1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.39 OF 2007. 1. State, Smt. Iva Fernandes, Food Inspector, Dte. Of Food and Drugs Admn, Panaji. ... Appellant Versus 1. Shri Selvom Athisavem, Mani Mark Sweets, H.No.119/3, Karaswada, Mapusa, Goa. 2. Shri Manuel Athisavem, Mani Mark Sweets, H.No.119/3, Karaswada, Mapusa, Goa. ... Respondents Mr. C. A. Ferreira, Public Prosecutor for the appellant. Mr. J. J. Mulgaonkar, Advocate for the respondents. Coram :- A. P. LAVANDE,J. Date : 22 nd October, 2008. ORAL JUDGMENT : 1. Heard Mr. Ferreira, learned Public Prosecutor for the appellant and Mr. J. J. Mulgaonkar, learned Counsel for the respondents. 2 2. This appeal is directed against the judgment and order of acquittal dated 25th August, 2006 passed by the Judicial Magistrate, First Class, “C” Court, Mapusa in OA Criminal Case No.1532/S/2004/F/C. 3. Smt. Iva Fernandes, the Food Inspector attached to Directorate of Food and Drugs Administration, Panaji filed complaint on 21.09.2004 alleging that on 07.06.2004 at about 4.00 p.m., she had visited the premises of the accused at Karaswada, Mapusa, Goa, where she inspected various articles. Thereafter, she served notice on the accused No.1 with the intention of drawing sample of roasted peanuts manufactured and packed for sale in the premises. She purchased three sealed original packets of roasted peanuts and thereafter, sent one sample for analysis, which according to the complainant, was misbranded. The sample was sent to analyst who opined that the same showed presence of Synthetic food colour identified as Sunset Yellow FCF and, therefore, was adulterated within the meaning of Prevention of Food and Adulteration Act (“The Act” for short). It was also observed that on the sample, symbol showing that the food was vegetarian, was not displayed on the packet of the sample and also the list of ingredients used in the product, Batch number, Lot number, Code number etc. were also not specified on the label of the sample packets. The complaint was filed alleging the commission of offences under Section 7(i) read with 3 Section 2(ia)(a)(j), Section 7(ii) read with Section 2(ix)(j)(k) of the Act and Section 7(v) read with Rule 23, 29 and 32 of the Prevention of Food Adulteration Rules, 1955 which is punishable under Section 16 of the Act. The learned Magistrate while explaining substance of accusation, stated that the roasted peanuts were adulterated. The learned Magistrate did not mention that the accused had committed the offence of misbranding punishable under Section 16 of the Act and did not put the ingredients of the said offence to the accused. During the trial, the complainant examined herself as P.W.1, the Public Analyst Mrs. Maria Luisa Caldeira as P.W.2, Smt.Sushila Naik as P.W.3, Panch, who turned hostile. The Magistrate after recording the statement of the accused under Section 313 of Criminal Procedure Code and after hearing the parties, by the impugned judgment, held that the prosecution had not proved that the accused had kept adulterated roasted peanuts for the sale in the premises and consequently, acquitted the accused of all the offences. 4. Aggrieved, the appellant has approached this Court by filing the above appeal. 5. Mr. Ferreira, learned Public Prosecutor appearing on behalf of the appellant, at the outset, submitted that the learned 4 Magistrate has not even put to the accused the ingredients of the offence of misbranding nor while passing the impugned order, this aspect of the matter has been considered by the learned Magistrate. Mr. Ferreira submitted that since the complaint was filed alleging misbranding by the accused, the Magistrate ought to have put the necessary ingredients of misbranding to the accused while explaining the substance of accusation and ought to have dealt with the same while passing the judgment. He further invited my attention to the fact that the complainant and the Public Analyst in their evidence, have clearly deposed about misbranding of substance which was purchased by the complainant on 07.06.2004. He, therefore, submitted that it would be just and proper to set aside the impugned judgment and order and remand the matter to the Magistrate to dispose of the matter after explaining the substance of accusation to the accused. He further invited my attention to the fact that recording of statement under Section 313 of Criminal Procedure Code is sketchy and, therefore, the Magistrate be also directed to put to the accused all the incriminating circumstances appearing against them. He further submitted that in terms of Rule 22 since the roasted peanuts were in packed condition, there was no question of dividing the substance into three samples and in terms of Rule 22, it is permissible for the Food Inspector to send the food sold as it stood for analysis. Mr. Ferreira fairly conceded that in terms of Rule 28 of the Prevention 5 of Food Adulteration Rule, 1955, it is permissible to use the colour sunset yellow FCF and, therefore, addition of said colour to roasted peanuts does not amount to adulteration under the Act. 6. Mr. J.J. Mulgaonkar, learned Counsel for the respondents has no objection if the impugned judgment and order is set aside and and the matter remanded to the Magistrate to dispose it of in the light of the submissions made by Mr. Ferreira. 7. Perusal of the complaint filed discloses that it was the case of the complainant that the symbol of 'vegetarian food', was not displayed on the label of the package of the sample and the list of ingredients used in the products, Batch number, Lot number, Code number, were not also specified on the label of the sample which in terms of Section 2(ix)(j)(k) of the Act amounts to misbranding. The evidence of the complainant and Ms. Maria Caldeira (P.W.2), clearly disclose that the evidence was led on both these aspects, but the same has not been considered by the learned Magistrate. Moreover, in the substance of accusation, the learned Magistrate has not put specifically to the accused the ingredients of the offence of misbranding nor has dealt with the same in the impugned judgment. The complaint discloses commission of offence of misbranding under Section 2(ix)(j) and (k) of the Act. No doubt, non-framing of charge, by itself, is not 6 fatal in a criminal trial in terms of Section 215 of Criminal Procedure Code. However, the fact remains that this was a private criminal case in which the accused ought to have been explained the ingredients of the offence for which they have to face the trial. The learned Magistrate has committed a serious illegality in not explaining the ingredients of the offence of misbranding and, further, not considering the said aspect while passing the judgment. Although, ordinarily in criminal cases remand is normally not granted, considering the facts and circumstances of the case and in view of the concession made by Mr. Mulgaonkar, learned Counsel for the respondents and in the interest of justice, I deem it appropriate to quash and set aside the impugned judgment and order of acquittal and remand the matter to the Magistrate for fresh disposal. I also find that the concession made by Mr.Ferreira that addition of colour sunset yellow FCF does not amount to adulteration under the Act, is well founded and as such the accused cannot be tried for the offence of adulteration punishable under Section 16 of the Act. 8. The learned Magistrate shall explain the substance of accusation to both the accused having regard to the observations made above, and in case, the accused do not plead guilty, shall permit the accused to cross-examine the witnesses already cross-examined during the earlier trial. It is made clear that the evidence already recorded during the earlier trial, shall be also considered by the learned 7 Magistrate after giving an opportunity to the accused to cross-examine the witnesses. The learned Magistrate shall record statement of the accused under Section 313 of Criminal Procedure Code by putting all the incriminating circumstances appearing against them and after giving opportunity to the accused to lead evidence, if any, shall pass an appropriate order in accordance with law. It is made clear that I have not expressed any opinion on merits of the matter and the learned Magistrate shall decide the case on its own merits in accordance with law. 9. In view of the above, the appeal is partly allowed. The judgment and order of acquittal dated 25.08.2006 recorded by the learned Magistrate, is quashed and set aside and the matter is remanded to the learned Magistrate for disposal in the light of the observations made and the directions given above. The accused shall appear before the learned Judicial Magistrate, First Class, 'C' Court, Mapusa on 16.12.2008 at 10.00 a.m. Since the criminal case is of the year 2004, the Magistrate shall dispose of the same expeditiously and in case on or before 30th April, 2009. Bail bonds executed by the respondents stand discharged. The appeal is disposed of. A. P. LAVANDE, J. SMA 8