STATE OF GUJARAT Vs. MURTUZA ALI MEHBOOBALI MERCHANT

JUDGEMENT

(1.) This Revision Application is filed by the State of Gujarat on behalf of Mr.B.J.Patel, the Food Inspector, Bhavnagar, being aggrieved and dissatisfied by the order of learned Chief Judicial Magistrate, Bhavnagar, passed on 20th January, 2000 discharging the present respondent - accused in Criminal Case No. 1006 of 1999 of the charges levelled against him under Section 2(1-a)(a)(m) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954.

(2.) As per brief facts of the case, the original complainant Mr. B.J.Patel, Food Inspector is a Food Inspector of the State of Gujarat. On the date of incident, the said Food Inspector was working as such in the District of Bhavnagar. The respondent herein accused is running a shop and selling edible oil at the Station Road, Bhavnagar. On 12th October, 1998, Food Inspector obtained a sample of refined Rape seed Oil from the shop of the accused. After necessary formalities as per the Rules, the sample was sent to Public Analyst, Baroda, In the opinion of Public Analyst, the sample was not in conformity with the standards as laid down in the Act, particularly in the standards of (1) Iodine Value, (2) Saponification Value, and (3) Bellier Test. After obtaining necessary sanction, the complaint came to be filed against the accused by the Food Inspector on 11th February, 1999. Accused was called upon and vide Exh. 3, he applied to the Chief Judicial Magistrate, First Class, Bhavnagar, for sending the other sample to the Central Food Laboratory, Calcutta. Learned Chief Judicial Magistrate, Bhavnagar, forwarded the sample, according to law, to the Central Food Laboratory, Calcutta. After analysis, the Analyst of Central Food Laboratory, Calcutta, found that in all other respects, the sample was in conformity with the standards laid down by the Act, but the same did not conform with the Aflatoxin B-1 Test and, therefore, in the opinion of the Director, Central Food Laboratory, Calcutta, the sample was adulterated. Thereafter, the accused vide Exh.15 applied before the Learned Chief Judicial Magistrate that the accused was entitled to discharge on the ground that the Public Analyst found the sample not in conformity with the above three tests. While the Analyst of Central Food Laboratory found the sample in conformity with in respect of the above mentioned three tests, namely, (i) Iodine Value, (ii) Saponification value, and (iii) Bellier Test. It was stated in the Application, that basing above 3 defects, the complaint came to be filed. It was stated that the norms by which the rape seed oil was required to be analysed are given by the Rule 5 Appendix-B item A.17.06 and those norms do not prescribe any test like Aflatoxin B-1 Test. Even then, the Analyst of Central Food Laboratory carried out Aflatoxin-B-1 Test which is not prescribed as said above by the Act and Rules. It was further urged in the Application that the sample was taken on 12th of October, 1998 and the sample which was sent by the Chief Judicial Magistrate to the Central Food Laboratory was received by Central Food Laboratory on 15th October, 1999. The Report in Form No.II of the analysis done by the Central Food Laboratory does not denote any date on which the sample was analysed and therefore it was urged that the sample was decomposed for analysis and the opinion of the Analyst of the Central Food Laboratory cannot be taken into consideration even in respect of Aflatoxin B-1 Test.

(3.) Learned Chief Judicial Magistrate, First Class, Bhavnagar, heard both the parties and after agreeing with the learned advocate of the accused, passed the order for discharge of the accused. The learned Chief Judicial Magistrate appears to have placed reliance on a fact that Form No.II i.e. the opinion of the Analyst, Central Food Laboratory, does not bear the date on which the analysis was done. The learned Chief Judicial Magistrate appears to have relied on a fact that on discrepancy between the two analyst reports, it was necessary for the prosecution to obtain fresh sanction because the Aflatoxin B-1 test was not prescribed in the norms given in Rule-5 Appendix-B, item A.17.06 for Rape seed oils and that the adulteration which is mentioned in the report of Analyst of the Central Food Laboratory as a result of Aflatoxin B-1 Test, may be due to some other reasons like environmental change and because the sample was analysed after almost one year. Learned Magistrate also came to the conclusion that due to this, the sample of food had become decomposed and, therefore, there were no reason to proceed against the accused. Hence, under the provisions of Sec. 245(2) of the Cri. Procedure Code, present respondent original accused came to be discharged and hence this Revision Application by the State through the Food Inspector.