The State Of Maharashtra vs Avinash Vamanrao Oturkar & Ors
2017 Latest Caselaw 2667 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                          CRIMINAL APPEAL NO.968 OF 2002


      The State of Maharashtra
      (Through Shri. S.A.Chougule,                            .. Appellant
      Food Inspector, Pune.)                                    (Orig. Complainant)

               Vs.

      1)       Avinash Vamanrao Oturkar
      2)       Sudhir Chintaman Tembere
      3)       M/s. C.T. Distributors
      4)       Chandrakant Hirachand Shah
      5)       Girish Chandrakant Shah
      6)       M/s. Shah & Associates          .. Respondent
      7)       V. Shreeniwas Reddy        (Orig. Accused Nos.1 to 7)
                     ..

                                      ......
      Mr. Arfan Sait, Additional Public Prosecutor for the Appellant.
      None for the Respondents.
                                     ......

                               CORAM : PRAKASH D. NAIK, J.

DATED : MAY 30, 2017.

ORAL JUDGMENT :

This Criminal Appeal is preferred by the State

challenging the judgment and order of acquittal dated 16 th April,

2002 passed by the Chief Judicial Magistrate, Pune. The

respondents were acquitted of the offences under Section 7(i)

read with Section 2(ia) (a) and Section 7(v) read with Rule 37 of

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the Prevention of Food Adulteration Rules, 1955 punishable

under Sections 16 and 17 of the Prevention of Food Adulteration

Act, 1954 (hereinafter referred to as "the PFA Act", for short).

2 The brief facts of the prosecution case are as follows:

(a) The accused nos.1 and 2 were partners of firm, (accused

no.3) M/s. C.T. Distributors situated at Sadashiv Peth, Pune.

The accused nos.4 and 5 are the partners of accused no.6,

M/s. Shah & Associates situated at Shahupuri, Kolhapur.

The accused no.7 is the proprietor of manufacturing firm

known as British Biologicals, situated at Bangalore. This

firm manufactures the food article "B-protein".

(b) On 30th August, 1999 at about 7.30 p.m. the complainant

visited the accused no.3 M/s. C.T. Distributors at Sadashiv

Peth, Pune along with witness where the accused no.1 was

found present. The complainant disclosed his identity, so

also the identity of the witness to accused no.1. He also

disclosed his intention of drawing food sample to accused

no.1. The complainant demanded and purchased 3 jars

each weighing 200 grams of B-Protien chocolate flavour

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(Protein Food Beverages) from accused no.1 alongwith

other food articles.

(c) The present case is related to the sample of food drawn by

the complainant with regard to "B-Protein Chocolate

Flavour". The complainant divided 3 jars of above food

articles into 3 parts equally i.e. each part was consisting

one jar. The said 3 jars/parts were kept separately into the

dry, clean and empty polythene bags, those were closed by

candle heat, tied by thread horizontally and vertically and

sealed. Paper slips were also affixed thereon. The

panchanama was recorded and it was signed by the

complainant, accused no.1 and the witness.

(d) One of the sample part along with relevant documents was

sent to Public Analyst, Pune (hereinafter referred to as "the

P.A.", for short) for test and analysis and the remaining two

parts and relevant documents were sent to the Local

(Health) Authority, Pune (hereinafter referred to as "the

LHA", for short).

      (e)      On 1st November, 1999, the complainant received the report





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                of P.A. showing    that sample contains protein and iron

contents less than that declared on the label hence, it

contravenes Rule 27 of PFA Rules, 1955.

(f) After necessary investigation, all the relevant documents

were sent to Joint Commissioner, FDA, Pune, who issued

consent to prosecute the accused. Thereafter, the present

complaint was filed in the Court.

(g) The charge was framed against the accused on 19 th March,

2002 for the offences punishable under Section 7(i) read

with Section 2(ia) (a) and Section 7(v) read with Rule 37 of

the Prevention of Food Adulteration Rules, 1955 punishable

under Sections 16 and 17 of the Prevention of Food

Adulteration Act, 1954.

3 The prosecution examined three witnesses. P.W.1

Sukumar Annu Choughule who is the Food Inspector, who lodged

the complaint, P.W.2 Dr. Rawetkar is working as MOH, PMC and

LHA under the PFA Act and P.W.3 Mahesh Chavan acted as

pancha.

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      4                 P.W.1 has deposed that he has been notified as Food

      Inspector.         On 30th August, 1999, he visited the premises of

accused no.1 named and styled as M/s. C.T. Distributors situated

at Sadashiv Peth, Pune along with panch witnesses. Accused no.1

was present in the said shop and looking after the business of

selling of B-Protein food articles. The witness disclosed his

intention of inspection and taking samples of food articles for test

and analysis. Accused no.1 disclosed that he is partner of the

said firm. He inspected the premises. It was found that different

B-Protein food beverages having different flavours were stored

for sale in the said premises. The accused no.1 was running the

business without valid licence under the PFA Act. He further

deposed that he purchased 3 sealed and bearing identical labels

jars of B-Protein chocolate flavour each weighing 200 grams

along with other three samples. The accused no.1 sold the said

food article for analysis. The witness then took three sealed and

bearing identical label jars of said food articles each weighing

200 grams and divided it into 3 equal parts by count i.e. each part

consists of one jar of 200 grams. He then put these 3 jars into 3

clean, dry and empty polythene bags and sealed them on candle

heat. Then tied by thread horizontally and vertically and sealed

by means of sealing wax. Then he pasted sample labels bearing

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details of parts by means of gum. Each part was then wrapped in

separate brown paper and its open ends were folded in neatly

inside and pasted by means of gum. Then a paper slip issued and

signed by LHA & MOH, PMC, Pune were pasted around each

part from bottom to top by means of gum. Accused no.1 and

panch witness signed all parts. Each part was then tied by thread

horizontally and vertically and sealed by sealing wax at 4 places.

He recorded panchanama which was signed by him, accused no.1

and panchas. On 31st August, 1999 the sealed part of the said

sample alongwith original copy of form vii and covering letter

under Rule 17 in a sealed packet to P.A. Pune for analysis. He

also sent copy of form vii and specimen impression of seal used to

seal the said sample in a sealed packet alongwith covering letter

to P.A. Pune and MOH, PMC, Pune and copy of specimen

impression of seal in a sealed packet to LHA, Pune. He also

forwarded intimation letter under Section 11(1)(c)(i) to LHA by

hand delivery intimating about sending one part of sample to P.A.

Pune. On 31st August, 1999 he forwarded a letter along with form

no.6 dated 30th August, 1999 to accused no.6. It was revealed that

accused nos.4 and 5 are partners of accused no.6. Accused no.4

disclosed that he purchased the said food article from accused

no.7. On 1st November, 1999, he received report from P.A.

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      through LHA, Pune.       In the said report, it was opined that the

food articles contents protein and iron contains less than that

declared on label. The witness collected the information of

witness nos.1 to 3 from PMC, Pune. As per the information,

accused nos.1 and 2 were partners of accused no.3. On 2 nd

December, 1999 he sent letter to licencing authority FDA

Kolhapur to collect information of accused no.6. He visited the

firm M/s. Shah & Associates Kolhapur to collect information. It

was revealed that accused nos.4 to 6 sold the said food article to

accused no.3. Accused no.6 purchased the said food articles from

accused no.7, who is the manufacturer of the said food articles. It

was revealed that accused no.7 sold the said food article to

accused no.6 and the accused no.7 is holding licence under PFA

Act for manufacturing of the said food articles. On 31 st

December, 1999, the witness submitted all documents along with

covering letter proforma "A" to Joint Commissioner, FDA, Pune

through Assistant Commissioner (Food) FDA, Pune vide letter

dated 30th April, 2000. the consent order bears signature of Joint

Commissioner, FDA, Pune. The witness filed a complaint on 20 th

June, 2000. He sent a letter to LHA, PMC, Pune intimating them

about the prosecution and taking action under Section 13(2) of

PFA Act read with Rule 9-B and requesting him to send a copy of

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P.A. report to all the accused.

5 P.W.2 deposed that he is working as MOH, PMC and

LHA under the PFA Act for the jurisdiction of PMC area. On 31 st

August, 1999 he received a letter of intimation along with two

counter parts of the food sample. He received a separate letter

along with two specimen impression of seal on two separate

papers. He received P.A. report. On 30 th October, 1999 they

forwarded the P.A. report to Mr. Chougule. On 20 th June, 2000

Mr. Chougule intimated him that he has filed prosecution against

seven parties. On 26th June, 2000, the witness intimated all the

seven parties by separate letter regarding prosecution against

them. P.W.3 was examined as a panch witness. However, he did

not support the prosecution case and declared hostile. However,

he admitted his signature on panchanam Exhibit-34.

6 The trial Court after recording the evidence and

hearing both the parties delivered the impugned judgment of

acquittal. The trial Court has primarily held non-compliance of

procedural safeguard by the authorities with regard to the

seizure of article. The trial Court also observed that taking into

consideration the facts/reasons and the evidence put forth on

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record by the complainant, the prosecution has failed to prove the

charge levelled against the accused and, hence, they were

acquitted.

7 The learned APP Mr. Sait has submitted that the trial

Court has committed an error of acquitting the accused. He

submitted that the evidence on record was sufficient to prove the

charge against the accused and, therefore, the trial Court ought

not to have acquitted them. He submitted that the defence was

silent while cross-examining the witness qua the compliance of

procedural safeguards and has not been able to demolish the

prosecution case. He further submitted that the trial Court had

erred in coming to the conclusion that prosecution has failed to

prove the charges levelled against the respondent - accused. He

submitted that the finding of the trial Court about non-

compliance of Rules 14 and 15 of PFA Rules is contrary to the

record. The trial Court has committed an error in coming to the

conclusion that there is breach on the part of the complainant

about the mandatory provisions under Rule 16(d) of PFA Rules,

1955. He submitted that all the requisite procedural safeguards

were complied with. The report of the public analysis supports

the prosecution case and hence, the prosecution has established

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the charges levelled against the accused. He, therefore,

submitted that the decision of the trial Court is contrary to law.

This Court should interfere and set aside the impugned judgment

and order.

8 The defence had contended before the trial Court that

the complainant did not follow the legal procedure while the

complainant purchased three jars each weighing 200 grams of B-

Protein chocolate flavour (Protein food Beverages). The

complainant has deposed that he put these three jars into three

parts and each part consisting one jar and the said three jars

were kept separately into the dry, clean and empty polythene

bags, those were closed by candle heat. The trial Court has

observed that the said statement of the complainant indicates

that he used plastic bag as a container while making sample part.

The accused had contended that the plastic container i.e. plastic

bag is not at all suitable container as defined under Rule 14 of the

PFA Rules, 1955 and there is likelihood of tampering with the

same. It was also contended that the the container being plastic

bag it is open secret that lak seal cannot be put on it. The

complainant has closed the mouth of alleged container/plastic

bag by heat of candle and no lak seals were put as required under

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Rule 14 of the PFA Rules. The defence had relied upon the

decision of this Court delivered in the case of State of

Maharashtra Vs. Prabhudas Atalmal Baktani1. In the said

decision it was observed that contravention of taking the sample

in plastic paper in violation of Rule 14 and that by itself is fatal to

the prosecution. As sample should be required to sent to P.A. in

dry and clean container and it is not contemplated that the

sample should be sent in a plastic bag which can easily be

tamper with. The accused also relied upon Ruling in the case of

Bhojumal Dhanumal Kundal & Anr. Vs. Shirpur Warwad

Municipal Council, Shirpur and Anr2. In the said decision, it

was observed that compliance of Rule 14 is mandatory and non-

compliance will vitiate the prosecution. In the light of the

aforesaid vital aspects and the judicial pronouncement referred

to above, the trial Court observed that the complainant did not

follow the mandatory provisions under Rule 14 of the PFA Rule,

1955. I do not find any infirmity in the approach of the trial Court

since it is apparent that there was violation of Rule 14 as stated

hereinabove.

9 The trial Court further observed that in the evidence,

the complainant has deposed that "Then I pasted sample labels 1 1986(3) PFA Cases Page 221 2 1986 Cri.L.J.931

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bearing details of said sample and LHA Slip No.PMC(ii)

Sr.No.000115 on all 3 sample parts by means of gum". In the

light of the said deposition, the trial Court observed that the

complainant pasted label on the container i.e. plastic bag and not

on each part of so purchased jar. In fact, the complainant was

duty bound to paste the alleged label on so purchased jar itself.

The evidence does not disclosed that all the particulars/details

alleged to be shown on the said label. The accused in support of

the said contention relied upon the ruling reported in 1986(I) PFA

Cases Page 55. In the said decision this Court has observed that

"All bottles or jars or other containers containing samples for

analysis shall be properly labelled and the parcels shall be

properly addressed". Such procedure was not accepted which

mean the breach of Rule 17 inasmuch as the sample memo, in

form VII were not sent to the Public Analyst in a sealed cover. The

trial Court further observed that Exhibit 40 is a letter of

complainant addressed to LHA & MOH, but this is only

designation and no specific place i.e. city of the said officer or

place of local area of the said officer where the said officer is

placed is mentioned. P.W. Dr. Rawetkar and P.W.1 have not

identified the signature on Exhibit 40 to 42 made on behalf of

LHA Office, Pune. With regard to receipt of articles shown in

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letter under reference. The trial Court therefore observed that

the complainant has not at all properly followed Rule 15 of PFA

Rules, 1955.

10 The trial Court observed that Exhibit - 42 is a letter

of complainant addressed to LHA under Section 11(1)(c)(i) of PFA

Act, 1954 i.e. intimation to LHA. It shows compliance under

Section 11(1)(C)(i) of PFA Act about the alleged sample drawn on

31st August, 1999. The trial Court noted that the sample in

question was taken by the complainant on 30 th August, 1999 and

not on 31st August, 1999. Hence, the alleged compliance under

Section 11(1)(c)(i) of PFA Act is not at all of sample drawn on 30 th

August, 1999. With regard to the said infirmity, the accused had

relied upon the judgment of this Court in the case of State of

Maharashtra Vs. Raghunath Hindurao Gajbar3. In the said

decision, it was observed that compliance of the provision

regarding information to local Health Authority is mandatory. The

Court held that once the legislature prescribes such manner, the

same has got to be observed strictly by the person who has been

entrusted with the duty of implementation of the law by paying

attention to each of the mandatory requirements prescribed by

3 1984(I) PFA Cases Page 226.

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the law. The legislature has not made the provisions for

intimation to Local Authority of certain facts an empty formality.

The trial Court, therefore, observed that there is non-compliance

of the provisions laid down under Section 11(1)(c)(i) of the PFA

Act.

11 The trial Court further observed that the copy of

purchase bill Exhibit-64 shows that the food articles shown

therein were purchased by respondent no.3 from accused no.6 on

31st August, 1999 According to the complainant the sample was

taken on 30th August, 1999. Therefore the fact that the food

article shown in Exhibit-64 is dated 31 st August, 1999. It is

implicit that it does not relate to the seizure dated 30 th August,

1999. Thus, the accused have no concern with the alleged food

article. The complainant's case that the accused no.7 supplied

food article to the accused no.6. Accused nos. 4 to 6 have no

concern with the article in question, and, therefore, the trial

Court inferred that the accused no.7 has also no any concerned

with the alleged food article of which sample was drawn.

12 The trial Court further held that the panchanama

Exhibit-34 shows that the sample parts were tied by thread

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horizontally - vertically. Panchanama does not disclose that

sample part was tied above and across within the meaning of

Rule 16(d) of PFA Rules 1995. For the said purpose the learned

advocate for the accused relied upon the ruling in the case of

The State of Assam Vs. Sri Nath Mal Goenka & Anr. 4 In the

said decision, it was observed by Gauhati High Court that

compliance of Rule 16 is mandatory. A very strict liability has

been created by the Act. It is imperative that the sample taken

from the vendor reaches intact and elaborate procedure and

manner of packing and selling is complied with.

13 If a container is secured by means of strong twin or

thread not "above and across" but "above or across", it might be

possible even while keeping the knot of the twine or thread

intact, to remove the same, replace the contents, and put back

the the thread in its original position which may not be possible

because in a case that where a container is secured by means of

twine or thread. It was further observed that this is a important

safeguard given to the citizens against any possibility of mischief

against them and the same cannot be allowed to be tressed

lightly or whittled down by treating the same as directory. The

4 1990(2) PFA Case Page 174

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requirements of Rule 16, more particularly clause (d) thereof,

have to be held to be mandatory. The trial Court, therefore, held

that there is a breach of Rule 16(d) of the PFA Rule.

14 The trial Court further observed that in the P.A.

report the protein percentage by weight is shown as 14.06. It

does not show the actual wight of the protein found in the

sample. The report does not make it clear which process of

analysis had been used. Therefore, the facts mentioned in the

P.A. report cannot be relied upon. The reference was made to the

decision of State of M.P. Vs. Ganeshram 5. In the said decision,

it was observed that in the absence of factual data or reasons for

arriving at the conclusion, the P.A. report has been held vague. It

was not the responsibility of the respondent accused to summons

the P.A. and obtain the factual data. The burden lies upon the

appellant State which they have failed to discharge. The report of

the P.A. can be admitted in evidence without examining the P.A.

himself but the opinion contained in the report is neither

conclusive nor binding unless the conclusion is based on

sufficient data so that the Court can itself consider the

correctness thereof. It was further observed that in the said case,

5 1984(I) PFA Cases Page 307

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the Sessions Court has held that though the percentage of serious

components had been stated, the weight on the basis of which the

percentage is arrived at is not stated. The leaned advocate for the

accused also relied upon the decision of this Court in the case of

State of Maharashtra Vs. Baburao Daga Suryavanshi6 in

support of the aforesaid issue. In the said decision, it is observed

that the process employed for analysis was not clarified which

has resulted in acquittal which has to be sustained.

15 The trial Court also made reference to the fact tht

from the P.A. report Exhibit-54, it is apparent that there are

different sources of protein. The defence has placed reliance

upon the Book of Nutrition and Food Processing by H.G. Muller

and G. Tobin. The relevant extract from, book was quoted. The

trial Court, therefore, observed that there are different source of

protein and hence, the different factors have to be applied for

arriving at proper conclusion about quantity of protein in a food

article. In the present case, the P.A. has not shown which factors

had been used for coming to alleged conclusion. The P.A. has not

quoted in his report the multiplying factor used for estimation of

protein contents. The trial Court further recorded in paragraph

6 1990(I) PFA Case Page 94

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13 of the judgment that the complainant has not followed the

mandatory provisions of Rules 17 and 18 of PFA Rules, 1955. It

was observed that P.W.2 has admitted that P.A. report had been

received after the period of 40 days. P.A. was was not examined

by the prosecution to explain the discrepancies and, therefore,

P.A. report is not trustworthy. In paragraph 14 of the judgment, it

was observed that Exhibit - 115 is intimation of filing complaint

to the accused given by LHA. The said intimation undertakes that

the sample was collected on 31st August, 1999. It is the case of

the complainant that the sample in question was taken on 30th

August, 1999. Therefore, there is no intimation given to the

accused with regard to the sample dated 30th August, 1999

mentioned in Exhibit-1 i.e. complaint. The consent letter to

prosecute the accused at Exhibit - 91 also indicates that on 31 st

August, 1999 vide Article in question was supplied by accused

nos. 6 to accused no.3 although it is the case of the complainant

that the sample was taken on 30th August, 1999. In the light of all

these infirmities, the trial Court has observed that the

prosecution has failed to prove the charge levelled against the

accused and, therefore, acquitted the said accused.

      16                I have perused the evidence on record as well as the





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      documentary              evidence    adduced        by      the           prosecution.         The

infirmities as observed by the trial Court vitiates the prosecution.

I am of the view that the trial Court has taken a possible view

which does not require any interference. Apparently, there is

non-compliance of the Rules 14, 15 and 16 as stated hereinabove.

The prosecution has, therefore, failed to establish the charge

against the accused. The reasoning of the trial Court is

supported by various decisions of this Court as well as the other

Courts which are referred to in the judgment by the trial Court

and hence, I am of the view that the trial Court has rightly

acquitted the accused.

      17                Hence, I pass the following order:


                                          :: O R D E R ::


               (i)      Criminal Appeal No.968 of 2002 is dismissed;

               (ii)     No order as to costs.



                                            (PRAKASH D. NAIK, J.)