Karnataka High Court

Pramod S/O Shrinivas Kamat vs Arun V. Kashibhatta on 12 January, 2024

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                                                     CRL.RP No. 100240 of 2017




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 12TH DAY OF JANUARY, 2024

                                            BEFORE

                    THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                        CRIMINAL REVISION PETITION NO. 100240 OF 2017

                   BETWEEN:

                   PRAMOD S/O SHRINIVAS KAMAT,
                   AGE: 57 YEARS, OCC:OWNER KAMAT KIRANA
                   STORE, YELLAPUR ROAD, SIRSI,
                   DIST. KARWAR (UK)
                                                    ...PETITIONER

                   (BY SRI.MALLIKARJUN S. HIREMATH., ADVOCATE)

                   AND:

                   1.    ARUN V. KASHIBHATTA,
                         AGE: 48 YEARS,
                         OCC: FOOD INSPECTOR,
                         TALUKA HEALTH OFFICER'S OFFICE, AT
Digitally signed
                         SIRSI, (U.K.)
by
SHIVAKUMAR
HIREMATH           2.    THE STATE OF KARNATAKA
Date:
2024.01.22
13:04:36 +0530
                         REPRESENTED THROUGH
                         SPP, HIGH COURT BUILDING,
                         DHARWAD
                                                         ...RESPONDENTS

                   (BY R1 SERVED
                    SRI. M.B. GUNDWADE, ADDL.SPP)

                        THIS CRIMINAL REVISION PETITION IS FILED U/S 397
                   R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
                   OF THE COURT OF THE 1ST ADDL. DISTRICT & SESSION
                   JUDGE, U.K. KARWAR, SITTING AT SIRSI, DATED: O6.07.2017
                              -2-
                                   CRL.RP No. 100240 of 2017




IN CRIMINAL APPEAL NO. 29/2013 CONFIRMING THE
JUDGMENT AND CONVICTION DATED 11.01.2013 IN C.C. NO.
3200/2008 PASSED BY THE IIND ADDL. J.M.F.C. SIRSI
CONVICTING THE PETITIONER TO UNDERGO SIMPLE
IMPRISONMENT FOR ONE YEAR AND TO PAY A FINE OF
RS.2000/- IN DEFAULT OF PAYMENT OF THE FINE AMOUNT
ACCUSED SHALL UNDERGO IMPRISONMENT FOR A PERIOD OF
THREE MONTHS FOR THE OFFENCE P/U/S 7(1) AND 16(1) (A)
(2) OF PREVENTION OF FOOD ADULTRATION ACT 1954,
CONSEQUENTLY BE PLEASE TO ACQUIT THE PETITIONERS
FROM THE ALLEGED OFFENCE IN THE INTEREST OF JUSTICE.

     THIS CRL.RP COMING ON FOR HEARING, AFTER HAVING
HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY
THE COURT PRONOUNCED THE FOLLOWING:

                          ORDER

The revision petitioner-accused is before this Court

challenging his conviction and order of sentence passed by

the II Additional JMFC, Sirsi in CC No.3200/2008 dated

11.01.2013 being confirmed by the Additional District and

Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi in

Crl.Appeal 29/2013 dated 6.7.2017.

2. The revision petitioner was an accused and

complainant was one Sri Arun V.Kashibhatta, the Food

Inspector, Taluka Health Office, Sirsi at the relevant time.

3. For the purpose of convenience, parties to this

revision petition are referred to as per their rank before

the trial Court.

4. That, complainant, on 20.11.2007, in the capacity

of Food Inspector in Taluka Health Office, Sirsi with his

assistant visited the shop of the accused called as

`Kamath Kirani Stores' for inspection. When he was so

inspecting, he suspected that the 'toordal' so kept for sale

in the shop of the accused appears to be adulterated.

Therefore, he purchased 1500 grams of toordal by paying

relevant price prevailing at that time. He bifurcated the

said 1500 grams of toordal into three parts i.e. 500 grams

each. He followed all the procedures and formalities of

Prevention of Food Adulteration Act,1954 (in short `the

Act') like issuing notice, getting receipt from the accused,

he drew the Mahazar and obtained the signature of the

accused on the said Mahazar. He also packed the said

sample toordal and kept in the bottle as contemplated

under the Act by following due process, he seized the said

toordal. Thereafter, he sent the said sample toordal for the

purpose of chemical examination to the Public Analysist,

State Food Laboratory, Bengaluru. On chemical

examination of the said sample toordal so sent to the Food

Laboratory, it was opined by the Public Analyst that, the

said toordal so sent contained Tetratrazine. Therefore, he

obtained necessary permission from the Taluka Health

Officer and in the capacity of the public servant, he filed a

complaint against accused for the offences punishable

under Section 7(1) and 16(1)(a)(ii) of Food Adulteration

Act, 1954 read with Section 200 of Cr.PC.

5. Before the trial Court, to substantiate the case of

the prosecution, two witnesses were examined as PW.1

and 2 i.e. complainant was examined as PW.1 and his

Assistant was examined as PW.2. On behalf of the

complainant, Ex.P1 to P16 with respective signatures

thereon were marked.

6. After closure of the prosecution evidence, the

learned trial Court heard the arguments and on

assessment of the evidence found the accused guilty of

committing the offence under Section 7 read with

Sec.16(1)(a)(i) of the Act. Accordingly, accused was

sentenced to undergo simple imprisonment for a period of

one year and pay a fine of Rs.2,000/- with default

sentence.

7. This judgment of conviction and order of sentence

passed by the trial Court was challenged by the accused

by preferring an appeal before the I Additional District and

Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi in

Crl.Appeal No.29/2013. The learned first appellate Court

vide judgment dated 6.7.2017 dismissed the appeal of the

accused by confirming the judgment of conviction and

order of sentence passed by the trial Court.

8. Now, the revision petitioner-accused is before this

Court challenging the judgments and order of sentence

passed by the Court below.

9. The learned Sri Mallikarjun S. Hiremath, Advocate

appearing for revision petitioner-accused with all

vehemence submits that, both the Courts have not

properly assessed and evaluated the evidence. They have

failed to appreciate the admissions given by the witnesses

being examined by the prosecution. There is no

independent witness being examined by the prosecution

so as to prove the very seizure of the alleged adulterated

toordal by the complainant. PW.1 and PW.2 were the

official witnesses and their evidence cannot be believed at

any stretch of imagination. On this count only the

prosecution has failed to prove its case therefore, the

revision petition so filed by the petitioner deserves to be

allowed. It is further submitted by him that the

prosecution has utterly failed to prove the seizure of the

said toordal in the manner alleged by the prosecution. This

fact has not been properly appreciated by the trial Court

So also by the appellate Court. There is lacunae in

preparation of panchanama by the complainant. As per the

provisions of Sec.7(10) of the Act, it mandates that there

must be two independent witnesses. This procedure is not

followed by the complainant. Without concurrence of the

Central Government or State Government, the

complainant could not have filed the complaint. There is

no sanction so mentioned in the sanction letter so

produced by the complainant. There are material

contradictions in the depositions of PW.1 and 2. It is

submitted that the materials so placed on record were not

sufficient to prove the guilt of the accused. The notification

never empowered the complainant to file the complaint in

the capacity of public servant. The version of the

prosecution cannot be accepted. Amongst other grounds in

addition to the facts and grounds so stated in the revision

petition, it is submitted by the counsel for the accused that

both the courts have committed illegality in convicting the

accused and sentencing him. Therefore, he prays to allow

the revision petition and accused be acquitted of the

charges leveled against him.

10. As against this submission, the Addl.SPP for the

State Sri M.B.Gundawade, submits that, on over all

reading of the contents of the complainant as well as

documentary evidence so also the oral evidence adduced

through PWs. 1 and 2 prove that the accused being the

shop keeper of grocery has kept the toordal which was

being adulterated. On suspicion the complainant

purchased the said toordal to the extent of 1500 grams by

paying the required price at the relevant time. He divided

the said the toordal into 500 grams each seized them as

per the procedure stated in the Act thereafter, sent them

to the Public Analyst for the purpose of chemical

examination to know that whether the said toordal so

purchased by him is adulterated or not. He also had

prepared the panchanama at the time of seizure of the

said toordal. On receipt of the public analysist's report it

was revealed that the said toordal was adulterated.

Therefore, by seeking sanction from the competent

authority, he filed the complaint against the accused.

11. It is his submission that, the learned trial court

as well the first appellate court have clearly stated in their

respective judgments that how the accused has committed

the said offences and it was accused who has committed

the said offences under the Act which was health hazard.

The society in general and purchaser in particular would be

the affected person who purchases the said toordal. It is

his submission that, as the both the courts have

concurrently held that the accused has committed the said

offences, therefore, there is no merit in the revision

petition and therefore, liable to be dismissed.

12. I have given my anxious consideration to the

arguments of both the side and to the record. The point

that would arise for consideration are:

i) Whether the learned trial Court and the first appellate court have committed any illegality in coming to the conclusion that the toordal so purchased by the complainant is adulterated and thereby the accused has committed the offences under

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the provisions of Food Adulteration Act, 1954?

ii) If so, whether the judgment and conviction and order of sentence passed by the Courts below require any interference by this Court?

13. So far as the case made out by the complainant

in the complaint is concerned, he specifically states in his

complaint that he being the Food Inspector working in the

Taluka Health Office, Sirsi, in that capacity, on

20.11.2007, he visited the shop of Kamath Kirani Stores

for inspection. Accused was the owner of the said shop. In

the inspection he noticed the storage of toordal for the

purpose of the sale by the accused. On suspicion he

purchased 1500 grams of toordal by paying the required

price. He prepared three samples of 500 grams each by

following all the procedures and formalities of the Act.

Under due process the said toordal was sent for chemical

analysis to the office of public analyst, State Food

Laboratory, Bengaluru. The said Public Analyst, after

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chemical examination of the said toordal so sent for

chemical examination opined that the said toordal contains

tartrazine and the said toordal was adulterated. Based

upon that report, the complainant sought the permission

to file the complaint took the sanction from the competent

authority and filed the complaint.

14. This factual allegations made in the complaint are

reiterated by the complainant in his evidence on oath.

15. PW.1 being the complainant has spoken in his

evidence on oath in line with the contents of the

complaint. It is his evidence that by following all the

procedures of the Act, he seized the said adulterated

toordal and on getting report from the Public Analyst he

got it confirmed that the said toordal so kept for sale by

the accused was adulterated.

16. This PW.1 was intensively cross-examined but,

nothing worth is elicited from this witness. The only

defence of the accused is that, there were no independent

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witnesses being examined by the prosecution i.e.

complainant and there was no independent signatory to

the panchanama therefore, it is fatal to the case of the

complainant-prosecution. The visit of the complainant to

the shop of the accused is not disputed by the defence,

that means on 20.11.2007 complainant visited the shop of

the accused and purchased the said toordal weighing 1500

grams.

17. This evidence of PW.1 is supported by the PW.2

the assistant of the complainant wherein he accompanied

the complainant to the shop of accused. There the

complainant on inspection suspected the adulterated

toordal by the accused. Therefore, he purchased 1500

grams of toordal and divided the same into three parts,

seized them as per the procedure stated under the Act.

This PW.2 was also cross-examined at length but,

throughout cross-examination except denial nothing is

elicited. It is not denied that, this PW.2 never

accompanied PW.1 at the time of inspection of the shop.

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18. So far as the documentary evidence is

concerned, the very competence of the complainant is

questioned by the accused. To show that complainant was

competent to initiate the proceedings against the accused

under the provisions of the Act, the complainant relies

upon Ex.P1 the Gazette notification issued by the Health

and Family Welfare Secretariat, Bengaluru dated 4th

September 2003 wherein, the Food Inspectors working in

the State are empowered to file the complainant. The

name of the complainant is appearing at Sl.No.5 in this

Gazette Notification dated 18.9.2003. That means this

Ex.P1 has empowered the complainant to act as a Food

Inspector and he was permitted to initiate the proceedings

under the provisions of the Act. While marking this

document, no objection was raised by the defence. As per

the procedures under the Act, it was mandatory on the

part of the complainant to issue Form No.6 under Rule 12

of Prevention of Food Adulteration, Rules, 1955. To that

effect, we find Ex.P3 the Form no.6 issued by the

complainant which contains the signature of the accused

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also. This proves that in the shop of the accused,

complainant purchased toordal measuring 1500 grams. It

was on 20.11.2007. To show that on that day, he

purchased the said toordal by paying Rs.66/- a receipt is

produced as per Ex.P4. It is not denied by the defence that

the said receipt is not belonging to his shop. That means it

contains his small signature. He has received Rs.66/- from

the complainant by selling one and half kgs. of toordal.

19. So far as purchase of said toordal from the shop

of the accused and dividing the same into three parts,

prosecution relies upon Ex.P5 the panchaama. It was

prepared in the presence of the accused as well as in the

presence of complainant and his assistant. It contains the

signature of accused complainant as well as PW.2.

20. Ex.P6 is the memorandum to public analyst

issued in form no.7 as per the procedure under the

provisions of the Act. It contains the signature of Food

Inspector i.e. complainant. The sample specimen seal is

also annexed with this document as per Ex.P7 containing

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the signature of the complainant. For having sent the

sample bottle through courier, a courier receipt as per

Ex.P8 containing signature of the Taluka Health Officer and

Resident Medical Officer.

21. So also Ex.P9 another courier receipt. For having

received the said sample from the Public Analyst, Taluka

Health Officer has acknowledged on 20.11.2007 is marked

Ex.P10. Ex.P11 is the acknowledgement for having

received the sample at 3.00 p.m. on 20.11.2007.

22. The important document is the report of the

Public Analyst issued in Form No.3 as per Rule 7(3) of the

Prevention of Food Adulteration Rules, 1955. This

Analyst's report sent by the Public Analyst, Bengaluru

shows that on examination of the said sample toordal so

sent, it was opined by the Public Analyst that the said

toordal so sent contains added colouring matter and

tartrazine chemical is detected in the said toordal. As per

Rule 29 of the Prevention of Food Adulteration Rules, 1955

which deals regarding prohibition of use of permitted

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synthetic food colours and it states such as tartrazine

chemical should not be present in the said food i.e.

toordal. That means the sample sent for analysis is

adulterated as per the opinion of the public analyst. The

said report is dated 13.12.2007.

23. On receipt of the said report, the complainant

wrote a letter to the District Health and Family Welfare

Officer, Uttara Kannada, Karwar seeking permission to

prosecute the accused. This letter is dated 1.2.2008. In

this letter Ex.P14 the complainant has narrated the events

that have taken place with regard to the visit to the shop

of the accused and noticing the toordal kept for sale by the

accused. It was informed to the sanctioning authority that

the said toordal was adulterated and it was kept for sale.

24. Based upon the report Ex.P14, the District Health

and Family Welfare Officer, Uttara Kannada, Karwar issued

sanction as per Ex.P16 permitting the complainant to

initiate the proceedings as contemplated under Sec.20(i)

of the Act.

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25. On reading all the documentary evidence,

coupled with oral evidence produced i.e. PW.1 and 2, it is

duly proved by the prosecution that the complainant

visited the shop of the accused on 20.11.2007. It is called

as 'Kamath Kirani Stores'. It is suspected by the

complainant that the accused has kept toordal for sale in

the shop which is adulterated. Therefore, he purchased

1500 grams of toordal and divided the same into three

parts. By following all the procedure, he sent the sample

sent for chemical analysis and it was found that the said

toordal was adulterated.

26. This fact has been spoken to by PW.1 and pw2.

Though both PW.1 and 2 were intensively cross-examined

but, they have withstood the test of cross- examination.

27. When a case is registered under the Act, we must

know that what is`Food'. `Food' is the one of the essential

factors in our daily life that provides nutritional support for

the human body. Food supplies fuel for our body by

providing it with many nutrients that are essential for good

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health. Most food has its origin from plants. Many plants

and plant parts such spinach, lettuce, stems, bamboo,

asparagus, fruits, potato, carrots, tomato, animals are

used as food directly in the food, eggs, meat etc.. Ancient

produced food that was more than the required demand

and people ate fresh food. We now buy food products from

traders or manufacturers. How pure is the food we

consume is a question. We have all started thinking of the

purity of the food from traders. Due to the population

explosion in India, the demand for food has increased and

the traders have started mixing cheaper substances in the

food. These cheaper or undesirable food are called

adulterants. Then what is food adulteration is the

question? Food adulteration is the process by which either

toxic substances are added to food or some valuable

nutrients are removed from the food items. Adulterated

food is generally defined as impure, unsafe or

unwholesome food. Food adulteration may be done

intentionally or unintentionally. Those traders are

manufacturers who want to make a quick economic profit

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sell adulterated food intentionally. To have more sales to

attract the consumers, certain foods like toordal are mixed

with colour. Unintentional adulteration happen when the

people are not aware of rules and regulations of preparing

wholesome food. The adulterants used by vendors are

cheaper and sometime toxic substitutes. Consumption of

these food products can cause diseases like cancer,

paralysis, skin allergy etc. and even the asthma.

Therefore, the Government enacted the Prevention of Food

Adulteration aCt, 1954 to protect the people from

adulterated foods.

28. The organizations that issue certificates are;

1.Food Products Order (FPO), 2) Indian Standards

Institute (ISI), Agricultural Marketing, (Agma). Some

common adulterants food in our daily food products and

disease caused by them are may be black pepper, chilli

power, mustard, toordal etc..

29. In this case, it is alleged by the complainant that

toordal was found added colour called as tartrazine so kept

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for sale in the shop of the accused. Tartrazine is a

synthetic organic azo dye widely used in food and

pharmaceutical products. The current study aimed to

evaluate the possible adverse effect of this coloring food

additive on re- nal and hepatic structures and functions.

Also, the genotoxic potential of tartrazine on white blood

cells was investigated using comet assay. Tartrazine a

synthetic azo dye with lemon yellow color, is a commonly

used food colorant for food products that we eat almost

every day. Tartrazine is found in many food consumables

such as soaps, cosmetics, shampoos, vitamins and certain

prescription medications (Amin, Abdel Hameid &

AbdElsttar, 2010). Moreover, it is used in many developing

countries as a low-cost-alternative for saffron in cooking.

Tartrazine toxicity results directly or indirectly from the

metabolic reductive blotransformation of the azo linkage

(Chequer, Dorta & De Oliveira, 2011). For example,

tartrazine can undergo metabolic reduction in the intestine

of the animal by the intestinal microflora, thus resulting in

formation of two metabolites, sulfanilic acid and

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aminopyrazolone (Chung, Stevens & Cerniglia, 1992).

These metabolites of tartrazine can generate reactive

oxygen species (ROS), generating oxidative stress, and

affect hepatic and renal architectures and biochemical

profiles (Himri etal.,2011).

30. By applying the aforesaid analogy with regard to

the said presence of tartrazine in the said toordal so kept

for sale, it is stated that complainant was able to prove the

allegations made in the complainant that accused has

committed the offence alleged against him.

31. In view of all these factual features coupled with

documentary evidence and oral evidence, it can very well

be said that the prosecution is able to prove the guilt of

the accused beyond all reasonable doubt.

32. The only grievance of the accused is that, as per

Sec.10 of the Act, there was no independent witness being

arrayed as witness which includes the officials. The learned

trial court as well as the first appellate relied upon the

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judgment Hon'ble Allahabad High Court in Kalva vs.

State 1981 F.A.J 485 wherein it has been held that

'where it cannot be say in case that no witness were called

by the food inspector that the sample was not taken in the

presence of any witnesses and it was contended witnesses

shown was a peon of the department, it could not be said

that there was no compliance of Section 10(7) of Act.'

33. The complainant has stated that, though he

requested the other buyers to put their signature with

regard to the seizure of the toordal but, nobody came

forward. This fact is not denied by the defence. Further

accused has not taken any steps to show that the said

toordal so kept for sale was not adulterated. He has not

chosen to request the complainant or the authorities

concerned to send the said sample for further analysis to

the competent laboratory thereby, he has not availed the

opportunity of sending the second sample for further

analysis to the laboratory. He was satisfied with the report

so marked in the case. That means silence on the part of

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the accused in not taking steps to send the sample for

further analysis also gives room to draw an adverse

inference against the accused. In view of all these factual

features as discussed above, there is no merit in this

revision and the revision petition has to be dismissed.

34. However, the said inspection was done in the

year 2007 and now we are in the 2024. Looking to the age

of the revision petitioner as 53 years as shown in the

petition, now he must have been aged 70 years.

Therefore, in the facts and circumstances of the case, if

the sentence imposed by the trial Court is reduced to

three months, it would meet the ends of justice. So far as

fine imposed by the trial Court, it remains undisturbed.

35. With this modification, the revision petition filed

by the petitioner is to be allowed in part.

36. Accordingly, the aforesaid points are answered

partly in favour of the accused. Resultantly, I pass the

following:

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ORDER

(i) The revision petition filed by the accused is allowed in part.

(ii) The Judgment of conviction and order of sentence dated 11.01.2013 passed by the II Addl. JMFC, Sirsi in case NO.CC No.3200/2008 and upheld by the judgment dated 6.7.2017 passed in Crl.Appeal No.29/2013 by the Additional District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi, are affirmed. However, there shall be modification of sentence. The accused is sentenced to undergo simple imprisonment for three months. So far as imposition of fine is concerned, remains undisturbed.