1 cra264.00 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 264 OF 2000 1 The Maharashtra Government, through Mr. G.B.Gore, Food Inspector, Nanded, through Asstt. Commissioner, Food & Drugs Administration, M.S., Nanded ...Appellant [Original Complainant] VERSUS 1 Shri Rajaram Digamber Padamwar, age 48 yrs., (Seller/Owner), M/s Rajaram Shankar Padamwar, Grocery Merchant, Shivaji Chowk, Kandhar, Dist. Nanded, 2 Mohammad SalimHaji Harun, (Owner) M/s M.S.Food Products Plot No. 25, MIDC, Nanded ...Respondents [Original Accused] ..... Shri V.D.Rakh, A.P.P. for the appellant Shri P.V.Mandlik, Senior Counsel i/by Shri A.S.Gandhi, advocate for the respondents ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 09.03.2011 DATE OF PRONOUNCING THE JUDGMENT : 08.04.2011 2 cra264.00 J U D G M E N T : - 1 This appeal is directed against the judgment and order of acquittal, dated 14.3.2000, rendered by the Judicial Magistrate, First Class, Kandhar, in R.C.C. No. 284 of 1995, thereby acquitting the respondent no.1 i.e. original accused no.1-Rajaram Digamber Padamwar for the offences under Section 7(1) r/w Section 2(ia)(a) punishable under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as, ‘the said Act’) and also acquitting respondent no.2 i.e. original accused 2-Mohammad Salim Haji Harun for committing breach of provision of Section 7(v) of the said Act and Rule of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as, ‘the said Rules’) punishable under Section 16(1)(a)(i) of the said Act. 2 Briefly stated, the case of the prosecution is as follows :- It is alleged that on 27.4.1994 at about 12.45 p.m., accused no.1 sold the packets of adulterated turmeric powder of ‘Taja Brand’ to PW1 Food Inspector M.S.Patil at Kandhar and after verification of chemical analysis thereof, the said turmeric power 3 cra264.00 found to be adulterated, and as such thereby accused no.1 has contravened the provisions of Section 7(1) r/w Section 2(ia)(a) and thereby committed an offence punishable under Section 16(1)(a)(ii) of the said Act. It is also alleged that respondent no.2 i.e. accused no.2 has manufactured the said adulterated turmeric power and distributed and sold it in packets in the market, more particularly through respondent no.1 and contravened the provisions under Section 7(v) of the said Act and Rule 44-H of the said Rules punishable under Section 16(1)(a)(i) of the said Act. Accordingly, the allegations against accused no.1 are in respect of storage and selling of adulterated turmeric powder of Taja Brand and the allegation against respondent no.2 is that he is the manufacturer of the adulterated turmeric powder of ‘Taja Brand’, and therefore, they have committed the offences as afore stated. 3 Moreover, the complainant Food Inspector i.e. PW2 G.B.More is claimed to have sent all the papers to the Joint Commissioner, Food & Drugs Administration, Aurangabad under Section 20 of the Act and obtained the consent through the Assistant Commissioner, Food and Drugs Administration, Nanded for filing criminal case against the accused persons, and accordingly, complaint was filed against the accused before the court on 16.10.1995. It was registered as R.C.C. No. 284 of 1995. The said 4 cra264.00 complaint discloses the name of the witnesses, such as (1) M.S.Patil, Food Inspector, Food and Drugs Administration, Buldhana; (2) Milind Suryakant Mahajan, r/o Shivaji Chowk, Kandhar; (3) G.G.Joshi, Assistant Commissioner, Food and Drugs Administration, M.S., Nanded; and (4) S.B.Kamble, Public Analyst, District Health Laboratory, Nanded. Thereafter, summons came to be issued against the accused persons and they appeared in the case. Thereafter, evidence before charge was recorded before the court and the prosecution examined in all two witnesses and the Trial Court framed the charge against the accused at Exh. 63 on 13.7.1998. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 4 To substantiate the charges levelled against the accused and to prove the guilt against them, the prosecution examined in as much as five witnesses, as mentioned below :- PW1 Madhukar Sopan Patil, Food Inspector PW2 Gulab Babaraoji Gore, Food Inspector, complainant PW3 Subhash Balkishan Kamble, Junior Scientific Officer, Public Analysis, Solapur. PW4 Milind Suryakant Mahajan, panch witness in respect 5 cra264.00 of panchanama Exh. 29 PW5 Gajanan Govind Joshi, Assistant Commissioner, Food and Drugs Administration, Nanded 5 The defence of the accused is of total denial, which was reflected through the cross-examination and their statements under Section 313 of the Code of Criminal Procedure. After scrutinizing and assessing the oral and documentary evidence on record and considering the rival submissions advanced by the learned counsel for the parties, the Trial Court acquitted respondent nos. 1 and 2 from the charges levelled against them, by judgment and order, dated 14.3.2000. 6 Being aggrieved and dissatisfied by the afore said judgment and order of acquittal, the appellant/State has preferred the present appeal praying for the quashment thereof. 7 Before adverting the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize the material oral and documentary evidence, adduced and produced by the prosecution, and in the said context, at the out set, coming to the deposition of PW1 Madhukar Sopan Patil, Food Inspector, he stated that on 27.4.1994 at 12.45 p.m. he visited the provision shop of M/s 6 cra264.00 Rajaram Shankar Padamwar, Shivaji Chowk, Kandhar along with his assistant and PW4 panch Milind Mahajan and disclosed his identity to the shop keeper and ensured about the owner of the shop and the said shop keeper stated that he himself was the owner of the shop and thereupon he showed the licence and PW1 Madhukar Patil noted the facts of the licence in his note sheets, which are produced at Exh. 25 and copy thereof bearing signature of panch was given to the said shop keeper i.e. accused no.1. PW1 Patil also stated that he noticed that there were 60 packets of chilly powder manufactured by Janta Seva Mirch Masaley and each packet contained 50 gms. chilly powder. There were about 100 packets of turmeric powder produced by M.S.Food Product, Nanded under the name and style as, ‘Taja’, and each packet contained 50 grms. turmeric powder, having batch no. 16 and manufacturing date of March, 1994 and the maximum retail price printed on each packet was Rs.2/-, as well as name and address of the manufacturer was printed thereon. 8 PW1 Patil stated to accused no.1 that he intended to purchase 12 packets of chilly powder as well as 12 packets of turmeric powder for analysis, and accordingly, accused no.1 sold him 12 packets of chilly powder and 12 packets of turmeric powder, respectively, and PW1 paid price thereof and accused no.1 issued bill about the purchased goods and said bill is produced at Exh.26. 7 cra264.00 Thereafter PW1 Patil issued notice under Section 14-A of the Act to accused no.1 with intention to collect the information from whom he has purchased the said goods. Thereupon, accused no.1 stated that he did not possess the bills of purchased goods, but he assured that he would produce the original bill in his office and the office copy of the said notice is produced at Exh.27. PW1 issued notice under Form No.6 informing accused no.1 that he purchased the above goods for analysis as required under the said Act and produced the office copy thereof at Exh.28. He also stamped the specimen of seal which was utilized for purchase of packets of chilly powder and turmeric powder. 9 The purchased chilly powder was found to be of standard quality during analysis. 10 As regards the turmeric powder, PW1 Patil stated that he divided 12 purchased packets of turmeric powder in equal three parts and packed four packets in dry clean and empty plastic pack and prepared three samples accordingly, which were labelled with the signatures of panch witness and signature of PW1 Patil and sealed as per the usual procedure and panchanama of the afore said things was prepared on the spot and the said packets were seized thereunder. The signature of accused no.1 was obtained thereon and 8 cra264.00 PW1 Patil also signed thereon and carbon copy of the panchanama was supplied to accused no.1 and the said panchanama is produced at Exh. 29. Thereafter, PW1 Patil sent one sealed packet along with copy of Form No. 7 in a seal packet to the Public Analyst, Public Health Laboratory, Nanded on 28.4.1994 by hand delivery, and produced the office copy of Form No. 7 at Exh. 30. On 28.4.1994, he sent copy of Form No. 7 along with specimen impression of seal used to seal the sample and covering letter to the Public Analyst, Nanded and produced the office copy of letter at Exh. 31. He also sent the remaining two parts of the sample along with two copies of Form No. 7 along with the covering letter to the Local Health Authority-Assistant Commissioner, Food and Drugs Administration, Nanded, and produced copy thereof at Exh. 32. He also sent specimen impression of a seal used for the seal of samples along with covering letter to Local Health Authority, Food and Drugs Administration, Nanded in a separate seal packet on 28.4.1994 and produced office copy thereof at Exh. 33. 11 Accordingly, PW1 Patil stated that he received the samples at Exhs. 34 and 35 and also received receipts from the Local Health Authority about the receipt of sample, which are produced at Exhs. 36 and 37. Thereafter, since he was transferred, he handed over the charge and the documents and papers to Shri 9 cra264.00 Umrani, Food Inspector, Nanded. 12 During cross-examination, he stated that he does not remember whether he has taken samples from other shop keepers. He also stated that he called only one panch witness and accused no.1 was present in the shop and he purchased samples simultaneously i.e. chilly powder manufactured by Janta Seva Micha Masalla and turmeric powder manufactured by M/s Food Products under ‘Taja’ brand. He stated that he purchased 12 packets of turmeric powder each containing 50 gram. turmeric powder, which was kept on a rack by the accused and which was personally delivered by accused no.1 and said packets were packed as it is and there was no leakage and same were shown to PW4 panch Milind Mahajan. 13 Moreover, he stated that he has not mentioned on every form that he narrated the contents of form in Marathi to accused no. 1. He further stated that he kept four turmeric powder packets in another polythene bag as it is. So also, he kept other packets in another polythene bag in three sets thereof, since he possessed polythene bags for packing the samples officially. It is stated in the panchanama that samples were packed in a clean and dry polythene bags. Hence, suggestion was given to him that the polythene bags 10 cra264.00 which were possessed by him were not clean and dry, but he denied the same. He further stated that he drew the panchanama after sealing of the purchased articles and returned to Nanded on the same day and deposited the samples at Public Health Authority, Nanded. He also stated that he deposited duplicate copy of Form No. 7 along with specimen signature in the office of Public Analysis, Nanded separately and obtained the receipt of deposit of samples and deposit of specimen seal separately. The suggestion was given to him that the analysis report issued by the Public Analyst is false, but same was denied by him. PW1 Patil admitted that accused no.1 never submitted the bill of purchased goods of turmeric powder before him. 14 Coming to the deposition of PW2 Gulab Babaraoji Gore complainant, who stated that he was working as Food Inspector at Nanded since 1994 and received the case papers from Food Inspector Umrani in a charge on 4.8.1994 and demanded the original bill of turmeric powder purchased by accused no.1 from accused no.2. Accordingly, the accused produced original bill dated 22.4.1994, which is marked Exh. 40. Thereafter, he stated that notice was issued to accused no.2 reflecting the fact that sample of turmeric powder was collected from accused no.1 for analysis, which was supplied by accused no.2 and copy of the said notice is 11 cra264.00 produced at Exh. 41. He also stated that he sent copy of Form No. 6, dated 27.4.1994 to accused no. 2 along with notice dated 20.5.1994 and same was served upon him and he produced the acknowledgment thereof at Exh. 42. He further stated that he perused the analysis report dated 30.5.1994 and found that the sample analysed was of substandard and the said analysis report is produced at Exh. 43. 15 He also deposed that he received letters about collection of information from Licensing Authorities in respect of issuance of license to accused no.1, which are produced at Exhs. 44 and 45. Moreover, additional information was demanded from accused nos. 1 and 2 through letters and office copies thereof are produced at Exhs. 46 and 47. Accordingly, accused no.1 submitted his information on 16.7.1994 and same is produced at Exh. 48. Moreover, accused no. 1 also produced photo copy of renewal of his license. Besides, the Licensing Authorities also supplied the information about accused nos. 1 and 2, which are produced at Exhs. 49 and 50. He further stated that he submitted his report and sought permission for filing complaint against accused nos. 1 and 2 from the Joint Commissioner, Food and Drugs Administration, Aurangabad. Accordingly, he received the consent letter to file complaint against accused nos. 1 and 2 on 14.8.1995, which is produced at Exh. 51. 12 cra264.00 Pursuant to the said consent letter, he lodged the complaint against accused nos. 1 and 2 on 16.10.1995. He also stated that he issued notices under Section 13 (2) of the said Act to the Local Authority. 16 During cross-examination, he stated that he perused the public analysis report and percentage of rice starch is not shown in the said report. Hence, he volunteered that there is no need to mention exact percentage of rice starch as per Rule 44-H of the said Rules. He also admitted that he has not sent notice as required under Section 13 (2) of the said Act to the accused. He also stated that he does not know as to whether the said notice was served upon the accused. 17 That takes me to the deposition of PW4 Milind Suryakant Mahajan, who deposed that on 27.4.1994, PW1 M.S.Patil, Food Inspector called him to act as Panch at the shop of accused no.1 Rajaram, and PW1 M.S.Patil purchased 12 packets of turmeric powder weighing each of 50 grams and same were divided into three parts. He also stated that same were packed in brown paper and Food Inspector prepared three packings thereof and sealed the same with the help of wax and thread. He also stated that said Food Inspector might have paid Rs.25/- for the said packets. He further stated that the Food Inspector obtained his signature and 13 cra264.00 panchanama was shown to him and he further stated that the contents thereof were read over to him and he admitted it to be true, which was marked Exh. 29. He also identified accused Rajaram before the court. 18 In cross-examination, he stated that he perused the packing of sample as well as personally verified the packets of turmeric powder purchased by the Food Inspector and same were packed in a plastic bag and brand thereof was, 'Taj Brand' and seal thereof were in tact. He further stated that accused no.1 informed the Food Inspector that the Company has supplied the packings of turmeric powder to him and he sold it in retail as it is. He admitted that he did not notice the fact of breaking of seal of packets of turmeric powder. He also stated that the Food Inspector prepared packings of each sample before him. Hence suggestion was given to him that the Food Inspector prepared the panchanama for samples before his arrival, but same was denied by him. 19 Turning to the deposition of PW3 Subhash Balkishan Kamble, Junior Scientific Officer, Public Analyst's Office, Solapur, who stated that he was posted at Nanded office from November 1993 till December, 1997 and on 28.4.1994 he received sample of turmeric powder and duplicate copy of Form No.7 along with 14 cra264.00 specimen seal from PW1 M.S.Patil. He stated that he tallied the specimen seal with the seal affixed on the container and found that sample was fit for analysis. Thereafter he got analysed the turmeric powder from the Chemist, namely P.B.Halkunde in their Laboratory and they noticed rice starch and common salt in turmeric powder. However, they found that there was salt of 2.31 per cent adulterated in turmeric powder. However, he could not calculate the exact percentage of adulterated rice starch and stated that there is no specific method to find out percentage of rice starch if adulterated in turmeric powder. Accordingly, he prepared the analysis report and prepared four copies thereof and sent the same to the office of Food and Drugs Inspector, Nanded and copy thereof is produced at Exh. 43. He further stated that adulteration of any foreign substance in turmeric powder is prescribed under Rule 44 (H) of the said Rules, as well as he stated that he found that the analysed sample was adulterated one. 20 During cross-examination he admitted that he analysed the sample after 14 days of its receipt, but till then the said sample was kept in the custody of Chemist. He also stated that he possessed the form on which the result of analysis of sample is noticed. However, he could not state as to whether it is mentioned on the form of analysis that samples analysed were found in tact before 15 cra264.00 its analysis. As regards analysis, he stated that he opened the sample on 28.4.1994 and found four packets of turmeric powder packed in a container, and thereafter he handed over two packets out of four for analysis purpose. Accordingly, he received its report from Chemist on 11.5.1994, but he could not state on which date which chemical test was completed. As regards the said reports, he stated that the same were upto the permitted level except starch test and the turmeric powder contained starch. He also stated that microscopic test was carried out in this particular case and same was mentioned in the report. He further stated that he noticed kinds of rice starch and turmeric powder under the microscope, but stated that they did not conduct any other chemical test to bifurcate the rice starch and turmeric powder. He further stated that on the basis of results, test report was submitted by the Chemist. However, he could not state how much other samples were analysed by the Chemist during the analysis of turmeric sample simultaneously. Hence, suggestion was given to him that there was possibility of adulteration of foreign substance in their laboratory, but same was denied by him. Suggestions were also given to him that there was mistake on the part of the Chemist at the time of analysis of sample and the said Chemist analysed the sample negligently, but same were denied by him. 16 cra264.00 21 That takes me to the testimony of PW5 Gajanan Govind Joshi, Investigating Officer, who was serving as Assistant Commissioner, Food and Drugs Administration, Nanded at the relevant time i.e. on 26.7.1993 and PW1 M.S.Patil was working as Food Inspector in his office. He stated that PW1 M.S.Patil, Food Inspector handed over two sealed packets to him on 28.4.1994 and in one packet out of the same, there were two sealed counter parts of the samples taken, and in addition to that there were two copies of Form No.7; whereas in the second packet, two specimen seal impressions of the seal used for sampling and a covering letter were found. He further stated that after receipt of the above two packets from M.S.Patil, Food Inspector, he gave two separate receipts on the same day i.e. 28.4.1994 and said receipts are produced at Exhs. 36 and 37, respectively. He admitted that the said receipts bear his signatures. 22 It is recited in his deposition that the Public Analyst, Nanded had given a report on 30.5.1994, but it does not reflect what was sent to Public Analyst, District Health Laboratory and it was received on 3.6.1994 and one of the copies of the said report was handed over to the Food Inspector Patil and copy thereof is produced at Exh.43. Moreover, original report was also filed before the court, which bore his signature and date, which is marked Exh. 17 cra264.00 88. Thereafter the Food Inspector communicated him in respect of filing of present case against the accused on 17.10.1995, which is produced along with list Exh. 85 at Sr. No. 4, and which is marked Exh.89, which bore the signature of Food Inspector Gore and his signature in token of receipt thereof. Accordingly, an intimation was given to the accused in respect of filing of case against them in the court by letter dated 18.10.1995 and the said letter/notice, along with copy of the report of Public Analyst, District Health Laboratory, was sent by R.P.A.D., as well as separate letter was sent to each of the accused and office copy thereof dated 18.1.1995 is filed by him on record, which is marked Exh.90. He also produced postal receipts of R.P.A.D. showing that the said letters were sent to the accused by R.P.A.D. and marked Exh.91. The said letter was received by accused no.1 and his postal acknowledgment is produced on record and marked Exh.92. However, the letter sent to accused no.2 was returned back without service to him and same is produced on record and marked Exh.93 and same was received back by the investigating officer on 31.10.1995. 23 During cross-examination, he admitted that he has not made it sure that signature appearing on the acknowledgment receipt Exh. 92 was of accused no.1, as well as he cannot say whether the signature on Exh. 92 was not of accused no.1. He also 18 cra264.00 further stated that he cannot assign any reason why second attempt was not made for the service of notice upon accused no.2. He also admitted that he has not inquired with the Public Analyst, Nanded why he has not mentioned the percentage of rice starch in his report. He further admitted that he has not made inquiry with the Public Analyst about such percentage, because he did not feel it necessary. Witness volunteered that according to Rule 44 (H) of the said Rules, no foreign starch should be present in turmeric powder as foreign starch includes foreign substance. Moreover, he stated that turmeric powder contains starch in itself. He admitted that he does not know how much percentage of starch was there in turmeric powder. Hence, suggestion was given to him that only when in general analysis the adulteration could not be identified by their eyes, then only microscopic examination is carried out, but same was denied by him. He further admitted that microscopic examination was carried out. He also stated that microscopic test has not been prescribed under the said Act. 24 On the background of the afore said evidence, learned A.P.P. Shri V.D.Rakh, canvassed that the prosecution witnesses 1 to 5 have supported the prosecution case fully and the prosecution has proved all material and important facts against the accused and the prosecution has proved the charges levelled against the accused 19 cra264.00 beyond reasonable doubt. Moreover, learned A.P.P. submitted that compliance of Rule 9A of the said Rules is not attracted, since the sample packet was not broken, but the Trial Court held that the prosecution witnesses failed to follow or to comply or they have violated the mandatory provisions of Rules 13 (2), 9A and 14 of the said Rules, and consequently, acquitted accused no.2. Learned A.P.P. further submitted that since the Trial Court held that accused no.1 proved that he