Dismissed

Prabhakar Vinayak Nathu and Anr. v. Indaraj Khaderu Gupta and Ors.

Bombay HC18 Sept 2007APEAL/18/1996

Case brief

AI extract

What is this about?

The Bombay High Court dismissed the appeal by Food Inspector and Chief Food Inspector challenging the acquittal of shopkeepers under the Prevention of Food Adulteration Act. The Court upheld the acquittal, finding it a reasonably possible view given the lack of cross-examination on critical issues and the minimal prejudice caused by procedural irregularities, despite the report showing marginal ad

What did the court decide?

The criminal appeal filed by the Food Inspector and Chief Food Inspector is dismissed; the acquittal of the respondents is confirmed.

Prabhakar Vinayak Nathu and Anr. Vs… — Constitutional and Fundamental Rights | Bombay HC (2007)

¶1

¶2

MSS

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE

¶4

 CRIMINAL APPEAL NO. 18 OF 1996

¶5

 1. PRABHAKAR VINAYAK NATU )
 Food Inspector )
 Thane Municipal Corporation )
 Mahapalika Marg, Dr. Almeida)
 Road, Thane 400 602 )
 2. VIJAY RAMKRISHNA DESHMUKH )
 Chief Food Inspector, Thane )
 Municipal Corporation, Thane)
 VERSUS
 1. INDERRAJ KHADERU GUPTA )
 Seller )
 2. RAMNARAYAN KHADERU GUPTA )
 Proprietor )
 M/s. Vadria General Stores )
 Road No. 16, Wagle Estate, )
 Thane )
 3. THE STATE OF MAHARASHTRA ) RESPONDENTS
 Ms. Poonam Kandale h/f R. S. Apte for appellants
 Mr. S. V. Kotwal for R-1
 Mrs. M. M. Deshmukh, APP
CORAM:SMT. RANJANA DESAI, J.

¶6

¶7

DATE: SEPTEMBER 18, 2007.

¶8

 ORAL JUDGMENT:

¶9

 . In this appeal original complainant, the Food
 Inspector and Chief Food Inspector, Thane Municipal
 Corporation have challenged the judgment and order
 dated 30/6/94 delivered by Chief Judicial
 Magistrate, Thane in C.C. No. 2121/1986. By the
 impugned judgment and order, the learned Magistrate
 has acquitted the respondents of all the charges
 levelled against them under the Prevention of Food
 Adulteration Act, 1954 ("the said Act" for short)
 read with Prevention of Food Adulteration Rules,
 1955 ("the said Rules" for short). Respondents 1
 and 2 are original accused 1 and 2 respectively.
 For the sake of convenience I shall refer to the
 accused as per their description in the trial
 court.

¶10

 2. At the trial, the case of the Food Inspector
 was that on 17/8/85 at 10-15 a.m. he visited the
 shop of the accused under the name and style of
 M/s. Vadria General Stores at Road No. 16, Wagle
 Estate, Thane. Accused 2 is the proprietor of the
 said shop and accused 1 is an employee of accused
 2.

¶11

¶12

 3. The Food Inspector disclosed his identity and
 his intention to take sample of the chilli powder
 stored in the shop for the purpose of analysis. He
 purchased the sample, paid its’ price, divided the
 sample in three equal parts and followed the entire
 procedure of sampling, packing and sealing as per
 the rules. One of the samples was sent to the
 Public Analyst. The report of the Public Analyst
 indicated that the sample of chilli powder did not
 conform to the parameters prescribed under the said
 rules. Therefore, all the papers were sent to the
 Joint Commissioner, Food and Drug Department for
 obtaining sanction to lodge the prosecution. After
 sanction was granted the Food Inspector lodged the
 complaint against the accused in the court of Chief
 Judicial Magistrate, Thane.

¶13

 4. Pursuant to the complaint the accused appeared
 in the court. Evidence before charge was recorded.
 Thereafter after hearing the learned counsel
 appearing for the Food Inspector and also for the
 accused, detailed charge was framed against the
 accused. The accused pleaded not guilty to the
 charge.

¶14

¶15

 5. In support of its case, the prosecution
 examined in all five witnesses. The star witness
 of the prosecution is PW 4 Food Inspector Prabhakar
 Natu.

¶16

 6. The accused denied the case of the Food
 Inspector. According to the accused they have been
 falsely implicated. After perusing the evidence on
 record, the learned Magistrate came to a conclusion
 that the Food Inspector was not competent to file
 the charge-sheet; that the Food Inspector had
 failed to prove that procedure of sampling, packing
 and sealing of the samples was followed and that
 the Food Inspector had failed to prove that Public
 Analyst’s report is admissible in evidence. He,
 therefore, acquitted the accused. The said
 judgment and order is challenged in this appeal.

¶17

 7. I have heard at some length Mr. Apte, learned
 counsel appearing for the appellant who was ably
 assisted by Smt. Poonam Kandale. Mr. Apte
 contended that the impugned judgment and order is
 perverse and hence it should be set aside. He
 submitted that the learned Magistrate was wrong in
 holding that PW 4 Prabhakar Natu was not a
 competent person to take sample and initiate

¶18

¶19

 proceedings. He submitted that the necessary
 notification is on the file and, therefore, learned
 Magistrate could not have recorded such a
 conclusion.

¶20

 8. In support of his submissions he relied on the
 judgment of the Gujarat High Court inManka Hari v.
The State of Gujarat, AIR 1968 GUJARAT 88 and a
 judgment of the Kerala High Court in State of
Kerala v. V.P. Enadeen, AIR 1971 KERALA 193. He
 further submitted that the learned Magistrate erred
 in holding that the complainant has failed to prove
 that clean bottles were used for sampling purpose.
 In this connection, the learned counsel relied on
 judgment of this court inState of Maharashtra v.

¶21

Shri Popat Panachand Shah & Anr., 2004 ALL MR

¶22

(Cri.) 1022. He then submitted that the learned
 Magistrate erred in accepting the submission
 advanced on behalf of the accused that the report
 of the Public Analyst does not disclose any data of
 analysis and the name of analyst and, therefore,

¶23

 the said report cannot be taken into consideration.
 In this connection, the learned counsel relied on

¶24

 judgment of the Supreme Court inDhian Singh v.

¶25

Municipal Board, Sharanpur & Anr., AIR 1970 SC 318.

¶26

¶27

 9. The learned counsel then urged that the learned
 Magistrate erred in holding that because there was
 no documentary evidence about the ownership of the
 shop, the prosecution could not have been initiated
 against the accused. In this connection he relied
 on judgment of the Supreme Court inState of Orissa

¶28

vs. K. Rajeshwar Rao, (1992) 1 SCC 365. He

¶29

 further submitted that the learned Magistrate fell
 into an error in observing that the prosecution
 suffers from infirmity because the sanction order
 issued by the sanctioning authority does not
 mention reasons as to on what ground it has come to
 the conclusion that sanction was necessary in the
 public interest. In this connection, the learned
 counsel drew my attention to the judgment of this
 court in Shri Popat Shah’s case (supra) and
 contended that as per Section 114 of the Evidence
 Act, it must be presumed that official acts have
 been regularly performed. He submitted that the
 Food Inspector was not even cross-examined on this
 aspect and, therefore, it was not open for the
 appellant to urge this point. The learned counsel,
 therefore, contended that the impugned judgment and
 order be set aside and the respondents be convicted
 in accordance with law.

¶30

¶31

 10. As against this Mr. Kotwal, the learned
 counsel appearing for the accused contended that
 the impugned judgment and order cannot be
 characterised as perverse. He submitted that so
 far as contents of the Public Analyst’s report are
 concerned, the view taken by the learned Magistrate
 cannot be faulted. He drew my attention to the
 judgment of the Supreme Court in Kisan Trimbak
Kothule & Ors. v. State of Maharashtra, 1976 (II)

¶32

Prevention of Food Adulteration Cases 188. While

¶33

 considering similar question, the Supreme Court has
 observed that it is not enough for the Public
 Analyst to give a few mechanical data. The Public
 Analyst report must help the court with something
 more of the process by which the conclusion has
 been arrived at. The learned counsel submitted
 that similar view has been taken by a learned
 Single Judge of this court inState of Maharashtra
v. Baburao Daga Suryavanshi, 1990(I) Prevention of

¶34

Food Adulteration Cases 94. The learned counsel

¶35

 then contended that under Section 13(3) the
 certificate issued by the Director of Central Food
 Laboratory supersedes the report given by the
 Public Analyst under Section 1. He submitted that
 admittedly the accused had made an application to
 the learned Magistrate that sample be forwarded to

¶36

¶37

 the Central Food Laboratory for analysis. That
 application was granted and the sample was in fact
 sent to Central Food Laboratory. However, while
 the report of the Public Analyst is dated 9/8/85,
 the prosecution was launched on 27/6/86. Delay in
 launching the prosecution, has, therefore, caused
 prejudice to the accused. Their valuable right
 under Section 13(3) is affected by this delay. In
 this connection the learned counsel relied on AIR
1967 SC 970, Municipal Corporation of Delhi v.

¶38

Ghisa Ram. He further submitted that the charge
 does not state which rule is contravened by the
 accused and, therefore, serious prejudice is caused
 to the accused. He further submitted that Joint
 Commissioner who granted sanction should have been
 examined. It was necessary for the sanctioning
 authority to prove the sanction. On this ground
 also the prosecution is vitiated. The learned
 counsel submitted that in any event the view taken
 by the learned Magistrate is a reasonably possible
 view and hence this court should not disturb it in
 this appeal against acquittal.

¶39

 11. In Tota Singh & Ors. v. State of Punjab, AIR
1987 SC 1083, the Supreme Court has laid down the
 principle which the appellate court should follow

¶40

¶41

 while dealing with an appeal against acquittal.
 The relevant observation of the Supreme Court may
 be quoted:

¶42

 "The mere fact that the Appellate Court
 is inclined on a reappreciation of the
 evidence to reach a conclusion which is
 at variance with the one recorded in the
 order of acquittal passed by the Court
 below will not constitute a valid and
 sufficient ground for setting aside the
 acquittal. The jurisdiction of the
 Appellate Court in dealing with an
 appeal against an order of acquittal is
 circumscribed by the limitation that no
 interference is to be made with the
 order of acquittal unless the approach
 made by the lower Court to the
 consideration of the evidence in the
 case is vitiated by some manifest
 illegality or the conclusion recorded by
 the Court below is such which could not
 have been possibly arrived at by any
 Court acting reasonably and judiciously
 and is, therefore, liable to be
 characterised as perverse. Where two

¶43

¶44

 views are possible on an appraisal of
 the evidence adduced in the case and the
 Court below has taken a view which is a
 plausible one, the Appellate Court
 cannot legally interfere with an order
 of acquittal even if it is of the
 opinion that the view taken by the Court
 below on its consideration of the
 evidence is erroneous".

¶45

 In the light of the above observations of the
 Supreme Court, it will be necessary for this court
 to find out whether the judgment of the trial court
 suffers from any manifest illegality or whether it
 could be called perverse. If the view taken by the
 trial court is a reasonably possible view. This
 court would not interfere with it in this appeal
 against acquittal.

¶46

 12. So far as the finding of the learned
 Magistrate that because there is no evidence to
 indicate that the shop was owned by the accused
 they could not have been charged under the said Act
 is concerned, I am of the opinion that it is
 clearly erroneous. In this connection reliance
 placed by the learned counsel for the appellant on

¶47

¶48

 the judgment of the Supreme Court inK. Rajeshwar
Rao’s case (supra) is apt. In that case, the

¶49

 Supreme Court referred to its earlier judgment on
 the point and observed as under:

¶50

 "The Act is a welfare legislation to
 prevent health hazards by consuming
 adulterated food. The mensrea is not an
 essential ingredient. It is a social
 evil and the Act prohibits commission of

¶51

 the offences under the Act. The
 essential ingredient is sale to
 purchaser by the vendor. It is not
 material to establish the capacity of
 the person vis-a-vis the owner of the
 shop to prove his authority to sell the
 adulterated food exposed for sale in the
 shop. It is enough for the prosecution

¶52

 to establish that the person who sold

¶53

 the adulterated article of food had sold

¶54

 it to the purchaser (including the Food

¶55

 Inspector) and that Food Inspector
 purchased the same in strict compliance

¶56

 with the provisions of the Act. As

¶57

 stated earlier the sanctioning authority
 has to consider the material placed

¶58

¶59

 before it whether the offence of
 adulteration of food was committed and
 punishable under the Act. Once that
 satisfaction is reached and the
 authority is competent to grant the
 sanction, the sanction is valid. It is
 not necessary for the sanctioning
 authority to consider that the person
 who sold is the owner, servant, agent or
 partner or relative of the owner or was
 duly authorised in this behalf."

¶60

 13. In this case accused No. 2 is a proprietor of
 the shop and accused 1 was selling the chilli
 powder. In the circumstances, the prosecution
 launched against them cannot be faulted because
 documentary evidence pertaining to the ownership of
 the shop was not placed on record by the police.

¶61

 14. The learned Magistrate is also not right when
 he observes that the Food Inspector was not
 competent to initiate prosecution. It is pertinent
 to note that notification appointing him as Food
 Inspector is on record at Exhibit-30. Similar
 point was raised before the Gujrat High Court in
Manka Hari’s case (supra). The point was not

¶62

¶63

 raised in the trial court. The Gujrat High Court
 observed that this point had nothing to do with the
 ingredients of the offence. It basically involves
 examination of facts and, therefore, should have
 been raised in the trial. The Gujrat High Court
 then observed that in the complaint, the
 complainant was described as a Food Inspector.
 Sanctioning Authority would not have granted
 sanction, if the complainant was not duly
 appointed. It is, therefore, permissible to
 presume that the Food Insopector had necessary
 qualifications in the absence of challenge to this
 factual aspect in the trial court. In this case
 also as regards the Food Inspector’s qualification,
 there is no challenge raised by the accused in the
 trial court. None of the witnesses have been
 cross-examined on these lines. The learned

¶64

 Magistrate was, therefore, clearly in error in
 observing that the Food Inspector was not competent
 to initiate prosecution. I concur with the view

¶65

 taken by the Gujrat High Court in Manka Hari’s

¶66

case. This submission must, therefore, fail.

¶67

 15. So far as the point raised by Mr. Kotwal
 about Section 13(3) of the said Act on the basis of
 the judgment of the Supreme Court in Municipal

¶68

¶69

Corporation of Delhi’s case (supra)is concerned,
 it was not raised in the trial court. None of the
 witnesses were questioned about the alleged delay
 in launching prosecution and the resultant alleged
 prejudice caused to the accused. It is, therefore,
 not possible for me to take this point into
 consideration at this stage.

¶70

 16. The learned Magistrate also held that the
 Public Analyst’s report does not disclose any data
 of analysis. The name of the analyst is also not
 mentioned. The learned Magistrate is factually
 wrong because the report of the Public Analyst does
 mention the data of analysis. It does not,
 however, contain the process of the analysis.

¶71

 17. In this connection my attention is drawn by
 the learned counsel for the appellant to the
 judgment of the Supreme Court inDhian Singh’s case
(supra)where the Supreme Court after following the
 view taken by Allahabad High Court in Nagar

¶72

Mahapalika of Kanpur v. Sri Ram, AIR 1964
Allahabad 270 held that the report of the Public
 Analyst need not contain the mode or particulars of
 analysis nor the test applied but should contain
 the result of analysis namely, data from which it

¶73

¶74

 can be inferred whether the article of food was or
 not adulterated as defined in Section 2(1) of the
 Act.

¶75

 18. Judgment of the Supreme Court inKisan Trimbak
Kothule’s case (supra)is also shown to me where
 the Supreme Court has held that it is not enough to
 give a few mechanical data in the Public Analyst’s
 report and it must help the court with something
 more of the process by which the conclusion has
 been arrived at. Following the same judgment the
 learned Single Judge of this court has also taken a

¶76

 view in Baburao Daga Suryavanshi’s case (supra)

¶77

 that the Public Analyst’s report should have
 contained the qualification of the Public Analyst
 and the process employed by him for analysis. The
 Learned Single Judge confirmed the order of
 acquittal. It is pertinent tonote that the

¶78

 judgment of the Supreme Court inKisan Trimbak’s
case (supra)is a later judgment. In the facts of
 this case, however, it is not necessary for me to

¶79

 go into this aspect of the case because the order
 of acquittal will have to be confirmed on a very
 sound ground which has also weighed with the
 learned Magistrate.

¶80

¶81

 19. The Food Inspector has in his

¶82

 cross-examination stated that about a month back he

¶83

 had obtained bottles in which the samples were kept

¶84

 from a store. He has stated that he had cleaned
 and dried the bottles four days prior to the
 incident. In prosecutions under the said Act

¶85

 taking samples byfollowing the correct procedure is
 of utmost importance. It is true as observed by
 this court in Popat Panachand Shah’s case (supra)
 if the prosecution is able to demonstrate that
 there is substantial compliance of the requirement
 of rules 14 and 16 that would suffice. However, in
 this case, the Food Inspector in his evidence
 states that the bottles were cleaned by him four
 days back. The report of the Public Analyst
 indicates marginal adulteration. In such

¶86

 circumstances if the bottles were cleaned four days
 back it is possible to urge that the impurities
 found in the sample were the result of the fact
 that cleaned bottles were not used. It was

¶87

 necessary for the Food Inspector to ensure that
 bottles were cleaned before samples were drawn.

¶88

 His statement that bottles were cleaned four days

¶89

 back goes to the root of the matter. The view
 taken by the learned Magistrate that cleaned
 bottles were not used for sampling purpose is,

¶90

¶91

 therefore, reasonably possible view which I am
 unable to disturb in this appeal against acquittal.

¶92

 20. In the circumstances, in my opinion, no
 interference is necessary with the impugned
 judgment and order. The appeal will have to be,
 therefore, dismissed. However, before, I dismiss
 the appeal, I must record my appreciation for the
 efforts made by Smt. Poonam Kandale, the learned
 counsel who assisted Shri Apte, the learned counsel
 for the appellants. The appeal is dismissed.

¶93

 JUDGE.

¶94

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶95

APPELLATE SIDE

¶96

 CRIMINAL APPEAL NO. 18 OF 1996

¶97

 PRABHAKAR VINAYAK NATU & ANR. .. APPELLANTS

¶98

 VERSUS

¶99

 INDARAJ KHADERU GUPTA & ORS. .. RESPONDENTS

¶100

 Smt. Poonam Kandale h/f R. S. Apte for

¶101

¶102

 appellants

¶103

 Mr. S. V. Kotwal for R-1

¶104

 Mrs. M. M. Deshmukh, APP

¶105

CORAM: SMT. RANJANA DESAI, J.

¶106

DATE: SEPTEMBER 18, 2007.

¶107

 OPERATIVE PART OF THE ORDER

¶108

 . For the reasons stated in the oral judgment,

¶109

 this court has dismissed the appeal.

¶110

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶111

APPELLATE SIDE

¶112

 CRIMINAL APPEAL NO. 18 OF 1996

¶113

DATE OF DECISION:18/9/2007

¶114

 Submitted for
 approval.

¶115

¶116

THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

¶117

THE HON’BLE SHRI JUSTICE :

¶118

`1. Whether Reporters of Local Papers )` `be allowed to see the Judgment? )`
`2. To be referred to the Reporters or )` `not? )`
`3. Whether Their Lordships wish to )` `see the fair copy of the Judgment? )`
`4. Whether this case involves a )` `substantial question of law as to )` `the interpretation of the )` `Constitution of India, 1950 or any )` `Order made thereunder? )`
`5. Whether it is to be circulated to )` `the Civil Judges? )`
`6. Whether the case involves an impor- )` `tant question of law and whether )` `a copy of the judgment should be )` `sent to Nagpur, Aurangabad and Goa )` `Offices? )`

Prabhakar Vinayak Nathu and Anr. v. Indaraj Khaderu Gupta and Ors.

Case brief

What is this about?

What did the court decide?

Prabhakar Vinayak Nathu and Anr. v. Indaraj Khaderu Gupta and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State vs. Jayantilal H.Veera Vs Jayantilal H.Veera

Gopikrishan S.Damani and Anr. Vs Supreme Industries Ltd. and Ors.

laxmi asbessstos product Ltd. Vs camco bulders india limited

Sou. Mumtaz Abdul Karim Bepari Vs Abdulkarim Gudulal Bepari and Ors.

Smt.Ratnaprabha Vithal Tople Vs Sabestain D'Conha and 5 Ors.

Sou. Mumtaz Abdul Karim Bepari Vs Abdulkarim Gudulal Bepari and Ors.