He then made reference to the ruling in
the case of State of Maharashtra Vs. Nizamuddin Haji
Mohamed Kasam reported in 1978 Mah L J 775.
This
Court following the ruling reported in AIR 1961 SC 1 held that
when the report of the Director superseded the report of the
Public Analyst, the charge would be different, the adulteration
being of different kind, that the prosecution could not proceed
on the charge based on report of the Public Analyst and that
the fresh sanction would be necessary to proceed on the
charge based on the report of the Director.
CRIMINAL APPEAL NO. 333 OF 2000
State of Maharashtra through
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
Shri S. G. Dharme, Food Inspector,
Akola C/o Office of Asstt. Commissioner,
Food & Drug Administration, M.S. Akola,
In front of Jatharpeth Police Chowki,
-: Versus :-
1. Rajesh Tulsidas Lohane,
CORAM : A. P. BHANGALE, J.
JUDGMENT PRONOUNCED ON : 09th JULY, 2012
JUDGMENT:
passed by the Learned 6th Judicial Magistrate First Class, Akola
in Criminal Case No. 415 of 1993, whereby the respondent
2.
Facts stated briefly are:-
were acquitted.
On 07/04/1992, the complainant Food Inspector
Shri S.G. Dharme along with the witness Gajanan Bansilal
Agrawal visited the grocery shop namely; M/s Navjivan Tel
Kendra situated at Rajeshwar Mandir Road, Jaihind Chawk, old
Shop.
City, Akola. The accused No. 1 - Rajesh was sitting in the
Various kinds of edible Oils, Tea powder, Sugar,
Turmeric Powder were kept for Sale. On being inquired, the
Food Inspector was told that the accused No. 2 - Tulsidas is
proprietor of the shop. The complainant after disclosing his
identity had inspected the shop and prepared inspection note.
He found that the Groundnut Oil was kept for sale in a tin.
The Food Inspector asked 375 grams of the Groundnut Oil
from the said tin for analysis by paying it's price of Rs. 13.50
Ps to the accused no. 1 and obtained the receipt in the
presence of the Pancha namely Gajanan and sent the sample
for the analysis to the Local Health Authority. Report was
received on 26/05/1992 mentioning that the sample was
found adulterated as it was having the presence of the Castor
Seed Oil. The case papers and the report were sent to the
Joint Commissioner, Food and Drug Administration, Nagpur
Health
Authority
for
consent
to
launch
the
through
some
typographical
error.
prosecution. The consent was accorded on 22/01/1993 with
Hence,
referred
back
for
correction . On 07/05/1993, the corrected consent order was
received.
The complaint was lodged on 13/05/1993.
The
second part of the sample was sent to the Central Food
which
also
reported
that
the
sample
was
Laboratory
ig
adulterated recording that Bellier Turbidity Temperature,
acidic acid moved 37.50C which was found below the standard
mentioned in the Food Adulteration Act, but the report was
not mentioning about the presence of the Castor Seed Oil.
The charge was framed by the trial Court. The accused
pleaded not guilty and claimed to be tried. The trial Judge felt
that there was no sanction order after the receipt of the
report from the Central Food Laboratory on the point of low
temperature of Bellier test and took the view that non
obtaining
of
the
fresh
consent
order
from
the
Joint
Commissioner was fatal to the prosecution case and thus
acquitted the accused.
3.
Learned APP submitted that the view of the trial
Court that fresh consent order was required is erroneous as
the prosecution was already launched and as per statutory
requirement, second part of the sample was sent to the
Central Food Laboratory for analysis. Joint Commissioner had
already accorded the sanction to launch the prosecution. It is
submitted that according to law, the accused has choice to
send the sample to the another agency and even if the report
is contrary, it must not be considered as fatal to the
prosecution. It is thus submitted that there was no need to
have fresh or second sanction to continue the prosecution.
Learned Advocate for the respondent, however,
4.
Learned APP submitted that the acquittal was merit less.
under
the
respondent
submitted that the view of the trial Court was just and proper
circumstances.
argued
Learned
that the
Advocate
prosecution
for
the
had failed
to
establish the fact that documents were dispatched as referred
to Rule 18 of the Prevention of Food Adulteration Rules , 1955
and the prosecution version of the dispatch by Registered
Post is not acceptable in the absence of the original Postal
receipt. Reliance is placed upon the ruling in the case of
State of Maharashtra Versus Rajkaran reported in 1987
(Supp) SCC 183. He then made reference to the ruling in
the case of State of Maharashtra Vs. Nizamuddin Haji
Mohamed Kasam reported in 1978 Mah L J 775.
This
Court following the ruling reported in AIR 1961 SC 1 held that
when the report of the Director superseded the report of the
Public Analyst, the charge would be different, the adulteration
being of different kind, that the prosecution could not proceed
on the charge based on report of the Public Analyst and that
the fresh sanction would be necessary to proceed on the
charge based on the report of the Director.
5.
I have considered the submissions advanced before
me, the rulings cited and the record. In the case of State of
Maharashtra Vs. Nizamuddin this Court had, after making
reference to earlier rulings, observed in para 7 thus;
“In any case if, as is conceded, the report of the
Central Food Laboratory supersedes the report of
the Public Analyst, a charge in terms of that
report will have to be framed by the learned
Magistrate. He can not do so unless a sanction
for the offence with which now the accused would
be charged is given by the consenting authority.
Since such a sanction has not been given for the
institution of a prosecution for the offence now
disclosed by the report of the Central Food
Laboratory, the Magistrate could not legally
proceed with this case.”
6.
In other words, where different ingredients of the
offence are disclosed by the report of the Central Food
Laboratory, fresh application of mind was necessary to the
new facts before a consent could be given.
Looking in to
rulings cited on behalf of the respondent and the reasons
given by the learned trial Court Magistrate, therefore, it must
be said that there was no proper compliance to Rule 17 and
18 of the Prevention of Food Adulteration Rules, 1955 as
xerox copy of the postal receipt produced by the complainant
was found in respect of a different pending case. As per
report of the Central Food Laboratory Castor Oil was not
found in the sample on the basis of which the complaint was
lodged, the sample had also failed on the ground that in the
Central Food Laboratory Bellier Turbidity temperature was
found less than 1.5 per cent. However, in Public Analyst
Report Bellier temperature was found up to the mark.
No
care was taken to explain the discrepancies and to cure the
prosecution by obtaining fresh sanction or consent.
Hence,
no fault is found in the impugned Judgment and Order.
7.
Furthermore, in an Appeal against acquittal, the
High Court has to be very slow to interfere in a case wherein
two views are possible, although the view of the Appellate
Court may be more probable. The presumption of innocence
gets strengthened by an order of acquittal. In the present
case the view of the trial Court cannot be labeled as perverse
or otherwise unsustainable. No any compelling or substantial
ground is found for to upset the decision by the trial court as
the view expressed by the trial court was just and reasonable
under the circumstances. Hence, Appeal has to be dismissed.
Appeal is dismissed.
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