5.cr appln 4974­09.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4974 OF 2009 The State of Maharashtra .. Applicant Vs Ashok Mahaling Tawate .. Respondent Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 18th OCTOBER, 2010. P.C.: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 22.07.2009 passed by the learned Additional Sessions Judge, Sangli in Sessions Case No. 232 of 2008. By the said judgment and order, the respondent i.e original accused came to be acquitted of the offences under section 7(i), 7(v) read with Section 2(ia)(j) and Rules 29 and 50 of the Prevention of Food Adulteration Act 1954 (Hereinafter referred to as the ' PFA Act') and Prevention of Food Adulteration Rules 1995 (Hereinafter referred to as the 'PFA Rules') punishable under Section 16(1-A) of the said Act. 2. The prosecution case briefly stated is that complainant PW 1 R.T. Patil is a food inspector duly appointed under 1 5.cr appln 4974­09.doc Section 9 of PFA Act. The accused is the proprietor of M/s. Priyanka Trading Company situated at Priyanka Cold Storage, Tasgaon Road, Sangli. It is further the prosecution case that the accused was engaged in selling food articles raisin (Bedana) without holding any licence. The complainant demanded and purchased 750 grams of raisin for test and analysis for which the complainant had offered an amount of Rs. 37.50 ps. However, the accused declined to accept the said amount. The complainant, then issued notice to the accused in form VI and also notice under Section 14(A) of PFA Act. The complainant then divided 750 grams of raisin into three equal parts and put them in three dry, clean and empty plastic bottles. Each plastic bottle was closed tightly and a seal was put thereon. On 19th April 2003, the complainant received a report from Public Analyst wherein the sample of raisin was found containing synthetic colours Tartazine and Brilliant Blue FCF and it was opined that the sample of raisin does not confirm to the PFA Rules, 1955. The complainant then sent relevant papers to Joint Commissioner, Pune Division, Food & Drug Administration, Pune for obtaining necessary consent towards prosecution of accused. After receipt of consent, the complainant filed prosecution before the trial Court on 3rd July 2004 interalia alleging that raisin is an article of food within the meaning of Section 2(V) of PFA Act and on 2 5.cr appln 4974­09.doc 19th April 2004, the accused by stocking for sale and selling an adulterated article of food i.e. raisin, has committed an offence in contravention of Section 7(i) read with Section 2(ia)(a), 2(ia)(j) and Section 7(v) read with Rules 29 & 50, punishable under 16 of PFA Act. 3. Charge under Section 7(i) read with Section 2(ia)(a), 2(ia)(j) and Section 7(v) read with Rules 29 & 50, punishable under 16 of PFA Act came to be framed against the accused to which he pleaded not guilty and claimed to be tried. His defence is that of total denial and false implication. His further defence is that he is not concerned with the seized stock of raisin or with the premises or business of M/s. Priyanka Trading Company or M/s. Priyanka Cold Storage, alternatively, he contended that raisin was not kept for sale and therefore, question of selling adulterated food article to the complainant within the meaning of Section 2(ia)(a), 2(ia)(j) of PFA Act does not arise. He further contended that as he was not dealing in business of selling/purchase of raisin, the question of securing any licence for doing trade / business does not arise. 4. I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned Sessions Judge. After carefully considering the 3 5.cr appln 4974­09.doc matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5. On perusal of the evidence on record, it is clear that the learned Sessions Judge has observed that there is non- compliance of mandatory provisions of Rule 14 of PFA Rules. As far as Rule 14 is concerned, in the complaint, it is stated as under: "That the complainant then divided 750 grams of raisin into three parts equally so purchased for test and analysis and put it into three dry, clean and empty plastic bottles. Each plastic bottle was closed tightly and a seal was put on it by sealing wax. Then the label bearing the details about the food article and the signatures of accused, panch witness and complainant, pasted on each plastic bottle." In the complaint, there is no reference as to by what means the plastic sample bottles were closed tightly. It is also not clear whether the plastic bottles used for collecting sample, was having any removable lid of its own or whether mouth of plastic bottles was closed by cork etc., and then seal was affixed on such removable lid or cork etc whereas PW1 R.T. Patil in his examination-in-chief has stated that he has closed the mouth of those three containers tightly by putting lid, he has applied wax seal on the mouth of each container and then he has pasted sample labels on 4 5.cr appln 4974­09.doc each container by gum. Thus, the evidence of PW1 shows that he has collected sample of raisin in plastic containers having 'lids' on which he has put or applied wax seal. This evidence of PW 1 is an improvement, therefore unless the evidence of PW 1 is corroborated by independent evidence of panch witness, it would not be safe to rely on his sole testimony in absence of averments in the complaint. 5. PW 3 Kachare is the panch witness. He has deposed that Food Inspector R.T. Patil divided 750 grams of raisin in three equal parts and deposited them in three glass bottles and then sealed those bottles by tying thread and applying wax seal on it. Thus, on perusal of the evidence of PW 3 who is the panch witness, it is observed that evidence of PW 1 R.T. Patil is not corroborated in any manner in respect of collection of raisin sample by him in plastic bottles and in respect of closing the mouth of three containers by lid and thereafter, putting seal on the lid. It is pertinent to note that PW 3 Kachare has categorically admitted that peons were taking sample and filing in bottles while Food Inspector was preparing documents. 6. On perusal of evidence of the complainant PW 1 R.T. Patil, it is observed that there is no material to show that three jars in which samples of raisin was taken were clean, 5 5.cr appln 4974­09.doc dry and empty jars. Moreover, evidence of the complainant PW 1 shows that the samples which were taken was not a representative sample of the stocked raisin. The evidence of complainant PW 1 does not disclose that he has mixed up the entire lot of raisin before purchasing 750 grams of raisin, as sample for test purposes. Thus, from the evidence on record, the conclusion arrived at by the learned Sessions Judge that the prosecution has failed to prove due compliance of the provisions of Rule 14 of PFA Rules is a reasonable and possible view. 7. It is to be noted that the defence of the accused is that he is not concerned with the seized stock of raisin or with the premises or business of M/s. Priyanka Trading Company or M/s. Priyanka Cold Storage. His further defence in the alternative is that the raisin was not kept for sale and therefore, question of selling adulterated food article to the complainant within the meaning of Section 2(ia)(a), 2(ia)(j) of PFA Act does not arise. He further contended that as he was not dealing in business of selling/purchase of raisin, the question of securing any licence for doing trade / business does not arise. In this context, on perusal of evidence of the complainant PW 1, it is seen that PW 1 has admitted that he has not collected any documentary evidence whether accused 6 5.cr appln 4974­09.doc was the proprietor or partner of M/s. Priyanka Trading Company or M/s. Priyanka Cold Storage. He has also admitted that at the time of drawing of the sample, the accused was not selling the raisin or making delivery of raisin to any other person. The complainant has further admitted that there was no person present for purchasing raisin from the accused nor had the accused taken delivery as consignee of raisin from any person. PW 1 has further admitted that accused had not accepted the price of 750 grams of raisin allegedly sold by him. All the above circumstances show that the raisin which was stocked in the cold storage, was not meant for sale as a food article. 8. The learned Sessions Judge had considered these as well as other aspects while acquitting the respondent-original accused. Looking to the evidence on record, I find that conclusion arrived at by the learned Sessions Judge is a reasonable and possible view. 9. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the case of 7 5.cr appln 4974­09.doc C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. I have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 8 5.cr appln 4974­09.doc 9