State Of Maharashtra vs Shri Shobhraj Valumal Lakhani And ...
2017 Latest Caselaw 6863 Bom

                                      1                                   apeal351.02-J.




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 351 OF 2002


 State of Maharashtra, 
 at the instance of Shri S.M. Choudhary,
 Food Inspector, Food and Drugs 
 Administration, Amravati.                                  ....       APPELLANT


                     VERSUS


 1) Shri Shobhraj Valumal Lakhani,           |
     Aged about 56 years,                    |-(Abated)
     Vendor, M/s Jai Sales Centre, Amravati. |

 2) Radheshyam Parasram Somani,
     Proprietor and Licensee of 
     M/s Vyankatesh Oil Industries, Amravati.               ....       RESPONDENTS

 ______________________________________________________________

             Shri N.B. Jawade, Addl.P.P. for the appellant, 
            Shri Pankaj Navlani, Advocate for respondent 2.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    6
                                               SEPTEMBER, 2017
                                            th



 ORAL JUDGMENT : 

The appeal is already on hearing party board. With the

consent of the learned Additional Public Prosecutor for the appellant

and respondent 2, the appeal is taken up for hearing forthwith.

2 apeal351.02-J.

2. The State is in appeal challenging the judgment and order

of acquittal dated 28-12-2001 delivered by the learned Chief Judicial

Magistrate, Amravati in Regular Criminal Case 86/1994, by and under

which the respondents are acquitted of offence punishable under

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

16(1)(i)(a)(ii) of the Prevention of Food Adulteration Act.

3. The learned Chief Judicial Magistrate has recorded a

finding of fact that before taking the sample of the groundnut oil, the

oil was not stirred and made homogeneous and, therefore, there was a

violation of Rule 14 of the Prevention of Food Adulteration Rules. The

said rule is held to be mandatory by inter alia by a judgment of this

Court reported in the case of State of Maharashtra Vs. Vinayak

Mahadeorao Waze & Another reported in 2005 All MR (Cri) 1174

and the relevant observation are thus :

"7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. The Food Inspector Narayan (P.W.1) clearly admits in his cross-examination that he did not carry with him any measuring instrument for taking out the sample of the groundnut oil from the unlabelled sealed tin which was kept in their shop. He also clearly admits that the oil was not stirred before collection of the sample. He also admits that he used the measuring instrument which was brought by accused No.1 from his house for collection of

3 apeal351.02-J.

the said sample. He further admits that the sample was divided into three parts and was collected by pouring the oil into three different bottles, but he did not clean and dry those bottles in presence of the accused and panch witness Mubarak. He further admits that while taking the sample he poured the ground-nut oil by using the funnel from the shop of the accused and that the funnel was being used by the seller for the sale of various kinds of oil. In such circumstances, it is quite obvious that the sample was improperly taken and failure to obtain the proper sample makes the subsequent analysis worthless."

4. The learned Chief Judicial Magistrate has also recorded a

findings of fact that the procedure was not followed when the sample

of oil was taken and the evidence on record is not sufficient to lend an

assurance that the utensil in which the sample was taken was clean.

The learned Chief Judicial Magistrate has inter alia relied on a

judgment in the case of Suresh Kumar vs. State of Haryana reported

in 1993(1) PFA 118.

5. I have given my anxious consideration to the evidence on

record and the findings recorded by the learned Chief Judicial

Magistrate. The issue is covered by a judgment of this Court which has

held Rule 14 of the Prevention of Food Adulteration Rules to be

mandatory.

4 apeal351.02-J.

6. The view taken by the learned Chief Judicial Magistrate is

a possible and plausible view and certainly not perverse. There is no

reason to interfere with the judgment of acquittal. The appeal is

rejected. Bail bonds of the accused stand discharged.

JUDGE

adgokar