Bombay High Court
Bhojumal Dhanumal Kundal And Another vs Shirpur Warwade Municipal Council, ... on 9 April, 1984
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
ORDER
1. The petitioners were tried for the offence punishable Under S. 7(1) read with S. 16 for contravening S. 2(ia)(a)(m) of the Prevention of Food Adulteration Act, 1954 - hereinafter referred to as "the Act" and petitioner No. 1 was convicted and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/- or in default of payment of fine to suffer further S.I. for three months. The Petitioner No. 2 (accused No. 4) was convicted for the said offence read with S. 17 and was sentenced to pay a fine of Rs. 1500/-. The order of conviction and sentence passed by the Sessions Judge is dated February 10, 1983.
2. M/s. Virumal Parmanand and Company is a partnership firm carrying on business in grocery articles at Shirpur, district Dhule. The petitioners and original accused Nos. 2 and 3 who are acquitted by the Sessions Court, were the partners of the firm. On December 26, 1979 at about 10.00 a.m. the complainant-Food Inspector went to the shop of Petitioner No. 1 and apprised him that he had come for taking the sample. He took a round in the shop premises and found that there was some black pepper (Kali Miri) stored in a open gunny bag. The complainant asked the accused No. 1 as to whether the said Kali Mirich is of a good quality and upon his answer in the affirmative the complainant purchased 600 grams of Kali Miri. He paid the necessary price for the same and got the receipt from the accused No. 1. He divided this sample into three parts and after following the proper procedure including the sealing as required under the law, sent the sample to the Public Analyst. The report of the Public Analyst is that the sample did not conform to the standards of black pepper and was adulterated. Upon the receipt of the said report a necessary sanction to prosecute the accused was obtained by the complainant.
3. The complaint was thereafter filed in the Court of Judicial Magistrate, First Class, Sirpur for the offence punishable under Ss. 2(ia)(a)(m), 7(1) and 16(a) of the Act. The learned trial Magistrate after appraising the oral and documentary evidence on the record found that accused Nos. 1 to 3 are guilty of the aforesaid offences and he accordingly convicted each of the accused for the said offence and sentenced each of them to suffer S.I. for six months and to pay a fine of Rs. 1,000/- in default to suffer further S.I. for three months. The accused No. 2 (petitioner No. 2) was also found guilty for the said offence read with S. 17 of the Act and the trial Magistrate sentenced the petitioner No. 2 to pay a fine of Rs. 1500/-.
4. Aggrieved by this conviction and sentence passed by the trial Magistrate on September 7, 1982, the three partners and the firm preferred appeal to the Sessions Court at Dhule. The learned Sessions Judge however confirmed the conviction and sentence of the petitioners (accused Nos. 1 and 4) and acquitted accused Nos. 2 and 3. It is this order of conviction and sentence which is sought to be challenged in this revision application.
5. Shri Ganatra, the learned advocate appearing in support of this revision application raised several contentions before me. All these contentions are very neatly taken in the memo of application. The main contention which was canvassed before me by Shri Ganatra is in connection with breach of R. 14 of the Prevention of Food Adulteration Rules, 1955. The learned counsel drew my attention to the ground taken in the revision application. The said ground is found at page 9. Shri Ganatra in support of this submission drew my attention to the relevant paragraph contained in the complaint filed before the trial magistrate and also the evidence of the complainant in that behalf. Relying upon the averments contained in the complaint Shri Ganatra urged that the complainant has neither stated in the complaint that after taking the sample and putting in the plastic bags he sealed the same as required under R. 14. All that the complainant has stated in the complaint is that after dividing the sample into three parts he put each of the part into three plastic bags and then he closed the same. It is true that the complaint further recites that all these three plastic bags were kept in three brown envelopes which were then closed by applying the adhesive. The complaint further discloses that as required under R. 16, these three packets came to be sealed.
6. In order to appreciate this contention of Shri Ganatra, it would be necessary to refer to R. 14, R. 14 reads as under :
"Manner of sending samples for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottle or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed."
7. It is not disputed before me that the provisions contained in R. 14 are mandatory and breach of the same will vitiate the order of conviction. I find much substance in the contention raised on behalf of the petitioners by Shri Ganatra. In the first place there is no mention in the complaint filed by the Food Inspector that the sample of food after putting in the plastic bag was sealed. Even the evidence of the complainant also falls short to establish that he has complied with the provisions of R. 14. In the evidence all that he has stated is that after taking the sample he divided the same into three parts and each of the part was put into plastic bag which later on came to be closed. Shri Vyas, learned Public Prosecutor appearing for the State of Maharashtra, although took me through the evidence of the complainant and other material on record was unable to point out any material which would show that the Food Inspector has complied with the provisions of R. 14 Shri Ganatra in support of his submission strongly relied upon the judgment of this Court in Criminal Appeal No. 531 of 1975 decided on September 24, 1976 : (reported in (1982) 1 FAC 404) by Shimpi, J. in this unreported case also it was held that R. 14 is mandatory. On this short ground, in my opinion, the petition must succeed. Having regard to the material on record I have no hesitation in coming to the finding that the Food Inspector has failed to comply with the mandatory provisions contained in R. 14 and, therefore, the conviction must stand vitiated and consequently the same will have to be quashed and set aside.
8. In the result, the petition is allowed. The impugned order of conviction and sentence passed by the Courts below is quashed and set aside and both the petitioners-accused are acquitted. Fine, if paid, be refunded to the accused. The rule is made absolute. Bail-bonds of the accused to stand cancelled.
9. Petition allowed.