STATE OF MAHARASHTRA Vs. CHIMANLAL GIOPALJI DHRUWAMALKAN

JUDGEMENT

(1.) HEARD learned A. P. P. Mr. Mandpe, for the appellant and Ms. Gayatri joshi, Advocate holding for Mr. Purohit advocate for respondent. 2005 ALL MR (Cri) - Jan. The respondent was convicted of the offences punishable under section 2 (i-a) (iii)read with section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954 and was sentenced to undergo simple imprisonment till rising of the court and to pay fine of Rs. 500/-, in default simple imprisonment for 30 days. As the sentence awarded by the Trial Court was less than minimum sentence prescribed under the proviso (1) to section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954 (in short called as 'p. F. A. Act'), the appellant-State has preferred this appeal for enhancement of sentence.

(2.) THE prosecution case in brief is that the respondent-Chimanlal was Proprietor of M/s. Swastik Stores situated in Wanjari chowk, Wardha. On 13-8-1987, complainant-Chikte who was then notified Food Inspector for Wardha District visited the shop premises of respondent with panch witness chandrashekhar Linganwar. During inspection of the shop complainant found some sealed tin packs of ground-nut oil and one loose tin containing the ground-nut oil. All the tins bore a lable "manpasand Double Filter Ground nut Oil". It was revealed from the recitals in the label that the said ground-nut oil was manufactured by Pandhi Oil Industries, nagpur. The complainant purchased 375 grams of ground-nut oil from one of the sealed tin and divided the same in three dry, clear and empty bottles equally. He completed the formalities pertaining to drawing of the samples and its sealing. He also issued requisite notices to respondent. He has prepared detailed panchanama in the presence of respondent and panch witness. On completing all formalities one counter part of the sample was sent to Public Analyst, Nagpur for analysis, while remaining two counter parts were sent to Local Health Authority, Wardha about drawing of the sample. The Local Health authority. He also intimated Local Health authority received Public Analyst Report which was communicated to the complainant. From the report it was revealed that the sample did not conform to the standard of ground-nut oil as prescribed by P. F. A. Act and the Rules framed thereunder. Then all the papers were submitted to the Joint Commissioner, Food and drugs Administration, Nagpur for obtaining necessary sanction and after the sanction was issued, Local Health Authority, Wardha directed Food Inspector - Mr. Dhapre to launch prosecution against the respondent as Mr. Chikte was transferred.

(3.) RESPONDENT pleaded not guilty to the charge and claimed to be tried. To substantiate the charge the prosecution examined in all five witnesses including Shri. Chikte (P. W. 1), Khwaja Wahidulla (P. W. 2)-Local Health Authority at the relevant time, madhukar Patil (P. W. 3) who made further investigation in the matter as Mr. Chikte had proceeded on leave and Mr. Anand Dhapre, the then Food Inspector who succeeded Mr. Chikte on his transferred. On the evidence that was led before the trial court, the trial court found that the ground-nut oil that was purchased by the Food Inspector from respondent was adulterated one and consequently the respondent was convicted of offence under section 16 (1) (a) (ii) of the P. F. A. Act. However, taking into consideration that the respondent was a retailer and not being the manufacturer of the ground-nut oil in question and that the sample from loose tin as well as sealed tin collected by the Food Inspector was found to be identically adulterated one and that it was not injurious to health, the trial court taking recourse to the proviso to section 16 awarded punishment as stated in earlier part of the judgment. The said sentence is admittedly less than the minimum sentence prescribed under the P. F. A. Act. The state has preferred this appeal for enhancement of the sentence. Mr. Mandpe, the learned A. P. P. submitted that under section 16 (1) (a) of the p. F. A. Act, for sale of adulterated food article the punishment prescribed is of imprisonment for a term which shall not be less than 6 months, but which may extend to 3 years and with fine which shall not be less than one thousand rupees. But under the proviso to section 16 (i) if the offence is under clause (i)of clause (a) and is with respect of an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2 or (ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees. Learned A. P. P. first submitted that the trial court has committed an error in taking recourse to the proviso for awarding minimum sentence in as much as no adequate and special reasons are given. Secondly it is submitted that, the trial court committed error by even awarding sentence less than minimum prescribed. As pointed out earlier the minimum sentence prescribed in the proviso for sentence for term which shall not be less than three months and with fine which shall not be less than Rs. 500/- and as against that the trial court awarded sentence till the rising of the court and fine of Rs. 500/-, in default to undergo S. I. for 30 days. The learned a. P. P. therefore, urged that having regard to the nature of offence committed by the respondent for having sold adulterated groundnut oil and without there being any justification for awarding sentence less than minimum prescribed, it is a fit case to enhance the sentence.