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2014 DIGILAW 1879 (BOM)

STATE OF MAHARASHTRA v. VIJAY NAMDEORAO KHAWASHI

2014-08-26

S.B.SHUKRE

body2014
JUDGMENT : S.B. SHUKRE, J. 1. This is a State appeal against acquittal of the respondent in Regular Criminal Case No. 36 of 1998 recorded by the judgment delivered on 11-5-2001 by Judicial Magistrate, First Class, Karanja (Gh.), District Wardha. 2. Brief facts giving rise to file this appeal are stated as under:- The respondent was prosecuted for an offence punishable under section 16 (1) (a) read with section 7 (i) and (ii) of the Prevention of Food Adulteration Act, 1954 (for short, the PFA Act) on the basis of the complaint filed by Food Inspector Shri D.K. Sonvane. It was the case of the prosecution that when the Food Inspector inspected the shop of the respondent, he found one food article Saunf (fennel) stocked in open tin container for sale. He, therefore, purchased 600 gms. of the said article and by following the procedure, he kept the said article in a packet, labelled and sealed it. Spot panchanama was also drawn out in presence of the panch witnesses. The sample of fennel was sent to Public Analyst, Nagpur by registered post with acknowledgment due by following the procedure prescribed under the Prevention of Food Adulteration Rules, 1955 (for short, the PFA Rules). On 27-2-1997 the report of the Public Analyst was received and it disclosed that the said food article, i.e. fennel, was found to be containing extraneous green colour, not conferring to prescribed standards. Necessary sanction for prosecuting the respondent under section 20 of the PFA Act was obtained and a complaint case was accordingly initiated against the respondent. An evidence before charge was recorded and after being satisfied that prima facie case was made out against the respondent, he was charged with the aforestated offence and prosecuted for the same. 3. After considering the evidence brought on record and the arguments of the rival side, the learned Magistrate found that mandatory procedural requirements as prescribed under the Rules 15 and 16 of the PFA Rules were not followed and that the necessary notification showing due appointment of the complainant as a Food Inspector was also not produced in evidence and, therefore, the learned Magistrate acquitted the respondent. Not being satisfied with the judgment of acquittal, the State has filed the present appeal. 4. I have heard Smt. Joshi, learned A.P.P. for the appellant-State and Shri Laghate, learned Counsel for the respondent. 5. Not being satisfied with the judgment of acquittal, the State has filed the present appeal. 4. I have heard Smt. Joshi, learned A.P.P. for the appellant-State and Shri Laghate, learned Counsel for the respondent. 5. It is submitted on behalf of the State that even though the report of the Chemical Analyst clearly discloses that the seized article contained extraneous green colour not conforming to the standards of article fennel, the learned Magistrate did not frame the charge for the same and thus committed serious illegality. Learned A.P.P. further submits that one of the grounds of acquittal was that no evidence was produced on record to show that the complainant was qualified to be appointed as Food Inspector although there was evidence adduced by the complainant disclosing that he was qualified to be appointed as Food Inspector and had also received training as required under Rule 8 (c) and so there was no reason for the learned Magistrate to take it as one of the grounds for recording acquittal of the respondent. In support, she has taken me through the evidence of the complainant and also the notification dated 3-9-1993, which shows that the complainant was appointed as a Food Inspector for Yeotmal district after completion of the training on 21-12-1989. 6. Shri Laghate, learned Counsel for the respondent submits that there have been so many deficiencies and lacunae in following of the mandatory procedural requirements of the PFA Rules that even if the case is remanded to the trial Court for framing afresh charge on the basis of the report of the Public Analyst, it would not serve any purpose. He further submits that it is a mandatory requirement of law that the complainant must produce in evidence a copy of notification duly appointing him as Food Inspector for the local area within the limits of which the alleged offence has taken place and that the notification should also be published in a Government gazette. He further submits that these requirements being not fulfilled by the prosecution, this is a case which is full of inherent defects not capable of being cured now or by directing retrial of the case against the respondent. 7. On going through the impugned judgment and order, I find that there is substance in the argument advanced before me by the respondent and no merit in the argument advanced on behalf of the State. 7. On going through the impugned judgment and order, I find that there is substance in the argument advanced before me by the respondent and no merit in the argument advanced on behalf of the State. 8. So far as non framing of the necessary charge is concerned, as rightly submitted by the learned Counsel for the respondent, no purpose is going to be served by remitting the matter to the trial Court with a direction to frame proper charge against the respondent as the evidence shows that the requirements of rules 15 and 6 of the PFA Rules have not been followed in this case. I must say that these provisions are mandatory in nature and any failure to comply with them, would lead to making the prosecution case against the accused as of doubtful nature. In the case of Nizamuddin Siddikbhai Tigala vs. State of Maharashtra, 1985 (II) F.A.C. 98, learned Single Judge of this Court has held that observance of Rule 16 is mandatory and it's noncompliance will render the prosecution as open for benefit of doubt. This view commends to me. 9. Now, coming to evidence, it is seen that the learned Magistrate has found that the details of the label affixed to the packet containing sample of the food article, fennel, have not been disclosed by the complainant in his evidence. It is further found that the panchanama vide Exh.17 does not show the exact places where the seals were affixed. The learned Magistrate held that it is not sufficient to mention in the panchanama that four seals were affixed to the packet. The learned Magistrate has found that the places where the seals were affixed should also have been mentioned in the panchanama. The learned Magistrate has further found that the sanction given by the Joint Commissioner under section 20 of the PFA Act was belated one and there was no explanation offered for the inordinate delay occurred in giving of the sanction. According to the learned Magistrate, this has contributed further to the weakening of the prosecution case against the respondent. 10. The aforestated defects emerging from the evidence adduced by the prosecution are fundamental in nature and cannot be cured at this stage of the case. According to the learned Magistrate, this has contributed further to the weakening of the prosecution case against the respondent. 10. The aforestated defects emerging from the evidence adduced by the prosecution are fundamental in nature and cannot be cured at this stage of the case. Therefore, I do not see any propriety in remitting the matter to the trial Court for reframing of the charge in accordance with the opinion given by the Public Analyst. 11. As regards the contention that there was sufficient evidence available on record to show that the complainant was duly appointed as Food Inspector for the local area within the limits of which the offence took place, I must say that even on this count, the case of the prosecution does not appear to be sound. There is a notification dated 3-9-2013 indicating that the complainant was appointed as Food Inspector after completion of necessary training on 21-12-1989. But, this notification shows that he was so appointed for the local area comprising the district of Yeotmal. The alleged offence has occurred at Karanja (Gh.) which falls in district Wardha. There is no notification adduced in evidence showing the appointment of the complainant as Food Inspector for the local area of district Wardha. Under section 9 of the PFA Act, it is necessary that the appointment should be made for the local area specifically assigned to the concerned Food Inspector. This is another mandatory requirement of which fulfillment, there is no evidence forthcoming from the prosecution. 12. Even, otherwise, it cannot be forgotten that this is a State appeal against acquittal of the accused-respondent and it is well settled that in an appeal against acquittal, unless the findings recorded by the trial Court are found to be perverse or not based upon the evidence available on record or based upon some extraneous consideration, or are seen as the result of a view, which is so impossible to take by application of any rule of logic, the appellate Court cannot reverse the findings and substitute them by its own. It is equally well settled that it is not permissible for the appellate Court to take another view just because it is possible to take it. It is equally well settled that it is not permissible for the appellate Court to take another view just because it is possible to take it. This is a case in which the findings recorded by the trial Court can neither be said to be perverse nor as based upon extraneous material or result of non consideration of relevant evidence or showing an impossible view, and, therefore, the appeal cannot be said to be allowed. In the circumstances, the appeal deserves to be dismissed. The appeal is dismissed. The bail bonds are discharged.