1 Criminal Appl.No.2604 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2604 OF 2011 Sunanda W/o.Vijay Kumar Baldawa, Age-46 years, Occu-Household and Prop.Krishna Trading Co.New Mounda, Aurangabad APPLICANT VERSUS 1. State of Maharashtra 2. Rajeshravari Ramkisan Sawant, Age-27 years, Occu-F.I., R/o.Food and Drugs Adm.Office, Nath Super Market, Aurangpura, Aurangabad RESPONDENTS Mr.D.S.Bharuka, learned counsel for the applicant. Mr.S.G.Nandedkar, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 17/10/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally, by consent of the parties. 2. By this criminal application u/s. 482 of The Cr.P.C., the applicant/original accused has questioned the correctness and 2 Criminal Appl.No.2604 of 2011 legality of the order passed by the Additional Sessions Judge-3, Aurangabad in Criminal Rev.No.334/2010, dated 05/05/2011, rejecting the revision application filed by the present applicant, questioning the correctness of the order of issuance of process by the learned J.M.F.C. Phulambri Dist.Aurangabad in RCC No.232/2010, dated 29/10/2010 for the offence punishable u/s. 7(i) r/w. Section 2(ia) (a) Section 7(v) r/w. 2(ix)(d)(k) r/w. Rule 23 r/w. Rule 50, punishable u/s. 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred as ‘the act’) against him. 3. Such of the facts as are necessary for the decision in this application can be summarized as : Respondent no.2 is a Food Inspector, appointed by the Food and Drug Administration of the Government of Maharashtra. On 25/07/2009, the respondent no.2/the Food Inspector had visited late Sau.Kalawati Chavan Prathamik Ashram School, Wadod Bazar, Tq.Fulambri, Dist. Aurangabad (hereinafter referred as ‘Ashram School,), for the inspection. During her visit to the said Ashram School, with two panch witnesses, she had noticed that one Sudhir Vasantrao Chavan, who was working as a Hostel Supdt. of the said Ashram School, was present and was supervising the preparation of food. Then the respondent no.2 disclosed her identity and shown her desire to inspect the premises and the raw material used to prepare the food. During the said inspection, respondent no.2 had collected the samples of Rice, Toor Dal, Refined Pam Oil, Chilli 3 Criminal Appl.No.2604 of 2011 powder of ‘Shudh Masale’ and mixed Masala, which are used for the preparation of ‘Khichadi’. Accordingly, requisite receipt was issued by the Food Inspector. Copy of the said receipt is at Exh.’E’, which is also signed by Sudhir Chavan, the Hostel Supdt of the said Ashram School and also by the panch witnesses, and respondent no.2. Then, after following due procedure and formalities, 3 samples of the rice, toor dal, refined oil, chilli powder, mixed masala powder were taken. One of the sample was sent for chemical analysis on 27/07/2009 alongwith the requisite letter. Immediately, after the samples were collected, a notice was served on the said Sudhir Chavan under Rule 12 (vi) of the said Act, which is also signed by the Supdt.of the said Ashram School, Food Inspector/respondent no.2 and the two panch witnesses. Notice u/s. 14-A of the said act was also issued on the said Sudhir Chavan, calling upon him to provide the name and address and other particulars of the person from whom, he had purchased the articles seized, of which the said Sudhir Chavan had given an acknowledgment under his dated signature by putting an endorsement on the notice itself stating therein that he had received the notice and will provide the requisite bill later on. He had not disclosed the name of the supplier of the articles which were seized for chemical analysis. Later on, he had produced one bill dated 17/06/2009 of M/s.Krushna Trading Company, Shop No.52, A.P.M.C. Market, Jadhavwadi, New Mondha, Aurangabad. In due course, report of the samples sent for analysis was received. The report indicates that the sample of the chilli powder of the ‘Shudh 4 Criminal Appl.No.2604 of 2011 Masale’ brand, under bill no.4640 dated 17/06/2009, was tested and it is observed by the Chemical Analyser that the sample of chilli power is found adulterated. So far as the other samples collected are concerned, they were not found adulterated. After obtaining requisite sanction u/s. 20 of the Act, complaint was lodged only against the Proprietor of the said Krushna Trading Company/the present applicant. The complaint was presented on 29/10/2010 and the case was registered as RCC No.232/2010. It appears that on the same day, process was issued against the applicant and summon was issued to seek his appearance. The applicant had challenged this order of issuance of process in Cri.Rev.No.334/2010 before the Sessions Judge, Aurangabad, which came to be dismissed by way of judgment and order dated 05/05/2011, which is impugned in the present application before this Court. 4. I have heard learned counsel for the applicant followed by the submissions of learned A.P.P. Also perused the contents of the application and the documents annexed with the application, so also the affidavit in reply filed by the respondents to oppose the admission of this application. 5. During the course of submissions across the bar, learned counsel for applicant, so also learned A.P.P. have taken me through the entire record. Learned counsel appearing for the applicant would urge by drawing the attention of this Court towards the notice 5 Criminal Appl.No.2604 of 2011 issued u/s. 14(A) of the said Act that even though the said Sudhir Chavan, who is referred as vendor in the complaint as well as in the notice, who gave an acknowledgment of the said notice, immediately had not disclosed the name of the supplier of those commodities or the owner of the shop from where those commodities were purchased. Further my attention is drawn towards the bill produced by the said Sudhir Chavan, vendor/Hostel Supdt of the said Ashram School and receipt produced by him at Exh.’F’, issued by Krushna Trading Company. He has further drawn my attention towards item no.6 of that invoice cum receipt wherein it is stated that the description of the commodities sold is described as ‘chilli’ and not as a ‘chilli powder’. In this light, he has drawn my attention towards the contents in para no.13 of the affidavit in reply, wherein there is reference of the bill produced by the vendor/Sudhir Chavan. It is stated that there is no warranty of goods. During perusal of the entire affidavit in reply, particularly para no.10 and 13 of the affidavit in reply, it reveals that what is purchased by the said Sudhir Chavan is ‘chilli’ and not the ‘chilli powder’. In this light, relying on the observations of the Apex Court in the matter of Mohinder Kumar Versus State of Haryana, 2004(1) FAJ 87, if the sample is not collected from the commodities sold, then the seller must not be held responsible. 6. Per contra, it is urged by the learned A.P.P. for State in support of affidavit in reply filed by him on behalf of respondent no.2 and in 6 Criminal Appl.No.2604 of 2011 support of order of issuance of process passed by the learned Trial Court, so also by the learned Additional Sessions Judge that it is to be inferred that even though the bill is silent on the point of sell of ‘chilli powder’, but the description used as ‘chilly’ is to be inferred as ‘chilli powder’. 7. Considering these submissions across the bar and on perusal of record, one fact is clear that what is purchased under the bill dated 17/06/2009, under item no.6, is ‘chilli’ and not a ‘chilli powder’. Once the fact stands established from the documents produced and collected during the investigation that the sample collected was the sample of ‘’chilli powder’ but not the sample of the ‘chilli’ under the brand name of ‘Shudh Masale’ then the observations of the Apex Court in the judgment of Mohinder Kumar (cited supra) will squarely applicable to this case. As it is specifically observed by the Apex Court in this judgment that the sample collected during the inspection by the food Inspector was not the sample of the commodity sold by the seller then in such circumstances, the seller not to be held liable for the sample which is not tested for the standard of the commodity as provided under the said Act and the rules thereunder. In the case in hand, what is purchased by the said Sudhir Chavan from this applicant is the ‘chilli’, as per the documents produced by him and not the ‘chilli powder’. Considering this aspect, if the sample of the chilli powder is not found as required under the majors and standards as provided 7 Criminal Appl.No.2604 of 2011 under the said Act, the seller in this case/the present applicant can not be held responsible for the sample collected by the Food Inspector/respondent no.2. 7. Here I feel it necessary to express my anxiety as to why the said Sudhir Chavan was not arrayed as an accused in the complaint before the Lower Court and only the present applicant is arrayed as an accused. Whatever it may be, the fact remains that the evidence collected during the investigation is not sufficient to link the present applicant as a trader, from whom chilli was purchased by Sudhir Chavan. 7. In the result, application ought to be allowed, and accordingly application is allowed, and set aside the orders passed by both the courts below in terms of prayer clause ‘B and stands disposed of. 8. Rule thus made absolute as indicated above. (A.V.POTDAR, J.) khs/OCT.2011/cri.appl.2604-11