TARACHANDRA SHIVRAM SAVORDEKAR Vs. FOOD INSPECTOR AND ANOTHER

JUDGEMENT

(1.) A complaint under the Prevention of Food Adulteration Act, 1954. was filed by the Food Inspector against the petitioner, on the ground that on 10th Feb., 1981, at about 4.30 p m., the petitioner had stacked for sale kulfi which was sub-standard. The petitioner pleaded not guilty to the charge, but ultimately, he was convicted by the learned Judicial Magistrate, First Class. Vasco. Being aggrieved, he preferred an appeal to the Sessions Court. The said appeal was dismissed by the learned Additional Sessions Judge by the impugned Judgment dated 15th July, 1988. It is against his conviction and the consequent sentence that this Revision Application is filed.

(2.) Mr. Dias, the learned counsel appearing for the petitioner, contends before me that both the Courts below failed to appreciate that the prosecution has failed to prove that the petitioner was selling the kulfi, part of which was seized by the Food Inspector. The result of this failure on the part of the prosecution is that the charge was not fixed and the petitioner ought to have been acquitted. Secondly, the evidence adduced by the prosecution itself creates serious doubts as to where or not the samples collected by the Food Inspector where the same which were analysed by the Analyst of the Health Department. In fact, both the Food Inspector and the pancha stated that the samples had been kept in bottles, mouths of which had been covered with pieces of cloth. The said bottles had been wrapped in paper and tied with twine. However, the Analyst does not mention at all that the bottles sent to him for analysis had any piece of cloth in the mouth. Thirdly, according to the learned counsel, the charge framed by the learned trial Magistrate against the petitioner is vague inasmuch as one cannot make out under what Clause of section 2(u ia) the alleged adulteration took place. This being so, according to the learned counsel, the whole trial is vitiated as the petitioner had not fair opportunity of defending himself.

(3.) There is great merit in the submissions made by Mr. Dias. In fact, as regards the alleged sale, the evidence of the Food Inspector Madhu-sudan Thakur is by itself sufficient to show that there was no sale at all. The said Food Inspector did not also establish with cogent and sound reasons that the product attached by him was a finished product, particularly, finished kulfi. He, in fact, stated in the course of the cross-examination that he removed the kulfi from a container existing in the factory. According to him, the said kulfi had been kept in the said container for preservation. The petitioner's case is that the product kept in the said container was not a finished product and the kulfi was still in the process of manufacture. That apart, it is clear that the Food Inspector thought that he was entitled under the Act, to take any product existing in the factory and then to pay for it and pass a receipt for the product taken as having been sold to him. Obviously, under the Act. the Food Inspectors are not entitled to act in the manner the complainant in this case had conducted himself. No doubt, he is entitled to collect samples and to pay for such samples. But, whether this is a sale or not and whether the product, sample of which was taken, is or not for sale is to be established by independent and clear evidence. The petitioner was not present at the relevant time, and therefore, it is rather difficult to hold that there was a sale. Equally, for lack of evidence, one cannot hold that the product, sample of which was collected by the Food Inspector, was kept in the container for sale.