

Sudam Nandanwar shows that he did not receive any letter

from the Local Health Authority at Wardha to show that the

report of the Public Analyst at Nagpur was erroneous. He also

admitted in his evidence that the Public Analyst at Pune was

also not made available of the report from the Public Analyst

.....13/-

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at Nagpur. I am of the view that the Local Health Authority at

Wardha has committed a mistake in sending the other sample

for re-analysis to the Public Analyst at Pune.

22. In view of the aforesaid, I am of the view that two

different Public Analysts' reports are available on record, one

absolves the present applicant and another points out

adulteration. However, the procedure for sending the sample

to another Public Analyst, was not followed. Therefore, the

present criminal revision application is required to be

allowed. Hence, I pass the following order:

O R D E R

i) The criminal revision application is allowed.

ii) Judgment and order of conviction passed by

learned Chief Judicial Magistrate First Class at

.....14/-

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Wardha on 17.9.1999 in Regular Criminal Case

No.210 of 1993 together with judgment and order

passed by learned Sessions Judge at Wardha on

10.3.2005 in Criminal Appeal No.30 of 1999 are

hereby quashed and set aside.

iii) The applicant is acquitted of the offence

punishable under Section 16(1)(a)(i) and 16(1)(a)

(ii) of the Prevention of the Food Adulteration Act,

1954.

iv) The Bail Bonds of the applicant stand

cancelled.

JUDGE

!! BRW !!

...../-