B. M. JINGER v. RAMESHKUMAR LALJIBHAI KATHANIYA — 1998 DIGILAW 599 (GUJ)

B. C. PATEL, J. ( 1 ) ). FOOD Inspector, Ahmedabad Municipal Corporation (hereinafter referred to as "the complainant") has preferred this appeal being aggrieved with the order of acquittal recorded by the learned Metropolitan magistrate, Ahmedabad in Criminal Case No. 565 of 1988 on 30-3-1991 wherein the accused were tried for an offence under Sec. 7 of the Prevention of Food adulteration Act (hereinafter referred to as "the Act") which is made punishable under Sec. 16 (1) (a) (i) of the Act. ( 2 ) THE facts leading to the present application as it appears from the record, briefly are as under. (Only a part of the Judgment approved for the reporting is published.) the Food Inspector, PW 1, Shri B. M. Jinger, appointed as Food Inspector by the State Government by Notification dated 6-10-1996 vide Exh. 9, visited the shop of the vendor, Rameshkumar Laljibhai Kathania, respondent No. 1 (hereinafter referred to as "accused No. 1") on 25-11-1987 at about 11. 00 AM with his Peon Alimiya. He called one Shantilal Shah to render his services as a panch. In the shop the complainant found 7 sealed containers of groundnut oil of "dharti" brand. After removing the seal of one of the containers the Food inspector collected the sample from accused no. 1 for analysis under an intimation to the accused, which has been signed by accused vide Exh. 11. Payment was made for the quantity of groundnut oil, namely 400 grams for which voucher was issued by accused No. 1, which has been signed by accused No. 1 as well as the panch. The cash memo which has been signed similarly has been produced on record vide Exh. 13. It appears that after following the procedure laid down under the provisions contained in the Prevention of Food Adulteration Rules (hereinafter referred to as "the Rules") the complainant collected sample and divided it in three equal parts and collected in dry and clean bottles which were sealed in accordance with the Rules. After completing the Panchnama and sealing the bottles as per the Rules the complainant also seized a tin seal used for sealing the container, which was broken open for collecting the sample. After completing the Panchnama and sealing the bottles as per the Rules the complainant also seized a tin seal used for sealing the container, which was broken open for collecting the sample. Accused No. 1 stated to the Food Inspector that he has purchased sealed container from Thakkar liladhar Vaghjibhai and for that purpose he also produced a bill with a warranty, the original of which was returned and xerox has been produced on record of the case vide Exh. 10. It appears that accused No. 1 was dealing in the name of umiyaji Oil Corporation, and bill, Exh. 10 was issued by Thakkar Liladhar vaghjibhai. The bill is dated 24-11-1987 communicating that 11 packed containers of 15 KGs. each were supplied to accused no. 1 at the rate of Rs. 440. 00 each. In the bill the manufacturer has given warranty which reads as under :"we hereby certify that the food mentioned in this invoice are warranted to be of the nature and quality which it purported to be, subject to Ahmedabad jurisdiction. " ( 3 ) THE accused No. 2 has been nominated under sub-sec. (2) of Sec. 17 to be in charge of and responsible to the firm for the conduct of the business of the firm, namely Messrs Thakkar Liladhar Vaghjibhai. Exh. 17 is a xerox copy of the Resolution in this behalf and accused no. 2 has accepted to be a nominee of Messrs Thakkar Liladhar Vaghjibhai. On 2-6-1987 it is stated by him that no further resolution has been passed in this behalf. Along with Exh. 17 nomination of persons by the company as per Rule 12b in From VIII, duly signed by the partner of the firm and present accused No. 2 accepting the nomination were enclosed. Same has been accepted by the Local (Health) authority. It is Messrs Thakkar Liladhar Vaghjibhai, the manufacturer, supplied article of food, namely, groundnut oil to accused no. 1 in sealed tins, with warranty. Accused No. 2 came to be prosecuted being a nominee of Messrs thakkar Liladhar Vaghjibhai. ( 4 ) THE sample bottle was forwarded to Public Analyst. On analysis, the Public analyst opined in his report, Exh. 19 that the sample is adulterated. It did not conform to the standards laid down under the Rules. There was addition of caster oil. Accused No. 2 came to be prosecuted being a nominee of Messrs thakkar Liladhar Vaghjibhai. ( 4 ) THE sample bottle was forwarded to Public Analyst. On analysis, the Public analyst opined in his report, Exh. 19 that the sample is adulterated. It did not conform to the standards laid down under the Rules. There was addition of caster oil. After receiving the report, the Food Inspector, with the consent of the competent authority filed a complaint before the Court and also forwarded copies of letter of Local (Health) Authority, report of the Public Analyst and details of sample to the accused by Registered Post AD. Accused No. 1 received said registered AD vide Exh. 21. However, as the Food Inspector doubted the signature, the same was again served vide Exh. 22. The Food Inspector also despatched the aforesaid documents to accused No. 2. However, as the acknowledgment was not received he personally served to accused No. 2 which has been signed by accused No. 2 vide Exh. 23. ( 5 ) IT appears that under Sec. 13 (2) of the Act, the accused no. 1 submitted an application to forward a sample to the Central Food Laboratory for analysis. The local (Health) Authority on requisition by the trial Court forwarded the sample bottle of groundnut oil with the seal intact which was received by the Court officer on 14-7-1988. Said sample bottle was sealed one and was in intact condition bearing No. II/c/1660/212 and was registered in the Muddamal Register at MR No. (Muddamal) 36/88. It appears that vide Exh. 3, the learned Advocate appearing for accused No. 1 passed a Purshis after verifying the sample bottle to the effect that the same was in sealed condition and signatures were not tampered with. The trial Court in accordance with Rule 4 (1) of the Rules forwarded the memorandum on 19-7-1988 vide Outward No. 507 of 1998. The trial Court forwarded the specimen impression of the seal of the Court used to seal the container and outer cover of the Muddamal. The Court also forwarded the memorandum vide Outward No. 509 of 1988 intimating that Muddamal sample has been forwarded separately by Registered Post. The Central Food Laboratory forwarded its report dated 19-8-1988 indicating that the sample shows presence of castor Oil in violation of Rule 18 (a) of the Rules. The Court also forwarded the memorandum vide Outward No. 509 of 1988 intimating that Muddamal sample has been forwarded separately by Registered Post. The Central Food Laboratory forwarded its report dated 19-8-1988 indicating that the sample shows presence of castor Oil in violation of Rule 18 (a) of the Rules. The Central Food Laboratory in the report also communicated the condition of the seals on the container and the outer cover, which reads as under :"the seals on the sample container were intact. Seals on the cover of the sample container as well as on outer of the sample parcel were also intact and tallied with the specimen impression of the seal enclosed with copy of memorandum forwarded separately. " ( 6 ) THUS, it is clear that the trial Court called for the sample from the Local (Health) Authority which was inspected by the learned advocate appearing for the accused no. 1 and he recorded his satisfaction to the effect that the bottle was properly sealed and there was no tampering with the signatures. The learned judicial Magistrate after following the procedure under Sec. 13 of the Act has forwarded the sample to the Central Food Laboratory. While forwarding the sample it was also necessary for the Court to ascertain that the mark and the seal fastened as provided in clause (b) of sub-sec. (1) of Sec. 11 are intact and the signature or the thumb impression as the case may be is not tampered with. In the instant case, after satisfying that the seal was intact and the signature was not tampered with, the Court forwarded the sample to the Central Food Laboratory. The learned Advocate who made an application was also satisfied about the condition of the seal and that the signature was not tampered with. ( 7 ) MR. Nagarkar, learned Advocate for the appellant submitted that the trial court has acquitted accused No. 1 on the ground that he has established the defence of warranty. The trial Court was also of the opinion that the sample was collected from a sealed container and on the spot the vendor has produced a bill having warranty. Mr. Nagarkar could not point out as to how acquittal of accused no. 1 is contrary to the evidence on record. The trial Court was also of the opinion that the sample was collected from a sealed container and on the spot the vendor has produced a bill having warranty. Mr. Nagarkar could not point out as to how acquittal of accused no. 1 is contrary to the evidence on record. ( 8 ) HOWEVER, his grievance is that the trial Court has acquitted accused No. 2 merely on the ground that the Food Inspector was not able to state as to what was the number of the Local (Health) Authority. He drew attention of the Court to para 11 of the Food Inspectors deposition wherein he has stated as under (translated versions) :"thereafter, each bottle was separately wrapped in a brown paper, ends of which were neatly folded and affixed by means of gum. Each of the bottles containing the sample was wrapped with slip that goes round completely from bottom to top of the bottle bearing the signature of the Local (Health) Authority and Code No. was pasted. " ( 9 ) IN the cross examination in para 50 the complainant has deposed as under :"i do not recollect as to what is Code No. of Local (Health) Authority. The Code no. which was given to me was forwarded to PA (Public Analyst ). " ( 10 ) IT is on this basis that Mr. Nagarkar submitted that the trial Court has come to the conclusion that sample bottle collected from accused No. 1 was analysed is doubtful considering the evidence given by the complainant in paras 9 to 16, read together with para 50 of his evidence. Exhs. 6, 19 and 20 wherein Slip no. of Local (Health) Authority is indicated and these documents are proved by evidence of the Food Inspector. It is also proved that the bottles containing sample in question were affixed with the slips of Local (Health) Authority bearing No. II/ c/1660/212. The trial Court held that it is an evidence of no credence and cannot, therefore, be accepted. The trial Court in its latter part of the judgment also emphasised that there is no satisfactory evidence that the sample which was collected from accused No. 1 was forwarded to the Public Analyst and to the central Food Laboratory. The trial Court held that it is an evidence of no credence and cannot, therefore, be accepted. The trial Court in its latter part of the judgment also emphasised that there is no satisfactory evidence that the sample which was collected from accused No. 1 was forwarded to the Public Analyst and to the central Food Laboratory. The trial Court in concluding portion of the judgment referring to para 50 of the complainants evidence has held that it is not proved beyond reasonable doubt that the sample which was collected from accused No. 1 was forwarded to the Public Analyst and to the Central Food Laboratory. The court held in these circumstances that the report, Exh. 6 indicating presence of castor oil and that the sample is not as per the standard, cannot be used for convicting accused No. 2. ( 11 ) FOOD Inspector in his evidence in paras 9 to 16 has described the procedure followed by him while collecting the sample. ( 12 ) TRIAL Court observed that neither in the complaint nor in the Panchnama, code number, serial number mentioned in slip of local authority is referred. ( 13 ) IN the instant case, the intimation in Form 6 under Rule 12 of the Rules, which was given to accused No. 1 and was also signed by accused No. 1 bore the sample No. II/c/1660/212. Similarly, Exh. 12, receipt issued by accused in token of giving sample and taking money has the same number. Exh. 16 with which two sample bottles were forwarded to Local (Health) Authority bears the same number. On the bottle as per Rule 15 the label is to be pasted. In the instant case, when the sample was received by the Public Analyst, a note was prepared by him showing what were the details of label on container. Rule 15 refers to details to be pasted on the sample bottle. Reading Exh. 20, it clearly appears that the same number was written on the label pasted. The trial Court has considered all this in the judgment, but merely because the complainant was not in a position to state before the Court on oath orally as to what was the number, has come to the conclusion as aforesaid. ( 14 ) THE Food Inspector deposing in Court for having collected the sample on several occasions he may not remember the numbers. ( 14 ) THE Food Inspector deposing in Court for having collected the sample on several occasions he may not remember the numbers. The documents on the record should have been considered to establish identity and merely on the ground that orally he was not able to state the number, it cannot be said that he is not telling the truth or that link is not established. Under these circumstances the order of acquittal so far as accused No. 2 is concerned is required to be quashed and set aside. * * * * * * * * * ( 15 ) IN view of what is stated hereinabove, the accused No. 2 is sentenced to undergo rigorous imprisonment for a period of six months and is sentenced to pay fine of Rs. 1,000. 00 (Rupees one thousand only), in default to make payment of the above fine to undergo simple imprisonment of one month. The order of imprisonment stands postponed for a period of 4 months on the condition that the amount of fine should be paid within the period of two weeks in the trial Court. * * * * * * * * * registry has placed this matter for clarification as they cannot issue writ due to a confusion. In paragraph 7 of the order, it is stated that nothing is pointed out as to how acquittal of accused No. 1 is contrary to the evidence on record. However, in the operative part, it is not stated that the order of acquittal qua accused No. 1 is confirmed. Hence, the Registry has placed this matter for clarification. It is, therefore, clarified that the order of acquittal qua accused No. 1 is confirmed. Rest of the judgment regarding conviction, sentence and directions qua accused No. 2 remains as it is. .