Bombay High Court
The State Of Maharashtra vs Eknath Bapusaheb Raijadhav on 29 October, 2021
Bench: C.V. Bhadang
223 apeal 1345-06.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1345 OF 2006
The State of Maharashtra ..Appellant
V/s.
Eknath Bapusaheb Raijadhav ..Respondent
----
Mr. S.R. Agarkar, APP for the Appellant/State.
None for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 29 OCTOBER 2021
JUDGMENT
1. By this Appeal, the State is challenging the Judgment and
Order dated 11.10.2004 passed by the learned Chief Judicial
Magistrate, Kolhapur in Regular Crime Case No. 325 of 2002
(old Reg. Crime Case No. 72 of 1994). By the impugned
Judgment, the learned Chief Judicial Magistrate has acquitted the
Respondent from the offence under the Prevention of Food
Alteration Act, 1954.
2. The prosecution case is that the complainant A.S. Kulkarni,
who was at the relevant time working as a Food Inspector along
with staff and panchas had visited M/s. Vikas Ice Cream and Cold
Drink Factory run by the Respondent at about 3.00 pm of
Sneha Chavan page 1 of 6
223 apeal 1345-06.doc
20.10.1993. According to the complainant, he inspected the
premises and obtained 600 grams of ice-candy from the
establishment of the Respondent and the said ice-candy was
melted in a pot which was cleaned and dried. It was then divided
into three parts which were sealed and one of the parts was sent to
the Public Analyst and other to the Local Health Authority on
21.10.1993. According to the complainant, the Respondent
refused to accept the price of the ice-candy or to issue a
receipt/invoice and also refused to sign the panchanama and the
copy of the Form VI under Section 14-A of the said Act. The
Public Analyst by his report dated 12.11.1993 found that the
sample was containing Saccharine and dulcin which are
prohibited under the said Act and the Rules thereunder.
According to the complainant, substance dulcin is carcinogenic in
character. The complainant then sent a proposal to the Joint
Commissioner (Pune Division) Food and Drugs Administration,
Maharashtra State for obtaining consent under Section 20 of the
said Act. The Joint Commissioner accorded the consent on
16.08.1994 after which the complaint came to be filed against the
Respondent under the relevant Section before the learned Chief
Judicial Magistrate at Kolhapur.
3. The learned Chief Judicial Magistrate framed charge for
the offence punishable under Section 7(i) read with Section 2(ia)
(a), 2(ia) (b), 2(ia)(c) and 2(ia) (m) and Section 7(v) read with
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Rule 47 of the Rules to which the Appellant pleaded not guilty
and claimed to be tried. According to the Appellant, he was not
present in his factory at the time of visit of the complainant and
the sample was not taken from his factory.
4. At the trial the prosecution examined PW-1 Arun Kulkarni
PW-2 Salauddin Momin, PW-3 Harun Pathan. The Respondent
did not lead any evidence in defence.
5. The learned Chief Judicial Magistrate has found that the
complainant had contravened Rule 16(b) & (c) and Section 11
(1) (c) of the Act as the samples were not shown to be taken and
sealed as per Rules. The learned Chief Judicial Magistrate also
found that the report of the Public Analyst has not been
satisfactory proved by examination of the Public Analyst. The
learned Chief Judicial Magistrate also found that the report dated
12.11.1993 of the Public Analyst does not show as to the date of
which the sample was analised. For all these reasons, the learned
Chief Judicial Magistrate found that the prosecution had failed to
establish the charge, beyond reasonable doubt.
6. I have heard the learned APP. None appears for the
Respondent. With the assistance of the learned APP, I have gone
through the record.
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223 apeal 1345-06.doc
7. It is submitted by the learned APP that the Respondent in
his statement under Section 313 of the Cr.P.C. has not stated
about his absence in the factory when the samples were taken. It
is submitted that the Respondent failed to issue a receipt/invoice
and also refused to sign the panchanama and notice under Form
VI. The learned APP pointed out that the complainant
subsequently sent Rs.25/- by money order towards the price of
the sample which was also not accepted by the
Respondent/accused. It is submitted that the Respondent cannot
take benefit of his failure/refusal to issue the receipt and to sign
the relevant documents. It is submitted that notwithstanding the
fact that the panch witness PW-3 has turned hostile, the charge is
proved on the basis of the evidence of the complainant PW-1.
8. I have considered the circumstances and the submissions
made. The learned Chief Judicial Magistrate has referred to the
relevant portion of the Act and the Rules and more particularly to
Rule Nos. 14 and 16 which require the sample to be obtained and
sealed in a specific manner. The Rules aim at obtaining the
sample without possibility of contamination or adulteration at the
subsequent stage. The learned Chief Judicial Magistrate has
found on the basis of the evidence of the complainant that there
was a breach of the provisions of Section 11 read with Rule 14
and 16 under the said Act. In this case, PW-3 failed to support
the prosecution. That apart what is significant is that neither
Sneha Chavan page 4 of 6
223 apeal 1345-06.doc
there is any receipt/invoice about purchase of 600 grm of the ice-
candy nor the panchnama or Form VI bears the signature of the
Respondent. According to the Respondent, he was not present
when the complainant had visited his establishment. In the
statement under Section 313, he has denied the entire charge as
being false. The Respondent had sent a reply dated 28.10.1993
(Exh.36) to the Assistant Commissioner informing that the visit
was made behind his back. He was denied that the ice-candy and
the powder was seized from his establishment. Be that as it may,
in my considered view, two possibilities arise. First the
Respondent having refused to issue a receipt, to sign panchnama
and to acknowledge the copy of the notice Form VI. Equally
there is a second possibility that the Respondent was not present
and therefore, in all probabilities neither there is a receipt nor the
spot panchnama bears the signature and Form No. VI bears the
acknowledgment of the Appellant. The factum of the adulterated
subsstance being obtained/seized from the establishment would
go tot the root of the matter. Considering the over all
circumstances, in my considered view the Respondent is entitled
to benefit of doubt. Thus, no case for interference is made out in
view of the scope of an appeal against acquittal. It is now well
settled that the appellate court is justified in interfering in fsuch
cases only where the finding recorded by the Trial Court is found
to be perverse or is an impossible view. (see the decision of the
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Supreme Court in Chandrappa and Ors. V/s. State of
Karnataka1).
9. In the result, the Criminal Appeal is hereby dismissed.
(C.V. BHADANG, J.)
1 (2007) 4 Supreme Court Cases 415
Sneha Chavan page 6 of 6
