Bombay High Court
State Of Maharashtra vs Nanakram Tharumal Lalwani on 3 May, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.298 OF 2002
State of Maharashtra,
Through Food Inspector,
Food and Drugs Administration,
Amravati. .... Appellant
-- Versus -
Nanakram Tharumal Lalwani,
Aged about 35 years,
Prop. M/s Jaishankar Refreshment
& Cold Drinks, Cotton Market,
Amravati .... Respondent
Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
Shri S.S. Dewani, Advocate for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : MAY 3, 2017.
ORAL JUDGMENT :-
By this appeal, State of Maharashtra takes an
exception to the judgment and order dated 26/11/2001 passed
by the learned Chief Judicial Magistrate, Amravati in Regular
Criminal Complaint No.12/1993 acquitting the respondent of the
offence under Section 7(i) read with Section 2(ia)(a)(m)
punishable under Section 16(1)(i)(a)(ii) of the Prevention of Food
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Adulteration Act (hereinafter referred to as 'the PFA Act' for
short) and Rules made thereunder.
02] For the sake of convenience, respondent is referred in
his original status as accused, as he was referred before the Trial
Court.
03] Prosecution case, which can be revealed from the
complaint and connecting papers thereto, may be stated, in
brief, as under :
i. Respondent was the proprietor of M/s. Jaishankar
Refreshment & Cold Drinks situated at Cotton Market,
Amravati. On 21/04/1992 at about 03:30 p.m., Food
Inspector Mr. S.A. Chougule visited the shop of
accused and disclosed his identity and purpose of
visit. During inspection, Food Inspector found 15 kgs.
packed tin of Soyabin oil, which was used for
preparing eatables for sale. Complainant demanded
and purchased 450 grams Soyabin oil from the said
tin. Receipt of the same was issued by the accused.
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Complainant then issued notice in Form-VI and under
Section 14A of the P.F.A. Act to the accused. The
purchased oil was divided into three equal parts and
the same was filled in three empty bottles. Those
bottles were sealed in accordance with the prescribed
procedure. Panchnama of the same was drawn in
presence of panch-witnesses. One sample bottle
along with relevant documents was forwarded to
Public Analyst, Amravati. Remaining two bottles were
sent to Health Authority, Amravati. On receiving
positive report from Public Analyst, complainant
forwarded all the papers to Joint Commissioner, Food
and Drug Administration for consent and on receiving
consent, filed the complaint.
04] Charge came to be framed against the accused vide
Exh.68. He pleaded not guilty and claimed to be tried. The
defence of accused was that proper procedure laid down under
the P.F.A. Act was not followed and since he is not in any way
connected with the manufacturing or distribution of the edible
oil, the provisions of the P.F.A. Act are not applicable.
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05] Complainant examined himself in support of his case
and panch-witness Abdul Matin. Considering the evidence of
complainant and the documents placed on record, Trial Court
came to the conclusion that there was no evidence to indicate
that accused was dealing in sale of Soyabin oil and as such
provisions of the P.F.A. Act would not be attracted. Based on the
evidence, Trial Court came to the conclusion that prosecution has
failed to prove guilt of the accused beyond reasonable doubt and
in consequence thereof acquitted the accused. Being aggrieved
thereof, State of Maharashtra has preferred the present appeal.
06] Heard Shri I.J. Damle, learned Additional Public
Prosecutor for the appellant and Shri S.S. Dewani, learned
Counsel for the respondent. With the assistance of the learned
Counsel for the parties, this Court has gone through the
evidence of complainant and the documents, on which
complainant has placed reliance. Though, panch-witness Abdul
Matin has been examined by the prosecution, his evidence is of
no use as he has not supported the case of the department. On
the close scrutiny of the evidence of complainant and the
documents, this Court, for the below mentioned reasons, finds
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that the view taken by the Trial Court is a reasonable and
possible view and no interference is warranted in the present
appeal.
07] It can be seen from the evidence of the complainant
that on 21/04/1992 at around 03:30 p.m., he visited the shop of
accused for inspection. He inspected the edible oil packed in a
tin and after the sample was purchased, the same was sealed
and in accordance with the procedure forwarded to Public
Analyst. The report of Public Analyst is in positive and it
indicates that the sample was not in conformity with the
standard required under the P.F.A. Act.
08] In the cross-examination, complainant has admitted in
unequivocal terms that he had not recorded statement of any
person about selling of edible oil to them by accused. He also
admits that accused was neither a manufacturer nor a distributor
nor a seller of edible oil. This admission elicited in the cross-
examination of the complainant takes away the entire case of
prosecution out of the purview of the provisions of the P.F.A. Act.
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09] Another drawback in the case of prosecution is the
absence of corroboration to the testimony of the complainant.
Panch-witness Abdul Matin though entered the witness box,
chose not to support the case of complainant. According to
complainant, at the time of inspection, Abdul Matin had
accompanied him. This fact is flatly denied by Abdul Matin and
he stated that on 21/04/1992, he had not visited the shop of
accused along with the complainant.
10] It is pertinent to note that even according to the
complainant, he did not mention in panchnama [Exh.44] that he
stirred the edible oil and after stirring and making homogeneous,
the same was lifted. Panchnama [Exh.44] is also silent on this
important aspect. Failure to make sample homogeneous by
stirring the same is a serious procedural lapse on the part of
complainant and affects the substratum of prosecution case.
11] Another glaring infirmity, which can be noticed from
the evidence of complainant is that three empty bottles, in which
samples of edible oil were collected, were cleaned prior to taking
of samples. There is no evidence to indicate that complainant
was supplied with clean bottles before sample was divided into
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three equal parts and filled in the bottles. Complainant has not
explained this deficiency in his entire evidence. This is also fatal
to the case of prosecution.
12] In sum and substance, evidence is not sufficient to
bring home the guilt of the accused beyond reasonable doubt
and even if it is assumed that complainant did visit the shop and
inspected the edible oil, which was found not of standard quality
by the Public Analyst, then also for want of mandatory
compliance under the P.F.A. Act and the rules thereunder,
prosecution case must fail.
13] In the above premise, this Court finds that the view
taken by the Trial Court is a reasonable and possible view. No
perversity is noticed in the reasonings and findings recorded by
the Trial Court. Therefore, no interference is warranted in this
appeal. Hence, the following order :
ORDER
[i] Criminal Appeal No.298/2002 stands dismissed.
[ii] No costs.
(Kum. Indira Jain, J.)
*sdw
