State Of Mah.Thr.Food ... vs Pankaj Arun Kalbande
2017 Latest Caselaw 2617 Bom

              apeal338.03.odt                                                                                     1/7

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         NAGPUR BENCH : NAGPUR.

                                              CRIMINAL APPEAL NO.338 OF 2003

               APPELLANT:                                 State   of   Maharashtra   through   Shri
                                                          Laxman   Ziblaji   Taksande,   Food
                                                          Inspector, Food & Drug Admn. (M.S.)
                                                          Chandrapur,   Tah.   &   Distt.
                                                          Chandrapur.
                                                                                                               
                                                                -VERSUS-

               RESPONDENT:                                Pankaj   S/o   Arun   Kalbande,   aged   22
                                                          years,   Proprietor   &     Vendor   of   M/s
                                                          Pankaj   Provisions,   Sarafa   Line,
                                                          Bramhapuri,   Tah.   Bramhapuri,   Distt.
                                                          Chandrapur.
                                                                                                                                

              Shri S. M. Ukey, Additional Public Prosecutor for the appellant.
              Shri V. A. Laghate, Advocate for the respondent.
              ----------------------------------------------------------------------------------------------------


                                                                            CORAM: A.S. CHANDURKAR, J.

DATED : 24 MAY, 2017.

th

ORAL JUDGMENT :

1. By this appeal filed under Section 378(4) of the

Criminal Procedure Code, 1973, the judgment dated 27-11-2002

in Regular Criminal Case No.49/2000 acquitting the respondent

for having committed offence punishable under Section 16(1)(a)

(ii), Section 7(i) read with Section 2(ia) of the Prevention of Food

Adulteration Act, 1954 is under challenge.

2. It is the case of the prosecution that the respondent

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was engaged in selling food articles including groundnut oil. On

4-11-1999, the Food Inspector visited the shop of the respondent

and purchased 450 grams of groundnut oil. This oil was divided

into three equal parts and filled in three bottles. The samples were

thereafter wrapped and were sent for analysis. After receiving the

report of said analysis, the documents were submitted to the Joint

Commissioner who granted consent for launching the prosecution.

On that basis, a complaint came to be filed against the respondent

under provisions of Section 7(1) of the said Act. The prosecution

led its evidence and at the conclusion of the trial, the learned

Judicial Magistrate First Class acquitted the respondent on the

ground that the respondent was entitled for benefit of doubt. It

was held that there was contravention of Rule 14 of the Prevention

of Food Adulteration Rules, 1955 (for short the Rules). It was

further held that there was non-compliance of provisions of

Section 13(2) of the said Act. Being aggrieved, the present appeal

has been filed.

3. Shri Ukey, learned Additional Public Prosecutor for the

appellant submitted that all necessary compliances had been made

by the Food Inspector before the complaint came to be filed. He

submitted that there was compliance with provisions of Section

13(2) by giving necessary intimation as contemplated by said

apeal338.03.odt 3/7

provisions to the respondent. He referred to the documents at

Exhibits 42 and 57 in that regard. He then submitted that before

the samples were collected, the oil had been stirred and hence,

provisions of Rule 14 of the Rules had been duly complied with.

He referred to the deposition of PW-1 at Exhibit-11 in that regard.

He then submitted that the provisions of Rules 17 and 18 were

also complied with and, therefore, the learned Magistrate was not

justified in granting benefit of doubt to the respondent. In support

of his submissions, the learned Counsel placed reliance upon the

judgment in the case of State of Maharashtra Vs. Shri Popat

Panachand Shah & Anr. 2004 ALL MR (Criminal) 1022. He,

therefore, submitted that the appeal deserves to be allowed.

4. Shri V. A. Laghate, learned Counsel for the respondent

supported the impugned judgment. According to him, various

mandatory provisions of the Rules had not been complied with.

He submitted that before the samples were taken, the stock from

which the samples were taken was not stirred and, therefore, it

could not be said that the samples had representative character.

According to him, the samples were not carefully sealed as

required by Rule 14 which was clear from the panchanama at

Exhibit-19. He further submitted that the bottles in which samples

were taken were not washed due to which the report of chemical

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analysis could not be relied upon. In that regard, he placed

reliance upon the judgment of the Division Bench in the case of the

State of Maharashtra Vs. Gitaram Kaluram 1993(2) Prevention of

Food Adulteration Cases 238. He then submitted that the sealing of

the samples was not in the manner required by Rule 16(b) of the

Rules. He further submitted that the consent given under Section

20 of the said Act was by the incharge authority and not by the

Joint Commissioner as required. He fairly stated that provisions of

Section 13(2) of the said Act had been duly complied with. In

support of his submissions he placed reliance upon the judgment

of the Division Bench at the Nagpur Bench in Criminal Application

No.760 of 1996 dated 4-7-1997 (Nagpur Municipal Corporation Vs

Ramprasad Manchand Sharma) as well as the judgment of learned

Single Judge in State of Maharashtra Vs. Ramesh Shriniwas Rao

1985(IV) of All India Prevention of Food Adulteration Journal 212.

He submitted that the respondent had been rightly acquitted by

the trial Court.

5. With the assistance of the learned Counsel for the

parties, I have perused the records of the case and I have given due

consideration to the respective submissions.

6. The prosecution had examined the Food Inspector who

had obtained necessary samples and his deposition is at Exhibit-11.

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In his deposition, he has stated that after purchasing the

groundnut oil, the samples were divided in three equal parts and

they were put in three cleaned, dried and empty bottles.

Thereafter, the cock of each bottle was sealed and each bottle was

labeled. The ends of the wrapper were folded and pasted. He has

then referred to grant of consent at Exhibit-40. In his cross-

examination, he admitted that before taking the sample of the oil,

the bottles must be shown to the accused and the panchas. This

fact was not mentioned in the panchanama. He further admitted

that he had not stirred the oil before taking its sample. He further

stated that there was no necessity of putting any seal on the lid of

the bottle.

7. The next witness examined was Venkatesh Vaidya at

Exhibit-46. He was the panch witness, but he did not support the

case of the prosecution.

The learned Judicial Magistrate First Class on

consideration of this evidence found that it was admitted by the

Food Inspector that he had not stirred the oil before taking its

sample. Another aspect which found favour with the learned

Magistrate was the non-compliance with the provisions of Rules 17

and 18 thereof.

8. The perusal of the entire material on record indicates

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that the samples had been collected by the Food Inspector without

stirring the entire material. Similarly, there is absence of evidence

that the sample bottles were cleaned and dried before the sample

was poured therein. In Municipal Corporation of City of Nagpur

(supra), in the panchanama, it was not mentioned that before

taking the sample, the entire material had been stirred. Though

this aspect was deposed by the Food Inspector, the same was

treated as an improvement and not accepted. The aspect of failure

to mention that the entire material had been stirred has been held

to be fatal. The aspect of failure to stir the groundnut oil before

taking its sample would indicate that the sample is not of

representative character which aspect has been considered by the

Division Bench in Ramprasad Manchand Sharma (supra). The

Division Bench in Gitaram Kaluram (supra) has held that failure to

establish that the sample bottles were cleaned and dried before the

sample was poured was a fatal infirmity. These aspects go to the

root of the case of the prosecution and in view of the admissions

given by the Food Inspector in his cross-examination, the same

would be fatal to the case of the prosecution.

9. In so far as the non-compliance of the provisions of

Section 20 of the said Act are concerned, there was no suggestion

given to the Food Inspector in his cross-examination that the

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consent was granted by an Officer not competent to do so. Though

the learned Counsel for the respondent sought to rely upon the

notification appointing the concerned Joint Commissioner

subsequently, it is not necessary to go into that aspect as the

impugned judgment is liable to be maintained on account of non-

compliance of other mandatory provisions. Similarly, I find that

there has been compliance with provisions of Section 13(2) of the

said Act in the light of documents at Exhibits 42 and 57.

10. In so far as the decision relied upon by the learned

Additional Public Prosecutor in the case of Popat Panachand Shah

(supra) is concerned, the same is on the aspect of substantial

compliance with provisions of Rules 14 and 16 of the Rules.

However, once it is found that the sample as taken was without

stirring and, therefore, not of representative character, the ratio of

said decision cannot assist the case of the prosecution.

11. In view of aforesaid discussion, it cannot be said that

the learned Judicial Magistrate First Class while acquitting the

respondent took in a perverse view requiring interference. There

being no merit in the appeal, the same stands dismissed. Order

accordingly.

JUDGE

//MULEY//