The State Of Maharashtra vs Anilkumar Raychand Vora
2017 Latest Caselaw 3555 Bom

                                         1                   Cr.Apeal.465/1999

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO. 465 OF 1999

The State of Maharashtra
(At the instance of Shri Uday Shankarrao Vanjari,
Food Inspector, Food and Drugs Administration
(M.S.) Satara.                    ...Appellant  (Orig.Complainant)
      Vs.
Anil Kumar Raychand Vora
Vendor and Proprietor of 
M/s. Sapana Trading, Main Road,
Mhaswad, Tal: Man,Dist: Satara. ...Respondent   (Orig.   Accused)

                                 CORAM : M.S. KARNIK, J.       
                                              th
                                 Reserved on 8  March, 2017
                                 Pronounced on 23rd June , 2017 
JUDGMENT:

1. The Appellant State of Maharashtra has filed this Appeal

under Section 378(1) of the Code of Criminal Procedure against the

judgment and order dated 10th March, 1999 passed by the Judicial

Magistrate, First Class, Dahiwadi. Criminal Case No.171 of 1993

under Section 7(i) r.w. 2(ia)(a), 2(ia)(j), 2(ia)(h) and 2(ia)(l) of

the Prevention of Food Adulteration Act, 1954 was registered

against the Respondent which resulted in his acquittal.

2 Cr.Apeal.465/1999

2. The prosecution case in brief is as under:

(a) The complainant is a Food Inspector duly

appointed and qualified having undergone training for

taking the samples under the provisions of the

Prevention of Food Adulteration Act, 1954 (herein after

referred to as the said Act for short). On 7 th July, 1993,

Food Inspector Shri B.J. Mahajani visited the shop of

the Respondent alongwith independent pancha witness

Jawaharlal Gandhi and inspected the shop. He declared

his intention of taking sample of "Badishep" (fennel

seeds). Then he purchased 600 gms. badishep from the

Respondent by paying necessary price to him. Food

Inspector Shri Mahajani issued notice to the Respondent

in Form No.VI under Section 14 of the Act and the Rules

framed thereunder. Shri Mahajani divided the

purchased 600 gms. badishep into three equal parts

with the help of the measure. He then put each part in

separate clean, dry and empty bottles. He then put the

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cork and lid to the bottles tightly. The mouth of the

bottles were sealed by wax using the seal which was

with Food Inspector Shri Mahajani. After following the

due procecure of sampling he sealed all the three

bottles of sample. He obtained the signatures of panch

witnesses as well as the Respondent on all necessary

forms and slips. After entire sampling procedure was

over he prepared memorandum of panchanama of the

procedure followed by him for obtaining the sample of

"Badishep" from the Respondent. The said panchanama

was signed by the Food Inspector Shri Mahajani, panch

witness Shri Gandhi and the Respondent. Thereafter

on the next day, Shri Mahajani sent one part of the

sample along with the original copy of the

memorandum in Form No. VII in separate sealed packet

to the Public Analyst Pune by registered post. He also

sent at the same time one duplicate copy of the Form

No. VII along with specimen impression of seal in

another sealed packet to the Public Analyst Pune by

registered post. On the same day he delivered

4 Cr.Apeal.465/1999

remaining two counter parts of the sample along with

two copies of Form No. VII in one sealed packet to the

Local Health Authority Satara and also delivered two

copies of the specimen impression of the seal in another

sealed packet to the Local Health Authority Satara by

hand delivery and obtained receipt for the same.

(b) On 17th August 1993, Food Inspector Shri

Mahajani received the report of Public Analyst for the

article i.e. Badishep wherein the Public Analyst opined

that sample of Badishep shows the presence of

extraneous non-permitted green colouring matter and

hence it does not conform to the standards of fennel

seeds (saunf) whole.

( c) In the meantime Food Inspector Shri Mahajani

was transferred and Shri Patankar took charge from

him. He submitted all the necessary documents and

papers to the Joint Commissioner (Pune Division) Drug

Administration Pune for sanction to launch prosecution

5 Cr.Apeal.465/1999

against the Respondent. On 30 th October, 1993 the

present complainant, Shri Uday Vanjari received written

consent from the Joint Commissioner to launch

prosecution against the Respondent. The present

complainant filed the complaint before the trial Court

on 3rd December, 1993. Upon filing of the complaint in

the trial Court, the complainant intimated the Local

Health Authority about launching of the prosecution

against the Respondent.

(d) The Local Health Authority, Satara sent letter to

the Respondent along with the copy of the Public

Analyst's report and informed the Respondent about the

case filed against him. It called upon the Respondent to

file the application under Section 13(2) of the said Act,

if he wants to do so. Process came to be issued against

the Respondent. Evidence before the charge was

recorded and after coming to the conclusion that there

is prima facie material on record to proceed against him

the trial Court framed charge against the Respondent

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under the said Act.

3. The learned trial Judge upon trial of the Respondent was

pleased to acquit the Respondent by his judgment dated 10 th March,

1999 for the offences alleged against him.

4. Learned A.P.P. contends that the trial Court has not properly

appreciated the evidence on record. According to him the evidence

on record was sufficient to convict the Respondent. The learned

A.P.P. further contended that based on the evidence on record the

findings recorded by the trial Court are perverse and not at all

sustainable.

5. With the assistance of the learned A.P.P. and learned Counsel

appearing for the Respondent I have gone through the evidence on

record. Learned Counsels have also taken me through the findings

recorded by the trial Court. According to the learned A.P.P the trial

Court has committed error in holding that merely finding

extraneous non-permitted green colouring matter by Public Analyst

is not sufficient enough to prove the guilt of the accused. In the

7 Cr.Apeal.465/1999

submission of the learned A.P.P. it is contended that the trial Court

ought to have considered that as per the standard of Fennel seeds

"Badishep" prescribed in Appendix - A-05.11, the fennel should be

free from added colouring matters.

6. Learned A.P.P. submits that the trial Court was not justified in

holding that there is breach of Rule 12 and Section 11(1) of the

Act, 1954. The prosecution has in fact made out a case that the

notice in Form No.VI was duly issued and signed. Thus according

to the learned A.P.P. there was compliance of Rule 12 and Section

11(1) of the said Act.

7. The learned A.P.P. further contends that the trial Judge was

not justified in entertaining a reasonable doubt about the public

analyst receiving the sample bottles for want of postal receipt /

acknowledgment. He contends that the evidence on record is

sufficient to substantiate that office of the Public Analyst received

the sample on 13th July, 1993 and memorandum and specimen

impression of the seal on 12th June, 1993.

8 Cr.Apeal.465/1999

8. The learned A.P.P. would further submit that the trial Court

has completely erred in holding that there is breach of Rule 14 of

the said Rules. According to the learned A.P.P the bottles used for

collecting the sample were dried and cleaned. Merely because the

Food Inspector did not clean and dry the sample bottles in the shop

of the Respondent, it cannot be said that the Rules are breached.

Thus according to the learned A.P.P there is due compliance of Rule

14. The learned A.P.P. therefore, submits that the learned trial

Court has erred in holding that the prosecution has failed to prove

the guilt of the Respondent beyond all reasonable doubt.

9. The learned Counsel for the Respondent on the other hand

supported the findings recorded by the trial Court. According to

him the report of the Public Analyst is vague and is not at all safe to

rely upon. According to the learned Counsel for the Respondent

the Food Inspector who collected the sample from the shop of the

Respondent has committed the breach of many mandatory

provisions while taking the samples and sealing it. The learned

Counsel for the Respondent would submit that the view

9 Cr.Apeal.465/1999

taken by the trial Court is a reasonably possible view. He invited

my attention to the decision of the Apex Court in the case of K.

Venkateshwarlu Versus State of Andhra Pradesh reported in

2012(8) SCC 73 to support his submission that if the view taken by

the trial Court is a reasonably possible view, the High Court cannot

set it aside and substitute it by its own view merely because that

view is also possible on the facts of the case. The relevant portion

of paragraph 5 of th Apex Court, decision reads thus:

"This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations".

10. Learned Counsel has also relied upon the decision of the

10 Cr.Apeal.465/1999

Apex Court in the case of State of Rajasthan Versus Shera Ram @

Vishnu Dutta reported in 2012(1) SCC 602. Learned Counsel for

the respondent invited my attention to paragraph 13 which reads

thus:

"13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves".

11. Having considered the submissions advanced on behalf of the

respective parties I feel that the judgment and order passed by the

trial Court does not call for any interference. In so far as the charge

framed against the Respondent under Section 2(ia)(h), 2(ia)(1) the

learned trial Judge has held that there is no substance at all either

11 Cr.Apeal.465/1999

in the evidence of the prosecution or in the complaint or even in

the public analyst's report to sustain these charges against the

Respondent. It is noticed that in the report of the Public Analyst it

is no where mentioned that extraneous colouring matter is

injurious to health. I do not therefore, find any fault with the view

taken by the trial Court in respect of the said charges. The learned

A.P.P fairly submits that he is not in a position to seriously assail

the said finding of the trial Court.

12. The learned A.P.P submits that the evidence on record is

sufficient to convict the Respondent for the offences punishable

under Section 2(ia)(a) and 2(ia)(j) of the said Act. In this context

it would be material to examine the report of the Public Analyst at

Exhibit-42. On the basis of the said report it is contended that as

the added non-permitted colouring matter is detected by the Public

Analyst in the sample of 'Badishep', the food article fennel (whole)

is adulterated. The standards of fennel(whole) prescribed in

Appendix-A-05511 provides that the fennel should be free from

added colouring matters. Rule 23 to 31 deals with the colours

permitted and non-permitted. The permitted colours are natural

12 Cr.Apeal.465/1999

colours, organic and in-organic colours and organic and non-

organic synthetic colours. The Public Analyst has merely found that

extraneous non-permitted green colouring matter is noticed. The

trial Court found that it is not specifically mentioned in the report

about the nature and type of the colour and what was the extent of

the said colour found in the sample. In fact the Food Inspector by

his letter Exhibit-29 had sought clarification from the Public Analyst

regarding the extraneous colouring matter which was detected in

the sample of Badishep. Even the Local Health Authority had called

upon the Food Inspector Shri Mahajani to get clarification of the

colouring matter detected in the sample of Badishep by his letter at

Exhibit-65. The trial Judge was of the view that reading of these

two letters would indicate that neither the Food Inspector nor the

Local Health Authority was satisfied with the report of the Public

Analyst at Exhibit-42. The reply given by the Public Analyst at

Exhibit-30 has only stated that the colouring matter detected is as

given in Rule 28. The trial Judge under these circumstances was of

the opinion that the report of the Public Analyst is totally vague and

therefore held that the prosecution has failed to prove that the

sample under analysis was adulterated and added colouring matter

13 Cr.Apeal.465/1999

was found which is injurious to health. The trial Court found that

the said report is not sufficient to give specific nature and quantity

of the colour which the Public Analyst found in the sample and

therefore, did not accept this as a good piece of evidence. I do not

find that the view taken by the trial Court in this regard is

unreasonable or an impossible view.

13. The next point urged by the learned A.P.P. is that the learned

trial Judge was not justified in holding that there is a breach of Rule

12 and section 11(1) of the Act of 1954. According to the learned

A.P.P the signatures on the notice Exhibit-20 and also at Exhibit-64

in respect of Form No.VI are that of the Food Inspector. The original

Form No.VI is at Exhibit-54 and the copy of the same which is

produced with the complaint is at Exhibit-20. Rule 12 provides that

when the Food Inspector takes sample of article he has to give

notice of intimation of taking sample in writing in Form No.VI then

and there. Section 11(i) also provides that when Food Inspector

takes sample for analysis he shall give notice then and there of his

intention to the person from whom the sample is taken. Therefore,

according to the learned A.P.P the Food Inspector who took the

14 Cr.Apeal.465/1999

sample of 'Badishep' from the accused issued notice in Form-VI to

the accused. In the cross examination of the Food Inspector he has

admitted that notice in Form No.VI must be signed by Food

Inspector. The Food Inspector in cross examination has stated that

the signatures on the notices are his. The learned trial Judge has

tallied alleged signatures on Exhibit-20 and Exhibit-24 with the

admitted signatures of the Food Inspector Shri Mahajani on other

papers viz: Exhibit-18, Exhibit-21, Exhibit-22 and others. The

learned trial Judge was of the opinion that the signatures on the

original Form No.VI as well as the xerox copy does not bear the

signatures of the Food Inspector. I do not find the course adopted

by the trial Judge is unreasonable. Even during the course of

hearing of the Appeal the learned A.P.P was not in a position to

demonstrate with reasonable certainty that the signatures at

Exhibit-20 and Exhibit-24 are that of the Food Inspector Mahajani.

In this view of the matter the view taken by the trial Court that

noncompliance of Section 11(i) (a) of the Act r.w. Rule 12 of the

said Rules is fatal to the prosecution case cannot be said to be

perverse or unreasonable.

15 Cr.Apeal.465/1999

14. The next contention urged by the learned A.P.P is that the

learned trial Judge was in error in holding that there is a breach of

Rules 17 & 18 of the said Rules. To come to conclusion that non-

compliance of Rules 17 & 18 is fatal to the case of the prosecution

the learned trial Judge has relied upon the following decisions:

1. State of Maharashtra Vs. Raj Karan (1988)2 P.F.A.

Cases page-156.

2. State of Maharashtra Vs. Vithalrao Thanuso

Bodake (1997) 1 P.F.A. Cases page 239.

and

3. Murlidhar Laxman Ghadge Vs. State of

Maharashtra (1987) 1 P.F.A. Cases page 208.

15. The learned trial Judge has elaborately dealt with this aspect

of the matter and held that though it is true that the Food Inspector,

Mahajani stated that he sent the sample and memorandum and

specimen impression of seal to the Public Health Laboratory, Pune

16 Cr.Apeal.465/1999

separately by registered post, but no postal acknowledgment or

receipt to prove the same is produced. There is thus a breach of

Rule 17 & 18 of the said Rules and the view taken by the trial Court

cannot be said to be perverse.

16. As regards the breach of Rule 114 of the Rules the trial Court

has recorded the following finding:

"10. There is also a breach of Rule 14 in this case. Though it is specifically stated by P.W. No.1 Mahajani and vehemently submitted by the learned A.P.P in his written argument that the bottles used for collecting the sample were dried and cleaned, there is no supporting evidence to that effect. On the contrary, the admission of P.W. No.1 Mahajani in his cross-examination is sufficient enough to raise reasonable doubt about the cleanness and dryness of the bottle in which sample of Badishep was taken. It is admitted by Food Inspector Mahajani that he did not clean and dry the sample bottles in the shop of accused. He further admitted that he did not hand over the sample bottles either to pancha or accused for verification. There is nothing on record to show that when the sample bottles were obtained by Food Inspector Mahajani from his office

17 Cr.Apeal.465/1999

and for how long they were lying in his kit. There is nothing on record to show that when the bottles were cleaned and dried last before their use to collect the sample in the shop of accused. These facts are to be necessarily brought on record by prosecution in order to show that the sample bottles were clean and dry. The general statement to that effect is not sufficient enough in the given circumstances. If at all the Food Inspector Mahajani had cleaned and dried the bottles in presence of panch witness and accused in the shop of accused then no such other evidence was necessary. But in these peculiar circumstances the evidence to show that when the bottles were cleaned and dried by the Food Inspector Mahajani is must. Prosecution has failed to produce such type of evidence. Hence, there is a clear breach of Rule 14 which is also fatal to the case of prosecution".

17. In this view of the matter I do not find any reason to interfere

with the view taken by the trial Court. The Appeal is therefore

dismissed.

(M.S. KARNIK, J.)