STATE OF MAHARASHTRA Vs. ARUNKUMAR HIRJI SHAH

JUDGEMENT

(1.) IN this revision application the State of Maharashtra has challenged order dated 31st July, 1992, passed by the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Bombay, in Case No. 213/s of 1989, discharging the respondents original accused Nos. 1 and 2 of the offence under section 7 (i) r/w section 2 (i-a) (m) punishable under section 16 of the Prevention of Food Adulteration Act, 1954 (for short "the said Act" ).

(2.) BRIEFLY stated the facts which give rise to this petition are as under : food Inspector Shri T. N. Lohar alongwith Food Inspector Shri P. L. Halmaniyar and independent witness Shri P. L. Dhutia visited the firm Rajesh Stores, situated at Shop No. 2, Shivam Building, Shimpoli Road, Borivali (W), Bombay, on 17-1-1985 at 3 p. m. At that time accused No. 1 Arunkumar Hirji Shah was present. He was looking after the business of the shop. Shri T. N. Lohar disclosed his identity to him as a Food Inspector and also his intention to draw the sample of the food articles for the purpose of analysis. He demanded and purchased 600 gms. of chilly powder in the presence of witness and paid Rs. 13. 20 ps. as its cost. He then gave intimation in Form No. VI and notice under section 14-A of the said Act and obtained signature of accused No. 1 and the independent witnesses. He divided the chilly powder into three equal parts and put each part in a clean, dry and empty polythene bag separately. He carried out the necessary formalities as detailed by him in his evidence. I shall advert to it a little later. He carried out the panchanama and then forwarded the samples as per the rules to the Public Analyst and to the Local Health Authority. The Public Analyst in his report dated 9-2-1985 opined that the sample was adulterated. Thereafter he prepared proposal in proforma A and with his own report, he sent all the documents to Joint Commissioner, Food and Drugs Administration (FDA for short) for the purpose of obtaining consent i. e. sanction for prosecution of the accused. The Jt. Commissioner F. D. A. after scrutinising the papers and report of the Public Analyst issued the necessary consent order. After receipt of the consent the complaint was filed. Being a warrant triable case, the prosecution examined its witnesses to make out prima facie case for framing the charge. The prosecution examined P. W. 1, Shri Gajanan Patkar, a Clerk working in Public Health Department, B. M. C. , P. W. 2 Tatasaheb Lohar, Food Inspector, P. W. 3 Shrikant Phadke and P. W. 4 Shri Chatim, the Public Analyst. After perusing the evidence and after hearing the arguments advanced by the learned Counsel appearing for both the sides, the learned Magistrate discharged the accused on the ground that there was breach of Rules 14, 15 and 16, of the Prevention of Food Adulteration Rules, 1955 (for short "the said rules") and section 11 (1) (c) (i) of the said Act. He also held that the consent order was vague and omnibus. In his opinion, absence of proper consent vitiated the prosecution. It is this order which is impugned by the State of Maharashtra.

(3.) I have heard Shri Pravin Singhal, learned Addl. Public Prosecutor, who appears for the applicant State. None represents respondents accused though they have been duly served.