Bombay High Court
State Of Mah. Thr.L.Z. Taksande ... vs Shri Vilas Madhaaorao Tundulwar on 24 August, 2017
Bench: Swapna Joshi
1 Judg. 240817 apeal 372.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.372 of 2003
State of Maharashtra,
through L.Z. Taksande, Food Inspector,
Food and Drugs Administration, M.S. Durgapur road,
Tukum, Chandrapur. .... Appellant.
-Versus-
Vilas Madhaorao Tundulwar,
aged 40 years, Vendorsdf and Proprietor of
M/s Madhao Kirana Stores,
Gujari Ward, Bramhapuri,
Tq. Bramhapuri, Distt. Chandrapur. .... Respondent.
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Mrs. S.Z. Haider, Additional Public Prosecutor for State.
Mr. V.A. Laghate, Counsel for respondent.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 24
August, 2017.
ORAL JUDGMENT
The State has preferred the present appeal against the
judgment and order passed by the learned Judicial Magistrate First Class,
Bramhapuri in Regular Criminal Case No.68 of 2000 dated 18-12-2002,
thereby acquitting the accused for the offences punishable under Section
7(i) read with Section 2(ia)(a) punishable under Section 16(1)(a)(ii)
Section 7(i) read with Section 2(ia)(m) punishable under Section 16(1)(a)
(i) of the Prevention of Food Adulteration Act, 1954 and Rules thereunder.
2 Judg. 240817 apeal 372.03.odt
2] I have heard Mrs. S.Z. Haider, the learned Additional Public
Prosecutor for the State and Mr. V.A. Laghate the learned Counsel for the
respondent. I have carefully gone through the record of the case.
3] The facts giving rise to the prosecution case lie in a narrow
compass.
Complainant Laxman Taksande was working at Chandrapur
as a Food Inspector. Accused Vilas was a proprietor and vendor of
M/s Madhao Kirana Stores, Gujari Ward, Bramhapuri, Taluka Bramhapuri,
District Chandrapur. The accused was engaged in selling food articles
including the groundnut oil at the said place. On 04-10-1999, at about
13.30 pm, the complainant along with panchas visited the premises of
M/s Madhao Kirana Stores. The complainant inspected the premises. He
noticed that 10 packed tins of 15 kgs. of Suraj Brand groundnut oil were
kept for sale. He purchased 450 gms. of groundnut oil from the said shop.
The complainant then divided 450 gms. of groundnut oil into three equal
parts and put them in three clean, dry and empty glass bottles. Then he
sealed those bottles by sealing with wax. Each part of the sample was
wrapped in thick brown papers, folded its ends and pasted by means of
gum. The complainant then sent one sealed part of the sample along with
original memorandum in form no.7 to the Public Analyst, State Public
Health Laboratory, Pune for analysis in a sealed pocket by registered post
parcel, on 05-10-1999. On the same date, the complainant sent the
remaining two sealed parts of the sample and two copies of memorandum
in form no.7 along with forwarding letter to the Local Health Authority and
3 Judg. 240817 apeal 372.03.odt
the Assistant Commissioner, Food and Drugs Administration, Chandrapur
by hand delivery. The report was received from the Public Analyst stating
that the sample does not conform to the standards of groundnut oil as per
the provisions of the Prevention of Food Adulteration Rules, 1955
[for short, 'the Rules, 1955']. The prosecution was launched. After
recording of the evidence of the complainant, the charge was framed
against the accused. In support of its case the prosecution examined only
two witnesses and the learned Magistrate after considering the evidence
came to the conclusion that there are infirmities in the prosecution case.
Those infirmities are that, the sample was not representative sample
and the prosecution has not complied with the provisions under Rules 14
and 16 of the Rules, 1955.
4] I have gone through the record of the case. I have heard
Mrs. S.Z. Haider, the learned Additional Public Prosecutor for the State
and Mr. V.A. Laghate the learned Counsel for the respondent.
5] Mr. V.A. Laghate the learned Counsel for the respondent
vehemently argued that the learned trial Judge has rightly come to the
conclusion that the prosecution has not properly prepared the sample.
The sample was not properly stirred and it was not homogeneous and
representative sample. He further contended that as the manner of
sending of the sample for analysis was not proper and the sample was
not collected in a clean vessel, the prosecution has failed to comply with
the Rule 14 of the Rules, 1955. It is further stated that the prosecution
has also failed to comply with the provisions under Rule 16(b) of the
4 Judg. 240817 apeal 372.03.odt
Rules, 1955 as the container was already wrapped in a thick papers and
the ends of the paper were not neatly folded in and affixed by means of
gum or other adhesive.
6] The learned APP contended that the learned trial Judge has
not considered the aspect that the Food Inspector has followed the
provisions of the Rules, 1955.
7] I have carefully gone though the record of the case. It is
noticed that the prosecution has examined two witnesses. However, the
prosecution solely relied upon the testimony of Abhijit (PW-2). PW-2
turned hostile. According to the complainant, he has followed the entire
procedure as contemplated under the Rules, 1955. It is, however, noticed
that in this case the sample was taken by the Food Inspector from the
10 packed tins of 15 Kgs. of Suraj Grand Groundnut Oil. The
panchanama (Exhibit-40) in no manner indicates that the complainant had
cleaned the surface of the tin before taking out the oil from it as a sample.
Admittedly, the capacity of the tin was of 15 Kgs. and the oil in it was of
15 Kgs. The tin was completely filled in by the other oil. In these
circumstances, when the mouth of the tin was opened some part of oil
might have come out & again gone inside, after coming in contact
with the cover tin. There is absolutely no evidence on record to show that
the oil in the tin was stirred thoroughly for making the sample
representative. It is thus noticed that the sample was taken from the tin
and that oil was not stirred. Similarly, the testimony of the complainant
does not throw any light on the aspect that the vessel in which the sample
5 Judg. 240817 apeal 372.03.odt
was taken was washed before using. According to the complainant, he
had taken the sample in a clean, dry and empty vessel. However, the
testimony of the complainant is silent on the aspect that the vessel was
clean.
8] In the case of State of Maharashtra v. Gitaram Kaluram,
reported in 1993(2) Prevention of Food Adulteration Cases 238, this Court
has observed that the sample bottles should be cleaned and dried
before the sample was taken. The panchanama is also silent on the
aspect that the vessel in which sample oil was taken was washed in the
presence of the panchas and the accused. In fact it was necessary to
clean the vessel as the sample was taken for scientific analysis.
Significantly, the sample should be representative because if it is not so,
the subsequent analysis becomes worthless and as the sample was not
representative, the report under certificate would have no evidentiary
value.
9] In unreported judgment of this Court in Criminal Appeal
No.735 of 2003 (State of Maharashtra through Shri A.S. Tayade, Food
Inspector, Food and Drug Administration, Yavatmal, District Yavatmal v.
Shri Lanchand Zaverilal Dungarwal and others), it is observed that, oil
was not stirred so as to get homogeneous and representative sample and
as there was no reliable evidence to show that it was representative
sample, the learned trial Court has rightly arrived at a conclusion that if
the sample is not proved to be representative, the subsequent analysis
report cannot be relied upon. The learned trial Judge has rightly
observed that the Food Inspector has nowhere mentioned that he has
6 Judg. 240817 apeal 372.03.odt
collected stirred sample of groundnut oil.
10] On the ground of breach of Rule 14 of the Rules, 1955,
Mr. V.A. Laghate the learned Counsel for the respondent, invited my
attention to the Rule 14 of the Rules, 1955, which reads as under :-
"14. Manner of sending samples for analysis-
Samples of food for the purpose of analysis
shall be taken in clean dry bottles or jars or in
other suitable containers which shall be closed
sufficiently tight to prevent leakage, evaporation,
or in the case of dry substance, entrance of
moisture and shall be carefully sealed."
11] In this regard, according to the complainant the sample
bottles in which the sample was taken were not cleaned on the spot before
the panchas and the accused. It is to be noted that the panchanama
does not speak of the fact that the bottle was cleaned. Moreover, after
filling the oil in the bottle and cleaning it by lid, the mouth of the bottle was
not sealed. The panchanama (Exhibit-40) indicates that the sample of
groundnut oil which was purchased was divided into three equal parts and
poured in a clean, empty and dry bottle and lid was affixed to it tightly
thereafter the label was pasted by means of gum. Significantly, the
panchanama is silent on the aspect of sealing. According to the
complainant after purchasing the groundnut oil, the samples were divided
in three equal parts and they were put in three cleaned, dry and empty
bottles. Thereafter, the cock of each bottle was sealed and each bottle
was labelled. The ends of the wrapper were folded and pasted.
However, the bare testimony of the complainant on this aspect cannot be
7 Judg. 240817 apeal 372.03.odt
relied upon and it is missing in panchanama (Exhibit-40).
12] This Court in case of Bhojumal Dhanumal Kundal and
another v. Shirpur Warwade Municipal Council, Shirpur and another,
reported at 1986 Cri.L.J. 931 held that, the provisions under Rule 14 of
Rules, 1955 are mandatory and the non compliance of the said Rule will
vitiate the prosecution.
13] With regard to the compliance of mandatory provisions, Rule
16(b) of the Rules, 1955, reads as under :-
"16(b) The bottle, jar or other container shall then be
completely wrapped in fairly strong thick paper. The
ends of the paper shall be neatly folded in and affixed
by means of gum or other adhesive."
14] The complainant before the Court in his deposition stated
that after purchasing the groundnut oil he divided 450 gms of groundnut
oil into three equal parts and put them in three clean, dry and empty
glass bottles. Then he sealed those bottles by sealing with wax. Each
part of the sample was wrapped in thick brown papers, folded its ends and
pasted by means of gum. The complainant has stated that the ends of
the paper were folded & pasted with gum. He has not stated that he
folded ends of the paper 'in' which is mandatory. The complainant has
not stated that he had affixed the ends of the paper of the container by
means of gum.
15] In case of the State of Maharashtra v. Ramesh Shriniwas
Rao, reported in IV-1985 All India Prevention of Food Adulteration Journal
8 Judg. 240817 apeal 372.03.odt
212, it is observed that Rule 16(b) is mandatory and under the said rule
it is mandatory to the Food Inspector to affix the ends of paper of the
container by means of gum or other adhesive and its breach goes to the
root of the matter and the accused be entitled for acquittal.
16] Thus so far as the breach of mandatory provisions under
Rules 14 and 16 of the Rules, 1955 and the fact that the sample was not
representative, it is to be noted that the accused had given sample from
sealed pack of Suraj Brand Groundnut oil which he had obtained from
M/s. P.D.T. Trading Company, Maskasath, Itwari, Nagpur. Significantly, no
action has been taken against the said Company. Thus, in view of the fact
that there was non compliance of Rules 14 and 16(b) of the Rules, 1955,
the accused is entitled for acquittal and the learned trial Judge has rightly
acquitted the accused.
17] The learned trial Judge has appreciated the evidence in right
perspective. There is no illegality or perversity noticed in the judgment
delivered by the Ld. JMFC, Bramhapuri. It is well settled principle of law
that in exercise of its appellate jurisdiction particularly in appeal against
acquittal, it is not open to this Court to substitute its own view with a view
taken by the lower Court, unless the view taken by the lower Court is
illegal, perverse or against the principle of law.
18] There are no sufficient grounds made out by the
appellant/State to interfere with the impugned judgment and order. In
9 Judg. 240817 apeal 372.03.odt
these circumstances, the appeal deserves to be dismissed and
accordingly it is dismissed.
JUDGE
Deshmukh
