STATE OF MAHARASHTRA Vs. ABBAS ISMAIL SHAIKH

JUDGEMENT

(1.) THE Respondent was tried in the Court of Judicial Magistrate, First Class (Railway) Daund, at Daund in Reg. Criminal Case No.49 of 1981 for having committed offence punishable u/s. 7 read with S. 16 of the Prevention of Food Adulteration Act, 1954, for selling adulterated groundnut oil, on 14-10-1980 at about 10. 00 a. m. at Daund Railway Station.

(2.) BY his judgment and order dated 22-3-1984, the learned Magistrate acquitted the accused (Respondent) of the said offence. The State of Maharashtra has impugned the said judgment and order of acquittal in this appeal.

(3.) AS against this Smt. Revati Mohite Dere contended that the impugned judgment and order can by no stretch of imagination be called perverse. She submitted that the evidence of both the witnesses i. e. P. W. 1 Shivram Daji More, the Divisional Health and Food Inspector and P. W. 2 Vasant Tukaram Barde, health Inspector at Daund indicates that the sample of groundnut oil was not drawn in clean bottles and as such the procedure laid down under the P. F. A. rules was not followed. She also submitted that the Khalashi who had drawn the samples was not examined and, therefore, the prosecution had not proved that the samples were drawn in the manner required under the P. F. A. Rules. In this connection she relied on judgment of Gujarat High Court in the case of M. B. Bisaldar Vs. Radhe Shyam Ramdhan Agrawal & Anr. reported in 1981 Cr. L. J. NOC 102 : 21 (2) G. L. R. 136 where in a similar fact situation the Gujarat High Court has held that where bottles in which samples were sent, were cleaned by peon of the Food Inspector and the peon was not examined, the accused must be given benefit of doubt. She submitted that the failure on the part of the prosecution to examine Khalashi has adversely affected its credibility and the learned magistrate was right in holding that the prosecution had failed to prove that the samples were drawn properly. She also contended that there was a breach of Section 10 (7) of the Prevention of Food Adulteration Act, 1954 which requires that where the Food Inspector takes any action he has to call one or more persons to be present at the time when such action is taken and take his or their signatures. According to Smt. Revati Mohite Dere P. W. 2 Vasant Barde has in his evidence admitted that at the time of collection of sample many passengers and staff members were present. Neither Mr. More nor Mr. Barde requested any of the passengers or any other person to act as a panch while they took the sample. Relying on judgment of the Kerala High Court reported in 1983 Criminal Law Journal 1981 Food Inspector Chalakudy Municipality & Anr. Vs. Prabhakaran & Ors. she contended that though the provisions of Section 10 Sub-section (7) are not mandatory the obligation cast on a Food Inspector u/s 10 (7) to call one or more persons to be present, at the time he takes action is to lend credibility to his evidence and the obligation to have the signature of those present to be taken is only to enable him to prove, if challenged that the action was taken by him in accordance with law. Smt. Revati Mohite Dere contended that evidence of both these witnesses does not indicate that the requisite care was taken while drawing samples. If the provisions of Section 10 (7) were followed that would have lent some credibility to their evidence. She submitted that the evidence of both the prosecution witnesses does not inspire confidence as far as drawing of the sample is concerned and hence the same has been rightly discarded by the learned magistrate. Breach of provisions of Section 10 (7) of the Act has also adversely affected the credibility of the prosecution story. She therefore, submitted that the learned Magistrate had rightly recorded the order of acquittal and the same deserves to be confirmed by this Court.