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Karnataka High Court · body

2006 DIGILAW 72 (KAR)

B. S. D. Nagaraju v. State

2006-01-18

K.RAMANNA

body2006
ORDER K. Ramanna, J. The petitioner-accused filed this Revision petition under Sees. 397 and 401 Cr. P. C., challenging the order of conviction and sentence passed by the III Additional Chief Judicial Magistrate at Mysore in C. C. No. 79/1988 for the offence punishable under Sec. 16(i) of PFA Act and the said order of conviction has been affirmed by the I Additional District and Sessions Judge at Mysore S in Crl. A. 115/1992, dismissing the appeal. 2. Being aggrieved by the said order the petitioner has come up with this Criminal Revision Petition mainly on the ground that the Court below has committed a grave error in placing total reliance and absolute faith on g the sole evidence of P.W.1 the Health and Food Inspector who is naturally an interested person and whose sole aim and object is succeed in the prosecution. Instead of drawing adverse inference for not examining any one of the two Mahazar witnesses alleged to have been present, the Court below as come to a wrong conclusion that P.W.1 is not an interested witness and there is difference of opinion offered in the report of the Public Analyst and Central Food Laboratory, Pune. The Court below without extending the benefit of doubt, by believing the report at Ex. P-14 has wrongly come to the conclusion in convicting the petitioner. The evidence of P.W.1 fully contradicts with regard to the obtaining of cash bill and receipt for the alleged purchase of butter and the Court below failed to notice the report of the public Analyst, Bangalore and Ex. P7 was sent beyond the time limit prescribed under Sub. Rule 3 of Rule 7 of PFA Rules. There is enormous delay in sending the sample to the Central Food Laboratory, Pone. Hence this revision petition. 3. Heard the arguments of learned Counsel for the petitioner and Smt. Geetha Devi for Respondent and learned High Court Government Pleader for the Respondent-State. 4. It is an undisputed fact that the petitioner is the owner of Shop Nos. 65 and 66 of Devaraja Market, Mysore. On 6-11-1987 P.W.1 Food Inspector attached to the City Corporation Mysore, visited the shop of the accused at about 5 p.m. and purchased 450 grams of butter which was kept for sale in the shop of the accused. 4. It is an undisputed fact that the petitioner is the owner of Shop Nos. 65 and 66 of Devaraja Market, Mysore. On 6-11-1987 P.W.1 Food Inspector attached to the City Corporation Mysore, visited the shop of the accused at about 5 p.m. and purchased 450 grams of butter which was kept for sale in the shop of the accused. According to’ the respondent Counsel, 450 grams butter purchased by P.W.1 from the petitioner was divided into three parts and sealed. A mahazar was prepared in the shop of the accused and one part of the same was sent as sample to the public analyst for examination. To that effect Panchanama Ex. P3 has been drawn. According to the Counsel for the petitioner the opinion of the public Analyst as per Ex. P-7 is contrary to the report given by the Central Food Laboratory Pune as per Ex. P-14. Where there is difference of opinion in regard to the contents of butter sent for analysis, the Court ought to have given benefit of doubt to the petitioner. No such benefit was given to him and the Food Inspector P. W. 1 has not followed the mandatory provisions and procedures while seizing the butter at mahazar Ex. P-3. There is no proof that the butter purchased from the shop of the petitioner was adulterated. Petitioner is a retailer and he purchased butter packets from the manufacturer and without filing complaint against the manufacture a false case is filed against the petitioner. P.W. 1 has not produced the receipt for having purchased butter from the shop of the petitioner which discloses that the alleged butter was not purchased by P.W. 1 from the shop of the petitioner. The trial Court has not properly considered the evidence on record. There are major contradictions in the evidence of P. W. 1, since P. W. 1 is an interested person and his evidence has not been corroborated by independent panch witness to show that the very butter had been purchased from the shop of the petitioner after following the mandatory provisions. There is a delay of more than 45 days in the receipt of Ex. p 7. There is difference of opinion with regard to the alleged adulteration of the product. Therefore, the Court below ought to have given benefit of doubt to the petitioner. There is a delay of more than 45 days in the receipt of Ex. p 7. There is difference of opinion with regard to the alleged adulteration of the product. Therefore, the Court below ought to have given benefit of doubt to the petitioner. On the other hand the trial Court wrongly came to the conclusion in convicting the petitioner for the aforesaid offences. 5. In support of his contention learned Counsel for the petitioner relied on a decision of the Hon’ble Apex Court in the case of Ahmed Dadabhai Advani v. State of Maharashtra, reported in 1991 Cri LJ 1418 : ( AIR 1991 SC 1079 ), wherein it has been held as follows: “Rule 9-A - Word “immediately” - Connotation of - Report whether sent immediately to accused - Has to be determined on facts and circumstances of each case - Report dated 1-9-78 - Complaint filed on 264-1979 - Report dispatched on 11-7-1979 - Cannot be said that report was sent promptly - Accused entitled to acquittal.” 6. He has also relied on another decision in case of Food Inspector, Thakazhy Panchayat v. P. Viswanatha Pillai, reported in 1988 Cri LJ 323, wherein the single bench of the Kerala High Court held that: “Report of Public Analyst - Time limit for - Provision as to in Rule 7(3) - Is mandatory - Report of Analysis of coffee sample given by public analyst after 45 days - Accused entitled to acquittal.” 7. In case of State Public Prosecution v. Meenakshi Achi, reported in 1972 Crl LJ 1684, wherein the Madras High Court held that: “Rule 7(3) which provides the outer limit of 60 days in sending the result of analysis to the Municipality from the date of receipt of sample, is mandatory and not directory. In no event and under no circumstances the full rigors of Rule 7 should be relaxed so as to result in effective deprivation of the right of the ac cused under Sec. 13(2) to get the sample in his possession analysed by the Director of Central Food Laboratory. Hence, where the sample produced by the accused was rendered unfit for analysis due to contravention of Rule 7 and unexplained delay of the prosecution in examining its witness, there was effective deprivation of the right under Sec. 13(2).” 8. Hence, where the sample produced by the accused was rendered unfit for analysis due to contravention of Rule 7 and unexplained delay of the prosecution in examining its witness, there was effective deprivation of the right under Sec. 13(2).” 8. Finally, Counsel for the petitioner also relied on decision of the Hon’ble Apex Court in easy of Bhagwan Das Jain v. State of Punjab ,reported in 1993 Supp (3) SCC 736 : (1993 AIR SCW 2278), wherein it has been held: “Prevention of Food Adulteration Act, 1954 - S. 2(ia)(m) - Prevention of Food Adulteration Rules, 1955 - Appendix-B Item A,11.02.09 r/w R. 5-Prosecution for selling adulterated milk ice - Fat content Defence of appellant that he was selling ‘milk ice cream’ and not ‘milk ice’ - Food Inspector himself stating that what he purchased from appellant was ‘milk ice cream’ - Held, trial Court had rightly given benefit of doubt to appellant - Criminal Trial - Benefit of doubt.” 9. Therefore, it is submitted that the delay in supplying the copy of the report of public analyst, Mysore and non-examination of P.W.1 before framing charges, the benefit of doubt should therefore be extended to the petitioner. Therefore, the impugned orders under challenge convicting the petitioner by the trial Court, which has been confirmed by the learned Sessions Judge are liable to be set be aside and the petitioner be acquitted. 10. On the other hand Smt. M. P.Geethadevi Advocate for the respondent contended that the petitioner has not disputed about the purchase of the butter M.O. 1 from the shop Nos. 65 and 66 of the petitioner. The report Ex. P-7 given by the Public Analyst clearly indicates that butter is adulterated. Therefore, the report received is well in title and another sample is sent to Central Food Laboratory, Pune, wherein it is opined that the sample did not conform to the standard of butter in the schedule table rule and therefore, the sample of butter sent was adulterated. Therefore, the trial Court was right in convicting the petitioner for the aforesaid offences. It is further contended that there is no hard and fast rule that Panchas have to be examined. Therefore, the trial Court was right in accepting the evidence of P. W. 1 to come to a right conclusion. Therefore, the trial Court was right in convicting the petitioner for the aforesaid offences. It is further contended that there is no hard and fast rule that Panchas have to be examined. Therefore, the trial Court was right in accepting the evidence of P. W. 1 to come to a right conclusion. Further learned Counsel for the Respondent drew the attention of this Court to schedule table Rule, which reads as follows: “A. 1101. 19- Table - (Creamery) Butter means the product obtained from/cow or buffalo milk or a ‘combination thereof or from cream or curd obtained from cow or buffalo milk or a combination thereof with or without the addition of common salt and annatto or carotene as curing matter. It shall be free from other animal fats, wax and mineral oils, vegetable oils and fats. No preservative except common salt and no colouring matter except annatto or carotene shall be added. It shall contain not less than 80.0 per cent by weight of milk fat, not more than 1.5 per cent by weight of curd and not more than 3.0 per cent by weight of common salt.” 11. Further she also drew the attention of the Court to Rule A.11.2.20 which reads as follows: “Deshi (Cooking) Butter: means the product obtained from cow or buffalo milk or a combination thereof or curd obtained from cow or buffalo milk or a combination thereof without the addition of any preservative including common salt, any added colouring matter or any added flavouring agent. It shall be free from other animal fats, wax and mineral oils, vegetable oils and fats. It shall contain not less than 76.0 per cent of milk fat by weight.” 12. Therefore, the report of Public Analyst Ex. P.7 and Ex. P.14 the report of the Central Food Laboratory, Pune, discloses that butter purchased from the shop of the petitioner by P.W. 1 was adultrated and there is no violation or non-compliance of any mandatory provisions of PFA Act. Therefore, the present criminal Revision Petition is not maintainable and the impugned orders under challenge are neither illegal nor incorrect. It is submitted that both the Courts below concurrently found on appreciation and re-appreciated the entire evidence and exercised jurisdiction of the revisional Court. Therefore, the present revision petition is liable to be dismissed. 13. Therefore, the present criminal Revision Petition is not maintainable and the impugned orders under challenge are neither illegal nor incorrect. It is submitted that both the Courts below concurrently found on appreciation and re-appreciated the entire evidence and exercised jurisdiction of the revisional Court. Therefore, the present revision petition is liable to be dismissed. 13. Having heard the learned Counsel for both the parties, now, I proceed to see whether the impugned ,orders under challenge passed by both the Courts below are illegal and in correct. No doubt the petitioner herein is the owner of shop bearing Nos. 65 and 66 of Devaraja Market, Mysore. P.w. 1 is Health and Food Inspector. The petitioner-accused has nowhere stated that P.W. 1 on that day has not at all visited the shop of the petitioner nor has denied the purchase of the butter by paying Rs. 24/-. It is seen that Ex. PI is a notice issued Form No.6 and details about the visit of the shop by P.W.1 and also purchasing of the butter from the petitioner on 611-1987. Ex. P2 is the receipt issued by the petitioner on behalf of Mysore Store. Petitioner being the partner of the Mysore store, sold 450 grams of butter by collecting Rs. 24/-. P.W.1 who has purchased the said butter weighing about 450 grams from the petitioner at about 5 p.m. on 6-11-1987 and petitioner has signed on the receipt and this fact has not been seriously disputed. Of course one Subbarathna, Asst. Food Inspector and another independent witness Sanjeevamurthy were present at the time of taking sample and drawing mahazar Ex. P3 and they have put their signatures. The butter weighing about 50 grams purchased by P.W. 1 was divided into three parts weighing about 150 grams each and the said Ex. P-3 was prepared in the shop of the petitioner itself. On the very same day, sample of butter taken to the extent of 150 grams and forwarded to the Public Analyst Food and Water on the very same day. To that effect an acknowledgment has been issued by the Public Analyst Food and Water along with Form No.7 on 9-11-1987. Therefore, there is no delay as such in sending the sample butter packet purchased from the petitioner shop to the Laboratory. The report discloses that it was examined by the Public Analyst on 11-12-1987 and found that the sample is adulterated. Therefore, there is no delay as such in sending the sample butter packet purchased from the petitioner shop to the Laboratory. The report discloses that it was examined by the Public Analyst on 11-12-1987 and found that the sample is adulterated. Of course this report signed by the Chief Chemist, Public Analysts on 17-12-1987 was received by the Health Officer Mysore on 22-12-1987 i.e., after 45 days. There is a delay in sending the report. Considering the fact that the Chief Chemist Public Analyst analysed the butter packet on 11-12-1987, there is a delay in preparing and signing the report and also receipt of the report. Therefore, the delay has been explained, hence, it cannot be given much importance to in the result of the case. The contention of the petitioner is that Exs. P.7 and 14, that at the request of the petitioner only the sample of butter sent to the Centra Food Laboratory, Pune which was received by the Laboratory on 25-11-1987. But the butter was purchased on 6-11-1987, by the time he samples sent; to the Central Food Laboratory, Pune, the containers were sealed and intact, the opinion offered by the Director of Central Food Laboratory is that the sample does not conform to the standard of butter. That the butter sent to him is adulterated. ‘rherefore, considering the fact that there is no contradiction in the opinion of the Chemical Analyst, Bangalore, and the opinion of the Director of Central Food Laboratory, Pune, with regard to the adulteration of the sample. Of course the respondent has not examined the attested witnesses. Further both the trial Court and the Sessions Judge have given cogent reasons that P.W is a public servant and he is not in amicable terms with the petitioner and P. W. 1 has complied sub. Sec. 7 of Section 10 of the PFA Act. Therefore, viewed from any angle, I do not find any good reason to extend the benefit of doubt to acquit the petitioner when the finding of both the Courts is concurrent with regard to the charge levelled against the petitioner. The oral and documentary evidence placed on record clearly indicates that P. W. 1 purchased the said adulterated butter from the shop of the accused on 6-11-1987 and seized in the presence of panch witnesses. The oral and documentary evidence placed on record clearly indicates that P. W. 1 purchased the said adulterated butter from the shop of the accused on 6-11-1987 and seized in the presence of panch witnesses. Delay if any in receipt of the report from the Central Food Laboratory, Pune will not take cover the case of the complainant. In para 13 of the order of the trial Court, it has been held that within 40 days the Chemical analyst has examined the food sample and has prepared the report but not sent the report. Therefore, even if there is any delay in receiving the report, it may not be of any consequence. 14. Viewed from any angle, I do not find any illegality’ or irregularity in the order of the trial Court which has been confirmed by the learned Sessions Judge. Therefore, the revision petition is dismissed as devoid of merits. Petition dismissed.