The State Of Maharashtra vs Bharat Anant Shinde
2017 Latest Caselaw 2400 Bom

                                      1                      212-apeal-459-1999.doc

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 459 OF 1999


      The State of Maharashtra                             ...     Appellant
                  V/s.
      Bharat Anant Shinde                                  ...     Respondent.


      Mr. Deepak Thakare, APP for the Appellant.

      None for the Respondent.

                                          Coram : P.N.DESHMUKH, J.

Date : 8 May 2017

ORAL JUDGMENT

1. This appeal is preferred by the State of Maharashtra

against Judgment dated 12th February 1999 passed by the learned

Judicial Magistrate First Class, Dahiwadi in Regular Criminal Case

No. 130 of 1996, thereby acquitting the Respondent of the

offences punishable under Section 2(ia) (h) 2(ia) (m), Rule 47 read

with Section 7(1) punishable under section 16 of the Prevention of

Food Adulteration Act, 1954.

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2. The case of the prosecution in brief is that Mr B.K.

Karyappa, the complainant who is Food Inspector on 2nd February

1996 along with panch witness inspected the shop of accused and

purchased ice-candy as a sample for analysing it, after issuing

notice to accused in Form No. 6 and under Section 14 of the Act

and after melting them filled the liquid in three separates bottles out

of which one sample was sent to Public Health Laboratory, Pune

along with Form No.7 on the following day, while remaining two

samples along with Form No. 7 were sent to Local Health

Laboratory, Satara. The report of Public analyst stated that the food

article i.e. ice candies were not conforming to the standards under

the Prevention of the Food Adulteration Act, 1954 as were

adulterated. The report of Public analyst was sent to Respondent.

3. On the basis of report of Public Analyst investigation

was carried out and all the necessary documents were collected

from the shop of Respondent and were forwarded to the competent

authority for according sanction to prosecute the Respondent. On

receipt of sanction the complaint came to be lodged and notice

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under Section 13(2) of the Prevention of Food and Drug

Administration Act came to be issued to the Respondent.

4. The learned Trial Court after recording evidence since

came to conclusion that there was prima facie substance in the

complaint to proceed against the accused explained charges vide

Exhibit 50 under Section 2(ia) (h) 2(ia) (m), Rule 47 read with

Section 7(1) punishable under section 16 of the Prevention of Food

Adulteration Act, 1954. Accused pleaded not guilty and claimed to

be tried.

5. It is the specific case of the Respondent that he had no

space for storing ice candies for sale and he has not sold the ice

candy. He had kept the mixture of Soda Lemon as well as

carbonated water in the freeze in his shop. The samples were drawn

by the complainant inspite of Respondent objected for the same.

Thus it is the case of the Respondent that he is falsely implicated by

lodging false complaint.

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6. Having considered the facts as aforesaid following point arise

for determination:-

1. Whether on 2nd February 1996, the Respondent was found

stored for sale ice candy which according to the report of Public

Analyst was found containing ingredients which rendered it

injurious to health and has therefore, committed offence punishable

under Section 2(ia) (h) 2(ia) (m), Rule 47 read with Section 7(1)

punishable under section 16 of the Prevention of Food Adulteration

Act, 1954.

7. I have scrutinized evidence of complainant PW No.1 as

well as that of PW No.2, the Local Health Authority and PW No.3

independent panch witness and the documents forming part of the

paper book.

8. Heard learned APP for the Appellant. None appeared for

the Respondent. The Appeal since is pending for long time same is

duly heard on merits, as it can be disposed of after perusing the

record, judgment of the Trial Court and on evaluating evidence. The

plain reading of Section 385 of the Code of Criminal Procedure

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does not contemplate dismissal of an Appeal. On the contrary, the

code envisage disposal of Appeal on merits on perusal and

scrutinizing record.

9. In that view of the matter, Appeal is duly heard even in

the absence of Respondent and is disposed of by not merely

perusing reasons of the Trial Court in the judgment but by cross

checking the evidence on record with a view to satisfy that the

reasoning and finding recorded by the Trial Court are consistent

with the material on record.

10. It appears to be the case of prosecution that the

complainant had obtained samples out of ice candies after melting it

in the steel container, while it is the case of the Respondent that

complainant had obtained samples of a carbonated water used as

raw mixture which was kept in the fridge for preparation of Soda

Lemon. This aspect appears to have been duly admitted by

independent panch witness Shri Dattatraya Tukaram Kavi. He has

deposed that there was carbonated water or raw mixture of Soda

Lemon kept in the freeze from which complainant took the sample

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for analysis. It is further admitted that at that time Respondent was

objecting for said constantly, saying that it is not of ice candy but it

is a raw mixture and carbonated water kept for the preparation of

Soda Lemon. Inspite of that complainant collected its samples.

Having considered evidence of independent panch witness as

aforesaid, therefore, it has come on record that the samples

collected by PW No.1 complainant were not of ice candy but of

carbonated water kept for preparation of Soda Lemon.

11. Prosecution case is that the complainant had sent

samples of ice candy to Public analyst which are accordingly tested

by said authority applying standards of ice candy, and as such the

conclusion of it is bound to come in the wrong way and in that view

of the matter, Public Analyst report on record at Exhibit 29 also

does not appears to be convincing to be acted upon as from the

evidence as aforesaid of independent witness, establishes that no

samples were drawn out of ice candy.

12. Perusal of evidence of Public analyst, local authority

who is PW No.2 Shri Janardan V Shinde is silent about process

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applied for analyzing and the percentage of the ingredients found in

the sample. In that view of the matter, report at Exhibit 29 even

otherwise appears to be incomplete. Moreover no other ingredients

found in sample are stated to be injurious to health nor it is stated

that the sample was of below standards. The case of the prosecution

thus fails on this count itself, which is mainly based on report of

public analyst.

13. Another point for consideration from the evidence of

PW No.1, complainant is that he took 20 ice candies in frozen

condition for the purpose of analysis and had removed the sticks of

those ice candies and then he kept the ice candies for melting to the

liquid form and thereafter collected samples in bottles. It is found

that the samples which are taken by the complainant were thus in

frozen form while what is sent as samples is in liquid form. It was

necessary for the complainant to obtained ice candies in its original

form and preserve it in a suitable container so as to send it for

analysis in its original form however that is not found done. On

considering definition of ice candies same is stated to be in a frozen

form which may contain the permitted flavours and colours, sugar,

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syrup, fruit etc. but shall not contain any artificial sweetener. The

duty is casted upon the officers to collect samples of candies in a

frozen form and thus it is expected that when samples are obtained

in a frozen form then same needs to be treated properly by putting

them in to suitable container to maintain its temperature till the

sample is sent to Public Analyst. In the case in hand it has come on

record that complainant used the steel container for melting the ice

candies. Said steel container was from the hotel of accused. The

evidence of complainant is totally silent if on obtaining the steel

container he has taken due care of drying it before he got ice

candies melted in it or had cleaned it. This aspect carries much

importance as said steel container was used in the Respondent's

shop. In that view of the matter, it is highly improbable that the

container was totally clean and dried and in that view of the matter

the process adopted for collecting samples itself appears to be

defective.

14. In the case of Chandrappa & Ors Vs. State of

Karnataka1, the Apex Court has considered the scope of Section

1 (2007) 4 Supreme Court Cases 415.

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378 contemplating appeal against acquittal, and has restated that

when two views are possible on evidence on record, one taken by

the Trial Court in favour of accused should not be disturbed. Even

otherwise the scope of interference in Appeal against acquittal is by

now well established. Unless the view taken by the Trial Judge is

either impossible or perverse, it is not permissible by this Court to

interfere therein. The learned Trial Judge by well reasoned order has

found that the prosecution has miserably failed to prove the charge

levelled against the accused. Upon perusal of the judgment and

material on record, I do not find that the view taken by the learned

Trial Judge is either perverse or impossible so as to warrant any

interference.

15. In the circumstances Appeal is liable to be dismissed.

(P.N.DESHMUKH, J.)