VIJAY DASHRATH SHETE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Three cases were filed by Food Inspector, Kolhapur B.L. Patil against the three accused in the Court of Judicial Magistrate, Kolhapur. The first accused is the father and the second and the third are his sons. They are alleged to have sold to the Food Inspector on 21-11-1972 from their shop known as "M/s. D.D. Shete and sons Mug Dal, Tur Dal and chilly powder. As usual the Food Inspector divided each of these samples into three parts and gave one part of each of the samples to the third accused, who was then present in the shop. The samples were sent to the Public Analyst at Poona and his report was that each of the samples of Mug Dal and Tur Dal contained metanil yellow coal tar dye and chilly powder contained extraneous tar die. All the three accused, therefore, were prosecuted under the Prevention of Food Adulteration Act and charged with the offence punishable under section 16(1)(a)(i)(ii) read with section 7(i)(ii) of the Prevention of Food Adulteration Act. All the three criminal cases were consolidated and the accused were tried in one case. The accused pleaded not guilty to the charge and claimed trial. The first and the second accused contended that they were not in the shop at the time when the Food Inspector visited it and said that they were not looking after the affairs of the shop. The third accused who is the revision petitioner here admitted his presence in the shop at the time when the Food Inspector visited it and admitted having sold the goods. He admitted also having received the samples of each of the articles from the Food Inspector.

(2.) The learned Magistrate after trying the accused found all the three accused guilty of the offence with which each of them was charged and sentenced each of them to suffer rigorous imprisonment for six months and also to pay a fine of Rs. 100/-. This order of conviction and sentence was challenged by the accused and the learned Addl. Sessions Judge agreed with the finding of the trial Court in so far as the third accused is concerned, but differed in so far as the first and the second accused are concerned. In that view of the matter he acquitted the first and the second accused but confirmed the order of conviction and sentence of the third accused. That order of conviction is now challenged here by the third accused. The point therefore, that arises here for consideration is whether that order is legal and proper.

(3.) So far as the finding of fact is concerned, both the trial Court as well as the Sessions Court did not believe the evidence produced by the accused about the warranty in the shape of the bills. The case of the accused was that the chilly powder was purchased from one Salgaonkar and that he had given a warranty by his bill which he produced. Their further case was that they purchased Mug Dal from one Bapusaheb Mahajan and Tur dal from one Nasthe. They produced the receipts of these three dealers but both the courts below for food reasons did not rely on the receipts. Mr. Ganatra, the learned Advocate for the petitioner again raises the issue of warranty and contends here that both the lower courts have improperly decided the question of warranty. It is his case that the petitioner had purchased these articles from other dealers and they should be held responsible for adulteration which was found by the public analyst. It is true, as argued by Mr. Ganatra that under section 19 of the Adulteration Act a vendor shall not be deemed to have committed an offence pertaining to the sale of an adulterated article, if he proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof, from a licensed manufacturer, distributor or a dealer and in any other case from any manufacturer, distributor or a dealer with a written warranty. In fact the licence was not at all produced by these dealers, who were examined by the defence in the trial Court. They were first produced in appeal in the Sessions Court. The bills, however, were produced during the course of the trial but the bills were not accepted by both the learned Magistrate as well as the learned Sessions Judge. The finding of fact, therefore, of both the courts is that the accused has not proved that he purchased the adulterated articles of food with a written warranty in a prescribed form. It would, therefore, be difficult for me to interfere with these findings of fact.