PHULCHAND KESARIMAL MUTHA Vs. D R NAIK

JUDGEMENT

(1.) The petitioner-accused was prosecuted for an offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act for having sold on 19-4-1973 Tur Dal, which was found to contain extraneous non-permitted coal viz. metanil yellow after the analysis. The accused is a grocer who sells food articles in Nanapeth, Pune. The Food Inspector wanted to purchase Tur Dal and therefore he went to the accuseds shop and purchased 600 grams of it for Rs. 1.44 P. The usual formalities were done by him and a sample of the Dal was also given in a sealed packet to the accused. The Food Inspector on the analysis that the Tur Dal contained extraneous non-permitted coal and after obtaining the necessary sanction prosecuted the accused in the Court of the Judicial Magistrate, Poona. The accused defended himself by explaining that he had purchased three packets of the Tur Dal from the shop of one Devichand under a warranty and therefore he is not responsible for adulteration.

(2.) The learned Magistrate who tried the accused accepted the version of the prosecution, disbelieved the defence and convicted and sentenced the accused to six months rigorous imprisonment and fine of Rs. 1000/-. The accused went in appeal to the Sessions Court and requested that he be permitted to examine shopkeeper Devichand as his witness. He was allowed and he examined Kachandas, a partner of Devichands firm. The witness said that they had sold Tur Dal to the accused on 22-12-1972, but they did not sell coloured Tur Dal. He also said that they do not sell coloured Tur Dal at all. The learned Sessions Judge after assessing the evidence of Kachandas as well as the other evidence agreed with the finding of the trial Court and confirmed the conviction as well as the sentence passed by the Judicial Magistrate. That Order of conviction and sentence is now challenged here. The point, therefore that has to be determined is whether this order is legal and proper.

(3.) Mr. Ganatra, the learned Advocate for the petitioner contends here that the accused who examined himself on oath must be believed and that Kachandas, partner of the firm Devichand should not be believed because according to him Kachandas would naturally try to save himself from any prosecution. If he had said that he had sold the Tur Dal which was sold to the Food Inspector, he would also have been prosecuted under section 20-A of the Prevention of Food Adulteration Act. To save his own skin he is, therefore deposing falsely here. Mr. Ganatra says that ordinarily a retailer would not colour food articles but a wholesaler or a Dal mill owner would be interested in colouring the Dal. According to Mr. Ganatra the accused therefore should not be held responsible for adulteration which was found in Dal. On the other hand Mr. Bhonsale, the learned Asstt. Government pleader says that this is a revision petition and in such petition this Court cannot reassess the evidence and come to a different conclusion but Mr. Ganatra answers him by saying that Kachandas was examined only at the appeal stage and that this revision petition is as good as an appeal. I cannot, however, accept this contention of Mr. Ganatra for the obvious reason that the accused could have examined Kachandas if he wanted to at the trial stage. He chose not to examine him for the reasons best known to him at the trial stage but chose to examine him only at the appeal stage. Merely because Kachandas was examined at the appeal stage, therefore, the petition which was made by the accused cannot be said to be a kind of an appeal. Therefore, the is naturally confronted by a finding of fact that the accused was not in a position to establish the guarantee as contemplated under section 19(2) of the Prevention of Food Adulteration Act. A vendor under that section shall not be deemed to have committed an offence pertaining to the sale of an adulterated article of food, if he proves that he purchased the article of food from a licensed dealer or in any other case from a dealer with a written warranty in the prescribed form. The accused had examined Kachandas but he stated that he had not sold the kind of Dal which was sold by the accused to the Food inspector. If that is not, then the receipt which is produced by the accused and identified by Kachandas cannot be said to establish the warranty of the Dal, which the accused sold to the Food Inspector. Kachandas says that he sold Mug Dal to the accused, that it was not coloured at all, that he after satisfying himself that it was not adulterated had sold it to the accused; when he purchased Dals in Yeotmal district, he purchased good Dals and not adulterated ones. The word of the accused even on oath, therefore, cannot be relied upon, when he says that he has nothing to do with the adulteration of the Dal which was sold to the Food Inspector. I am, therefore, unable to interfere with the order of conviction as sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge.