STATE OF MAHARASHTRA Vs. N KHAMKAR

JUDGEMENT

(1.) THIS is a State appeal against the original accused No. 2 against the order of acquittal dated 7-6-1974 passed by the Judicial Magistrate, F. C. , Wai. The prosecution was Under Sections 7 (i), 7 (ii) and 7 (v) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "said Act" ).

(2.) ORIGINAL accused No. 2 was prosecuted along with one Sadashiv Vithoba Khamker, who was original accused No. 1, for committing an offence of selling Jilebi which was adulterated and misbranded food as defined Under Sections 2 (i) (j) and 2 (ix) (d) of the said Act. This being an appeal against the order of acquittal, the facts having been stated in the judgment of the lower Court, I do not propose to repeat the same here but there are certain important dates which are required to be stated. The date of the alleged offence is 19th February 1973, on which date the Food Inspector obtained Jilebi from the shop of accused No. 2, in whose name in the Municipality the licence for running the shop stands and at the time when the Jilebi was purchased, accused No. 1 was present in the shop. The next date is 21st February 1973. After following the usual procedure which is required under the said Act, on taking proper quantity of Jilebi, dividing it into three groups, giving one sample to the accused and carrying two samples duly sealed and signed by the Panchas, on 21st February 1973, the Food Inspector sent the sample to the Public Analyst. On 29th March 1973 the Public Analyst made the report which is at Ex. 7 on p. 19, After obtaining the report of the Public Analyst, which certified that in the opinion of the Public Analyst, the sample contained an extraneous non-permitted coal tar dye viz. , metanil yellow and was adulterated Under Section 2 (i) (j) of the said Act. On 26th April 1973, sanction to prosecute was obtained from the Commissioner, Food and Drug Administration by the Food Inspector. Somehow or the other, however, thereafter, for two months and three days nothing was done. On 29th June 1973 the Food Inspector filed a complaint which is Ex. No. 1 at p. 8. On 15th November 1973 the complainant was examined in the Court and after his examination in chief, the charge under the relevant Sections referred to above was framed on 4th December, 1973. After the entire evidence was over and after hearing the arguments of the parties on 7th June 1974, the learned Magistrate, First Class, by delivering his judgment and for the reasons stated therein, convicted accused No. 1 Sadashiv Vithoba Khamkar Under Section 7 (i) read with Section 16 of the said Act and sentenced him to suffer simple imprisonment for one day and to pay a fine of Rs. 1000/in default to suffer rigorous imprisonment for six months. By the same judgment and reasoning mentioned therein, he acquitted accused No. 2.

(3.) MR. Solkar appearing for the State in support of his contention of this appeal against the order of acquittal submitted that the learned Magistrate, First Class, has not understood the provisions of the Prevention of Food Adulteration Act as it is clearly disclosed by the reasoning given in his judgment, while acquitting accused No. 2. The only observations made by the learned Magistrate are as under :--