MUKUND UKHA SHIMPI Vs. PREMJI DURGARAI SHAH

JUDGEMENT

(1.) This appeal is preferred by the Food Inspector, Thane Municipal Council, Thane, to challenge the legality of the judgement dated August 4, 1978 recorded by the Chief Judicial Magistrate, Thane, acquitting the accused under section 2(1)(i), 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

(2.) The facts giving rise to the prosecution are as follows: Original accused No. 2 is the owner of a Kirana Shop situate at Thane and Inspector Shimpi visited the shop on April 17, 1975 and at that time original accused No. 1 was present in the shop. Complainant Shimpi purchased 600 grams of chilly powder from original accused No. 1 and thereafter divided the purchased sample into three equal parts and all the three samples were put into plastic bag and properly labelled and sealed. One such sealed packet sample was sent to the Public Analysts Office at Pune and the report of the Public Analyst was that the sample was genuine and not adulterated. The Food Inspector probably was not satisfied with the report and sought permission of the Chief Officer of the Thane Municipal Council to prosecute the accused. On grant of such permission, Inspector Shimpi filed the complaint before the Chief Judicial Magistrate, Thane on July 1, 1975. After the complaint was lodged, the complainant moved the Magistrate to forward one of the sealed sample packets to the Director, Central Food Laboratory, Calcutta as contemplated under section 13(2) of the Act. Under the Act it was open either for the complainant or to the accused to request the Magistrate to forward the sample to the laboratory at Calcutta for a report. The report received from Calcutta laboratory was that the chilly powder in the sample packet was adulterated. On receipt of this report, the Inspector again moved the Chief Officer and sought his permission for continuance of the prosecution which was already launched. The Chief Officer granted the approval on October 27, 1975 and thereafter the complainant led the evidence in support of the prosecution. The original accused No. 2 claimed that he was not present in the shop and not responsible for the sale.

(3.) The trial Magistrate acquitted both the accused mainly on three counts. It was held that as the report from the Public Analysts Office, Pune was that the sample sent by the Inspector was not adulterated, there was no occasion for the Chief Officer to direct prosecution as no offence was found to have been committed. Secondly, the Magistrate held that the offence was disclosed for the first time on receipt of the report from the laboratory at Calcutta and, therefore, it was necessary for the Chief Officer to grant fresh sanction and for the Inspector to file a fresh case and it was not permissible to continue the prosecution which was earlier launched. Lastly, the Magistrate found that the requirement of mandatory Rule 4(3) of the Prevention of Food Adulteration Rules, 1955 were not complied with while sending the sample to the laboratory at Calcutta. On these three grounds the Magistrate entered an order of acquittal in favour of both the accused though the defence of accused No. 2 that he was not responsible as he was not present in the shop at the time of sale was not accepted. The original accused No. 1 died after the order of acquittal and, therefore, the appeal is preferred against original accused No. 2