:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.550 OF 2002 CRIMINAL APPEAL NO.550 OF 2002 CRIMINAL APPEAL NO.550 OF 2002 The State of Maharashtra (At the instance of Shri H.N.Ugale, Food Inspector FDA, M.S.Guruwar Peth, Pune -42 ...Appellant. v. Mr.Parasmal Samratmal Jain Vendor & Proprietor of M/s.Paras Provision Stores, situated at 552/1, Dattawadi, Ganeshmala, Pune - 30. ...Respondent. (Org.Accused) Mr.Y.M.Nakhawa , APP for the Appellant/State. None for the Respondent. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 4th April, 2009. DATE: 4th April, 2009. DATE: 4th April, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The Appellant/State of Maharashtra challenges the order dated 11.5.2001 passed by the Chief Judicial Magistrate, Pune in R.C.C.No.105 of 1996 recording the respondent’s acquittal of the offences punishable under Sections 7(i) r/w. Section 2(ia)(a), 2(ia)(c) 2(ia)(m) and Section 7(v) r/w Section 14(A) punishable under Section 16 of the Prevention of Food Adulteration Act, 1954. 2. Prosecution case in short was as follows: :2: . Respondent is vendor and proprietor of firm M/s.Paras Provision Stores situated at 552/1, Dattawadi, Ganesh-Mala, Pune and he sales edible oils and other grocery food articles. Complainant is the food inspector. There were complaints about quality of groundnut oil being sold by the respondent hence, the complainant on 27th March, 1996 visited the shop of respondent and purchased 450 gms of groundnut oil in steel vessel and paid price of Rs.17.10 paise to the respondent and he issued notice under Section 14-A to the complainant. The purchased groundnut oil was divided into three equal parts and was poured in three sample bottles which were sealed and labelled in accordance with the procedure of Prevention of Food Adulteration Act and Rules (In short ’Said Act’). Memorandum of the said facts was also drawn at the relevant time. One sample of the groundnut oil was sent to the Public Analyst, Pune and the rest of the sample parts were given to Local (Health) Authority, Pune. Public Analyst opined that the said oil does not confirm to the standards of groundnut oil. The complainant thereafter obtained necessary consent to prosecute the respondent from the Joint Commissioner and filed present complaint against the respondent. 3. Charge was framed against the accused under Sections as mentioned above. The same was explained to the respondent in vernacular to which he pleaded not :3: guilty and claimed to be tried. Defence of the respondent was that the complainant did not follow mandatory provisions while collecting alleged samples and he did not receive copy of public analyst report or information of filing of this complaint to exercise his legal right to get re-analysed the second part of the sample. It was also defence of the respondent that he has purchased said groundnut oil from one Premkumar Bhanvarlal Jain and he sold it in same condition and as such he is entitled to have a benefit of warranty under Section 19(2) of P.F.A. Act, 1954. 4. Prosecution in order to establish charges against the respondent, examined two witnesses, namely, Complainant/Food Inspector and Dr.Rawetkar of Local Health Authority at Exhibits 17 and 66 respectively. Prosecution also relied upon the documentary evidence namely, panchanama at Exhibit 31 and report of Public Analyst at Exhibit 49. Learned Magistrate after appreciating the evidence led by the prosecution and after hearing learned counsel for the respective parties concluded that the complainant did not comply with the provisions of Section 10(7), 11(1)(b) and 16(b) of the P.F.A. Act. It was also held that the respondent is entitled for protection under Section 19(2) of the said Act. Learned Magistrate in view of the above findings was pleased to acquit the respondent of the offences charged against him. Mr.Nakhawa learned APP appearing :4: for the appellant/State took me through the depositions of P.W.1 and 2, Complainant/Food Inspector and Dr.Rawetkar of Local Health Authority and submitted that this evidence coupled with the report of the Public Analyst at Exhibit 49 is sufficient to bring home the guilt of the respondent. He submitted that learned Magistrate, however, committed error in acquitting the respondent and, therefore, appeal deserves to be allowed. 5. Having gone through the depositions and having heard Mr.Nakhawa learned APP, I do not find any merit in the appeal. Firstly, I will consider the charge against the accused under Sections 7(v) r/w Section 14-A punishable under Section 16 of the P.F.A.Act, 1954. I have gone through the complaint and the depositions. Depositions and complaint show that the complainant, Food Inspector gave notice under Section 14-A to the respondent. However, it does not further show that the respondent refused to disclose to food inspector name, address and other particulars of the person from whom he purchased adulterated food. On the contrary, it was specific defence of the respondent that he purchased oil in question from Premkumar Bhavarlal Jain, who deals in all types of edible oils and Vanaspati, on 23.3.1996. Respondent also produced document at Exhibit 65 namely, original credit memo. The said document supports the respondent’s above contention. The complainant in spite :5: of disclosure of the name of the supplier by the respondent failed to take any action against the said supplier. In the above facts, it can not be said that the respondent has committed any contravention of provisions of Sections 7(v) r/w Section 14(A) punishable under Section 16 of Prevention of Food Adulteration Act, 1954. At the same time, respondent is entitled for protection under Section 19(2) of Prevention of Food Adulteration Act, 1954. Similar view is taken by learned Magistrate. I do not find any justification to interfere in the same. 6. Section 10(7) of the Prevention of Food Adulteration Act mandates Food Inspector to take sample in presence of one or more persons. In the present case, complainant/Food Inspector failed to examine independent panch witness. The complainant also did not explain as to why panch witness is not examined. The effect of non-compliance of the provisions of Section 10(7) of the P.F.A. Act was considered by learned Single Judge in Suryakant Khanderao Sangle v. Karbhari Suryakant Khanderao Sangle v. Karbhari Suryakant Khanderao Sangle v. Karbhari Anna Satpute and another Anna Satpute and another Anna Satpute and another reported in Prevention of Food Adulteration Cases 1991(1) page 15. Learned Single Judge in paragraph 9 made following observations: "9. It is fairly conceded by the learned Counsel appearing for the appellant that nowhere in the evidence of PW 1 he has explained the reason for non-examination of the panchas. In :6: absence of any reasonable explanation for non-examining the panchas, the question arises whether there has been non-compliance of Section 10(7) of the Act. The object of enacting Section 10(7) is to ensure that the proper sample is taken from the accused. The provision of Section 10(7) regarding keeping one or more person present at the time of taking the sample would be rendered illusory if it is taken that the Food Inspector is not bound to examine that person as a witness at the trial. There would have been a different aspect of the case if the prosecution would have examined the panch witness, and he did not support the prosecution. In the instant case, admittedly, not a single panch has been examined and no explanation for non examination of the Panch has been offered in the evidence of complainant. That necessarily leads to a conclusion that it is doubtful that if the complainant has collected the samples in presence of the panchas. It is in that circumstance of the case, the learned Trial Magistrate was justified in not keeping the reliance on the testimony of complainant alone. That necessarily means that there has been no compliance of Section 10(7) of the Act." Facts in Suryakant’s case (Supra) Suryakant’s case (Supra) Suryakant’s case (Supra) and the present case are similar and, therefore, above observations are applicable to the present case. Learned Magistrate in this regard has taken correct view which does not require any interference. 7. As far as non-compliance of provisions of Section 11(1)(b) of the Prevention of Food Adulteration Act, 1954 is concerned, the panchanama at Exhibit 31 as well as complaint do not disclose how the complainant made purchase of groundnut oil homogenized. It also does not disclose method by which the complainant divided purchased groundnut oil into three parts. It is :7: true that the complainant in his evidence before the Court for the first time stated that by weighing he did three parts of the said groundnut oil. This statement of the complainant is clear improvement and, therefore, can not be relied upon. Learned Magistrate considered this aspect in detail and concluded that complainant failed to comply with the provisions of Section 11(1)(b) of the said Act. I do not find any fault in the approach adopted by learned Magistrate. 8. Taking overall view of the matter, I find that there are number of grounds, which make prosecution story doubtful. Learned Magistrate appreciated the evidence on record in a proper perspective and has taken a possible view, which can not be interfered in an appeal against acquittal. There is no merit in the appeal. Hence, appeal stands dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)