Bombay High Court
S.D. Nagdeve vs Sudhakar Raghunath Burange on 15 March, 1989
Equivalent citations: 1990CRILJ2452, 1989MHLJ1042
JUDGMENT V.A. Mohta, J.
1. The Food Inspector has filed this appeal against the judgment of the Chief Judicial Magistrate, Amravati, acquitting the respondent-accused Sudhakar Burnage, a retail grocery merchant of village Nimbhi, district Amravati, of the offences committed under S. 7(i) read with S. 2(ia)(a)(m) and punishable under S. 16 of the Prevention of Food Adulteration Act (the PFA Act.).
2. On the morning of 21st December, 1983, the Food Inspector Sudesh Sukhdeve (P.W. 1) visited the retail grocery shop of the accused with panch Ramesh (P.W. 2) and found amongst the articles exposed for sale, oil stored in two open tins which had no label. He purchased for sample 430 grams of what the accused described as the linseed oil, taken out from one tin and equal quantity of what the accused described as groundnut oil from another tin. This matter pertains to linseed oil. Price was paid at market rate and cash memo taken. Appendix B form was prepared in duplicate, From VI prepared in triplicate, original of both handed over to the accused and due acknowledgment obtained. Oil taken out after stirring by measure used in that tin was poured after equal division in three dry, clean empty glass bottles which were tied with cork, Labels were affixed and bottles were wrapped and sealed. Detailed panchanama Exhibit 13 recording all details was prepared and after reading over the same to the accused and panch, their signatures were obtained.
3. On the next day five copies of Form VII were prepared. One copy of Form VII and one sample of oil were kept in one envelope and sealed. A duplicate copy of Form VII and the specimen impression of the seal were kept in another envelope and sealed. These two envelopes were handed over to the Public Analyst, Amravati, and acknowledgments of authorised clerk were obtained. Three copies of the Appendix B were prepared. Two sample bottles, one original of Appendix B and two copies of Form VII were kept in one packet which was sealed. Duplicate copy of Appendix B and two slips of Specimen impression of seal were kept in one envelope which also was sealed. These two sealed envelopes were subsequently handed over to L.H.A. and A.C. on 22nd December, 1983 and acknowledgment receipts obtained.
4. Exhibit 24 is the report of the Public Analyst, Deshpande (P.W. 3) dt. 27th January, 1984 which mentions that oil does not conform to the standard of linseed oil as per the Prevention of Food Adulteration Rules, 1955 (the Rules) and contains mixture of sesame oil and cottonseed oil (signified by positive Halphan's Test). All papers including Exhibit 24 were sent to Joint Commissioner of Food and Drug Administration on 17th February, 1984 for consent under S. 20 of the P.F.A. Act. Exhibit 25 dt. 21st April, 1984 is the letter by which the consent asked for was given. Complaint was lodged on 12th June, 1984.
5. In the Trial, material witnesses examined are : the Food Inspector Sudesh Sukhdeve (P.W. 1), Panch Ramesh (P.W. 2), Public Analyst, Deshpande (P.W. 3) and the L.H.A. and A.C. Nilkanth Akre (P.W. 4). Food Inspector fully supported the prosecution case proved the panchanama (Exhibit 13) but the Panch Ramesh (P.W. 2) though admitted his signature on panchanamas turned hostile. Against this basic backdrop, the learned Chief Judicial Magistrate came to the conclusion that the guilt was not brought home and, therefore, recorded acquittal.
Reasons for the conclusion can be categorized thus :
(a) The panch has not supported the prosecution case and hence there is no corroboration to the evidence of the Food Inspector.
(b) There is contradiction in the evidence of the Food Inspector about the person taking out the sample from the tin.
(c) The sealed envelopes were not received by the Public Analyst personally but by his authorised clerk.
(d) Exhibit 24 does not mention either the qualifications of the Public Analyst or the date of actual analysis.
(e) Exhibit 24 does not disclose the name of the substance mixed in the oil and its percentage.
6. With the assistance of the learned counsel for the parties, we have gone through the evidence. Panch Ramesh (P.W. 2) who is journalist by profession, has admitted his signature on the panchanama as well as various documents, but has turned hostile. This is unfortunate but not unusual. There was no justification for the trial Magistrate to be so touchy about a panch turning hostile and to choose not to rely upon the evidence of Food Inspector because there is no corroboration. The veracity of evidence of Food Inspector has to be tested on its own intrinsic merit. He had no axe to grind against the accused. He has given detailed account of what happened and the course adopted by him from beginning to end. All legal provisions about taking samples, sealing them, despatching them to the Public Analyst have been properly followed. Oil in the tin was stirred and sample taken by the measure used in that very tin. Sample was taken in clean, dry and empty bottles after showing them to the accused. Why should he be disbelieved. Contents of Exhibit 13 are not denied by the accused either in the cross-examination or statement under S. 313, Cr. PC. The accused only stated that Exhibit 13 was prepared when he had gone to fetch tea for the Food Inspector. We have not been able to locate any contradiction about the person taking out the sample notice in the Judgment. In our view, appreciation of evidence of Food Inspector by the learned Magistrate borders on perversity.
7. Undoubtedly, the covers were received and the authorization is duly proved. Acknowledgment indicates that the covers containing the sample and other documents were duly sealed. Law does not require the Public Analyst to always receive the covers personally.
8. Mere absence of qualification of the Public Analyst in the report or the date of actual analysis is not fatal. No law requires those matters to be mentioned in the report. Public Analyst, Deshpande is duly qualified and his evidence discloses that analysis is made within prescribed time of 45 days. Sample was taken on 21st December, 1983 and report given on 27th January, 1984.
9. The impression that Exhibit 24 does not disclose the foreign substance is not correct. Presence of sesame oil is specifically mentioned. Halphan's test is shown to be positive which means presence of cottonseed oil as per the unchallenged expert opinion on the point given by the Public Analyst.
10. Is the absence of percentage of foreign substance in the report by itself fatal to the prosecution ? We do not think so. No such legal requirement exists. Reliance was placed on the case of State of Maharashtra v. Baburao Tukaram (1978) 1 FAC 140 wherein a single Bench of this Court has confirmed the acquittal, inter alia, on the ground that neither the percentage of ingredients of the linseed oil of which sample was taken or the percentage of sesame oil mixed therein was mentioned in the report. Perhaps there was joint impact of absence of both on the mind of the Magistrate recording acquittal and the High Court refused to interfere. The ratio of that decision does not seem to be that mere absence of percentage of other substance is fatal.
11. The order of acquittal was justified also on two other points. One relates to the defence under S. 19(2) of the PFA Act which is neither argued before nor considered by the Magistrate. Admitted position is that the accused had disclosed to the Food Inspector that the linseed oil was purchased by him from the wholesaler M/s. Shriram Oil Industries, Amravati, on 26th November, 1983, under Bill No. 989 containing warranty which was produced before him. But the accused has done nothing beyond the production of bill which by itself is not sufficient to discharge the heavy burden cast on the accused to prove the said defence under S. 19(2) which reads thus :
"19(2). A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves -
(a) that he purchased the article of food -
(i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacture, distributor or dealer;
(ii) in any other case, from any manufacture, distributor or dealer;
With a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it."
The accused had purchased one barrel of oil from M/s. Shriram Oil Industries. It is not known whether that barrel was sealed or had any label affixed thereupon. Minimum to be proved by the accused relying upon this defence is -
(i) the identity between the article of food purchased from a manufacturer, distribution or dealer and the sample,
(ii) that the article was properly stored while in his possession, and
(iii) that he sold it in the same state as he purchased it.
Burden to prove these requirements becomes very heavy when the articles are not purchased in sealed packages and not sold as such. Take for example this very case. The accused has purchased a barrel which was not sealed. Thee was no label affixed on the barrel. Purchase was made about a month before the sample was taken. Retail sale was effected after oil was taken in the storage of small tin of the accused. There is not even a whisper about the manner of its storage either in the cross-examination or the statement under S. 313, Cr. PC. The burden to prove this defence is extremely heavy and it is obligation of the accused to discharge it. The reasons are not far to seek. It is so easy to produce a bill and to suggest that the article of which sample is taken is out of the article covered by the bill. If defence is held to be proved in this manner it will be well nigh impossible to get into net a guilty retailer - a class existing in our society. To hold so, therefore, would open flood gates of dishonest defences. In this context some precedents may be noticed. In the case of Goverdhan Lal v. The Commr. of Police, Hyderabad, 1974 Cri LJ 1411 (Andh Pra). It is observed (at. p. 1417) :
"The warranty would come to his rescue only if the article of food, while in his possession, was properly stored and when he sold it in the same state as he purchased it. When the storage tank is entirely that of the detenu and when the oil therein is found to be adulterated, it is not possible to say that he is making that oil available for sale in the same state as he has purchased it from the manufacturer."
In the case of Food Inspector, Changanacherry v. Augusty (1987) 1 FAC 41 (Kerala) it is held :
"Section 19(2)(b) enjoins a duty on the vendor to establish that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Only in that case the vendor can avail the defence that he is protected by the warranty. The more production of a bill or invoice or warranty will not be sufficient to hold that the vendor is entitled to be acquitted on the ground of warranty."
12. Lastly it is contended that Exhibit 25, the order of consent, is not "speaking" in the sense it does not disclose the reasons in details and hence it does not comply with requirements of S. 20 and, therefore, the prosecution is vitiated. Apart from the fact that validity of consent under S. 20 is a mixed question of law and fact and, therefore, cannot be allowed to be normally raised for the first time at appellate stage, because prosecution with notice of such objection can adduce evidence to prove validity of consent, we do not see any merit in the contention. Grant or refusal of consent under this provision is essentially an administrative and not a judicial function. Its purpose is not to record a prima facie finding about guilt because the stage of evidence upon which the result of prosecution depends is yet to arise. What then is its purpose ? Purpose is to see whether prima facie materials exists for the alleged offender to be put up for trial and whether trial is necessary in public interest. In other words to put check on frivolous and unnecessary trials. What is of essence is that the consenting authority must apply its mind to the facts of the case. In considering the question of validity of consent order, there is one more aspect which has to be kept in view and that is about a presumption under S. 114 of the Evidence Act of official act having been regularly performed. In this connection the case of Tulsi Ram v. State of Uttar Pradesh , though in the context of S. 196A, Cr.P.C., is to the point. Moreover, hypertechnicality should not come in the way of booking the offenders under the PFA Act considering its object.
13. Our attention was drawn to the following observations in the case of A. K. Roy v. State of Punjab, :
"The terms of S. 20(1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and record his reasons for the launching of such prosecution in the public interest."
The Supreme Court in the above case was not dealing with the validity of consent and, therefore, the observations will have to be read only in the context in which they are made. The context was the validity of sub delegation of powers under S. 20(1). In our view, the observations about recording reasons should be read in the context of demonstrability or otherwise of application of mind to the facts and nothing more.
14. In the case of State of Maharashtra v. Shantilal Jamnadas Thakkar (1979) 1 FAC 210 (Bom) consent was held to be bad since a totally incorrect sub-section of S. 7 of the PFA Act was mentioned which along with other material demonstrated that there was no application of mind by the authority. In the case of Nizamuddin Siddikbhai Tigala v. State of Maharashtra (1985) 2 FAC 88 (Bom) following the above case it was held that absence of type of adulteration in the order vitiated the consent. The above two cases were followed in the case of K. N. Joshi, Jt. Director (PFA), Delhi Administration, Delhi v. Davala Ram (1986) 3 FAC 101 : (1986 Cri LJ 1828) wherein there was neither reference to the type of adulteration or to the Analyser's report. In the case of Gahininath Bhimrao Patekar v. State of Maharashtra, (1987 Mah LJ 153) also there was absence of type of adulteration.
15. In our view, no conclusive inference can be drawn of non-application of mind by virtue of the only fact that in the consent order type of adulteration is not mentioned. All will depend upon facts and circumstances of each case. Applying any test to Exhibit 25, it does not appear that there has been non-application of mind. Exhibit 25 refers to the contents of the report of Public analyst, other material documents and so also to the type of adulteration. We, therefore, see no substance even in this point.
16. What punishment, is the ultimate question ? Minimum punishment prescribed for the offence is imprisonment for not less than three months and fine which shall not be less than Rs. 500/-. We, therefore, award that punishment to the accused. However, we feel great hesitation in sending the respondent-accused to the prison. He is a young villager who has purchased the oil from a wholesaler. His defence under S. 19(2) may be correct also though, as we have held, there is lack of proper evidence to discharge the burden. Prosecution is hanging over his head for nearly six years. We feel that he should be given benefit of the Probation of Offenders Act though we are conscious that normally benefit under that Act is not to be given in offences under the PFA Act. But in adopting this course we are guided by the Supreme Court decision in the case of Ramrai Mahadev Nayak v. State of Maharashtra, and Bombay High Court decision in the case of Prabhakar Raghunath Kamerkar v. State of Maharashtra 91977) 1 FAC 49 : (1977 Cri LJ 127).
17. It is, therefore, directed that the jail sentence shall stand suspended and the accused be released on probation on his entering into a bond in the sum of Rs. 2,000/- with one surety for the like amount to the satisfaction of the Chief Judicial Magistrate, Amravati, to appear and receive sentence when called upon during the period of one year and in the meantime to keep peace and be of good behavior. In default of payment of fine within 15 days the accused shall undergo imprisonment for 15 days. Bail Bonds shall stand cancelled on his executing the bond and payment of fine as stated above.
18. Appeal allowed.