The State Of Maharashtra vs Kiran Ishwarilal Suratwala & Ors
2017 Latest Caselaw 6552 Bom

                                               5 OJ APPEAL 679 OF 2003.doc

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.679 OF 2003.



      The State of Maharashtra                            ]        Appellant

                V/s.

      1. Kiran Ishwarilal Suratwala                       ]
         vendor                                           ]
                                                          ]   Respondents
      2. Shri. Ishwarilal Pranjivandas                    ]   Original
         Suratwala, Proprietor of                         ]   Accused
         M/s K.I. Suratwala & Company,                    ]   Nos. 1 & 2.
         01-A, Navi Peth,                                 ]
         Solapur                                          ]



      Mr. Arfan Sait, APP for Appellant State.
      Mr. Y. B. Purwant I/by Mr. V.V.Purwant for respondent.


                    CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 28th AUGUST, 2017.

ORAL JUDGMENT: [Per : Dr. Shalini Phansalkar-Joshi,J.]

1. This appeal is preferred by the State challenging the

judgment and order dated 30th August, 2002, passed by the Chief

Judicial Magistrate First Class, Solapur in R.C.C. No.255 of 1998,

thereby acquitting respondent Nos. 1 & 2 for the offence punishable

under Section 16(1)(a)(iii) for the contravention of provisions of Section

5 OJ APPEAL 679 OF 2003.doc

7(i) read with Section 2(ia) (a) and 7(v) r/w Rule 29 of the Prevention

of Food Adulteration Act, 1954, (for short called, as "the Act") and the

Rules framed thereunder.

2. Brief facts of the appeal can be stated as follows :-

On 10.11.1992 P.W.1 Food Inspector Londhe visited the

premises of respondent No.1, named and styled as M/s K.I.Suratwala

Pvt. Ltd, situate at 61-A Navi Peth,Solapur. Respondent No.1 was

present in the shop and on enquiry, he informed P.W.1 Food Inspector

Londhe that he was looking after the affairs of shop and selling food

articles like mix -masala supari and scented supari for human

consumption. After disclosing the identity, P.W.1 Food Inspector

Londhe took inspection of the premises and purchased 900 grams of

mix-masala supari and 900 grams scented supari for the price of

Rs.1.89. The collected samples were sent to Public Analyst and on the

receipt of report of Public Analyst that samples were not conforming to

the standards prescribed, after obtaining the sanction for prosecution,

the case was lodged against respondents.

3. In support of the case P.W.1 Food Inspector Londhe has

examined himself and also led evidence of panch witness P.W.3 Salim

5 OJ APPEAL 679 OF 2003.doc

Rangrej and P.W. 2 the sanctioning authority.

4. On appreciation of this evidence, the learned trial Court

was pleased to hold that there was no compliance of the mandatory

provisions and requirements laid down under the Act and accordingly

acquitted both the accused.

5. In this appeal, I have heard learned APP for the appellant

State and learned counsel for the respondents. I have also perused the

entire evidence on record and the impugned judgment of the trial

Court. On perusal of the same and after giving my anxious

consideration to the submissions advanced at Bar by learned counsel

for appellant and learned counsel for respondents, I am of the

considered opinion that in this appeal against acquittal, learned APP

has not succeeded in pointing out any perversity in the impugned

judgment of the trial Court. Hence this Court should restrain itself from

interfering in the said decision. The perusal of the judgment of the trial

Court, shows that the trial Court has assigned legal grounds for

acquittal of the respondents.

6. It can be seen from the evidence on record that at the time

of inspection, admittedly respondent No.2 was not looking after the

5 OJ APPEAL 679 OF 2003.doc

business of the said firm. He was merely a licencee and in view

thereof, the trial Court was pleased to hold that as he was not dealing

with the business in the shop and his signatures were not obtained on

any of the document. When P.W.1 Food Inspector Londhe visited the

shop, respondent No.2 was not present in the shop. Therefore,

respondent No.2 sans any evidence on record connecting with the

business, cannot be held guilty for commission of offence alleged

against him.

7. As regards, respondent No.1, admittedly he was present in

shop when the samples were collected on 10.11.1997. The evidence of

P,.W.1, Food Inspector Londhe, however, goes to show that in the

panchnama Exh.32, the mandatory procedure which is required to be

followed for collecting the samples is not at all mentioned. The

panchnama is silent as to collection of the samples in dry, clean and

empty bottles. The report of Public Analyst as observed by the trial

Court does not bear the date of analysis. Public Analyst is also not

examined on this aspect and therefore, prosecution has not brought

on record the date on which sample was analyzed and in such

circumstances, the report of the Public Analyst loses its evidentiary

value and respondent No.1 cannot be convicted on the basis of the

said report.

5 OJ APPEAL 679 OF 2003.doc

8. There is also one more vital infirmity in the prosecution

case, namely, that the sample was collected on 10.11.1997; whereas

prosecution was launched on 12.10.1998. Thus, there is delay of about

one year. There is also no conclusive evidence to show that the

information about launching of the prosecution was given to the

respondent within 10 days from the date of launching the prosecution,

as is mandatory.

9. Another infirmity which is highlighted by the trial Court in

the prosecution case pertains to the fact that though respondent No.1

has produced the bill which is at Exh.42 under which he has

purchased this supari from Luhadia Enterprises, 1st Boiwada, 2nd floor,

Bhileshwar, Bombay 02, P.W.1 Food Inspector Londhe has failed to

make enquiry with the said Luhadia Enterpries. As respondent No.1

was covered under the warranty, the trial Court has rightly held that

there is breach of provisions of Section 9 (2) of the Act.

10. Thus, the perusal of the reasons given by the trial Court

while acquitting respondents, show these reasons are based on the

proper appreciation of the evidence on record. Hence, in view of

breach of mandatory provisions of the Act and the Rules, the acquittal

of the respondents, for the offence alleged against them, cannot be

5 OJ APPEAL 679 OF 2003.doc

called as perverse so as to warrant any interference therein. The

appeal, therefore, holds no merits and hence stands dismissed.

[DR.SHALINI PHANSALKAR-JOSHI, J.]