STATE OF MAHARASHTRA Vs. SHANKARLAL NATHMAL CHANDAK

JUDGEMENT

(1.) RESPONDENTS Nos. 1 to 5 in this appeal are partners of a firm which is added as Respondent No. 6 and are carrying on the business of Kirana at Yeola in Nasik District. On 6th of December 1972 the Food Inspector of Yeola Municipality visited their shop and purchased 750 grams of Tur-Dal for the purpose of analysis. At the time of this sale accused No. 2 was in charge of the shop. 750 grams of Tur-Dal purchased by the Food Inspector were divided into three parts and after taking the necessary steps prescribed under the Prevention of Food Adulteration Act and the Rules made thereunder one part was sent to the Public Analyst on 8th of December 1972. The report of the Public Analyst dated 31st January 1973 was received by the Food Inspector on 3rd February 1973 and it showed that the sample analysed by him contained 13% Lakh-Dai which is a commodity the sale of which is banned under Rule 44-A of the Prevention of Food Adulteration Rules. On 6th of June 1973 a complaint was filed in the Court against the respondents charging them with the offences punishable under the provisions of the Food Adulteration Act. hereinafter referred to as "the Act. " A copy of the report received from the Public Analyst was given to the respondents on 4th of August 1973. It may be added here that the respondents or any one of them did not make an application Under Section 13 (2) of the Act for sending the sample with the Court to the Chemical Analvser.

(2.) THE main charge against the respondents was that the statutory sale effected by them contravened the provisions of Rule 44-A of the Rules. That Rule inter alia provides that no person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale viz. Kesari gram or kesari dal or the product of either of them. In Clause (e) of Rule 44a mixture of kesari dal and any other dal is mentioned which means that kesari dal along with any other dal is also a prohibited item of sale. The Government of Maharashtra by a Notification No. PFA 1060/d dated 15th November 1961 in the Gazetee dated 23rd November 1861 brought Rule 44-A into force in the State of Maharashtra. If therefore it is proved that the respondents sold a mixture of lakh dal (which is called kesari dal in the rules) and any other dal then they would be guilty of contravention of Rule 44-A. The Public Analyst's report which is at Exh. 16 in this case mentions that the sample sent to him contained 13% of lakh dal and it further mentions that the Public Analyst was of the opinion that it was adulterated Under Section 2 (i) (h) of the Act. Section 2 (i) (h) mentions that if the article contains any poisonous or other ingredient which renders it injurious to health it shall be deemed to be adulterated within the meaning of Section 2 (ia ). Section 7 of the Act says that : No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(3.) THE defence of the respondents was that not all of them were in charge of the shop when the sale was effected and that respondents Nos. 2 and 3 alone were working partners whereas the other respondents were sleeping partners It was also contended that they had stored the commodity from which sample was taken for selling it as cattle food and not for human consumption. It was also mentioned by them that they had purchased the same from Madhya Pradesh and were not aware that it contained any prohibited material. It must be mentioned that they did not challenge the contents of the report of the Public Analyst. The learned trial Magistrate by his judgment and order dated 19th November 1974 convicted all the accused of the offences with which they were charged and sentenced each of them to rigorous imprisonment for six months and to pay a fine of Rs. 1000/ -. In default of the payment of fine, rigorous imprisonment for 15 days was also awarded.