Bombay High Court
State Of Maharashtra vs Parashram Tulsiram Wani And Ors. on 15 March, 1979
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. This is an appeal against acquittal. Accused Nos. 1 to 6 are the partners of accused No. 7, which is a partnership firm. On the 11th March, 1974, Food Inspector Baburao Piraji (P.W. 1), visited the shop of the partnership firm which is situated at Pachora, District Jalgaon. Accused No. 3 was present in the shop for conducting the business thereof. The Inspector, in the presence of two independent witnesses, Kundanmal (P.W. 2), a neighbouring shop keeper and his accountant Murlidhar Trimbak (P.W. 3), disclosed his identity to accused No. 3 and purchased a sample of asafoetida (hing) in the quantity of 300 gms. After performing the necessary formalities, including the payment of the price, dividing the sample into three parts and handing over one of the parts to the accused and collecting a receipt for the money paid as well as the part so handed over, one of the parts was sent to the Public Analyst. The report from the Public Analyst, which is Exhibit 31 on records, shows that the sample contained alcoholic extract (with 90% alcohol) which was only 6.98% that is less than 12% and was therefore, adulterated within the meaning of section 2(i)(c) of the Prevention of Food Adulteration Act, 1954. On the receipt of this report, the accused was charge-sheeted and thereafter prosecuted before the learned Judicial Magistrate, First Class, Pachora for the offence under sections 7 and 16 read with section 17 of the said Act and the Rules made thereunder.
2. At the trial, the accused pleaded not guilty. Accused No. 3, in addition, filed his written statement. The defence of the accused was firstly that the hing in question was not meant for human consumption. It was meant to be used as a manure and in fact it was sold to the Food Inspector as such manure. In support of its case, the defence relied upon a carbon copy of the cash memo, which according to them was issued to the Food Inspector at the time of the sale of the sample on 11th March, 1974. In addition, it was their contention that the hing was not analysed as per the method mentioned in the Prevention of Food Adulteration Rules, 1955, namely, the U.S.P. 1936 Method and, therefore, the report of the Public Analyst could not be the basis of their prosecution.
3. At the trial, the prosecution examined the Food Inspector Baburao Bankar (P.W. ) the two panchas Kundanmal (P.W. 2) and Murlidhar (P.W. 3); and the Public Analyst Abdul Husen Lakhani (P.W. 4). Food Inspector Bankar denied that any cash memo as such was issued by accused No. 3 at the time he purchased the said sample. However, both the panch witnesses Kundanmal and Murlidhar turned hostile and asserted that a cash memo was issued as contended on behalf of the defence. They also admitted the carbon copy of the said cash memo which was shown to them while they were in the witness box. Both these witnesses were declared hostile since they also asserted they beyond taking their signatures on the relevant documents, nothing else was down in their presence as contemplated by the Food Inspector Bankar. The Public Analyst Lakhani was cross-examined at great length to show that he had not performed the test as per the U.S.P. 1936 Method laid down in the said rules.
4. The learned Magistrate came to the conclusion that in view of the depositions of the two panch witnesses that a cash memo was issued to the Food Inspector Bankar on the 11th March, 1974, a carbon copy of which was produced by the defence in the Court and in view of the further fact that the said carbon copy showed that the hing was meant to be used as manure for sweet line the prosecution had failed to establish the offence against the accused beyond reasonable doubt. In this view of the matter, he did not touch the other defence, namely, that the Public Analyst had not performed the test as per the U.S.P. 1936 Method as contended by the accused. In the result, he acquitted the accused of the offence, by his impugned order dated 30th April, 1977.
5. In view of the fact that the two independent witnesses, though hostile, had asserted that a cash memo was issued to the Food Inspector on the date he purchased the sample of hing and the carbon copy of the said cash memo showed that the hing in question was sold as manure and not for consumption, I am of the view that it could not be said that the order of acquittal passed by the learned Magistrate was either unreasonable or perverse. It must also be noted in this connection that the hing which was sold to the Food Inspector weighted not less than 300 gms. and the price that was charged was admittedly only 90 p. It was specifically put to the Food Inspector that the price of the hing meant for consumption was between Rs. 40/- to Rs. 80/- per kg. In any case, it was not less than Rs. 40/- per kg. The Food Inspector could not either deny or assert the said price. No evidence was led by the prosecution to show that the price of the hing meant for consumption was Rs. 3/- per kg. which would be the price calculated at the rate of 90 p. and per 300 gms. In view of the assertion of the defence that the price of hing meant for human consumption was not less than Rs. 40/- per kg., it was necessary for the prosecution to rebut the said evidence and show that the hing meant for human consumption was available for less than that price. The recital in the carbon copy of the cash memo, the evidence of the independent witnesses that such a cash memo was issued, the reliance by the defence on the said cash memo and the production of the same in the Court, with no evidence produced in rebuttal coupled with the very wide difference in the price of the hing meant for human consumption and the hing which was actually sold to the Food Inspector show that it cannot be said that the defence version that the hing that was sold was not for human consumption is without any foundation. In the circumstances the impugned order of acquittal cannot be said to suffer from any manful error on the part of the trial Court. I am, therefore, not inclined to interfere with the same.
6. In the result, the order of acquittal is confirmed and the appeal is dismissed.
7. The bail bonds of the accused to stand cancelled.