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2010 Supreme(Bom) 1064
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
State Through Smt. Iva Fernandes, Food Inspector, Department of Food & Drugs Administration
Versus
Selvom Athisavem & Another
CRIMINAL APPEAL NO.76 OF 2009
Decided on : 02-08-2010
Mr. C.A. Ferreira, Public Prosecutor for the Appellant.
Mr. J.J. Mulgaonkar, Advocate for the Respondents.
Headnote:Prevention of Food Adulteration Act, 1954 - Sections 2(ix) (k), 7(ii) and 16(1)(a) (i) - Prevention of Food Adulteration Rules, 1955, Rule 32 - Appeal - Against judgment/order dated 31.3.2009 of JMFC acquitting both accused under Section 2(ix) (k), 7(ii), 16(1)(a)(i) of Act 1954 read with Rule 32 of Rules 1955 - Complaint for adulteration as well as misbranding of roasted peanuts filed by complainant/ Food Inspector - Evidence led by complainant - Not considered by JMFC in detail - Held - Evidence led by complainant consistent with complaint and supported by version of Public Analyst - Evidence of both consistent, convincing and reliable - Label found on article of food purchased by complainant highly deficient in details required to be mentioned - Articles sold to be considered as misbranded in terms of Section 2(ix) (k) of Act - Impugned judgment/order set aside - Both accused convicted under 16(1)(a)(i) read with 2(ix) (k) read with Section 7(ii) of Act 1954 read with Rule 32 of Rules 1955 - Sentenced to undergo 3 months simple imprisonment each and fine of Rs. 2,500 each - Appeal allowed.
Prevention of Food Adulteration Act, 1954 - Sections 2(ix)(k), 7(ii) and 16(1)(a) (i) - Prevention of Food Adulteration Rules, 1955, Rule 32(a)(e) - Adulteration and Misbranding of roasted peanuts - Complaint by Food Inspector - Dismissal of - Acquittal of accused - Appeal against by complainant-Food Inspector - Held - Complainant-appellant followed prescribed procedure at time of seizure and sealing of sample of food article - Evidence shows label found on food article highly deficient in details required to be mentioned as per Rule 32(a)(e) of Rules - Evidence led by complainant supported by report of Public Analyst that seized sample adulterated - Impugned judgment and order of Magistrate acquitting accused set aside - Accused convicted and sentenced under Section 16(1)(a)(i), 2(ix)(k) and 7(11) read with Rule 32 of Rules - Appeal allowed. - The evidence given by the complainant is consistent with the complaint and is supported by the version of the Public Analyst, both the whom have taken note of what the label contained. No requirement of law has been brought to notice that the complainant was required to produce the label found on the packet of the food articles nor there can be any such law. The label was bound to be retained, after analysis, in the office of Food and Drugs Administration as stated by the complainant and the Analyst. The complainant as well as the Public Analyst have noted the contents of the label and there is no reason to disbelieve their versions. The pancha witness turned hostile, but on that count alone the case of the complainant cannot be thrown over-board. There is nothing in the cross-examination of the complainant or for that matter Public Analyst even to remotely suggest that the former did not follow the prescribed procedures at the time of seizing and sealing the article of food and the latter at the time of carrying out the analysis. Their evidence has been consistent and convincing. To conclude, there is no reason why the evidence of the complainant and the public analyst was not to be accepted. Court finds that the evidence of both the convincing consistent and reliable. Their evidence shows that the label found on the articles of food purchased by the complainant was highly deficient in details required to be mentioned. It did not contain the particulars as required to contain on a label meant for articles of vegetation food as set out in Clauses (a) and (e) of Rule 32 of the Rules of 1955 and therefore the articles sold had to be considered as misbranded in terms of Section 2(ix)(k) of the Act of 1954. In the circumstances, therefore this appeal deserves to succeed. The judgment/order dated 31.3.2009 of the Magistrate is hereby set aside and both the accused convicted under Section 16(1)(a)(i) read with Section 2(ix)(k) read with Section 7(ii) of the Act of 1954 read with Rule 32 of the Rules of 1955.
The offence committed by the accused is punishable under Section 16(1)(a)(i) of the Act of 1954. However Clause (i) of the first proviso stipulates that if the offence is under sub-clause (i) of Clause (a) and is with respect to article of food, being primary food which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of Clause (ix) of Section 2 or if the offence is under sub-clause (ii) of Clause (a) but not being an offence with respect to the contravention of any rule made under Clause (a) or clause (g) of sub-section (1-A) of Section 23 or under Clause (b) of sub-section (2) of Section 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than five hundred rupees.
In the light of what has been stated herein above, both the accused are hereby sentenced under Section 16(1)(a)(i) read with Section 2(ix)(k) read with Section 7(ii) of the Act read with Rule 32 of the Rules to undergo 3 months S.I. each and fine of Rs. 2,500/- each in default to undergo 15 days S.I.
This appeal is filed by the complainant-Food Inspector and is directed against judgment/order dated 31/03/2009, of the learned Judicial Magistrate, First Class, Mapusa, by which both the accused have been acquitted under Section 16(1)(a)(i) r/w Section 7(ii) r/w Section 2(ix)(k) of the Prevention of Food Adulteration Act, 1954 r/w Rule 32 of the Prevention of Food Adulteration Rules, 1955.
2. The complainant visited the establishment of the accused on 7/06/2004 at about 4.00
p.m. and after disclosing her identity the complainant, after issuing notice in Form VI, purchased three sealed packets containing roasted peanuts of 500 gms each as well as some "Zilebis". No complaint was filed as regards "Zilebis", but complaint was filed for adulteration as well as misbranding of the roasted peanuts purchased by the complainant from the accused. The prosecution as regards adulteration of the roasted peanuts ended with the judgment of this Court dated 22/10/2008 in Criminal Appeal No.39/2007 and the trial thereafter proceeded as regards misbranding.
3. The complainant was further cross-examined after the remand and so also the public analyst. Besides the said two witnesses the complainant had examined a pancha witness who did not support the case of the complainant and was cross-examined on behalf of the complainant.
4. The case of the complainant is that she had purchased the said three sealed roasted peanuts packets which contained a label inside which read as follows;
"M/s. Mani Mark Sweets, Carajwada, Mapusa, Goa.
Roasted groundnut 500 gms. Rs.25/-
Best before 1 month.
Date of Pack. 7 JUN, 2004."
5. Thereafter, the complainant labelled each packet/part giving a common serial number, mentioned in the complaint as well as in her evidence, and the labels were signed by accused no.1, the witness and the complainant. Thereafter, each part was wrapped in thick brown paper, fixed with gum and the paper slip carrying the code number and serial number (mentioned by the complainant in the complaint as well as in her evidence) with the signature of local health authority was pasted on each part of the sample, completely round from top to bottom and then each part was tied with thread above and across and sealed at four points, covering the knot of the thread and signatures of accused no.1 and the witness were obtained on each part of the sample of the said roasted peanuts, in such a way that the label and the paper slip both carried part of the signature.
6. The complainant stated that samples were seized under panchanama which was read and explained to accused no.1 and one part of the sample was sent to the public analyst along with memorandum dated 8/06/2004 and copy of it along with specimen impression of the seal used to seal the sample was sent separately and the remaining 2 parts of the sample were sent to the local health authority (L. H. A.) on the same day and the Public Analyst by her report dated 6/07/2004 opined that the sample showed presence of synthetic food colour, identified as sunset yellow and, therefore, the sample was adulterated and the Public Analyst also opined that the symbol for vegetarian food and batch number was not specified on the label. She produced the report of the Public Analyst and examined the Public Analyst as well, who in her evidence confirmed that she had received the sample intact and unbroken and the seal on the container and outer cover tallied with the seal separately sent. Upon examination, she found that the physical appearance was reddish orange, oily, masala coated peanuts. The odour was satisfactory. Taste was slightly pungent. Taste for starch showed presence of added synthetic food colour, identified as sunset yellow CHF. In her opinion, the sample analysed showed presence of synthetic food colour and, therefore, it was adulterated. However, that controversy no longer survives. She also stated that the symbol of vegetarian food, batch number, lot number, code number were not specifie
