The State of Maharashtra v. Ashok Mahaling Tawate

Bombay HC18 Oct 2010APPLN/4974/2009

Case brief

AI extract

What is this about?

The High Court rejected the State's application for leave to appeal against an acquittal in a food adulteration case under the PFA Act. The court upheld the trial court's finding that the prosecution failed to prove due compliance of sample collection rules and that the stock was not for sale.

What did the court decide?

Leave to file appeal was refused and the criminal application was rejected.

What the court decided

AI extract

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5.cr appln 497409.doc

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 4974 OF 2009

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The State of Maharashtra

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.. Applicant

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Vs

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Ashok Mahaling Tawate

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.. Respondent

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Mr. V.B. Konde-Deshmukh, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI, J
DATE : 18th OCTOBER, 2010.

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P.C.:

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The State of Maharashtra Vs Ashok Mahaling Tawate — Bombay HC (2010) — LawSathi Research

1.The applicant - State of Maharashtra has preferred this
application for leave to file appeal against the judgment and
order dated 22.07.2009 passed by the learned Additional
Sessions Judge, Sangli in Sessions Case No. 232 of 2008. By
the said judgment and order, the respondent i.e original
accused came to be acquitted of the offences under section
7(i), 7(v) read with Section 2(ia)(j) and Rules 29 and 50 of
the Prevention of Food Adulteration Act 1954 (Hereinafter
referred to as the 'PFA Act') and Prevention of Food
Adulteration Rules 1995 (Hereinafter referred to as the 'PFA
Rules') punishable under Section 16(1-A) of the said Act.

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Section 9 of PFA Act. The accused is the proprietor of M/s.
Priyanka Trading Company situated at Priyanka Cold Storage,
Tasgaon Road, Sangli. It is further the prosecution case
that the accused was engaged in selling food articles raisin
(Bedana) without holding any licence. The complainant
demanded and purchased 750 grams of raisin for test and
analysis for which the complainant had offered an amount of
Rs. 37.50 ps. However, the accused declined to accept the
said amount. The complainant, then issued notice to the
accused in form VI and also notice under Section 14(A) of PFA
Act. The complainant then divided 750 grams of raisin into
three equal parts and put them in three dry, clean and empty
plastic bottles. Each plastic bottle was closed tightly and
a seal was put thereon.

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On 19th April 2003, the complainant received a report
from Public Analyst wherein the sample of raisin was found
containing synthetic colours Tartazine and Brilliant Blue FCF
and it was opined that the sample of raisin does not confirm
to the PFA Rules, 1955. The complainant then sent relevant
papers to Joint Commissioner, Pune Division, Food & Drug
Administration, Pune for obtaining necessary consent towards
prosecution of accused. After receipt of consent, the
complainant filed prosecution before the trial Court on 3rd
July 2004 interalia alleging that raisin is an article of
food within the meaning of Section 2(V) of PFA Act and on

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19th April 2004, the accused by stocking for sale and selling
an adulterated article of food i.e. raisin, has committed an
offence in contravention of Section 7(i) read with Section
2(ia)(a), 2(ia)(j) and Section 7(v) read with Rules 29 & 50,
punishable under 16 of PFA Act.

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3.Charge under Section 7(i) read with Section 2(ia)(a),
2(ia)(j) and Section 7(v) read with Rules 29 & 50, punishable
under 16 of PFA Act came to be framed against the accused to
which he pleaded not guilty and claimed to be tried. His
defence is that of total denial and false implication. His
further defence is that he is not concerned with the seized
stock of raisin or with the premises or business of M/s.
Priyanka Trading Company or M/s. Priyanka Cold Storage,
alternatively, he contended that raisin was not kept for sale
and therefore, question of selling adulterated food article
to the complainant within the meaning of Section 2(ia)(a),
2(ia)(j) of PFA Act does not arise. He further contended
that as he was not dealing in business of selling/purchase of
raisin, the question of securing any licence for doing
trade / business does not arise.

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5.On perusal of the evidence on record, it is clear that
the learned Sessions Judge has observed that there is non-
compliance of mandatory provisions of Rule 14 of PFA Rules.
As far as Rule 14 is concerned, in the complaint, it is
stated as under:

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"That the complainant then divided 750 grams of raisin
into three parts equally so purchased for test and
analysis and put it into three dry, clean and empty
plastic bottles. Each plastic bottle was closed
tightly and a seal was put on it by sealing wax. Then
the label bearing the details about the food article
and the signatures of accused, panch witness and
complainant, pasted on each plastic bottle."

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means the plastic sample bottles were closed tightly. It is
also not clear whether the plastic bottles used for
collecting sample, was having any removable lid of its own or
whether mouth of plastic bottles was closed by cork etc., and
then seal was affixed on such removable lid or cork etc
whereas PW1 R.T. Patil in his examination-in-chief has stated
that he has closed the mouth of those three containers
tightly by putting lid, he has applied wax seal on the mouth
of each container and then he has pasted sample labels on

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each container by gum. Thus, the evidence of PW1 shows that
he has collected sample of raisin in plastic containers
having 'lids' on which he has put or applied wax seal. This
evidence of PW 1 is an improvement, therefore unless the
evidence of PW 1 is corroborated by independent evidence of
panch witness, it would not be safe to rely on his sole
testimony in absence of averments in the complaint.

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5. PW 3 Kachare is the panch witness. He has deposed that
Food Inspector R.T. Patil divided 750 grams of raisin in
three equal parts and deposited them in three glass bottles
and then sealed those bottles by tying thread and applying
wax seal on it. Thus, on perusal of the evidence of PW 3 who
is the panch witness, it is observed that evidence of PW 1
R.T. Patil is not corroborated in any manner in respect of
collection of raisin sample by him in plastic bottles and in
respect of closing the mouth of three containers by lid and
thereafter, putting seal on the lid. It is pertinent to note
that PW 3 Kachare has categorically admitted that peons were
taking sample and filing in bottles while Food Inspector was
preparing documents.

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dry and empty jars. Moreover, evidence of the complainant PW
1 shows that the samples which were taken was not a
representative sample of the stocked raisin. The evidence of
complainant PW 1 does not disclose that he has mixed up the
entire lot of raisin before purchasing 750 grams of raisin,
as sample for test purposes.

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Thus, from the evidence on record, the conclusion
arrived at by the learned Sessions Judge that the prosecution
has failed to prove due compliance of the provisions of Rule
14 of PFA Rules is a reasonable and possible view.

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7.It is to be noted that the defence of the accused is
that he is not concerned with the seized stock of raisin or
with the premises or business of M/s. Priyanka Trading
Company or M/s. Priyanka Cold Storage. His further defence
in the alternative is that the raisin was not kept for sale
and therefore, question of selling adulterated food article
to the complainant within the meaning of Section 2(ia)(a),
2(ia)(j) of PFA Act does not arise. He further contended
that as he was not dealing in business of selling/purchase of
raisin, the question of securing any licence for doing
trade / business does not arise.

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was the proprietor or partner of M/s. Priyanka Trading
Company or M/s. Priyanka Cold Storage. He has also admitted
that at the time of drawing of the sample, the accused was
not selling the raisin or making delivery of raisin to any
other person. The complainant has further admitted that
there was no person present for purchasing raisin from the
accused nor had the accused taken delivery as consignee of
raisin from any person. PW 1 has further admitted that
accused had not accepted the price of 750 grams of raisin
allegedly sold by him. All the above circumstances show that
the raisin which was stocked in the cold storage, was not
meant for sale as a food article.

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8.The learned Sessions Judge had considered these as well
as other aspects while acquitting the respondent-original
accused. Looking to the evidence on record, I find that
conclusion arrived at by the learned Sessions Judge is a
reasonable and possible view.

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9.The plenitude of power available to the Court hearing
an appeal against acquittal is the same as that available to
a court hearing an appeal against an order of conviction,
but, however, the court hearing an appeal against acquittal,
will not interfere solely because a different possible view
may arise on the evidence. The Supreme Court in the case of

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C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1
has observed that while hearing an appeal against an order of
acquittal, if two reasonable conclusions can be reached on
the basis of evidence on record, the appellate court should
not disturb the finding of the trial court. I have already
observed that the view taken by the learned Sessions Judge is
a reasonable and possible view. Hence, I am not inclined to
interfere in the judgment and order of acquittal. In view of
the above, leave to file appeal, is refused. Application is
rejected.

The State of Maharashtra v. Ashok Mahaling Tawate

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Case details

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