State Of Maharashtra vs Vinodkumar Panchamlal Sahu And ...
2017 Latest Caselaw 2195 Bom

 CRI. APPEAL NO.365.02.odt                    1
   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.365 OF 2002

 State of Maharashtra,
 through Shri T.M. Derkar,
 Food Inspector, Amravati.                         ..               APPELLANT

                               .. VERSUS ..

 1]     Vinodkumar Panchamlal Sahu,
        Aged about 34 years,
        Vendor.
 2]     Shankarlal Panchamlal Sahu,
        Aged about 40 years,
        Prop. of M/s. S.S. Traders,
        Amravati.                                  ..           RESPONDENTS

                      ..........
 Shri I.J. Damle, A.P.P. for Appellant-State.
 Shri N.R. Saboo, Advocate for respondents.
                      ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : MAY 04, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

order dated 28.12.2001 passed by the learned Chief Judicial

Magistrate, Amravati in Regular Criminal Complaint Case

No.74/1996 acquitting the accused of the offence

punishable under Section 16 (1) (i) (a) (ii) of the Prevention

of Food Adulteration Act (for short 'PFA Act') and Rules

made thereunder.

2] For the sake of convenience, respondents are

referred in their original status as accused, as they were

referred before the trial court.

3] In brief, case of the complainant is as under :

(i) Complainant was serving as Food

Inspector in the office of F.D.A. Amravati. Accused

no.1 Vinod is vendor and accused no.2 Shankarlal

is proprietor of M/s. S.S. Traders, Itwara Bazar,

Amravati.

(ii) On 9.6.1994 at 12.30 pm, complainant

visited the firm along with panch witness and

disclosed his identity to accused no.1 who was

present there. He also explained him the purpose

of his visit. Complainant inspected the shop and

found stock of chilly powder kept in a loose gunny

bag. It was weighing around 3 kg. and kept for

sale.

(iii) Complainant purchased 600 grams chilly

powder and paid Rs.12/- to accused no.1 for the

said purchase. He also issued notice in form no.VI

and under section 14-A of P.F.A. Act to accused and

obtained acknowledgment. The sample of chilly

powder was then divided into three parts weighing

200 grams each and filled in three empty, dry and

clean bottles. One sample bottle was sent to

Public Analyst, Amravati and two samples were

forwarded to Local Health Authority, Amravati.

(iv) The report of Public Analyst was received

by the complainant and it indicated that sample of

chilly powder was not in conformity with the

standard prescribed under the P.F.A. Rules.

Therefore, complainant forwarded all the relevant

papers to Joint Commissioner (FDA), Nagpur for

obtaining sanction. On receipt of sanction order,

he presented complaint before the learned

magistrate.

4] Charge came to be framed against the accused

vide Exh.51. They pleaded not guilty and claimed to be

tried. Their defence was of total denial and false

implication. It is submitted on behalf of the accused that

procedure prescribed under the Act and Rules has not been

scrupulously followed by the complainant. They submitted

that receipt of purchase of chilly powder was shown to the

complainant and still no action against the seller or

manufacturer of chilly powder was initiated by the

complainant. According to the accused, they are innocent

and the real culprit, if any, has been kept behind by the

complainant.

5] To substantiate the allegations against the

accused, complainant Shri Derkar examined himself and

panch witness PW-2 Laxminarayan Sahu. Reliance is also

placed on panchanama and other documentary evidence.

Considering the evidence adduced by the complainant, trial

court came to the conclusion that complainant has utterly

failed to prove the guilt of accused beyond reasonable doubt

and in consequence thereof acquitted them. Being

aggrieved by the order of acquittal, State has come up in

the present appeal.

6] Heard Shri Damle, learned Additional Public

Prosecutor for the appellant-State and Shri Saboo, learned

counsel for the respondents. Scrutinized the evidence of

complainant, panch witness and the documents on which

complainant has relied upon. On meticulous evaluation of

the evidence adduced by complainant, this court, for below

mentioned reasons, finds that the view taken by the trial

court is a possible view and since no perversity is noticed in

the reasonings and findings recorded by the trial court, no

interference is warranted in this appeal.

7] At the outset, it is to be mentioned here that PW-2

Laxminarayan Sahu, a panch witness, has been declared

hostile and he did not support the case of complainant.

The evidence of PW-1 Complainant Shri Derkar is, therefore,

required to be scrutinized with great care and

circumspection, as there is no corroboration to his

testimony.

8] According to complainant, he was serving as Food

Inspector in the office of FDA, Amravati since June 1993 to

May 1997. It can be seen from his evidence that on

9.6.1995, he along with Laxminarayan Sahu visited the shop

of the accused. He found that accused no.1 was present in

the shop and disclosed his identity and purpose of the visit

to him. During inspection, complainant saw chilly powder

kept for sale in loose gunny bag weighing about 3 kg. So he

purchased 600 grams of chilly powder from accused no.1

and paid Rs.12/- for the same. He also obtained receipt

regarding purchase of chilly powder from accused no.1.

Complainant then issued notice in form no.VI and under

section 14-A of the P.F.A. Act to the accused. He divided the

chilly powder purchased by him in three equal parts and

filled 200 grams chilly powder in each of the three bottles,

which according to the complainant, were clean, dry and

empty bottles. Panchanama of the entire process was

drawn. Thereafter, one sample bottle was sent to Public

Analyst and remaining two bottles to Local Health Authority.

It is stated by complainant that report of Public Analyst

disclosed that sample was not in conformity with the

standard prescribed under the P.F.A. Rules and so he

forwarded all the relevant papers to the Joint Commissioner

(FDA), Nagpur for sanction. After the sanction order was

issued, he presented the complaint to the court.

9] In the cross-examination, complainant admitted

that accused no.1 is not the manufacturer of chilly powder.

He admits that bag from which sample was taken was

containing a label with the name of manufacturer. There is

an unequivocal admission in the cross-examination of

complainant that accused no.1 Vinod disclosed to him that

he used to purchase chilly powder from Sureshkumar

Labhudas and also supplied bill of purchase from

Sureshkumar to the complainant. He admits that no action

is taken against said Sureshkumar though he received bill

from accused no.1. It is also an admitted fact that no action

was initiated against the manufacturer, though name of

manufacturer was disclosed on the label affixed with the bag

of chilly powder. Inaction on the part of complainant to

initiate action against Sureshkumar and manufacturer of

chilly powder is fatal to the case of complainant.

10] Another serious infirmity left in the case of

complainant is regarding non examination of witness who

had cleaned the empty plastic bottles in which chilly powder

weighing 200 grams each was filled in as sample. There is

no clinching evidence to indicate that before the samples

were drawn in the empty plastic bottles, they were clean,

dry and empty. Complainant in his cross-examination

admitted that empty bottles were supplied to him by his

office and he is unable to tell the details as to when and by

what means cleaned those bottles. In view of this admission

of complainant and non examination of the person who

cleaned sample bottles doubt is created and benefit of

doubt obviously goes to the accused.

11] Accused no.1 Vinod examined himself as defence

witness. He stated that at the time of visit of complainant to

his shop, he has supplied him a bill of purchase dated

21.5.1994. He stated that chilly powder was purchased by

him from M/s. Sureshkumar Labhudas of Amravati. He also

states that he is not the manufacturer of chilly powder. The

articles which were purchased by him from Sureshkumar

were in sealed packet and they were kept in the same

condition for sale. The evidence of accused no.1 appears to

be more probable and acceptable in view of unequivocal

admissions of the complainant elicited in cross-examination.

12] 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. As such, no interference is

warranted in the present appeal. Hence, the following

order :

ORDER

Criminal Appeal No.365 of 2002 stands dismissed. No costs.

(Kum. Indira Jain, J.)

Gulande, PA