Bombay High Court
State Of Mah, Thr Shri Jagdish Khushal ... vs Sayyed Shahid Ali Sayyed Mujaffarali on 5 July, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal.719.08+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.719/2008
WITH
CRIMINAL APPEAL NO. 720/2008
CRIMINAL APPEAL NO. 719/2008:
The State of Maharashtra
Through Shri Jagdish Khushal Kamble
Food Inspector, Food & Drugs Administration
Tadoba Road, Tumkum, Chandrapur. .. APPELLANT
versus
Sayyed Shahid Ali Sayyed Mujaffarali
Aged about 35 years
Prop: of M/s Shakti Traders
Near City Post Office
Bhanapeth Ward, Chandrapur. .. RESPONDENT
...............................................................................................................................................
Mr. Amit Chutke, Additional Public Prosecutor for appellant-State
Mr. A.J. Thakkar, Advocate for the respondent
................................................................................................................................................
CRIMINAL APPEAL NO. 720/2008:
The State of Maharashtra
Through Shri Jagdish Khushal Kamble
Food Inspector, Food & Drugs Administration
Tadoba Road, Tumkum, Chandrapur. .. APPELLANT
versus
Sayyed Shahid Ali Sayyed Mujaffarali
Aged about 35 years
Prop: of M/s Shakti Traders
Near City Post Office
Bhanapeth Ward, Chandrapur. .. RESPONDENT
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Appeal.719.08+
2
...............................................................................................................................................
Mr. Amit Chutke, Additional Public Prosecutor for appellant-State
Mr. A.J. Thakkar, Advocate for the respondent
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 5th July, 2018
ORAL JUDGMENT:
1. Being aggrieved by the judgment and order dated 27th May, 2008 in Regular Criminal Case No.513 and 514 both of 2001 delivered by learned Chief Judicial Magistrate, acquitting the respondent (hereinafter referred to as "the accused") of the offences punishable under section 16(1)(a) (ii) and (i) read with section 7 (i) 2(ia) (a) r/ws. 7 (v) r/w Rule 62 of the Prevention of Food Adulteration Act, 1954 and rules framed thereunder, the present Appeals have been filed at the instance of appellant-State.
2. The prosecution case in a nutshell is that, the accused is vendor and licensee of shop by name 'M/s Shakti Traders', situated at Bhanapeth, Near Post Office at Chandrapur. It was a shop of food articles. Various food articles along with adulterated panparag pan-masala were stocked and stored for sale. Food Inspector-Jagdish Kamble (PW1) was posted at Chandrapur. On 16.5.2001 at about 12 pm, PW1 visited the shop of the accused along with panch witness-Gopal Mundhada (not examined). At the relevant time, accused was present and was doing his business. PW1 found that sixteen packets of Dhamal Gutka and four packets of panparag pan-masala were kept for sale by the accused, bearing identical label and information. The complainant-Kamble (PW1) purchased 1800 gms. of Dhamal Gutka and 765 gms. of panparag pan-masala from the ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 3 accused as sample for analysis. PW1 purchased 15 packets of Dhamal Gutka and 3 packets of panparag panmasala from the accused for the amount of Rs. 720/- for Dhamal Gutka and Rs. 495/- for panparag panmasala. Notice under section 14A of the Prevention of Food Adulteration Act, 1954 and form No. VI was served upon the accused. The complainant then divided the panparag pan-masala weighing about 675 gms into three equal parts and each part was put into clean, dry and empty polythene bags with the help of the candle and closed the mouth of those bags. The complainant-PW1 then affixed label in triplicate and affixed on each sample packet with gum, bearing the signature of panchas on those three bags. Even the paper slip bearing signature of Local Health Authority was also affixed on those samples while sealing. The Panchnama (Exh.23) was prepared by the complainant. PW1 then sent one sealed sample along with form No.VII for analysis to the Public Analyst, Nagpur, by registered post on 17.5.2001. He used form No.VII and specimen impression of the seal used to seal the sample of Dhamal Gutka were sent in as separate packet. The complainant then handed over the remaining two counterparts of the sample to the Local Health Authority, Chandrapur. The Public Analyst report was received by the complainant and as per the said report the sample of panparag pan-masalaa did not confirm to the standard as per Rule 62 of the Prevention of Food Adulteration Rules, 1955 and, therefore, adulterated Dhamal Gutka was stored and sold in the said shop.
3. The panparag pan-masala and Dhamal Gutka both are food articles within the meaning of Section 2 (5) of the Act,1954. As per Section 7(i) of the Act of ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 4 1954 no person shall manufacture, sell or store any adulterated food article and contravention of this provision is an offence punishable under section 16(1)a (ii) and (i) r/ws. 7 (i), 2 (ia) and 7(v) read with Rule 62 of the Rules, 1955. In view thereof the complainant sent a proposal to the Joint Commissioner of Food and Drugs Administration Nagpur, through the Local Health Authroity, Chandrapur, for obtaining consent for criminal prosecution against the accused. On 12.10.2001, the consent was received from the Joint Commissioner, by the complainant. A letter of Local Health Authority dated 12.10.2001 was also received by the complainant. Thereafter on 23.11.2001 the complainant lodged his complaint against the accused. The complainant informed to the LHA about the registration of the offences. He also informed about lodging of the case to the accused. The learned Chief Judicial Magistrate framed the charge. He recorded the evidence and acquitted the accused as aforesaid.'
4. I have heard Shri Amit Chutke, learned APP for the appellant-State as well as Shri A.J.Thakkar, learned counsel for the accused. With their assistance I have carefully gone through the record of the case. Learned APP vehemently argued that the learned CJM has not considered the evidence led by the prosecution in its right perspective and has passed an illegal and perverse judgment. He submitted that all the mandatory provisions were complied with by the investigating agency. He prays for setting aside the impugned judgment. As against this, the learned Advocate for the accused canvassed that the investigating agency has not complied with the mandatory provisions under Rule 14 of the Rules, 1954 and no independent witness was examined ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 5 by the appellant-State. In order to substantiate his contention, he further submitted that both the samples i.e. of panparag panmasala and Dhamal Gutka were sent in one packet to the office of Public Analyst by the investigating agency, which creates a serious doubt in the entire investigation and ultimately on the report of the Public Analyst. It was submitted that no manifest error or perversity or illegality has been noticed in the impugned judgment.
5. In order to substantiate its case, the State has examined in all two witnesses. PW 1-Jagdish Kamble is the Food Inspector and PW2-Ashok Choudhari is the Assistant Commissioner, Food and Drug Administration, Chandrapur. The testimony of PW1 is the replica of the prosecution case narrated above. PW1-Jagish Kamble has purchased 1800 gms of Dhamal Gutka and 675 gms of panparag panmasala from the as a sample for analysis which were stored for sale in the shop of the accused and were purchased for the price of rs. 720/- and Rs. 495/- respectively. PW 1 issued notice under section 14(A) of the Act of 1954 and form no VI to the accused. It is the case of the PW 1 that he divided 675 gms of purchased panparag panmasala into three equal parts and put each part into clean, dry and empty polythene and closed its mouth with the help of candle. Similarly, PW1 divided 1800 gms of purchased Dhamal Gutka into three equal parts and put each part into clean, dry and empty polythene and closed its mouth with the help of candle. PW1 then prepared the label in triplicate and those labels were affixed on each sample packet with gum. Each packet was tied with thread and wrapped in a brown paper and both the ends of paper were pasted with gum; the label ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 6 bearing signature of LHA and those packets were sealed. The same procedure was followed with respect of the sample packet of panparag panmasala. The Panchnamas Exh. 25 with respect to Dhamal Gutka and Exh. 23 with respect to panparag panmasala were prepared. So far as the manner of sending the samples of analysis under Rule 14 of the Rules 1955, it is observed that the samples were not sent in a suitable container to the Public Analyst office inasmuch as those samples were sent in polythene bags, which is in breach of the provisions under Rule 14.
6. In this context, learned Advocate for the accused placed reliance upon the judgment in the case of State of Punjab vs. Raman Kumar, reported in 1998 ALL MR (Cri) Journal 17, which is a full bench decision delivered by the High Court of Punjab and Haryana, wherein it was held that sending of samples for analysis in polythene containers is not valid and polythene and thick paper wrapper is not suitable container as contemplated under Rule 14 of the Rules. It was further held as under -
"Polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in Rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such types of containers being affected as stated above not by design but even by chance when in transit i.e.after ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 7 the sample is taken by the Food Inspector in such containers and thereafter it reaches the Laboratory for final analysis."
It was further held that the legislature in its wisdom has used the expression a suitable container in Rule 14. This expression must be given its cogent and reasonable meaning on the one hand and should be interpreted in manner so as to ensure the implicit protection available to an accused under these provisions on the other hand.
The above case law was followed by this Court in Criminal Appeal No. 110/2001 decided on 1st August, 2012, wherein the said analogy was applied.
7. So far as Rule 14 of the Rules is concerned, the rule14 of the Rules is that the food inspector should take the sample in suitable container to prevent leakage evaporation or possibility of moisture. As provided under Rule 14 the samples of food for the purpose of analysis shall be taken in a clean, dry bottles or jar in other suitable containers, which shall be closed sufficiently tight to prevent the leakage, evaporation or in case of dry substance, entrance of moisture and should be carefully sealed. The testimony of PW1-Jagdish in no manner shows that plastic bags were completely wrapped in a fairly strong thick paper and the ends of such paper were neatly affixed by means of gum or other adhesive. Thus, the provisions of Rule 14 are not complied with by the investigating agency.
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Appeal.719.08+ 8
8. It is not noticed that no independent witness has been examined by the prosecution in order to support the case of the Food Inspector. In this context, the guidelines are issued in the case of State of Maharashtra vs. Abbas Ismail Shaikh reported in 1998 ALL MR(Cri) 1604. In that case oil sample was not shown to be taken in a clean bottle and in the absence of independent panch, the Food Inspector's testimony was not found to be credible. Thus the accused was given the benefit of doubt.
9. In the case of Mahendra Pratap Singh .vs. State of Uttar Pradesh, reported in (2009) 11 SCC 334, the Hon'ble Apex Court has given a rule of prudence that if on appraisal of evidence and on considering relevant attending circumstances, it is found that two views are possible, one for acquitting accused and other for convicting accused, in such a situation rule of prudence should guide High Court not to disturb the order of acquittal made by the trial court, unless conclusions of trial court drawn on evidence on record are found to be unreasonable and perverse or unsustainable, High Court should not interfere with the order of acquittal. In the case of Commissioner of Central Excise, Chandigarh .vs. Pepsi Foods Limited, reported in (2011) 1 SCC 601, it is further held by the Hon'ble Apex Court that unless there are substantial and compelling circumstances, order of acquittal is not required to be reversed in appeal. In the case of Harbeer Singh .vs. Sheeshpal and others, reported in (2016) 16 SCC 418, it is observed by the Hon'ble Supreme Court on the same facts that another view could also have been taken on the evidence on record, is not a ground for reversing an order of acquittal. In view of the aforesaid facts and circumstances, no interference is warranted ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 ::: Appeal.719.08+ 9 with the order of acquittal. Hence, the following order :
ORDER Criminal Appeal Nos.719 and 720 both of 2008, are dismissed.
JUDGE sahare ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:44 :::