R B PATIL Vs. BABU RATANSHI GAJRA

JUDGEMENT

(1.) THIS appeal against acquittal recorded by the Additional Chief Metropolitan Magistrate, 4th Court, Girgaon, Bombay by Judgment and Order dated November 17, 1986 in respect of offence punishable under section 7(i) read with 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 read with Section 5A 17.03 of the Prevention of Food Adulteration Rules, 1955 and under Section 16 read with Section 17 of the said Act filed by the Complainant Food Inspector, Food and Drug Administration, Bombay.

(2.) THE prosecution case is that on 24.9.1984, the Food Inspector-Lande visited the shop in question and demanded and purchased subject food item as the sample (600 grams of mixed masala) from the accused No.1 and paid total price of Rs. 14.85 ps. to accused No. 1. It is the case of the prosecution that, the said sample was divided into three equal parts and forwarded for analysis and on finding that it was not in confirmity with the required standards, prosecution against the Respondents accused was launched. The Trial Court on analyzing the material on record and after adverting to all the relevant materials has found that there are several infirmities in the prosecution case which are fatal and it was impossible to record the finding of guilt against the accused. Accordingly, all the accused Nos. 1 to 6 came to be acquitted of the alleged offence. The present appeal against the acquittal has been filed. It is seen that, during the pendency of this appeal, no steps were taken to serve the Respondent No.1-Accused No.1 and for which reason this court dismissed the appeal for want of prosecution as against the Respondent No.1-Accused No.1 on 2.4.1990. There is nothing on record to indicate that order has been recalled. In other words, the appeal survives only as against the Accused Nos. 2 to 6. In my view, it will not be necessary to burden this judgment with all the evidence. In fact, this appeal cannot proceed as the main accused No. 1 is not before the Court. In this context, it will be apposite to also advert to the opinion expressed by the Trial Court in Para 22 of the judgment. It has been found as a fact that there is no evidence on record to show that the accused Nos. 2 to 5 are the partners of firm Accused No.6. Whereas the defence is that the Accused No.6 is a firm of Proprietory concern and the Accused No.2 is the Proprietor thereof. Besides, the Trial Court has observed that there is no evidence to show that the Accused Nos.2 to 5 are taking active part in the conduct and management of the business. If that be so, then nothing survives for consideration in the present appeal as the order of acquittal in favour of main Accused No. 1 has been allowed to attain finality.

(3.) WITH the assistance of the learned counsel appearing for the respective parties, I have gone through the evidence and the relevant material on record. The learned A.P.P. is not in a position to point out that any of the above said findings recorded by the Trial Court can be doubted or is contrary to the evidence on record. On the other hand, I have closely examined the evidence and in my view the finding as recorded by the Trial Court regarding the above said infirmities is fully supported by the evidence on record. If that be so to my mind, the prosecution has failed to corroborate the version of P.W.No.3 regarding the purchase and separation of sample in three equal parts upto the stage of sealing samples. That by itself is fatal and would justify the order of acquittal passed in favour of the accused persons. Moreover, as rightly held by the Trial Court, failure to supply Public Analyst report to the accused is a serious infraction and even for that reason, no interference would be required with the order of acquittal passed in favour of the accused. To put it differently, I fully affirm and endorse the finding and conclusion recorded by the Trial Court in Paragraphs 18 to 21 of the Judgment which is under appeal. The reasons recorded therein are sufficient to sustain the order of acquittal.