1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.76 OF 2009 STATE Through Smt. Iva Fernandes, Food Inspector, Department of Food & Drugs Administration, Panaji-Goa. …. Appellant V/s 1. Shri Selvom Athisavem, Mani Mark Sweets, House No.119/3, Karaswada, Mapusa-Goa. 2. Shri Manuel Athisavem, Mani Mark Sweets, House No.119/3, Karaswada, Mapusa-Goa. …. Respondents Mr. C.A. Ferreira, Public Prosecutor for the Appellant. Mr. J.J. Mulgaonkar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 2nd AUGUST, 2010. ORAL JUDGEMENT : 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 2 7/06/2004 at about 4.00p.m. and after disclosing her identity the complainant, after issuing notice in Form VI, purchased three sealed packets containing roasted peanuts of 500gms 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 500gms. Rs.25/- Best before 1 month. Date of Pack. 7 JUN, 2004.” 5. Thereafter, the complainant labelled each packet/part giving a 3 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 4 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 specified on the label of the sample package. In cross-examination she stated that the label which was on the sample was retained in the office of Foods and Drugs Administration and she could produce it, if required. She denied the suggestion that she had falsely stated that the label of the sample package did not carry the details required as per law. The defence did not seek production of the said label. 7. Be that as it may, the learned JMFC ('Magistrate', for short), by the impugned judgment/order concluded that the complainant had failed to prove that the articles seized from the shop were misbranded nor there was evidence to show that the same were adulterated. The learned 5 Magistrate further observed that the complainant had not followed the procedure properly when taking the sample nor had obtained the sanction as required and, therefore, the benefit of this had to go to the accused. 8. The learned Magistrate did not at all consider that the complainant had produced the sanction order dated 16/09/2004 at Exhibit PW1/H issued by the Director, Foods and Drugs Administration. The learned Magistrate also did not spell out which was the procedure which was not followed by the Food Inspector nor examined the matter in detail as to find out whether the seized packets were misbranded or not. 9. Section 2(ix) of the Act defines the expression “misbranded” and it states that an article of food shall be deemed to be misbranded - (a) …if it is an imitation of.... (b) … (c) … (d) … (e) … (f) … (g) … (h) … (i) … (j) … (k) if it not labelled in accordance with the requirements of this Act or rules made thereunder; Rule 32 of the Rules of 1955 deals with what a package of food is to have on a label and the label, inter alia, is required to have: (a) the name, trade name or description of food contained in the package; 6 (b) the names of ingredients used in the product in descending order of their composition by weight or volume as the case may be : Provided that in the case of artificial flavouring substances, the label may not declare the chemical names of the flavours, but in the case of natural flavouring substances or nature-identical flavouring substances, the common name of flavours shall be mentioned on the label. In case of all vegetarian foods, it requires a declaration, to be made by a symbol and colour code so stipulated for this purpose to indicate that the product is Vegetarian Food. The symbol shall consist of a green colour filled circle, having a diameter not less than the minimum size specified in the Table given below, inside the square with green outline having side double the diameter of the circle, as indicated in clause (17) of sub-rule (ZZZ) of rule 42. It also requires to have a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words “Batch No., or Batch, or Lot No., or Lot or any distinguished prefix. The type of symbol is indicated by ZZZ(17) of Rule 42 In other words, these requirements have been set out in Rule 32 (a) and (e) of the said Rules of 1955. 10. Admittedly, as can be seen from the contents of the label reproduced by the complainant as well as the Public Analyst, the label which was found in the sealed packet did not have the colour code indicating whether it was vegetarian food. It did not have batch number or code number either in numericals or alphabets or in combination of both representing the batch number or lot number, as required by clauses (a) and (e) which are applicable in case of all vegetarian foods. 7 11. Shri Ferreira, the learned Public Prosecutor on behalf of the complainant submits that the label which was found in the purchased roasted peanuts did not contain the requirements as contemplated by Rule 32, particularly, clauses (a) and (e) and, therefore, had to be considered as misbranded in the light of the definition given in Section 2 (ix)(k) of the Act. Learned Public Prosecutor submits that notice was given to accused no.1 in Form VI and the other procedure prescribed was meticulously followed by the complainant. Learned Public Prosecutor submits that the learned trial Magistrate has acquitted the accused without application of mind to the facts of the case. In other words, learned Public Prosecutor submits that what was required to be declared on the label in terms of Rule 32 of the said Rules was not declared by the accused on the label contained in the seized articles. Therefore, the learned Magistrate ought to have convicted the accused for selling misbranded article of food. 12. Shri Mulgaonkar, the learned Counsel appearing on behalf of the accused submits that the complainant did not produce the label to find out as to what exactly the label contained. The learned Counsel further submits that the panchanama was not supported by the panch witness and, therefore, it cannot be said that the complainant had followed the prescribed procedure. Learned Counsel further submits that the sanction order discloses non application of mind and in this regard learned 8 Counsel has placed reliance on Mysore Structurals Ltd. & Ors. V/s. State of Karnataka & Anr. (2002 (1) SCC 477) wherein it was observed as follows; It is true that the authorities while granting sanction for prosecution should take into account all material facts, which are relevant for the purpose of such decision. This Court in Feroz Din & Ors. vs. State of West Bengal (AIR 1960 SC 363), relying on an earlier decision reported in Gokulchand Dwarakadas vs. The King 75 Indian Appeals 30 = AIR 1948 PC 82, held as under : “The Judicial Committee in the case above mentioned itself observed that the sanction would be good if it was proved by the evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though these facts might not have been stated on the face of the sanction itself. It therefore seems to us that the sanction in the present case is unobjectionable.” 13. Reliance is also placed by Shri Mulgaonkar on State of Maharashtra V/s. Pravin Varjang Gala (1999 (1) Mah. L.R. 138). Learned Counsel submits that the learned Magistrate has acquitted the accused on a probable view of the matter and, therefore, in an appeal against acquittal this Court ought not to interfere with the said view and in support of this submission, learned Counsel has placed reliance on Sambhaji Hindurao Deshmukh & Ors. V/s. State of Maharashtra (2008 (11) SCC 186). 14. I have perused the evidence led by the complainant in support of the case with the assistance of the learned Counsel. It is well settled 9 that the appellate Court can review the evidence in appeal against acquittal and that power of review is as extensive as the power to review the evidence in appeal against conviction. First, I will deal with the sanction regarding which there is no discussion at all. The sanction was produced at Exhibit PW1/H. The said sanction on the very face of it shows that it has been granted after application of mind by the sanctioning authority. This is evident from the observations of the sanctioning authority made in the sanction order. It is stated by the sanctioning authority that the sample of roasted peanuts was adulterated in terms of Section 2(i)(a)(j) and misbranded under Section 2(ix)(j)(k) of the Prevention of Food Adulteration Act, 1954 r/w Rules 28, 29 & 32 of the Prevention of Food Adulteration Rules, 1955. The order also mentions that the sanctioning authority had perused the relevant file along with copies of the notice in Form VI, copy of Panchanama, copy of memorandum in Form VII, report of the Public Analyst, etc. In the circumstances, therefore, the submission that the sanction was given without application of mind has got to be rejected. 15. The evidence given by the complainant is consistent with the complaint and is supported by the version of the Public Analyst, both of whom have taken note of what the label contained. No requirement of law has been brought to my notice that the complainant was required to produce the label found on the packet of the food articles nor there can 10 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 overboard. 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. 16. It is to be noted that the complainant as well as the Public Analyst are public servants. They have no axe to grind against the accused other than to perform their public duty. The Apex Court in the case of Prem Ballab & Anr. V/s. The State (Delhi Admn.) (AIR 1977 SC 56) has observed that there is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, 11 it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses. The panch witness, in this case was won over by the accused. The Apex Court has again in State of U.P. V/s. Hanif (1992 Cri.L.J. 1429) observed that it is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector if not inherently suspected, is not to be rejected on that ground. The Court observed that the Food Inspector discharges a public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable the court would be entitled to accept and rely on, to prove prosecution case. 17. To conclude, there is no reason why the evidence of the complainant and the public analyst was not to be accepted. I find that the evidence of both is convincing, consistent and reliable. Their evidence shows that the label found on the article 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 vegetarian food as set out in clauses (a) and (e) of Rule 32 of the Rules of 1955 and, therefore, the articles sold had 12 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 31/03/2009 of the learned Magistrate is hereby set aside and both the accused convicted under Section 16(1)(a) (i) r/w Section 2(ix)(k) r/w Section 7(ii) of the Act of 1954 r/w Rule 32 of the Rules of 1955. DATE : 3rd August, 2010 18. Heard Shri Mulgaonkar, the learned Counsel on behalf of the accused as well as Shri Ferreira, the learned Public Prosecutor, on sentence. 19. Shri Mulgaonkar submits that A1 is the son of A2 and that the offence is only technical in nature. In fact it appears that accused no.1 is prosecuted as a vendor of the article sold and accused no. 2 as the owner of the establishment. Learned Counsel further submits that they are the only earning members of the family and since they were having only a peanut business of roasting peanuts and selling the same, a lenient view be taken. Learned Public Prosecutor submits that both the accused are liable to be punished with minimum punishment which is compulsory. 20. The offence committed by the accused is punishable under 13 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-section (k) of clause (ix) of Section 2 or if the offence is under sub-section (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. 21. Shri Mulgaonkar submits that the offence committed by the accused being technical, the accused be let off on probation. This submission cannot be accepted in view of Section 20AA of the Act of 1954 which excludes probation. 22. The accused appear to be small time businessmen. They carry on peanut business both literally and figuratively. There is no previous criminal record against them. The “Zilebis” manufactured by them were found not to be adulterated and that must be said of the roasted peanuts 14 manufactured by them. The labels have been found in the packed articles, but they only did not confirm with the requirements of Rule 32 and this in my view could be adequate and special reason to impose on the accused the minimum sentence of 3 months and fine of Rs.2,500/-, each, in default, to undergo one month S.I. Although a case of this nature ought to have ended with admonition given to the accused, the Court is left with no other option but to impose the minimum sentence prescribed. Cases like this, for the first time ought to have been dealt with, by advice by the Food Inspector to comply with the provisions of the Rules and only in case the advice was not followed, to file a complaint, next. The punishment being imposed appears to be disproportionate to the offence committed by the accused, but as already stated the Court has no other option but to impose the minimum sentence. The Apex Court in Inderjeet Vs. State ( AIR 1979 SC 1867) had this to say: “We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders. Petty victuallers and big sharks operate on society in different degrees and draconian equality will be tempered by flexible policy” “We feel constrained to state that public authorities entrusted with the enforcement of regulatory provisions to protect society may, in proper cases, examine those prosecutions which are harassments to the humbler folk even if they technically violate the law and cause only minimal harm to society and decide whether they should at all sanction their prosecution.” “Even otherwise, there is a general power in the executive to commute sentences and such power can be put into action on a principled basis when small men get caught 15 by the law.” 23. In the light of what has been stated herein above, both the accused are hereby sentenced under Section 16(1)(a)(i) r/w Section 2(ix) (k) r/w Section 7(ii) of the Act r/w 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 SI. 24. Counsel on behalf of the accused prays for suspension of the sentence for a period of 6 weeks to enable him to file an appeal. Granted as prayed for. The sentence not be executed for a period of 6 weeks. N.A. BRITTO, J. NH/-