MARTAND BALVANT RISALDAR Vs. HASANBHAI GULAMHUSAIN HEMANI

JUDGEMENT

(1.) This appeal by the original complainant is directed against the order of acquittal passed by the learned J. M. F. C. (Muni cipal) Baroda In Criminal case No. 7595/75 whereby he came to the conclusion that the prosecution had failed to prove the charge against the first respondent for the commission of an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Prevention of Food Adul teration Act 1954 hereinafter called the Act. The relevant facts which have given rise to this appeal may be set out in brief as under:

(2.) The first respondent original accused was carrying on business in groundnut oil and Vanaspati Ghee on Sidhnath road near Khanderav Market Baroda at the material point of time. The Food Inspector of the Baroda Municipal Corporation Shri Manubhai Maganbhai Pandya visited the shop of the first respondent on the morning of 9th March 1975 He purchased 1500 grms. of vegetable ghee from an open tin lying in the shop of the first respondent after giving the necessary intimation and paying the price of Rs. 15.75 ps. for the said quantity. It appears that the first respondent instead of giving the entire 1500 gms. in one lump to the Food Inspector poured 500 gms. in each of the three bottles which were kept ready by the Food Inspector for collecting and dividing the sample in three equal parts from the same tin in the presence of panch Rameshchand L. Shah. The three bottles were thereafter packed and sealed in the manner required by Rule 16 of the Prevention of Food Adu lteration Rules 1955 hereinafter called the Rules. One such bottle was forwarded by the Food Inspector to the Public Analyst for analysis and report. The second sealed bottle was handed over to the first respondent under a receipt and the third sealed bottle was forwarded to the court of the learned Magistrate as required by law. The report of the Public Analyst dated 29th March 1975 ex. 19 shows that the sample did not conform to the provision of the Act and the Rules; in other words the sample of vegetable ghee forwarded for analysis was adulterated. On receipt of this report a copy of the same was sent to the first respondent on 2nd April 1975 through a peon under Rule 9 (j) of the Rules. There is no dispute as to the fact that the copy of the report was received by the first respondent on 2nd April 1975 As the report of the Public Analyst indicated that the sample vegetable ghee did not conform to the standard prescribed by entry A. 19 in Appendix B to the Rules the first respondent came to be prosecuted for having committed an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Act.

(3.) The learned trial Magistrate framed the charge ex. 22 dated 13th October 1975 against the first respondent for the commission of the aforesaid offence. The first respondent pleaded not guilty to the said charge and claimed to be tried. The prosecution led the evidence of the Food Inspector Shri M. M. Pandya P. W; 2 ex. 10 and also examined the panch witness Rameschand Laxmichand Shah P W. 3 ex. 27. The prosecution also relied on the evidence of the complainant Shri N. V. Risaldar P. W. I ex. 6 who lodged the complaint after obtaining the necessary sanction. The report of the Public Analyst dated 29th March 1975 has been produced at ex. 19. On a consideration of the aforesaid prosecution evidence the learned trial Magistrate came to two conclusions namely (i) there had been a breach of Rule 9 (j) of the Rules inasmuch as the copy of the report of the Public Analyst was sent to the first respondent by hand delivery instead of by registered post as required by that rule and (ii) the Food Inspector ought to have taken the sample of 1500 gms. in one lump and thereafter divided it into three equal parts as required by sec. 11 (1) (b) of the Act and his having failed to do so amounted to a breach of the said provision. In support of this conclusions the learned trial Magistrate placed strong reli ance on a decision of the Madhya Pradesh High Court in Babulal v. State 1976 (1) F. A. C. 69. These are the two grounds on which the learned trial Magistrate came to the conclusion that the mandatory requirements of the Act and the Rules had been breached and the accused was there fore entitled to an acquittal. The complainant feeling aggrieved by this order of acquittal recorded by the learned trial Magistrate has come in appeal to this court.