Bombay High Court
State Of Maharashtra vs Vasudeo Shivlingappa Takawade And Anr. on 6 July, 1988
Equivalent citations: 1988(3)BOMCR207
JUDGMENT A.D. Tated, J.
1. The State preferred Criminal Appeal No. 173 of 1982 for enhancement of sentence and the accused Preferred Criminal Appeal No. 289 of 1987 against their conviction for the offence punishable under section 7(v) read with section 16 of the Prevention of Food Adulteration Act 1954, and the sentence of fine of Rs. 1000/- imposed on the accused No. 1 firm and the sentences till the rising of the Court and to pay a fine Rs. 1,000/- each, or in default, R.I. for three months imposed on the accused Nos. 2 and 3, by the order dated 19th December, 1981 passed by the Joint Civil Judge and Judicial Magistrate, First Class, Sangli, in Criminal Cause No. 3624 of 1978.
2. The accused No. 1 firm and its partners, accused Nos. 2 and 3, were prosecuted under section 7(v) read with sections 16 and 17 of the Prevention of Food Adulteration Act, 1954 ("the Act", for short) for having sold adulterated Dhania (dry coriander). The learned trial Judge, on considering the evidence adduced by the prosecution, convicted the accused and sentenced them as aforesaid.
3. Ashok Kumar Bandoba Hogale, Food Inspector (P.W. 1), obtained a sample of dhania (dry coriander) from the shop of the accused on 18th January, 1977 and after following the necessary procedure sent it to the Public Analyst, who found that the sample contained inorganic extraneous matter more than 2% by weight and did not conform to the standard dhania (whole) as per the of the Prevention of Food Adulteration Rules, 1955 ("the Rules" for short).
4. The learned Counsel for the accused contends that the learned trial Judge was not right in convicting the accused and that the prosecution suffered from two infirmities. According to him, the proportion of extraneous matter including, dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds or fruits other than coriander or insect damaged seeds are permitted upto 8% by weight, and in case the percentage exceeds 8% by weight and then alone dhania (whole) can be said to be adulterated. In support of his contention he referred to Appendix B and Entry No. A, 05.08 appearing in the Rules. In order to find the accused guilty for selling adulterated dhania (whole) the extraneous matter must exceed 8% by weight. At the same time the amount of insect damaged matter should not exceed 5% by weight. In the present case, the report of the Public Analyst shows that the sample contained inorganic extraneous matter more than 2% by weight. It does not say that the extraneous matter was more than 8% by weight or that there was insect damaged matter which was more than 5% by weight. Therefore, on the report of the Public Analyst it cannot be said that the sample taken by the Food Inspector was adulterated as per the provisions of the Act. Therefore, the accused could not be convicted for the offence for which they were charged.
5. The second infirmity is that Rule 9(a) of the Rules as it then stood, which requires that the Local (Health) Authority shall immediately after the launching of the prosecution forward a copy of the report of the result of the analysis in Form III delivered to him under sub-rule (3) of Rule 7 to the person from whom the sample of the article was taken by the Food Inspector, has not been complied in this case. In this case the sample was taken on 19th January, 1977. The report of the Public Analyst was received on 9th March, 1977. The prosecution was launched against the accused on 13th November, 1978 and the accused No. 1 firm was informed of the P.A. report and launching of the prosecution on 1st August, 1979 that is, more than one and a half years after the launching of the prosecution. The period of one and half years is a considerable long period and during such long period the sample of dhania is likely to be contaminated or deteriorated and it would adversely affect the right of the accused under section 13(2) of the Act to get the sample analysed by the Central Food Laboratory. If the sample of dhania is sent to the Central Food Laboratory more than two and a half years after it was collected, the result of the analysis by the Central Food Laboratory cannot reflect the condition of the sample on the day it was collected Dhania is bound to be damaged by the lapse of a considerably long period of more than two and a half years and, therefore, the analysis thereof by the Central Food Laboratory could be of little assistance to the defence to know that the exact condition of the Dhania on the day the sample was collected. Therefore, a valuable right available to the accused under section 13(2) of the Act to get the sample analysed by the Central Food Laboratory has been lost due to the delay of about one and a half years from the time the prosecution was launched till the accused was informed of the report received from the Public Analyst. Consequently, the conviction of the accused for the offence under section 7(i) read with section 16 of the Act cannot be sustained, and their conviction and the sentence awarded to them are liable to be set aside. Therefore, the State appeal for enhancement of the sentence must fail.
6. In the result, Criminal Appeal No. 289 of 1987 preferred by the accused is allowed. The conviction of the accused for the offence under section 7(v) read with section 16 of the Prevention of Food Adulteration Act, 1954, and the sentences awarded by the learned Joint Civil Judge and Judicial Magistrate, First Class, Sangli, are set aside. The accused are acquitted of the said offence. Fine if paid shall be refunded to the accused. Criminal Appeal No. 173 of 1982 preferred by the State for enhancement of sentence is dismissed.