Another dispute raised by the learned counsel for
applicant was that when the sample of oil was taken, the oil was
not stirred. It was argued that, the complainant has admitted in
cross-examination that he did not stir the oil. The learned
counsel argued that, before the trial Court, various rulings were
referred which mentioned that while taking the sample, the
same should be stirred. It was argued that, this is necessary to
make the sample homogeneous and to ensue that the sample
represents the whole. The counsel submitted that, the trial
Court ignored the rulings requiring that the sample should be
stirred by on its own referring to judgment of Gujarat High
Court in the matter of State of Gujarat Vs. Haidarali reported in
1999 FAJ 369 to record that what is required for taking sample
of milk is not the requirement for taking sample of oil.
If the judgment of the trial Court in para 20 is
perused, it can be seen that the rulings referred by the accused
were regarding drawing of sample of milk, and the trial Court
reproduced portion from the judgment in the matter of Hyder Ali
(supra) to observe that Food Inspector is not required to stir the
entire oil before collecting the sample. This argument was
raised even before the Sessions Court and the Sessions Court
also did not find that there was any error when the trial Court
relied on the case of Hyder Ali. I have gone through the
judgment in the matter of State of Gujarat Vs. Hyder Ali,
reported in 2001 (1) FAC 234. The Single Judge of the Gujarat
High Court looked into the aspects of taking of sample when it is
a matter of milk and the aspects required to be looked into when
it is a matter of taking of sample of oil and found that nothing is
pointed out to suggest that fat in oil also (like milk) settles on
the top and, therefore, is required to be stirred. In the present
matter, the learned counsel has not shown me any material on
the basis of which it can be said that even for taking sample of
oil it would be necessary to stir the groundnut oil otherwise the
same would not represent the whole. I do not find that there is
anything incorrect with the reasonings and findings recorded by
the Courts below on this count also.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.264 OF 2010
Kantilal s/o Parasmal Jain,
VERSUS
The State of Maharashtra
CORAM: A.I.S. CHEEMA, J.
DATED: 25th April, 2014.
Citation; 2014 ALLMR(cri) 2276
Date of pronouncing judgment : 25/4/2014
Read original judgment here;click here
1. This Criminal revision Application has been filed by
applicant- original accused (hereinafter referred to as the
accused), who was convicted in R.C.C. No.127/1998 on
6.11.2008 by Judicial Magistrate, First Class, Shindkheda and
sentenced to suffer R.I. for 6 months and to pay fine of Rs.3000/-
and in default, to undergo further S.I. for 1 month for offence
punishable under Section 7 read with 16 of the Prevention of
Food Adulteration Act, 1954 (the Act for short) and his Criminal
Appeal no.132/2008 to Additional Sessions Judge, Dhule has
been dismissed on 8.10.2010.
2. Facts of the prosecution case in brief are as under :
Accused was running grocery shop “Anil Provisions”
at Pashte, Taluka Shindkheda, District Dhule. On 18.1.1997 at
about 11.30 a.m. Food Inspector R.I. Jethar (hereinafter referred
to as complainant P.W.1) went to the shop of accused along with
Panch Ashok Sonawane. Complainant disclosed his identity and
intention to draw sample. In the shop there was an open tin box
containing 10 Kg. of groundnut oil, which was stored for sale.
Complainant purchased 450 Gms. of groundnut oil from the
accused and paid price for the same. Samples were taken of
iodized salt and turmeric powder also (but case regarding those
articles has not been filed and so detailed reference is not
necessary). For the purchase of groundnut accused issue cash
memo in his handwriting and signature. Complainant purchased
the groundnut oil in clean, dry and empty stainless steel pot and
divided the oil purchased into three parts in three clean, dry and
empty glass bottles and duly sealed the same and labeled the
same. Accused was given notice under Section 14-A of the Act.
Accused disclosed on the copy of notice that the bills in respect
of purchase of the food articles were not available with him.
Panchanama of the incident was prepared.
On 19.11.1997, the complainant prepared Form VII
and one sealed packet containing one part of the sample along
with memorandum in Form VII was sent to Public Analyst, Pune.
Receipt of the Public Analyst was received. On 19.11.1997 itself
sealed packet containing copy of the memorandum in Form VII
and specimen impression of seal was sent to Public Analyst,
Pune along with covering letter. Receipt of the same was
received from the Public Analyst. On same day sealed packet
containing remaining part of sample along with copies of
memorandum in Form VII and covering letter were sent to Local
Health Authority and Assistant Commissioner, Food and Drugs
Authority, Dhule. Receipt of the same was also received. Two
copies of specimen impression of seal and copies of
memorandum in Form VII were also sent to Local Health
Authority & Assistant Commissioner. Receipt of the same was
also received. Complainant received report of the Public Analyst
informing that the sample did not confirm to the standards of
groundnut oil as per the Prevention of Food Adulteration Rules,
1955 (hereinafter referred to as the Rules). Complainant issued
notice to accused calling upon him to produce documents
regarding his firm and accused sent letter in reply. Complainant
moved the licensing authority and the licensing authority issued
letter that the accused was not issued any license for conducting
the business.
Complainant, vide letter dated 23.2.1998, sent the
documents to Joint Commissioner of Food & Drugs
Administration, Nasik for sanction. The sanction was received
and complaint came to be filed. P.W.3 Shashikant Patil on
19.9.1998 gave intimation to the accused under Section 13(2) of
the Act and postal acknowledgement of accused was received.
Concurrent Findings
3. The complainant led evidence before charge and
thereafter charge came to be framed against the accused under
Section 7(i) read with (1a)(a) and Section 2(ia)(m) and Section
7(v) of the Act read with Rule 50 read with Rule 5 of the
Maharashtra Prevention of Food Adulteration Rules, 1962
(Maharashtra Rules in short), punishable under Section 16 of the
Act. The accused pleaded not guilty and was tried. The
complainant brought on record further evidence and after
completion of the trial, the accused came to be convicted as
above and his appeal has been dismissed as mentioned.
4. I have heard learned counsel for the applicant/
accused and learned A.P.P. for the State. The present revision
has been filed against concurrent findings and keeping in view
the scope of revision, the consideration is whether it could be
said that the judgment and orders passed are correct, legal and
proper. Unless the applicant is able to show that the same is not
correct, not legal or not proper, interference would not be called
for.
Compliance of Section 13 of the Act
5. The first question raised by the learned counsel for
applicant was that there is non compliance of Section 13 of the
Act. Section 13 of the Act requires that, on the institution of the
prosecution against the person from whom sample of the article
of food was taken, a copy of the report of the result of the
analysis is required to be sent to the person informing that if the
person (herein the accused) so desires, he may make an
application to the Court within 10 days from the date of receipt
of the copy of the report to get the sample of article of food kept
by the Local Health Authority analysed by the Central Food
Laboratory. The learned counsel for applicant referred to para
17 of the evidence of P.W.1 in support of his argument to say
that the P.W.1/ Complainant Jathar admitted that he had not
issued notice to the accused under Section 13 of the Act. On
record there is evidence of complainant’s witness No.3 Mr. Patil.
He was working as Assistant Commissioner with Local Health
Authority at Dhule and he has deposed that, after the complaint
was lodged by the complainant on 18.9.1998, he, on 19.9.1998
sent letter Exh.73 (copy of which is proved by complainant at
Exh.52) to the complainant. This letter informed the
complainant regarding the report and informed him regarding
the complaint filed and also informed the applicant/ accused that
if he so desires, he can make application to the Court for sending
the sample of article of food kept with the Local Health Authority
to the Central Food Laboratory. The evidence of complainant’s
witness No.3 Mr. Patil shows that, Exh.73 was sent to the
accused and the postal acknowledgement was received. The
postal acknowledgement has been proved at Exh.74. C.W.3
deposed that the same bears signature of the accused. Crossexamination
of C.W.3 does not show any challenge to sending of
such letter Exh.73 (copy Exh.52) and that the acknowledgement
Exh.74 bears signature of the accused. Trial Court discussed
challenge raised on this count in para 32 to 34 of its judgment
and the Sessions Judge has also considered the challenge raised
on this count in paras 15 and 16 of its judgment. I do not find
that there is any error in these reasonings and findings recorded
by the courts below. There is no substance in the claim that
there is non compliance of Section 13 of the Act.
Stirring of Oil ?
6. Another dispute raised by the learned counsel for
applicant was that when the sample of oil was taken, the oil was
not stirred. It was argued that, the complainant has admitted in
cross-examination that he did not stir the oil. The learned
counsel argued that, before the trial Court, various rulings were
referred which mentioned that while taking the sample, the
same should be stirred. It was argued that, this is necessary to
make the sample homogeneous and to ensue that the sample
represents the whole. The counsel submitted that, the trial
Court ignored the rulings requiring that the sample should be
stirred by on its own referring to judgment of Gujarat High
Court in the matter of State of Gujarat Vs. Haidarali reported in
1999 FAJ 369 to record that what is required for taking sample
of milk is not the requirement for taking sample of oil.
If the judgment of the trial Court in para 20 is
perused, it can be seen that the rulings referred by the accused
were regarding drawing of sample of milk, and the trial Court
reproduced portion from the judgment in the matter of Hyder Ali
(supra) to observe that Food Inspector is not required to stir the
entire oil before collecting the sample. This argument was
raised even before the Sessions Court and the Sessions Court
also did not find that there was any error when the trial Court
relied on the case of Hyder Ali. I have gone through the
judgment in the matter of State of Gujarat Vs. Hyder Ali,
reported in 2001 (1) FAC 234. The Single Judge of the Gujarat
High Court looked into the aspects of taking of sample when it is
a matter of milk and the aspects required to be looked into when
it is a matter of taking of sample of oil and found that nothing is
pointed out to suggest that fat in oil also (like milk) settles on
the top and, therefore, is required to be stirred. In the present
matter, the learned counsel has not shown me any material on
the basis of which it can be said that even for taking sample of
oil it would be necessary to stir the groundnut oil otherwise the
same would not represent the whole. I do not find that there is
anything incorrect with the reasonings and findings recorded by
the Courts below on this count also.
Taking sample in clean, dry bottles - Rule 14
7. It has been then argued by the learned counsel for
the applicant- accused that, while taking the sample, there was
no compliance with Rule 14. Rule 14 requires that the samples
of the food for the purposes of analysis shall be taken in clean,
dry bottles or jars or any other suitable container which shall be
closed sufficiently tight to prevent leakage, evaporation or in the
case of dry substance entrance of moisture, and shall be
carefully sealed. The argument is that the evidence does not
show that bottles in which the samples were drawn were clean
and dry. Reliance has been placed on the case of State of
Maharashtra Vs. Bhaskar Rajeshwar Gangshettiwar & ors.,
reported in 2003 Bom.C.R. (Cri.) 1617.
8. If evidence of the complainant is perused, he clearly
deposed (in para 2) that he purchased the said groundnut oil in a
clean, dry and empty stainless steel pot and that he divided the
sample into three equal parts and thereafter it was kept in three
clean, dry and empty glass bottles. The panchanama (Exh. 33)
proved on record also mentioned that the complainant bought
the groundnut oil after it was weighed, in clean, dry and empty
stainless steel pot and then the same was divided into three
parts and filled in clean, dry and empty glass bottles. If the
cross-examination of the complainant on this count is perused, it
cannot be said that the complainant has been shattered in this
regard. Trial Court dealt with challenge on this count in paras
13 to 19 of its judgment and the rulings relied on were discussed
and the above judgment in the matter of “Bhaskar” was
distinguished. In the matter of Bhaskar, as para 7 of the
judgment would indicate, there was admission of the Food
Inspector that he did not clean the weighing measure while
obtaining the sample.
9. The Sessions Court also dealt with this aspect in para
13 of its judgment and found that the evidence of P.W.1 that he
had taken the sample of groundnut oil in a clean dry and empty
stainless steel pot and that it was divided into three equal parts
and thereafter it was put in three clean dry and empty glass
bottles, needs to be accepted. Having gone through the record,
I find no reason to disagree with the Courts below on this count.
The panchanama is also speaking on this count, and there is oral
evidence of the complainant which remains unshattered in the
cross-examination.
Quantity of sample sent - Rule 22
10. Further challenge raised on behalf of the applicant is
on the basis that, Rule 22 has been violated. Learned counsel
for applicant referred to Rule 22 relating to quantity of sample
which is required to be sent to Public Analyst. The rule
mentioned that quantity of sample of food to be sent to Public
Analyst/ Director for analysis shall be as specified in the table
given in the Section. The table has two columns, one of article
of food and second of “approximate” quantity to be supplied.
Entry No.13, which deals with Vanaspati and edible oil and fat
requires that the approximate quantity should be 250 Gms. The
argument is that, the evidence on record shows and it is borne
out even from the panchanama that the complainant purchased
only 450 Gms. of groundnut oil and divided the same in 3 parts,
which means that every part was of 150 Gms. The counsel
submitted that, it means that the sample sent to the Public
Analyst was of less than 250 Gms. as required. The counsel
relied on the case of Rajal Das Guru Namal Pamanani Vs. The
State of Maharashtra, reported in AIR 1975 SC 189. Relying on
the said judgment, the counsel argued that the Supreme Court
has observed that the appellant in that matter rightly contended
that non compliance of the quantity to be supplied amounts to
not only infraction of the provisions but also injustice.
11. Firstly, the Advocate for the applicant wrongly
referred to Rule 22 as was inserted vide G.S.R. 530(E), dated
29.7.2002 (w.e.f. 29.1.2003). I am concerned with incident
dated 18.11.1997. Earlier Rule 22 substituted vide G.S.R. 1340,
dated 7.10.1961 required the sample of edible oil to be 125 gms.
The counsel for petitioner has not shown than on 18.11.1997,
the quantity collected was insufficient. Secondly, the judgment
relied on is of 3rd December 1974. By G.S.R. 775(E), dated
27.12.1997, Rule 22(B) was inserted in the rules, which reads as
under :
“22-B. Quantity of sample sent to be
considered as sufficient:- Notwithstanding
anything contained in Rule 22 and Rule 22-C, the
quantity of sample sent for analysis shall be
considered as sufficient unless the Public Analyst
or the Director reports to the contrary."
12. The above rule inserted subsequent to the ruling
relied on makes it clear that the quantity sent for analysis shall
be considered as sufficient unless the Public Analyst or Director
reports to the contrary. In the present matter, the report of the
Public Analyst is at Exh. 42. The Public Analyst did not report
that quantity received was insufficient. As such, there is no
substance in argument raised on this count.
Written Consent - Section 20
13. It was then argued that, the consent order issued in
the present matter did not comply with Section 20 of the Act.
The argument is that, the prosecution for the offence under the
Act cannot be instituted without written consent of the Central
Government or State Government or a person authorized in this
behalf by general or special order, by the Central Government or
State Government. It was argued that, the consent order in the
matter which is at Exh.49, does not show application of mind by
the Joint Commissioner, Nasik Division, Food & Drug
Administration. The counsel relied on the case of The state of
Maharashtra Vs. Hirji Dhanji Shah reported in 1998 Cri.L.J.
1828.
14. Regarding the consent order, record of the trial
Court shows evidence of complainant disclosing the various
steps he took for collecting the evidence. Then, he forwarded
documents to the Joint Commissioner, Nasik for sanction
through Assistant Commissioner, Food & Drugs Administration,
Dhule. He proved document Exh.48 in this regard and the
sanction or consent order at Exh.49. Exh.49 proved by the
complainant shows that the Jt. Commissioner considered steps
taken by the complainant and report of the Public Analyst and
recorded the fact that the sample failed the test for B.R. Read in
reading Iodine value and Bellies test. Going through the record,
the Joint Commissioner recorded that the sample did not confirm
to the standards of groundnut oil as per the Rule. Consequently,
making specific reference to the rules concerned, the Joint
Commissioner gave the consent order. Going through such
material on record, I find that the judgment in the matter of
"Hirji Dhanji Shah" mentioned above is not of any assistance to
the applicant- accused. In that matter, the consent order said
that the Commissioner had considered the report of Public
Analyst and came to the conclusion that it was fit case for
prosecution. In such situation, it was observed that the order
was lacking relevant materials as to on what point food articles
had been referred to the Public Analyst, what are the materials
to be considered while issuing the order etc. In the present
matter, the evidence shows that there was sufficient material
which was placed before the Joint Commissioner and the order
disclosed application of mind. It cannot be said that, mechanical
order was passed. The trial Court has considered challenge on
this count in para 35 of its judgment and it did not find infirmity
with the consent order. Having independently looked into the
aspects, I do not find any reason to disagree with the trial Court.
Other Objections
15. The learned counsel for applicant then tried to raise
certain doubts. He referred to Exhs.36 and 38 wondering as to
how both receipts of the Public Analyst which are of different
dates, are having same number 12645. It is also argued that,
complainant deposed (in para 4) that he sent sample and copy of
the memorandum and specimen impression vide Exhs.35 and 37
for which receipts Exhs.36 and 38 had been proved. It was
argued that, postal receipts were not proved although it was
claimed that Exhs.35 and 37 were sent by registered post A.D.
Evidence of complainant shows that vide Exh.35, a
sample was sent. Exh.36 is receipt of Public Analyst of the
sample. Vide Exh.37, copy of memorandum in Form VII and
specimen impression of the seal was sent and Exh.38 is receipt
of the same. Exhs.36 and 38 which are printed receipts, had
different wordings. Exh.36 had printed wordings regarding
receipt of sealed container in respect of the sample and Exh.38
had printed wording regarding receipt of memorandum and
specimen impression. If for given cases received for analysis,
while issuing different receipts, Public Analyst keeps the
common number for the purpose of record or cross check, that
by itself cannot be reason for creating doubts first time at the
stage of revision. When receipts of Public Analyst are available,
only because postal receipts of sending of Exhs.35 and 37 have
not been filed, cannot be a reason for asking to throw out the
case of prosecution.
16. Yet another dispute raised was that, postal
acknowledgement (Exh.44) on record showed the address as
that of “Holy Provision” whereas the name of shop of the
applicant- accused was “Anil Provisions”. At the time of
arguments, the counsel for applicant was unable to show from
the cross-examination of complainant that signature on Exh.44
was denied by the accused. The evidence of complainant shows
that, he had sent letter Exh.43 to the applicant- accused seeking
information regarding his firm and Exh.44 is acknowledgement
of that letter. The argument of the counsel loses significance
when the further evidence of the complainant is seen that the
accused replied to the letter Exh.43, vide his letter Exh.47,
which showed not only the applicant- accused admitting that
complainant bought the groundnut oil from him on 18.11.1997
but also stating that he did not have bill showing his own
purchase.
17. The other argument on behalf of the applicant that in
Exh.34 the memorandum to Public Analyst Form VII regarding
date and place of collection mentioned only the name of village
and not the shop of the applicant- accused needs to be referred
and ignored as there is no substance in this argument. The
format did not require address as such to be given.
Nature of Trial
18. It was then argued that, the proceedings in the trial
Court were conducted as a Regular Trial and not summary trial
as reuired by Section 16-A. Reliance is placed on the case of
Devakakonda Ramesh Vs. The State of A.P., through Food
Inspector, Adilabad, reported in 2003(1) FAC 245. In that
matter, there was non compliance of Section 13(2) of the Act and
it was observed by the Single Judge of the Andhra Pradesh High
Court that the petitioner-accused could not be deprived of a
speedy trial by the mistake of the Magistrate and hence the trial
was vitiated.
I find that, there is no doubt that Section 16-A
provides that the Court has power to try the cases summarily.
However, no grievance was made in the trial Court or in the
appellate Court that because the case was being tried as per
warrant trial procedure, the applicant-accused is suffering. In
fact, procedure under the warrant trial is more elaborate and
gives better opportunity. Had it been a case that the law
required warrant trial procedure to be adopted, and summary
procedure was adopted, it could be said that the accused is
prejudiced. However, the same could not be in vice versa
condition. Only because warrant trial procedure was adopted,
the accused cannot be said to be prejudiced and it cannot be
held that proceedings get vitiated and need to be thrown out.
The Act is for public health and offences of Food Adulteration
are serious offences. There is need to balance justice between
society at large and accused. Accused in such matters cannot be
allowed to cling to technicalities just to escape, without
prejudice as such being shown on record.
Conclusion
19. For reasons mentioned above, there is no substance
in this revision application. The learned counsel for applicant
argued in the alternative that the applicant was earlier in
custody for about one and half month and the matter was
pending for long and so leniency may be shown. The offence is
against public health. Oil is basic ingredient in cooking and its
adulteration severely affects health of public. No leniency is
called for.
20. There is no substance in the revision application.
The revision application is rejected. The applicant- accused shall
surrender to his bail bonds.
(A.I.S. CHEEMA, J.)
Print Page
applicant was that when the sample of oil was taken, the oil was
not stirred. It was argued that, the complainant has admitted in
cross-examination that he did not stir the oil. The learned
counsel argued that, before the trial Court, various rulings were
referred which mentioned that while taking the sample, the
same should be stirred. It was argued that, this is necessary to
make the sample homogeneous and to ensue that the sample
represents the whole. The counsel submitted that, the trial
Court ignored the rulings requiring that the sample should be
stirred by on its own referring to judgment of Gujarat High
Court in the matter of State of Gujarat Vs. Haidarali reported in
1999 FAJ 369 to record that what is required for taking sample
of milk is not the requirement for taking sample of oil.
If the judgment of the trial Court in para 20 is
perused, it can be seen that the rulings referred by the accused
were regarding drawing of sample of milk, and the trial Court
reproduced portion from the judgment in the matter of Hyder Ali
(supra) to observe that Food Inspector is not required to stir the
entire oil before collecting the sample. This argument was
raised even before the Sessions Court and the Sessions Court
also did not find that there was any error when the trial Court
relied on the case of Hyder Ali. I have gone through the
judgment in the matter of State of Gujarat Vs. Hyder Ali,
reported in 2001 (1) FAC 234. The Single Judge of the Gujarat
High Court looked into the aspects of taking of sample when it is
a matter of milk and the aspects required to be looked into when
it is a matter of taking of sample of oil and found that nothing is
pointed out to suggest that fat in oil also (like milk) settles on
the top and, therefore, is required to be stirred. In the present
matter, the learned counsel has not shown me any material on
the basis of which it can be said that even for taking sample of
oil it would be necessary to stir the groundnut oil otherwise the
same would not represent the whole. I do not find that there is
anything incorrect with the reasonings and findings recorded by
the Courts below on this count also.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.264 OF 2010
Kantilal s/o Parasmal Jain,
VERSUS
The State of Maharashtra
CORAM: A.I.S. CHEEMA, J.
DATED: 25th April, 2014.
Citation; 2014 ALLMR(cri) 2276
Date of pronouncing judgment : 25/4/2014
Read original judgment here;click here
1. This Criminal revision Application has been filed by
applicant- original accused (hereinafter referred to as the
accused), who was convicted in R.C.C. No.127/1998 on
6.11.2008 by Judicial Magistrate, First Class, Shindkheda and
sentenced to suffer R.I. for 6 months and to pay fine of Rs.3000/-
and in default, to undergo further S.I. for 1 month for offence
punishable under Section 7 read with 16 of the Prevention of
Food Adulteration Act, 1954 (the Act for short) and his Criminal
Appeal no.132/2008 to Additional Sessions Judge, Dhule has
been dismissed on 8.10.2010.
2. Facts of the prosecution case in brief are as under :
Accused was running grocery shop “Anil Provisions”
at Pashte, Taluka Shindkheda, District Dhule. On 18.1.1997 at
about 11.30 a.m. Food Inspector R.I. Jethar (hereinafter referred
to as complainant P.W.1) went to the shop of accused along with
Panch Ashok Sonawane. Complainant disclosed his identity and
intention to draw sample. In the shop there was an open tin box
containing 10 Kg. of groundnut oil, which was stored for sale.
Complainant purchased 450 Gms. of groundnut oil from the
accused and paid price for the same. Samples were taken of
iodized salt and turmeric powder also (but case regarding those
articles has not been filed and so detailed reference is not
necessary). For the purchase of groundnut accused issue cash
memo in his handwriting and signature. Complainant purchased
the groundnut oil in clean, dry and empty stainless steel pot and
divided the oil purchased into three parts in three clean, dry and
empty glass bottles and duly sealed the same and labeled the
same. Accused was given notice under Section 14-A of the Act.
Accused disclosed on the copy of notice that the bills in respect
of purchase of the food articles were not available with him.
Panchanama of the incident was prepared.
On 19.11.1997, the complainant prepared Form VII
and one sealed packet containing one part of the sample along
with memorandum in Form VII was sent to Public Analyst, Pune.
Receipt of the Public Analyst was received. On 19.11.1997 itself
sealed packet containing copy of the memorandum in Form VII
and specimen impression of seal was sent to Public Analyst,
Pune along with covering letter. Receipt of the same was
received from the Public Analyst. On same day sealed packet
containing remaining part of sample along with copies of
memorandum in Form VII and covering letter were sent to Local
Health Authority and Assistant Commissioner, Food and Drugs
Authority, Dhule. Receipt of the same was also received. Two
copies of specimen impression of seal and copies of
memorandum in Form VII were also sent to Local Health
Authority & Assistant Commissioner. Receipt of the same was
also received. Complainant received report of the Public Analyst
informing that the sample did not confirm to the standards of
groundnut oil as per the Prevention of Food Adulteration Rules,
1955 (hereinafter referred to as the Rules). Complainant issued
notice to accused calling upon him to produce documents
regarding his firm and accused sent letter in reply. Complainant
moved the licensing authority and the licensing authority issued
letter that the accused was not issued any license for conducting
the business.
Complainant, vide letter dated 23.2.1998, sent the
documents to Joint Commissioner of Food & Drugs
Administration, Nasik for sanction. The sanction was received
and complaint came to be filed. P.W.3 Shashikant Patil on
19.9.1998 gave intimation to the accused under Section 13(2) of
the Act and postal acknowledgement of accused was received.
Concurrent Findings
3. The complainant led evidence before charge and
thereafter charge came to be framed against the accused under
Section 7(i) read with (1a)(a) and Section 2(ia)(m) and Section
7(v) of the Act read with Rule 50 read with Rule 5 of the
Maharashtra Prevention of Food Adulteration Rules, 1962
(Maharashtra Rules in short), punishable under Section 16 of the
Act. The accused pleaded not guilty and was tried. The
complainant brought on record further evidence and after
completion of the trial, the accused came to be convicted as
above and his appeal has been dismissed as mentioned.
4. I have heard learned counsel for the applicant/
accused and learned A.P.P. for the State. The present revision
has been filed against concurrent findings and keeping in view
the scope of revision, the consideration is whether it could be
said that the judgment and orders passed are correct, legal and
proper. Unless the applicant is able to show that the same is not
correct, not legal or not proper, interference would not be called
for.
Compliance of Section 13 of the Act
5. The first question raised by the learned counsel for
applicant was that there is non compliance of Section 13 of the
Act. Section 13 of the Act requires that, on the institution of the
prosecution against the person from whom sample of the article
of food was taken, a copy of the report of the result of the
analysis is required to be sent to the person informing that if the
person (herein the accused) so desires, he may make an
application to the Court within 10 days from the date of receipt
of the copy of the report to get the sample of article of food kept
by the Local Health Authority analysed by the Central Food
Laboratory. The learned counsel for applicant referred to para
17 of the evidence of P.W.1 in support of his argument to say
that the P.W.1/ Complainant Jathar admitted that he had not
issued notice to the accused under Section 13 of the Act. On
record there is evidence of complainant’s witness No.3 Mr. Patil.
He was working as Assistant Commissioner with Local Health
Authority at Dhule and he has deposed that, after the complaint
was lodged by the complainant on 18.9.1998, he, on 19.9.1998
sent letter Exh.73 (copy of which is proved by complainant at
Exh.52) to the complainant. This letter informed the
complainant regarding the report and informed him regarding
the complaint filed and also informed the applicant/ accused that
if he so desires, he can make application to the Court for sending
the sample of article of food kept with the Local Health Authority
to the Central Food Laboratory. The evidence of complainant’s
witness No.3 Mr. Patil shows that, Exh.73 was sent to the
accused and the postal acknowledgement was received. The
postal acknowledgement has been proved at Exh.74. C.W.3
deposed that the same bears signature of the accused. Crossexamination
of C.W.3 does not show any challenge to sending of
such letter Exh.73 (copy Exh.52) and that the acknowledgement
Exh.74 bears signature of the accused. Trial Court discussed
challenge raised on this count in para 32 to 34 of its judgment
and the Sessions Judge has also considered the challenge raised
on this count in paras 15 and 16 of its judgment. I do not find
that there is any error in these reasonings and findings recorded
by the courts below. There is no substance in the claim that
there is non compliance of Section 13 of the Act.
Stirring of Oil ?
6. Another dispute raised by the learned counsel for
applicant was that when the sample of oil was taken, the oil was
not stirred. It was argued that, the complainant has admitted in
cross-examination that he did not stir the oil. The learned
counsel argued that, before the trial Court, various rulings were
referred which mentioned that while taking the sample, the
same should be stirred. It was argued that, this is necessary to
make the sample homogeneous and to ensue that the sample
represents the whole. The counsel submitted that, the trial
Court ignored the rulings requiring that the sample should be
stirred by on its own referring to judgment of Gujarat High
Court in the matter of State of Gujarat Vs. Haidarali reported in
1999 FAJ 369 to record that what is required for taking sample
of milk is not the requirement for taking sample of oil.
If the judgment of the trial Court in para 20 is
perused, it can be seen that the rulings referred by the accused
were regarding drawing of sample of milk, and the trial Court
reproduced portion from the judgment in the matter of Hyder Ali
(supra) to observe that Food Inspector is not required to stir the
entire oil before collecting the sample. This argument was
raised even before the Sessions Court and the Sessions Court
also did not find that there was any error when the trial Court
relied on the case of Hyder Ali. I have gone through the
judgment in the matter of State of Gujarat Vs. Hyder Ali,
reported in 2001 (1) FAC 234. The Single Judge of the Gujarat
High Court looked into the aspects of taking of sample when it is
a matter of milk and the aspects required to be looked into when
it is a matter of taking of sample of oil and found that nothing is
pointed out to suggest that fat in oil also (like milk) settles on
the top and, therefore, is required to be stirred. In the present
matter, the learned counsel has not shown me any material on
the basis of which it can be said that even for taking sample of
oil it would be necessary to stir the groundnut oil otherwise the
same would not represent the whole. I do not find that there is
anything incorrect with the reasonings and findings recorded by
the Courts below on this count also.
Taking sample in clean, dry bottles - Rule 14
7. It has been then argued by the learned counsel for
the applicant- accused that, while taking the sample, there was
no compliance with Rule 14. Rule 14 requires that the samples
of the food for the purposes of analysis shall be taken in clean,
dry bottles or jars or any other suitable container which shall be
closed sufficiently tight to prevent leakage, evaporation or in the
case of dry substance entrance of moisture, and shall be
carefully sealed. The argument is that the evidence does not
show that bottles in which the samples were drawn were clean
and dry. Reliance has been placed on the case of State of
Maharashtra Vs. Bhaskar Rajeshwar Gangshettiwar & ors.,
reported in 2003 Bom.C.R. (Cri.) 1617.
8. If evidence of the complainant is perused, he clearly
deposed (in para 2) that he purchased the said groundnut oil in a
clean, dry and empty stainless steel pot and that he divided the
sample into three equal parts and thereafter it was kept in three
clean, dry and empty glass bottles. The panchanama (Exh. 33)
proved on record also mentioned that the complainant bought
the groundnut oil after it was weighed, in clean, dry and empty
stainless steel pot and then the same was divided into three
parts and filled in clean, dry and empty glass bottles. If the
cross-examination of the complainant on this count is perused, it
cannot be said that the complainant has been shattered in this
regard. Trial Court dealt with challenge on this count in paras
13 to 19 of its judgment and the rulings relied on were discussed
and the above judgment in the matter of “Bhaskar” was
distinguished. In the matter of Bhaskar, as para 7 of the
judgment would indicate, there was admission of the Food
Inspector that he did not clean the weighing measure while
obtaining the sample.
9. The Sessions Court also dealt with this aspect in para
13 of its judgment and found that the evidence of P.W.1 that he
had taken the sample of groundnut oil in a clean dry and empty
stainless steel pot and that it was divided into three equal parts
and thereafter it was put in three clean dry and empty glass
bottles, needs to be accepted. Having gone through the record,
I find no reason to disagree with the Courts below on this count.
The panchanama is also speaking on this count, and there is oral
evidence of the complainant which remains unshattered in the
cross-examination.
Quantity of sample sent - Rule 22
10. Further challenge raised on behalf of the applicant is
on the basis that, Rule 22 has been violated. Learned counsel
for applicant referred to Rule 22 relating to quantity of sample
which is required to be sent to Public Analyst. The rule
mentioned that quantity of sample of food to be sent to Public
Analyst/ Director for analysis shall be as specified in the table
given in the Section. The table has two columns, one of article
of food and second of “approximate” quantity to be supplied.
Entry No.13, which deals with Vanaspati and edible oil and fat
requires that the approximate quantity should be 250 Gms. The
argument is that, the evidence on record shows and it is borne
out even from the panchanama that the complainant purchased
only 450 Gms. of groundnut oil and divided the same in 3 parts,
which means that every part was of 150 Gms. The counsel
submitted that, it means that the sample sent to the Public
Analyst was of less than 250 Gms. as required. The counsel
relied on the case of Rajal Das Guru Namal Pamanani Vs. The
State of Maharashtra, reported in AIR 1975 SC 189. Relying on
the said judgment, the counsel argued that the Supreme Court
has observed that the appellant in that matter rightly contended
that non compliance of the quantity to be supplied amounts to
not only infraction of the provisions but also injustice.
11. Firstly, the Advocate for the applicant wrongly
referred to Rule 22 as was inserted vide G.S.R. 530(E), dated
29.7.2002 (w.e.f. 29.1.2003). I am concerned with incident
dated 18.11.1997. Earlier Rule 22 substituted vide G.S.R. 1340,
dated 7.10.1961 required the sample of edible oil to be 125 gms.
The counsel for petitioner has not shown than on 18.11.1997,
the quantity collected was insufficient. Secondly, the judgment
relied on is of 3rd December 1974. By G.S.R. 775(E), dated
27.12.1997, Rule 22(B) was inserted in the rules, which reads as
under :
“22-B. Quantity of sample sent to be
considered as sufficient:- Notwithstanding
anything contained in Rule 22 and Rule 22-C, the
quantity of sample sent for analysis shall be
considered as sufficient unless the Public Analyst
or the Director reports to the contrary."
12. The above rule inserted subsequent to the ruling
relied on makes it clear that the quantity sent for analysis shall
be considered as sufficient unless the Public Analyst or Director
reports to the contrary. In the present matter, the report of the
Public Analyst is at Exh. 42. The Public Analyst did not report
that quantity received was insufficient. As such, there is no
substance in argument raised on this count.
Written Consent - Section 20
13. It was then argued that, the consent order issued in
the present matter did not comply with Section 20 of the Act.
The argument is that, the prosecution for the offence under the
Act cannot be instituted without written consent of the Central
Government or State Government or a person authorized in this
behalf by general or special order, by the Central Government or
State Government. It was argued that, the consent order in the
matter which is at Exh.49, does not show application of mind by
the Joint Commissioner, Nasik Division, Food & Drug
Administration. The counsel relied on the case of The state of
Maharashtra Vs. Hirji Dhanji Shah reported in 1998 Cri.L.J.
1828.
14. Regarding the consent order, record of the trial
Court shows evidence of complainant disclosing the various
steps he took for collecting the evidence. Then, he forwarded
documents to the Joint Commissioner, Nasik for sanction
through Assistant Commissioner, Food & Drugs Administration,
Dhule. He proved document Exh.48 in this regard and the
sanction or consent order at Exh.49. Exh.49 proved by the
complainant shows that the Jt. Commissioner considered steps
taken by the complainant and report of the Public Analyst and
recorded the fact that the sample failed the test for B.R. Read in
reading Iodine value and Bellies test. Going through the record,
the Joint Commissioner recorded that the sample did not confirm
to the standards of groundnut oil as per the Rule. Consequently,
making specific reference to the rules concerned, the Joint
Commissioner gave the consent order. Going through such
material on record, I find that the judgment in the matter of
"Hirji Dhanji Shah" mentioned above is not of any assistance to
the applicant- accused. In that matter, the consent order said
that the Commissioner had considered the report of Public
Analyst and came to the conclusion that it was fit case for
prosecution. In such situation, it was observed that the order
was lacking relevant materials as to on what point food articles
had been referred to the Public Analyst, what are the materials
to be considered while issuing the order etc. In the present
matter, the evidence shows that there was sufficient material
which was placed before the Joint Commissioner and the order
disclosed application of mind. It cannot be said that, mechanical
order was passed. The trial Court has considered challenge on
this count in para 35 of its judgment and it did not find infirmity
with the consent order. Having independently looked into the
aspects, I do not find any reason to disagree with the trial Court.
Other Objections
15. The learned counsel for applicant then tried to raise
certain doubts. He referred to Exhs.36 and 38 wondering as to
how both receipts of the Public Analyst which are of different
dates, are having same number 12645. It is also argued that,
complainant deposed (in para 4) that he sent sample and copy of
the memorandum and specimen impression vide Exhs.35 and 37
for which receipts Exhs.36 and 38 had been proved. It was
argued that, postal receipts were not proved although it was
claimed that Exhs.35 and 37 were sent by registered post A.D.
Evidence of complainant shows that vide Exh.35, a
sample was sent. Exh.36 is receipt of Public Analyst of the
sample. Vide Exh.37, copy of memorandum in Form VII and
specimen impression of the seal was sent and Exh.38 is receipt
of the same. Exhs.36 and 38 which are printed receipts, had
different wordings. Exh.36 had printed wordings regarding
receipt of sealed container in respect of the sample and Exh.38
had printed wording regarding receipt of memorandum and
specimen impression. If for given cases received for analysis,
while issuing different receipts, Public Analyst keeps the
common number for the purpose of record or cross check, that
by itself cannot be reason for creating doubts first time at the
stage of revision. When receipts of Public Analyst are available,
only because postal receipts of sending of Exhs.35 and 37 have
not been filed, cannot be a reason for asking to throw out the
case of prosecution.
16. Yet another dispute raised was that, postal
acknowledgement (Exh.44) on record showed the address as
that of “Holy Provision” whereas the name of shop of the
applicant- accused was “Anil Provisions”. At the time of
arguments, the counsel for applicant was unable to show from
the cross-examination of complainant that signature on Exh.44
was denied by the accused. The evidence of complainant shows
that, he had sent letter Exh.43 to the applicant- accused seeking
information regarding his firm and Exh.44 is acknowledgement
of that letter. The argument of the counsel loses significance
when the further evidence of the complainant is seen that the
accused replied to the letter Exh.43, vide his letter Exh.47,
which showed not only the applicant- accused admitting that
complainant bought the groundnut oil from him on 18.11.1997
but also stating that he did not have bill showing his own
purchase.
17. The other argument on behalf of the applicant that in
Exh.34 the memorandum to Public Analyst Form VII regarding
date and place of collection mentioned only the name of village
and not the shop of the applicant- accused needs to be referred
and ignored as there is no substance in this argument. The
format did not require address as such to be given.
Nature of Trial
18. It was then argued that, the proceedings in the trial
Court were conducted as a Regular Trial and not summary trial
as reuired by Section 16-A. Reliance is placed on the case of
Devakakonda Ramesh Vs. The State of A.P., through Food
Inspector, Adilabad, reported in 2003(1) FAC 245. In that
matter, there was non compliance of Section 13(2) of the Act and
it was observed by the Single Judge of the Andhra Pradesh High
Court that the petitioner-accused could not be deprived of a
speedy trial by the mistake of the Magistrate and hence the trial
was vitiated.
I find that, there is no doubt that Section 16-A
provides that the Court has power to try the cases summarily.
However, no grievance was made in the trial Court or in the
appellate Court that because the case was being tried as per
warrant trial procedure, the applicant-accused is suffering. In
fact, procedure under the warrant trial is more elaborate and
gives better opportunity. Had it been a case that the law
required warrant trial procedure to be adopted, and summary
procedure was adopted, it could be said that the accused is
prejudiced. However, the same could not be in vice versa
condition. Only because warrant trial procedure was adopted,
the accused cannot be said to be prejudiced and it cannot be
held that proceedings get vitiated and need to be thrown out.
The Act is for public health and offences of Food Adulteration
are serious offences. There is need to balance justice between
society at large and accused. Accused in such matters cannot be
allowed to cling to technicalities just to escape, without
prejudice as such being shown on record.
Conclusion
19. For reasons mentioned above, there is no substance
in this revision application. The learned counsel for applicant
argued in the alternative that the applicant was earlier in
custody for about one and half month and the matter was
pending for long and so leniency may be shown. The offence is
against public health. Oil is basic ingredient in cooking and its
adulteration severely affects health of public. No leniency is
called for.
20. There is no substance in the revision application.
The revision application is rejected. The applicant- accused shall
surrender to his bail bonds.
(A.I.S. CHEEMA, J.)
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