1 criapl-319.00 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 319 OF 2000 The State of Maharashtra (At the instance of Shri R.D.Kokadwar, Food Inspector, Food and Drug Admn., Appellant/ Maharashtra State, Ahmednagar) orig.accused. versus 01. Bhausaheb Balaji Korde, Chairman of accused No.4, 02. Bhima Gajaba Holgir, Vice Chairman of accused No.4, 03. Dagadu Baban Kanawade, Secretary of accused No.4. Accused Nos. 1 to 3 r/of Lingdev, Taluka Akola, Dist. Ahmednagar. 04. The Firm M/s Lingeshwar Sahakari Dudh Vyavsaik Sanstha Ltd., Lingdev, situated at Akola, Respondents/ District Ahmednagar. Orig.accused. ------------------------------------------------------------------------- Smt. Y.M. Kshirsagar, A.P.P. for the Appellant-State. Shri S.K. Shinde, Advocate for Respondents-accused. ------------------------------------------------------------------------- 2 criapl-319.00 Coram : Shrihari P. Davare, J. Judgment reserved on : 15.3.2011 Judgment pronounced on: 22.3.2011 Judgment (Per : Shrihari P. Davare, J.) 01. Heard learned counsel for the parties. 02. By the present appeal, the appellant-State has challenged the judgment and order dated 23.3.2000 rendered by the learned Judicial Magistrate, First Class, Akola, District Ahmednagar, in Regular Criminal Case No.151 of 1994, thereby acquitting all the accused Nos. 1 to 4 (respondents herein) for the offence punishable under Section 7(i) read with rule 50, punishable under Sections 16 and 17 of the Prevention of Food Adulteration Act, 1954 ("PFA Act" for brevity's sake). The factual matrix, which gives rise to present appeal, is as follows. 03. PW-1 Complainant R.D. Kokadwar, was appointed as Food Inspector under Section 9 of the PFA Act and rules 3 criapl-319.00 made thereunder, for Ahmednagar District, vide order dated 17.7.1993 by the Commissioner, Food and Drug Administration, Maharashtra State, Bombay who is the Local (Health) Authority for Panchayat Samiti Block areas with Ahmednagar Dist., appointed vide Government Notification dated 15.4.1983. It is the case of the complainant that accused Nos. 1 and 2 are the Chairman and Vice Chairman of accused No.4, namely, The Firm M/s Lingeshwar Sahakari Dudh Vyavsaik Sanstha Limited, Lingdev, situated at Akola, Dist. Ahmednagar, whereas accused No. 3 is the Secretary thereof, and accused No. 4 is the said society itself. 04. It is alleged that all the accused are doing the business of storing and selling milk in the premises of accused No.4. It is the case of the complainant that on 24.3.1994, at about 7.25 p.m., he along with panch witness Shri Hanuman Rambhau Jadhav, r/of Lingdev, and Food Inspector Shri S.B. Bhalerao, visited the premises of accused No.4, in pursuance of the news published in the newspaper about food poisoning to 114 students, due to consumption of milk. According to the complainant, accused No. 3 was looking after the business of the society-accused No.4. The complainant disclosed his 4 criapl-319.00 identity to accused No. 3, and also his intention to draw sample of cow milk for test and analysis. Cans containing cow milk were lying there, allegedly meant for supply to Amratsagar Sahakari Doodh Vyavsaik Sanstha Maryadit, Akola. The complainant inspected the premises and purchased two samples of milks of 750 ml. each, from two different open and unlabeled cans and paid Rs.7.50 ps. as total cost of both the samples and intimation in form No. 6 for drawing two samples for test and analysis was given to accused No.3. Thereafter, the complainant issued notice to accused No.3 under Section 14-A of the PFA Act, and obtained receipt thereof. Accused No.3 gave reply to the said notice. Samples were divided into three equal parts and each part was filled into three clean, dry and empty bottles and necessary formalities were observed in respect of packing and affixing labels thereon and sealing the same. Panchanama was drawn and the said samples were seized thereunder and the copy of the panchanama was given to accused No.3, under his acknowledgment. 05. It is also alleged that on 25.3.1994, one part of each sample along with respective form No. 7 in a sealed packet, 5 criapl-319.00 was sent to the Public Analyst, State Public Health Laboratory, Pune, by hand delivery through Shri G.V. Kulkarni, Food Inspector, Food and Drug Administration, Maharashtra State, Ahmednagar and acknowledgment was obtained therefor. Moreover, on the same day, copies of form No.VII of respective samples along with the specimen seal in a sealed packets were sent separately to the Public Analyst, State Public Health Laboratory, Pune, by hand delivery through Shri G.V. Kulkarni, Food Inspector, Food and Drug Administration, M.S. Ahmednagar, and acknowledgment therefor, was obtained. On 25.3.1994, remaining two parts of each sample along with copies of respective Form No. 7 were deposited with Local Health Authority and Assistant Commissioner, Food and Drug Administration, Ahmednagar, through A.K. Bhalerao, Sampling Assistant, and acknowledgment therefor was obtained. 06. It is also stated that the complainant received report of the Public Analyst, through Local Health Authority, on 19.4.1994, which disclosed that both the samples of cow milk conformed with the standards of cow milk as per PFA Act and Rules made thereunder. However, accused No. 4 was holding 6 criapl-319.00 requisite licence under Rule 50 of the PFA Rules, but it was valid only upto 31.3.1989 and thereafter it was not renewed. Accordingly, it was found that on 24.3.1994, at about 7.25 a.m., accused Nos. 1 to 4 (respondents herein) had stock of milk for sale and they sold cow milk without possessing requisite licence under Maharashtra Prevention of Food Adulteration Rules, 1962 and Rule 50 of the PFA Rules under the PFA Act, 1954. Hence, the complainant submitted proposal under Section 20 of the PFA Act, for obtaining permission for filing complaint, to the Joint Commissioner (Nasik Division), Food and Drug Administration, and the said permission was granted by order dated 8.11.1994 and accordingly, complaint was lodged. 07. Process was issued against the accused persons and they appeared in the matter. Evidence before charge was recorded and the parties were heard, and since there was sufficient material, charge was framed against the accused on 14.7.1999, at Exhibit 40. All the accused persons pleaded not guilty to the charge levelled against them and claimed to be tried. Defence of the accused was of total denial. 7 criapl-319.00 08. To substantiate the charge levelled against the accused persons, the prosecution examined PW-1 R.D. Kokadwar, Food Inspector, as well as produced documentary evidence, whereas accused examined one Pandurang Gajanan Godse Superintendent, Amritsagar Milk Federation, as defence witness. Considering the oral and documentary evidence, and also rival submissions advanced by learned counsel for the parties, learned trial judge, by order dated 23.3.2000, acquitted all the accused persons, of the offence under Section 7(v) read with Rule 50 punishable under Sections 16 and 17 of the Prevention of Food and Adulteration Act, 1954. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the State has preferred present appeal and prayed for quashment thereof. 09. Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize the evidence adduced and produced by the parties, and at the outset, coming to the deposition of PW-1 R.D.Kokadwar, Food Inspector, who was attached to the office of Food and Drugs Administration, Ahmednagar by notification (Exh.27), he 8 criapl-319.00 stated that he visited Lingeshwar Milk Collection Society situated at Lingdev, on 24.3.1994, along with one Hanuman Jadhav i.e. Panch witness and Food Inspector Shri S.B. Bhalerao. The Secretary of the society, by name Dagadu Kanawade, was the person present who was collecting milk, and hence, PW-1 disclosed his identity to the said Secretary and expressed his intention to draw sample of cow milk since two cans containing cow milk were lying there. Accordingly, Secretary of the said society sold 7.50 ml. milk each from the said cans to PW-1 who paid total price of Rs.7.50 therefor and obtained receipt for the same which is produced at Exhibit 29. Thereafter, PW-1 issued intimation under form No.6 to the Secretary of the said society, informing that the samples were purchased for analysis and form No. 6 was prepared in two copies, original of which was given to the seller which bears signatures and acknowledgment of the seller and panch, and is produced at Exh.30. 10. Thereafter, complainant PW-1 prepared notice under Section 14(a) of the PFA Act in two sets, gave original to the seller and obtained his acknowledgment, and copy of the said notice is produced at Exh.31. On the rear side of the said 9 criapl-319.00 notice, seller has endorsed that milk is collected by the society-accused No.4 from its members. Thereafter, two samples of 750 ml. each, were drawn and kept in two clean and dry utensils, as well as PW-1 divided the same into three parts of 3.50 ml. each and poured the same in three clean glass bottles, and he added preservative and labeled the bottles with signature of panch and same were sealed. Complainant PW-1 utilised numbers 3113 and 3114 for two different samples and obtained vertical signatures of seller on the slips and thereafter each sample was tied by rough thread, horizontally and vertically and was then sealed by sealing wax. Thereafter, panchanama of the said events was prepared by him on which the seller and panchas put their signatures and a carbon copy thereof was delivered to the seller under his acknowledgment, which is produced at Exhibit 32. Thereafter, PW-1 complainant asked the seller, whether the society possessed any licence issued by the Food and Drugs Department, but the seller showed ignorance. 11. It is further stated by PW-1 that on 25.3.1994, he visited office and two bottles of two samples each were delivered to Local Health Authority and two sample bottles of 10 criapl-319.00 different samples were sent to Public Analysis Office, Pune, through Shri G.V.Kulkarni,Public Analyst, Pune. Thereafter, Public Analyst, Pune confirmed the standard of sample sent for analysis to the complainant, through Ahmednagar office, and it was revealed that the licence was valid upto 31.3.1989 only, and was not renewed thereafter. It is also the case of the prosecution that on 22.4.1994, the complainant had informed the Secretary of the said accused-society, namely, Mr. Kanawade, about the said licence and the copy of said letter dated is produced at Exh.33, to which the society gave reply which is produced at Exhibit 34. 12. Accordingly, necessary papers were sent to the Local Health Authority, Ahmednagar, for the grant of permission to lodge prosecution, on 30.6.1994. Thereafter, letter from the Joint Commissioner was received to trace out the persons in authority of the accused-society. Accordingly, complainant was given information by the Chairman of the Society and the letter to that effect is produced at Exhibit 36. Names of the directors of the society were given in Exhibit 36 and three persons were shown as responsible for the affairs of the society. Thereafter, PW 1 received sanction order, on 11 criapl-319.00 21.11.1994, to lodge prosecution against the society and the letter in that respect is also accompanied by consent order, which are at exhibits 37 and 38. After filing the complaint by PW-1 on 8.12.1994, intimation thereof was sent to the Local Health Authority, the copy whereof is produced at Exh. 39. Accordingly, Local health Authority, on 14.12.1994 informed the accused about the complaint filed, which is at Exhibit 40. 13. During cross examination, PW-1 stated that the Food Inspector can draw sample from any shop or society. He further stated that he mentioned accused No.3 as Secretary of accused No.4-society and not addressed him as a seller. A suggestion was given to the witness that accused No.3- Secretary of the society was not seen by him while selling milk, but it was denied. Moreover, a categorical suggestion was given to the witness that accused No.3 was not selling milk, but that suggestion was also denied by him. He was given further suggestion that the society is registered under the Maharashtra Cooperative Societies Act and that it is supplying milk to Taluka Milk Centre, by collecting the same from its members, on the same day. 12 criapl-319.00 14. PW-1 complainant further stated that the articles stored and put to sale can only be accepted as sample, and for drawing sample, article has to be purchased. He also stated that at the time of taking sample, he was told that accused No.4-society is a member of Amritsagar Milk Federation and that milk collected by accused No.4-society, is deposited in the said Milk Federation. He denied the suggestion that the accused-society was not entitled to sell milk. He further denied the suggestion that the accused-society is working as agent for milk collection, for and on behalf of said Amritsagar Milk Federation. It was put to him that the accused-society, due to non selling of milk, was not entitled to hold licence for collection of milk, but same was denied by the witness. It was further suggested to him that as a matter of routine course, he filed the present case, but he denied the same. 15. Coming to the testimony of defence witness Pandurang Gajanan Godse, he stated that he was serving in milk Federation/society, as Office Superintendent and further stated that the said Federation is collecting milk from the societies in Taluka and the said milk is supplied to the Govt. He stated that Lingeshwar Cooperative Milk Society is the 13 criapl-319.00 member of the Federation and certificate to that effect is produced at Exh. 53. He further stated that the said society is depositing milk with said Federation, collected from the members, on the very day. Supply of milk, providing of cans etc. is the business of the said Federation. Member-societies of said Federation are under legal obligation to supply milk to the Federation only, and that the said Federation possesses licence, the copy whereof is produced at Exhibit 53/A. 16. In the cross examination, defence witness admitted that he has not received summons of the court. He further stated that the Federation purchases milk from different milk societies. However, some societies are selling milk to retail customers, and some societies are selling milk on retail basis. He further stated that his Federation is disbursing payments, by issuing cheques. A suggestion was given to him that all the societies were selling milk on retail basis, but same was denied by him. 17. Basing upon aforesaid oral and documentary evidence, the learned A.P.P. Smt. Y.M. Kshirsagar for the appellant- State canvassed that the accused have committed offence 14 criapl-319.00 under Section 7(v) of the PFA Act, for not having valid licence for storage of milk for sale, and consequently, committed offences punishable under Sections 16 and 17 of the PFA Act. It is submitted that the licence held by the accused was valid only upto 31.3.1989, whereas visit of the complainant PW-1 Mr. R.D. Kokadwar to accused-society, was on 24.3.1994 and he found that the accused were not holding valid licence for storage of milk and sale thereof under rule 50 of the Rules under the PFA Act, which attracts penalty under Sections 16 and 17 of the PFA Act and, therefore, submitted that the impugned judgment rendered by the learned trial judge, acquitting the respondents-accused, deserves to be quashed and set aside and the respondents-accused are required to be punished, suitably. 18. Shri S.K. Shinde, learned Advocate for the respondents- accused countered the said arguments, vehemently and submitted that the respondents-accused do not manufacture or store the milk for the purpose of sale/distribution and, hence, licence is not contemplated therefor, and consequently, the accused have not committed any offence, as alleged. It is also submitted that selling of the milk by accused to 15 criapl-319.00 complainant-PW-1 Kokadwar was for limited purpose of taking sample and analysis thereof and the accused-society is neither doing the business of selling milk, nor it has stored milk for sale. It is also canvassed that it has nowhere come in evidence that the accused were selling milk to any third party in presence of the complainant. In fact, it is pointed out that PW-1 complainant Kokadwar has categorically admitted that at the time of taking sample, he was told that the accused-society is the member of Amratsagar Milk Federation and milk collected by accused-society, is deposited in the said milk Federation which holds the licence, which is produced at Exh. 53A. Accordingly, it is submitted that accused have not committed any offence, as alleged and, therefore, the learned trial court has rightly acquitted the accused and no interference therein is warranted, in the appellate jurisdiction. 19. I have perused the oral and documentary evidence adduced and produced by the parties, on record, as well as considered the submissions advanced by the learned counsel for the parties, anxiously, as well as perused the contents of the impugned judgment, minutely, and I am inclined to 16 criapl-319.00 accept the submissions advanced by the learned counsel for the respondents-accused, for the basic reason that it is evident from the material on record that the accused-society is not manufacturing or selling or storing milk for distribution or sale purpose, and the alleged sale of milk to the complainant-PW-1 Kokadwar by accused, was for limited purpose of taking sample and analysis, and it is apparent that the accused-society is not doing business of selling milk, nor storage of milk was for the sale. Moreover, from the perusal of the evidence, it does not appear that the accused- society was selling the milk to any third person in presence of PW-1 complainant and it may be noted that PW-1 has categorically admitted in his testimony that the accused have informed him that they are supplying milk to Taluka societies after collection from its members, on the same day. Moreover, PW-1 also deposed that at the time of taking sample, he was told that the accused-society is member of Amratsagar Milk Federation and mill collected by it, is deposited in the said Amratsagar Milk Federation, and it was also suggested to the witness that the accused-society is working as agent of the said Milk Federation, but same was denied by him. 17 criapl-319.00 20. Moreover, it is important to note that the accused examined DW-1 Pandurang Godse, who was working as Superintendent the said Amratsagar Milk Federation. He categorically stated that the said Federation collects milk from milk societies within Taluka and the same is supplied to the Government. He further stated that the accused- Lingeshwar Milk Cooperative society is the member of the said Amratsagar Milk Federation and certificate to that effect has been produced at Exh. 53. The witness has further categorically stated that the accused Lingeshwar Milk Cooperative society is depositing milk collected by it from its members, with the said Amratsagar Milk Federation, on the very day. He further stated that supply of milk, providing milk cans etc. is the business of the said Milk Federation, and that the member milk societies are under legal obligation to supply milk to the Federation only. 21. In fact, the controversy in the present matter is limited i.e. alleged breach of Rule 50 of the Rules under the PFA Act, for not holding valid licence for storage and sale of cow milk. Under Section 7 of the said Act, there is prohibition for sale, storage or distribution of any adulterated food articles, and 18 criapl-319.00 the licence under Rule 50 of the Rules under the said Act, is required for sale of any article of food, from the Food (Health) Authority and in the absence of such licence, sale of food articles is punishable under Section 7 of the PFA Act. 22. However, considering aforesaid evidence, it is amply clear that there is nothing on record to indicate that the accused-society is indulging into storage of milk for the purpose of sale, and in the absence of evidence in that behalf, it cannot be said that licence under Rule 50 of the Rules under the PFA Act, was necessary for the business run by the accused. It is apparent that the accused-society is merely an agent of the Milk Federation, and collects milk from the farmers and supplies the same to the Milk Federation for its further supply to the Government. It has come in the evidence of DW Gajanan Godse that the said Amratsagar Milk Federation holds valid licence which is produced at Exhibit 53A. Hence, in view aforesaid position, holding of licence by accused-society under Rule 50 is not contemplated, and consequently, does not amount to breach of Section 7 of the said Act, and hence, penalties under Sections 16 and 17 of the PFA Act, are not attracted in the instant case. 19 criapl-319.00 23. In the circumstances, after assessing and analyzing evidence on record, it is manifestly clear that the view adopted by the learned trial court, while acquitting the accused persons i.e. respondents, is a possible view and same does not appear to be perverse. Moreover, the reasoning adopted by the trial court for arriving at the conclusion of acquittal of the accused for the charges levelled against them, also cannot be faulted with, and therefore, no interference therein is warranted, in the present appeal and hence, present appeal deserves to be dismissed. 24. In the result, present appeal, which is sans merits, stands dismissed. pnd/criapl-319.00 (Shrihari P. Davare, J.)