Bombay High Court
State Of Maharashtra vs Abdul Jabbar Haji on 11 July, 2012
Author: A. P. Bhangale
Bench: A. P. Bhangale
Apeal80.2001
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
CRIMINAL APPEAL NO. 80 OF 2001
State of Maharashtra,
through M. S. Deshpande,
Food Inspector, Food & Drug Administration,
Maharashtra State, Akola. :: APPELLANT
-: Versus :-
1. Abdul Jabbar Haji, Seller
M/s Rafik Traders, Kirana Bazar,
Akola.
2. Ismile Haji Habib, Owner
M/s Rafik Traders, Kirana Bazar,
Akola. :: RESPONDENTS
............................................................................................................
Mr. K. L. Dharmadhikari, APP for the State/Appellant
Mr. J. J. Agrawal, Advocate for the Respondent No. 2
............................................................................................................
CORAM : A. P. BHANGALE, J.
JUDGMENT RESERVED ON : 02ND JULY, 2012
JUDGMENT PRONOUNCED ON : 11TH JULY, 2012
JUDGMENT:
Respondent No. 1 - Haji Abdul A. Habib Gigani is reported to be dead on 5/2/2009. Death Certificate is filed on record, which is marked as "X" for identification. No legal representative of the said respondent has applied for continuation of the appeal. Hence, appeal as against respondent No. 1 abates and is dismissed as such.
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2. This Appeal is directed against the Judgment and Order dated 11/10/2000, passed by 6th Judicial Magistrate First Class, Akola in Criminal Case No. 1055 of 1995 whereby the learned trial Judge acquitted the respondents-accused of offenses punishable under Section 7(1) read with Section 16(ia)(i) and (ii) of the Prevention of Food Adulteration Act.
3. The facts briefly stated are : -
The complainant - Food Inspector had received charge of the case from earlier Food Inspector Shri S. M. Deshmukh, who had taken the sample of Sunflower Seed Oil on 10/1/1992, at about 14.30 hrs., from the shop of M/s Rafik Traders, Kirana Bazar, Akola. The Respondent No.1-accused was vendor while respondent-accused No. 2 is proprietor of the shop. It is prosecution case that the sample was collected as per panchanama from M/s Rafik Traders, Akola. It is case of the complainant that the sealed sample was sent to Public Analyst at Pune and the report was received on 21/02/1992.
The remaining sample was sent to Local Health Authority under Section 11(1)(c)(i) and documents were forwarded to Joint Commissioner, Food and Drug Administration, Nagpur.
Consent order was obtained to launch the prosecution and thus complaint was filed in the Court of Judicial Magistrate ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 3 First Class, Akola being Regular Criminal Case No. 1113 of 1992. The accused who availed of remedy under Section 13(2) of the P.F.A. Act and sent a part of the food sample to Central Food Laboratory, Gaziyabad. But due to discrepancy between the reports of the Public Analyst and the Director of the Central Food Laboratory, Gaziyabad and owing to lack of fresh consent order, the accused were discharged on 5/09/1995. On 20/09/1995, again the complainant obtained certified copy of the case and report of the Central Food Laboratory and submitted it for the fresh consent order from the Joint Commissioner which was received on 28/11/1995.
The charge was framed against the accused at Ex.28 pursuant to the order dated 28/02/2000 below Ex.1. The question raised was; as to whether M/s Rafik traders, Akola sold adulterated Sunflower Seed Oil to the complainant? It was answered in the negative by the trial Court.
4. Heard submissions at the bar. According to learned APP, the Public Analyst at Pune had reported the sample of Sunflower Oil shown the presence of Castor Seed Oil, reported that the Sunflower Seed Oil did not conform to the standards of Sunflower Seed Oil. While the Director of Central Food Laboratory, Gaziyabad does not conform to the standard of Sunflower Seed Oil as Saponification value is more than that of prescribed limit and Baudouin test was positive 2 red unit ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 4 therefore, the sample was adulterated. It is contention of learned APP that the trial Court committed an error to hold that the accused had sold Sunflower Seed Oil to the complainant in the same state of condition and nature as purchased from the manufacturer. Learned APP also submitted that delay was condonable in view of Section 473 of the Cr.P.Code, if it is properly explained and if necessary.
On the other hand, learned Advocate for the Respondent No.2 submitted in view of the facts of the case that the accused were rightly acquitted. Learned Advocate submitted that the trial Court had shown leniency to entertain the complaint again even though earlier the accused were discharged from the case.
5. Three witnesses were examined by the prosecution to support the complaint. The trial Court noted that the prosecution ought to have called the entire record of the earlier Regular Criminal Case No. 1113 of 1992, which was earlier disposed of to show that while sending food sample to Central Food Laboratory, Gaziyabad, mandatory provisions of law under Section 13(2)(b) of the P.F.A. Act and Rules 4(2) and (3) were followed or not. The prosecution failed to lead this vital evidence. The trial Court also noted that the sample no. 3 was taken from the sealed barrel of 180 Kg showing the dealer's name of Gajanan Oil Mill, Khamgaon. PW2 - Food ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 5 Inspector although gave a letter to said Mill, did not inquire nor was informed about the incomplete reply Ex.52 given by the said Mill. The defence of the accused is that they had bought the barrel from the licensed dealer Gajanan Oil Mill.
The trial Court having made reference to the ruling in the case of State of Rajasthan, Appellant v. Sanjay Kumar and others, Respondents., reported in AIR 1998 SC 1919, held that the limitation starts from the date of receipt of report of Public Analyst and not from the date of taking sample by the Food Inspector. Thus considering that the report of the Public Analyst was received on 21/02/1992, communicated to Local Health Authority (Ex.53 and 54), the bar under Section 468(1) was attracted as period of limitation is three years only in view of section 468(2)(c) of Criminal Procedure Code. In the absence of condonation of delay to lodge the prosecution with prior permission of the Court the accused were entitled to an order of acquittal. Learned Advocate for the respondent accused invited my attention to the observations made in the Pearson's Analysis of Foods which mentions about the effect of delay in the examination of the sample of oils and fats. It is observed thus;
"Oils and fats commence to decompose from the moment they are isolated from their natural living environment. The presence of free fatty acids is an indication of lipase activity or other ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 6 hydrolytic action. Changes occur during storage which results in the production of an unpleasant taste and odour. Such oils and fats are refereed to as having become rancid. The unpleasant organoleptic characteristics are in part caused by the presence of free fatty acids but the major development of rancidity is brought about by atmospheric oxidation (autoxidation). Oxidative rancidity is accelerated by exposure to heat and light, by moisture and by the presence of traces of transition metals (e.g. Copper, nickel and iron) and residual natural dyes and pigments."
6. Woodman in his Food Analysis, 4th edition P.170 points out;
"When acted on by the oxygen of the air, especially in the presence of light and moisture, free fatty acids are liberated and altered with the accompanying production of various aldehydes and acids of lower molecular weight having disagreeable odour and acrid taste, the fat or oil then termed rancid"
7. Thus changes are bound to occur with passage of time on the sample of Oils and fats. Delay occurred in the examination of the sample, therefore, is not to be ignored. In the case of Nebh Raj versus The State (Delhi Administration) and another in 1948-1997 FAC (SC) 632 after making reference to the above observations, the Supreme Court held that there was no justification whatever for launching the prosecution more than two years after the ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 7 sample was taken and after obtaining the report of the Public Analyst.
8. The ruling in the case of Radheyshyam Agarwalla Vs. State of Assam in 1987 EFR 189 (Gau) indicated that when saponification value of Mustard Oil has increased by 1.7, then in the absence of the expert's evidence the increase was not due to delay in storage of the sample and, therefore, the accused was held entitled to an acquittal. In another ruling in the case of Chidambara Rajan Versus State in 1988 (II) FAC 122 (Mad), Madras High Court held that when the Manufacturer of the Food in question is clearly made known, the article sold indicating the origin Food Inspector should have visited the company to ascertain the manufacturer to take sample and to fix the liability properly. To seize all the stock of the batch of production while calling upon the retail vendors to surrender the stock with them and inform the prospective consumers.
The Food Inspector must not remain content to purchase sample from the retail vendor of the remote village.
Otherwise the real guilty person may not be available for punishment and perhaps may continue to produce and distribute the adulterated food. The Supreme Court in the ruling of Ganeshmal Jashraj Vs. Government of Gujarat and another in 1980(I) FAC (SC) 211 held that Food ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 8 Inspection Department ought not to remain content with paying homage to anti adulteration law by catching small tradesmen but direct the full fury of their investigative machinery against the wholesalers and manufacturers who are in large majority of cases really responsible for adulteration. In the ruling of Chunduri Gopalkrishna Murthy V. State reported in 1978 Cri.L.J. 1365, it was held that the cash bill obtained by vendor from manufacturer is deemed to be warranty under Section 14 Proviso. It need not conform to Rule 12-A of the Prevention of Food Adulteration Rules Defense under Section 19 is available to the vendor.
9. Looking into rulings as aforesaid the view of the trial Court to acquit the accused was clearly sustainable and no interference is called for. Appellate Court do have power to review, or re-appreciate and reconsider the evidence upon which an order of acquittal is founded. The Code of Criminal Procedure has not put any limitation, restriction or condition on exercise of the appellate power of the Court and the appellate Court is free to arrive at such conclusion on facts and law, as it may consider appropriate even to upset the order of acquittal if there are substantial and compelling grounds to reverse the order. However, the appellate Court has to bear in mind that in case of acquittal, there is double presumption in favour of the accused. The presumption of ::: Downloaded on - 09/06/2013 18:48:20 ::: Apeal80.2001 9 innocence is available as in criminal jurisprudence that every accused is presumed to be innocent unless he is proved guilty by a competent Court of law. The presumption of innocence is further bolstered up by an order of acquittal. Thus, if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Hence, for all the reasons stated, there is no merit in the Appeal. Appeal stands dismissed. No costs.
JUDGE Punde ::: Downloaded on - 09/06/2013 18:48:20 :::