STATE OF MAHARASHTRA Vs. POPAT PANACHAND SHAH

JUDGEMENT

(1.) THIS Appeal is against judgment and order dated 11/03/1987 in Regular Criminal Case No. 26 of 1984, acquitting the respondents of the offences punishable under section 16 read with section 17 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'act' ). The prosecution case is that the complainant P. W. 1 H. B. Jadhav, food Inspector along with P. W. 2 Dilip E. Chivate visited the shop of respondents and collected a sample of tea powder from. accused No. 1 for the purpose of test and analysis after disclosing the identity of P. W. 1 and the purpose of visit. Accused No. 1 sold tea powder weighing 450 grams for Rs. 9/-, which was purchased by P. W. 1, for which, the accused No. 1 issued receipt on the letterhead of Swastik Machinery Stores (Exhibit 19 ). The said receipt bears signature of the panch P. W. 2. The complainant P. W. 1 gave form No. VI as well as notice under section 14-A of the Act. The tea powder sample purchased from the accused No. 1 was divided in three equal parts and each part was kept in separate dry, clean and empty polythene bag, whereafter, it was sealed by fire of candle. Each sample part was kept in a separate thick brown envelope and the mouth of said envelopes were pasted by means of gum. Each of the samples were pasted with labels bearing No. SBJ/21/83. Suffice it to mention that necessary procedure as required by the Rules of packing and sealing was completed and memorandum of panchnama was prepared (Exhibit 23), which was signed by the complainant (P. W. 1) and panch (P. W. 2 ). After following necessary procedure, one part of sample along with original memorandum in Form No. VII along with the covering letter in a sealed envelope were sent to the Public Analyst, Pune, by way of registered post parcel. The copy of the covering letter bearing signature of the complainant is at Exhibit 25. On the same day, a copy of Form No. VII along with specimen impression of the seal and a covering letter, sealed in a separate envelope were sent to Public Analyst, Pune by registered post. The office copy of the said covering letter is at Exhibit 26. The remaining two counter parts of the said samples along with a forwarding letter dated 1 1/03/1983 sealed in an envelope were handed over to the Local Health authority, Sangli by hand delivery. The copy of the said covering letter is at exhibit 27 which bears the endorsement to the effect that one counter part of the said sample was sent to the Public Analyst, Pune on 11/03/1983 for analysis. The said letter was acknowledged by the Assistant Commissioner, FDA (MS), Sangli which is at Exhibit 27. Two copies of specimen impression along with the covering letter were sealed in another envelope and were also handed over to Local Health Authority, Sangli, separately by hand delivery. The report of analysis in respect of one part of sample dated 21/04/1983 was received by the Local Health Authority on 29/04/1983, which was, in turn forwarded to the complainant. It mentions that the sample of food article did not conform the prescribed standard. The report is at Exhibit 31. Thereafter, on 2/07/1983, a letter was sent to the accused no. 1 by registered post, calling upon him to submit information about the licence and partnership, if any, in respect of M/ s. Shah Kirana Stores (Exhibit 32 ). No reply was received by the authority. It is stated that on 2 7/07/1983, all the relevant papers including Public Analyst report along with the covering letter for obtaining consent were sent by the Assistant commissioner, FDA (MS), Sangli, to the Joint Commissioner, FDA, Pune division, Pune by registered post acknowledgement due, which is at Exhibit 34. The registration receipt is at Exhibit 35. The Joint Commissioner, Pune division, Food and Administration, Maharashtra State, Pune, in turn, after considering the material placed before him and by applying his mind, gave his consent for prosecuting the respondents/accused Nos. 1 and 2 for the alleged offences. It is apposite to reproduce the said order Exhibit 36 in its entirety , as one of the contention raised on behalf of the respondents in the context of the said order will have to be dealt with a little later. The same reads thus :-"in exercise of the powers vested in me under section 20 of the Prevention of food Adulteration Act, 1954, read with Government order, Urban Development Public Health Department No. FDA/ 1079/2943/ph-4 dated 21/10/1980,1, N. R. Deshpande, Joint Commissioner (Pune Division), Food and Drug Administration, Maharashtra State, Pune, have gone through Public Analyst Report No. 1629/2433/dt. 26-4-83 in respect of the food article "tea POWDER" and relevant case papers and have come to conclusion that this is a fit case for prosecution under section 7, sub-section (i) of the Prevention of Food Adulteration Act. In exercise of the powers as above, I hereby give my consent for the prosecution of Shri Popat Panachand Shah (Vendor), (2) Shri Panachand bhikchand Shah, Proprietor of M/s. Shah Kirana Stores, located at Savlaj, tal-Tasgaon, Dist. Sangli, for an offence alleged to have been committed by them as regards stocking for sale and selling of food article under reference on or about 11-3-83 in contravention of section 7 (i) punishable under section 16 of the said Act. The sample of the food article under reference was taken under the Prevention of Food Adulteration Act by Food Inspector, Sangli, Shri S. B. Jadhav, from the above said premises on 11-3-83. ".

(2.) ON receipt of the consent Exhibit 36 on 5/03/1984, the complainant proceeded to file complaint in writing being Regular Criminal Case no. 26/1984 before the Judicial Magistrate, First Class, Tasgaon on 1 9/03/1984. The complainant, thereafter, sent intimation to Local Health authority about filing of the above said case before the Judicial Magistrate, first Class and requested Local Health Authority to give notice to both the accused under section 13 (2) of the Act. Copy of the Public Analyst Report dated 21st April, 1983 alongwith the notice under section 13 (2) of the Act were sent to both the accused by the said authority by registered acknowledgement due. On the basis of the complaint as filed, the learned Magistrate issued processes against both the accused, who in turn, appeared and furnished bail. At their request, one of the sample parts (out of two parts with the Local Health Authority) was sent to the Central Food Laboratory, Mysore for the purpose of analysis. The Central Food Laboratory gave its report dated 21/08/1985 which was received by the Judicial Magistrate First Class, tasgaon which re-inforced the position stated in the earlier report that the sample does not conform to the prescribed standard. Before framing of charge, evidence of P. W. 1 was recorded. Opportunity was given to the accused for cross-examination, however, that was declined. In the circumstances, charge was framed against the accused which was read over and explained to them in Marathi (Exhibit 43 ). The charge reads thus :

(3.) IN this appeal against acquittal, learned Public Prosecutor contends that none of the conclusion reached by the trial Court can be sustained, either on facts or in law. It was his argument that the finding reached by the trial Court was perverse. According to him, there was ample material on record to register finding of guilt against the respondents and it was not a case for acquittal at all.