-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 671 OF 2001 CRIMINAL APPEAL NO. 671 OF 2001 CRIMINAL APPEAL NO. 671 OF 2001 The State of Maharashtra ¦ .. Appellant ¦ (Org.Complainant) V/s. 1. Shri Satyanarayan Lalajiram Agarwal¦ Vendor, Partner & Nominee of M/s. ¦ Bansal& Co. 119, Nanapeth, Pune. ¦ ¦ 2. M/s. Bansal & Co., 119, Nana Peth, ¦ Pune. ¦ ¦ 3. Shri Surendra Mavaji Gala, nominee ¦ of M/s. Ratanshi Shamji Oil Co., ¦ 124-B, Nana Peth, Pune-2. ¦ ¦ 4. M/s. Ratanshi Shamji Oil Co., ¦ 124-B, Nana Peth, Pune-2. ¦ ¦ 5. Shri Subhash Govind Gaikwad, ¦ nominee of M/s. Rasik Oil, ¦ Trading Co., Bombay -10. ¦ ¦ 6. M/s. Rasik Oil Trading Co., ¦ Cutchi Lohana Niwas Grah Trust ¦ Bldg., Gr.Floor, Shop No.2, ¦ Mazgaon Rd., Mazgaon, Bombay-10. ¦ ¦ 7. Shri Rajiv Varma, nominee & ¦ Plant Process Manager of M/s. ¦ I.T.C. Agro Tech., Ltd., ¦ Katchapuram, Post office, ¦ Tugabhadra, Mantralayam Rd., ¦ Railway Station, Adoni, Taluq., ¦ Andhra Pradesh-518379. ¦ ¦ 8. M/s. I.T.C. Agro Tech. Ltd., ¦ .. Respondents. Katchapuram Post Office- ¦ (Org.Accused nos. Tungabhadra, Mantralayam Rd., ¦ 1 to 8 ) Railway Station, Adoni Taluq, ¦ Andhra Pradesh -518379. ¦ ¦ --- -: 2 :- Mr.A.S.Shitole, APP for the State. Mr. Laxman P. Kunal for the Respondent nos. 7 and 8. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT : 1. This Appeal is filed by the State against the order of learned Chief Judicial Magistrate, Pune recording acquittal of respondent nos. 1 to 8 for offence under section 7 (i) & 7(v) read with section 2 (ia)(a), 2(ia)(m), punishable under sections 16 and 17 of the Prevention of Food Adulteration Act, 1954; vide section 248 (1) of Cr.P.C.. 2. The prosecution case in brief is as follows : The complainant Durgavale, who is Food Inspector, on 08.11.1989 visited shop of respondent no.2 alongwith panch witness. Accused no.1, partner/nominee of the accused no. 2 was present in the shop. The complainant purchased 450 grams groundnut oil (Sudama brand) from packed and sealed tin container and paid its price to the accused no.1 and obtained bill thereof. The purchase of groundnut oil was divided into three equal parts and put them into three clean -: 3 :- and dry/empty bottles. After completion of sealing formalities, one sample was sent to the public analyst on 09.11.1989. After receipt of the report of the public analyst that the sample does not confirm to prescribed standard, sanction was obtained from the Joint Commissioner, Food & Drug Administration, M.S. Pune and thereafter the complaint came to be filed. 3. Charge was framed against the accused for the offence mentioned above at Exh. 16. The same was read over and explained to the accused in vernacular language. The respondents accused pleaded not guilty and claimed to be tried. Their defence was of a total denial. It was their defence that the complainant has not followed legal procedure. It was also the defence of accused nos. 1 to 6 that they have sold the said oil, in a condition in which it was supplied by the accused nos. 7 and 8. 4. The prosecution in order to establish guilt of the respondent nos. 1 to 8 examined three witnesses, namely, Complainant- Durgavale, Dr. Ravetkar, a local health authority and the panch witness- Somani. The panch witness-Somani has not supported the prosecution case. The learned Chief Judicial Magistrate came to the conclusion that the respondent nos. 1 to 6 are entitled -: 4 :- for protection under section 19(2) of the Prevention of Food Adulteration Act, 1954. It was also held that the complainant failed to comply with the relevant provisions of Section 11(1)(b) of the P.F.A. Act, 1954 and provisions of Rule 14 and 16 of the said Act and accordingly, recorded acquittal of the respondents accused as stated above. 5. Mr. Shitole, the learned APP appearing for the appellant State took me through the evidence led by the prosecution and submitted that the respondent nos. 1 to 6, the original accused, are wrongly granted protection under section 19(2) of the said Act. He further submitted that accused nos. 7 and 8 are concerned, they have been wrongly acquitted and there is enough evidence on record to establish their complicity in the alleged offence. 6. Per contra, Mr. L.P. Kunal, the learned counsel appearing for the respondent nos. 7 to 8 supported the impugned judgement and order. He submitted that the incident is of 1989 and the respondents were acquitted in the year 2001. He also submitted that the learned Chief Judicial Magistrate has taken a possible view of the matter after appreciating the evidence on the record and therefore, this court should not interfere in that view in appeal against acquittal. -: 5 :- 7. Having heard the learned counsel for the respective parties and having gone through the evidence laid down by the prosecution, I am of the opinion that there is no merit in the appeal. It is not disputed by the prosecution that the respondent no.8 is manufacturing groundnut oil (sudama brand) and the respondent no.7 is the Nominee & Plant Process Manager of respondent no.8. It is not disputed that the said Oil was supplied by the respondent no.8 to respondent no. 6 and the respondent no. 6 supplied the same to respondent no.4 and respondent no.4 in turn supplied to the respondent no.2. It is also not disputed that the sample oil sold to the complainant by the respondent no.1 on 8.11.1989 was in the same condition in which the accused-respondent nos. 2,4 & 6 received from the respondent no.8. In view of the above admitted facts, in my opinion, the learned Magistrate rightly granted protection to the respondents -accused nos. 1 to 6 in view of the provisions of section 19(2) of the P.F.A., Act, 1954. 8. The prosecution in order to prove guilt of the respondent accused examined three witnesses, namely, the complainant, local health authority under the P.F.A. Act and the panch witness. The panch witness -Somani has not supported the prosecution case and ultimately, he was -: 6 :- declared hostile and was cross-examined at the instance of the prosecution. Thus to establish guilt of the accused, the prosecution relied upon the evidence of the complainant and local health authority. It is now settled principle that the evidence of the officers canbe considered without their being any independent corroboration from the independent witness. However, the court should be satisfied that the officer’s evidence is genuine and trustworthy. In the present case, the complainant in his examination in chief in para 2 deposed as follows : On 8.11.89, I alongwith one independent witness at about 12.00 noon visited Bansal & Co., 119, Nana Peth, Pune where accused no.1 was present there and looking after the business. I disclosed my identity and intention of drawing sample for the purpose of analyst. I inspected the premises. There were some packed tins containing ground nut oil Sudam Brand manufactured by ITC, Secunderabad. I demanded 450 gms of groundnut oil from one packed tin and purchased from accused no.1. He gave me by weighing groundnut oil. I paid him Rs. 13.59 as a cost of it. He issued the bill, it is at Exh.91. It bears signature of accused no.1 and -: 7 :- witness. 9. The complainant in para-7 of his cross-examination deposed as follows : I took alleged sample from a packed tin having tickly containing 15 kgs groundnut oil (Sundrop) Sudam Brand. I used iron screw driver for opening of said tickly for collection of said sample. Panchanama Exh.94 does not disclose that I had used iron screw driver for collecting sample and it was cleared before collection of sample. It is true that complaint Exh. 1 nowhere shows that I had used utensil for collection of alleged oil as a container. I have not also stated anything about container, utensil in my examination-in-chief. I called for 3 more utensils for dividing alleged sample into 3 parts from accused no.1. My complaint and panchanama Exh.94 do not disclose that I demanded said utensils to the accused no.1. It is not true that I falsely state that I took 450 gms alleged oil and divided it in 3 parts. It is not true to say that I took alleged oil in 3 alleged sample bottles directly from the tin. -: 8 :- 10. Perusal of the above evidence shows that the complainant has taken different stand. In examination in chief, he has stated that he purchased 450 grams groundnut oil from accused no.1. However, in cross he admitted that he himself took sample from a packed tin, containing 15 kgs groundnut oil and for that purpose he used screw driver for opening of the said tickly. Thus I find that the evidence given by the complainant is not consistent and therefore, on the basis of this evidence only without there being corroboration by any independent witness, it will be risky to convict the respondents accused. Consequently, benefit of doubt deserves to be granted to the respondents. 11. There is one more circumstances, benefit of which requires to be given to the respondents, namely, there is no evidence on record to show that before obtaining the alleged sample, the oil in tin was stirred and made homogenous. The sample, therefore, cannot be said as a representative sample. 12. In the facts and circumstances mentioned above, I do not find any error in the approach adopted by the learned Chief Judicial Magistrate in acquitting the respondents. The appeal is devoid of any merit and the -: 9 :- same is dismissed accordingly. (R.V.MORE,J.) .....