The evidence on record goes to show that the
reports of the Public Analyst were sent on the address
of the factory premises. The envelopes, however, were
returned with an endorsement that the factory was
closed. The respondents categorically stated in their
statements under section 313 of the Criminal Procedure
Code, while answering the question No. 20, that
neither of them received the information about the
sending of the report on 05-08-1994 by the registered
post (A.D.). It is admitted by PW3 Prabhakar,
Assistant Commissioner, that the postal remark on the
postal envelopes indicated that the company was
closed. No effort was made to locate residential
address of the respondents in order to serve the
reports of the Public Analyst on them.reports of the Public Analyst were sent on the address
of the factory premises. The envelopes, however, were
returned with an endorsement that the factory was
closed. The respondents categorically stated in their
statements under section 313 of the Criminal Procedure
Code, while answering the question No. 20, that
neither of them received the information about the
sending of the report on 05-08-1994 by the registered
post (A.D.). It is admitted by PW3 Prabhakar,
Assistant Commissioner, that the postal remark on the
postal envelopes indicated that the company was
closed. No effort was made to locate residential
address of the respondents in order to serve the
The
learned Judicial Magistrate seems to have properly
appreciated the defence of the respondents. The
non-service of the reports of the Public Analyst also
gives serious jolt to the prosecution. The
respondents have been deprived of their valuable right
available under section 13 (2) of the PFA Act. A
Single Bench of Andhra Pradesh High Court in
"Devakakonda Ramesh v. The State of A.P., through
Food Inspector, Adilabad" 2003 (1) FAC 245, held that
where a report was not served as required, mere
sending of the report by registered post, which was
returned unserved, would not amount to sufficient
service. As stated before, no efforts were taken to
send the reports to the respondents for personal
service. The learned Single Judge of the Andhra
Pradesh High Court held that prejudice was caused to
learned Judicial Magistrate seems to have properly
appreciated the defence of the respondents. The
non-service of the reports of the Public Analyst also
gives serious jolt to the prosecution. The
respondents have been deprived of their valuable right
available under section 13 (2) of the PFA Act. A
Single Bench of Andhra Pradesh High Court in
"Devakakonda Ramesh v. The State of A.P., through
Food Inspector, Adilabad" 2003 (1) FAC 245, held that
where a report was not served as required, mere
sending of the report by registered post, which was
returned unserved, would not amount to sufficient
service. As stated before, no efforts were taken to
send the reports to the respondents for personal
service. The learned Single Judge of the Andhra
Pradesh High Court held that prejudice was caused to
the accused and hence, the prosecution would stand
vitiated under the circumstances. Similar is the view
taken in "Sibanath Singh v. State of Assam" 2002 (1)
FAC 166. I am in agreement with the view taken in
both these cases.
IN THE HIGH COURT OF JUDICATURE OF BOMBAYvitiated under the circumstances. Similar is the view
taken in "Sibanath Singh v. State of Assam" 2002 (1)
FAC 166. I am in agreement with the view taken in
both these cases.
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 358 OF 1997
The State ofMaharashtra,
VERSUS
Shamsundar Ganeshlal Navandar,
[CORAM: V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT PRONOUNCED : 4th April, 2009
Citation; 2009 ALLMR(cri) 1654
1.By this common judgement, all the five (5)
appeals are being disposed of together in as much as
though they arise out of separate judgements of
acquittal rendered by the learned Judicial Magistrate
(F.C.), Jalna, yet, the facts and legal questions
involved therein are identical.
2.The respondents were prosecuted in private
complaint cases instituted by Food Inspector G.B.
Wadekar for offence punishable under section 7 (i) and
7 (ii) read with section 16 (1) (a) (i) (ii) of the
Prevention of Food Adulteration Act, 1954 (for short,
"the PFA Act"). In all these five (5) criminal cases
(R.C.C. No. 118/1994, R.C.C. No. 119/1994, R.C.C.
No. 120/1994, R.C.C. No. 121/1994 and R.C.C. No.
122/1994), the learned Judicial Magistrate acquitted
the respondents vide the five (5) separate judgements.
All the five (5) criminal cases arise out of the same
transaction and the judgements of acquittal are also
rendered for almost same reasons.
3.Briefly stated, the prosecution case is that
Food Inspector Shri G.B. Wadekar visited premises of
an oil manufacturing unit styled as "M/s Shanti
Udyog", Jalna, situated in MIDC Area, at about 10 a.m.
on June 3rd, 1993. He was accompanied by licensing
authority Shri Shete and panch witness Shri Joshi
during course of the visit. The respondent No. 1 was
present in the premises. The Food Inspector
introduced himself to the respondent No. 1. He
inspected the premises. He demanded oil samples for
purpose of analysis. He collected five (5) separate
samples of 450 grams of the sunflower seed oil stored
in the factory premises. He paid price of Rs. 68/-
to the respondent No. 1 and took the receipt
(Exh-26). He served a notice in Form No. VI on the
respondent No. 1. He also gave notice under section
14A of the PFA Act to the respondent No.1. He
thereafter separated three (3) parts of 450 grams of
the oil sample in each case. The three (3) parts were
filled in clean, empty and dry bottles which were
corked tightly. Thus, separate 15 such sample bottles
were prepared. They were affixed with labels signed
by himself, panch witness and the respondent No.1.
Each of the sample bottle was separately wrapped in a
thick brown paper. The ends of the brown paper were
inversely pasted with gum and were affixed with labels
signed by the local health authority. The sample
bottles were sealed as per procedure after tying each
of them by means of twill. He prepared a memorandum
panchanama then and there.
4.The Food Inspector sent one sealed sample
bottle out of each lot, alongwith specimen seal and
Form No. VII, to office of the Public Analyst. He
sent remaining two (2) parts to the local health
authority alongwith the copies of the Form No. VII.
He also sent copy of the specimen seal and copy of
form No. VII separately alongwith a forwarding letter
to the Public Analyst. The Public Analyst reported
that the samples of the sunflower oil did not conform
to the standard provided under the PFA Act and the
Rules. Nor there was license with the respondents to
manufacture and sell the sunflower oil. The
respondent No. 2 was the proprietor of the
manufacturing unit i.e. "M/s Shanti Udyog". The
samples of the sunflower oil were found to be
adulterated in as much as each of the sample was found
to be turbid and rancid. A copy of the report was
sent on the address of the manufacturing unit. It was
returned with an endorsement that the factory was
found closed. The Food Inspector forwarded the
relevant papers to the competent authority for
obtaining consent to prosecute the respondents. The
competent authority i.e. Joint Commissioner (Food and
Drugs) gave the consent for the prosecution of the
respondents. The respondents were thereafter
prosecuted through the private complaint cases filed
in the Court of the learned Judicial magistrate
(F.C.), Jalna.
5.The respondents pleaded not guilty to the
charge framed against them in each of the criminal
case. Their defence was of total denial. They
submitted that the manufacturing unit was not
functional at the relevant time. They asserted that
the oil filled in the barrels was extracted on trial
basis and was not meant for sale. They further
asserted that there was no sale of the oil and the
purpose was to examine whether the oil extraction
could be undertaken at the factory premises. They
also submitted that they did not ever receive copies
of the reports of the Public Analyst and as such, have
lost valuable right available under sub-clause (2) of
section 13 of the PFA Act.
6.The learned Judicial Magistrate came to the
conclusion that the factory premises were under
construction at the relevant time. It was not in
working condition. The learned Magistrate also held
that the factory was not functional at the relevant
time nor any printed bills, official documents, etc.
were available. So, it was more probable that the
trial was being conducted earlier and the oil was
previously extracted on trial basis. It is held that
the respondents could not be held liable for mere
storage of the oil which was not meant for sale.
Nextly, the learned Magistrate held that valuable
right of the respondents to send the samples to the
Central Food Laboratory, Calcutta is denied to them
due to non-service of the reports of the Public
Analyst within the specified time limit. Hence, they
were acquitted.
7.Heard learned APP Mr. V.H. Dighe for the
appellant/State and learned advocate Mrs. Netrali
Jain, holding for Mr. Anil Kasliwal, advocate, for
the respondents.
8.The samples of the sunflower oil were
collected one after another in the same transaction
from five (5) different barrels during visit of the
Food Inspector to the premises of "M/s Shanti Udyog"
on June 3rd, 1993. The version of PW1 Gangaprasad
Wadekar, the Food Inspector, purports to show that he
carried out inspection of the premises in the relevant
morning and thereafter collected the five (5) samples
from each of the barrel found in the premises. He
narrated as to how he paid the price and prepared the
sealed sample bottles. His version is in accordance
with the complaint case as mentioned earlier. There
is no dispute about the fact that he properly followed
the procedure while preparing the sample packets. His
version corroborates various documents placed on
record. He admits, unequivocally, that he could not
tell whether there was a trial of the manufacturing
unit when he had collected the oil samples. He was
unable to tell whether the oil was extracted on trial
basis. He admits that he did not peruse any record to
ensure that the respondents were dealing in sale and
purchase of the oil or the seeds required for
extraction of the oil. He did not collect any
information as to since how many days, the oil barrels
were filled with the oil which was extracted in the
manufacturing unit. He could not locate whether the
oil was kept open to sky and could have, therefore,
absorbed moisture. With the result, there was
increase of rancidity due to chemical changes. He
admits :
"When I visited the premises, factory was not
working. Except the accused No. 1, two
hamals and one or two ladies were found on the
spot, I have not stated the said fact in my
report. I cannot assign any reason for the
same, nor I can state their names."
He further admits that there was no flooring in the
premises. He admits that the walls were not coloured.
He noticed that some sunflower seeds were kept for
drying. He also noticed that some machinery and gunny
bags were lying nearby. The admissions of PW
Gangaprasad Wadekar, the Food Inspector, go to show
that the manufacturing unit was not functional at the
relevant time.
9.Similarly, version of PW2 Santosh Joshi
(panch) reveals that the respondent No. 1 was alone
present in the premises of the factory. He states
that the respondent NO. 1 told the Food Inspector
that the factory was not working. Still, however, on
demand of the Food Inspector, the respondent No. 1
gave the samples of the oil stored in the barrels. He
admits that except the respondent No.1, no other
person was found in the premises of the said factory.
He did not find any more stock of the oil and seeds
except the five (5) barrels from which the samples
were collected. This is a glaring fact. Needless to
say, the work of construction of the manufacturing
unit was not completed at the material time. Nor it
had become functional so as to deal in the business of
oil manufacturing.
10.The evidence on record goes to show that the
reports of the Public Analyst were sent on the address
of the factory premises. The envelopes, however, were
returned with an endorsement that the factory was
closed. The respondents categorically stated in their
statements under section 313 of the Criminal Procedure
Code, while answering the question No. 20, that
neither of them received the information about the
sending of the report on 05-08-1994 by the registered
post (A.D.). It is admitted by PW3 Prabhakar,
Assistant Commissioner, that the postal remark on the
postal envelopes indicated that the company was
closed. No effort was made to locate residential
address of the respondents in order to serve the
reports of the Public Analyst on them.
11.Coming to the legal position, certain
observations in "Municipal Corporation of Delhi v.
Laxmi Narain Tandon" (AIR 1976 SC 621) may be usefully
referred. The Apex Court observed, in the above
decision, that "storage" or "distribution" of
adulterated article of food for a purpose other than
for sale does not fall within the mischief of section
16 (1) of the PFA Act. If an article of food is not
intended for sale and is in possession of a person who
does not fulfil the character of a seller, conveyer,
deliverer, consignee, manufacturer or storer for sale
such as is referred in sub-sections (1) (a) and (2) of
section 7, the collection of sample from such a person
would not constitute offence punishable under section
16 (1) (a) of the PFA Act.
12.In "B. Govinda Rao and another v. V.N.
Ashokan" 2003 (2) FAC 123, a Single Bench of Kerala
High Court dealt with a similar question. The learned
Single Judge held that the expression "store" as used
in section 7 means "storing for sale" and consequently
storing an adulterated article of food for purpose
other than sale would not constitute offence under
section 16 (1) (a) of the PFA Act. The red cherries
kept in the store were not intended for sale in the
given case, and, hence, it was held that even though
the same were found adulterated, yet, conviction under
section 16 (1) (a) of the PFA Act was not possible.
13.Considering the fact that there was no
tangible evidence to infer that the sunflower oil was
stored for the purpose of sale and that the factory
was not functional at the relevant time, it goes
without saying that the oil was not stored for the
purpose of sale. Nor there were required arrangements
made for the sale by printing bill-books, packing of
the oil barrels, etc. Therefore, the defence of the
respondents was quite probable and acceptable. The
learned Judicial Magistrate seems to have properly
appreciated the defence of the respondents. The
non-service of the reports of the Public Analyst also
gives serious jolt to the prosecution. The
respondents have been deprived of their valuable right
available under section 13 (2) of the PFA Act. A
Single Bench of Andhra Pradesh High Court in
"Devakakonda Ramesh v. The State of A.P., through
Food Inspector, Adilabad" 2003 (1) FAC 245, held that
where a report was not served as required, mere
sending of the report by registered post, which was
returned unserved, would not amount to sufficient
service. As stated before, no efforts were taken to
send the reports to the respondents for personal
service. The learned Single Judge of the Andhra
Pradesh High Court held that prejudice was caused to
the accused and hence, the prosecution would stand
vitiated under the circumstances. Similar is the view
taken in "Sibanath Singh v. State of Assam" 2002 (1)
FAC 166. I am in agreement with the view taken in
both these cases.
14.The sum total of the foregoing discussion is
that the prosecution failed to establish that the oil
barrels were meant for sale. It is also not proved
that the manufacturing unit had commenced functioning.
It appears that only application was submitted for
license to manufacture the oil in the unit under name
and style "M/s Shanti Udyog, MIDC, Jalna". The
respondents were deprived of their valuable rights
under section 13 (2) of the PFA Act. Under these
circumstances, the acquittal of the respondents as
rendered by the learned Judicial Magistrate in all the
above five (5) criminal cases is proper and legal.
15.In the result, the appeals are dismissed. The
impugned judgements of acquittal are confirmed.
[ V.R. KINGAONKAR ]
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