Bombay High Court
State Of Maha vs Arvind Shriram Lad on 8 May, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.71 OF 2003
The State of Maharashtra,
At the instance of Shri A.D.
Ajansondkar, Food Inspector,
Food and Drugs Admn., M.S.
Sarjepura, Ahmednagar.
...APPELLANT
VERSUS
Arvind Shriram Lad,
Age-45 years, Vendor and Prop. of
M/s. Prashant Provision Stores,
At & Post-Kolpewadi,
Tq-Kopargaon, Dist-Ahmednagar.
...RESPONDENT
...
Mr. S.J. Salgare, A.P.P. for Appellant.
Mr. Santosh S. Jadahvar, Advocate for Respondent.
...
CORAM: S.S. SHINDE, J.
DATE : 8TH MAY 2017
ORAL JUDGMENT :
1. This Appeal takes exception to the
Judgment and Order dated 2nd September 2002,
passed by the Court of Judicial Magistrate First
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Class, Kopargaon in R.T.C. No.366 of 1993, by
which Respondent - Arvind Shriram Lad came to be
acquitted from the offence punishable under
Sections 7(i) read with Section 2(ia)(a) and 2(ia)
(c) and 7(v) read with 2 (ia)(m) and Rule 44(h)
punishable under Section 16 of the Prevention of
Food Adulteration Act.
2. The prosecution case, in nut-shell, is as
under:-
A) The complainant A.D. Ajansondkar, Food
Inspector, Food and Drugs Administration,
Ahmednagar, filed the private complaint before the
Court of Judicial Magistrate First Class,
Kopargaon. He was an authorized officer to file
such complaint. The Respondent i.e. original
accused was proprietor of a firm M/s. Prashant
Provision Stores, situated at Kolpewadi, Tq-
Kopargaon, Dist-Ahmednagar and he was doing the
business of stocking for sale and selling the food
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articles. He had valid license to run such
business to sale food articles. In the complaint
filed by the Food Inspector, there is mention of
the premises from which the Respondent was doing
his business.
B) On 31st January, 1992 the complainant
along with an independent witness Shri Balnath
Kondaji Pagar, resident of Velapur, Tq-Kopargaon,
visited the premises of the Respondent accused at
about 12.30 p.m., where the accused was present.
Complainant disclosed his identity to the accused
and made his intention clear that he wants to draw
samples of food articles for test and analysis
under the provisions of the Food Adulteration Act
and the Rules thereunder. The complainant
inspected the premises thoroughly and purchased
600 gm. Turmeric (Haldi Powder), which was kept in
an open and unlabeled tin containing about 2 Kg.
Haldi powder. The complainant paid the amount of
purchase of said Turmeric. The complainant gave an
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intimation in Form No.6 to the accused for drawing
the said samples for test and analysis. The
complainant also issued a notice under Section
14(a) of the Prevention of Food Adulteration Act
and the Respondent was asked to disclose his name,
address of the supplier, and receipt was obtained
from the accused. The accused replied the said
notice. The complainant divided the sample then
and there into three equal parts and each part was
filled into clean, dry and empty polythene bag,
and after sealing of those bags containing
Turmeric and after taking proper care, complainant
affixed paper-slip bearing the signature of local
authority and Assistant Commissioner, Food and
Drug Administration, Maharashtra State, Ahmednagar
on each part of the sample from bottom to top.
Thereafter the complainant tied each part by a
twin horizontally and vertically and each part was
then sealed with sealing wax with four seals.
Thereafter the complainant obtained signature of
accused on the samples and accordingly panchnama
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was drawn.
C) It is the case of the prosecution that on
1st February, 1992, one part of the sample along
with Form No.XVII in sealed packet, was sent to
Public Analyst, Public Health Laboratory, Pune
through special messenger. On the next day,
remaining two part of samples were deposited by
the complainant with Local Health Authority and
Assistant Commissioner, Food and Drug
Administration, Maharashtra State, Ahmednagar. The
complainant received Public Analyst's report from
the Local Health Authority, Assistant
Commissioner, Ahmednagar on 9th March, 1992 along
with covering letter of Public Analyst, Pune. It
was disclosed in the report that the sample does
not conform to the standards of Turmeric Powder as
per the Prevention of Food Adulteration Rules,
1955. The complainant after receiving such report,
completed the necessary investigation and
submitted all the relevant papers to the Joint
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Commissioner, Nashik Division, Food and Drug
Administration for sanction as per Section 20 of
the Prevention of Food Adulteration Act and
accordingly necessary consent was received and
thereafter complaint was filed.
D) As per the prosecution case, Haldi
(Turmeric Powder) is an article of food within the
meaning of Section 2(v) of the Prevention of Food
Adulteration Act and Rules thereunder. It was
alleged that the accused on 31st January, 1992,
stored for sale and sold adulterated article of
food namely, Haldi Powder and thereby contravened
provisions of Section 7 read with 2(ia)(a) and
2(ia)(c) and 7(v) read with 2 (ia)(m) and Rule
44(h) punishable under Section 16 of the
Prevention of Food Adulteration Act and Rules
thereunder.
3. Thereafter the concerned Court framed the
charge against the Respondent - accused and after
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conducting full-fledged trial, acquitted the
Respondent - accused. Hence this Appeal by the
State.
4. Learned A.P.P. appearing for the State
invites our attention to Rule 7 of the Prevention
of Food Adulteration Rules, 1955 and submits that
there is forty days time limit to send the samples
for analysis, to test the same by the analyst and
for receiving the report. In his submission, total
forty days time is given as per the provisions of
Rule 7 of the said Rules and therefore findings
recorded by the trial Court in Para 18 of the
impugned Judgment that the sample is not tested
within prescribed statutory limit, is contrary to
the provisions of Rule 7 of the said Rules. It is
submitted that the sample was taken on 1st
February, 1992, and the same was sent on the very
next day for analysis and report was received on
4th March, 1992, and therefore the observations of
the trial Court that, the sample would have been
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tested in between 1st February, 1992, to 4th
March, 1992, and that the report does not disclose
the exact date on which the sample was tested, has
no basis, in as much as provisions of Rule 7 of
the Prevention of Food Adulteration Rules provides
for forty days time to test such samples and to
receive the report from the Public Analyst. It is
submitted that when one sample was found
contaminated, in that case there was no option for
the concerned Court but to convict the Respondent
accused. Therefore, the learned A.P.P. submitted
that Appeal deserves to be allowed.
5. On the other hand, learned counsel
appearing for Respondent i.e. original accused,
submits that the Respondent has stopped the
business of storing and selling the grocery
articles including Turmeric Powder. He submits
that already Respondent has stopped the said
business and settled in his life and doing some
other business. he submits that the Supreme Court
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in the case of State of Maharashtra and another
vs. M/s. Gopalprasad Govindprasad Agarwal and
others1, in the facts of that case, has taken a
view that the offences were committed almost
twenty years ago and therefore the Court declined
to interfere in the order of acquittal. He further
invites my attention to the Judgment in the case
of State of Maharashtra vs. Nandiram Badildas
Ahuja2 and submits that in the facts of that case
the Division Bench of the Bombay High Court at
Principal Seat, has taken a view that, by the time
the appeal against acquittal of the accused
therein was taken up for final hearing, the
accused abandoned the business in question and was
well settled in life and therefore order of
acquittal could not be disturbed. Relying upon the
aforementioned two Judgments, learned counsel for
Respondent submits that taking the same view, this
Court may not cause interference in the order of
acquittal. He invites my attention to the findings
1 A.I.R. 1999 S.C. 1507
2 1988(1) Bom.C.R. 68
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recorded by the trial Court and in particular Para
18 of the Judgment and submits that the trial
Court made specific observations that in the
report submitted, the Public Analyst has not
mentioned whether the article is injurious to
health or not. He further invites my attention to
Para 22 of the impugned Judgment and submits that
the trial Court has taken note of the fact that
concerned analyst who has examined the samples,
was not examined and on that count also the trial
Court extended the benefit of doubt to Respondent.
Therefore, he submits that an order of acquittal
may be confirmed.
6. I have considered the submissions of the
learned A.P.P. appearing for the State and learned
counsel appearing for Respondent. I have also
carefully perused the notes of evidence and the
findings recorded by the trial Court. It is true
that upon careful perusal of Rule 7 of the
Prevention of Food Adulteration Rules, 1955, forty
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days time is provided for completing the entire
exercise of testing/ analyzing the sample and
sending report to the competent authority. But in
the facts of the present case, as rightly
submitted by the learned counsel appearing for the
Respondent, the Public Analyst who has analyzed/
tested the sample, was not examined by the
prosecution. Apart from it, I also find
considerable force in his submissions that in
absence of examining the concerned Analyst, merely
on the basis of report received from the office of
the Public Analyst Pune, through the Local Health
Authority, Assistant Commissioner, Food and Drug
Administration, Ahmednagar, it is not desirable to
hold that the sample was contaminated. Upon
careful perusal of the evidence on record and also
the findings recorded by the trial Court and the
fact that the Respondent has stopped the business
of storing and selling the grocery items including
Turmeric Powder, and considering the fact that
concerned analyst who analyzed/ tested the sample
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was not examined, in my opinion the trial Court
was justified in giving benefit of doubt in favour
of the Respondent.
7. In the present case the Court of Judicial
Magistrate First Class, Kopargaon acquitted the
Respondent on 2nd September, 2002. That is also
one of the reason, in addition to the aforesaid
reasons, keeping in view the Judgment of the
Division Bench of the Bombay High Court at
Principal Seat in the case of State of Maharashtra
vs. Nandiram Badildas Ahuja, supra, not to cause
interference in the order of acquittal.
8. In the light of discussion in foregoing
paragraphs, I am not inclined to cause
interference in the impugned Judgment and order of
the acquittal. Hence the Appeal stands dismissed.
[S.S. SHINDE, J.]
asb/MAY17
