Bombay High Court
The State Of Maharashtra vs Dewaram Mangaram Dharmavat & Ora on 18 May, 2017
Bench: A.S. Oka
Shridhar Sutar 1 248-APEAL-1013.02.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1013 OF 2002
The State of Maharashtra ... Appellant
Versus
1. Mr. Dewaram Mangaram Dharmavat
2. Mr. Bhakaram Jogaram Dewasi
3. Mr. Sohanlal Pannaji Choudhary
4. Mr. Sitaram Jasaram Choudhary
5. M/s. Choudhary Traders (The Firm) ... Respondents
.....
Mr. Arfan Sait, APP for the Appellant-State.
Mr. K.H. Parekh for respondents.
.....
CORAM : A. S. OKA, J.
DATE : 18th MAY, 2017.
ORAL JUDGMENT
1. By this appeal against acquittal, the State of
Maharashtra has taken an exception to the judgment and order
dated 15th January, 2002 passed by the learned Chief Judicial
Magistrate, Pune in Regular Criminal Case No. 21 of 1998, by
which the respondents accused were acquitted for the offences
under Section 7(i) read with Sections 2(ia)(a), 2(ia)(h) and 2(ia)
(m) punishable under Sections 16 and 17 of the Prevention of
Food Adulteration Act, 1954 (for short 'the said Act').
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2. The State Government had filed a complaint in the
Court of Chief Judicial Magistrate at Pune through a Food
Inspector. In the complaint, it is alleged that on 18th January,
1997, the then Food Inspector Shri. Ugale visited the premises of
Dharmawat Trading Company in Market Yard at Pune for the
purposes of sampling. At that time, it is found that second accused
i.e. second respondent was present in the premises of food shop
and was looking after the business. Shri. Ugale demanded black
pepper and by paying an amount, he purchased 600 gms of black
pepper(whole) from an open unlabeled gunny bag for test and
analysis. Complaint describes as to how the sample was divided
into three portions. Reliance is placed on memorandum drawn on
the spot. On 28th February, 1997 Shri. Ugale received a letter
from Local Health Authority (Pune Municipal Corporation)
recording that the Public Analyst opined that the sample is of
standard quality. Therefore, Shri Ugale sent a letter to the Local
Health Authority requesting to send remaining sample part to
another Public Analyst as he was of the opinion that the report of
the Public Analyst, Sangli was erroneous. Thereafter, a report of
Public Analyst of the Mumbai Municipal Corporation was called
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for, who opined that the food article contained mineral oil and is
adulterated as per the provisions of the said Act.
3. Process was issued on the said complaint on 25 th
March, 1998. The prosecution examined the complainant as well
as Shri. Ugale, the Food Inspector. After considering the evidence,
the impugned order of acquittal was passed by the learned Chief
Judicial Magistrate. The impugned order was passed mainly on
the ground that there was non compliance with the provisions of
Clause (b) of Sub-Section (1) of Section 11 of the said Act
inasmuch as, Shri. Ugale deposed that he did not clean the bottles
used for collecting samples of black pepper.
4. Secondly, it was held that the black pepper (whole) in
the bag having capacity of 6 kgs was not mixed together to have a
homogeneous sample. Thirdly, it was held that after a report of
Public Analyst was found to be favourable of the accused, there
was no reason to send balance sample to another Public Analyst. It
was held that no reasons have been recorded for sending the
remaining sample to another Public Analyst.
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5. Learned APP submitted that the order of acquittal has
been passed on hyper technical grounds and in fact, this is a case
where no other conclusion except the conclusion that guilt of the
respondents was established could have been recorded.
6. The learned counsel appearing for respondents relied
upon a decision of Division Bench of this Court in the case of
State of Maharashtra Vs. Gitaram Kaluram1. He also relied
upon a decision of this Court in the case of State of Maharashtra
Vs. Ghanshyam Motilal Gupta2. He also relied upon a decision of
this Court in the case of The State of Maharashtra Vs.
Madhukar B Dharne and another3.
7. I have perused the complaint, notes of evidence and
other documents on record. I have perused the evidence of Shri.
H.N. Ugale. In the examination in chief, Mr. Ugale has stated thus;
.......... " I issued notice u/s 14-A of PFA Act to
accused no.2. The o/c of said notice under
signatures of myself, accused no.2 & panch is at
Exh.62. Accused no.2 gave me 600 gms of black
pepper (whole) on clean white paper. I showed 3
dry clean and empty bottles to accused no.2 and
1 Criminal Appeal No. 64 of 1992 decided on 28th October, 1993.
2 Criminal Appeal No. 553 of 1996 decided on 18th February, 2009.
3 Criminal Appeal No. 228 of 1997 decided on 3rd March, 2009.
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panch I divided said sample in 3 equal parts on
clean and white papers. Then poured each part
into above bottles. Mouth of each bottle was tied
with plastic paper, and it was sealed with sealing
wax." ...
8. I have also perused the Complaint. Though in the
Complaint, it is mentioned that the second respondent gave 600
gms of black pepper on a clean white paper, it is not stated that
the sample was divided in three equal parts on clean and white
papers. In the cross examination, it is accepted that Panchnama at
Exhibit-64 does not record that Shri Ugale used a big paper for
taking black pepper sample and he divided it in three parts by
cutting the paper. He admitted that on the spot he did not clean
the bottles used for collecting the sample though he stated that
bottles were already cleaned. It is not disclosed who had cleaned
the bottles. Considering this part of the evidence, the learned
Chief Judicial Magistrate has recorded a possible finding that
there was no compliance of Clause (b) of Sub-Section (1) of
Section 11 of the said Act.
9. In paragraph 10 of the cross examination, Shri Ugale
accepted that the Local Health Authority vide letter at Exhibit-77
informed that Public Analyst, Sangli opined that sample was of
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standard quality. He stated that he cannot state as to why he
thought that the said report was not proper. That is the reason
why the learned Judge has recorded a conclusion that no reason is
brought on record as to why the report of Public Analyst, Sangli
was found to be incorrect and what was the reason for sending it
to another Public Analyst. The view taken by the learned Chief
Judicial Magistrate that the prosecution could not bring home the
charges against the respondents is a possible view which can be
taken on the basis of evidence on record. Therefore, no case is
made out to interfere in this appeal against acquittal. Accordingly,
I pass the following order.
ORDER
(i) Appeal is dismissed.
(ii) The bail bonds on the respondents stand cancelled.
(A. S. OKA, J.)
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