STATE OF MAHARASHTRA Vs. SHRINIVAS SUBRAO SHENVI

JUDGEMENT

(1.) The several irregularities in the prosecution out of which the present appeal arises cannot be appreciated unless the facts are stated in at least chronological order first.

(2.) On 23rd July, 1973 the Food Inspector of Kolhapur purchased 600 grams of chilli powder from a restaurant called Hotel Kalpana and Lunch Home, situated on Subhash Road at Kolhapur. One Gopal Achanna Shetty was the proprietor of the said establishment and one Srinivas Subrao Shenvi, the respondent in this appeal, was said to be the person in charge of the said restaurant. Obviously it means that the present respondent was a servant of Gopal Ayhanna Shetty, the proprietor of the restaurant. The chilli powder which was purchased by the Food Inspector was, as usual, divided into three equal parts and one sample of 200 grams was sent to the Public Analyst whose report shows that the sample examined by him contained extraneous colour thus bringing the adulteration of the sample within the meaning of section 2(i)(j) of the Prevention of Food Adulteration Act. On the basis of this report and indeed by incorporating the contents of this report, the Food Inspector filed this complaint which was registered as Criminal Case No. 104 of 1974. In that complaint both the proprietor and the present respondent were made accused Nos. 1 and 2 respectively. I have been informed that accused No. 1 absconded during the trial and his case was separated and the trial proceeded against accused No. 2 alone. The complaint referred to above was filed by the Food Inspector on 16th January, 1974.

(3.) An application was made on behalf of the respondent on 16th July, 1974 under section 13(2) of the Act requesting that one or the other of the two samples may be sent to the Director of the Central Food Laboratory at Calcutta. From the recitals in the certificate issued by the Central Food Laboratory at Calcutta, I notice that on 29th July, 1974 the sample was sent to the Central Food Laboratory which received the same on 12th August, 1974. No reply was received by the Food Inspector from Calcutta for a long time and he made an application to the Court of the Judicial Magistrate, First Class of Kolhapur, where the case was pending, for reminding the Central Food Laboratory about the samples sent to them. Again from the recitals mentioned in the certificate of the Central Food Laboratory a reminder seems to have been sent and thereafter the sample of the chilly powder was taken up for analysis by the Central Food Laboratory sometime after July, 1975. The report of the analysis made by the Laboratory is dated 21st August, 1975, and it discloses that the sample of chilly powder sent to that Laboratory was lumpy and insect infested with a few live insects. Not a word has been said about the extraneous colour in the sample analysed by the Central Food Laboratory. If the report of the public Analyst is to be accepted, then the offence disclosed is one under section 2(i)(j) of the Act, whereas the offence disclosed by the report of the Central Food Laboratory is one under section 2(i)(f) of the Act. They are not mutually even overlapping and must he held to be mutually exclusive thus disclosing two distinct offences in respect of the same commodity alleged to have been purchased by the Food Inspector. Another disturbing feature of this prosecution is the extraordinary delay in the analysis made by the Central Food Laboratory. I have already mentioned above that the sample was received by the Central Food Laboratory on 12th August, 1974. More than one year after that date these sample was taken up for analysis. This at any rate, in my opinion, explains the lumpiness of the sample and probably also the insects found in the sample.