State Of Mah.Thr.Pso Buldana vs Shri Ajabrao Ramrao Diware
2017 Latest Caselaw 3278 Bom

                                                    1                                Judg. 160617 apeal 72.02.odt 

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                    NAGPUR BENCH : NAGPUR.

                                            Criminal Appeal No.72 of 2004

                State of Maharashtra through
                Makrand Damodhar Ranade,
                age 46 years, Food Inspector, 
                Buldana, Distt. Buldana.                                                  ....  Appellant.

                                                            -Versus-

             Ajabrao Ramrao Diware,
             aged 55 years, Occ.-Business,
             R/o.-Mahalungi, Tq. Nandura, Distt.-Buldana.                 ....  Respondent.
             --------------------------------------------------------------------------------------------------
             Mr. V.P. Maldhure, Additional Public Prosecutor for State.
             Mr. Sheikh Sohaluddin, Advocate h/f Mr. C.R. Dhore, Advocate for 
             respondent.
             --------------------------------------------------------------------------------------------------
                                                              Coram : Mrs. Swapna Joshi, J.

th Dated : 16 June, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellant-State against the

judgment and order dated 19-09-2003 delivered in Regular Criminal Case

(old) No.198 of 1996 (new) No.300 of 1997 by the learned Judicial

Magistrate First Class, Nandura, thereby acquitting the respondent of the

offences punishable under Sections 7(1) read with Section 2(ia)(a)

punishable under Section 16(1)(a)(ii) and under Section 7(i) read with

Section 2(ia)(m) punishable under Section 16(1)(a)(i) of the Prevention of

2 Judg. 160617 apeal 72.02.odt

Food Adulteration Act, 1954, for having stored and sold the adulterated

refined Soya bean oil to the complainant.

2] I have heard the learned Additional Public Prosecutor for the

appellant-State and Mr. Sk. Sohaluddin, the learned Counsel for the

respondent-accused. I have carefully gone through the record of the case

and the impugned judgment and order.

3] The brief facts of the prosecution case are that; the complainant

was a Supervisor (Food) in the office of the Assistant Commissioner,

Food and Drugs Administration, Buldana. On 21-11-1995, at about

10.30 am, the complainant visited the shop of the accused at village

Mahalungi along with panch as complainant disclosed his intention of

purchasing sample of refined Soya bean oil from the shop of the accused.

Accordingly, the complainant purchased 450 gms. of Soya bean oil. The

accused stirred the refined Soya bean oil from a tin and sold 450 gms. of

refined Soya bean oil after weighing and handed over the same to the

complainant in a clean, empty and dry vessel. The complainant then

issued notice to the accused under Section 14A of the Prevention of Food

Adulteration Act and followed the detailed procedure as per law. He

issued a notice in Form No.(vi) to the accused. The complainant then

divided the refined Soya bean oil of 450 gms. in three equal parts and

filled the same in three clean, empty and dry glass bottles. Thereafter, the

bottles were corked and sealed. The complainant recorded the spot

panchanama. The complainant forwarded one bottle out of those three

bottles to the Public Analyst, State Public Health Laboratory, Pune by

3 Judg. 160617 apeal 72.02.odt

registered post A.D. On the same day, the complainant forwarded the

copy of Form No.(vii) along with specimen impression of seal to the Public

Analyst by registered post. The complainant then handed over the

remaining two sample bottles along with copies of Form No.(vii) to the

Local (Health) Authority and the Assistant Commissioner Food and Drugs

Administration, Buldana. He also handed over two specimen seal

impressions in a sealed envelope to the Local (Health) Authority, Buldana.

In the meantime, the complainant received the report of the Public

Analyst, wherein it was stated that the sample of refined Soya bean oil

does not conform to standards. The necessary sanction was sought by

the complainant from the Joint Commissioner, Food and Drugs

Administration, Amravati, for the purpose of prosecution and the complaint

was lodged against the accused accordingly.

4] The learned Judicial Magistrate First Class framed the charge

against the accused as stated above under the provisions of the

Prevention of Food Adulteration Act.

5] The learned A.P.P. Mr. Maldhure vehemently argued that the

learned trial Judge has illegally and perversely passed the order against

the appellant, although the prosecution had proved its case, by adducing

cogent evidence before the Court. The learned trial Judge has failed to

consider the evidence on record and acquitted the accused. The learned

Additional Public Prosecutor, however, did not seriously dispute the

non compliance of Rule 7 of the Prevention of Food Adulteration Rules,

1955. He conceded that Rule 7 was not strictly followed by the

4 Judg. 160617 apeal 72.02.odt

investigating agency.

6] As against this the learned Counsel for the respondent-accused

contended that, the learned trial Judge has rightly passed the order,

considering the entire evidence on record and no infirmity as such is found

with the judgment and order of the learned trial Judge.

7] I have carefully gone though the entire evidence on record. So far

as the testimonies of (PW-1) Makarand Ranade and (PW-2) Mahadeo

Kamble are concerned, they have stated about the investigation part. As

regards the testimony of (PW 3) Gulabrao Lahudkar is concerned, he was

a panch witness. He turned hostile and did not support the case of the

prosecution. Nothing elicited in favour of the prosecution in his evidence

although the witness was declared hostile. The learned A.P.P. contended

that the Rules 14, 15, and 16 of the Prevention of Food Adulteration Rules

were strictly followed by the investigating agency. The testimony of the

complainant (PW-1) clearly indicates that he had drawn the samples in a

clean and dry bottles and properly corked and sealed them. He has also

properly labelled those samples. He has narrated the test procedure

followed by him as prescribed under Rule 16. It is also not in dispute that

the sanction was accorded by the Authority after following the due

procedure and it is not mechanically granted. On perusal of sanction

order it is clear as to why the launching of prosecution against the offender

is necessary in public interest. The authority has made clear that the

sample was adulterated and he has clarified that it was in the public

interest, to prosecute the accused and the reason stated by him is that the

5 Judg. 160617 apeal 72.02.odt

sample was found to be adulterated. It appears that the sanction was

accorded by the complainant from the Sanctioning Authority on application

of mind.

8] As far as Rule 7(3) of the Prevention of Food Adulteration Rules is

concerned, it contemplates that Rule 7 is mandatory and apparently

there is no evidence on record to show that four copies of the report of the

Public Analyst were sent by him to the Local health Authority. This Rule 7

is found to be violated. Rule 7 of the Prevention of Food Adulteration

Rules is reproduced below as under:-

"7. Duties of Public Analyst.- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon:

[Provided that in case sample container received by the Public Analyst is found to be in broken condition or unfit for analysis he shall within a period of seven days from the date of receipt of such sample inform the Local (Health) Authority about the same and send requisition to him for sending second part of the sample.] (2) The Public Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Inspector or by any other person under the Act. [(3) The Public Analyst shall, within a period of [forty days] from the date of receipt of any sample for analysis, [send by registered post or by hand] to the Local (Health) Authority a report of the result of such analysis in Form- III:

6 Judg. 160617 apeal 72.02.odt

Provided that where any such sample does not conform to the provisions of the Act or these rules, the Public Analyst shall [send by registered post or by hand] four copies of such report to the said Authority: Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under section 12 of the Act.]"

Apparently the aforesaid Rule has not been followed by the

complainant which is mandatory.

9] Undoubtedly the main object of the Act and the Rules is to control,

curb and remedy the widespread malpractice of food adulteration in the

country and to ensure supply of pure and wholesome food to the

consumer. Various provisions found both in the Act and the Rules are

presumed to be in furtherance of this main object.

10] So far as the testimony of PW-1 in respect of stirring the refined

Soya bean oil is concerned, it is revealed in his examination-in-chief that

the accused himself stirred the refined Soya bean oil by means of a

measurement vessel which was already there in the same tin of refined

Soya bean oil. Wherein, in his cross examination, the complainant (PW-1)

stated that there was a milliliter scale in the tin by which he had himself

stirred the oil in the tin and taken the sample. Panchanama Exhibit 26

also reveals that the complainant himself stirred the refined Soya bean oil

in the container with a measure, weighed 450 gms out of it and collected

it in a clean, empty and dry vessel. However, in view of the glaring

discrepancy in the testimony of the complainant in his examination-in-chief

7 Judg. 160617 apeal 72.02.odt

and cross examination it is doubtful, whether the said refined Soya bean

oil was stirred or not. It is not clear whether it was homogeneous and

therefore it cannot be said that it was a representative oil taken by the

investigating agency from the accused.

11] In view of the facts and circumstances it is noticed that, there are

contradictions in the version of the complainant regarding stirring of

sample and compliance of Rule 7. In view of the above, the prosecution

has failed to prove the guilt of the accused. So far as the legality is

concerned, the learned trial Court has rightly passed the judgment and

acquitted the accused of the aforesaid charges.

12] I do not find any illegality or perversity in the judgment passed by

the learned trial Judge. 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.

13] There are no sufficient grounds made out by the appellant/State to

interfere with the impugned judgment and order. In these circumstances,

the appeal deserves to be dismissed and accordingly it is dismissed.

JUDGE

Deshmukh