Case: KISHANRAO BHUJANGRAO BHALERAO Vs. STATE OF MAHARASHTRA AND OTHERS

Criminal Appeal No. 1142 of 2010: 1. This appeal is directed against the judgment and order passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 195 of 1997, dated 23.01.2009. By the impugned judgment and order, the High Court has reversed the judgment of acquittal passed by the Trial Court and has convicted and sentenced the accused persons for the offences punishable Under Sections 7(1), 2(ia), (a) read with Section 16(1)(a) and (ii) and Section 7(i), 2(ia)(m) read with Section 16(1)(ai) of the Prevention of Food Adulteration Act, 1954 (for short, the PFA Act). For the convenient disposal of both the appeals, we will notice the facts of Criminal Appeal No. 1142 of 2010 as the lead case. 2. The brief facts of the prosecution case are that the Accused No. 1-M/s. Saibaba Toddy Company was a partnership firm doing business of selling toddy. The Accused No. 2 was looking after the business of the firm as partner, and Accused No. 3 was a helper working in the firm. On 29.01.1992 at 3:00 p.m. the Food Inspector visited the firms toddy shop, where Accused No. 3 was present, and found 20 crates containing 12 bottles of toddy each. In the presence of Panch witnesses and Accused No. 3, the Food Inspector took 1,500 milliliters of toddy from the shop, and sealed the same in three bottles after adding preservatives. 3. A sample of the seized toddy was sent to the Public Analyst, Aurangabad for analysis. The report of the Public Analyst revealed that there was less quantity of alcohol in the toddy than permissible, and that the toddy was adulterated. The Food Inspector received consent letter to prosecute the accused persons on 14.10.1992, and thereafter filed a complaint against the accused persons before the Court of Chief Judicial Magistrate, Parbhani. 4. Thereafter, the accused persons appeared before the Chief Judicial Magistrate and after both sides were heard, charges were framed. The charges were read over and explained to the accused persons who pleaded not guilty. Accordingly, the case was committed to Trial. 5. In order to substantiate the charges framed against the accused persons, the prosecution examined four witnesses. After the completion of prosecution evidence, the statements of the accused were recorded Under Section 313 of the Code of Criminal Procedure, 1973 (for short, the Code) wherein the accused pleaded innocence and denied all allegations levelled against them. No evidence was led in defence of the accused. 6. Upon a detailed examination of the entire evidence on record, the Chief Judicial Magistrate held that the prosecution had failed to prove its case beyond reasonable doubt. The prosecution had failed to prove whether the Food Inspector had stirred the toddy before taking the sample. If the toddy was not stirred, the samples taken by the Food Inspector would not be representative of the whole bulk, and on that basis serious doubt was cast on the case of the prosecution that the toddy was adulterated. 7. The Chief Judicial Magistrate further held that due to non-examination of the consenting authority, the prosecution had failed to prove that consent for prosecution was duly given in the instant case. Accordingly, the accused persons were liable to be acquitted on the basis of non compliance of the mandatory requirements of Section 20 of the PFA Act. 8. Lastly, the Chief Judicial Magistrate held that the report of the Public Analyst did not reveal the date on which the sample was received or the date on which the analysis was conducted. As per Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (for short, the PFA Rules), the Public Analyst was required to submit his report within 40 days of receipt of sample. The Chief Judicial Magistrate held that compliance with this requirement had not been proved beyond reasonable doubt. Further, the report of the Public Analyst did not reveal that the toddy was injurious to health. For the aforementioned reasons, by judgment and order, the Chief Judicial Magistrate acquitted the accused persons. 9. Being aggrieved by the said judgment and order passed by the Chief Judicial Magistrate, the Respondent-State preferred an appeal before the High Court. Upon careful consideration of the material on record including the judgment of the Chief Judicial Magistrate, the High Court was of the considered view that the Chief Judicial Magistrate had erred in passing an order of acquittal as the guilt of the accused persons was established beyond reasonable doubt. 10. The High Court was of the considered view that the stirring of toddy was not mandated by Rules 17 and 18 of the PFA Rules. Further, the Food Inspector had taken three bottles of toddy that were meant for sale, and therefore were representative of the stock of toddy. Further, the Food Inspector poured the contents of the three bottles into an empty, clean and dry pot, then measured 1,500 milliliters of toddy and poured the same into three bottles. At the time of pouring the contents together, it was reasonable to hold that appropriate mixing of toddy had taken place. 11. On the point of consent, the High Court has held that non examination of the consenting authority did not vitiate the Trial. If the consent order itself was indicative of the application of mind by the consenting authority, there was no need to examine the consenting authority. Further, the Food Inspector had deposed that he had received consent order, and no questions were posed to him during his cross-examination regarding validity of the consent order. Accordingly, the High Court has held that the view taken by the Chief Judicial Magistrate on this point was patently wrong. 12. The High Court was also of the considered view that the requirements of Rule 7(3) of the PFA Rules were duly complied with by the Public Analyst. The report of the Public Analyst revealed that the forwarding letter and sealed sample bottle were received by him on 01.02.1992. The report was dated 06.03.1992, and therefore it was reasonable to conclude that the analysis was conducted between 01.02.1992 and 06.03.1992, which was within the time period prescribed Under Rule 7(3) of the PFA Rules. 13. Lastly, the High Court has held that although the report of the Public Analyst did not reveal that the toddy was injurious to health, it clearly established that the toddy did not conform to the standards prescribed under the PFA Rules, a therefore proved beyond reasonable doubt that the toddy was adulterated. 14. Accordingly, by judgment and order dated 23.01.2009, the High Court has convicted the accused persons for the offences punishable Under Section 7(1), 2(ia), (a) read with Section 16(1)(a) and (ii) and Section 7(i), 2(ia)(m) read with Section 16(1)(ai) of the PFA Act. The High Court has sentenced the Accused No. 1 to pay a fine of Rs. 5,000/-, Accused No. 2 to suffer rigorous imprisonment for one year, and also to pay a fine of Rs. 5,000/-, and in default to suffer rigorous imprisonment for six months, and Accused No. 3 to suffer rigorous imprisonment for six months, and also to pay a fine of Rs. 1,000/-, and in default to suffer rigorous imprisonment for three months. 15. Being aggrieved by the said judgment and order passed by the High Court, the Accused No. 2 is before us in this appeal. 16. We have heard Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 and Shri Mahaling Pandarge, learned Counsel for the Respondent-State. 17. Shri Shivaji M. Jadhav, learned Counsel for the Accused No. 2 would assail the judgment and order passed by the High Court and would submit that the High Court has erred in reversing a well reasoned judgment and order passed by the Chief Judicial Magistrate. Apart from arguing on merits of the case, learned Counsel for the Accused No. 2 would pray for reduction in the sentence. According to the learned Counsel the incident had taken place in the year 1992, and over 23 years have passed since then. Further the Accused No. 2 has shut his shop and has stopped selling toddy, and hence does not pose danger to consumers. Further, the Accused No. 2 is over 60 years of age and is suffering from cancer, and keeping these aspects of the matter in view, the sentence ought to be reduced. 18. Per contra, Shri Mahaling Pandarge, the learned Counsel appearing for the Respondent-State would support the order of conviction and sentence passed by the High Court. 19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court. 20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that: ..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers...

Decision:
0[ds]19. After carefully perusing the entire material on record including the judgments and orders passed by the High Court and the Chief Judicial Magistrate, we are of the considered view that the well reasoned and elaborate judgment and order passed by the High Court needs no interference by this Court.20. Upon considering the serious nature of the offences for which the Accused No. 2 has been convicted, we are not inclined to reduce the sentence ordered by the High Court. We are in complete agreement with the observations of the High Court that:..One cannot be oblivious of the fact that toddy is generally consumed by members of the lower strata of the society. The adulteration in the toddy affects the poor persons including labourers and other economically weaker sections. The toddy vendors are tempted to earn easy money by diluting the extracted toddy with water. It causes reduction in the percentage of alcohol. In other words, by adding water or like fluid, the vendor deceives the gullible customers...27. We have carefully perused the judgment and order passed by the High Court. In our considered view, when an accused person is unrepresented before a Court, it is the duty of the Court to appoint an amicus curiae to assist the accused. Since that has not been done by the High Court in the instant case, we take exception to the judgment and order passed by the High Court.