MUSA MAHIBOOB SHAIKH Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application has been filed by the accused to challenge the legality of the judgement dated Oct. 4, 1980 recorded by the Additional Sessions Judge Sholapur confirming the order of conviction and sentence passed by the Judicial Magistrate, First Class, Court No. 2, Sholapur on Aug. 29, 1979. The accused was convicted for the offence punishable under Sec. 16(1)(a)(i) read with Sec. 7(i) of the Prevention of Food Adulteration Act and was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000.00 or in default to suffer further rigorous imprisonment for one month.

(2.) The accused runs a shop in Sholapur City and Food Inspector Phadke visited the shop on Feb. 17, 1977 along with the panchas and purchased the curry powder for analysis. The Inspector followed the procedure and the sample bottles were forwarded to the Office of the Public Analyst. The Public Analyst received the sample on July 14, 1977. The report of the Public Analyst was received by the Inspector on Aug. 17, 1977 and thereafter the prosecution was launched on Jan. 6, 1979. The report of the Public Analyst indicates that the curry powder was not of the standard as required by the rules inasmuch as the ingredients were either less or more than one prescribed under the Prevention of Food Adulteration Rules. The defence of the accused was that the curry powder was not purchased from him and he was not served with any notice of the intention of the Food Inspector to send the sample for analysis. The defence was negatived by the trial Magistrate and the accused was convicted and sentenced as mentioned above. The appeal preferred by the accused also ended in dismissal.

(3.) Shri Shah, the learned counsel appearing in support of the petition, did not dispute any findings recorded by the two Courts below but submitted that the order of conviction cannot be sustained in view of the infraction of Rule 17 of the Prevention of Food Adulteration Rules, 1955. Rule 17 provides that the container of sample for analysis shall be sent to the Public Analyst by registered post in a sealed packet enclosed together with a Memorandum in Form VII in an outer cover addressed to the Public Analyst. Shri Shah submits that it has now been well settled by the decisions of this Court that the sample must be put in a separate outer cover along with the Memorandum in Form VII and then the outer cover itself must be sealed before Rule 17 is complied with. Shri Barday, the learned Public Prosecutor did not dispute this position of law as settled by the decisions of this Court. Shri Shah submits that the Inspector Phadke who was examined as P.W. 1 has not said a word about the outer cover being sealed before forwarding it to the Public Analyst. The learned counsel took me through the evidence of the witnesses and the submission that the witnesses have not deposed about the compliance with the requirements of the Rule is correct. Shri Shah submits that in absence of any specific evidence of the Inspector about the outer cover itself being sealed, it must be held that Rule 17 was not complied with and, therefore, the accused is entitled to an acquittal on this ground alone. Shri Shah invited my attention to the decisions of Shri Justice Jahagirdar in Criminal Appeal No. 768 of 1970 decided on July 19, 1978 and Criminal Appeal Nos. 691 and 692 of 1976 decided on July 10, 1978. These two decisions do support the submission of the learned counsel.