Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 262 (MP)

Rajnikant v. V. K. Yati

2009-02-24

N.K.MODY

body2009
ORDER 1. Being aggrieved by the judgment dated 21.2.2005 passed by Additional Sessions Judge, Indore in Criminal Appeal No.366/03 whereby the judgment dated 29.8.2003 passed by CIM, Indore in Criminal Case No.3156/89, whereby the petitioners were convicted under section 7(ii) read with section 16(1A)(i) of Prevention of Food Adulteration Act, 1954 (which shall be referred hereinafter as an Act) and was sentenced for a period of one year with fine of Rs.l,000/- was maintained, the present petition has been filed. 2. Short facts of the case are that the petitioners were prosecuted by tiling a complaint by respondent No.1 under the provisions of the Act, wherein it was alleged that respondent No.1 Y.K. Yati is the Food Inspector, whose jurisdiction is Indore and Ujjain District. It was alleged that on 4.4.1989 shop of petitioner No.1 was inspected by him. At the time of inspection it was found that petitioner No.1 is having a stock of baby food, toffee and biscuit, etc., which is being stored by the petitioner No.1 for sale. It was alleged that on that date respondent No.1 took the sample of Cerelac Wheat Baby Food from petitioner No.1 in three sealed boxes and after payment of price one of the sealed box was sent for analysis to the Public Analyst. Further case of the prosecution was that the Public Analyst submitted the report in which it was found that the contents do not conform to the level. It was alleged that since the Cerelac Wheat Baby food, which was purchased by the respondent No.1 from petitioner No.1 was manufactured by petitioner No.3 and the petitioner No.2 is the nominee, therefore, all the three petitioners has committed an offence, which is punishable under the Act. It was alleged that after notice and also after the trial petitioners be convicted and be awarded sentence. Upon filing of the complaint cognizance was taken by the learned trial Court. After notice to the petitioners and also after framing of charges the case was fixed for recording evidence. After recording of evidence learned trial Court found that respondents have proved that petitioner No.1 was possessing the Cerelac Wheat Baby Food, which was not upto the level, hence the petitioners have committed an offence, which is punishable under the Act and awarded sentence of one year to each of the petitioners along with fine of Rs.l,000/-. After recording of evidence learned trial Court found that respondents have proved that petitioner No.1 was possessing the Cerelac Wheat Baby Food, which was not upto the level, hence the petitioners have committed an offence, which is punishable under the Act and awarded sentence of one year to each of the petitioners along with fine of Rs.l,000/-. Being aggrieved by the judgment passed by the learned trial Court an appeal was filed by the respondents. After hearing the parties learned appellate Court dismissed the appeal, against which the present petition has been filed. 3. Learned counsel for petitioners argued at length and submits that learned Courts below committed error in passing the impugned judgment which suffers with illegality, irregularity and impropriety as the conviction is improper based upon gross mis-appreciation of the evidence. it is submitted that there are number of illegalities and irregularities, therefore, the Judgment passed by the learned Courts below deserves to be set aside. Ills submitted that so far as petitioner No.1 Rajnikant from whose custody the, packets. was purchased is concerned, was containing the warranty, which is evident from the bill Ex.P-15. It IS submitted that since there was warranty given by petitioner No.3 and the food articles were purchased were sealed by petitioner No.3, therefore, petitioner No.1 cannot be held liable for the offence in any manner. Learned counsel further submits that the petitioners were prosecuted by the respondent No.1 on the basis of authority of Ex.P-13, whereby the respondent No.1 was authorised to file the prosecution against the petitioners. It is submitted that sanction order Ex.P-13 shows that neither the name of the substance nor the manner whether the article was adulterated or misbranded or what was the defect found has been mentioned, hence, the whole prosecution deserves to be quashed. It is submitted that sanction order Ex.P-13 shows that neither the name of the substance nor the manner whether the article was adulterated or misbranded or what was the defect found has been mentioned, hence, the whole prosecution deserves to be quashed. For this contention reliance is placed on a decision of this Court in the matter of Dinesh Chand Kanoongo v. State of M.P., reported in 2003(1) FAC 283, wherein this Court after placing reliance on a decision of this Court in the matter of Bhairav Singh v. State of M.P., reported in 1998(11) MPWN SN 98, has held that absence of material in the sanction order showing as to what was adulterated as per report of Analyst and what material was perused for granting sanction would vitiate whole trial because requirement of sanction for prosecution as per section 20 of the Act is not satisfied. 4. Learned counsel for petitioners further submit that to prove the case Public Analyst was called by the learned trial Court as Court witness, who has given the statement on 28.6.2003. It is submitted that document EX.D-4 was not only filed by the petitioners, but also put to Shri S.C.Nandi, wherein the State Government has found that the Public Analyst S.C.Nandi is not possessing the requisite qualification for appointment and this position was admitted by the State Government on the floor of the legislative assembly through concerned Minister. It is also submitted that in the Public Analyst report EX.P-12 it is stated that "I have analyzed the aforementioned sample". In the same sentence word "had" has been struck of. It is submitted that this witness has stated in his evidence that the sample was analyzed by him personally. However, in cross-examination he has stated that he has got the sample tasted by his assistant. It is submitted that even the name of such assistant were not stated by the Public Analyst in his statement. Learned counsel further submits that for the purpose of examination of the contents Public Analyst has admitted that the standard for the product in question was introduced in the PF Rules after analysis and that the sample in question fully met the requirement prescribed in the law. It is submitted that the public analyst has further stated in his statement that sample was tested by "as received method" while other method "dry weight method was also available". It is submitted that the public analyst has further stated in his statement that sample was tested by "as received method" while other method "dry weight method was also available". Learned counsel further submits that the public analyst has further admitted that if the sample had tested as per dry weight method, then the contents of protein and fat estimate would be on higher side. He has further stated that there is margin of personal error in the test result. It is submitted that the public analyst has admitted that the contents were tested by him as a milk powder. On the strength of aforesaid submissions learned counsel for the petitioner submits that the judgment passed by the learned Courts below, whereby the petitioners were convicted deserves to be set aside. It is submitted that petition filed by the petitioner be allowed and the judgment passed by the learned Courts below be set aside. 5. Smt. Anjali Jamkhedkar, learned Panel Lawyer for the respondent State submits that after due appreciation of evidence the learned Courts below have convicted the petitioners which requires no interference. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 6. From perusal of the record it appears that petitioner No.1 Rajnikant was a shopkeeper from whom the baby food was purchased. EX.P-7 is the panchnama prepared by Food Inspector at the time of purchase of baby food which goes to show that three tins of Cerelac Wheat Baby Food was purchased. EX.P-15 is the invoice from which the goods were purchasd by petitioner No.1 from petitioner No.3. EX.P-15 bears the certificate of warranty which reads as under: I/We hereby certify that food/foods mentioned in this invoice is/ are warranted to be of the quality which it/these purports/purport to be. 7. Since the baby food which was purchased by the Food Inspector by petitioner No.1 was in a sealed container and in the invoice whereby the baby food was purchased by the petitioner No.1 from petitioner No.3, there is a warranty, therefore, there was no justification on the part of the learned Courts below in convicting the petitioner No.1 for the alleged offence. 8. Apart from this EX.P-13 is the sanction order which has been issued by Deputy Director, Food and Drugs Administration. 8. Apart from this EX.P-13 is the sanction order which has been issued by Deputy Director, Food and Drugs Administration. Upon request of the Food Inspector sanction was given to him to prosecute the petitioners. It is pertinent to note that order of sanction produced in the present matter, does not show at all the details mentioning articles which was the subject-.matter of prosecution, the place from where the said sample was seized by the food inspector, the time at which the said sample was seized by the food inspector and the quantity of the sample which was seized from the petitioner No.1. When that is the nature of the order of sanction for prosecution, it was incumbent on the prosecution to examine the authority granting sanction for prosecution for the purpose of showing that the authority applied its mind to grant sanction for prosecution. Had the person granting sanction been examined by the prosecution, then there would have been some material on record to come to the conclusion that some material was placed before the trial Magistrate for sanction. But in this case, the authority has not been examined. When this kind of evidence has been adduced on the point of sanction by prosecution, there can be no other conclusion that one that the sanction to prosecution was not valid and legal. 9. Since there was no valid sanction, therefore, the prosecution of petitioners fails on this short ground only. However, since the submission was made before this Court relating to the report of analyst, therefore, it will not be out of place to mention that the Court witness Shri S.C. Nandi who was public analyst at the relevant time has submitted EX.P-12 which bears the signature. In the report itself it has been certified that he has caused the sample to be analysed. While in his deposition the statement is contrary to the report EX.P-12 as he has stated that the sample was got tested by him through his assistant. In the report EX.P-12 the word "had" has been scored out, if the sample would have been got tested by him through his assistant then there was no justification on his part to score out the word "had" from the report EX.P-12. 10. In the report EX.P-12 the word "had" has been scored out, if the sample would have been got tested by him through his assistant then there was no justification on his part to score out the word "had" from the report EX.P-12. 10. In view of this the petition filed by the petitioners stands allowed and the judgment passed by the learned Courts below stands set aside with a further direction that petitioners stand acquitted. Their bail bonds stand discharged. 11. With the aforesaid modification, petition stands disposed of.