JUDGMENT
S.T. Kharche, J.
1. This appeal against the acquittal filed by the State of Maharashtra takes an exception to the judgment and order of acquittal dated 27-7-1995 passed by the learned Chief Judicial Magistrate, Wardha, in Reg. Cri. Case No. 161 of 1992, whereby both the accused have been acquitted of the offence punishable under Section 7 read with Section 16(i)(ii) of the Prevention of Food Adulteration Act, 1954 (for short the Act).
2. Brief facts of prosecution are required to be stated as under :
(a) Both the respondents/accused are said to be the partners of the shop known as M/s. Sadgurukrupa Kirana Stores situated at Seloo. Narayan Narwane (PW-1) was working as a Food Inspector. He visited the shop of the respondents along with the panch witness Mubarak (PW-3) on 11-12-1991 at about 10-00 a.m. and found that respondent No. 1 was sitting in the said shop. The Food Inspector expressed to respondent No. 1 that he wanted to collect the sample of ground nut oil. Accordingly he collected the sample of ground nut oil from an unlabelled tin containing about 15 litres of oil as per the procedure. The sample was divided and collected in three separate cleaned and dried bottles. Thereafter one part of the sample along with Form No. VII was sent to the Public Analyst on 11-12-1991 by the Local Health Authority, Mr. Baban (PW-2) who was working as Assistant Commissioner, Food and Drugs Administration by retaining the other two samples. He had also forwarded the specimen of the seal along with the copy of Form No. VII to the Public Analyst.
(b) The report of Public Analyst (Ex. 42) was received in due course of time and it would indicate that the sample of ground nut oil does not conform to the standards laid down under the Act. Then Baban (PW-2) had forwarded the copy of the report of Public Analyst along with the notice under Section 13(2) of the Act to both the accused and those notices have been served on them on 13-7-1992. Baban (PW-2) also accorded sanction for prosecution and thereafter private criminal complaint was lodged by the Food Inspector Narayan (PW-1) in the Court of learned Chief Judicial Magistrate.
3. The prosecution in order to bring home guilt has examined three witnesses including Food Inspector Narayan (PW-1), Baban (PW-2) and panch witness Mubarak (PW-3), and relied on direct as well as circumstantial evidence. The defence of both the accused is that of total denial. They did not examine any defence witness in support of their case. The learned Magistrate on appreciation of the evidence adduced by the prosecution has recorded the finding that the prosecution has failed to establish that accused No. 1 being vendor and accused No. 2 being the proprietor of the shop in question stocked for sale and sold adulterated ground nut oil, a food article to the Food Inspector as contended. He also recorded the finding that the prosecution has miserably failed to bring home guilt at the doors of the accused and consequently acquitted both the accused of the offence with which they were charged. This judgment and order of acquittal is under challenge in this appeal.
4. The learned A. P. P. for the appellant contended that the learned C.J.M. has committed an error in recording the finding of acquittal against both the accused. He contended that the required procedure laid down under the Act has been followed by the Food Inspector. The sample was also sent to the Public Analyst and compliance of Section 13(ii) of the Act was also made. He contended that the Public Analyst report would clearly reveal that the sample of ground nut oil taken from the shop of the accused does not conform to the standard laid down under the Act. The report of the Public Analyst together with notice under Section 13(ii) of the Act was duly served on both the accused. He contended that in such circumstances the impugned judgment and order of acquittal cannot be sustained in law and the appeal may kindly be allowed.
5. The learned counsel for the accused supports the impugned judgment and order of acquittal. He contended that the Food Inspector did not follow the requisite procedure laid down under the Act while collecting the sample of ground nut oil from the shop of the accused. He contended that accused No. 2 is said to be the proprietor and owner of the said shop, but actually it was accused No. 1 who was found sitting in the said shop and the sample was collected from the shop when accused No. 2, who is the proprietor of the shop, was absent. He contended that even the sample was not collected in cleaned and dried bottles and therefore the finding of Public Analyst has lost all its significance. He contended that even there was no evidence to show that there was compliance of the mandatory provision of Section 13(2) of the Act and, therefore, the learned Magistrate was perfectly justified in recording the finding of acquittal and no interference into the same is warranted.
6. In support of these submissions he relied on the decision of this Court in The State of Maharashtra v. Gitaram Kaluram, 1993 (2) FAC 238 wherein it has been observed that failure of prosecution to establish that the sample bottles were clean and dried before the sample was poured in them and non-compliance of the Rules under the Act would lead to acquittal of the accused.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. The Food Inspector Narayan (PW-1) clearly admits in his cross-examination that he did not carry with him any measuring instrument for taking out the sample of the ground nut oil from the unlabelled sealed tin which was kept in their shop. He also clearly admits that the oil was not stirred before collection of the sample. He also admits that he used the measuring instrument which was brought by accused No. 1 from his house for collection of the said sample. He further admits that the sample was divided into three parts and was collected by pouring the oil into three different bottles, but he did not clean and dry those bottles in presence of the accused and the panch witness Mubarak. He further admits that while taking the sample he poured the ground nut oil by using the funnel from the shop of the accused and that the funnel was being used by the seller for the sale of various kinds of oil. In such circumstances, it is quite obvious that the sample was improperly taken and failure to obtain the proper sample makes the subsequent analysis worthless.
8. The learned counsel for the accused has rightly relied on the decision in the State of Maharashtra v. Gitaram Kalu, 1993 (2) FAC 238, cited supra, wherein it has been held that prosecution failed to establish that the sample bottles were cleaned and dried before the sample was poured in them and the requirement under the Act were not strictly complied with which resulted in the inability of the prosecution to bring home the charge and consequently the accused was acquitted.
9. It is also equally significant to note that there was no strict compliance of Section 13(2) of the Act. It is necessary to reproduce Section 13(2) of the Act which contemplates as under :
“13. Report of public analyst
(1) ….
(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so directed, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.”
10. In the present case, it is not disputed that accused No. 1 was not the owner, proprietor, partner of the shop from which the sample of ground nut oil was collected. Accused No. 2 is said to be the proprietor and owner of the said shop, but he was not present when the sample of ground nut oil was collected from the said shop. The notice along with the report of public analyst is said to have been served under Section 13(2) of the Act on accused No. 2 on 13-7-1992, but the accused has denied his signature on the postal acknowledgment. The learned Magistrate had compared the signature of accused No. 2 on postal acknowledgment as well as on the Vakalatnama and found that those signatures do not tally with each other. In such circumstances, it is not possible to accept that there was a strict compliance of Section 13(2) of the Act. If there is no compliance of this mandatory provision then a great prejudice would be caused to the accused because the right of the accused to get the other part of the sample to be forwarded to the Central Food Laboratory has been lost. In such circumstances, the learned Magistrate was justified in recording the finding of acquittal against both the accused and no interference into the same is warranted. However, while dealing with appeal against acquittal this Court is required to record a finding as to whether the impugned judgment and order of acquittal has resulted into miscarriage of justice. On close scrutiny and reappreciation of evidence, this Court is of the considered view that there is no perversity in the finding of the learned Magistrate and consequently it is obvious that there is no merit in the appeal which stands dismissed.