Supreme Court - Daily Orders
Vijaykumar Babulal Sharma vs State Of Maharashtra on 8 September, 2015
Author: Chief Justice
Bench: Chief Justice, Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2069 OF 2009
VIJAYKUMAR BABULAL SHARMA …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.1723 OF 2010
VIJAYKUMAR BABULAL SHARMA …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT(S)
O R D E R
1. These appeals are directed against the judgment and order passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal Nos.331 of 1997 and 330 of 1997. By the impugned judgments and orders, the High Court has partly set aside the order of acquittal passed Signature Not Verified by the Trial Court and convicted the appellant for Digitally signed by Ramana Venkata Ganti Date: 2015.09.15 16:55:51 IST Reason: the offences under Sections 2(ia) read with 7(i) punishable under Section 16(1)(a)(i) and for 2 Section 14-A punishable Under Section 16(1)(a)(2) of the Prevention of Food Adulteration Act, 1954 (for short, “the Act”).
2. Brief facts of the prosecution case are: On 08.08.1995 Food Inspector Suresh Tiwari (PW-1) visited the grocery shop of the appellant. While inspecting the premises of the grocery shop and he noticed a canister containing about 8 kg of Sunflower oil. He purchased 450 gram of Sunflower oil against payment of Rs.18.90. The Food Inspector divided the sunflower oil in three packets of 150 grams each and sent one of the sealed sample packet to the office of the Public Analyst, Aurangabad and remaining two sample packets to the Local Health Authority. He received a copy of the report of the Public Analyst from the Local Health Authority on September 25, 1995. According to the report, the sample of sunflower oil contained 60.6 red units in 1 cm. cell on Levibond scale as a result of Halphens test and it was in contravention of Rule 3 44(e) of the Food Adulteration Rules (for short, “the Rules”). He later on sought consent of the Local Health Authority to prosecute the Respondent-therein. Upon receiving the consent letter issued by the Competent Authority, namely, Joint Commissioner (Food and Drugs Administration), PW-1 instituted the case against the appellant.
3. The appellant, on receipt of the information about filing of the complaint, chose to exercise the right available to him under Section 13(2) of the Act. Accordingly one of the sample packet was called from the Local Health Authority by the learned Judicial Magistrate and sent to the Central Food Laboratory, Calcutta (for short, “the CFL”) after following the due procedure. As per the report received from the CFL, the sample of the sunflower oil contained 24.2 red unit and tested positive of the presence of cotton seed oil. Thus the sample of the oil was in contravention of Rule 44(e) of the Rules. The Trial Court framed charge 4 under Section 2(ia)(a) read with Section 7(i), Section 2(ia)(m) read with Section 7(i), Section 2(ia)(m) read with Section 7(i), 14(a) and Rule 44
(e) of the Rules punishable under Section 16 (ia)
(a)(i)(2) of the Act. The charge was read over and explained to the accused, he pleaded not guilty and the case was committed to trial.
4. The learned Judicial Magistrate observed that after receiving the report of the CFL fresh consent was obtained by the complainant to prosecute the appellant-herein even though he was aware that the appellant had the right available to him under Section 13(2) of the Act. The learned Magistrate took cognizance of the observations noted by the High Court of Calcutta in S.M. Anwar & Co. and Anr. v. State of West Bengal and Anr. 1993 CriLJ 3754 wherein it was held that:
“in a case where the report of the Public Analyst during the continuance of the proceeding is totally overturned and 5 negatived to the point of no offence by the subsequent certificate of the Director of Central Food Laboratory thereby requiring the original prosecution to fail, but such certificate of the Director however discloses certain new facts on the basis of which a prosecution may be tenable under law such new facts should be considered by the appropriate authority for recording whether he would consent to prosecution on the basis of such new facts disclosed by the certificate of the Director.”
5. The learned Judicial Magistrate observed that in the case of the appellant – herein, after the report of the Director of CFL was obtained, no fresh consent was obtained from the complainant on the report of the Director of CFL. The learned Magistrate further observed that the exact date of the analysis was not mentioned in the report of the Public Analyst. The analysis was carried after about 30-35 days of taking the sample and the presence of empty space in the bottles led to 6 increase in acidity of the oil. The learned Magistrate placed reliance on the observations noted in Nagar Swasthaya Adhikari, Nagar Mahapalika v. Mohammad Wasim 1992 CLJ 3681 wherein the Allahabad High Court had observed that there was a delay of 46 days in analyzing the sample coupled with empty space in sample phial which contributed to increase in acidity in sample oil and the prosecution failed to show that such delay in analyzing and empty space in the sample phial had no relation to incriminating excess percentage of fatty content in oil, therefore the accused was entitled to benefit of doubt.
6. The learned Magistrate further observed that the reports of the Public Analyst and the CFL failed to show that the sample was unfit for human consumption and the appellant cannot be held guilty on the basis of such reports of the Public Analyst and the CFL. In the light of the aforesaid observations, the learned Magistrate acquitted the appellant herein by order dated 22.04.1997. 7
7. Aggrieved by the aforesaid order, the Respondent-State carried the matter in appeal before the High Court. The High Court partly set aside the order of the learned Magistrate. The High Court observed that the appellant-herein was acquitted by the learned Magistrate primarily on the ground for want of fresh consent required under Section 20 of the Act after the receipt of CFL report by the Trial Court. The High Court, however, differed in its view and noted that the dictum in S.M. Anwar (supra) as relied on by the learned Magistrate is no more good law in view of the decision in Food Inspector, Ernakulam and Anr. v. P.S.Sreenivasa Shenoy (2000) 6 SCC 348 wherein this Court has held that when a report of a Public Analyst is superseded by a certificate of Director of the CFL, it is not necessary to obtain afresh consent to institute prosecution and re-commence the proceedings under the Act. If the prosecution has been validly instituted, neither any new data 8 nor any added reasons contained in the certificate issued by the Director of CFL would be sufficient to annul the sanction already obtained with which the prosecution was already instituted. The trial has to proceed on the certificate on record which superseded the report of the Public Analyst. The High Court in this regard noticed the observations of this Court wherein it has been held:
“Variation regarding the reasons or the data by which two different analysts had reached the conclusion that the sample is adulterated is not sufficient to hold that the basic facts on which the prosecution is founded, have been altered. Hence Section 216(5) of the Code would not improve the position of the accused for the purpose of obtaining fresh consent on the facts of this case.”
8. The High Court while addressing another ground of acquittal wherein the learned Magistrate noted that there a delay in analyzing the sample and the empty space in bottle led to increase in the 9 acidity of the oil, observed that there was no unreasonable delay in carrying out the analysis. The report of the Public Analyst revealed that the sample of sunflower oil was analyzed before 18.9.1995 which was within the period of 45 days from collection of the sample oil and therefore, the analysis was completed. The learned Judge of the High Court further observed that the reliance placed in the case of Nagar Swasthaya Adhikari, Nagar Mahapalika (supra) by the learned Magistrate is not proper since the facts of the given case are not on the same footings. In that case there was delay of 46 days in analyzing the sample with empty space in the sample phial. The learned Single Judge of Allahabad High Court in that case discarded the report of the Public Analyst due to circumstances obtained in that case. So far as variation is concerned, it cannot be ascribed to empty space in the bottles and unless it is shown that the empty space in the sample bottle could cause the variations on account of any scientific 10 reason, such kind of inference cannot be drawn merely on basis of guess-work. The learned Judge of the High Court noted that in the light of the opinion of the Director, CFL that the oil sample was fit for the purpose of the analysis and the sample was properly stored, it is not permissible to draw inferences based on mere conjectures about probable changes in the standard of the food article only because some part of the sample bottle was vacant inasmuch as half of the sample bottle was filled with the sunflower oil.
9. In so far as the contention that the reports of the Public Analyst and the CFL did not show that the sunflower oil was unfit for the human consumption and therefore, it could not be termed as adulterated is concerned, the High Court observed that the observation made in this regard by the learned Magistrate are contrary to the settled legal position. The learned Judge of the 11 High Court referred to the decision of this Court in Tulsiram v. State of Madhya Pradesh (1984) 4 SCC 487 wherein it has observed that:
“It is therefore seen that the sale Of an article of food the sale of which is prohibited by any rule made under the Act also renders the person selling the article of food liable to punishment under Section 16(1)(a)(i). Rule 44(a) prohibits the sale of a mixture of two or more edible oils as an edible oil. A mixture of Soyabean oil and cotton seed oil cannot therefore be sold as Soyabean oil irrespective of whether the mixture has affected the Soyabean oil injuriously or not.”
10. The High Court taking into account the aforesaid observations, came to the conclusion that the prosecution sufficiently established the fact that the sample of the sunflower oil was adulterated and convicted the appellant for offences for contravention of provisions of Sections 2(ia) read with 7(i) punishable under Section 16(1)(a)(i) and 12 for Section 14-A punishable under Section 16(1)(a) (2) of the Act and cumulatively sentenced the appellant to rigorous imprisonment for a period of six months and imposed a fine of Rs.10,000/-, in default of payment of fine to further rigorous imprisonment for a period of three months.
11. Aggrieved by the order so passed by the High Court, the appellant is before us in this appeal.
12. We have heard learned counsel for the parties to the lis and perused the records of the case as well as the impugned judgment(s) and order(s) passed by the Courts below. We are of the considered view that impugned judgment(s) and order(s) passed by the High Court do not suffer from any infirmity and need no interference by this Court. Accordingly, the Criminal Appeals are dismissed.
13. The appellant is on bail. The concerned 13 authorities are directed to take him into custody forthwith to serve the remaining period of sentence.
Ordered accordingly.
............CJI.
(H.L. DATTU) ..............J. (ARUN MISHRA) NEW DELHI, SEPTEMBER 08, 2015 14 ITEM NO.31 COURT NO.1 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 2069/2009 VIJAYKUMAR BABULAL SHARMA Appellant(s) VERSUS STATE OF MAHARASHTRA Respondent(s) (with office report) WITH Crl.A. No. 1723/2010 (With office report) Date : 08/09/2015 These appeals were called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Mr. Shivaji M. Jadhav,Adv.
For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar,Adv.
UPON hearing the counsel the Court made the following O R D E R The appeals are dismissed and the appellant is directed to be taken into custody forthwith to serve out the remaining period of sentence, in terms of the signed order.
(G.V.Ramana) (Vinod Kulvi)
AR-cum-PS Asstt.Registrar
(Signed order is placed on the file)