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2015 Supreme(Bom) 2084
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
V.M. Deshpande, J.
Balaji Nagnath Wattamwar - Appellants
Vs.
The State of Maharashtra - Respondent
Criminal Revision Application No. 119 of 2003
Decided On: 03.03.2015
For the Appellant: S.S. Bora, Adv.
For the Respondents: V.P. Kadam, A.P.P.
Headnote:Prevention of Food Adulteration Act, 1954 - Sections 7(1), 2(a)(a), 7(v), 16(1)(a)(i) and 16(1)(a)(ii) Recovery of adulterated food article i.e. moog dal Conviction. In the present case conviction of accused was set aside on the ground that complainant did not disclose when he went to shop of the accused applicant and scale as clean and report of public analyst also proved that the sample of moog dal was confirmed with all standard. From the available evidence on record, it is clear that the complainant (PW 1) has stated that the samples were kept in clean and dry bottles. However, it is clear that after the purchase of sample, he did not immediately keep the said sample in clean and dry plastic jar. The evidence of the complainant would disclose that after drawing sample, firstly he proceeded to issue notice in Form No. 6 and notice under Section 14-A of the Act to the applicant and thereafter he divided the sample in 3 equal parts and then each part was taken in dry, clean and empty plastic jar. The evidence of the complainant or the evidence of ’P’ (PW 5) is completely silent, as to where it was kept after the purchase of the sample during the process of issuance of notice. It is not clear from the evidence as to whether the place at which the sample was divided in 3 equal parts was clean and dry.
The requirement as laid down under Rule 14 of the Rules is mandatory requirement and it is to be completely complied with. The evidence of the complainant is completely silent as to from where he has procured dry, clean and empty plastic jar, wherein the sample was kept by him. His evidence or the panchanama does not show that the jars were with him when he made visit to the shop of the applicant. It was obligatory on the prosecution to lead the positive evidence in respect of the compliance of Rule 14 of the Rules.
In the present case, the report of the Public Analyst is at Exh. 29. The said report clearly reflect that the sample of ’Moog Dal’ is in conformity with all standards. However, according to the said report, while testing for colour, the Public Analyst detected synthetic colour viz. ’Tartrazine’.
V.M. Deshpande, J.
1. By filing the present Revision Application, the applicant is challenging his conviction and Order of sentence imposed upon him by the learned Chief Judicial Magistrate, Nanded dated 09/04/1999 in R.C.C. No. 579/1998. By the said Judgment, the applicant is convicted for the offence u/s. 7(i), 2(i-a)(a), 7(v) read with Rule 29 punishable u/s.16(1)(a)(ii) and 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 [hereinafter referred as the 'Act' for the sake of brevity]. He was directed by the learned Chief Judicial Magistrate to suffer Simple Imprisonment for six months and pay fine of Rs. 1,000/- [Rupees One Thousand], in default to suffer Simple Imprisonment for one month. The Criminal Appeal No. 35/1999 filed by the applicant to challenge the Judgment and Order passed by the learned Chief Judicial Magistrate, is also dismissed by the learned Additional Sessions Judge, Nanded on 28/03/2003. Hence, the present Revision application. Heard Mr. S.S. Bora, the learned counsel for the applicant and Mr. V.P. Kadam, the learned A.P.P. for the respondent - State in extenso. With their able assistance, I have gone through the record and proceedings.
2. The learned counsel for the applicant did not dispute the fact that the complainant gave visit to the establishment of the applicant by name "M/s. Keshav Kirana and General Stores" situated at Workshop road, Nanded. He has also not disputed that on 17/03/1998, the complainant/Food Inspector purchased 'Moog Dal' for the purpose of sample from the shop of applicant.
3. The learned counsel for the applicant challenged the conviction of the applicant on following 2 grounds - (i) that the complainant has committed breach of Rule 14 of the Prevention of Food Adulteration Rules, 1955 [hereinafter referred as the 'Rules' for the sake of brevity] made under the Act. According to the learned counsel, since the said Rule is mandatory in fraction on the part of the Food Inspector to follow the same, entails his acquittal and (ii) Another submission of the learned counsel is in respect of Rule 28 of the Rules. According to the learned counsel, ' Tartrazine ', a synthetic food colour can be used in the food. In order to substantiate his submission, he has relied on following reported cases -
(1) Suresh Ranghunath Gupte v. Taraknath Rajnarayan Mishra & Anr. 2002 Bom. C.R. (Cri.) 236 : [2001 ALL MR. (Cri) 1996].
(2) State of Maharashtra v. Bhaskar Rajeshwar Gangshettiwar & Ors. 2003 Bom. C.R. (Cri.) 1617 : [2003 ALL MR. (Cri) 1313].
[both reported cases are from Bombay High Court].
(3) State of Gujarat v. Prajapati Amratlal Natvarlal 2008 Cri.L.J. 4065
[Gujarat High Court].
(4) State of Gujarat v. Mukeshkumar Mansukhlal Shah & Ors. 2009 (3) Crimes 259. [Gujarat High Court].
[The aforesaid decisions (3) and (4) were cited by the learned counsel to buttress his submission in respect of Rule 14 of the Rules].
(5) Laxmandas Sarvottamdas Doshi & Co. v. State of Maharashtra 1975 BCI (0) 73.
(6) Delhi Administration v. Amar Chand 2012 (4) Crimes 525
[These 2 cases, (5) and (6), were relied upon by the learned counsel in respect of Rule 28 of the Rules].
4. It is the submission of the learned counsel for the applicant that the evidence of complainant [P.W. 1] is completely silent in respect of the procedure and the manner which he has followed while sending the sample for analysis. He, therefore, submitted that the present Revision Application needs to be allowed.
Per contra, the learned A.P.P. has submitted that both the Courts below have correctly evaluated the evidence brought on record in respect of Rule 14 of the Rules. He submitted that since the findings regarding the conviction of the applicant is based on the available evidence, the present Revision Application needs to be dismissed.
5. For appreciating the rival contentions, let us have a survey of Rule 14 of the Rules. Part V of the Rules deals with sealing, fastening and despatch of samples. The said part opens with Rule 14.
Rule 1
