LAWS(BOM)-1997-3-54

STATE OF MAHARASHTRA Vs. LAKHMICHAND SUGANCHAND AGARWAL

Decided On March 12, 1997
STATE OF MAHARASHTRA Appellant
V/S
LAKHMICHAND SUGANCHAND AGARWAL Respondents

JUDGEMENT

(1.) THE Respondents were tried in the Court of Additional Chief Judicial Magistrate, Pune, in Criminal Case No.5/82 for the contraventiion of S. 7 (l) punishable under section 16 r/w Sec. 17 of the Prevention of Food Adulteration Act, 1954. By his Judgment and Order dated 30/6/1984, the learned Additional Chief Judicial Magistrate acquitted the accused of the said charges. In the present appeal the State of Maharashtra has impugned the said Judgment and Order of acquittal.

(2.) BRIEFLY stated the prosecution story runs as under : The complainant Shri Sayed, Food Inspector Pune, is duly appointed under section 9 of The Prevention of Food Adulteration Act. 1954, by the State Government. His appointment has been duly notified. Accused Nos. 1 and 2 are the partners of the firm M/s. Kripal Sales Corporation located at Nanapeth, Pune and M/s. Kripal Sales Corporation is accused No.3. According to the prosecution Accused No.1 was present and in charge of the shop at the time of the visit of the complainant at the said shop on 6 . 1. 1981. Accused No.4 is the proprietor of M/s. B. A. Products, Raviwar Peth, Pune. Accused No.5 is proprietor of firm M/s. Kailas Products, Ulhasnagar, Thane. Accused No.5 is the manufacturer of the food articles namely "plain Toffee". Accused Nos. 1 to 5 are holding requisite valid licence under the Prevention of Food Adulteration Act and Rules 1962. On 6-1-1981, at about 12-30 p. m. the complainant visited the shop of Accused No.1 in the company of some Food Inspectors and panchas. The complainant disclosed his identity to Accused No.1 and informed him that he wanted to purchase 1500 Gms. of plain toffee and paid Rs. 15/- as the price to accused No.1 and obtained a cash memo. The complainant issued an intimation in Form VI and in Form Appendix 'd' to accused No.1 and explained the purpose of them. Accused No.1 disclosed that the Plaint toffee from which the sample was collected was supplied by Accused No.1 under bill No.475 dated 28-12-1982. According to the complainant he took three packets containing 500 Gms. of Plain Toffee already packed and put each packet into a dry, clean and empty brown paper bag. The mouth of each brown paper bag was pasted by means of gum and labelled. He prepared three such packets each containing a sealed packet of 500 Gms. of Plain Toffee. A paper seal bearing the signature of the local Health Authority was pasted on each part of the sample from top to bottom with a gum. Each of the sample was then tied with a string and then sealed. A detailed panchanama was drawn about the collection of the sample. On 7-1-1981, the complainant sent one sealed sample packet of plain toffee to the Public Analyst, Pune, alongwith the Memorandum Form with a covering letter in a sealed packet by hand delivery, Duplicate copy of Form 'ii' alongwiith the specimen impression seal with a covering letter were sent to Public Analyst Pune, separately by hand delivery. On the same day the complainant sent the remaining two parts of the sample and two copies of Form VII with a covering letter in a sealed packet to the Local Health Authority. On 24-2-1981, the complainant received the report of the Public Analyst dated 12.2 . 1981 from the Local Health Authority, Pune. The Report stated that the plain toffee sample did not confirm to the standard of plain toffee as per rules. The complainant enquired with Accused No.4 and collected the necessary documents and information about the supply of the food articles to accused nos. 1 to 3 . He gathered that Accused No.4 had purchased plain toffee from Accused No.5 under Bill No.301 dated 25-12-1980. On 21-8-1981, the complainant visited the premises of Accused No.5 and collected necessary documents and information. Accused No.5 disclosed that he was a manufacturer of the said food article, plain toffee. Necessary sanction was then obtained from Joint Commissioner, Pune Division, Food and Drug Administration, Pune, to prosecute the accused and on 4th March, 1982, a complaint came to be lodged. Accused Nos. 1 and 2 denied that they had sold any adulterated plain toffee. They stated that accused No.3 is the firm and accused Nos. 1 and 2 are its partners. Accused Nos. 1 to 3 had purchased the articles from Accused No.4 and they produced a warranty from Accused No.1. Relying on the provisions of Sub-section (2) of Section 19 of the Prevention of Food Adulteration Act, 1954. They contended that they had committed no offence. Accused No.4 also relied on sub-section (2) of Section 19 of the said Act. Accused No.5 did not deny that he was the manufacturer of the Food Article but he stated that the complainant had not properly collected the samples as per rules. According to him there was a breach of the mandatory provisions of the Act. He also contended that the report of the Public Analyst did not indicate that the samples were adulterated. He contended that the prosecution had failed to prove that the accused had committed any offence. Accused No.1 examined himself to prove that he had purchased the plain toffee from which the sample was collected from B. A. Products, Raviwar Peth, Pune. He produced the bill in respect of the purchase. After perusing the evidence adduced by the prosecution and the defence, the learned Magistrate came to a conclusion that the prosecution had failed to prove that accused Nos. 1 to 3 had sold adulterated food articles. He further came to the conclusion that the prosecution had failed to prove that accused No.4 was guilty of selling any food articles which were adulterated, to accused Nos. 1 to 3 . He further held that the prosecution had failed to prove that Accused No.5 had manufactured adulterated food articles. In this view of the matter the learned magistrate acquitted the accused of the said charges. As stated above it is the said judgment and order of acquittal which is impugned in the present appeal.

(3.) THE learned magistrate upon consideration of the evidence has come to a conclusion that from the evidence of the complainant and the recitals of the panchnama it was clear that the sample was not collected in bulk of 300 gms. and subsequently sub-divided in three equal parts of 100 Gms. each. According to the learned magistrate there was a breach of provisions of Section 11 of the Act, and the entire procedure of collecting sample was therefore illegal. He also came to a conclusion that the report of the Public Analyst did not disclose that any coal tar was present and that the food article was injurious to human health. In this view of the matter he acquitted the accused.