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2014 DIGILAW 1892 (BOM)

STATE OF MAHARASHTRA v. JAYRAM

2014-08-27

S.B.SHUKRE

body2014
JUDGMENT : S.B. SHUKRE, J. 1. This is State appeal against acquittal of the respondent of the charge of stocking for sale and selling adulterated Linseed oil punishable under section 16 of The Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) read with Rule 50 of the Rules framed thereunder. 2. Briefly stated, facts of the case are as under:- (a) On the basis of complaint filed by Food Inspector, Wardha, the respondent was prosecuted for the offences of stocking for sale and selling adulterated linseed oil and conducting the business without licence. (b) The case of the complainant was that he had visited the shop of the respondent at about 15 hours of 26-7-1995 along with a panch witness and collected from shop a sample of food article, linseed oil, from a loose unlabelled tin. The sample was purchased by the complainant from the respondent. The sample that was collected was divided into three equal parts and secured by placing seals by following the procedure prescribed under the Rules. (c) One sealed part of the sample was sent to the Public Analyst, Nagpur. The other parts of the sample were sent to the Local Health Authority, Wardha. Report of the Public Analyst, when received, disclosed that the sample was of sub-standard quality and it did not conform to the standards of linseed oil as per item No. A. 17.04 of Appendix-B of the P.F.A. Rules, 1955. On the basis of the report of Public Analyst, complaint was filed against the respondent before Chief Judicial Magistrate, Wardha. (d) After satisfying himself about the existence of prima facie case and the respondent not admitting the charge framed against him, the learned Chief Judicial Magistrate proceeded with the trial of the respondent. Upon consideration of the evidence brought on record and hearing the arguments of the rival parties, the learned Chief Judicial Magistrate found that prosecution failed to prove the charge made against the respondent and, therefore, acquitted him of the same by his judgment and order passed on 15-9-2000. (e) Being aggrieved by the same, the State is before this Court in this Appeal under section 378 of Code of Criminal Procedure. 3. I have heard Mrs. Mehta, learned Additional Public Prosecutor, for the State and Mr. Khare, learned counsel for the respondent. (e) Being aggrieved by the same, the State is before this Court in this Appeal under section 378 of Code of Criminal Procedure. 3. I have heard Mrs. Mehta, learned Additional Public Prosecutor, for the State and Mr. Khare, learned counsel for the respondent. I have perused the judgment and order and also the record of the case before the learned Chief Judicial Magistrate. 4. It is submitted on behalf of the prosecution that the learned Chief Judicial Magistrate has not properly appreciated the evidence available on record and has ignored in particular the evidence of the complainant, Food Inspector, which shows that proper procedure was followed in taking the sample, sealing of the sample parts properly and sending the samples by following the prescribed procedure for analysis to the Public Analyst. She further submits that this is a fit case for interfering with the impugned judgment and order by reversing the finding of acquittal against the respondent. 5. Learned counsel for the respondent, on the other hand, submits that there has been a violation of Rule 14 of the P.F.A. Rules in collecting the sample, which fact has been duly noted by the learned Chief Judicial Magistrate and it being a mandatory provision of law, the whole trial against the respondent has been vitiated, and the respondent has been rightly acquitted on this ground. He further submits that the appellant had sent the sample part for analysis to the Central Food Laboratory and obtained its report. The report of Central Food Laboratory has disclosed that Iodine value of the sample was 173.3, much above the minimum standard of 170 and since it was the contention of the complainant that as per the Public Analyst report the Iodine value was less than 170 or to be precise 155.79, prosecution has been lodged against the respondent, which prosecution would not be tenable in view of the report of the Central Food Laboratory. He submits that this fact has also been well considered in the impugned judgment and order. On these grounds, he argues that the appeal deserves to be dismissed. 6. Upon perusal of the evidence available on record and the findings recorded by the learned Chief Judicial Magistrate in his impugned judgment and order, I find that there is great force in the arguments of learned counsel for the respondent and no merit in the arguments of learned APP. 7. 6. Upon perusal of the evidence available on record and the findings recorded by the learned Chief Judicial Magistrate in his impugned judgment and order, I find that there is great force in the arguments of learned counsel for the respondent and no merit in the arguments of learned APP. 7. Basically the prosecution had been founded upon the allegation that the sample of Food article, linseed oil, did not conform to the prescribed standards as per item A.17.04 of Appendix B of PFA Rules, 1955. The Public Analyst report (Ex.52) discloses the values, such as B.R. Reading at 40oC to be at 70.5, saponification value at 191.94, Iodine value at 155.79 and unsaponifiable matter at 0.41% and the values, excepting the iodine value, conformed to the prescribed standards. The report of the Central Food Laboratory [Ex.86 (C)] discloses that even Iodine value, which was found to be at 173.5, conformed to the prescribed standard which was of 170 at its minimum. The basis for prosecution was that the Food article contained lower iodine value than the minimum standard value, and the Central Food Laboratory report showed that it met with the minimum standard value. Thus, the Central Food Laboratory report has swept away the very foundation of prosecution against the respondent and, therefore, the learned Chief Judicial Magistrate has rightly held that in view of the Central Food Laboratory report going to the root of the matter, the respondent would be entitled to acquittal on this ground alone. The learned Chief Judicial Magistrate has rightly placed his reliance upon the law laid down in the case of Municipal Board, Janupur vs. Raghunandan Ram, 1979 (1) FAC 246 wherein it is held by the Allahabad High Court that when the ground mentioned in the complaint is negatived by the report of the Director, the bottom is knocked out of the prosecution case. It may be stated here that it is well settled law that report of the Central Food Laboratory prevails over the Public Analyst report. 8. As regards the contention that there was no proper appreciation of evidence brought on record, I find that it is also devoid of any merit. The learned Chief Judicial Magistrate has considered the evidence of the Food Inspector as well panch witness in its proper perspective and reached his findings. 8. As regards the contention that there was no proper appreciation of evidence brought on record, I find that it is also devoid of any merit. The learned Chief Judicial Magistrate has considered the evidence of the Food Inspector as well panch witness in its proper perspective and reached his findings. These findings are that the container in which the sample was taken was not clean and made dry as there was no satisfactory evidence brought on record in that regard by the complainant. Therefore, the learned Chief Judicial Magistrate has come to the conclusion that there was violation of the procedure prescribed under Rule 14 and the procedure so prescribed being mandatory in nature, the allegations against the respondent would not stand the scrutiny of law. This finding having been based upon consideration of evidence available on record and disclosing application of mind, cannot be said to be perverse. It also does not reflect a view which is impossible to take in the matter. It is well settled law that in an appeal against acquittal, it is not open for the High Court to substitute its view for the view taken by the lower Court, just because another view is possible. Unless the view taken by the learned trial Court is shown to be perverse or not based upon any evidence on record or based upon consideration of some extraneous material or is so impossible a view as cannot be taken by application of any rule of logic, interference with the findings recorded by the trial Court is not permitted. This appeal is one such case wherein by applying the settled principles of law, no interference with the impugned judgment and order would be permissible. 9. In this view of the matter, I am of the opinion that the appeal deserves to be dismissed. Accordingly, the appeal stands dismissed.