STATE OF MAHARASHTRA Vs. SHAIKH UKHAN SHAIKH REHMAN

JUDGEMENT

(1.) The State of Maharashtra preferred this appeal against the judgment and order dated 21st October, 1980 passed by the learned 3rd Joint Judicial Magistrate, F.C. Molegaon (Shri S.B. Deshpande), whereby he acquitted the respondent of the offence under section 2(i)(j) read with section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 and Rule 29 of Prevention of Food Adulteration Rules, 1955. The prosecution case was that on 24th May, 1973, the Food Inspector Shri Sashikant Bhalerao visited the restaurant of the accused at village Dongrale. He disclosed his indentity and gave out his intention to draw sample of the food articles namely Khari-shev weighing 300 gms. from the accused. Accordingly the complainant purchased Khari-shev weighing 300 grams and he divided it-into three equal parts. He packed the three parts of the samples in three different dried and clean bottles. Thereafter he sealed them in the presence of panchas. He also obtained the necessary receipt for payment of the price of the Khari-sev to the accused. He served notice under Form No. VI, Exhibit-17, on the accused. The bottles containing the samples were corked and the same were put into a thick brown paper and all the three bottles were labelled. Thereafter, the panchas put their signature on the labels. One of the samples was given to the accused for which the accused issued receipt Exhibit-18. The complainant drew a panchanama on the next day i.e. on 25th May, 1973. He forwarded one of the samples along with Form No. VII to the Public Analyst, Pune, by registered post acknowledgment due. Subsequently the second copy of the memo along with R/R was sent separately by post to the Public Analyst, Pune. He produced the copy of 3rd Print of Form No. VII. He received Public Analysts report on 20th of August, 1973. It is Exhibit-19 and as per that report the sample contained extraneous non permitted coal tar dye with matinial-yellow and it was adulterated under section 2(i)(j) of the Prevention of Food Adulteration Act, 1954 read with Rule 29 of Prevention of Food Adulteration Rules, 1955. The Food Inspector along with the necessary documents forwarded the report to the Commissioner of Food and Drugs, Bombay. He got the necessary permission from the Competent Authority on 17th October, 1973, which is filed at Exhibit-20. Thereafter, he filed the complaint in the Court of Judicial Magistrate, First Class, Malegaon on 3rd November, 1973. On 20th November, 1973, the Food Inspector issued a copy of Public Analysts report to the accused along with his covering letter by registered post acknowledgment due. The acknowledgment receipt, Exhibit-20, received from the accused was filed alongwith the complaint. The 3rd part of the sample was also produced in the Court. After examining the complainant the charge was framed against the accused for the offence above on 25-3-1980. After recording the evidence adduced by the complainant and after examining the accused, the learned 3rd Jt. Judicial Magistrate F.C. Malegaon, acquitted the accused on 21st October, 1980.

(2.) Feeling aggrieved the State preferred this appeal on 20th of April, 1981.

(3.) The learned Public Prosecutor Shri V.S. Jadhav contends that the learned Judicial Magistrate was not right in observing that the complaint did not comply with the Rules 17 and 18 and also Rule 9(j) of the Preservation of Food Adulteration Rules, 1955. He submits that the learned 3rd Joint Judicial Magistrate F.C. did not at all consider the evidence of the complainant in its entirely and without complying his mind to the requirements of Rules 17 and 18, he held that those Rules were not complied with by the Food Inspector. He also contends that Rule 9(j) was enacted and inserted in the Rules 1976 and therefore the learned trial Judge was not right in observing that the complainant did not disclose the compliance of Rule 9(j) of the Prevention of Food Adulteration Rules, 1955. According to the learned Public Prosecutor the learned Magistrate in a very slip-shed manner held that the provisions of Rules 9(j), 17 and 18 of the Prevention of Food Adulteration Rules were not complied with and acquitted the accused.