STATE OF MAHARASHTRA Vs. GANGADHAR KISHAN PAITWAR

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal recorded in favour of the accused by the learned Judicial Magistrate, First Class, Bhokar, and it arises out of the following facts :- A complaint was filed in the trial Court by the complainant Food inspector P.M. Kamble (P.W. 1) against the accused. The accused is the owner of a grocery shop situated at village Umri in Bhokar, Tahsil of Nanded District. On 14-7-1978, at about 11 a.m. the Food Inspector visited the shop of accused along with panchas etc. The accused was present in the shop and the complainant purchased 375 grams of groundnut oil from the accused after disclosing to the accused his intention of purchasing this sample for the purpose of analysis. Accordingly he purchased this quantity of ground-nut oil and followed the usual method of sampling the bottles etc. He sent one bottle to the Public Analyst who submitted a report that the turbidity temperature was found to be 370C. According to the rule, it must be between 90 C. to 410C. It was a matter of controversy before me as to whether it is between 360 C. to 410C. or 300C to 410or 390C to 410C, In some book it is 300C to 41oC. In one authority of this Court reported in (Naji Rai Chheda v. The State of Maharashtra and another)1978 U.C.R. (Bom.) 661 it is mentioned between 360C. to 410C. but in some book it is mentioned between 390C. to 410C. The public Analyst is examined as P.W. 4 and he has stated that it should be between 39 0C. to 410C. and this part of his testimony is not at all challenged and hence, I shall take it that the temperature should be between 390C to 410C. Hence, obviously there is a deficiency in the turbidity temperature. The sample was received by the Public Analyst on 18-7-1978. The report was signed on 29th August, 1978 and the report was sent to the Food Inspector. Thereafter the Legal procedure of serving copy of the report on the accused was followed after the complaint was lodged on 25th January, 1979.

(2.) The complainant was examined prior to the charge and charge was framed against the accused and thereafter, the complainant was further cross-examined and he examined three other witnesses. The accused was also examined and thereafter, the learned Magistrate acquitted the accused on the ground that the requisite temperative ought to have been between 360 C. to 410 C. and as in the present case as it was 370 C. There was no deficiency and so he acquitted the accused and hence, this appeal is preferred by the State.

(3.) I have presently pointed out that the learned Magistrate is wholly wrong in holding that the temperature should be between 360 C. to 410 C. The temperature ought to be between 39oC. to 410 C. but the order of acquittal deserves to be upheld on other grounds. In this case, the public Analyst is examined as P.W. 4. I have pointed out that the report is signed on 29th August, 1978. The Public Analyst (P.W. 4) Shankar admitted that he cannot remember the exact date of the ending of the analysis. It means that he does not remember the date on which the actual analysis came to an end. It, therefore, clearly means that the report is signed some day or some time after the date of analysis and in this background Mr. Godhamgaonkar, appearing for the accused-respondent, relied upon a decision of this Court reported in (K.T. Rajkotwala v. The State of Maharashtra) 1976 U.C.R. (Bom.) 474, Chandurkar, J., (as he then was) followed the decision of a Division Bench of this Court in four other cases as stated in this ruling and this ruling clearly covers the present case. I have presently pointed out that the report does not bear the date of the analysis and the Public Analyst is also unable to state that date of analysis. In this background the report of the Public Analyst loses its evidentiary value and conviction cannot be based on such a report of the Public Analyst. This is the clear ruling of Chandurkar, J., (as he then was) following the Division Bench ruling and, therefore, there is no merit in this appeal and it is accordingly dismissed. ----