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O Chandsaheb Shaikh On 9 December, 1991
 

O Chandsaheb Shaikh On 9 December, 1991

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    O Chandsaheb Shaikh On 9 December, 1991 O Chandsaheb Shaikh On 9 December, 1991 Document Transcript

    • Equivalent citations: 1992 (2) BomCR 160 Bench: B Deshmukh, S Dani The State Of Maharashtra, Through The Food Inspector vs Raheman S/O Chandsaheb Shaikh on 9/12/1991 JUDGMENT B.N. Deshmukh, J. 1. This appeal is filed by the State challenging the order of acquittal passed by the learned Judicial Magistrate, First Class, Kandhar, on 30−12−1980. The respondent−accused, who was running a Kirana shop in Mondha, Loha. According to the prosecution, the respondent−accused, had sold adulterated food article and committed an offence under the provisions of section 2(1)(a) and (c) of the Prevention of Food Adulteration Act, in contravention of section 6 of the said Act, punishable under section 16 of the said Act. 2. According to the prosecution, P.W. 2 Shivshankar Jalkote was the Food Inspector, who had visited the shop of the accused on 29−1−1979 along with P.W. 4 Premnath Kamble, another Food Inspector, and also in the company of one Patki. After disclosing his identity, he demanded dalchini (Cinamone) from the accused which was kept in the shop for sale. He purchased 300 grams of Dalchini and paid Rs. 12 towards the price and obtained the receipt (Exh. 43) from the accused Dalchini was divided in three equal parts of about 100 grams each. A panchanama was drawn. The notices in Form No. 6 and as required under section 14−A of the said Act were given to the accused. When the accused was asked to disclose the name of the manufacturer, the accused informed him that he had no bill for the purchase of dalchini with him. After the drawing of the panchanama, and sealing of the samples, as per the requirements, and obtaining the signatures of the panchas, one sample was sent to the public Analyst, Aurangabad and remaining two samples were handed over in sealed packet condition to the Local Health Authority, along with the copies of Form No. 7, on 30−1−1979. The sealed sample was sent to the Public Analyst, Aurangabad, by registered post acknowledgement due on the same day. The Public Analyst sent a report on 31−3−1979 to the effect that the sample is not as per the standard prescribed for dalchini. After the completion of the formalities regarding sanction , etc., the accused came to be prosecuted for the alleged offences. 3. The learned trial Judge, after appreciating the entire evidence on record, held that the accused is entitled for benefit of doubt in the absence of any independent and cogent evidence produced by the prosecution. Accordingly, the respondent−accused was acquitted. Hence, the State has come in appeal challenging the said order of acquittal passed in favour of the respondent− accused. 4. Shri G.R. Ghuge, learned Addl. P.P., contended that the findings recorded by the learned trial Judge are perversed. The evidence led by the prosecution is sufficient to hold the accused guilty of the offence alleged, i.e., for selling adulterated food article, namely, dalchini. He has further contended that the order of acquittal is not in conformity with the provisions of the said Act. 5. Shri B.S. Bharaswadkar, learned Advocate appointed for the accused, however, contended that the learned trial Judge was right in giving benefit of doubt to the accused and he therefore, supported the order the order of acquittal. He further contended that the acquittal is being considered in this appeal after about 9 years. The order of acquittal should not be interfered with after a lapse of such long period. 6. The prosecution has relied upon the evidence of P.W. 1 Madhukar Patil, P.W. 3 Bapurao Kishanrao, Assistant Commissioner of Food and Drugs Indian Kanoon − http://indiankanoon.org/doc/1609803/
    • Administration and the Local Health Authority; P.W. 4 Premraj Kamble, who is also a signatory to the panchnama, Exh. 46; P.W. 5 Shadul Jaiwadan, who was also Assistant Commissioner of Food & Drugs at Nanded. The report of the Public Analyst is produced at Exh. 56. 7. The learned trial Judge has given benefit of doubt on the ground that the prosecution has called to examine independent witnesses. Secondly, none of the sealed sample was brought before the Court. There is nothing to show that the accused sold any kind of cinamone, because the article sent to the Public Analyst, Aurangabad, was not found to contain any adulteration of dalchini, but the same was different article. Lastly, the trial Court found that there is delay on the part of the Food Inspector to launch the prosecution against the accused. On these grounds, the learned trial Judge found it fit to give benefit of doubt to the accused. 8. Jalkote (P.W. 2) in his evidence has stated that he went to the shop of the accused on 29−1−1979 along with the Food Inspector Kamble (P.W. 4), Patki and two panchas. After showing the identity card, he informed the accused that he has come to inspect the shop and wanted samples for analysis. In the shop, he found article, which was kept as resembling dalchini for sale. When enquired about the said article from the accused, he told him that the article is dalchini. He purchased dalchini to the extent of 300 grams and paid cash amount of Rs. 12 towards the price of dalchini and obtained receipt (Exh. 43). After completing the procedure, and preparing the panchnama in the presence of the accused and panchas, the sample was sent for analysis. He has further stated that he gave notice in Form No. 6 to the accused and also gave for analysis. He has further stated that he gave notice in Form No. 6 to the accused and also gave notice under section 14−A of the Act to the accused. The accused gave in writing that he does not have a bill regarding the purchase of dalchini by him. In the cross−examination of this witness, have a bill regarding the purchase of dalchini by him. In the cross−examination of this witness, it was tried to be suggested that the article which was sold to him was not dalchini. However, it was further suggested to him that receipt (Exh. 43) was given by the accused on the say of this witness. 9. P.W. 2 Jalkote stands corroborated by the evidence of P.W. 4 Kamble, who had accompanied him at the time of purchase of dalchini. According to him also, when the complainant asked about the article, the accused told him that the article is dalchini. The complainant jalkote thereafter asked him to give 300 grams of the article of dalchini. The complainant purchased 300 grams by paying the amount of Rs. 12/−. This witness also refers to the notice given by Jalkote in Form No. 6 as well as notice given under section 14−A of the Act. The accused told them that he does not have the bill for the purchase of dalchini by him. He has further stated that the detailed panchanama was drawn and he had signed the panchnama (Exh. 46) along with the other panchas. He has also stated that the complainant has obtained a receipt (Exh. 43) for the purchase of 300 grams of dalchini by paying the price of Rs. 12 to the accused. There is nothing brought out in the cross−examination to discredit the testimony of P.W. 4 Kamble. 10. The contents of panchanama (Exh. 46) are not at all challenged nor the execution of receipt (Exh. 43) by the accused is challenged in the evidence of P.W. 4 Kamble. 11. The learned trial Judge has not relied on the evidence of these two witnesses as, according to him, the independent witnesses, namely, the panchas were not examined by the prosecution. He has relied on the provisions of section 10(7) of the Act to indicate that the prosecution should have examined the panchas. We are unable to appreciate how the evidence of these two witnesses can be discarded merely because the panchas, who had signed the panchnama, were nor examined. What is required by section 10(7) is that when the Food Inspector takes action under Clause (a) of sub−section (1), sub−section (2), sub−section (4) or sub−section (6), he shall call one or more persons to be present at the Indian Kanoon − http://indiankanoon.org/doc/1609803/
    • time when such action is taken and taken his or their signatures. Admittedly, the Food Inspector P.W. 2 Jalkote was accompanied by another Food Inspector P.W. 4 Kamble and, apart from both of them, they were accompanied by two other panchas, whose signatures were obtained on the panchnama. As per the provision of section 10(7), the Food Inspector is required to call upon one or more persons to be present at the time of purchase of samples and take their signatures on the panchnama, which is prepared at that time. In the present case, apart from the signature of P.W. 4 Kamble, another Food Inspector, Jalkote had obtained signatures of other two panchas. Merely because these two panchas are not examined, it cannot be said that the procedure prescribed as per section 10(7) is not followed by the Food Inspector at the time of purchase of the sample, in sealing them as prescribed and sending one of the sealed sample packet to the Public Analyst. 12. We may refer to the decision of the Supreme Court in Prem Ballab and another v. The State (Delhi Admn.), , wherein it is observed that in a case involving offence under the Prevention of Food Adulteration Act under section 7(1) and section 16, the conviction can be based on the sole testimony of the Food Inspector. The Supreme Court has held that there is no rule of law that conviction cannot be based on the sole testimony of Food Inspector. It is only out of sense of caution that the Courts insist that the testimony of Food Inspector should be corroborated by some independent witness. This is a necessary caution, which is to be borne in mind, because the Food Inspector, in a sense, be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses. 13. In the present case, there is evidence of not only Jalkote (P.W. 2), but his evidence is amply corroborated by the other Food Inspector, P.W. 4 Kamble, who has not only accompanied the complainant, but is also signatory to panchnama, Exh. 46. 14. Apart from this evidence, in the present case, there is evidence by way of receipt, Exh. 43, regarding the purchase of dalchini for sample by the complainant by paying the price of Rs. 12. Though the accused in his statement under section 313, Cr.P.C., at one stage, denied to have executed the receipt, Exh. 43, to another question he has replied that he does not known as to whether the signature on Exh. 43 is that of his. But, as already stated, while cross− examining. P.W. 2 Jalkote, it was specifically suggested to him that Exh. 43 is given by the accused under his signature on the say of Jalkote. This indicates that there is no force in the denial of the signature on Exh. 43. Exhibit 43 categorically recites that Food Inspector Jalkote had purchased 300 grams of dalchini on payment of Rs. 12 on 29−1979. 15. Apart from the evidence of P.W. 2 Jalkote and P.W. 4 Kamble, the recitals of panchnama, Exh. 46, and the contents of receipt, Exh. 43. Show that the accused has sold the commodity as dalchini to the complainant, P.W. 2 Jalkote. 16. In the face of this evidence, merely because the prosecution has failed to examine the panch witnesses, it cannot be said that the prosecution has not succeeded in establishing that the accused sold commodity as dalchini to P.W. 2 Jalkote. 17. Even though the report. Exh. 56, supplied to the accused, the accused had not made any application for sending it for the second opinion as required by section 13 of the Act. The report, therefore, goes unchallenged. As per the report, Exh. 56, the commodity which was sold as dalchini did not conform to the standards as prescribed under the Prevention of Food Adulteration Rules 1955. The sample consists of 100 per cent, bar other than dalchini. 18. The word ’adulterated’ is defined in section 2(ia) of the Act as follows Indian Kanoon − http://indiankanoon.org/doc/1609803/
    • :−−− "An article of food shall be deemed to be adulterated −−− (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; ..." In view of this definition, the article, which was sold as dalchini is undoubtedly adulterated, having regard to the report of the Public Analyst, Exh. 56. As the article was sold by the accused as dalchini, the same was not found to be dalchini at all, but was found to be 100 per cent bar other than dalchini and hence, the article is adulterated within the meaning of the word ’adulterated’ as given in section 2(ia) of the said Act. 19. Apart from the fact that the finding recorded by the learned trial Judge regarding the commodity being dalchini is perversed, the findings on other aspects are also perversed. The learned trial Judge has found fault with the prosecution for not producing the article before the Court. As already stated, the accused has never applied for the second opinion inspite of supply of copy of the report of the Public Analyst. We do not find any error committed by the prosecution in not producing the sample before the Court. Section 11(4) read with section 10(4) of the Act makes it obligatory on the Food Inspector to produce the articles, which are seized, before the Court. In the present case, the samples were purchased by the Food Inspector under the provisions of section 10(1)(a). As provided in sub−section (3) of section 10, the article is not ’seized’ by the Food Inspector as per the provisions of section 10(4). If the article is ’seized’ by the Food Inspector under section 120(4), then section 11(4) makes it obligatory to produce the said article ’seized’ by him before a Magistrate as soon as possible and, in any case, not later than 7 days after the receipt of the report of the Public Analyst. It is also possible for the accused or to a person from whom such article is seized to make an application before the Magistrate directing the food Inspector to produce such seized article. In the present case, as already stated, the article is Inspector to produce such seized article. In the present case, as already stated, the article is ’purchased’ by the Food Inspector by following the procedure under sub−section (1)(a) of section 10 of the Act. The sample is also purchased as per section 10(3) of the Act. The question of seizure, therefore, does not arise at all. We fail to appreciate as to how it was a must for the Food Inspector to produce any sample before the Court. In the absence of any application made by the accused challenging the opinion of the Public Analyst, and seeking second opinion, it was not necessary for the prosecution to produce the sample before the Court. We, therefore, do not agree with the finding of the learned trial Judge that the prosecution has failed to produce the sample before the Court. 20. We also do not find any fault with the prosecution for not proceeding against the manufacturer. In fact, the accused was served with the required notice. Inspite of that, the accused did not disclose the name of the manufacturer from whom he had purchased the commodity, dalchini, which was sold to the Food Inspector. On the contrary, the accused has stated in writing that he is not in possession, and, therefore, unable to produce the bill for the purchase of dalchini by him. It cannot, therefore, be said that the prosecution has committed any error in not proceeding against the manufacturer, as the source of purchase of dalchini was not even disclosed by the accused. 21. Shri Bharaswadkar contended that the learned trial Judge was right in not accepting the evidence of the prosecution against the accused, as from the conduct of the Food Inspector, it can be gathered that there is considerable delay in proceeding against the accused. He has relied upon the decision of the Single Judge of this Court in State of Maharashtra v. Laxman N. Khamkar, 1977 Cri.L.J. 1485, to contend that the delay caused has to be taken into consideration in favour of the accused. We are unable to appreciate how the Indian Kanoon − http://indiankanoon.org/doc/1609803/
    • ratio laid down in that case applies in the present case. There, there was a delay in sending the article for analysis and it was of about nine months. So also, the food article which was like Jilebi was preserved without any preservatives. In the present case, there is absolutely no delay in sending the sample to the Public Analyst. The ratio laid down has no bearing in the facts of the present case. 22. Shri Bharaswadkar also contended that the accused is a small trader in a village. The prosecution admittedly has not proceeded against the manufacturer, and, therefore, the accused should not have been proceeded with. He relied on certain observations of the Supreme Court in Ganeshmal Jashraj v. Government of Gujarat and another, . In that case, the Supreme Court has observed :−−− "We fail to see why at the time of taking samples from the small retailer, the Food Inspectors do not care to find out from which wholesaler or manufacturer he had purchased the particular food stuff and after ascertaining the name of such wholesaler or manufacturer, proceed immediately to the place of business of such wholesaler or manufacturer and take samples for the purpose of finding out whether the food stuff which is being sold by him is adulterated or not. The anxiety of the Food Inspectors seems to be only to catch hold of the small tradesmen and not to proceed against the bigger wholesalers or manufacturers who are quite often the real culprits..." In that case, the matter was remanded as the accused was not found guilty. In the present case, we do not find any fault with the prosecution, as the explanation was sought from the accused to find out who are the manufacturers or from whom he had purchased the commodity. Inspite of best efforts made by the prosecution, the accused did not disclose the name of the manufacturer or the person from whom he had purchased dalchini. In these circumstances no fault can be found with the prosecution in not proceeding against the manufacturer or deleting the said manufacturer. 23. We have, therefore, no doubt that the accused is guilty of the alleged offences for selling the commodity dalchini to the food Inspector, P.W. 2 Jalkote. 24. On the point of sentence, Shri Bharaswadkar contended that leniency must be shown and though the Act provides for minimum sentence, sentence lower than the minimum can be awarded in view of the fact that the accused is a small tradesman from a village; so also the order of acquittal is being deal with in appeal after a lapse of about 9 years. For this purpose, he relied upon the decision in Umrao Singh v. State of Haryana, where the provisions of section 16(1)(a)(i) proviso were considered regarding the sale of adulterated milk. The percentage of deficiency in food contents was found to be 0.4%. The accused, old man and suffering from asthama, having clean past record, it was found that it is a fit case to award sentence lower than the minimum prescribed and, therefore, the Supreme Court reduced the sentence to the period of imprisonment already undergone. 25. The second decision relied upon is Municipal Corporation of Delhi v. Jawala Parshad, 1985 Cri.L.J. 1455, wherein though the accused was found guilty under section 7 read with section 7 of the Act, in an appeal against acquittal, when more than 7 years had elapsed at the time of hearing of the appeal, the Delhi High Court held that sentence of imprisonment should not be imposed except in default to pay fine. In view of the ratio in these cases, Shri Bharaswadkar contended that sentence less than the minimum prescribed by the statute should be awarded; so also having regard to the fact that in an appeal against acquittal, which has come up for hearing after more than 9 years, substantive sentence except by way of in default should not be awarded to the accused. 26. On the point of sentence, we may also refer to the decision in State of Indian Kanoon − http://indiankanoon.org/doc/1609803/
    • Maharashtra v. Baburao, , where the accused was found liable to be convicted under section 16. However, in view of the facts that offence was committed years back, it was his first offence and the appeal was against acquittal, the Supreme Court imposed minimum sentence of imprisonment prescribed by the proviso to section 16(1) and directed to suffer R.I. for a period of 3 months and fine of Rs. 2,000/−. 27. From the decision in A.I.R. 1981 S.C. 123, the facts are not clear. Moreover, the latter view of the Supreme Court in will have to be preferred in the facts of the present case. 28. We, therefore, set aside the order of acquittal passed by the learned Judicial Magistrate, First Class, Kandhar, dated 30−12−1980 in C.C. No. 21 of 1980 and hold respondent−accused guilty of offence under section 7(2) read with section 2(i)(a) and section 16 of the Prevention of Food Adulteration Act, and sentence him to suffer R.I. for 3 months and to pay a fine of Rs. 500, in default to suffer further R.I. for 1 month. If the accused was released on bail, he shall surrender to his bail within one month. Indian Kanoon − http://indiankanoon.org/doc/1609803/