1. This is an Appeal filed by the State of Maharashtra against the Judgment and Order of the learned Sessions Judge, Ahmednagar, D/- 23-1-1976. The accused was charged under Section 7 (i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. The learned Sessions Judge was pleased to acquit the accused of the offence.
2. The brief facts leading to the present appeal are the following :
Accused No. 1 and his son Manoharlal Hariram, who was original Accused No, 2 in the trial Court, were the owners of a Cold Drink and Ice-cream Shop known as 'Ashok Lassi Centre' at Ahmednagar, On 15-5-1973 at or about 4-50 p.m. the complainant Rajaram Vaman Joshi (P.W. 1), who was a Food Inspector, visited the shop of the two accused accompanied by Panchas and purchased 900 gms. of mixed ice-cream from accused No. 1, who was then present in the shop. Joshi paid Rs. 3-30 ps. as the price of the article. He then followed the procedure laid down under the Prevention of Food Adulteration Act and Rules. He handed over one sealed sample to Accused No. 1 and retained two sealed samples with him. He then forwarded one sealed sample to the Public Analyst on 16-5-1973 as per the requirement of the Act. The Public Analyst in his Report found that the total solids in the .sample were less than the requisite 36 per cent and the content of milk tat, to be less than the requisite 10 per cent. The Public Analyst, therefore, certified that the sample was adulterated. On receiving the Report of the Public Analyst, Joshi obtained the requisite sanction and lodged a complaint against Accused No. 1 and his son Manoharlal, Accused No. 2.
The two accused were charged with the offence punishable under Section 7 (i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. The two accused were tried by the learned Judicial Magistrate, First Class at Ahmednagar. The learned Magistrate, by his judgment and Order dated 17-9-1975, was pleased to acquit Accused No. 2 of the offence alleged against him. The learned Magistrate, however, found Accused No. 1 guilty under Section 7(i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act. The learned Magistrate convicted Accused No. 1 of the said offence and sentenced him till the rising of the Court and to pay a fine of Rs. 2000/- or in default to suffer simple imprisonment for six months.
3. Against the conviction and sentence passed against him by the learned Magistrate the Accused No. 1 filed an Appeal in the Court of the Sessions Judge, Ahmednagar. The learned Sessions Judge was pleased to allow the Appeal of Accused No. 1 and to set aside the conviction and sentence passed against Accused No. 1 by his Judgment and Order dated 23-1-1976.
4. The State of Maharashtra has now come in Appeal against the said Order of acquittal. It is contended on behalf of the State that there are strong and compelling reasons for interfering with the order of Acquittal passed by the learned Sessions Judge.
5. Before I consider the arguments of the learned Advocates, it will be pertinent at this stage to cite the principle with regard to interference by the Appellate Court with an Order of Acquittal. The Supreme Court, in the case of Shivaji Sahebrao v. State of Maharashtra reported in : 1973CriLJ1783 , was pleased to observe (at p. 1787 of Cri, L. J.):
We are clearly in agreement with this noble proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine end in our own on the more logical, socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course. In India it is not a jurisdictional Limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned Judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial Court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration.
6. Mr. Patil. the learned Public Prosecutor appearing on behalf of the State, has submitted that the learned Sessions Judge laid stress upon the fact that there was a delay on the part of Food Inspector Joshi in filing the complaint against the accused. The offence had taken place on 15-5-1973 whereas the complaint had been filed 5 months later, on 1-10-1973. According to the learned Judge as a result of this delay the accused had been deprived of their valuable right to apply to the Court for forwarding the sample to the Central Laboratory at Calcutta. The learned Sessions Judge held that Section 13 (2) of the Prevention of Food Adulteration Act conferred a right on the Accused person to have the sample given to him forwarded to the Director of the Central Food Laboratory and that because of the delay of five months the sample had become decomposed and the accused had thereby lost a valuable statutory right. Mr. Patil pointed out that the learned Sessions Judge was not right in the conclusion which he arrived at. Mr. Patil conceded that there was a delay of four and a half months in filing the complaint. He, however, stated that In order to give the benefit of the laches on the part of the complainant, the accused should have made some application under Section 13 (2) of the Prevention of Food Adulteration Act praying to the Court to forward the sample given to him to the Director of the Central Food Laboratory for his certificate. In the instant case no such application had been made to the Court. Mr. Patil stated that Accused No. 1 was not entitled in these circumstances to raise the question of delay and to seek the benefit or advantage of the laches on the part of the complainant. The learned Session Judge was pleased to place reliance upon the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram reported in : 1967CriLJ939 wherein their Lordships were pleased to observe (at pp. 941-942 of Cri LJ):
It appears to us that when a valuable right is conferred by Section 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed bv a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.
7. Mr. Patil submitted that inasmuch as in this case the Accused No. 1 had not made any application under Section 13 (2) of the Prevention of Food Adulteration Act, the question of his right to have his sample sent for tests to the Director of the Central Food Laboratory, did not arise. Mr. Patil relied upon the decision of the Supreme Court in the case of Ajitprasad Ramkishan Singh v. State of Maharashtra reported in : 1972CriLJ1026 wherein their Lordships were pleased to observe (at pp. 1027-28 of Cri LJ):
It is clear from the Sub-section (13 (2)) that the appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis, if he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But. since the appellant never applied under Section 13 (2.) of the Act, he cannot complain that he has been deprived of any right. In Babulal Hargovindas v. State of Gujarat : 1971CriLJ1075 , Jaganmohan Reddy, J., speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director.
8. Relying upon the observations of the Supreme Court Mr. Patil stated that in the instant case also no application had been made to the learned Magistrate for forwarding the sample given to accused No. 1 to the Director of the Central Food Laboratory and, therefore, the delay on the part of the Prosecution could not be i ground for setting aside the conviction of accused No. 1.
9. Mr. Dudhat, the learned Advocate appearing on behalf of Accused No. 1, has submitted that the decision of the Supreme Court in the case of Ajitprasad Ramkishan Singh was distinguishable from the facts of the present case. Mr. Dudhat pointed out that in that case the delay was only of three months and, therefore, the Court came to the conclusion that the sample of the accused may have been in a fit condition for being tested and analysed. Mr. Dudhat stated that in the instant case the delay was of over four months which, according to him, was gross and, therefore, the sample given to accused No. 1 in this case would necessarily have become decomposed, in any event, even if an application had been made by accused No. l to the learned Magistrate to have the sample forwarded to the Director of the Central Food Laboratory. I am unable to accept the submission of Mr. Dudhat. To my mind the observations in Ajitprasad Ramkishan Singh's case apply squarely to the instant case. In the instant case also accused No. 1 had not made any application to the learned Magistrate for forwarding the sample to the Director of the Central Food Laboratory and that being the case, accused No. 1 could not seek (the benefit of the laches committed by the prosecution in filing the complaint, 'l am, therefore, of the view that the learned Sessions Judge has acted contrary to the law as laid down by the Supreme Court in Ajitprasad Ramkishan Singh's case and I, therefore, think that there are strong and compelling reasons for interfering with the order of Acquittal. I, therefore, set aside the order of acquittal of accused No. 1 passed by the learned Sessions Judge of Ahmednagar and I convict the accused under Section 7 (i) read with Section 16 (1)(a) of the Prevention of Food Adulteration Act, 1954.
10. On the question of sentence Mr. Dudhat has submitted that the sentence of fine of Rs. 2,000/- was excessively harsh for the reason that accused No. 1 was not found to have adulterated the ice-cream with any injurious ingredients. All that the Public Analyst had found was that the fat content of the milk was not of the requisite Its per cent. Mr. Dudhat submitted that the fine of Rs. 2,000/- was excessively heavy and that I should reduce the same. I agree with Mr. Dudhat that in view of the finding of the Public Analyst that the milk did not contain the requisite 10 per cent of fat, the fine of Rs. 2,000/- appears to be excessive. The Public Analyst had not found any injurious ingredients mixed in the ice-cream and, therefore, I think a lesser fine would meet with the ends of justice. I, therefore, pass the following order:
11. The appeal filed by the State is allowed and the order of acquittal passed by the learned Sessions Judge, Ahmednagar, is set aside. The accused is convicted under Section 7 (i) read with Section 16 (1)(a) of the Prevention of Food Adulteration Act, 1954. The accused is sentenced to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 1000 or in default to suffer simple imprisonment for six months. I am informed by Mr. Dudhat that the accused has already undergone the sentence of simple imprisonment till the rising of the Court in the Court of the learned Judicial Magistrate, First Class, Ahmednagar. Fine to be paid by accused No. 1 within two months from today.