1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 46 OF 1995 THE STATE OF MAHARASHTRA ) (through Shri A. N. Ransubhe ) Food Inspector) Food & Drug ) Administration, (M.S.) Satara ) .. APPELLANT (Org. Complainant) Versus 1. SOU. BHAGYASHREE RAJENDRA ) BAGADE (Vendor & Partner) ) 2. SOU. VAISHALI SURYAKANT BHAT) Partner. ) 3. CHAITRAVEL AGENCIES (Firm) ) at 135, Bhavani Peth, Satara) .. RESPONDENTS (Org. Accused) Mr. Y. M. Nakhawa, APP for appellant CORAM: SMT. RANJANA DESAI, J. DATE: 1/4/2008 ORAL JUDGMENT: . In this appeal, the State of Maharashtra through Food Inspector, Food & Drug Administration has challenged the judgment and order dated 28/10/94 passed by the Chief Judicial Magistrate, Satara in Regular Criminal Case No. 29 of 1993. By the 2 impugned order learned Magistrate has acquitted the accused of the offences under the Prevention of Food Adultration Act, 1954 ("the said Act" for short). 2. It would be advantageous to begin with the facts of the case. PW 1 Avinash Narsappa Ransubhe is the Food Inspector, Food & Drug Administration, Satara. Accused 3 Chaitravel Agencies is a firm of which accused 1 and 2 are partners. Accused 3 has a shop situated at 135 Bhawani Peth, Satara. 3. According to PW 1 Ransubhe on 15/6/92 at about 11.45 a.m. he visited the said shop. Accused 1 was present in the said shop. She was selling mixed milk. PW 1 disclosed his identity to her as the Food Inspector, Food & Drug Administration and the intention of his visit to the shop for drawing sample of food article. He found 10 plastic bags containing mixed milk in the freeze kept in the premises of the shop. After inspection he demanded mixed milk from accused 1 as sample. Then he took one bag of mixed milk. It contained one litre milk. He opened the mixed milk bag and poured the said milk in one steel container and stirred it. He then purchased 750 ml of milk out of it from 3 accused 1 for Rs.8-25. According to him he paid the said amount to accused 1 and obtained receipt from her. The said receipt was signed by accused 1 and the pancha witness. PW 1 has produced this receipt. It is at Exhibit-35. 4. According to PW 1 he issued a notice to accused 1 to supply information about the name and address of the supplier of the milk. The said notice is at Exhibit-35. Accused 1, however, did not disclose the name of the supplier to him at that time. According to PW 1 he gave written intimation to accused 1 regarding purchase of sample for analysis. PW 1 has then given details of the procedure adopted by him at thetime of drawing sample. PW 1 has stated that he divided the sample of milk purchased by him in three parts and poured it in three separate dry, clean and empty glass bottles. He then added 20 drops of formaline as a preservative in each bottle. He then corked each bottle tightly and sealed each bottle on top by means of wax-seal. According to him he then shook each glass bottle twice or thrice with a view to obtaining homogeneous mixture. He then prepared panchnama which is at Exh.-37. 4 5. According to PW 1 on the same day he sent one sealed part of sample to the Public Analyst, State Public Health Laboratory, Pune, in a sealed packet along with the original memorandum in Form VII. He also sent copy of Form-VII and specimen impression of seal in a sealed envelope to the Public Analyst, Pune by registered post. Copy of the seal impression and acknowledgement receipt from the Public Analyst are on record at Exhibits 40 and 41 respectively. 6. According to PW 1 on the same day he sent remaining two counter parts and two copies of Form VII in a sealed packet to the Local Health Authority Satara by hand delivery. Office copy thereof is on record at Exh.-42. PW 1 has further stated that on the same day he gave written intimation to the Local Health Authority about sending of the sample to the Public Analyst for analysis. It’s office copy forms part of the record and it is at Exh.-44. 7. On 30/7/92 PW 1 received the report of the Public Analyst dated 8/7/92 through the Asstt. Commissioner, Food and Drug, Satara. Report of the Public Analyst is at Exhibit-46. The report states 5 that the sample does not conform to the standards of mixed milk as per Prevention of Food Adulteration Rules 1955 ("PFA Rules" for short). 8. On 30/7/92 PW 1 issued a letter to Local Health Authority calling for information about the shop of accused 1. He collected necessary information about all the accused. After completing the necessary formalities, he sent the case papers to the Joint Commissioner Food and Drug Administration through Assistant Commissioner for according sanction to prosecute the accused. He received the consent order from Joint Commissioner on 1/1/93 through the Assistant Commissioner. On 28/1/93 he filed the present complaint in the court of Chief Judicial Magistrate, Satara. 9. According to PW 1 on 28/1/92 he informed the Local Health Authority about launching of the prosecution against the accused and requested that a copy of the report of the Public Analyst be sent to the accused. The accused made application to the court requesting that counterpart of sample be sent to Central Food Laboratory Gaziyabad for re-analysis. It appears that accordingly the counterpart of the sample was sent to Central Food 6 Laboratory, Gaziyabad. It’s report is on record at Exh.-57. This report also states that the samples do not conform to the standards prescribed under PFA Rules. According to PW 1 after receipt of report of Central Food Laboratory, Gaziyabad, he obtained fresh consent to launch prosecution. 10. On filing of the complaint learned Magistrate issued summonses to the accused. The accused appeared in the court. In support of it’s case, the prosecution examined PW 1 Ransubhe, the Food Inspector for proving prima facie case for framing charge against the accused. PW 1 was not cross-examined by the accused before framing of charge. The cross-examination was kept reserved. After hearing the complainant, the learned APP and the counsel for the accused, the Chief Judicial Magistrate framed the charge under Section 7(1) read with Section 16 and 17 of the said Act. The contents of the charge were explained to the accused. The accused pleaded not guilty and claimed to be tried. 11. In support of its case the prosecution examined PW 1 Avinash Narsappa Ransubhe, the complainant, PW 2 Laxman Palkar, panch witness and 7 PW 3 Krishnarao Ghaitode, the Chief Officer of the Local Health Authority, Satara. The statements of the accused were recorded under Section 313 of the Criminal Procedure Code. Accused 1 and 2 inter alia contended that a false case is filed against them. 12. After perusing the evidence on record learned Magistrate held that the prosecution had proved that the accused had stored for sale mixed milk in their shop and accused 1 had actually sold the said mixed milk to the complainant. Learned Magistrate also held that the complainant had proved that the mixed milk purchased by PW 1 from the accused was adulterated and it did not conform to the standards prescribed for the said milk under the PFA rules. However, learned Magistrate acquitted the accused on the ground that PW 1 did not stir the milk before pouring it into steel container from which he had drawn samples. He observed that stirring of milk is important before drawing of milk sample. Learned Magistrate relied on the judgment of this court in State v. Prakash and Krishna, 1980 (2) Prevention of Food Adulteration Cases 109 where the need to draw a proper representative sample of milk is emphasised. Learned Magistrate observed that PW 8 1 had failed to bring on record any evidence to show that milk was stirred vigorously so that homogeneous mixture of the milk would be available for drawing sample. He observed that, therefore, there is a possibility of incorrect determination of the contents of the milk. He observed that failure to obtain proper sample makes the subsequent analysis worthless. In the circumstances he acquitted the accused. As stated hereinabove being aggrieved by the said judgment and order the State of Maharashtra has filed the present appeal. 13. I have heard at some length Mr. Nakhawa, learned APP in support of the appeal. He submitted that learned Magistrate erred in acquitting the accused, after recording all the findings in favour of the prosecution. Learned APP pointed out that learned Judge has held that the prosecution has proved that the accused sold milk to PW 1 and that report of the Public Analyst stated that the sample was adulterated. He has also held that the sample was re-analysed from the Director Central Food Laboratory, Gaziabad and that report also confirmed that the sample was adultrated. He submitted that, therefore, learned Magistrate should have held that 9 the prosecution had proved its case beyond reasonable doubt. Merely because the milk was not stirred before taking it out of the polythene bag, the entire prosecution case cannot be set at naught. 14. Learned APP submitted that the evidence on record indicates that the milk was stirred when it was put in a steel container. He submitted that this is sufficient compliance of the requirement. Learned APP submitted that reliance placed by learned Magistrate on Prakash and Krishna’s case (supra) is misplaced. Learned APP urged that the impugned judgment and order is perverse and hence it may be set aside and the accused be convicted in accordance with law. 15. Respondents 1 and 3 have been served, however, none represents them. Shri P. K. Jadhav, learned counsel appears for respondent 2, however, he is not present. In the circumstances with the help of learned APP I have gone through the record of the case. 16. Before I proceed to deal with the submissions of learned APP it is important to bear in mind that 10 this court is dealing with an appeal against acquittal. It is well settled that while considering an appeal against the judgment and order of acquittal the High Court should not interfere with it unless it is perverse. If the view taken by the trial court is a reasonably possible view, the High Court should not interfere with it because the presumption of innocence of the accused is further reinforced by the order of acquittal and unless there are weighty reasons an order of acquittal is not to be disturbed. It is equally well settled that even where two views are reasonably possible, one taken by the trial court and the other reached by the High Court in absence of any material irregularity, manifest error or illegality, the High Court in appeal against acquittal should not interfere with the order of acquittal, merely because it thinks that it would, sitting as a trial court have taken other view of the evidence. (See Kashiram & Ors. v. State of M.P., (2002) 1 SCC 71 and Sukliya v. State of M.P., JT 202 (5) SC 302) 17. Keeping these principles in mind, I shall approach this case. Learned Magistrate has held that the accused had sold milk to PW 1 and that the 11 milk sample was found adulterated. He has however, held that the prosecution has failed to prove that a proper and representative sample was drawn and, therefore, the Public Analyst report cannot be used against the accused. It is necessary to see the evidence on record in this connection. PW 1 Avinash Ransubhe has in his evidence stated that after inspection he demanded mixed milk from accused 1 as sample. Then he took one bag of mixed milk containing one litre milk. He has further stated that he opened it and poured the milk in one steel container and stirred it. He then purchased 750 ml of milk out of that. Thereafter he divided sample into three parts. In the examination-in-chief he has not stated that the milk was stirred before pouring it into a steel container. Panchnama Exhibit 37 drawn by him does not state that the milk was stirred and this fact is admitted by PW 1 in his cross-examination. PW 2 Laxman Palkar, panch witness has stated that PW-1 demanded milk bag. He purchased the milk bag and opened it in his presence and took the milk in a steel container. He then took sample of milk in separate bottles and sealed them in his presence. In the cross-examination the pancha has clearly admitted that the Food Inspector cut the milk bag, 12 poured the milk from it in the steel container without shaking the bag. He has further gone on to say that the milk in the steel container was also not stirred with the glass rod. Therefore, learned Magistrate was right in concluding from the evidence on record that the prosecution has not established that the milk was stirred before sample was drawn. 18. Public Analyst report gives percentage of total solids, milk fats, milk solids. In case of drawing of milk sample stirring is very important. In the present case the evidence shows that the milk was stored in a freeze. It is common knowledge that if the milk stored in freeze, the fat contents rise and form a creamy layer at the top and, therefore, it is necessary to stir the milk before drawing samples. I may usefully quote certain passages to which reference is made by this court in its judgment in Prakash and Krishna’s case (supra). The importance of proper sampling is stressed in the book " The Chemical Analysis of Food and Food Products" by Jacobs as under: . "A most important matter to be considered by the Food Analyst, although not directly his province, 13 is the proper sampling of the food or food products to be analysed. There are probably as many incorrect determinations made because the sample was improperly taken because of the combine errors of preparation of samples, manipulation, calculation of results etc. The failure to obtain a proper sample makes a subsequent analysis worthless." . In the book, "The Chemical Analysis of Food" by Pearson, 5th edition, among other things it is observed as under: . "The milk shall be thoroughly stirred before sampling and the sample shall be taken from well below the surface of the Milk. The instruments used for stirring and sampling shall be sterile and the sample shall be poured into a sterile bottle which shall thereupon be immediately stoppered." . In Bhatnagar’s commentaries on "The Prevention of Food Adulteration Act, 1954", it is stated as under: . "Where sample of single cows milk is taken it should be drawn from the middle of the vessel i.e. 14 the whole body of the milk should be uniform in its composition and sample must represent the whole milk in order." . It is further observed as under: . "Careful and accurate analysis is the foundation of prosecution and all possible errors in taking sample must be eliminated to ensure that factors disturbing the uniformities of composition do not come into play either by partial churning or separation of fat. Thoroughly mixing must be done by gently shaking the vessel and where the vessel is big enough by stirring with a long handled dipper." 19. Therefore, to ensure that factors disturbing the uniformities of composition do not come into play either by partial churning or separation of fat, thorough mixing must be done of the milk. Even partial churning is not the correct method. 20. In the circumstances of the case, in my, opinion, the view taken by the learned Magistrate cannot be called perverse. From the evidence before me which I have analysed hereinabove, I 15 cannot hold that the Food Inspector had drawn a proper representative milk sample. Therefore, even though Public Analyst report states that milk was found adulterated that is not sufficient to convict the accused for the offences alleged against him by setting aside the reasonably possible view taken by learned Magistrate. 21. In the circumstances, in my opinion, there is no substance in the appeal and hence the appeal is dismissed. JUDGE. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 46 OF 1995 DATE OF DECISION:1/4/2008 Submitted for approval. THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE SHRI JUSTICE : 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or ) not? ) 3. Whether Their Lordships wish to ) 16 see the fair copy of the Judgment? ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 46 OF 1995 THE STATE OF MAHARASHTKRA .. APPELLANT (Org. Complainant) Vs. SOU. BHAGYASHREE R. BAGADE & ORS... RESPONDENTS (Org.Accused 1 to 3) Mr. Y. M. Nakhawa, APP for appellant 17 CORAM: SMT. RANJANA DESAI, J. DATE: 1/4/2008 OPERATIVE PART OF ORDER: . For the reasons stated in the oral judgment, this court has dismissed the appeal. JUDGE.