Indian Kanoon - Search engine for Indian Law

Karnataka High Court

Pramod S/O Shrinivas Kamat vs Arun V. Kashibhatta on 12 January, 2024

                                               -1-
                                                     CRL.RP No. 100240 of 2017




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 12TH DAY OF JANUARY, 2024

                                            BEFORE

                    THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                        CRIMINAL REVISION PETITION NO. 100240 OF 2017

                   BETWEEN:

                   PRAMOD S/O SHRINIVAS KAMAT,
                   AGE: 57 YEARS, OCC:OWNER KAMAT KIRANA
                   STORE, YELLAPUR ROAD, SIRSI,
                   DIST. KARWAR (UK)
                                                    ...PETITIONER

                   (BY SRI.MALLIKARJUN S. HIREMATH., ADVOCATE)

                   AND:

                   1.    ARUN V. KASHIBHATTA,
                         AGE: 48 YEARS,
                         OCC: FOOD INSPECTOR,
                         TALUKA HEALTH OFFICER'S OFFICE, AT
Digitally signed
                         SIRSI, (U.K.)
by
SHIVAKUMAR
HIREMATH           2.    THE STATE OF KARNATAKA
Date:
2024.01.22
13:04:36 +0530
                         REPRESENTED THROUGH
                         SPP, HIGH COURT BUILDING,
                         DHARWAD
                                                         ...RESPONDENTS

                   (BY R1 SERVED
                    SRI. M.B. GUNDWADE, ADDL.SPP)

                        THIS CRIMINAL REVISION PETITION IS FILED U/S 397
                   R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
                   OF THE COURT OF THE 1ST ADDL. DISTRICT & SESSION
                   JUDGE, U.K. KARWAR, SITTING AT SIRSI, DATED: O6.07.2017
                              -2-
                                   CRL.RP No. 100240 of 2017




IN CRIMINAL APPEAL NO. 29/2013 CONFIRMING THE
JUDGMENT AND CONVICTION DATED 11.01.2013 IN C.C. NO.
3200/2008 PASSED BY THE IIND ADDL. J.M.F.C. SIRSI
CONVICTING THE PETITIONER TO UNDERGO SIMPLE
IMPRISONMENT FOR ONE YEAR AND TO PAY A FINE OF
RS.2000/- IN DEFAULT OF PAYMENT OF THE FINE AMOUNT
ACCUSED SHALL UNDERGO IMPRISONMENT FOR A PERIOD OF
THREE MONTHS FOR THE OFFENCE P/U/S 7(1) AND 16(1) (A)
(2) OF PREVENTION OF FOOD ADULTRATION ACT 1954,
CONSEQUENTLY BE PLEASE TO ACQUIT THE PETITIONERS
FROM THE ALLEGED OFFENCE IN THE INTEREST OF JUSTICE.

     THIS CRL.RP COMING ON FOR HEARING, AFTER HAVING
HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY
THE COURT PRONOUNCED THE FOLLOWING:

                          ORDER

The revision petitioner-accused is before this Court challenging his conviction and order of sentence passed by the II Additional JMFC, Sirsi in CC No.3200/2008 dated 11.01.2013 being confirmed by the Additional District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi in Crl.Appeal 29/2013 dated 6.7.2017.

2. The revision petitioner was an accused and complainant was one Sri Arun V.Kashibhatta, the Food Inspector, Taluka Health Office, Sirsi at the relevant time. -3- CRL.RP No. 100240 of 2017

3. For the purpose of convenience, parties to this revision petition are referred to as per their rank before the trial Court.

4. That, complainant, on 20.11.2007, in the capacity of Food Inspector in Taluka Health Office, Sirsi with his assistant visited the shop of the accused called as `Kamath Kirani Stores' for inspection. When he was so inspecting, he suspected that the 'toordal' so kept for sale in the shop of the accused appears to be adulterated. Therefore, he purchased 1500 grams of toordal by paying relevant price prevailing at that time. He bifurcated the said 1500 grams of toordal into three parts i.e. 500 grams each. He followed all the procedures and formalities of Prevention of Food Adulteration Act,1954 (in short `the Act') like issuing notice, getting receipt from the accused, he drew the Mahazar and obtained the signature of the accused on the said Mahazar. He also packed the said sample toordal and kept in the bottle as contemplated under the Act by following due process, he seized the said -4- CRL.RP No. 100240 of 2017 toordal. Thereafter, he sent the said sample toordal for the purpose of chemical examination to the Public Analysist, State Food Laboratory, Bengaluru. On chemical examination of the said sample toordal so sent to the Food Laboratory, it was opined by the Public Analyst that, the said toordal so sent contained Tetratrazine. Therefore, he obtained necessary permission from the Taluka Health Officer and in the capacity of the public servant, he filed a complaint against accused for the offences punishable under Section 7(1) and 16(1)(a)(ii) of Food Adulteration Act, 1954 read with Section 200 of Cr.PC.

5. Before the trial Court, to substantiate the case of the prosecution, two witnesses were examined as PW.1 and 2 i.e. complainant was examined as PW.1 and his Assistant was examined as PW.2. On behalf of the complainant, Ex.P1 to P16 with respective signatures thereon were marked.

6. After closure of the prosecution evidence, the learned trial Court heard the arguments and on -5- CRL.RP No. 100240 of 2017 assessment of the evidence found the accused guilty of committing the offence under Section 7 read with Sec.16(1)(a)(i) of the Act. Accordingly, accused was sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.2,000/- with default sentence.

7. This judgment of conviction and order of sentence passed by the trial Court was challenged by the accused by preferring an appeal before the I Additional District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi in Crl.Appeal No.29/2013. The learned first appellate Court vide judgment dated 6.7.2017 dismissed the appeal of the accused by confirming the judgment of conviction and order of sentence passed by the trial Court.

8. Now, the revision petitioner-accused is before this Court challenging the judgments and order of sentence passed by the Court below.

CRL.RP No. 100240 of 2017

9. The learned Sri Mallikarjun S. Hiremath, Advocate appearing for revision petitioner-accused with all vehemence submits that, both the Courts have not properly assessed and evaluated the evidence. They have failed to appreciate the admissions given by the witnesses being examined by the prosecution. There is no independent witness being examined by the prosecution so as to prove the very seizure of the alleged adulterated toordal by the complainant. PW.1 and PW.2 were the official witnesses and their evidence cannot be believed at any stretch of imagination. On this count only the prosecution has failed to prove its case therefore, the revision petition so filed by the petitioner deserves to be allowed. It is further submitted by him that the prosecution has utterly failed to prove the seizure of the said toordal in the manner alleged by the prosecution. This fact has not been properly appreciated by the trial Court So also by the appellate Court. There is lacunae in preparation of panchanama by the complainant. As per the provisions of Sec.7(10) of the Act, it mandates that there -7- CRL.RP No. 100240 of 2017 must be two independent witnesses. This procedure is not followed by the complainant. Without concurrence of the Central Government or State Government, the complainant could not have filed the complaint. There is no sanction so mentioned in the sanction letter so produced by the complainant. There are material contradictions in the depositions of PW.1 and 2. It is submitted that the materials so placed on record were not sufficient to prove the guilt of the accused. The notification never empowered the complainant to file the complaint in the capacity of public servant. The version of the prosecution cannot be accepted. Amongst other grounds in addition to the facts and grounds so stated in the revision petition, it is submitted by the counsel for the accused that both the courts have committed illegality in convicting the accused and sentencing him. Therefore, he prays to allow the revision petition and accused be acquitted of the charges leveled against him.

CRL.RP No. 100240 of 2017

10. As against this submission, the Addl.SPP for the State Sri M.B.Gundawade, submits that, on over all reading of the contents of the complainant as well as documentary evidence so also the oral evidence adduced through PWs. 1 and 2 prove that the accused being the shop keeper of grocery has kept the toordal which was being adulterated. On suspicion the complainant purchased the said toordal to the extent of 1500 grams by paying the required price at the relevant time. He divided the said the toordal into 500 grams each seized them as per the procedure stated in the Act thereafter, sent them to the Public Analyst for the purpose of chemical examination to know that whether the said toordal so purchased by him is adulterated or not. He also had prepared the panchanama at the time of seizure of the said toordal. On receipt of the public analysist's report it was revealed that the said toordal was adulterated. Therefore, by seeking sanction from the competent authority, he filed the complaint against the accused. -9- CRL.RP No. 100240 of 2017

11. It is his submission that, the learned trial court as well the first appellate court have clearly stated in their respective judgments that how the accused has committed the said offences and it was accused who has committed the said offences under the Act which was health hazard. The society in general and purchaser in particular would be the affected person who purchases the said toordal. It is his submission that, as the both the courts have concurrently held that the accused has committed the said offences, therefore, there is no merit in the revision petition and therefore, liable to be dismissed.

12. I have given my anxious consideration to the arguments of both the side and to the record. The point that would arise for consideration are:

i) Whether the learned trial Court and the first appellate court have committed any illegality in coming to the conclusion that the toordal so purchased by the complainant is adulterated and thereby the accused has committed the offences under

- 10 -

the provisions of Food Adulteration Act, 1954?

ii) If so, whether the judgment and conviction and order of sentence passed by the Courts below require any interference by this Court?

13. So far as the case made out by the complainant in the complaint is concerned, he specifically states in his complaint that he being the Food Inspector working in the Taluka Health Office, Sirsi, in that capacity, on 20.11.2007, he visited the shop of Kamath Kirani Stores for inspection. Accused was the owner of the said shop. In the inspection he noticed the storage of toordal for the purpose of the sale by the accused. On suspicion he purchased 1500 grams of toordal by paying the required price. He prepared three samples of 500 grams each by following all the procedures and formalities of the Act. Under due process the said toordal was sent for chemical analysis to the office of public analyst, State Food Laboratory, Bengaluru. The said Public Analyst, after

- 11 -

chemical examination of the said toordal so sent for chemical examination opined that the said toordal contains tartrazine and the said toordal was adulterated. Based upon that report, the complainant sought the permission to file the complaint took the sanction from the competent authority and filed the complaint.

14. This factual allegations made in the complaint are reiterated by the complainant in his evidence on oath.

15. PW.1 being the complainant has spoken in his evidence on oath in line with the contents of the complaint. It is his evidence that by following all the procedures of the Act, he seized the said adulterated toordal and on getting report from the Public Analyst he got it confirmed that the said toordal so kept for sale by the accused was adulterated.

16. This PW.1 was intensively cross-examined but, nothing worth is elicited from this witness. The only defence of the accused is that, there were no independent

- 12 -

witnesses being examined by the prosecution i.e. complainant and there was no independent signatory to the panchanama therefore, it is fatal to the case of the complainant-prosecution. The visit of the complainant to the shop of the accused is not disputed by the defence, that means on 20.11.2007 complainant visited the shop of the accused and purchased the said toordal weighing 1500 grams.

17. This evidence of PW.1 is supported by the PW.2 the assistant of the complainant wherein he accompanied the complainant to the shop of accused. There the complainant on inspection suspected the adulterated toordal by the accused. Therefore, he purchased 1500 grams of toordal and divided the same into three parts, seized them as per the procedure stated under the Act. This PW.2 was also cross-examined at length but, throughout cross-examination except denial nothing is elicited. It is not denied that, this PW.2 never accompanied PW.1 at the time of inspection of the shop.

- 13 -

18. So far as the documentary evidence is concerned, the very competence of the complainant is questioned by the accused. To show that complainant was competent to initiate the proceedings against the accused under the provisions of the Act, the complainant relies upon Ex.P1 the Gazette notification issued by the Health and Family Welfare Secretariat, Bengaluru dated 4th September 2003 wherein, the Food Inspectors working in the State are empowered to file the complainant. The name of the complainant is appearing at Sl.No.5 in this Gazette Notification dated 18.9.2003. That means this Ex.P1 has empowered the complainant to act as a Food Inspector and he was permitted to initiate the proceedings under the provisions of the Act. While marking this document, no objection was raised by the defence. As per the procedures under the Act, it was mandatory on the part of the complainant to issue Form No.6 under Rule 12 of Prevention of Food Adulteration, Rules, 1955. To that effect, we find Ex.P3 the Form no.6 issued by the complainant which contains the signature of the accused

- 14 -

also. This proves that in the shop of the accused, complainant purchased toordal measuring 1500 grams. It was on 20.11.2007. To show that on that day, he purchased the said toordal by paying Rs.66/- a receipt is produced as per Ex.P4. It is not denied by the defence that the said receipt is not belonging to his shop. That means it contains his small signature. He has received Rs.66/- from the complainant by selling one and half kgs. of toordal.

19. So far as purchase of said toordal from the shop of the accused and dividing the same into three parts, prosecution relies upon Ex.P5 the panchaama. It was prepared in the presence of the accused as well as in the presence of complainant and his assistant. It contains the signature of accused complainant as well as PW.2.

20. Ex.P6 is the memorandum to public analyst issued in form no.7 as per the procedure under the provisions of the Act. It contains the signature of Food Inspector i.e. complainant. The sample specimen seal is also annexed with this document as per Ex.P7 containing

- 15 -

the signature of the complainant. For having sent the sample bottle through courier, a courier receipt as per Ex.P8 containing signature of the Taluka Health Officer and Resident Medical Officer.

21. So also Ex.P9 another courier receipt. For having received the said sample from the Public Analyst, Taluka Health Officer has acknowledged on 20.11.2007 is marked Ex.P10. Ex.P11 is the acknowledgement for having received the sample at 3.00 p.m. on 20.11.2007.

22. The important document is the report of the Public Analyst issued in Form No.3 as per Rule 7(3) of the Prevention of Food Adulteration Rules, 1955. This Analyst's report sent by the Public Analyst, Bengaluru shows that on examination of the said sample toordal so sent, it was opined by the Public Analyst that the said toordal so sent contains added colouring matter and tartrazine chemical is detected in the said toordal. As per Rule 29 of the Prevention of Food Adulteration Rules, 1955 which deals regarding prohibition of use of permitted

- 16 -

synthetic food colours and it states such as tartrazine chemical should not be present in the said food i.e. toordal. That means the sample sent for analysis is adulterated as per the opinion of the public analyst. The said report is dated 13.12.2007.

23. On receipt of the said report, the complainant wrote a letter to the District Health and Family Welfare Officer, Uttara Kannada, Karwar seeking permission to prosecute the accused. This letter is dated 1.2.2008. In this letter Ex.P14 the complainant has narrated the events that have taken place with regard to the visit to the shop of the accused and noticing the toordal kept for sale by the accused. It was informed to the sanctioning authority that the said toordal was adulterated and it was kept for sale.

24. Based upon the report Ex.P14, the District Health and Family Welfare Officer, Uttara Kannada, Karwar issued sanction as per Ex.P16 permitting the complainant to initiate the proceedings as contemplated under Sec.20(i) of the Act.

- 17 -

25. On reading all the documentary evidence, coupled with oral evidence produced i.e. PW.1 and 2, it is duly proved by the prosecution that the complainant visited the shop of the accused on 20.11.2007. It is called as 'Kamath Kirani Stores'. It is suspected by the complainant that the accused has kept toordal for sale in the shop which is adulterated. Therefore, he purchased 1500 grams of toordal and divided the same into three parts. By following all the procedure, he sent the sample sent for chemical analysis and it was found that the said toordal was adulterated.

26. This fact has been spoken to by PW.1 and pw2. Though both PW.1 and 2 were intensively cross-examined but, they have withstood the test of cross- examination.

27. When a case is registered under the Act, we must know that what is`Food'. `Food' is the one of the essential factors in our daily life that provides nutritional support for the human body. Food supplies fuel for our body by providing it with many nutrients that are essential for good

- 18 -

health. Most food has its origin from plants. Many plants and plant parts such spinach, lettuce, stems, bamboo, asparagus, fruits, potato, carrots, tomato, animals are used as food directly in the food, eggs, meat etc.. Ancient produced food that was more than the required demand and people ate fresh food. We now buy food products from traders or manufacturers. How pure is the food we consume is a question. We have all started thinking of the purity of the food from traders. Due to the population explosion in India, the demand for food has increased and the traders have started mixing cheaper substances in the food. These cheaper or undesirable food are called adulterants. Then what is food adulteration is the question? Food adulteration is the process by which either toxic substances are added to food or some valuable nutrients are removed from the food items. Adulterated food is generally defined as impure, unsafe or unwholesome food. Food adulteration may be done intentionally or unintentionally. Those traders are manufacturers who want to make a quick economic profit

- 19 -

sell adulterated food intentionally. To have more sales to attract the consumers, certain foods like toordal are mixed with colour. Unintentional adulteration happen when the people are not aware of rules and regulations of preparing wholesome food. The adulterants used by vendors are cheaper and sometime toxic substitutes. Consumption of these food products can cause diseases like cancer, paralysis, skin allergy etc. and even the asthma. Therefore, the Government enacted the Prevention of Food Adulteration aCt, 1954 to protect the people from adulterated foods.

28. The organizations that issue certificates are;

1.Food Products Order (FPO), 2) Indian Standards Institute (ISI), Agricultural Marketing, (Agma). Some common adulterants food in our daily food products and disease caused by them are may be black pepper, chilli power, mustard, toordal etc..

29. In this case, it is alleged by the complainant that toordal was found added colour called as tartrazine so kept

- 20 -

for sale in the shop of the accused. Tartrazine is a synthetic organic azo dye widely used in food and pharmaceutical products. The current study aimed to evaluate the possible adverse effect of this coloring food additive on re- nal and hepatic structures and functions. Also, the genotoxic potential of tartrazine on white blood cells was investigated using comet assay. Tartrazine a synthetic azo dye with lemon yellow color, is a commonly used food colorant for food products that we eat almost every day. Tartrazine is found in many food consumables such as soaps, cosmetics, shampoos, vitamins and certain prescription medications (Amin, Abdel Hameid & AbdElsttar, 2010). Moreover, it is used in many developing countries as a low-cost-alternative for saffron in cooking. Tartrazine toxicity results directly or indirectly from the metabolic reductive blotransformation of the azo linkage (Chequer, Dorta & De Oliveira, 2011). For example, tartrazine can undergo metabolic reduction in the intestine of the animal by the intestinal microflora, thus resulting in formation of two metabolites, sulfanilic acid and

- 21 -

aminopyrazolone (Chung, Stevens & Cerniglia, 1992). These metabolites of tartrazine can generate reactive oxygen species (ROS), generating oxidative stress, and affect hepatic and renal architectures and biochemical profiles (Himri etal.,2011).

30. By applying the aforesaid analogy with regard to the said presence of tartrazine in the said toordal so kept for sale, it is stated that complainant was able to prove the allegations made in the complainant that accused has committed the offence alleged against him.

31. In view of all these factual features coupled with documentary evidence and oral evidence, it can very well be said that the prosecution is able to prove the guilt of the accused beyond all reasonable doubt.

32. The only grievance of the accused is that, as per Sec.10 of the Act, there was no independent witness being arrayed as witness which includes the officials. The learned trial court as well as the first appellate relied upon the

- 22 -

judgment Hon'ble Allahabad High Court in Kalva vs. State 1981 F.A.J 485 wherein it has been held that 'where it cannot be say in case that no witness were called by the food inspector that the sample was not taken in the presence of any witnesses and it was contended witnesses shown was a peon of the department, it could not be said that there was no compliance of Section 10(7) of Act.'

33. The complainant has stated that, though he requested the other buyers to put their signature with regard to the seizure of the toordal but, nobody came forward. This fact is not denied by the defence. Further accused has not taken any steps to show that the said toordal so kept for sale was not adulterated. He has not chosen to request the complainant or the authorities concerned to send the said sample for further analysis to the competent laboratory thereby, he has not availed the opportunity of sending the second sample for further analysis to the laboratory. He was satisfied with the report so marked in the case. That means silence on the part of

- 23 -

the accused in not taking steps to send the sample for further analysis also gives room to draw an adverse inference against the accused. In view of all these factual features as discussed above, there is no merit in this revision and the revision petition has to be dismissed.

34. However, the said inspection was done in the year 2007 and now we are in the 2024. Looking to the age of the revision petitioner as 53 years as shown in the petition, now he must have been aged 70 years. Therefore, in the facts and circumstances of the case, if the sentence imposed by the trial Court is reduced to three months, it would meet the ends of justice. So far as fine imposed by the trial Court, it remains undisturbed.

35. With this modification, the revision petition filed by the petitioner is to be allowed in part.

36. Accordingly, the aforesaid points are answered partly in favour of the accused. Resultantly, I pass the following:

- 24 -

ORDER

(i) The revision petition filed by the accused is allowed in part.

(ii) The Judgment of conviction and order of sentence dated 11.01.2013 passed by the II Addl. JMFC, Sirsi in case NO.CC No.3200/2008 and upheld by the judgment dated 6.7.2017 passed in Crl.Appeal No.29/2013 by the Additional District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi, are affirmed. However, there shall be modification of sentence. The accused is sentenced to undergo simple imprisonment for three months. So far as imposition of fine is concerned, remains undisturbed.

(iii) The accused shall surrender before the trial Court within fifteen days from today to undergo the sentence.

(iv) Intimate the final order portion to the trial Court as well as to the appellate Court.

- 25 -

(v) Send back the trial Court records along with a copy of this order forthwith.

Sd/-

JUDGE Sk/-