Dismissed

The State of Maharashtra v. Anilkumar Raychand Vora

Bombay HC23 Jun 2017APEAL/465/1999

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the acquittal of a food vendor under the Prevention of Food Adulteration Act. The Court upheld the trial judge's view that the Public Analyst's report was vague, procedural irregularities in sampling were not dispelled by evidence, and the accusation of adulteration to health injury was not established beyond reasonable doubt.

What did the court decide?

The criminal appeal filed by the State of Maharashtra was dismissed, affirming the acquittal of the respondent.

The State of Maharashtra Vs Anilkumar Raychand Vora — Cheque Dishonour | Bombay HC (2017)

Cr.Apeal.465/1999

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 465 OF 1999

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The State of Maharashtra (At the instance of Shri Uday Shankarrao Vanjari, Food Inspector, Food and Drugs Administration (M.S.) Satara.

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...Appellant (Orig.Complainant)

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Vs.

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Anil Kumar Raychand Vora Vendor and Proprietor of M/s. Sapana Trading, Main Road, Mhaswad, Tal: Man,Dist: Satara. ...Respondent (Orig. Accused)

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CORAM : M.S. KARNIK, J.

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Reserved on 8^th March, 2017 Pronounced on 23^rd June , 2017

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JUDGMENT:

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The Appellant State of Maharashtra has filed this Appeal under Section 378(1) of the Code of Criminal Procedure against the judgment and order dated 10th March, 1999 passed by the Judicial Magistrate, First Class, Dahiwadi. Criminal Case No.171 of 1993 under Section 7(i) r.w. 2(ia)(a), 2(ia)(j), 2(ia)(h) and 2(ia)(l) of the Prevention of Food Adulteration Act, 1954 was registered

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against the Respondent which resulted in his acquittal.

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2. The prosecution case in brief is as under:

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(a) The complainant is a Food Inspector duly appointed and qualified having undergone training for taking the samples under the provisions of the Prevention of Food Adulteration Act, 1954 (herein after referred to as the said Act for short). On 7th July, 1993, Food Inspector Shri B.J. Mahajani visited the shop of the Respondent alongwith independent pancha witness Jawaharlal Gandhi and inspected the shop. He declared his intention of taking sample of “Badishep” (fennel seeds). Then he purchased 600 gms. badishep from the Respondent by paying necessary price to him. Food Inspector Shri Mahajani issued notice to the Respondent in Form No.VI under Section 14 of the Act and the Rules framed thereunder. Shri Mahajani divided the purchased 600 gms. badishep into three equal parts with the help of the measure. He then put each part in

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separate clean, dry and empty bottles. He then put the

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cork and lid to the bottles tightly. The mouth of the bottles were sealed by wax using the seal which was with Food Inspector Shri Mahajani. After following the due procecure of sampling he sealed all the three bottles of sample. He obtained the signatures of panch witnesses as well as the Respondent on all necessary forms and slips. After entire sampling procedure was over he prepared memorandum of panchanama of the procedure followed by him for obtaining the sample of

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“Badishep” from the Respondent. The said panchanama was signed by the Food Inspector Shri Mahajani, panch witness Shri Gandhi and the Respondent. Thereafter on the next day, Shri Mahajani sent one part of the sample along with the original copy of the memorandum in Form No. VII in separate sealed packet to the Public Analyst Pune by registered post. He also sent at the same time one duplicate copy of the Form No. VII along with specimen impression of seal in another sealed packet to the Public Analyst Pune by registered post. On the same day he delivered

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remaining two counter parts of the sample along with two copies of Form No. VII in one sealed packet to the Local Health Authority Satara and also delivered two copies of the specimen impression of the seal in another sealed packet to the Local Health Authority Satara by hand delivery and obtained receipt for the same.

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(b) On 17th August 1993, Food Inspector Shri

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Mahajani received the report of Public Analyst for the article i.e. Badishep wherein the Public Analyst opined that sample of Badishep shows the presence of extraneous non-permitted green colouring matter and hence it does not conform to the standards of fennel seeds (saunf) whole.

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( c) In the meantime Food Inspector Shri Mahajani was transferred and Shri Patankar took charge from him. He submitted all the necessary documents and papers to the Joint Commissioner (Pune Division) Drug

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Administration Pune for sanction to launch prosecution

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against the Respondent. On 30th October, 1993 the present complainant, Shri Uday Vanjari received written consent from the Joint Commissioner to launch prosecution against the Respondent. The present complainant filed the complaint before the trial Court on 3rd December, 1993. Upon filing of the complaint in the trial Court, the complainant intimated the Local Health Authority about launching of the prosecution against the Respondent.

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(d) The Local Health Authority, Satara sent letter to the Respondent along with the copy of the Public Analyst's report and informed the Respondent about the case filed against him. It called upon the Respondent to file the application under Section 13(2) of the said Act, if he wants to do so. Process came to be issued against the Respondent. Evidence before the charge was recorded and after coming to the conclusion that there is prima facie material on record to proceed against him

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the trial Court framed charge against the Respondent

Cr.Apeal.465/1999

under the said Act.

The learned trial Judge upon trial of the Respondent was pleased to acquit the Respondent by his judgment dated 10th March, 1999 for the offences alleged against him.

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Learned A.P.P. contends that the trial Court has not properly appreciated the evidence on record. According to him the evidence on record was sufficient to convict the Respondent. The learned A.P.P. further contended that based on the evidence on record the findings recorded by the trial Court are perverse and not at all sustainable.

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With the assistance of the learned A.P.P. and learned Counsel

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appearing for the Respondent I have gone through the evidence on record. Learned Counsels have also taken me through the findings recorded by the trial Court. According to the learned A.P.P the trial

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Court has committed error in holding that merely finding extraneous non-permitted green colouring matter by Public Analyst

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is not sufficient enough to prove the guilt of the accused. In the

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submission of the learned A.P.P. it is contended that the trial Court ought to have considered that as per the standard of Fennel seeds

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“Badishep” prescribed in Appendix – A-05.11, the fennel should be free from added colouring matters.

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Learned A.P.P. submits that the trial Court was not justified in holding that there is breach of Rule 12 and Section 11(1) of the Act, 1954. The prosecution has in fact made out a case that the notice in Form No.VI was duly issued and signed. Thus according to the learned A.P.P. there was compliance of Rule 12 and Section 11(1) of the said Act.

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The learned A.P.P. further contends that the trial Judge was

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not justified in entertaining a reasonable doubt about the public analyst receiving the sample bottles for want of postal receipt / acknowledgment. He contends that the evidence on record is sufficient to substantiate that office of the Public Analyst received the sample on 13th July, 1993 and memorandum and specimen impression of the seal on 12th June, 1993.

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The learned A.P.P. would further submit that the trial Court

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has completely erred in holding that there is breach of Rule 14 of the said Rules. According to the learned A.P.P the bottles used for collecting the sample were dried and cleaned. Merely because the Food Inspector did not clean and dry the sample bottles in the shop of the Respondent, it cannot be said that the Rules are breached. Thus according to the learned A.P.P there is due compliance of Rule 14. The learned A.P.P. therefore, submits that the learned trial Court has erred in holding that the prosecution has failed to prove the guilt of the Respondent beyond all reasonable doubt.

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The learned Counsel for the Respondent on the other hand supported the findings recorded by the trial Court. According to him the report of the Public Analyst is vague and is not at all safe to rely upon. According to the learned Counsel for the Respondent the Food Inspector who collected the sample from the shop of the Respondent has committed the breach of many mandatory provisions while taking the samples and sealing it. The learned

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Counsel for the Respondent would submit that the view

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taken by the trial Court is a reasonably possible view. He invited my attention to the decision of the Apex Court in the case of K.

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Venkateshwarlu Versus State of Andhra Pradesh reported in

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2012(8) SCC 7 3 to support his submission that if the view taken by the trial Court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The relevant portion of paragraph 5 of th Apex Court, decision reads thus:

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“ This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations ” .

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Learned Counsel has also relied upon the decision of the

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Apex Court in the case of State of Rajasthan Versus Shera Ram @ Vishnu Dutta reported in 2012(1) SCC 602. Learned Counsel for the respondent invited my attention to paragraph 13 which reads thus:

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“ 13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves ” .

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Having considered the submissions advanced on behalf of the

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respective parties I feel that the judgment and order passed by the trial Court does not call for any interference. In so far as the charge framed against the Respondent under Section 2(ia)(h), 2(ia)(1) the learned trial Judge has held that there is no substance at all either

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in the evidence of the prosecution or in the complaint or even in the public analyst's report to sustain these charges against the Respondent. It is noticed that in the report of the Public Analyst it is no where mentioned that extraneous colouring matter is injurious to health. I do not therefore, find any fault with the view taken by the trial Court in respect of the said charges. The learned A.P.P fairly submits that he is not in a position to seriously assail the said finding of the trial Court.

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The learned A.P.P submits that the evidence on record is sufficient to convict the Respondent for the offences punishable under Section 2(ia)(a) and 2(ia)(j) of the said Act. In this context it would be material to examine the report of the Public Analyst at Exhibit-42. On the basis of the said report it is contended that as the added non-permitted colouring matter is detected by the Public Analyst in the sample of 'Badishep', the food article fennel (whole) is adulterated. The standards of fennel(whole) prescribed in Appendix-A–05511 provides that the fennel should be free from added colouring matters. Rule 23 to 31 deals with the colours permitted and non-permitted. The permitted colours are natural

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colours, organic and in-organic colours and organic and non-

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organic synthetic colours. The Public Analyst has merely found that extraneous non-permitted green colouring matter is noticed. The trial Court found that it is not specifically mentioned in the report about the nature and type of the colour and what was the extent of the said colour found in the sample. In fact the Food Inspector by his letter Exhibit-29 had sought clarification from the Public Analyst regarding the extraneous colouring matter which was detected in the sample of Badishep. Even the Local Health Authority had called upon the Food Inspector Shri Mahajani to get clarification of the colouring matter detected in the sample of Badishep by his letter at Exhibit-65. The trial Judge was of the view that reading of these two letters would indicate that neither the Food Inspector nor the Local Health Authority was satisfied with the report of the Public Analyst at Exhibit-42. The reply given by the Public Analyst at Exhibit-30 has only stated that the colouring matter detected is as given in Rule 28. The trial Judge under these circumstances was of the opinion that the report of the Public Analyst is totally vague and therefore held that the prosecution has failed to prove that the sample under analysis was adulterated and added colouring matter

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was found which is injurious to health. The trial Court found that the said report is not sufficient to give specific nature and quantity

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of the colour which the Public Analyst found in the sample and therefore, did not accept this as a good piece of evidence. I do not find that the view taken by the trial Court in this regard is unreasonable or an impossible view.

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The next point urged by the learned A.P.P. is that the learned

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trial Judge was not justified in holding that there is a breach of Rule 12 and section 11(1) of the Act of 1954. According to the learned A.P.P the signatures on the notice Exhibit-20 and also at Exhibit-64 in respect of Form No.VI are that of the Food Inspector. The original Form No.VI is at Exhibit-54 and the copy of the same which is produced with the complaint is at Exhibit-20. Rule 12 provides that when the Food Inspector takes sample of article he has to give notice of intimation of taking sample in writing in Form No.VI then and there. Section 11(i) also provides that when Food Inspector takes sample for analysis he shall give notice then and there of his intention to the person from whom the sample is taken. Therefore, according to the learned A.P.P the Food Inspector who took the

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sample of 'Badishep' from the accused issued notice in Form-VI to the accused. In the cross examination of the Food Inspector he has admitted that notice in Form No.VI must be signed by Food Inspector. The Food Inspector in cross examination has stated that the signatures on the notices are his. The learned trial Judge has tallied alleged signatures on Exhibit-20 and Exhibit-24 with the admitted signatures of the Food Inspector Shri Mahajani on other papers viz: Exhibit-18, Exhibit-21, Exhibit-22 and others. The learned trial Judge was of the opinion that the signatures on the original Form No.VI as well as the xerox copy does not bear the signatures of the Food Inspector. I do not find the course adopted by the trial Judge is unreasonable. Even during the course of hearing of the Appeal the learned A.P.P was not in a position to demonstrate with reasonable certainty that the signatures at Exhibit-20 and Exhibit-24 are that of the Food Inspector Mahajani. In this view of the matter the view taken by the trial Court that noncompliance of Section 11(i) (a) of the Act r.w. Rule 12 of the said Rules is fatal to the prosecution case cannot be said to be perverse or unreasonable.

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The next contention urged by the learned A.P.P is that the learned trial Judge was in error in holding that there is a breach of Rules 17 & 18 of the said Rules. To come to conclusion that noncompliance of Rules 17 & 18 is fatal to the case of the prosecution the learned trial Judge has relied upon the following decisions:

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State of Maharashtra Vs. Raj Karan (1988)2 P.F.A. Cases page-156.

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State of Maharashtra Vs. Vithalrao Thanuso Bodake (1997) 1 P.F.A. Cases page 239.

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and

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Murlidhar Laxman Ghadge Vs. State of Maharashtra (1987) 1 P.F.A. Cases page 208.

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The learned trial Judge has elaborately dealt with this aspect

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of the matter and held that though it is true that the Food Inspector, Mahajani stated that he sent the sample and memorandum and specimen impression of seal to the Public Health Laboratory, Pune

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separately by registered post, but no postal acknowledgment or receipt to prove the same is produced. There is thus a breach of Rule 17 & 18 of the said Rules and the view taken by the trial Court cannot be said to be perverse.

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As regards the breach of Rule 114 of the Rules the trial Court has recorded the following finding:

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“10. There is also a breach of Rule 14 in this case. Though it is specifically stated by P.W. No.1 Mahajani and vehemently submitted by the learned A.P.P in his written argument that the bottles used for collecting the sample were dried and cleaned, there is no supporting evidence to that effect. On the contrary, the admission of P.W. No.1 Mahajani in his cross-examination is sufficient enough to raise reasonable doubt about the cleanness and dryness of the bottle in which sample of Badishep was taken. It is admitted by Food Inspector Mahajani that he did not clean and dry the sample bottles in the shop of accused. He further admitted that he did not hand over the sample bottles either to pancha or accused for verification. There is nothing on record to show that when the sample bottles were obtained by Food Inspector Mahajani from his office

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and for how long they were lying in his kit. There is nothing on record to show that when the bottles were cleaned and dried last before their use to collect the sample in the shop of accused. These facts are to be necessarily brought on record by prosecution in order to show that the sample bottles were clean and dry. The general statement to that effect is not sufficient enough in the given circumstances. If at all the Food Inspector Mahajani had cleaned and dried the bottles in presence of panch witness and accused in the shop of accused then no such other evidence was necessary. But in these peculiar circumstances the evidence to show that when the bottles were cleaned and dried by the Food Inspector Mahajani is must. Prosecution has failed to produce such type of evidence. Hence, there is a clear breach of Rule 14 which is also fatal to the case of prosecution”.

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In this view of the matter I do not find any reason to interfere with the view taken by the trial Court. The Appeal is therefore dismissed.

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(M.S. KARNIK, J.)

The State of Maharashtra v. Anilkumar Raychand Vora

Case brief

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The State of Maharashtra v. Anilkumar Raychand Vora

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