Bombay High Court
Ibrahim Ahmed Kokani And Anr. vs State Of Maharashtra on 8 January, 1980
JUDGMENT M.P. Kanade, J.
1. These two revision applications are filed by the original accused persons, who are brothers. Petitioner No. 1 is the manager and petitioner No. 2 is the owner of M/s. Metro Soda Water Factory at Nasik.
2. On March 22, 1974, Food inspector, W.M. Sonawane (P.W. 1) visited the factory of the petitioners and seized 298 bottles. Some of those bottles were empty and some of those bottles were filed with aerated water. It appears that on April 12, 1974 he again visited the factory of the petitioners and took out 17 bottles out of those 298 bottles. Out of 17 bottles, 6 bottles having mark of 'Rojers,' 6 of 'Dukes' and 5 of Turf were separated and sealed and a panchanama to that effect was made. It appears that an application was made by the Food Inspector to the Judicial Magistrate, First Class, Nasik for the custody of the bottles seized under section 10(4) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Food Adulteration Act") and thereafter, on the basis of the said panchanama of the bottles so separated and the reports of Rojers and Dukes companies two complaints came to be filed against both the accused on November 7, 1974 in the Court of the Judicial Magistrate, First Class, Nasik after obtaining necessary sanction from the Assistant Commissioner, Food and Drugs Administration.
3. The learned Judicial Magistrate after recording the evidence of the complainant-the Food Inspector W.M. Sonawane, whose evidence was remained unchallenged, framed the charge against both the petitioners. It is necessary to reproduce the charge that has been framed against both the petitioners. The charge is as under :
"That on 22-3-1974 you accused No. 1 being Manager and accused No. 2 being owner of M/s. Metro Soda Water Factory, Nasik were found manufacturing for sale, store for sale, mis-branded bottles of Rojer's Company contrary to section 7(ii) of P.F.A. Act read with Section 2(ix)(a) of P.F.A. Act punishable under section 16(1)(a)(i) of the P.F.A. Act and within my cognizance."
4. After the charge was framed, the complainant was re-summoned for cross-examination. At the trial only one witness was examined viz. the complainant in both the cases. It must be stated that even the panch of the panchanama was not produced at the trial to prove the said panchanama of the seizure of 298 bottles. It appears that in the trial Court the evidence was separately recorded in both the cases and on appreciation of the evidence, the learned Judicial Magistrate was pleased to convict both the accused persons for the offence punishable under section 16(1)(a) read with section 7(ii) and sections 2(ix)(a) and 2(ix)(h) of the Food Adulteration Act and each was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default to suffer further rigorous imprisonment for three months. The accused persons feeling aggrieved by the aforesaid judgment and order passed by the learned Judicial Magistrate, First Class, II Court, Nasik, dated December 26, 1978 preferred two separate appeals being Criminal Appeal No. 194 of 1978 and Criminal Appeal No. 195 of 1978. Both these appeals were heard by the learned Additional Sessions Judge, Nasik and the same were disposed of by a common judgment. The learned Additional Sessions Judge partly allowed the appeals. The orders of conviction in both the Criminal cases were confirmed so far as offence under section 2(ix)(a) read with section 7(ii) of the Food Adulteration Act. However, the order of conviction under section 2(ix)(h) of the Food Adulteration Act was set aside, and the orders of sentences in each case were upheld subject to further modification that the accused persons shall suffer substantive sentences in both the cases concurrently as the learned Judicial Magistrate failed to pass an order with regard to substantive sentences in both the cases to run concurrently. Against the said judgment and order passed by the learned Additional Sessions Judge, Nasik, dated July 19,1979 the present two revision applications have been filed by the petitioners, which are disposed of by this common judgment.
5. Mr. V.B. Ganatra, the learned Counsel appearing on behalf of the petitioners in both the revision applications submitted that there is not an iota of evidence on record to support the conviction under section 2(ix)(a) of the Food Adulteration Act. It is also argued by Mr. Ganatra that the charge framed against the accused does not disclose any offence at all. It is pointed out by Mr. Ganatra that the charge is in respect of the bottles and not in respect of the contents of the bottles or about the aerated water. According to Mr. Ganatra, the charge is very vague and it should have been very specific. In the absence of particulars in the charge the conviction under section 2(ix)(a) of the Food Adulteration Act is not sustainable. Secondly, it is contended by Mr. Ganatra that the goods viz. aerated water was under the process of manufacture and unless labelling and packing are complete, it cannot be said that the goods have been manufactured. Lastly, it is argued by Mr. Ganatra that there was no sale in favour of the Food Inspector by the petitioners. It is an admitted position that the Food Inspector had not purchased the goods from the factory. It is also an admitted fact that the compliance of the provisions of section 11 of the Food Alteration Act was not made. In other words, the samples were not taken by the Food Inspector and the same were not sent for obtaining the report of the Public Analyst. According to Mr. Ganatra, in the absence of any sale or obtaining samples or getting a report of the Public Analyst, the conviction for an offence under section 2(ix)(a) cannot be sustained. Further it is pointed out by Mr. Ganatra that the seizure of 298 bottles was made under section 10(4) of the Food Adulteration Act. While relying upon the provisions of section 10(4) of the Food Adulteration Act, Mr. Ganatra argued that what is implicit in the old section 10(4) of the Act that the Food Inspector shall take a sample of such article and submit the same for analysis. What is implicit in the old section has been made explicit under section 10(4) of the New Act. The amended provisions makes it obligatory on the Food Inspector that he shall, in either case, taken a sample of such article and submit the same for analysis to a public analyst. According to Mr. Ganatra it was implicit in the old provisions of section 10(4) to obtain sample and the same to be sent to the Public Analyst so that there is satisfaction of the Food Inspector that the article is either adulterated or misbranded. In the absence of such documentary proof on the face of record, it will not be possible for the prosecution to prove that the food sought to be sold is either adulterated or misbranded.
6. Mr. N. M. Kachare, the learned Public Prosecutor appearing on behalf of the State, argued that the charge levelled against the accused persons is not vague. The penal section has been quoted in the charge and the copies of the concerned documents were given to the accused and no prejudice has been caused to the accused persons. On the contrary they have understood the charge levelled against them and, therefore, it is not open for the accused to contend in the revision application that the charge was vague. Secondly, it is argued by Mr. Kachare that it is not disputed by the accused that the bottles of Rojers and Dukes were found in their factory and those bottles were seized and it is admitted by the accused in their statements under section 313 of the Code of Criminal Procedure that the said goods were kept for sale. Lastly it is contended by Mr. Kachare that the prosecution has proved the case against the accused beyond reasonable doubt that the contents in the bottles were misbranded and therefore, both the courts below have rightly convicted both the accused person.
7. Having heard the learned Counsel on both the sides, I asked the learned Public Prosecutor as to how and by what evidence the case under section 2(ix)(a) of the Act is to be proved and whether it has been proved accordingly. He pointed out that the prosecution has not led any evidence except the oral evidence of the complainant.
8. The word 'misbranded' has been defined in section 2(ix) of the Act, which lays down :---
"(ix)" misbranded"---an article of food shall be deemed to be mis-branded-
(a) if it is an imitation of, or is a substitute for, or resemles in a manner likely to deceive, another article of food under the name of which it is sold and is not plainly and conspicuously labelled so as to indicate its true character."
In order to prove the case against the accused for an offence under section 2(ix)(a) of the Act, the prosecution must prove that (1) either there is an imitation of, or (2) there is a substitute for, or (3) the article resembles in a manner which is likely to deceive the customer, for another article of food under the name of which it is sold. These important ingredients are completely lost sight of by both the courts below. It must be stated that there is no evidence whatsoever on record that the contents of the bottles were an imitation or it was substituted for another article of food under the name of which it was sold. In the absence of such evidence on record, the conviction under section 2(ix)(a) of the Act cannot be sustained.
9. The learned Public Prosecutor read out the place of evidence of the Food Inspector, in examination in chief, the Food Inspector W.M. Sonawane has stated:
"But in fact there was own produce of the accused in the bottle."
According to Mr. Kachare, this statement in examination-in-chief has not been challenged in the cross-examination and, therefore, the said statement should be accepted. I am unable to appreciate this argument of Mr. Kachare. Admittedly, the Food Inspector Sonawane was not present when the contents of the bottles were filled in. He has not stated that any examination of the said contents was made by him or any process was carried out by him in order to find out as to whether there was any imitation of, or the article was substituted for or the article resembled in a manner likely to deceive the customers. The bald statement of the witness as stated above cannot be accepted in a criminal trial. In my opinion, both the courts below have ignored the basic ingredients of the provisions of section 2(ix)(a) of the Food Adulteration Act and thereby committed an error of law convicting the accused persons. Having regard to these circumstances, I need not go into other submissions made by Mr. Ganatra. On the face of reasons as stated above, the conviction cannot be sustained in the absence of any reliable, relevant and cogent evidence on record to prove the ingredients of the provisions of section 2(ix)(a) of the Food Adulteration Act. It is true that the charge does not give any specific offence. Undoubtedly it speaks about the bottles and not about the contents of the bottles or aerated water. One need not go into all these points raised in the revision application but suffice it to say that the order of conviction against the accused is based on, no evidence at all and hence the same deserves to be set aside.
10. In the result, the rule is made absolute in both the revision applications. The judgments and orders passed by both the courts below are set aside and the accused are acquitted of the charges levelled against them. Fine, if paid, shall be refunded to the accused persons. The bail bonds of the accused stand cancelled.
11. The muddemal property i.e. bottles shall be restored to the accused persons.