The State Of Maharashtra vs Shekhar Govind Athawale & Ors
2017 Latest Caselaw 2553 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CRIMINAL APPELLATE JURISDICTION

                        Criminal Appeal No. 1256 OF 2002

State Of Maharashtra                                                     )
Through: Mr.M.S.Kembalkar,                                               )
Food Inspector, Pune.                                                    )...Appellant

        Versus

1.Shri.Shekhar Govind Athawale                                           )
2.Sou Kamal Govind Athawale                                              )
3.Sou.Rohini Madhukar Athawale,                                          )
4.Sou.Kavita Kishor Athawale                                             )
5.Sou. Gauri Shekhar Athawale,                                           )
6.M/s.Athawale Dairy Products,                                           )
situated at 568, Shaniwar Peth, Pune 30.                                 )...Respondents
                                 ----

Mr.Deepak Thakare, APP for the State/Appellant.

None for the Respondents.

                                        ---
                                     CORAM :  G.S. KULKARNI, J.

DATED : 16th May, 2017

----

Judgment:

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

order dated 20 February 2002 of the learned Chief Judicial Magistrate,

Pune, whereby respondents-accused stand acquitted of the offences

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

with Section 16 and 17 of the Prevention of Food Adulteration Act,1954.

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

under:-

P.W.1 Mohan Shankar Kembalkar is the food inspector and the

complainant. On 18 December 1997 at about 12 noon he alongwith P.W.2

- Laxmikant, the panch witness visited M/s.Athavale Dairy Products, 568

Shaniwar Peth, Pune - Accused no.6, which was a concern dealing in the

business of manufacturing and selling of milk, curd and various milk

products. Accused No.1 - Shekhar Govind Athawale was present and was

selling food articles who disclosed to P.W.1 that he is one of the partners of

Accused No.6 - M/s.Athavale Dairy Products and Accused Nos.2 to 5 are

the other partners. P.W.1 inspected the premises and prepared the

inspection report (Exhibit 44). The inspection revealed that alongwith the

other food articles 3 kgs of curd was found stored in one open unlabelled

aluminum tray. It was informed by Accused No.1 that it was prepared

from buffalo milk. P.W.1 purchased 600 gms. of curd for test and analysis

and issued notice in Form VI to Accused No.1. The case of P.W.1 is that he

followed the necessary procedure, a panchanama was undertaken, the

samples of the curd were distributed in three containers, the samples were

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forwarded to the Public Analyst (P.A.) and Local (Health) Authority. The

Local (Health) Authority and P.A., Pune sent a report dated 16 February

1998 recording that the sample does not conform to the standard

prepared for buffalo milk, as per PFA Rules. After completion of the

investigation, the complainant submitted all the relevant documents to the

Joint Commissioner, FDA, Pune seeking consent to prosecute the accused.

On receipt of the consent, the complaint in question came to be filed in

the Court of learned Chief Judicial Magistrate. The learned Trial Judge

vide Exhibit 69 framed the charges. The accused pleaded not guilty and

claimed to be tried. On behalf of the prosecution, the complainant - P.W.1

examined himself and the other witness examined was P.W.2 -the panch

witness who turned hostile as in the cross-examination stated that the

panchanama had not taken place in his presence.

3. The learned Trial Judge after considering the evidence on

record has come to the conclusion that there was a basic non compliance

of Section 11(1)(b) of the PFA Act., Rule 14, 15 and 16(c) of the PFA

Rules which deals with the procedure required to be followed by the

complainant in taking the samples and forwarding the same to the Public

Analyst and other various aspects mandatorily required to be followed by

the complainant. Also a report from the Central Food Laboratory, Calcutta

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was obtained. The learned Trial Judge also observed that there was

material variance between P.A. report and the report of the Central Food

Lab, Calcutta, which indicate that the samples in question was not a

representative sample. Apart from this, as observed by the learned Trial

Judge, there was no evidence on record to show that proper care was

undertaken to wash and clean the empty containers before the collected

samples placed in those bottles. Further P.W.1 admitted in the cross

examination that he had not given details of label description mentioned

in the label as per Rule 15, in the panchanama and the complaint, this

according to the learned Trial Judge clearly indicated that P.W.1 did not

follow the mandatory procedure stipulated under Rule 15 of the PFA

Rules. Taking into consideration all these basic infirmities in the

procedure adopted, the learned Trial Judge concluded that the

prosecution could not bring home the guilt of the accused that he had

committed the offence in question.

4. I have heard Mr.Thakare, learned Assistant Government

Pleader for the appellant., and with his assistance I have perused the

evidence as placed on record as also the impugned judgment and order.

On examining the evidence, it is quite clear that the mandate of Section

11(1)(b) of the PFA Act and Rules 14, 15 and 16(c) of the PFA Rules has

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not been followed by the complainant in undertaking the investigation

against the accused for the offence in question. It is a settled principle of

law that right from collection of samples till the same are handed over to

the Public Analyst for obtaining an appropriate report, number of

requirements/safeguards are contemplated to be adhered by the

concerned officer, so that a correct and an accurate report on the samples

is obtained for further action to be taken in accordance with law. In the

present case, the first infirmity is that the drawing of samples itself is not

proved in view of the panch witness disowning the panchanama when he

deposed that it had not taken place in his presence. Apart from this basic

infirmity, as observed by the learned Trial Judge, there is grave doubt in

placing of samples in bottles and adding of formalin not to the whole

samples, but in the portion separated in the bottles. Further, there are

serious defects in the labeling procedure as the Rules in question would

mandate. All these irregularities would undoubtedly vitiate the report

which is received from the P.A. authority. Such a report would have no

sanctity tested on the mandate of the Rules. Further, there is substantial

variance in the P.A.Analysis and the report of the Director of Central Food

Lab., Calcutta which would also indicate that the sample was not at all

representative. The findings of the learned Trial Judge are on the basis of

the evidence placed on record and I do not find that there is any

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perversity or illegality in the observations as made by the learned Trial

Judge.

5. For the above reasons, the appeal fails and is accordingly

dismissed.

(G.S.KULKARNI, J.)