Bombay High Court
The State Of Maharashtra vs Kamlesh Satish Herekar & Anr on 2 June, 2017
Bench: Anoop V. Mohta
Shridhar Sutar 1 206-Appeal-589.03.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 589 OF 2003
The State of Maharashtra
(Through Food Inspector, Pune) ... Appellant
(Orig.Complainant)
Versus
1. Kamlesh Satish Herekar,
Vendor & Manager of Alok Restaurant
at 1340, Shivajinagar, Pune
2. Satish Parshuram Herekar,
Proprietor of Alok Restaurant,
1340, Shivajinagar, Pune ... Respondents
(Orig.Accused Nos. 1 & 2)
.....
Mrs. Sharmila Kaushik, APP for the State.
None for the respondents.
.....
CORAM: ANOOP V. MOHTA, J.
DATE : 2nd JUNE, 2017
ORAL JUDGMENT :
1. This is a State Appeal, whereby, challenge is made to
impugned Judgment and order dated 23rd October, 2002 passed
by the Chief Judicial Magistrate, Pune in R.C.C. No. 708 of 2000
whereby the accused have been acquitted of the alleged offences.
2. The accused was prosecuted for having committed the
offences punishable under Sections 7(i) read with Section 2(ia)
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(a), 2(ia)(j) and Rule 29 of the Prevention of Food Adulteration
Rules ( The Rules ), read with Section 7(v) punishable under
Section 16 of the Prevention of Food Adulteration Act, 1954 ( The
Act ).
3. The accused are proprietors of Alok Restaurant, situated at
Shivajinagar, Pune. The complainant - Food Inspector, on 7 th
March, 1998 and on earlier occasion opined that the sample of
Tandoori Chicken contains extraneous synthetic colour in
contravention of Rule 29. However, the case was closed after
giving a warning. On 10th January, 2000, the complainant - Food
Inspector, alongwith a Panch Witness, visited the restaurant again.
Accused No.1, a student/son of the Proprietor, was present as a
vendor, Manager and a person incharge of the premises. The
prosecution case was also that he was selling prepared food
including "Tandoori Chicken". The complainant after disclosing his
identity took sample for the purpose of analysis and specifically
900 gms. of Tandoori Chicken, kept in a Refrigerator. The
complainant gave notice in Form VI under Section 14-A of the Act
and despatched the sample parts as per the Rules. The public
analyst in the report opined that the sample contains extraneous
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food colour and therefore, after obtaining consent from the Joint
Commissioner, FDA, Pune, the complaint was filed on 21 st August,
2000.
4. The charges were read over and as the accused pleaded not
guilty, the trial proceeded accordingly. The statement was
recorded under Section 313 of the Code of Criminal Procedure
(Cr.P.C.) by accused No.1 that he was not working as Manager;
that Tandoori Chicken was half prepared, kept in refrigerator.
Accused No.2 - the Proprietor was not present in the restaurant.
5. The learned Judge, held that the prosecution failed to prove
that on 10th January, 2000, the accused sold Tandoori Chicken
containing the extraneous synthetic food colour and thereby
contravened Rule 29 read with Section 7 punishable under
Section 16 of the Act.
6. Heard learned APP for the State, who read and referred the
evidence and the material so placed on record including the
reasons given by the learned Judge. After considering the
submissions, in my view, no case is made out by the prosecution to
interfere with the acquittal order.
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7. There is evidence on record to suggest that accused No.1
was not serving as Manager in the restaurant. Accused No.2 being
Proprietor was absent when the Food Inspector inspected and took
the sample of the food. The sample, therefore, collected in
absence of the Proprietor, but in presence of his son/student who
was not working as Manager and was not managing the affair. The
same was further supported by the evidence of panch witness
PW3. Such action in breach of rule, is fatal to the prosecution case
even of taking the possession/sample in such fashion. The sample
required to be taken in the presence and on behalf of the Manager,
Proprietor or employees of the restaurant with clear finding that it
was intended for sale. Therefore, as all these elements are absent,
the case as registered against the accused was unsustainable.
8. The sample which was in the refrigerator; and the same was
not fully cooked; and not ready for serving to the customers, such
sample ought not to have taken. There is no contra supporting
material on record. It is necessary for the prosecution to prove
that the sample collected by Food Inspector was ready for sale.
The Chicken was kept in the refrigerator was not even mentioned in
the complaint. The panchnama Exhibit-20 support the same . The
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refrigerated half cooked Chicken cannot be the foundation for
launching of such prosecution. PW3 has not supported the
prosecution case, on the contrary supported the findings given by
the learned Judge.
9. The proper procedure was not followed as recorded in
paragraph No.15 by the complainant - Food Inspector did not
make food article homogeneous. Exhibit-56, even did not show
the weight of the Tandoori Chicken. As per Rule 22, at least 500
gms. Sample was required to be sent for the test analysis. In any
way, it was necessary for the Inspector to take the sample as
required as per the rules. Such non-compliances definitely had
caused injustice to the accused.
10. There is finding given by the learned Judge that the glass
bottle in which the sample was taken, was not cleaned on the
spot. But, it was cleaned one day before taking the sample. Rule
14 which is mandatory, was not followed. PW3 has admitted that
the bottle was not cleaned in his presence. The requirement of
cleaning the bottle and dried before collecting the sample just
cannot be overlooked.
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11. I have also noted, and as recorded by the learned Judge,
which goes to the root that the prosecution filed the complaint
after seven months. This delay must had deteriorated the Chicken.
The valuable rights under Section 32 of the Act to get the analysis
by the Director General, Food was definitely violated. Therefore,
taking overall view of the matter and in view of the above
findings, apart from the reasons given by the learned Judge, no
case is made out by the State to interfere with the order of
acquittal so passed.
Hence the order;
O R D E R
The Appeal is dismissed. No costs.
(ANOOP V. MOHTA, J.)
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