Bombay High Court
State At The Instance Of Shri ... vs Shri Bhagwan Tukaram Jadhav And ... on 5 May, 2017
Bench: I.K. Jain
apeal.383.02.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.383 OF 2002
State at the instance of
Shri Sampatrao Marutrao Deshmukh,
aged about 32 years, Food Inspector,
Food and Drugs Administration,
M.S. Akola. .... Appellant
-- Versus -
1] Shri Bhagwan Tukaram Jadhav,
Vendor and Son of Proprietor of
M/s. Jadhao & Company,
At post Shirpur Jain, Tq. Malegaon,
District Washim.
2] Shri Tukaram Sitaram Jadhao,
Prop. M/s. Jadhao & Company,
at Post Shirpur Jain, Tq. Malegaon,
Distt. Washim. .... Respondents
Ms. T.H. Udeshi, Additional Public Prosecutor for the Appellant/State.
None for the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : MAY 5, 2017.
ORAL JUDGMENT :-
By this appeal, State of Maharashtra takes an
exception to the judgment and order dated 24/01/2002 passed
by the learned Judicial Magistrate, First Class, Malegaon, District
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Washim in Regular Criminal Case No.72/1994 thereby acquitting
the respondents of the offence under Section 16 read with
Sections 2(ia)(a), 2(ia)(f) and Section 7(i) of the Prevention of
Food Adulteration Act, 1954 (hereinafter referred to as 'the PFA
Act' for short).
02] For the sake of convenience, respondents are referred
in their original status as accused, as they were 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. Accused no.1-Bhagwan is the son of accused no.2
Tukaram. Accused no.2 was proprietor of M/s. Jadhao
and Company situated at Shirpur Jain, Tahsil
Malegaon, District Washim. The company was dealing
in business of stocking and selling Kirana articles.
ii. On 24/09/1993 at around 11:00 a.m., complainant
Sampatrao Marutirao Deshmukh, Food Inspector
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attached to the Food and Drugs Administration, Akola
visited the shop of the accused. He disclosed his
identity as Food Inspector and purpose of the visit to
the accused. He inspected grocery articles and
purchased 600 grams Rava (semolina) worth Rs.3.60
from the accused. A receipt of purchase was given to
the complainant. Thereafter, complainant issued
notice under Section 14A of the PFA Act to accused
no.1. It was informed to the complainant by accused
no.1 that they purchased Rava from M/s. Rajnikant
Kalyanji Kirana Bazar, Akola vide Bill dated
31/07/1993 and submitted the purchase bill to the
complainant. Complainant prepared notice in Form-VI
and hand over to accused no.1. Rava purchased by
complainant was divided into three equal parts and
filled in three empty, clean and dry bottles as
samples. Panchnama of the entire process was
drawn. Bottles were sealed. A sample bottle was
sent to Public Analyst and remaining samples were
sent to Local Health Authority. The report of Public
Analyst was received and from the report, it was
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revealed that sample does not conform to the
standard of Rava as per the PFA Act.
iii. On 04/02/1994, complainant submitted a proposal
along with the case-papers to the Joint Commissioner,
Nagpur Division, seeking sanction to prosecute. After
sanction was accorded, he filed complaint before the
learned Magistrate.
04] Charge was framed against the accused vide Exh.95.
They pleaded not guilty and claimed to be tried. According to
the accused, they purchased sealed packet and disclosed the
name of seller to the complainant. They submitted that they are
innocent and not in any way connected with the commission of
contravention of the rules as alleged by the complainant.
05] Heard Ms. T.H. Udeshi, learned A.P.P. for appellant/
State. With the assistance of the learned A.P.P., this Court has
gone through the evidence of complainant and witnesses. On
careful scrutiny of the evidence, this Court for below mentioned
reasons is of the view that there is no substance and merits in
the appeal and the same deserves to be dismissed.
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06] Complainant examined three witnesses in support of
his case. CW-1 Sampatrao Deshmukh is the Food Inspector.
CW-2 Avinash Dube was working as Assistant Commissioner, who
received report from Public Analyst and forwarded the same to
the complainant. CW-3 Arvind Jadhao is the panch-witness, who
has been declared hostile and not supported the prosecution
case.
07] With the assistance of the learned Additional Public
Prosecutor, this Court has scrutinized the evidence of the
complainant and the documents, on which complainant has
placed reliance. Though complainant supports the case in
entirety, his evidence needs to be tested on the basis of the
report of Public Analyst. The moot question in the present case is
whether the sample, which was analyzed by the Public Analyst,
was found to be in conformity with the standard quality of Rava
as per the rules framed under the PFA Act.
08] The report of Public Analyst [Exh.68] indicates that
yellow coloured Rava contains 256 dead and 14 living larvae and
38 dead and living weevils. In the opinion column, Public Analyst
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mentions that the sample of Rava confrarens Section 2(ia)(f) of
the PFA Act. No specific opinion has been given in the report by
the expert regarding contravention of provisions of the PFA Act.
In the absence of positive opinion, Trial Court came to the
conclusion that opinion does not mention in clear terms whether
articles of food examined was consumable or not, or whether it
was even for human consumption or not. Further, it was found
by the Trial Court that the opinion mentioned in the report does
not make any sense.
09] On going through the contents of report [Exh.68], this
Court finds that prosecution could not establish that sample
Rava sent to Public Analyst was not in conformity with the
standard prescribed under the PFA Rules. It can be said so, as
the report is vague and as rightly observed by the Trial Court
opinion given in the report makes no sense.
10] In the above premise, howsoever strong the evidence
of complainant may be, testimony of complainant alone will not
be sufficient to bring home the guilt of accused beyond
reasonable doubt in the absence of positive opinion from the
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Public Analyst. The reasonings recorded by the Trial Court are in
consonance with the evidence on record and particularly Public
Analyst's Report [Exh.68]. No perversity is noticed and so, no
interference is warranted in the present appeal. Hence, the
following order :
ORDER
[i] Criminal Appeal No.383/2002 stands dismissed.
[ii] No costs.
(Kum. Indira Jain, J.)
*sdw
