Judgment

FAZAL ALI, J.: - These two appeals by special Leave are directed against a common judgment of the Bombay High Court by which the conviction of the appellants under Section 16 (1) (a) under the Prevention of Food Adulteration Act was upheld in two separate cases. In case No. 837/1972, the sentence was two years whereas in case No. 830/1972, the sentence was one year. Both the sentences were directed to run concurrently.

2. A detailed narrative of the prosecution case has been set out in the judgment of the High Court and it is not necessary for us to repeat the same all over again. But briefly, the allegation of the prosecution was that P. W. 2 Ganeshrao Pandurangrao Mukhodkar, a lawyer had purchased among others articles, ten kilograms of groundnut oil from the shop of the two appellants known as Balaji Kirana Stores. The purchase was made on 1-10-1970. The oil purchased from the appellants was used for cooking food in connection with a feast given to Mr. Justice Deshpande of the Bombay High Court. Soon after the feast was over some of the guests developed stomach trouble and started vomiting. This led to the suspicion that there was something wrong with the oil in which the food was cooked. This feast was held on 4-11-1970. On 5-11-1970, P. W. 2 filed a complaint before the Chief Officer, Nandam Municipal Counsel and or receipt of the report, the Municipal Council directed Madhukar Marotirao Rode, the Food Inspector to make an enquiry into the matter. The Food Inspector contacted P. W. 2 and thereafter took the sample of the remaining oil which was lying with P. W. 2 and after complying with the necessary formalities, sent the same to Public Analyst. The Food Inspector then proceeded to the shop, demanded a sample of the oil sold by the appellants to P. W. 2. As that oil was not available, the appellant sold a sample from another oil which was known as Til Oil. The Food Inspector after preparing the usual samples, sent that sample also for chemical analysis to the Public Analyst.

3. In case No. 830/1972 which related to the Til Oil, taken from the shop of the appellants, the report of the Analyst was that the oil contained argamone oil which was doubtless a poisonous substance. In the other case i. e. 837 of 1972, the sample was taken from the house of P. W. 2. The report of the Analyst was that it contained 50% of mineral oil. Thus both the samples were found to be adulterated and accordingly two separate complaints were filed by the Food Inspector against the appellants. Due to certain formalities and infirmities, the two complaints were withdrawn and later on again filed after sometime. The appellants were tried under various provisions of the Prevention of Food Adulteration Act and convicted and sentenced as indicated above. The Magistrate as also the Sessions Judge upheld the conviction of the appellants. The appellants then unsuccessfully filed revision petitions before the High Court. The revisions having been dismissed, the appellants have come to this court by special leave.

4. Appearing in support of the appeal, Mr. Bhasme learned counsel for the appellants has raised three points before us. In the first place, it was submitted that so far as the sample taken from the house of the Lawyer P. W. 2 is concerned no conviction can be recorded against the appellants because the prosecution has not at all excluded the possibility of the oil taken by the Food Inspector, having been tampered with between the time when it was purchased from the appellant on 1-10-1970 to the time when the sample was taken by the Food Inspector on 5-10-1970. In our opinion, this contention is well founded and must prevail. From the evidence led by the prosecution, it is manifestly clear that between 1-10-1970, to 5-10-1970 the tin of oil purchased by P. W. 2 had changed number of hands. First it was taken by P. W. 2 to his house and kept in his store room. Then it was transferred to the cook for the purpose of cooking the food at the Dha