Bombay High Court
State Of Maha vs Ashok Dalumal Hemanani on 11 January, 2016
Author: M.T. Joshi
Bench: M.T. Joshi
1 criappeal278-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.278 OF 2003
The State of Maharashtra,
At the instance of S.V.Khairnar,
Food Inspector, Food and
Drugs Admn., Jalgaon ..Appellant
Versus
Ashok Daluman Hemnani,
Prop. of Karmayog Super
Jalgaon
Shop No.21, Central Fule Market,
..Respondent
--
Mr.P.N.Kutti, APP for appellant - State
Mr.S.G.Bobade, advocate for respondent
--
CORAM : M.T. JOSHI, J.
RESERVED ON : DECEMBER 03, 2015
PRONOUNCED ON : JANUARY 11, 2016
JUDGMENT :
Heard both sides.
2] Aggrieved by the acquittal of the respondent from the offences under Section 7(i) read with Section 2(ia)(a) and Section 2(ia)(m) punishable under Section 16 of the Prevention of Food ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 2 criappeal278-03.odt Adulteration Act, 1954 vide judgment and order dated 31st December, 2002 passed by learned Chief Judicial Magistrate, Jalgaon in Regular Criminal Case No.462 of 2000, the State has preferred present appeal.
3] The prosecution case, in short, is as under :-
.
That PW 1 - Shri.Mahesh Chaudhari was appointed as a Food Inspector and was posted at Jalgaon during the relevant period. On 1st November, 1999, he along with another Food Inspector Shri.H.N.Ugale and one panch witness Brijlal Menghwani had visited respondent's shop in Karmayog Super Bazar at Jalgaon. The respondent was present and operating the said shop. After necessary introduction, the Food Inspector inspected the shop. He found edible oil in three barrels. The respondent informed that it was groundnut oil. The barrels were already open.
The Food Inspector requested the respondent to ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::
3 criappeal278-03.odt sell 450 gms. Of groundnut oil from each of the barrels. The respondent cleaned the upper lid of the barrel. The Food Inspector provided three clean and dry pots to the respondent. Cleanliness of the pots was confirmed by the respondent and the panch witness. The sample was purchased and receipt of the same was obtained.
.
Thereafter, as per the procedure, the groundnut oil was separated in three parts in three bottles after confirmation of the concerned that those bottles were clean and dry. Necessary seals were put on the bottles. Signature of the panch witness and the respondent were obtained on the labels and necessary slips were applied.
Panchnama was prepared. Necessary copies of the specimen signatures and seals etc. were prepared.
One of the bottles was sent to the Public Analyst, District Public Health Laboratory, Washi, New Mumbai. The Local Health Authority was also informed according to the rules.
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::4 criappeal278-03.odt . The Public Analyst had carried test of eleven points and it was opined that the sample does not conform to the standards of groundnut oil as per the provisions of the Prevention of Food Adulteration Act. The consent of the competent authority to prosecute the respondent was obtained. In the circumstances, the complaint came to be filed in the court of learned Chief Judicial Magistrate.
4] Notice of filing of the complaint was sent by the Food Inspector to the respondent by R.P.A.D. within ten days. The respondent accordingly moved an application in the court of learned Chief Judicial Magistrate for sending another sample to the Central Food Laboratory, Calcutta. The report was received by learned Chief Judicial Magistrate, which showed that the said sample of groundnut oil was adulterated. Charge came to be framed against the respondent.
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::5 criappeal278-03.odt 5] Before learned Chief Judicial Magistrate, Jalgaon, in all four witnesses were examined. PW 1 is Shri. Mahesh Chaudhari, Food Inspector. PW 2 is complainant S.V. Khairnar, who has filed the complaint upon transfer of PW 1 from Jalgaon. PW 3 - Brijlal Menghwani is the panch witness while, PW 4 is Shashikant Patil, the then Local Health Authority-cum-Assistant Commissioner, Food and Drugs Department, Jalgaon, who had inter-alia obtained consent to lodge prosecution against the respondent.
6] All the witnesses deposed on the lines of the prosecution regarding their role, as detailed supra. Learned Chief Judicial Magistrate acquitted the respondent, principally on the ground that though independent panch witness says that one Peon was present, PW 1 - Mahesh Chaudhari, Food Inspector, deposed that he was accompanied by one ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 6 criappeal278-03.odt panch witness and one Food Inspector only. Thus, he did not depose about presence of the Peon.
Further, PW 1 - Mahesh Choudhari, Food Inspector admitted that the panchnama is not in his handwriting and therefore, question arose as to who had scribed the panchnama.
.
Further, though the prosecution case is that the samples were collected in three clean and empty dry pots and bottles, those pots and bottles were not dried and cleaned on the spot. There is no evidence as to who had cleaned and dried those bottles. Further, according to the panchanama, a hand pump was used at the time of taking sample.
In view of all these facts, learned Chief Judicial Magistrate has acquitted the respondent. Hence, the present appeal.
7] Mr.Kutti, learned A.P.P. for the appellant -
State submitted before me that the respondent has ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 7 criappeal278-03.odt admitted that the shop was inspected and samples of groundnut oil were collected from his shop.
What was suggested to the Food Inspector was that he did not use the pot and directly taken the samples in glass bottles. In those circumstances, learned Chief Judicial Magistrate, according to Mr.Kutti, ought not have given any importance to the facts that the Peon was present, panchanama is not in the handwriting of PW 1 - Mahesh Chaudhari, Food Inspector or there is no evidence as to who had scribed the panchnama.
. He further submitted that the Food Inspector has deposed that the pots as well as the bottles were clean and dry. Learned Chief Judicial Magistrate, however, commented that those articles were not cleaned and dried on the spot and there is no evidence as to who had cleaned and dried the same on the spot, which is not the requirement of law.
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::8 criappeal278-03.odt . Mr.Kutti further submitted that the non deposition about presence of Peon is immaterial, as there is no denial that the samples were obtained.
He further submitted that the second sample sent to the Central Food Laboratory, Calcutta on the application of present respondent, had also revealed that the groundnut oil was adulterated.
Therefore, the remark of the learned Chief Judicial Magistrate that the earlier State Analyst had sent the report after 40 days against Rule 7 of the Prevention of Food Adulteration Rules, would have no bearing in the matter.
. In the circumstances, he submitted that the prosecution has proved beyond reasonable doubt that the groundnut oil was adulterated.
8] On the other hand, Mr.Bobade, learned counsel for the respondent took me through the evidence.
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::9 criappeal278-03.odt He submitted that there were grave lacunae in the prosecution case, as highlighted by learned Chief Judicial Magistrate. He therefore submitted that in the present appeal against acquittal, since learned Chief Judicial Magistrate has taken a reasonable and probable view of the matter, no interference is warranted.
9] On the basis of this material, following point arises for my determination :-
Whether the prosecution has proved that on 1st November, 1999, present respondent, in his shop at Jalgaon, had stored for sale adulterated groundnut oil ?
. My finding to the above point is in the affirmative. The appeal is, therefore, allowed for the reasons to follow.::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::
10 criappeal278-03.odt R E A S O N S 10] Besides examining Food Inspector - Mahesh Chaudhari, the prosecution has examined PW 3 -
Brijlal Menghwani. He deposed that purchase of samples of groundnut oil and sampling process was carried in his presence. The samples were signed by him. Panchanama was also prepared in his presence. Only the cross-examination to the panch witness was that at that time, in all two Food Inspectors and one Peon was present and the Peon had taken samples by using hand pump. It was also suggested to PW 1 - Mahesh Chaudhari that the said hand pump was used by respondent to extract various edible oils, which was denied by him.
11] PW 1 - Mahesh Chaudhari has deposed that he had confirmed from the respondent as well as all the concerned that the pots as well as the bottles were clean and dry. What was suggested to him was ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 11 criappeal278-03.odt that he has not cleaned and dried those articles on the spot. He denied the suggestion that those articles were not clean and dry. In the situation, it is necessary to take into consideration the report of the Public Analyst as well as the Director, Central Food Laboratory, Calcutta.
12] The report of the Public Analyst is at Exhibit
30. It showed following results :-
1 Appearances : The sample of oil is clear, free from suspended matter of separated water.
2 Test for Rancidity : Negative 3 Test for Colour : No extraneous colour detection 4 Test for Mineral : Negative 5 Test for Caster : Negative seed oil 6 Butyrorefractometer : 61 reading at 40° C. 7 Saponification : 190.17 Value 8 Iodine value : 124.74 ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 12 criappeal278-03.odt 9 Unsapenifiable : 0.62 matter 10 Acid value : 0.31 11 Bellier test 28.0° C. (Turbidity Temperature acid method The above sample bearing code No.J1G/6/NSKD and slip Sr. No.06718 does not conforms to the standards of ground nut oil as per the Prevention of Food Adulteration Act, 1954.
13] The second analysis carried on the application of the respondent from the Central Food Laboratory, Calcutta would show the following results :-
Physical Examination :
Moisture :
Butyrorefractometer : 59.5
reading at 40°
Saponification value : 191.3
Iodine value : 119.8
Acid value : 0.5
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::
13 criappeal278-03.odt
Bellier test (Turbidity : 30.0°
Temperature acid method
Baudouin test (for : Negative
seasame oil)
Polybromide :
Test for mineral oil : Negative
Test for Cottonseed oil : Negative
Test for Argemone oil by : Negative
T.L.C.
Test for Hydrocyanic acid :
Test for Castor oil by : Negative
T.L.C.
Phosphorus :
Test for Tri-Ortho-Cresyl :
Phosphate
Cloud Point :
Flash point (Pensky- :
Marten closed method)
Added colouring matter : Absent
Aflatoxin B1 (Microgram/ : 10
Kg)
The sample of Groundnut Oil is
adulterated.
14] Mr.Kutti, learned A.P.P. relied on the ratio laid down in the case of Food Inspector Vs. G. Satyanarayana, 2002(9)SBR 67, wherein the Supreme ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 14 criappeal278-03.odt Court has held that no corroboration to the evidence of the Food Inspector is required and, therefore, the order of High Court, acquitting the respondent in the similar case regarding adulteration of red gram dal was set aside.
. Lastly, Mr.Kutti relied upon the ratio laid down in the case of Kantilal s/o. Parasmal Jain Vs. The State of Maharashtra, 2014 All M.R. (Cri) 2276 wherein, it was held that the evidence that the containers or pots were clean dry is enough, if not shattered in the cross-examination as there is no rule that these containers should be cleaned or dried on the spot.
15] On the other hand, Mr.Bobade, learned counsel for the respondent submitted that while the panch witness did not depose that the containers were clean and dry, the evidence of the Food Inspectors being interested witnesses, cannot be relied upon.
::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::15 criappeal278-03.odt As such, there was breach of Rule 14 of the Prevention of Food Adulteration Rules and therefore, as has been held in the case of State of Maharashtra Vs. Bhaskar Rajeshwar Gangeshettiwar, 2003 All M.R. (Cri) 1313, learned Chief Judicial Magistrate has rightly acquitted the respondent.
.
He further relied upon the ratio laid down in the case of Mohammad Khan Nathekhan Vs. State of Gujrat, 2014(14)SCC 589, wherein the principles while dealing with the appeal against acquittal, are highlighted.
16] From all this material, it emerges that admittedly, the Food Inspector had visited the shop of the present respondent and collected the samples. According to the Food Inspector, the containers/pots used were dried and cleaned and it was got confirmed from the respondent as well as the panch witness on the spot. There is nothing on ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 16 criappeal278-03.odt record to disbelieve this version. Learned Chief Judicial Magistrate observed that the containers were not cleaned or dried "on the spot". It is not the requirement of law.
. Further, though the State Public Analyst has forwarded his report after 40 days, which is against Rule 7 of the Prevention of Food Adulteration Rules, admittedly, the respondent had applied to learned Chief Judicial Magistrate for sending the second sample to the Central Food Laboratory, Calcutta and the report from the said Laboratory would also show that the groundnut oil was adulterated. In that view of the matter, no value can be attached to the non compliance of the provisions of sending the report by State Public Analyst within 40 days.
17] The issue, as to whether, the Peon was present or not and who had scribed the panchanama, is not ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 ::: 17 criappeal278-03.odt material, as there is no suggestion to the Food Inspector that he had any animus against the present respondent.
18] Use of hand pump for taking out the groundnut oil, is also of no consequence because it the case of respondent himself that he was using the said hand pump for extracting various edible oils. None of the reports showed any other edible oil or castor oil or any other type of oil was found in the said groundnut oil. Therefore, interference in the order of acquittal passed by learned Chief Judicial Magistrate, Jalgaon is warranted.
19] In the result, the following order :-
A] Criminal Appeal is hereby allowed.
B] Impugned judgment and order dated 31st December, 2002 passed by learned Chief Judicial ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::
18 criappeal278-03.odt Magistrate, Jalgaon in Regular Criminal Case No.462 of 2000, acquitting the respondent from the offences punishable under Section 7(i) read with Section 2(ia)(a) and Section 2(ia)(m) of the Prevention of Food Adulteration Act, 1954, is hereby set aside.
. Instead, the respondent is hereby convicted for the said offences. He is directed to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- in default, to suffer rigorous imprisonment for 15 days.
C] Learned Chief Judicial Magistrate to take steps for securing presence of the respondent for serving the sentences now awarded to the respondent.
[M.T. JOSHI, J.] kbp ::: Uploaded on - 11/01/2016 ::: Downloaded on - 31/07/2016 00:41:40 :::