1 229.1994 Cri.Appeal IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 229 OF 1994 The State of Maharashtra, through Food Inspector Shri Rajaram Waman Joshi Food Inspector, Food & Drugs Admn., Jalna. APPELLANT VERSUS Eknath S/o Baburao Misal, Age 45 years, Occu. owner M/s. Eknath Baburao Misal Kolu Tel Ghana Vikri Kendra, Parshi Lane, Jalna. RESPONDENT ..... Shri T.S. Lodhe, APP for the appellant /State Shri V.C.Solshe, Advocate for respondent / sole ..... CORAM : U.D. SALVI, J. DATED : 14 th and 18 th October, 2011. ORAL JUDGMENT : 1. This appeal arises from the judgment and order passed by learned Chief Judicial Magistrate, Jalna, in R.C.C. No. 304/1992, acquitting the respondent/ accused Eknath Baburao Misal of the offence punishable under Section 16(1) a(i) and (ii) 2 229.1994 Cri.Appeal read with 7(i) of the Prevention of Food Adulteration Act, 1954, on 07-01-1994. 2. On 05-03-1992 at about 3.45 p.m. Food Inspector Joshi, for Jalna area visited the business premises of the respondent/ accused and found safflower seed oil stored in two barrels. He disclosed his identity and purchased 450 grams of Safflower seed oil from each of the barrel from the respondent/ accused, for the purposes of drawing samples therefrom for ascertaining its standard. He then gave notice in form No. VI, as well as 14-A of the Prevention of Food Adulteration Act, and divided 450 grams from each of the barrels in three dry clean and empty bottles, sealed and lebelled the bottles, and sent one part of the sample drawn from each of the barrel to the Public Analyst along with Form No. VII and two samples were sent along with memorandum No. VII to Local Health Authority. 3. Public Analyst report dated 10-04-1992 disclosing the adulterated nature of oil was received by Local Health Authority on 18-04-1992. The Joint Commissioner of Food and Drugs Administration, thereafter, accorded sanction for prosecution. Intimation along with copy of the report of Public Analyst was also sent to the respondent/ accused in order to facilitate exercise of 3 229.1994 Cri.Appeal right to re-analysis and thereafter, Food Inspector filed two complaints R.C.C. No. 304/1992 and 305/1992 in the Court of learned Chief Judicial Magistrate, Jalna against the respondent/ accused, in respect of sufflower oil drawn from each of the two barrels laying in the shop of the respondent/ accused. 4. The record reveals that in both the cases, the respondent/ accused was acquitted, following the full fledged trial in both the cases, and the appeal being Criminal Appeal No. 200/1994 preferred against the judgment and order in R.C.C. No. 305/1992, acquitting respondent/ accused of the said offences was dismissed as the same was found without merit by this Court. It appears that the present appeal lagged behind and came up for hearing thereafter. 5. The learned Advocate for the respondent/ accused, at the outset pointed out that technically speaking there were two cases arising out one common incident on the account of collection of saffolwer oil from two separate barrels on one occasion, and as such the evidence in both the cases was common. The prosecution did not dispute this fact. He submitted that the Criminal Appeal No. 200/1994 came to be decided in favour of respondent/ accused on short point of breach of Rule 7(3) of 4 229.1994 Cri.Appeal Prevention of Food Adulteration Rules, and the same logic applies with equal force to the same facts in the present case. 6. Taking survey of the evidence, he pointed out from the evidence of PW-4- Deshpande, Senior Scientific Officer in Regional Public Health Laboratory, Aurangabad, that the sample in question was received in the office of Public Analyst on 06-03-1992 and upon its analysis it was found not conforming to the standards of saffolwer seed oil due to detection of the presence of castor oil therein. He further pointed out from the evidence of P.W.4 Digambar Deshpande, Senior Scientific Officer, Regional Public Health Laboratory, Aurangabad that there was no credible evidence of dispatch of the Public Analyst’s report (Exhibit 32) except what was shown by the registered post receipt (Exhibit 64) and its acknowledgement (Exhibit 65). According to him, even these postal documents were of no use to the prosecution to bring on record the date of dispatch of P.A. report (Exhibit 32) and, therefore, the only evidence regarding postal communication of the P.A. report (Exhibit 32) was of the complainant P.W.1 Rajaram Joshi, who averred that the P.A. report (Exhibit 32) was received on 18.4.1992. Considering these facts and circumstances, he submitted that, the prosecution failed to prove the compliance of Rule 7(3). 5 229.1994 Cri.Appeal 7. Learned A.P.P. for the State was not in a position to comment as to the fate of the judgment dated 13.10.2005, passed in the sister appeal being Criminal Appeal No.200/1994. He could not further counter the force of logic behind that decision in Criminal Appeal No.200/1994. 8. Learned trial Court did consider the postal receipt (Exhibit 64) and acknowledgment (Exhibit 65) as well as the failure of the prosecution to place before the Court the Outward register maintained by the office of the Regional Public Health Laboratory, Aurangabad. Postal receipt (Exhibit 64) and acknowledgment (Exhibit 65) do not bear any legible postal stamp showing the date of dispatch of the postal communication referred to therein i.e. P.A. report (Exhibit 32). Learned trial Court was, therefore, right in placing credence on the assertion of the prosecution figuring in the evidence of P.W.1 Rajaram Joshi, the complainant, that the P.A. report (Exhibit 32) was received by Local Health Authority on 18.4.1992. Learned trial Court, therefore, observed at the end of para No. 25 that : “So, turning to the ratio laid down in State of Maharashtra Vs. Shahaji Gajanan jadhav (supra) case, in which their Lordships held that : 6 229.1994 Cri.Appeal “Considering the mandate of rule 7(3) and its infraction in the instant case, the learned Trial Magistrate was right in directing acquittal only on this ground. The object of this rule is to see that there is no undue lapse of time between taking of the sample, its analysis and the receipt of report by the concerned authority and depending thereon future course of action such as prosecution. Legislature has therefore specifically provided the time limit of 45 days (now 40 days) from the receipt of sample. This period cannot be said to be too short. Indeed, it is sufficiently long and in matters relating to the adulteration of food and the public analyst is also expected to not only expeditiously analyse the sample, but also deliver the report of the result of such analysis to the concerned authority well in time. So, bearing in mind above proposition and by applying the same in the instant case that the report has been received to L.H.A. On 42nd day and not within 40 days, and, therefore even this mandatory non-compliance is sufficient to vitiate the entire prosecution, and, thereby fatals the prosecution, for which the accused can only be acquitted on this ground.” 9. The respondent/ accused was acquitted in the sister case on same set of facts concerning the compliance of rule 7(3) of the Prevention of Food Adulteration Act and this Court had endorsed the logic behind such decision in Criminal Appeal No. 200/1994 with the following observations made at para 7 :- 7 229.1994 Cri.Appeal “In the present case, Food Inspector – Joshi collected sample on 5.3.1992 and sent the same to the office of public analyst on 6.3.1992. Report of public analyst was dated 10.4.1992 and the same was received by complainant on 18.4.1992. Therefore, after counting the days from the date of receipt of sample by the public analyst, it seems that the report was received after forty days i.e. approximately within 42 days or 43 days. Therefore, there is no compliance of Rule 7(3) and accordingly the court below has given benefit to the accused. After considering the reasoning and evidence on record, I do not find any infirmity in the conclusion arrived at by the court below. Even, I find that the same is in consonance with the evidence. As referred above, compliance of Rule 7(3) is mandatory. In the present case, the same has not been complied strictly, therefore, the order of acquittal passed by the court below needs to be confirmed.” 10. There is no reason to depart from said logic. Hence, the appeal is dismissed and accordingly disposed of. ( U.D. SALVI, J. ) SDM* October-11