1 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.156/2006 Shabbir Abbasbhai (Merchant)Bohari Age: 49 Yrs., occu. Business R/o Dhule, Tq. and Dist.Dhule. - APPLICANT VERSUS The State of Maharashtra - RESPONDENT ***** Mr.VD Sapkal Advocate for Applicant; Mr.KM Suryawanshi, APP for State. ----- WITH CRIMINAL APPEAL NO.386/1998. The State of Maharashtra at the instance of Shri B.U.Patil, Food Inspector, Food & Drugs Administration, (MS) Dhule. - APPELLANT (orig.Complainant) VERSUS Shabbir Abbasbhai (Merchant) Bohari, Age: 41 Yrs., 2 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 Vendor of Burhani & Sons, 3005/1 Usbazar, Dhule. - RESPONDENT ____ Mr.KM Suryawanshi, APP for Appellant/State; Mr.VD Sapkal, Advocate for Respondent. CORAM : K.U.CHANDIWAL, J. DATE : 27th January, 2011. ORAL JUDGMENT: 1) Heard learned Counsel and learned APP for the respective parties. 2) The State seeks to enhance the sentence recorded against the respondent/accused by learned Chief Judicial Magistrate Dhule in Regular Criminal Case No.164/1996, whereby the respondent in the appeal was convicted for the offences under Sections 7(v) r/w Sections 10(1) (a) of the Prevention of Food Adulteration Act, punishable under Section 16(1)(c) and (d) of the said Act, sentencing him to suffer simple imprisonment for seven days and to pay a fine of Rs.1500/- with default clause. 3) The accused – Shabbir by Criminal revision challenged his conviction and sentence 3 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 referred above. 4) The appeal is admitted on 19th January, 2000 while in Revision, Rule was issued on 3rd July, 2006. 5) The learned APP submits that the conviction recorded in terms of Section 16(1)(c) and (d) of the Prevention of Food Adulteration Act, (hereinafter to be referred to as the said Act) is inadequate, as the law mandate the same to be minimum for six months and fine. The learned Judge, according to learned APP, has no jurisdiction to award lesser sentence than minimum prescribed by law as no adequate reasons for awarding the lesser sentence are recorded by the leaned Judge. 6) The learned Counsel for the revision applicant/accused -Shabbir read the evidence of PW 1- Bharatsing Umraosing Patil, Food Inspector and also the evidence of PW 2 – Anilkumar Milapchand Lulla, coupled with statement of the accused under Section 313 Cr.P.C. The learned Counsel submits that, the conviction recorded against the revision applicant would not be sustainable as on 24.1.1996, when the Food Inspector visited the shop, the revision 4 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 applicant was looking after the affairs/activities of paints shop. Three types of business activities are carried under one roof, viz. Burhani & Sons; Burhani Trading Company; and Yousuf Brothers. The prosecution in question appears to be in respect of the activities of the firm, viz. Burhani & Sons, of which Mustafa Abbasbhai (acquitted accused no.2) is the owner. 7) Reading the evidence of PW 1 and PW 2, it is manifest, the revision applicant – Shabbir was looking after the business of paints. If he was looking after business of paints, to the knowledge of PW 1, there was no prevention, under the statutory arrangement in terms of Section 10 of the Act to PW 1, to draw a sample of any food stuff, which is arranged as a primary food, intended for sale. The Food Inspector did not venture to carry such exercise. Second aspect of the matter is, though the behaviour of the revision applicant – Shabbir was excruciating and rather displaying an arrogance, however for that purpose, the conviction by itself would not be an answer. His political clout was tried to be coined, referring name of the Minister, but the basic nucleus in the matter, having been lost track of, arrogance displayed by the 5 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 accused/revision applicant, simply needs to be condemned. However, no legal effect can be taken to convict him. 8) The revision applicant, as could be seen from the investigation papers, was not the owner, nor a person, duly authorized to transact for the affairs of Burhani & Sons. At least no such evidence is produced by the Food Inspector or the prosecution agency. If the revision applicant was not authorized and was looking after the activities of paint shop in the said premises, it was not expected from him to supply food stuff in the shop under different banner to the Food Inspector. 9) The learned Counsel for the revision applicant also invited my attention to clause 4 of the report (Exhibit-21) and he distinguished the same, whether it would amount to refusal or prevention at the behest of the revision applicant. 10) The learned Counsel for the revision applicant placed reliance to the judgment in the matter of Kailash Gir Vs. V.K.Khare, Food Inspector and Anr.,(1981 CRI.L.J. 1555) ; Food Inspector, Chittoor Vs. Mutuku Ravichandra Babu 6 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 and Anr. - (2003 CRI.L.J.2449; and Ishwar Lal Vs. State of Rajasthan – (2006 CRI.L.J. 1726). 11) In these judgments, the Lordships of the High Courts exhaustively dealt with the definition or dictionary meaning of the word “preventing”. It was explained, the word “preventing” must necessarily imply the doing of some act on the part of the accused which may make it impossible for the Food Inspector to obtain the sample in exercise of his powers under Section 10(1) of the Act. There are various ways in which preventing may be achieved and visible obstruction is not the sine qua non of the act of preventing. 12) Now, reverting to the facts of the present case, there was no overt act on the part of the revision applicant -Shabbir, demonstrating that he physically or otherwise prevented the Food Inspector from collecting the sample to exercise later’s powers in terms of Section 10(1) of the said Act. The officer obviously demanded food stuff, the witness said that he shall not be giving the same as there was no grievance from anybody or from any customer. Since the witness himself accepts that the revision applicant was looking after activities 7 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 of paint shop, it could not have been gathered or inferred that the revision applicant had authority to dwell upon and ponder the requirement of food stuff as desired by PW 1. The learned Judge has committed a mistake/error in interpreting the term “refusal” and “Prevention”, resultantly chaos and mishap has taken place recording conviction against the revision applicant. 13) It is not indicative as to which sample of food stuff PW 1 desired to be drawn, it was expected of him to inform, if the food stuff was available for vending in the shop. In the absence of this situation/arrangement, it is difficult to conceive that there was infraction of Section 10(1) of the said Act to showthere was prevention or hindrance created by the revision applicant in the Food Officer taking up his lawful course under the law. It is not that the revision applicant shut the shop or left the shop. The evidence illustrate, notes were prepared by the officer at the counter of the shop. On that day, another officer Mr.Hade, who has witnessed the events dated 24.1.1996, has collected Rs.25/- from the said shop as an assistance to child welfare fund/welfare of Ex- military soldier. The observations of the learned 8 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 Judge in this context calls for interference. 14) No reliance could be placed to the evidence of PW 2 - Anil Kumar as he is a stock witness for the department, having so accepted by him in his narration. If he was honest to affair, he should have informed how many business activities were carried in the said shop. It may be that he has passingly witnessed to the activities of visit of PW 1 to the said shop. The signing of inspection report at Exhibit-21 as a Panch by itself would not be tantamount that all the affairs/activities were carried at the said shop . 15) In the statement under section 313 Cr.P.C., when a specific question was put by the learned Judge, informing the revision applicant to be attending the shop of paint, though he denied the same, however, by that itself would not mean evasiveness on his part. 16) The survey of events illustrate, the requisite procedure, as was mandated even in terms of Section 10 of the said Act, was not scrupulously adhered to. Consequently, there could not have been a conviction in terms of infraction of Section 16(1)(c) and (d) of the 9 Cri.Revn.Appln.No.156/06 with Cri.Appeal No.386/98 said Act. Hence, order. (i) The Revision is allowed. The conviction of the revision applicant is set aside. Fine, if any, deposited by the revision applicant, be refunded to him after three months. Rule made absolute in the revision as indicated above. (ii) Since the revision of the applicant is allowed, the State appeal lacks merit, is accordingly dismissed. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)