STATE OF MAHARASHTRA Vs. ANNA MURLIDHAR DHAVALE

JUDGEMENT

(1.) This is an appeal preferred by the State for enhancing the sentence imposed on the accused who has been convicted by the two Courts below of the offence punishable under Sec. 16(l)(i) of the Prevention of Food Adulteration Act, in Criminal Case No. 178 of 1974 tried by the learned Chief Judicial Magistrate 1st Class, Ahmednagar. The Respondent who was accused No. 1 was convicted of the aforesaid offence and sentenced to imprisonment till the rising of the Court and to fine of Rs. 1,000.00. In default of the payment of fine, rigorous imprisonment for six months was stipulated. This order of conviction and sentence was challenged by the Respondent in Criminal Appeal No. 36 of 1976 which was heard and partly allowed by the learned Sessions Judge of Ahmednagar by his judgment and order dated 3rd of Aug., 1976. By the said order, the learned Sessions Judge confirmed the conviction but reduced the sentence of fine from Rs. 1,000.00 to Rs. 100.00. It is this reduction of the sentence of fine that is challenged by the State in this Appeal. It is surprising that the loss of Rs. 900.00 by way of fine agitated the State, though the absence of substantive term of imprisonment in the trial Court did not bother it.

(2.) In any case when Mr. Gangakhedkar, the learned Public Prosecutor, rose to argue his Appeal, Mr. Aggarwal, the learned Advocate appearing for the respondent took the opportunity of challenging the conviction itself. His challenge will have to be upheld for reasons to follow.

(3.) The accused is the proprietor of a restaurant called 'Murli Bhavan', and on 13th July, 1973, the Food Inspector purchased turmeric powder from him. A part of the sample which was sent to the Public Analyst was found to be adulterated upon analysis. It is on this fact that the prosecution was launched. Admittedly the respondent is not a dealer in turmeric powder. The evidence shows that the turmeric powder was stored in his restaurant for being used as an ingredient in other articles which are manufactured in the said restaurant. Mr. Aggarwal relies upon the judgment of the Supreme Court in Municipal Corporation of Delhi Vs. Laxmi Narain Tandon, 1975 (II) F.A.C. 444 which has been followed by this Court in State Vs. Udayram Rupram Oza, 1977 (II) FAC 213 and in Jaya Sheena Shetty Vs. State of Maharashtra, 1978(11) F.A.C. 111. These three judgments are authority for the proposition that if a particular article is not stored for sale but is stored only for the purpose of being used as an ingredient in an article which is going to be sold then the sale which is made in favour of the Public Analyst is not a sale within the meaning of the Prevention of Food Adulteration Act. In view of this legal position, as it then stood, the order of conviction cannot be sustained.