The Nagpur Municipal ... vs Vipinchandra Wadilalji ...
2017 Latest Caselaw 2791 Bom

                     Judgment

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                                                            1

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

                                     CRIMINAL APPEAL NO.82 OF 2001

                     The Nagpur Municipal Corporation
                     Through it's Food Inspector,
                     Shri R.H. Mankar.                                       ..... Appellant.

                                                     ::   VERSUS   ::

                     1. Shri Vipinchandra Wadilalji Wakhariya,
                     Aged about : 58 years, Vendor of Janta
                     Oil Industries 63, Garoba Maidan,
                     Nagpur.

                     2. Smt. Labhkunwar Champaklalji
                     Wakhariya, aged about : 78 years,
                     Partner.

                     3. Shri Shailesh Champaklal Wakhariya
                     Aged about : 49 years, partner.

                     4. Smt. Neela Suresh Wakhariya,
                     Aged about : 48 years, partner.
  AS per Court's 
     Order dt. 
11.10.2001 R.No.5 
    is deleted       5. Smt. Chandrika Kirit Wakhariya,
                     Aged about : Partner (Dead)

                     6. The Firm M/s. Janata Oil Industries, 63,
                     Garoba Maidan, Nagpur.                       ..... Respondents.



                                                                                              .....2/-




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 Judgment

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                                 2

==============================================================
          Shri J.B. Kasat, Counsel for the Appellant.
          None for the Respondent.
==============================================================


                              CORAM : V.M. DESHPANDE, J.

                              DATE     : JUNE 6, 2017.



ORAL JUDGMENT

1. The present appeal is directed against

judgment and order of acquittal passed by learned

Additional Chief Judicial Magistrate, Nagpur dated

12.2.2001 in Regular Criminal Case No.19 of 1993, by

which the respondents were acquitted for the offence

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

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

"the said Act") and the Rules made thereunder.

2. Heard learned counsel Shri J.B. Kasat for the

appellant and learned counsel for the respondents

failed to appear when the appeal is taken up for its final

.....3/-

Judgment

apeal82.01 48

hearing.

3. PW1 Ravindra Haribhau Mankar, in the year

1985, was working as a Food Inspector with City of

Nagpur Municipal Corporation. On 9.10.1992, he visited

firm M/s. Janata Oil Industries, Garoba Maidan, Nagpur

for taking sample of food article i.e. 'Til Oil'. That time,

one Ramanilal Dailywala was present and he requested

that he wished to take sample, being the Food Inspector.

Said Ramanilal Dailywala consented to work as a

pancha witness. Therefore, he entered the shop where

respondent No.1 Bipinchandra was present. He

disclosed his identity to respondent No.1 Bipinchandra

in the presence of pancha witness. That Bipinchandra

disclosed to him that the shop belongs to respondent

No.3 his cousin Shailesh. PW1 Mankar, thereafter, took

sample of 'Til Oil' about 375 gms. in an empty steel pot

.....4/-

Judgment

apeal82.01 48

by paying amount of Rs.10.50 to the vendor and he took

the signature of the vendor and the pancha witness on

the printed receipt of the Corporation. Printed bill

dated 9.10.1992 bears the signature of pancha witness,

accused, and PW1 Food Inspector Mankar. PW1 Mankar

also gave a notice under Section 14-A of the said Act

(Exhibit 36). After completion of due formalities, the

sample was sent to the Public Health Laboratory. The

report of the Public Analyst, which is produced on

record along with covering letter Exhibits 45 and 56,

shows that the sample of 'Til Oil' does not confirm the

standard laid down under the provisions of the said Act

and the Rules made thereunder. Thereafter, the

complaint case was lodged in the Court.

4. PW2 pancha witness Ramniklal Gulabchand

Teliwada did not support the prosecution. PW3 is one

.....5/-

Judgment

apeal82.01 48

Pradip Attarlal Shirsam, Clerk in the office of the Local

Health Authority. His evidence shows that his office

received an intimation on 9.10.1992 about the complaint

vide Exhibit 38 and its acknowledgement is at

Exhibit 44. Similarly, the sample with Form No.VII

were also received by his office.

5. On a closure scrutiny of evidence of

PW1 complainant it shows that he has admitted that

panchanama, the contemporary document, is silent that

at the time of taking sample measure was dry, clean,

and empty. At the relevant time, he was earlier not

having stirrer, pipette plunger, and sampling tube and

these facts, though were essential to mention in

panchanama, were not mentioned. He has also admitted

that it is not mentioned in the panchanama that outer

surface of the mouth of barrel was clean at the time of

.....6/-

Judgment

apeal82.01 48

taking of sample. He has admitted that barrel was

containing 180 Kilograms Oil and the Oil level was two

inches below from the mouth of the barrel. Rule 14 of

the Rules made under the said Act speaks that sample of

the 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. In

this context, PW1 complainant has admitted in his

cross-examination that mouth of sample bottle was not

sealed by means of wax before wrapping them. By

catena of decisions, it has been ruled that Rule 14 of the

Rules made under the said Act is mandatory and

non-observance of the procedure, as contemplated

under the said Rule 14, vitiates the entire prosecution.

.....7/-

Judgment

apeal82.01 48

6. Further, no notice under Section 13(2) of the

said Act was given to the respondents, which causes a

great prejudice to the respondents since the

respondents lost their rights to challenge the report of

the Analyst. Learned Judge of the Court below, in that

behalf, has correctly evaluated the position in

paragraph No.23 of his judgment.

7. The view taken by learned Judge of the Court

below or available evidence on record shows that the

view is a correct one and cannot be termed as perverse.

Consequently, the criminal appeal fails and is

dismissed.

JUDGE

!! BRW !!

...../-