mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.553 OF 1996 State of Maharashtra Appellant versus Ghanshyam Motilal Gupta Respondent J.P.Yagnik for appellant. K.H.Parekh for respondent. WITH CRIMINAL APPEAL NO.216 OF 1997 State of Maharashtra Appellant versus Ghanshyam Motilal Gupta Respondent J.P.Yagnik for appellant. K.H.Parekh for respondent. CORAM : A.S.OKA, J. DATE : 18th February 2009 JUDGEMENT : 1. I have heard the learned APP in support of the appeal as well as the learned counsel appearing for the respondent (original accused). The respondent-accused is the same in both the appeals. The respondent was prosecuted for the offence under section 7(i) read with section 2(ia)(m) and section 7(v) read with rule 50 of Prevention of Food Adulteration Rules, 1955 punishable under section 16 of the Prevention of Food Adulteration Act, 1954. The learned Magistrate convicted the respondent and sentenced him to suffer simple imprisonment for six months. He was also sentenced to pay a fine of Rs.1,000/- and in default he was directed to suffer simple imprisonment for a month. An appeal was preferred against the order of conviction before the Sessions Court. The Sessions Court by the impugned judgement and order has passed the order of acquittal. 2. The case of the prosecution in brief as summarised by the learned Additional Sessions Judge in paragraph 2 of her judgement reads thus. "On 29th September 1987 at about 1.30 p.m. the complainant A.S.Kulkarni, Food Inspector of Food and Drug Administration (Maharashtra State), alongwith independent witness Raghunath Bayaji Gavali, M.D.Ranade, Food Inspector and S.G.Vavhal, PSI visited the premises of the accused Ghanshyam Motilal Gupte, known as M/s.Ganesh Oil Depot and General Stores situated at Bainganwadi, Block No.21/K/10, Hutment Colony, Govandi, Bombay 400 043. Accused Ghanshyam Motilal Gupta was present at the premises. The complainant after disclosing his identity inspected the premises and found that 5 loose tins of edible oil were stocked for sale at the premises. The complainant inquired the name of the said edible oil, to which the accused told that it was ‘Rapseed Oil’. The complainant disclosed his intention of drawing samples of the said Rapseed Oil and marked them as "A", "B" and "C". He purchased 450 grams of rapeseed oil from the loose tin marked "A" and paid Rs.11.25 as costs of the sample and obtained receipt from the accused for the same. After following due procedure, the complainant divided the sample into three equal parts and put each part separately in empty, clean and dry bottles. After completion of due formalities he sent one part of the sample to the Public analyst, who reported that the sample was adulterated". 3. The order of acquittal passed by the learned Additional Sessions Judge is on two grounds. The first is that there was non compliance with Rule 14 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the said Rules of 1955"). The second ground is that PW-2 Mr.Kulkarni, Food Inspector was not qualified to be appointed as a Food Inspector as before his appointment as Food Inspector, he had not undergone the training as required by Rule 8(c) of the said Rules of 1955. The learned APP appearing for the State in support of the appeal invited my attention to the deposition of the prosecution witnesses and in particular the deposition of PW-2 Mr.Kulkarni. He submitted that in the examination-in-chief the witness has stated that the samples were put by him in clean, dry and empty bottles separately. He submitted that this statement which is unchallenged in the cross-examination proves the compliance with the requirement of Rule 14 of the said Rules of 1955. He submitted that there was evidence on record in the form of certificate to show that the Food Inspector had undergone the requisite training as contemplated by Rule 8(c) of the said Rules of 1955. He, therefore, submitted that the order of acquittal on the aforesaid ground was unwarranted. The learned counsel for the respondent supported the impugned judgements and orders by relying upon a decision of this Court in the case of State of Maharashtra Vs. Ram Murat Dube decided on 15th April 1977 in Criminal Appeal No.98 of 1976. He submitted that no interference was called for as the learned Additional Sessions Judge has applied settled law to the facts of the case. 4. I have carefully considered the submissions. It will be necessary to refer to the decision of this Court in the case of State of Maharashtra vs. Ram Dube (supra). In paragraph 3 this Court has observed thus :- "3. ... ... In any case it is not necessary for me in the instant case to go into the details of this controversy, because in my opinion the order of acquittal is sustainable by the other evidence which shows that there has been non-compliance with Rule 14 which requires that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars which shall be closed sufficiently tight to prevent leakage etc. In the present case the In the present case the In the present case the Food Food Food Inspector has admitted that he did Inspector has admitted that he did Inspector has admitted that he did not not not clean or dry the bottle in which the clean or dry the bottle in which the clean or dry the bottle in which the samples samples samples were taken. He, however, says were taken. He, however, says were taken. He, however, says that that that that part of the work was done by that part of the work was done by that part of the work was done by his his his assistant. To a pointed question in assistant. To a pointed question in assistant. To a pointed question in the the the cross-examination he admitted that he cross-examination he admitted that he cross-examination he admitted that he did did did not know when the assistant did it. not know when the assistant did it. not know when the assistant did it. It It It is, therefore, impossible to hold that is, therefore, impossible to hold that is, therefore, impossible to hold that the the the Food Inspector who has been examined Food Inspector who has been examined Food Inspector who has been examined proved proved proved that the bottles were cleaned or that the bottles were cleaned or that the bottles were cleaned or dried dried dried as required under the rule. This as required under the rule. This as required under the rule. This could could could have been proved by the assistant have been proved by the assistant have been proved by the assistant who who who is alleged to have done that part of is alleged to have done that part of is alleged to have done that part of the the the work. Unfortunately that assistant work. Unfortunately that assistant work. Unfortunately that assistant has has has not been examined. Therefore, the not been examined. Therefore, the not been examined. Therefore, the prosecution prosecution prosecution has failed to prove that has failed to prove that has failed to prove that there there there was a compliance with Rule 14 of was a compliance with Rule 14 of was a compliance with Rule 14 of the the the Rules framed under the Act. Rules framed under the Act. Rules framed under the Act." (Emphasis added) 5. Turning to the facts of present case, PW-2 Mr.Kulkarni has stated in his examination-in- chief thus :- " ... ... Thereafter, I divided 450 grams of repeseed oil in three equal parts and put 150 grams of rapeseed oil in clean, dry and empty bottle separately. I put a cork at the mouth of the bottle. Then I prepared 3 sample lables. ... ..." He was cross examined on the said aspect and in the cross examination he has stated thus :- " ... ... I have not personally cleaned the bottles. I personally do not know who closed the bottles. I do not know how many days prior to this date of incident the bottles were cleaned." Thus, PW-2 admitted that he had not cleaned the bottles and he was not aware as to who cleaned the bottles. It is, thus, obvious that the prosecution has not established the compliance with the requirement of Rule 14 of the said Rules of 1955. Thus, the finding recorded by the learned Additional Sessions Judge on this aspect is proper and no interference is called for. 6. The second ground on which the order of acquittal is passed by the learned Sessions Judge is that PW-2 Mr.Kulkarni could not have acted as a Food Inspector as he had not undergone the training as required by the Rules. On this aspect the learned Additional Sessions Judge has observed that in the training certificate at Exhibit P-11 produced by the prosecution it is not stated that PW-2 has undergone the training satisfactorily. It is observed that the said certificate does not bear the official seal, serial number, outward number etc.. The learned Judge, therefore, observed that this reflects on the capability and capacity of the Food Inspector to take samples as required by law. The learned Additional Sessions Judge has rightly placed reliance in this behalf on the decision of this Court in the case of State of Maharashtra Vs. Revachand Sanmykhadas Ramchandani and another decided on 8th November 1973 in Criminal Appeal No.563 of 1972. 7. The learned APP has made a grievance about certain observations made by the learned Additional Sessions Judge. The said observations are in paragraph no.32 of the impugned judgement and order. It will be necessary to refer to the relevant observations made in paragraph 32 of the judgement :- "It is unfortunate that PW-2 admitted in his cross-examination that he did not know whether the bottles in which the samples were to be collected were cleaned or not. Can it be said that he was not aware of Rule 14? One does not know whether he was feigning ignorance or whether he was deposing so for any ulterior motive. In either case, it has to be said that the witness did tremendous damage to the prosecution case. If he was not infact knowing Rule 14 of the P.F.A.Rules, then it was bad. If he was knowing about Rule 14 and still did not comply with Rule 14, then it was worse. If he was deposing so with some ulterior motive, to obviously help the accused, then it was worst. If fact, it is a fit case where departmental action should be taken against him. The unfortunate result of the lacunas in the present case is that the appeal succeeds because of these lacunas. Endangering the life and safety of public at large is risky, and public should not be allowed to get away easily by resorting to such unscrupulous ways. As I have already observed, ignorance of rules under the Act and their breach is very dangerous. I therefore, propose to give direction to send the copy of this judgement and order to the Commissioner of Food & Drug (Admn.) so that the said department can appoint Food Inspector who have full knowledge of the Prevention of Food Adulteration Act and the rules framed thereunder, who can discharge their duties vigilantly and the public health and welfare of society is not jeopardized. ... ..." 8. The submission of learned APP was that the said observations are totally unwarranted and beyond the scope of appellate powers exercised by the learned Additional Sessions Judge. 9. The learned Judge has recorded a finding that PW-2 who was appointed as a Food Inspector was not qualified to hold the post. If PW-2 was not qualified and was still appointed to hold the said post, there was no justification in observing that this was a fit case for initiating departmental action against PW-2 Mr.Kulkarni. Infact, while exercising the appellate power against the order of conviction such a direction could not have been issued by the learned Additional Sessions Judge. The learned Judge directed that a copy of this order should be sent to the higher officer. The said direction has been issued only with a hope that the concerned higher authorities will ensure that the competent persons will be appointed as Food Inspectors. It is only the hope which is expressed by the learned Additional Sessions Judge in the light of the findings recorded in the judgement. Therefore, that part of the observations made in paragraph 32 cannot be said to be objectionable. 10. As held earlier, no fault can be found with the findings of the learned Additional Sessions Judge that the guilt of the respondent was not established. However, the aforesaid observations regarding holding of departmental enquiry will have to be deleted. It must be clarified that merely because those observations are deleted, the authorities will not be precluded from initiating departmental enquiry. If departmental enquiry is already initiated, deletion of the said observation will not affect the legality of the said enquiry. 11. Hence, I pass following order :- (a) The appeals are dismissed; (b) The observation made by the learned Additional Sessions Judge in the impugned judgement and order that this was a fit case for initiating departmental enquiry against PW-2 is hereby expunged; (c) It is made clear that notwithstanding this order, it will be open for the authorities to initiate and/or to continue the departmental enquiry against the concerned officer. If enquiry is already initiated, deletion of the aforesaid observation will not affect the legality and validity of the enquiry’ (d) Bail bonds of the respondents stand cancelled. (A.S.OKA, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.553 OF 1996 State of Maharashtra Appellant versus Ghanshyam Motilal Gupta Respondent J.P.Yagnik for appellant. K.H.Parekh for respondent. WITH CRIMINAL APPEAL NO.216 OF 1997 State of Maharashtra Appellant versus Ghanshyam Motilal Gupta Respondent J.P.Yagnik for appellant. K.H.Parekh for respondent. CORAM : A.S.OKA, J. DATE : 18th February 2009 JUDGEMENT : For the reasons recorded separately, following order is passed :- (a) The appeals are dismissed; (b) The observation made by the learned Additional Sessions Judge in the impugned judgement and order that this was a fit case for initiating departmental enquiry against PW-2 is hereby expunged; (c) It is made clear that notwithstanding this order, it will be open for the authorities to initiate and/or to continue the departmental enquiry against the concerned officer. If enquiry is already initiated, deletion of the aforesaid observation will not affect the legality and validity of the enquiry’ (d) Bail bonds of the respondents stand cancelled. (A.S.OKA, J.)