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2007 DIGILAW 528 (MP)

Khairajmal v. State of M. P.

2007-05-03

RAKESH SAKSENA

body2007
ORDER 1. Applicant has filed this revision against the judgment dated 7th March 2000 passed by I Additional Sessions Judge, Jabalpur, in Criminal Appeal No. 6/94, affirming the judgment dated 11.1.1994, passed by Special Judge Magistrate First Class (Municipal Corporation), Jabalpur in Criminal Case No. 1394/84, convicting the applicant under section 7 (i) read with section 16 (1) (a) (i) of Prevention of Food Adulteration Act and sentencing him to rigorous imprisonment for six months with fine of Rs. 1,000/-. 2. According to prosecution, on 15.10.1981 applicant was selling groundnut oil and mustered oil at Corporation Shop No. 1 situated in Gurandi Bazar, Jabalpur. Food Inspector M.B. Shrivastava and D.L. Patel after giving notice of their intention to purchase the oil took sample of the groundnut oil as well as mustered oil. Notice is Ex. P-l.375 Gms. of groundnut oil was purchased. It was divided in three parts and filled in three dry clean bottles. Bottles were closed by cork and sealed. They were wrapped in paper. Slips were affixed and were kept in envelope alongwith memorandum containing specimen impression of seal. Signatures of applicant as well as witnesses were taken and the receipt of sale Ex. P-2 was obtained from the vendor and a Panchnama of the proceeding Ex. P3 was prepared. One part of the sample was sent for analysis to Public Analyst and other two parts were deposited with Local Health Authority. The sample was received by the Public Analyst on 15.10.1981 and its report Ex. P-6 was given on 26.11.1981. On receiving the report, a notice under section 13 (2) alongwith a copy of the Public Analyst report was handed over to applicant. As per Public Analyst's report Ex. P-6, sample was found to be technically adulterated, as such the complaint was filed before the Court of Judicial Magistrate First Class. 3. Before the trial Court, on behalf of prosecution, only one witness viz M.B. Shrivastava, Food Inspector, was examined. No other witness was examined. On behalf of petitioner two witnesses DW-l Khillumal and DW-2 Teumal were examined. The defence of the applicant was that the owner of the shop was Laxmi Chand and he was not the owner of the shop. 4. No other witness was examined. On behalf of petitioner two witnesses DW-l Khillumal and DW-2 Teumal were examined. The defence of the applicant was that the owner of the shop was Laxmi Chand and he was not the owner of the shop. 4. Learned trial Court, relying upon the evidence of Food Inspector M.B. Shrivastava, held that all the requisite steps of procedure were followed and the sample was adulterated and eventually convicted and sentenced the applicant as mentioned above. 5. The appeal preferred by the applicant challenging the judgment of conviction passed by the learned Magistrate was dismissed by First Additional Sessions Judge, Jabalpur. 6. Learned counsel for the applicant has challenged the conviction of the applicant on three counts; firstly, that except the Food Inspector M.B. Shrivastava no other independent witness was examined, secondly, the report of Public Analyst did not in express term declare the sample to be adulterated. According to it, it was simply a technical breach of rules. All the constituents and ingredients of the groundnut oil as prescribed under the Rules of Prevention of Food Adulteration were found intact, and thirdly, that the sample sent by the Food Inspector to Public Analyst was not the representative sample as required under Rule 14 of the Prevention of Food Adulteration Rules. It was not made homogeneous by stirring. 7. On the aforesaid ground, learned counsel submitted that the conviction of the applicant was illegal and deserved to be set aside. In support of his contention, he placed reliance on the ratio of the case of Satyanarayan Gupta v. Mohanlal [ 1999 (1) MPWN 29 ]. 8. Learned counsel for the State opposed the contention made by the learned counsel for the applicant and justified the findings of conviction arrived at by the Court below. 9. On perusal of the record, it is apparent that before the trial Court complainant/Food inspector only appeared as a witness in support of his case. No other witness was examined. However, since no animus has been attributed against the complainant and there is nothing on record to indicate that complainant entertained any grudge against the applicant, the evidence of PW 1 cannot be discarded merely on the ground that no other witness was examined. On closely scrutinizing the evidence of M.B. Shrivastava, it does not appear that his evidence is untrustworthy. 10. On closely scrutinizing the evidence of M.B. Shrivastava, it does not appear that his evidence is untrustworthy. 10. While considering the second argument advanced by the learned counsel for the applicant, it is seen that in the report of the Public Analyst Ex. P-6, all the constituents and ingredients of the groundnut oil have been found in conformity with the standards prescribed under the Appendix A17 .03 of the Prevention of Food Adulteration rules, 1955. The only ground on which the sample was declared to be adulterated was that it contained some suspended impurity. In report Ex. P-6, the Public Analyst mentioned "the sample contained suspended impurity. Hence, only technically the sample is adulterated. It may be treated as breach of rule". From this expression of the Public Analyst, it cannot be held established beyond reasonable doubt that the analyst himself was satisfied that the sample was adulterated in terms of section 2 (ia) of the Prevention of Food Adulteration Act. 11. In the case of Satyanarayan Gupta v. Mohanlal reported in 1999 (1) MPWN 29 this Court held that if the groundnut oil was not stirred before the sample was taken and was not made homogeneous, it did not form the representative sample and the accused was entitled to be acquitted. It has been mentioned that "The only question that arises for determination is whether the learned ASJ. committed error in acquitting the respondent holding that the Food Inspector did not comply with the provision of Rule 14 of the Rules and section 11 of the Act in not making the bulk of ground-nut oil homogeneous by stirring it before taking sample. The Food Inspector Satyanarayan Gupta did not state that before taking sample, he stirred the ground-nut oil stored in the shop of the respondent for sale and made it homogeneous. The learned ASJ. putting reliance on the decision of this Court in case of Dharamchand v. Food Inspector [1985 FAJ 455 (MP)] held that the sample collected was not representative sample and acquitted the appellant. In my opinion, the learned ASJ rightly held that the sample taken from oil stored for sale in the shop of the respondent without stirring and making it homogeneous, was not representative sample and there was clear violation of Rule 14 of the Rules. In my opinion, the learned ASJ rightly held that the sample taken from oil stored for sale in the shop of the respondent without stirring and making it homogeneous, was not representative sample and there was clear violation of Rule 14 of the Rules. Under such circumstance, the acquittal passed by ASJ cannot be said to be illegal." Similar is the situation in the present case. Food Inspector has nowhere I stated that he stirred and made the oil homogeneous before taking the sample. 12. Taking into consideration all above circumstances, I am of the view that the prosecution has not been able to prove the offence against the applicant beyond reasonable doubt. Accordingly, this revision is allowed. Conviction and sentence awarded to applicant by the Courts below is set aside and he is acquitted. 13. Learned counsel for the applicant submits that since applicant could not appear before this Court, he was taken into custody in execution of a warrant of arrest issued by this Court and at present he is in custody in Central Jail, Jabalpur. Since the applicant has been acquitted by this order, he shall be released forthwith, if not required in any other case.