Tuesday 22 September 2015

What will be effect if notice sent by public analyst is not served upon accused in prevention of food adulteration case?


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.
 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.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
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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