Bombay High Court
The State Of Maharashtra vs Damodar Namdeo Wabale & Ors on 17 May, 2017
Bench: A.S. Oka
Yadav VG 1 241.Apeal.898.02.odt.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 898 OF 2002
The State at the instance of .... Appellant
Mr. S. D. Mokashi, (Orig.Complainant)
Food Inspector,
Food and Drug Administration,
Pune.
Versus
Mr. Damodhar Namdeo Wabale, Vendor .... Respondents
and Others. (Orig. Accused)
----
Mr. Arfan Sait, APP for Appellant/State.
None for Respondents.
----
CORAM : A. S. OKA, J.
DATE : MAY 17, 2017.
ORAL JUDGMENT
. Heard learned APP in support of the Appeal.
2. The challenge is to the Judgment and Order dated 24 th May
2002 passed by the learned Chief Judicial Magistrate at Pune. A complaint
was filed by Food Inspector in the Court of the learned Chief Judicial
Magistrate at Pune alleging commission of offences under Section 7 (i)
read with Section 2 (ia) (a), 2 (ia) (m) punishable under Sections 16 and
17 of the Prevention of Food Adulteration Act, 1954 (for short, "the said
Act").
Yadav VG 2 241.Apeal.898.02.odt.
3. The case made out in the complaint filed by the Food
Inspector is that on 17 th May 2001 in the afternoon, he visited the factory
of the Respondents/Accused wherein they were conducting business of
manufacturing (packing) for sale and stocking of food article groundnut
oil. The allegation in the complaint in short is that the said groundnut oil
was adulterated. The case made out in the complaint is that he purchased
quantity of 450 grams of groundnut oil from packed tin and 450 grams of
groundnut oil from a tank of the 1 st Respondent - 1st Accused. He paid
price thereof vide Cash Memo at Exhibit 23. According to the case made
out in the complaint, the 1st Respondent gave the said quantity of oil in
clean and dry plastic mug after weighing it with the help of measuring
scale. The complainant stated that by using plastic mug and measuring
scale, he put representative portions into three separate clean, dry and
empty glass bottles. Thereafter, he stated as to how the glass bottles were
wrapped in thick brown paper and sealed. He stated in the complaint that
remaining quantity of groundnut oil was put into 20 tins. Reliance is
placed on the report of the Public Analyst (P.A.), Pune in which he opined
that the sample of groundnut oil was adulterated as per the provisions of
the said Act. Process was issued to the Respondents on the said complaint
and the Respondents were tried.
4. The order of acquittal has been passed by the learned
Yadav VG 3 241.Apeal.898.02.odt.
Magistrate mainly on two grounds. The first ground is that that there is
no evidence on record to show that the plastic mug in which sample was
kept was clean and dry and that the bottles were clean and dry. The
second reason given is that P. A. Report at Exh.41 does not show that the
oil sample was injurious to the health.
5. The learned APP has taken me through the notes of evidence
and impugned Judgment. He submitted that impugned Judgment is
perverse, as ingredients of all offences were proved by the complainant.
He submitted that order of acquittal has been passed on the grounds
which were totally unwarranted and not supported by evidence on record.
6. None appears for the Respondents.
7. I have perused the notes of evidence and the impugned
Judgment. In paragraphs - 3 and 4 of the complaint, it is the case of the
complainant that the quantity of groundnut oil purchased by him was
given to him by the 1st Respondent in a clean and dry plastic mug. He
divided the quantity in plastic mug in representative portions and put it in
to three separate clean, dry and empty glass bottles. Thus, it is his case in
the complaint that the mug was provided by the 1 st Respondent. It is not
his case that the bottles were provided by the 1 st Respondent or by any
other Respondent.
Yadav VG 4 241.Apeal.898.02.odt.
8. In paragraph 3 of the deposition, the complainant has
maintained the said stand. What is material is paragraph 10 of his
deposition, which reads thus :
"It is true that I did not wash mugs and alleged bottles at the
oil mill in question. The witness volunteers that I had washed it
and cleaned it in person before going to said oil mill. I did said
work on the previous day of sampling. There is no written entry
that I had done so. I did not use funnel to put the oil in sample
bottle. It is not true that I did not make equal parts with the
help of weighing scale. It is not true to say that I did alleged
sample parts approximately. It is not true to say that the
alleged mug, bottles were dirty hence, P.A. has opined
accordingly."
9. Thus, in the complaint his case is that the mug was provided
by the 1st Respondent. When he was confronted in the cross-examination
with the fact that the mug was not washed, he admitted that the mug was
not washed on the relevant day, but he came up with a new case that he
had washed it and cleaned it on earlier day before going to the Oil Mill.
The said statement in the cross-examination runs completely contrary to
the stand taken in the complaint and in the examination-in-chief wherein
it is stated that after the complainant purchased the oil samples, the mug
was provided by the 1st Respondent. Therefore, there was no question of
complainant washing and cleaning it on the earlier date. It is not recorded
Yadav VG 5 241.Apeal.898.02.odt.
by the complainant anywhere that he washed and cleaned the mug as
well as three bottles.
10. Rule 14 of the Prevention of Food Adulteration Rules, 1955
provides that samples of food for the purpose of analysis shall be taken in
clean, dry Bottles or Jars. In the present case, basic safe-guard provided
by Rule 14 was not complied with by the complainant. In fact, a possible
conclusion which can be drawn on conjoint reading of the complaint and
the deposition of the complainant is that the complainant himself did not
wash and clean the plastic mug and the bottles. Therefore, the view taken
by the learned Magistrate that the guilt of the Respondents - Accused is
not proved beyond reasonable doubt is certainly a possible view which
could have been taken on the basis of evidence on record. Hence, no
interference is called for with the impugned order of acquittal in this
Appeal against acquittal.
11. Accordingly, Appeal is dismissed.
(A. S. OKA, J.)
