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State of Maharashtra Vs. Maganlal Harjiwan Tambodia and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1983CriLJ1148; 1982MhLJ635
AppellantState of Maharashtra
RespondentMaganlal Harjiwan Tambodia and ors.
Excerpt:
.....under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the case of capacity of the food inspector as well as purchaser. in order to find out whether the prosecution launched under the act is valid or not, all that has to be considered is whether the conditions laid down in section 20 are satisfied. 3 in this case had not taken requisite training of three, months as provided by rule 8 at the material time when he was appointed in..........point which arises for consideration in this revision relates to the qualification of the food inspector, who investigated the case and launched the prosecution against the respondents-accused. respondent-accused 6 is the firm and respondents 1 to 5 are its partners dealing in sale of spices.3. on jan 4. 1979. inspector s.k. dolas who is p. w. 3 in this case seized certain samples in the presence of the panchas and launched the present prosecution against the respondents-accused for the contravention of the prevention of food adulteration act. the record shows that one yadav, food inspector has filed the complaint in the court and the said dolas p. w. 3 who was the investigating officer has not commenced these proceedings.4. when the trial proceeded before the learned magistrate.....
Judgment:
ORDER

S.J. Deshpande, J.

1. The State of Maharashtra has filed this revision against the order of discharge passed by the Metropolitan Magistrate, 17th Court, Mazgaon, Bombay, dated April 20. 1981.

2. It is not necessary to go into the merits of the prosecution in this case. The principal point which arises for consideration in this revision relates to the qualification of the Food Inspector, who investigated the case and launched the prosecution against the respondents-accused. Respondent-accused 6 is the firm and respondents 1 to 5 are its partners dealing in sale of spices.

3. On Jan 4. 1979. Inspector S.K. Dolas who is P. W. 3 in this case seized certain samples in the presence of the panchas and launched the present prosecution against the respondents-accused for the contravention of the Prevention of Food Adulteration Act. The record shows that one Yadav, Food Inspector has filed the complaint in the Court and the said Dolas P. W. 3 who was the Investigating Officer has not commenced these proceedings.

4. When the trial proceeded before the learned Magistrate an objection was taken by the respondents that the Food Inspector, who investigated the case, was not qualified to be appointed as a Food Inspector, because he did not fulfil the requisite qualifications as laid down in Rule 8 Prevention of Food Adulteration Rules, 1955 which reads as under:

8. Qualifications of Food Inspector:

A person shall not be qualified for appointment as food inspector, unless he

(i) is a medical officer in charge of the health administration of a local area, or

(ii) is a graduate or a licentiate in medicine, and has received at least one month's training in. food inspection and sampling work approved for the purpose by the Central or the State Government, or

(iii) is a qualified Sanitary Inspector having an experience as such for a minimum period of one year and has received at least forty-five days training in food inspection and sampling work under the Food (Health) Authority approved for the purpose by the Central Government or

(iv) is a graduate in Science with Chemistry as one of the subject, or a Graduate in pharmacy or a graduate in Agriculture. Food Technology or Dairy Technology, and has received at least forty-five days training in food inspection and sampling under the Food (Health) Authority approved for the purpose by the Central Government, or

(v) the period of training referred to in Clauses (iii) & (iv) shall be extended to three months whenever considered necessary by the concerned Food (Health) Authority.

It appears that the Food Inspector after his appointment has to take training in any of the laboratories recognised and notified by the Government of India as referred to in Clause (i) of Rule 6. Food Adulteration Rules (hereinafter referred as the 'Rules'), P. W. 3 was appointed on Sept. 1, 1972 as Food Inspector. The above rule which I have quoted above is now amended and instead of three months training period 45 days training is inserted therein. I am concerned in this revision application with the provisions of unamended said rule which was in force in the year 1972

5. Under Rule 8 the qualification regarding three months training is violated in this case. It was on this ground that the respondents objected to the competency of the Food Inspector to initiate and investigate the case. The learned Magistrate has accepted this contention and passed an order of discharge. The State has now come up in this revision against that order.

6. The learned Public Prosecutor, Mr. N.M. Kachare attempted to challenge the judgment of the learned Magistrate on the ground that the evidence of Food Inspector was sufficient to come to the conclusion that he had completed three months period of training as required by Rule 8 and. therefore, the alleged disqualification does not exist. I am unable to accept this contention. The Food Inspector P. W. '3 Dolas has been examined in this case and in his evidence he has specifically admitted that although he was under training in the concerned laboratory, actual training period was only three days, though the certificate is issued for the whole period of three months. It was further admitted in his evidence in cross-examination that the institute where P. W. 3 received remaining training was not under the control of the Public Analyst. These admissions are fatal to the case of the prosecution to establish that the requisite qualification of required period of three months is fulfilled. The requirement of law appears to be that the training must be under the control of Public Analyst or if liberal interpretation is put on that word, I will go a step further and say that at least the training must be in an institution which is under the direct control of the Public Analyst. In this case both these conditions are absent. Therefore it cannot be said that the Food Inspector Dolas was a qualified officer to exercise his powers given under the prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act').

7. Mr. C.S. Gosalia the learned Advocate for the respondents has invited my attention to two unreported decisions of this Court. The first judgment is delivered in Criminal Appeal No. 563 of 1972 by Justice Vaidya on Nov. 8. 1972, Since reported in UCR (Bom) 743. While discussing the relevant provisions of Rule 8 of the Rules, the learned Judge has come to the conclusion that the qualification mentioned in Rule 8 goes to the root of the competency of the Food Inspector and in the absence of those qualifications being fulfilled the Food Inspector cannot be said to be competent to investigate the case. The challenge to investigation in this case was twofold.

8. The first challenge was on the basis that the Food Inspector was not duly qualified for want of appropriate training and the second challenge was that the prosecution launched by the Food Inspector in this case was not authorised. In this case I am not concerned with the second challenge although the learned Advocate for the respondents has faintly suggested that this is an additional ground to uphold the order of discharge passed by the learned Magistrate, I am also not concerned with that challenge because it is not discussed or examined by the learned Magistrate in this case. It is sufficient for me in this-case to examine the challenge based on the disqualifications of the Food Inspector as provided by the provisions of. Rule 8. Following the above authority to the extent, I hold that the Food Inspector P. W. 3 was not qualified Food Inspector, and therefore, his investigation in this case is defective and the order passed by the learned Magistrate appears to be correct, because he has also-referred to the judgment of Vaidya, J.

9. Mr. Gosalia, the learned Advocate invited my attention to another unreported judgment of this Court delivered in Criminal Appeal No. 963 of 1976 decided on August 11, 1978* by Justice Jahagirdar. In this case also the question of actual period of training was in. dispute and the Public Analyst admitted in that case that the concerned Food Inspector was under training only for 2-3 days and requisite period was not fulfilled. In this case also the certificate issued to Food Inspector mentions three months period but in evidence it was found that the Food Inspector was actually under training only for three days. The facts in the case before Jahagirdar J. are similar to the case, which-I am deciding. I have no hesitation, to say that the Food Inspector in this case was not qualified. Therefore, the investigation conducted by him is defective.

10. Mr. Kachare, the learned Public Prosecutor, then invited my attention to a judgment of the Gujarat High Court, which takes a contrary view and that judgment is reported in State of Gujarat v. Natwarlal Pitamberdas Shah : (1978)GLR1095 . The learned Public Prosecutor wanted to derive support from this authority. The Division Bench of the Gujarat High Court was dealing with? the case of capacity of the Food Inspector as well as purchaser. There the question was whether the prosecution launched by a purchaser Food Inspector is valid within the meaning of Section 20 of the Act and the Gujarat High Court relying on the provisions of Section 20 of the Act held that (at p. 1526) :

Even assuming that the person who launched the prosecution does not possess the qualifications as Food Inspector, or that he is not validly appointed as Food Inspector, the prosecution launched by him cannot be deemed to be misconceived and unsustainable in law. In order to find out whether the prosecution launched under the Act is valid or not, all that has to be considered is whether the conditions laid down in Section 20 are satisfied. Valid appointment as Food Inspector is not a prerequisite for valid institution of prosecution under Section 20.' The above judgment of the Gujarat High Court proceeds on the basis that Section 20 alone bars any prosecution under the prevention of Food Adulteration Act. Validity of the institution of the prosecution is quite different than the conducting of the investigation by an authorised officer under the Act. The Food Inspector whose appointment is made under Section 8 for Rule 8) is only competent officer under the Act to perform the duties prescribed by the Act as provided in Section 9 (or Rule 91 of the Act. Rule 8 of the Act itself begins with a mandatory direction that a person shall not be qualified for appointment as food inspector, unless he possesses and fulfils all those conditions mentioned in Sub-clauses of Rule 8. The appointment of the Food Inspector under Rule 8 relates to his capacity and powers vested in him under the Act to perform certain duties mentioned in Rule 9 of the Act. The performance of the duties under R, 9 has reference to capacity as Food Inspector. If that is a real position then his appointment must strictly be covered by the terms given under Rule 8 and therefore the view of the Gujarat High Court, that defective institution of the prosecution under Section 20 is no bar for the proceedings has no relevance or bearing for deciding the capacity and power of the Food Inspector under the Act. Therefore, I am not agreeing with the view taken by the Gujarat High Court in the above case. Moreover, as I am bound by the authorities of this Court and for the reason given above. I think that the requisite qualifications of the Food Inspector must be established in order to determine his capacity as a Food Inspector under the Act in this case no evidence was laid by the prosecution to supply the defect of lack of training. I am told that the order of appointment also is not filed. It may not be necessary that the appointment order should have been produced because it appears that no serious challenge was taken to that part of the case. The fact that the Food Inspector P. W. 3 in this case had not taken requisite training of three, months as provided by Rule 8 at the material time when he was appointed in the year 1972 is satisfactorily established and therefore the proceedings based on his report and the investigation were not competent and, therefore, the learned Magistrate was right in taking the view that the prosecution is not well founded.

In the result, I uphold the order of the learned Magistrate.


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