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The State of Maharashtra Vs. B.B. Kothavade - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 877 of 1979
Judge
Reported in1983(1)BomCR469
ActsPrevention of Food Adulteration Act - Sections 2, 7 and 16; Prevention of Food Adulteration Rules - Rule 9
AppellantThe State of Maharashtra
RespondentB.B. Kothavade
Excerpt:
.....of public analyst given to accused on 05.12.1974 - summons issued to accused on 18.07.1977 to appear before court on 05.08.1977 - rule 9 (j) was totally repealed with effect from 04.01.1977 and rule 9 a came into force - rule 9 a requires local (health) authority to forward analysis to person from whom sample of article is taken by food inspector immediately after institution of prosecution - this part of rule 9 a is analogous to rule 9 (j) that will be applicable to facts of present case - word 'immediately' means forthwith - accused is entitled to acquittal if copy of report of analysis is not sent to him forthwith - order of acquittal passed by trial magistrate deserves to be confirmed. - .....the accused made a statutory sale of 450 grammes of what has been called shahajira to the food inspector of malegaon. the sample which was sent to the public analyser was found to contain nearly 75 per cent of extraneous matter. that at least is the report of the public analyst. on this basis the prosecution was launched against the accused. in support of its case the prosecution examined the food inspector and one of the panchas who was, according to the prosecution, a witness to the purchase of the sample and the subsequent steps to be taken before sending the sample to the public analyst.2. the learned trial magistrate found that the panch examined as p.w. 2 did not support the food inspector in any of the particulars of the prosecution case. i have myself gone through the.....
Judgment:

1. The State has preferred this appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class of Malegaon on 9th of April 1979 in Criminal Case No. 618 of 1973. By the said order the learned trial Magistrate acquitted the respondent, hereinafter referred to as 'the accused', of the offence punishable under Section 16(i)(a) read with Section 7(i) and Section 2(i)(c) of the Prevention of Food Adulteration Act. According to the prosecution the accused made a statutory sale of 450 grammes of what has been called Shahajira to the Food Inspector of Malegaon. The sample which was sent to the Public Analyser was found to contain nearly 75 per cent of extraneous matter. That at least is the report of the Public Analyst. On this basis the prosecution was launched against the accused. In support of its case the prosecution examined the Food Inspector and one of the panchas who was, according to the prosecution, a witness to the purchase of the sample and the subsequent steps to be taken before sending the sample to the Public Analyst.

2. The learned trial Magistrate found that the panch examined as P.W. 2 did not support the Food Inspector in any of the particulars of the prosecution case. I have myself gone through the deposition of the panch (P.W. 2) and find that in the examination-in-chief itself he has not said anything which would corroborate the testimony of the Food Inspector. The learned trial Magistrate thought that such corroboration was necessary and since it was not forthcoming he acquitted the accused, as mentioned above.

3. Mr. Suryawanshi, the learned Public Prosecutor, appearing in support of this appeal, has criticised the approach of the learned trial Magistrate by contending that in law it is not necessary that there should be corroboration to the deposition of the Food Inspector if the case given out by the Food Inspector is found to be acceptable by he Court. In the instant case the learned trial Magistrate has, says Mr. Suryawanshi, put the cart before the horse and without examining whether the Food Inspector's evidence is acceptable or not proceeded to reject it on the ground that thee is no corroboration from the panch. If this were the only ground on which the order of acquittal could be passed I would have examined the contentions of Mr. Suryawanshi in greater details. However, Mr. Ganatra, the learned Advocate appearing for the accused has brought to may notice certain facts which make it impossible for me to interfere with the order of acquittal.

4. The statutory sale took place on 25th of February 1973. Sometime thereafter the sample must have been sent to the Public Analyst. The date of the report of the Public Analyst is 1st April 1973. Thereafter on 28th of June 1973 the complaint was filed in the Court of the learned trial Magistrate. For more than a year nothing happened and on 5th of December 1974 the report of the Public Analyst was given to the accused. Thereafter for nearly three years again nothing happened and on 18th of July 1977 summons was issued by the Court to the accused to appear before the Court on 5th of August 1977. Mr. Ganatra has pointed out that from the bald recitation of the facts above it is crystal clear that Rule 9(j) of the Prevention of Food Adulteration Rules has been contravened in he instant case and the prosecution could never hope to succeed on this ground alone. This contention of Mr. Ganatra had to be upheld. Rule 9 of the Prevention of Food Adulteration Rules prescribed the duties of a Food Inspector. On the date on which the sample in the instant case was taken, Rule 9(j) was in the following terms :-

'To send by hand or registered post a copy of the report received in Form III form the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the Court.' It may be mentioned that this Rule had come into effect on 24th of August 1968 and remained in the same form till 23rd of May 1974 when it was amended as follows :-

'To send by registered post a copy of the report received in Form II from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. however, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and the report need not be sent.'

The report of the Public Analyst has been given to the accused in the instant case nearly 1 1/2 years after the complaint was filed. There is no difficulty in saying that thee was a gross violation of Rule 9(j) as it stood on the date on which the complaint was filed.

5. Clause (j) of Rule 9 was totally repealed with effect from 4th of January 1977 and one rule, namely R. 9-A, has now come into force to deal with the same subject-matter with which originally Rule 9(j) deal ad that is in the following terms :-

'The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to be person, if any, whose name address and other particulars have been disclosed under Section 14A of the Act :

Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action in intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.'

6. It will be seen that the present Rule 9-A requires the Local (Health) Authority to forward of the analysis to the person from whom the sample of the article is taken by the Food Inspector immediately after the institution of prosecution. This part of the rule is somewhat analogous to Rule 9(j) that will be applicable to the facts of the present case. Interpreting this Rule 9-A, this Court has, in State of Maharashtra v. Tukaram 1982 Cri LJ 1462, held that the word 'immediately' means 'forthwith' and the accused in entitled to acquittal if a copy of the report of the analysis is not sent to him forthwith. The facts of Tukaram's case disclose that there was a delay of six days, after the institution of the prosecution, in the sending of the report to the accused. Even then this Court held that the accused was entitled to an acquittal on the ground of the contravention of Rule 9-A which, I have already pointed out above, is somewhat analogous to Rule 9(j) as it originally stood and as it should apply to the facts of this case. The order of acquittal passed by the learned trial Magistrate, therefore, deserves to be confirmed on this ground which has been pressed by Mr. Ganatra.

7. In he result, the appeal is dismissed. The order of acquittal is passed by the learned Judicial Magistrate, First Class, Malegaon in Criminal Case No. 618 of 1973 is confirmed.

8. Appeal dismissed.


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