STATE OF MAHARASHTRA Vs. J V DSOUZA

JUDGEMENT

(1.) This is an appeal filed by the State against the acquittal of the owner and manager of a restaurant named "Cafe Cobana" at Byculla, in Bombay. The appeal is out of time by 23 days, and a Rule has been issued in respect of the application for condonation of that delay. I condone that delay and will proceed to deal with the appeal on merits. The facts of the case are that at about 10.30 a.m. on the 14th of June, 1972. Food Inspector Rajaram Rane visited the restaurant of the accused persons and purchased half a kilogram of chicken sandwiches for Rs. 18/-. The usual formalities were then followed, and the said Food Inspector himself took the sandwiches to the office of the Public Analyst where he reached at about 1 p.m. and delivered the sample there for analysis. The sample was found to be sour, fermented, full of Bacilli and Staphylococcus albus as well as B. Subtilis, and was pronounced unfit for human consumption. On that, the two accused have been prosecuted on charges under section 16 read with section 7(i) and section 2(f) of the Prevention of Food Adulteration Act, 1954, but were acquitted by the learned Presidency Magistrate, 25th Court, Bombay. From that order of acquittal the State has preferred the present appeal.

(2.) There is, in my opinion, no substance in this appeal. The only question that needs to be considered by me is, whether in the time-lag between the taking of the sample of sandwiches and its examination the sandwiches could have deteriorated in condition to the extent to which they were found to have deteriorated in the certificate of the Public Analyst (Ex. E). The Public Analyst Ratnakar Chatim, who has been examined as a witness in the trial Court, has deposed that it was at about 1.30 p.m. that he received the sample of sandwiches at his office. He has then set out in his evidence the deterioration that referred the sample unfit for human consumption which he has set out in his certificate to which I have already referred. In the course of his cross-examination he has deposed that the sample was analysed not by himself but by one of his assistants named Miss Dhotiwala under his supervision. He has said that there were 14 assistants in all and he was supervision the work of all of them. He was not in a position to state time at which the analysis started, though he has deposed that normally examination starts at 12 noon and this sample was the first one of its kind received by his office on that day. He has stated that a sample "can be examined" within 15 or 20 minutes. He has then proceeded to depose that the examination in the present case was, however, completed on the 19th of June, 1972 which would be five days after the sample was taken. He has opined that within three hours there cannot be as many albus as were found in the sample though they could develop after about 8 hours. He has further stated that the main cause of decomposition was heat, and that he did not know whether the polythene bag in which the sample was brought was sterilised. On this point it may at once be stated that Food Inspector Rajaram has admitted in his evidence that the plastic bags in question were not sterilised.

(3.) As against the evidence of the Public Analyst, the defence has led the expert evidence of Dr. Ranjan, a Professor and Head of the Department of Microbiology in a college at Ulhasnagar. He appears from the evidence to be a very highly qualified person, and he has stated in his evidence that three hours after the taking of a sample the sandwiches may have organism which can multiply in the hot season, and he has opined that it may be that prior to the expiration of the period of about three hours the same could have been fit for human consumption. He has further stated that a sterilised container ought to have been used and that the sample should have kept at a lower temperature. There is also the evidence of one Anikumar Basu, a professor working at the Regional Meteorological Centre, Colaba. He has deposed that on the 14th of June, 1972 which was the date on which the sample was taken, the temperature according to thermograph was 340 between 1 and 2 p.m. This would show that the day in question was very hot day, and indeed, the Food Inspector Rajaram Rane has stated in his cross-examination that the rains had not started that year by the 14th of June.