The State Of Maharashtra vs Ashok Kumar Manjayaa Shetty & Anr
2017 Latest Caselaw 2540 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION

                        Criminal Appeal No.1192 OF 2002

The State Of Maharashtra                                                 )
(At the instance of Food Inspector,                                      )
Food & Drugs Admn.(M.S.)                                                 )...Appellant

        Versus

1.Ashok Kumar Manjayaa Shetty                                            )
Manager, M/s.Amdar Niwas (Vistharit),                                    )
Uphar Griha, S.B.Road, Colaba,                                           )
Mumbai - 400 039.                                                        )

2.Ratnakar S.Shetty,                                                     )
Licencee & Conductor,                                                    )
Manager, M/s.Amdar Niwas (Vistharit),                                    )
Uphar Griha, S.B.Road, Colaba,                                           )
Mumbai - 400 039.                                                        )...Respondents
                                                                             (Orig.Accused)
                                            ---

Mr.Deepak Thakare, APP for the Appellant.

None for the Respondents.
                                        ---
                                     CORAM :  G.S. KULKARNI, JJ.

DATED : 15th May, 2017

----

Judgment:

1. This appeal by the State is directed against the judgment

and order dated 7 March 2002 of the learned Additional Chief

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Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai, in

C.C.No.91/S/1995 whereby prosecution of the respondents-accused

under Section 7(i) read with Section 2(ia)(a), 2(ia)(m) read with

Section 16 of the Prevention of Food Adulteration Act,1954, has

resulted into an acquittal.

2. The facts relevant for adjudication of this appeal are as

under:-

P.W.2 A.N.Rana, the Food Inspector visited the accused's

Uphar Griha on 5 October 1994 with Panch by name Naresh Anand.

It was noticed that stock of 5 litres of milk was stored for sale in

open can. P.W.2 - Rana purchased 750 ml. milk for test and analysis

from accused No.2. Notice under Form VI was issued by P.W.2.

According to the prosecution, the panchanama was drawn and

following the procedure, the samples of the milk were divided into

three equal parts and each part was poured in dry, empty and clean

bottles which were sealed and labelled in accordance with the rules

and were sent for analysis to the Public Analyst (P.A.). The report of

analysis recorded that there was adulteration of the milk. P.W.2

obtained the necessary permission from the Joint Commissioner of

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Food and Drugs Administration, Gr.Mumbai, and a complaint in

question came to be filed before the Trial Court against the accused

having committed offence under Section 2(ia)(a) and (m)

punishable under Section 16 of the Prevention of Food Adulteration

Act,1954.

3. In order to establish the guilt of the accused to have

committed the offences in question, the prosecution has examined

P.W.1 - Ravindra Shripad Chitnis working as a clerk in the office of

the Local Health Authority and P.W.2-Mr.Anil Narottam Rana, Food

Inspector.

4. The evidence of P.W.1 concerns receiving and forwarding

of the samples. P.W.2-Anil N.Rana-the Food Inspector has deposed

that he visited the premises of the accused and purchased 750 ml. of

milk. The milk so purchased was kept in a stainless steel pot

belonging to the accused and then, it was divided into three equal

parts, stated to be in empty, clean and dry bottle. P.W.2 states that

thereafter he added 20 drops of formalin to the contents of each of

the bottle and thereafter the mouth of the bottle was closed and seal

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was affixed on it and label was pasted on each part of the sample

part indicating the particulars. Each sample was wrapped in brown

paper and the ends were folded by pasting with gum. P.W.1 stated

that the LHA slip No.BMC/LHA-I/81573 was pasted on the wrapper

from bottom to top. P.W.1 then states that the signature of Accused

No.1, panch and his signature were taken on the covering LHA slip

and the wrapper. He deposes that thereafter a panchanama was

drawn under the signature of panch and accused No.1 (Exhibit P-

14). He deposes that on 6 October 1994, he sent one part of the

sample with Form VII to Public Analyst (P.A.), Mumbai, under a

letter at Exhibit P-15 and also forwarded a copy of specimen seal

expression by letter at Exhibit P-16. He further deposes that he sent

two parts of samples with two copies of Form VII to LHA under his

letter at Exhibit P-17 for compliance under Section 11(1)(c)(i). In

the cross-examination, P.W.2 admitted that he has mixed 20 drops of

formalin in each of the samples after division in each bottle. He also

admits that there was omission in the panchanama and the

complaint about the purchased quantity of milk being put in the steel

pot of the vendor and thereafter, making of three divisions.

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5. Considering the evidence, the learned Trial Judge has

held that the collection of sample and its division into three parts is

not mentioned in the panchanama or in the complaint which gives

an advantage to the accused. The learned Trial Judge has also held

that it was apparent that the milk sample was drawn on 5 October

1994 and the complaint was lodged in the Court on 17 April 1995

which is beyond the period of six months. Referring to the decision

of this Court in "Shaikh Abdul Vs. State of Maharashtra." 1, the

learned Trial Judge held that the delay of more than six months for

filing the complaint from the date of drawing sample of milk gives

benefit of doubt in favour of the accused. It was accordingly held

that the prosecution could not prove the commission of the offence

by the accused and acquitted the accused for the offiences in

question.

6. I have heard the learned Assistant Public Prosecutor for

the Appellant-State. With his assistance, I have perused the evidence

as also the impugned judgment and order and the documents as

placed on record. On examining the evidence, in my opinion, the

1 1986(3), Food Adulteration Cases Page 122

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learned Trial Judge is correct in coming to the conclusion that the

offences alleged against the accused are not proved. As apparent

from the record, there is a basic failure on the part of the P.W.2-Food

Inspector, as also admitted by him in his evidence that he did not

mix the formalin into the entire 750 ml. of the sample purchased by

him, but he added 20 drops of formalin in each bottle after division

of sample. This clearly indicates the breach of Rule 20 of the PFA

Rules. Further what is important is that the panchanama under

which this procedure was adopted, itself was not proved, inasmuch

as the panch witnesses were not examined. This goes to the root of

the matter. Once the panchanama is not proved, the entire edifice of

receiving P.A. Report on the basis of this sample would have no

sanctity. Also there was another infirmity, even assuming that the

panchanama was to be accepted, P.W.2 - Anil N.Rana admitted in his

cross examination that there was omission in the panchanama as

well as in the complaint about the mode of division of the sample as

described in the examination-in-chief which would result in breach

of Section 11(1)(b).

7. Apart from these basic infirmities, the learned Trial Judge

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is right in concluding that there was delay on the part of the

prosecution in lodging the complaint on 17 April 1995 after the

sample was drawn on 5 October 1994. The learned Assistant

Government Pleader is not in a position to contend that the

observations of the learned Trial Judge relying on the decision of this

Court in Shaikh Abdul Vs. State of Maharashtra (supra) are

incorrect and would in any manner lead to a perversity.

8. In the light of the above discussion, I find no perversity

or any illegality in the impugned judgment and order passed by the

learned Trial Judge acquitting the accused of the offence punishable

under Section 2(ia)(a), (m) punishable under Section 16 of the

Prevention of Food Adulteration Act,1954. Appeal accordingly fails

and is dismissed.

(G.S.KULKARNI, J.)