1 REVN 348.10 Judg..sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL REVN. APPLICATION NO. 348 OF 2010 WITH CRIMINAL APPLICATION NO. 217 OF 2010 WITH CRIMINAL REVN. APPLICATION NO. 349 OF 2010 WITH CRIMINAL APPLICATION NO. 218 OF 2010 WITH CRIMINAL REVN. APPLICATION NO. 350 OF 2010 WITH CRIMINAL APPLICATION NO. 219 OF 2010 Mr. Sidram Neelappa Helkar. ... Applicant. V/s. The State of Maharashtra. ... Respondents. Mr. Rajiv Patil i/b. Mr. Anand S. Kulkarni for the Applicant. Mrs. M.M. Deshmukh, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 18th OCTOBER 2011. P.C. :- Heard. Rule made returnable forthwith. Learned APP waives service of the Rule. Heard finally. 2. These three Revisions raise common question of law and based on identical facts, heard together and disposed of by a 2 REVN 348.10 Judg..sxw common order. The Applicant has approached this Court under Section 401 of Cr.P.C. 3. On 2nd May 2002 at 5.00 p.m., the Complainant Ganpat as a Food Inspector alongwith panch witnesses visited business premises of the Revision Applicant. The Applicant was conducting business activities of manufacturing cold drinks such as lime, cola and beverages and selling the same. Visiting report was prepared by the Complainant. Signature of the Revision Applicant was taken on copy of Form No.6 and also on the notice under Section 14(a) of the Prevention of Food Adulteration Act, 1954. Complainant purchased six bottles of lime, cola and orange at the rate of Rs.7.00 per bottle and paid Rs.42.00 total Rs.126.00 was paid. After the samples in terms of Section 11 of the Prevention of Adulteration Act, 1954 and Rule thereunder, the seized sample bottles were sent to the Local Health Authority at Solapur. He handed over one bottle to the Revision Applicant and one bottle to the Public Analyst for analysis and report. Having received the report on 27.10.2002, the papers were placed before the Joint Commissioner, Pune through proper channel and sanction in terms of Section 20 of the said Act 3 REVN 348.10 Judg..sxw was granted. On 28.10.2002, the complaint being Regular Criminal Case No.951 of 2002 was moved against the Revision Applicant before the learned Chief Judicial Magistrate at Solapur. Simultaneously, complaint being Regular Criminal Case No.950 of 2002 and Criminal Case No.949 of 2002 was submitted before the same Judge. The Revision Applicant was put to trial. His defence was of total denial. Four witnesses were examined by the prosecution in both the cases and the learned Judge, by order dated 30th April 2002 found the Revision Applicant to be guilty for an offence punishable under Section 7(i) r/w. 2(ia)(a) and 2(ia)(m) of Prevention of Food Adulteration Act, 1954 and also under Section 7(v) Rule 32(f) (i) of the said Act. The Revision Applicant was directed to undergo R.I. for six months and to pay fine of Rs.500/- in default to suffer S.I. for 15 days. The sample packets were directed to be disposed off. Likewise, in another Case Nos. 950 of 2002 and 949 of 2002, the learned Chief Judicial Magistrate by the order dated 30.4.2005 convicted the Revision Applicant for the offence punishable under Section 248(2) of Cr.P.C. of the offences punishable under Sections 7(i) r/w. 2(ia)(a), 2(ia)(a) of Prevention of Food Adulteration Act, 4 REVN 348.10 Judg..sxw 1954 and to suffer sentence for six months and pay fine of Rs. 500/- in default to suffer S.I. for 15 days. 4. The learned Additional Ad-hoc Sessions Judge at Solapur dismissed Criminal Appeal Nos.21 of 2005, 22 of 2005 and 23 of 2005, by order dated 15th July 2010 and directed the Revision Applicant to surrender his bail bond. These orders are questioned by the Revision Applicant. 5. Mr. Patil, learned Counsel for the Revision Applicant criticized the conviction on the ground that the panch did not support a prosecution question. The learned Judge should not have believed the receipt purportedly issued by the Revision Applicant for sale of the questioned bottles of the beverages. The Revision Applicant never sold carbonated water to the Complainant. The Complainant had taken three samples of lime, three of cola and three of orange. According to Mr. Patil, there is no other evidence except the receipt purportedly written by the Food Inspector and signed by the Complainant. The Complainant did not carry a kit. The seized samples were sent on next day and a report is received after six months. The seizure is 2nd May 2002 while the report is belatedly given 5 REVN 348.10 Judg..sxw on 06.06.2002. The learned Counsel criticized evidence of PW-3 - Public Analyst, as requisite procedure was not followed at the time of seizure of the samples. Evidence is not properly discussed. The basic feature in the matter is whether the Revision Applicant has sold the sample articles or he is the manufacturer of these articles. Evidence of Complainant should not have been relied in toto. 6. At the instance of learned Counsel, the paper-book furnished by him was scanned including the evidence of the respective witnesses. The evidence illustrate that it was the Revision Applicant, who wrote in the receipt that the samples contained carbonated beverages. He did not dispute the nature of the water which he purportedly sold to the Public Analyst. In this situation of the matter, it could not have been said that the water under the banner of lime or cola or orange sold by the Revision Applicant could be only a coloured water without describing it to a carbonated beverages. 7. The evidence of PW-1 Kokane illustrate that the Revision Applicant was present at the time of the visit and even during the samples packets collected from the lot manufactured by 6 REVN 348.10 Judg..sxw the Revision Applicant. The notice issued to Revision Applicant under Section 14(a) of Prevention of Food Adulteration Act is at Exhibit 18. The Revision Applicant mentioned that he was manufacturing lime, cola and orange. This was in Marathi and acknowledged by the Revision Applicant. He did not dispute that the samples were not collected from him. He, under his signature informed the date to be 2nd May 2002. The Revision Applicant could not establish that these Exhibits 18 and 16 in the respective cases were under duress or pressure or that he did not sign or that they were blank when they were signed. He also does not dispute that total amount of Rs.126/- for sale of the six samples each in the three cases was received by him, for which receipt was issued. Alongwith Form No.7, one part of the sealed samples of lime, cola and orange was sent to a Public Analyst at Solapur, in turn on analyst, sent report on 6.6.2002 (Exhibit 25) and report of Local Health Authority is also at Exhibit 26. The Revision Applicant, in his reply at Exhibit 30, informed, he had licence for cold drinks collection, distribution and sell which was in vogue in 31.12.2002. The Revision Applicant did not dispute that it was his proprietary 7 REVN 348.10 Judg..sxw concern. 8. The another contention raised by the Revision Applicant before the Courts was, he has not manufactured these items, simply purchased it from agent for other distributors. However, such stand, is not established as was expected from the Revision Applicant. This ground is not pressed into before this Court. 9. The sample packets on analysis were found to be not in conformity to the requisite of total plate counts per ml., coliform count and yeast and mould count per ml. 10. PW-2 Vithal Gambhire failed to support prosecution case. However, for that reason alone, acquittal could not have been recorded. The evidence of the Complainant cannot be dis- believed as he was discharging his official duties as a Public Officer and that apart, the Complainant had purchased the bottle after releasing Rs.126/- to the Revision Applicant, for which, a valid receipt was acknowledged by the Revision Applicant, which has not ever been disputed. The Revision Applicant as stated earlier gave in writing of manufacturing the beverages at his unit. The beverages were for sale. 8 REVN 348.10 Judg..sxw 11. The legal position concerning appreciation of evidence is indicated by Hon’ble Supreme Court. The Hon’ble Supreme Court, in the matter of Brahma Swaroop v/s. State of U.P. Reported in 6 SCC 288 at paragraph 32 observed as under :- “32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the court to reject the evidence in its entirety, “irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and shifting through the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.” 9 REVN 348.10 Judg..sxw 12. On re-appreciating the facts, the learned Ad-hoc Additional Sessions Judge, Solapur did not find any error in recording the conviction. 13. Though scope of Revision under Section 401 of Cr.P.C. is limited, however, the evidence was again scan and on analysis thereof, I do not see that there is any failure of justice to assimilate and assess the evidence in proper form or that the learned Judge gave unnecessary reliance to the evidence of the Complainant or the receipt issued by the Revision Applicant. The requisite formalities under the Rule of the Prevention of Food Adulteration Act, 1954 and are strictly adhered to. The C.A. report also rebells against the Revision Applicant as the contents of the sample are not in conformity to carbonated water. 14. Criminal Revision Applications dismissed. Rule discharged. However, the sentence against the Revision Applicant in all the cases to run concurrently. The Revision Applicant to surrender to his bail bonds before the learned Judicial Magistrate, First Class, Solapur. 10 REVN 348.10 Judg..sxw 15. Criminal Appln. No.217 of 2011 in Criminal Revn. Appln. No. 348 of 2011, Criminal Appln. No.218 of 2011 in Criminal Revn. Appln. No.349 of 2011 and Criminal Appln. No. 219 of 2011 in Criminal Revn. Appln. No.350 of 2011 are disposed off. Heard. Order is stayed for a period of two months. (K.U. CHANDIWAL,J.)