BHAVRILA S O CHISULAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two Criminal Revision Applications have been filed by original accused No. 1 Bhavrilal s/o Chisulal. In Criminal Case No. 386 of 1973 before the Judicial Magistrate,F.C. Jalna, he was convicted for an offence committed by him on 9th May, 1972 under section 7(v) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the Act", and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- in default, to undergo rigorous imprisonment for a further period of four months. In Criminal Case No. 387 of 1973 before the same Magistrate in respect of an offence committed on 14th June, 1972, he was similarly convicted and sentenced. He preferred two separate appeals in the Court of Sessions Judge, Aurangabad, against his conviction and sentence in the two cases. Both the appeals were dismissed and the order of conviction and sentence in each case was confirmed. Bhavrilal has now come to this Court in revision.

(2.) There is a grocery shop at Jalna, by name Shah Hastilal Shantilal & Co. of which Bhavrilal was an employee. One Hastilal was the owner of the shop. (Hastilal was also prosecuted along with Bhavrilal and was convicted and sentenced by the trial Magistrate, but on appeal to the Sessions Court, he was acquitted). The commodity involved in the case is Lakh-Dal also know as Kesari-Dal. There is no dispute that under Rule 44-A of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as "the Rules", the effect from such date as the State Government may by notification in the Official Gazette specify in this behalf, no person in any State shall sell or offer or expose for sale, or have in his possession for the purpose of sale under any description etc. inter alia, Kesari-Dal. The Government of Maharashtra accordingly issued a notification dated 15th November, 1961, specifying 20th November, 1961 as the date with effect from which the sale, possession for the purpose of sale etc., of Kesari-Dal were totally banned in the State. However, by virtue of a circular dated 7th July, 1966, the Government of Maharashtra relaxed the notification to a certain extent. Under this Circular, the Government of Maharashtra decided that the sale of Kesari-Dal for animal food through cattle food shops should be permitted, but the Circular added that Kesari-Dal should not be allowed to be sold by grocers and shop keepers who sell foodgrains and pulses for human consumption. It appears that the Government did not give any publicity to this circular. Subsequently, the Government came forward with another circular dated 27th June, 1969, by which it withdrew the Circular dated 7th July, 1966. The position, after the circular dated 27th June, 1969 was issued, was as it obtained on the notification dated 15th November, 1961, being issued to take effect from 20th November, 1961. However no publicity to the circular dated 27th June, 1969 was given.

(3.) On 9th May, 1972, Food Inspector Jadhav (P.W. 1), visited the shop of Shah Hastilal Shantilal and Co., Bhavarilal was present. 17 bags of Kesari Dal were found stocked in the shop. After disclosing his identity to Bhavrilal and his intention to purchase Kesari Dal as sample for analysis, Jadhav purchased 750 grams of Kesari Dal and paid Rs. 0-65 as price to Bhavrilal. Following the prescribed procedure, Jadhav divided the sample purchased by him in three equal parts. He sent one of these to the Public Analyst for analysis and report. In due course, the report was received that the sample was lakh dal, the sale of which was not permissible. In that case, one Prabhakar Joshi (P.W. 2), was examined. He had carried the sample to the Public Analyst.