The State Of Maharashtra vs Gaus Mohammad Mustafa Pathan
2017 Latest Caselaw 5061 Bom

                                             1                    908 Cr.Apeal 1011-2002.doc

Sequeira

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 1011 OF 2002

State at the instance of
Shri R.P.Sawant,
Food Inspector, FDA, Pen,
Dist.Raigad.                                       .. Appellant

                     Vs

Gaus Mohammad Mustafa Pathan,
r/o Pali, Post Pali, Tal. Sudhagad,
Dist. Raigad.                                      .. Respondent



Mr.S.V.Gavand- APP, for the Appellant-State.

Mr.Suresh K. Mali a/w Mr.Vishnu L.Chaudhari, for Respondent
No.1.

                                          Coram : N.M.Jamdar, J.

Date : 26 July 2017.

Oral Judgment :

By this Appeal, the State of Maharashtra through the Food Inspector, has challenged the order of acquittal dated 29 May 2002 passed by the Judicial Magistrate, First Class, Pali, District Raigad in Regular Criminal Case No.14 of 1993.

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2. The Respondent is an owner of an establishment called M/s Samrat bakery and general stores at Pali, Taluka Sudhagad in District Raigad. A complaint was filed against the Respondent in the Court of Judicial Magistrate, First Class, Pali under section 7(A) of Prevention of Food Adulteration Act, 1954 read with Rule 23 and 29 of Prevention of Food Adulteration Rules, 1955 by the Food Inspector of District Raigad.

3. It was the case of the Complainant that, the Complainant along with the other independent witnesses visited the establishment of the Respondent-accused on 13 October 1992. The Respondent- accused was present and was engaged in business of manufacture, sale, storage of bakery products. According to the Complainant, 1,500 gms. of 'toast' was purchased from Respondent-accused, the samples were obtained, which were divided into three equal parts, and stored in clean, dry polythene bags. Samples were sent for analysis, after following the due process. The report from the Public Analyst was received on 5 November 1992. The report stated that the sample contravened Rule 29 of the Prevention of Food Adulteration Rules, 1955. It was stated in the report that the sample contained colouring matter 'Sunset colour FCF and Tatrazine'. After seeking due sanction, the complaint was filed.

4. Charge was framed by the learned Magistrate under section 7(v) r.w rules 23 and 29 of the Rules. On behalf of the

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Appellant-Complainant, the Complainant panch witness led oral evidence. The documentary evidence was produced on record. The learned Magistrate concluded that the Complainant- Food Inspector was not authorised since he did not have the requisite qualification; due procedure as contemplated under section 11 of the Act was not followed; and that Sanctioning authority was not examined. The learned Magistrate accordingly acquitted Respondent-accused by the judgment and order dated 29 May 2002.

5. Heard Mr.Gavand, learned APP for Appellant-State and Mr.Mali, learned Advocate for the Respondent.

6. Mr.Gavand, learned APP submitted that the findings of the learned Magistrate that the Complainant, the Food Inspector was not qualified and that a photo copy of the official gazette is not valid, are not correct. He submitted that once the Complainant was duly appointed and gazette was placed on record, the learned Judge could not have then further probed into his qualifications. The learned APP submitted that complaint has to be filed after the approval of the concerned authority under section 20 of the Act and once such approval / sanction has been granted, it is not necessary that the authority should be examined. He submitted that the finding that the procedure was not followed is incorrect, as in the complaint and in examination-in-chief, the Complainant has stated how the samples were drawn and sent to the Public Analyst.

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7. The learned counsel for the Respondent-accused supported the impugned order and submitted that qualification of the Complainant - Food Inspector is a relevant consideration and the finding that the procedure is not followed, is correct. He submitted that 'toast' is also a bakery product and therefore use of food colour in bakery products such as biscuits is not prohibited under the rule 29 of the Rules. He also drew attention to the amended Rule 28 of the Rules.

8. As regards the findings of the learned Magistrate that the Food Inspector was not qualified, I do not think it was necessary for the learned Magistrate to venture into that arena once appointment order and gazette notifications were placed on record. However it is not necessary to delve further on this aspect, as there are other points which are sought to be urged by the learned counsel for the Respondent-accused in support of the order of acquittal. Similar is the position regarding the point about the examination of the Sanctioning Authority. Once the sanction / approval was placed on record, unless there was a challenge or prejudice established, the non- examination of the authority could not have been held to be fatal to the prosecution case. However, it is also not necessary to finally conclude on this issue, in view of the finding of the learned Magistrate on the merits of the case and the lack of due procedure.

9. Respondent-accused has been charged for violation of

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rules 23 and 29 of the Rules read with section 7(v) of the Act. Section 7(v) states that no person by himself or by any person on his behalf manufacture for sale, store, sell or distribute any article in contravention of any Rules made under the Act. The Rules which are alleged to have been contravened are Rules 23 and 29. These rules read as under -

'23. Unauthorised addition of colouring matter prohibited - The addition of a colouring matter to any article of food except as specifically permitted by these rules is prohibited.

*****

29. Use of permitted synthetic food colours prohibited. - Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited -

(a) Ice-cream, milk lollies, frozen dessert, flavoured milk, yoghurt, ice-cream mix-powder;

(b) Biscuits including biscuit wafer, pastries, cakes confectionery, thread candies, sweets, savouries (dalmoth, mongia, phululab, sago papad, dal biji only);

(c) Peas, strawberries and cherries in hermitically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised, or glazed fruits;

(d) Non-alcoholic carbonated and non-carbonated aready to serve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;

              (e)      Custard powder;





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                (f)      Jelly crystal and ice-candy;
                (g)      ....

(h) Flavour emulsion and flavour paster for use in carbonated or non-carbonated beverages only under label declaration as provided in Cl.(13) of sub-rule (ZZZ) of Rule 42 of the Prevention of Food Adulteration Rules, 1955'.

*****

Chapter VI of the Rules deals with colouring matter. Perusal of this Chapter shows that the artificial colouring of a food product is not altogether prohibited, but it has been regulated. Colouring matter of some kind in some type of food articles is not prohibited. Under Rule 29, the use of permitted synthetic food colour is prohibited, except those food articles which are enumerated under the said Rule. The Rule 29(b) deals with biscuit, wafer, pastries, cakes confectionery, etc. The learned counsel for the Respondent-accused has pointed out that the food article in this case which is locally known as 'toast', is in fact a variety of biscuit.

10. Turning now to the procedure adopted by the Complainant. It is the defence of the Respondent-accused that the samples were not properly drawn. In the complaint, the Complainant has asserted that three equal parts of the samples were made and one was sent to the Public Analyst. Section 11 of the Act deals with the procedure to be followed by Food Inspector while sending the samples for analysis. The Food Inspector divides the sample on the

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spot in three parts and then, as prescribed, one part is sent to the Public Analyst and remaining two parts are sent to the Local Health Authority. No position of law is shown that this procedure of making three samples of proportionate nature can be dispensed with in case of allegation of colouring the food articles. It is implicit in this procedure that the three parts are proportionate and the sample which is sent to Public Analyst is proportionate with the other two. While drawing such proportionate samples, the nature of the food article also has to be taken into consideration. The proportionate samples can be drawn using the criterion of weight, number, quantity, etc. Since it was the assertion of the Complainant that three equal parts were made and it was the defence of the Respondent-accused that they were not so made, learned Magistrate had to evaluate the evidence on record on this aspect. The Complainant, in the examination-in-chief, reiterated the contents of the complaint, but in the cross-examination had to admit that it is not stated in the complaint as to in what manner the samples were divided, whether it was by weight, number or quantity. The learned Magistrate rightly observed that the 'Toasts' are not identical to each other. In absence of such evidence, learned Magistrate held that there was serious doubt if valid and correct procedure was followed.

11. The present Appeal is an Appeal against acquittal. Unless the finding of the trial Court is perverse, the appellate court will not readily reverse the order of acquittal. The finding of the learned

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Magistrate cannot be termed as a perverse view.

12. The incident has taken place in October 1992. The Appeal is coming up for hearing after twenty five years of the incident. The report of the Public Analyst states that the toast contained Sunset colour FCF and Tartrazine. It is pointed out that, subsequently by an amendment brought into effect on 4 June 1997, Rule 28 of the Rules has been amended and Tartrazine and Sunset Colour FCF are now permitted synthetic food colours. The 'toast', which is a bakery product, cannot be said to be not akin a biscuit or other confectioneries, making the case of the Appellant, a border line one.

13. Taking over all view of the matter, I do not think that this is a fit case where the order of acquittal needs to be reversed. Appeal is accordingly dismissed.

(N.M.Jamdar, J.)