The State Of Maharashtra vs Ramnath Punamchand Dayama & Ors
2017 Latest Caselaw 2393 Bom

                                                                            apeal.815.02.220.doc


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                           CRIMINAL APPEAL NO. 815 OF 2002

            State of Maharashtra
            (At the instance of Shri G. N. Chaudhari,
            Food Inspector, Food & Drug Administration,
            Maharashtra State, Pune.                                     ...Appellant
                                                                      (Orig.Complainant)
                       Versus

            1.     Ramnath Punamchand Dayama,
                   Vendor and Nominee of -

            2.     M/s. Dhariwal Tobacco Products Ltd.,
                   Unit No. 2, Borade Mala, Shirur,                        ...Respondents
                   Dist. Pune.                                            (Orig.Accused)


            Mrs. P. P. Shinde for the Appellant-State

            None for the Respondents

                                            CORAM : REVATI MOHITE DERE, J.

MONDAY, 8th MAY, 2017

ORAL JUDGMENT :

1. Heard learned A.P.P for the appellant-State.

2. By this appeal, the appellant-State of Maharashtra has

impugned the judgment and order dated 23rd November, 2001 passed by the

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learned Judicial Magistrate First Class, Pune in RCC No. 50 of 1998, by

which, the respondents-accused were acquitted of the offences punishable

under Sections 7(i) r/w Section 2(ia)(a), Section 7(v) r/w Rule 62

punishable under Section 16(1)(c)(ii) and 17 of the Prevention of Food

Adulteration Act, 1954.

3. Brief facts as are necessary to decide the appeal are as under :

Govinda Namdeo Chaudhary is the complainant. He was a

notified Food Inspector, at the relevant time. The respondent No. 1 is

stated to be the vendor and the nominee of respondent No. 2 M/s. Dhariwal

Tobacco Products Ltd.,Shirur. According to the complainant, on 21 st

October, 1997, he along with Food Inspector-Joshi and other witnesses

visited the premises of respondent No. 2. The respondent No. 1 is stated to

have been present there. The complainant disclosed his identity and the

purpose of his visit and demanded and purchased 3 packets of 200 gm each

of Manikchand Gutkha, after making the requisite payments. The

complainant served a notice on the respondents-accused as contemplated

under the Prevention of Food Adulteration Act. Thereafter, samples of each

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of the said packet were prepared as per the Rules; one sample part and

relevant documents were sent to the Public Analyst and remaining two

parts and relevant documents were sent to the Local Health Authority on

22nd October, 1997. As the first Public Analyst reported that the sample

was of standard quality, the second sample part was sent to the Public

Analyst, Mumbai, by the Local Health Authority, Pune. The Public

Analyst, Mumbai stated that the sample contained Magnesium Carbonate

to the extent of 4.2%. Thereafter, the complainant after due inquiry

submitted all the relevant documents to the Joint Commissioner, FDA,

Pune, for obtaining consent. After consent to prosecute the respondents

was received, a complaint was lodged as against the respondents-accused,

in the Court of the learned Judicial Magistrate First Class, Pune, on 9 th

June, 1998.

The respondents-accused appeared before the learned

Magistrate. The complainant adduced evidence before charge and the

respondents-accused were given an opportunity to cross-examine the

witnesses. Thereafter, charge was framed as against the respondents-

accused. The respondents-accused pleaded not guilty and claimed to be

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tried. The learned Magistrate after considering the evidence on record, was

pleased to acquit the respondents of the aforesaid offences.

4. The prosecution in support of its case examined 4 witnesses

PW 1-Govinda Chaudhary, PW 2-Chandrakant Malekar, Assistant

Commissioner (Food), PW 3-Arun Jadhav, panch and PW 4-Kundalik

Shelar, Assistant Commissioner (Food) and Local Health Authority for

Pune District.

5. Perused the evidence and the impugned judgment and order.

The learned Magistrate after considering the evidence on record was

pleased to acquit the respondents-accused essentially for the following

reasons:

(i) that the first Public Analyst report, which showed that the

sample was of standard quality was not produced on record, although

admitted by the complainant. According to the complainant, on his request,

Local Health Authority sent the second sample part to the Public Analyst,

Greater Mumbai, who reported that the sample contained Magnesium

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Carbonate to the extent of 4.2%. Learned Judge has observed that Public

Analyst, Greater Mumbai had no jurisdiction at all to analyse and submit

the report with regard to the sample in question, which was drawn at

Shirur, Pune. He has further observed that even otherwise Exhibit 57 i.e.

the Public Analyst's report, Greater Mumbai, does not specifically show

that the provisions of Prevention of Food Adulteration Act/Rules have been

contravened. The learned Judge also observed that the said Public Analyst's

report, does not disclose the name and address of the manufacturer of

Gutkha in question, nor do the seal impression appear to have been

compared with. The said Public Analyst's report i.e. Exhibit 57 shows that

the analysis started on 13th December, 1997, whereas, the report is signed

by the Analyst only on 2nd January, 1998. Admittedly, the Public Analyst

who did the analysis was also not examined by the prosecution nor is there

any evidence forthcoming, as to why the complainant thought it necessary

to send the second part of sample to the Public Analyst, Greater Mumbai

and what were the reasons for the Local Health Authority to forward the

same to the Public Analyst, Greater Mumbai. Considering the two

contradictory Public Analysts' reports, the learned Judge granted benefit of

doubt to the respondents-accused. Apart from the aforesaid, PW 2-

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                                                                         apeal.815.02.220.doc

Chandrakant Malekar, the Local Health Authority has admitted in his

evidence that Rule 62 of the Prevention of Food Adulteration Rules

restricts the use of anti-caking agent in food articles and that in the

Prevention of Food Adulteration Act/Rules, the use of Magnesium

Carbonate has been specifically allowed in certain articles. PW 2-

Chandrakant Malekar has also admitted that in supari and lime, Magnesium

Carbonate is present in natural form. Admittedly, as has come in the

evidence, in the said food articles which were seized, supari and lime are

the material ingredients, in which Magnesium Carbonate is present in

natural form. It may also be noted that it is not the prosecution case that

Magnesium Carbonate has been used in the said Gutkha as an anti-caking

agent;

(ii) that the sealed contraband was not put in a container as

contemplated by the Rules and as such there was contravention of Rule 14

of the Prevention of Food Adulteration Rules, 1955. It was observed that

even the evidence of the complainant PW 1-Govinda Chaudhary indicated

that the alleged sample packets were not put in any container and that the

mouth thereof, was sealed as contemplated under the said Rule. The

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sample parts in the complaint Exhibit 1 and memorandum Exhibit 21 do

not specifically disclose the placement of the alleged seals on the sample

parts;

(iii) Non-placing of any documentary piece of evidence to show that PW

2-Chandrakant Malekar and PW 4-Kundalik Shelar, appointed as

Additional Collector FDA, Pune, were also appointed as Local Health

Authority;

(iv) It was observed that according to the prosecution, the

complainant had collected the samples in question in the presence of

panchas on 21st October, 1997 and that on very day, memorandum also was

prepared along with other documents. However, in Exhibits 19 (notice in

for, VI) and Exhibit 20 (notice under Section 14A of PFA Act) indicated

that the said panch witness had mentioned the date of signature thereon, as

20th October, 1997 i.e. the said date was of previous day of alleged visit of

the complainant, indicating that the notice had been served on the

respondents-accused prior to the collection of the samples. Panch witness

Jadhav has also affirmed that his signature was obtained on 20th October,

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1997 i.e. on the previous day of the alleged date of visit by the

complainant to the accused company. The learned Judge has observed that

the said fact also creates a doubt regarding the truthfulness of the

memorandum and other documents.

6. The aforesaid reasons given by the learned Magistrate for

acquitting the respondents-accused are cogent and cannot be said to be

perverse or unsustainable. The findings are consistent with the evidence on

record. There is no infirmity in the said order and hence, the appeal is

devoid of merits and as such is dismissed.

REVATI MOHITE DERE, J.

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