JUDGMENT
R.P. Desai, J.
1. The Respondents were tried in the Court of Additional Chief Judicial Magistrate, Pune, in Criminal Case No. 5/82 for the contravention of Section 7(1) punishable under Section 16 r/w Section 17 of the Prevention of Food Adulteration Act, 1954. By his Judgment and Order dated 30/6/1984, the learned Additional Chief Judicial Magistrate acquitted the accused of the said charges. In the present appeal the State of Maharashtra has impugned the said Judgment and Order of acquittal.
2. Briefly stated the prosecution story runs as under:
The complainant Shri Sayed, Food Inspector Pune, is duly appointed under Section 9 of The Prevention of Food Adulteration Act, 1954, by the State Government. His appointment has been duly notified. Accused Nos. 1 and 2 are the partners of the firm Kripal Sales Corporation located at Nanapeth, Pune and Kripal Sales Corporation is accused No. 3.
According to the prosecution Accused No. 1 was present and in charge of the shop at the time of the visit of the complainant at the said shop on 6-1-1981. Accused No. 4 is the proprietor of B.A. Products, Raviwar Peth, Pune. Accused No. 5 is proprietor of firm M/s. Kailas Products, Ulhasnagar, Thane. Accused No. 5 is the manufacturer of the food articles namely “Plain Toffee”. Accused Nos. 1 to 5 are holding requisite valid licence under the Prevention of Food Adulteration Act and Rules 1962.
On 6-1-1981, at about 1-2-30 p.m. the complainant visited the shop of Accused No. 1 in the company of some Food Inspectors and panchas. The complainant disclosed his identity to Accused No. 1 and informed him that he wanted to purchase 1500 Gms. of plain toffee and paid Rs. 15/- as the price to accused No. 1 and obtained a cash memo. The complainant issued an intimation in Form VI and in Form Appendix ‘D’ to accused No. 1 and explained the purpose of them. Accused No. 1 disclosed that the Plaint toffee from which the sample was collected was supplied by Accused No. 1 under bill No. 475 dated 28-12-1982.
According to the complainant he took three packets containing 500 Gms. of Plain Toffee already packed and put each packets into a dry, clean and empty brown paper bag. The mouth of each brown paper bag was pasted by means of gum and labelled. He prepared three such packets each containing a sealed packet of 500 Gms. of Plain Toffee. A paper seal bearing the signature of the local Health Authority was pasted on each part of the sample from top to bottom with a gum. Each of the ‘sample was then tied with a string and then sealed. A detailed panchanama was drawn about the collection of the sample.
On 7-1-1981, the complainant sent one sealed sample packet of plain toffee to the Public Analyst, Pune, alongwith the Memorandum Form with a covering letter in a sealed packet by hand delivery. Duplicate copy of Form ‘II’ alongwith the specimen impression seal with a covering letter were sent to Public Analyst Pune, separately by hand delivery. On the same day the complainant sent the remaining two parts of the sample and two copies of Form VII with a covering letter in a sealed packet to the Local Health Authority.
On 24-2-1981, the complainant received the report of the Public Analyst dated 12.2.1981 from the Local Health Authority, Pune. The Report stated that the plain toffee sample did not confirm to the standard of plain toffee as per rules.
The complainant enquired with Accused No. 4 and collected the necessary documents and information about the supply of the food articles to accused nos. 1 to 3. He gathered that Accused No. 4 had purchased plain toffee from Accused No. 5 under Bill No. 301 dated 25-12-1980 on 21-8-1981, the complainant visited the premises of Accused No. 5 and collected necessary documents and information. Accused No. 5 disclosed that he was a manufacturer of the said food article, plain toffee. Necessary sanction was then obtained from Joint Commissioner, Pune Division, Food and Drug Administration, Pune, to prosecute the accused and on 4th March, 1982, a complaint came to be lodged.
Accused Nos. 1 and 2 denied that they had sold any adulterated plain toffee. They stated that accused No. 3 is the firm and accused Nos. 1 and 2 are its partners. Accused Nos. 1 to 3 had purchased the articles from Accused No. 4 and they produced a warranty from Accused No. 1. Relying on the provisions of Sub-section (2) of Section 19 of the Prevention of Food Adulteration Act, 1954. They contended that they had committed no offence. Accused No. 4 also relied on Sub-section (2) of Section 19 of the said Act. Accused No. 5 did not deny that he was the manufacturer of the Food Article but he stated that the complainant had not properly collected the samples as per rules. According to him there was a breach of the mandatory provisions of the Act. He also contended that the report of the Public Analyst did not indicate that the samples were adulterated. He contended that the prosecution had failed to prove that the accused had committed any offence. Accused No. 1 examined himself to prove that he had purchased the plain toffee from which the sample was collected from B.A. Products, Raviwar Peth, Pune, He produced the bill in respect of the purchase.
After perusing the evidence adduced by the prosecution and the defence, the learned Magistrate came to a conclusion that the prosecution had failed to prove that accused Nos. 1 to 3 had sold adulterated food articles. He further came to the conclusion that the prosecution had failed to prove that accused No. 4 was guilty of selling any food articles which were adulterated, to accused Nos. 1 to 3. He further held that the prosecution had failed to prove that Accused No. 5 had manufactured adulterated food articles. In this view of the matter the learned magistrate acquitted the accused of the said charges. As stated above it is the said judgment and order of acquittal which is impugned in the present appeal.
3. With the assistance of the learned Counsel appearing for both the sides we have gone through the entire evidence.
4. Before dealing with the rival contentions of both the sides we may mention that since we are dealing with an appeal against a Judgment and Order of acquittal it will not be possible for us to upset, the same unless we come to a conclusion that the impugned judgment and order of acquittal is perverse or there is any manifest illegality attached to the same. Keeping this basic principle in mind we will deal with the rival contentions.
5. The learned magistrate upon consideration of the evidence has come to a conclusion that from the evidence of the complainant and the recitals of the panchnama it was clear that the sample was not collected in bulk of 300 gms. and subsequently sub-divided in three equal parts of 100 Gms. each. According to the learned magistrate there was a breach of provisions of Section 11 of the Act, and the entire procedure of collecting sample was therefore illegal.
He also came to a conclusion that the report of the Public Analyst did not disclose that-any coal tar was present and that the food article was injurious to human health. In this view of the matter he acquitted the accused.
6. Smt. Joshi learned Counsel (APP) drew our attention to the evidence of the complainant. The complainant has in his evidence stated that he purchased toffee of 1500 Gms. in the packets of 500 grams each separately. According to Smt. Joshi since the complainant has purchased three packets of 500 grams each and each packet was put in a separate brown paper packet and separately labelled and sealed. There was compliance of Section 11 of the Prevention of Food Adulteration Act, 1954 and it was not necessary for him to purchase the sample in bulk and then divided it into three parts. She also contended that the learned magistrate erred when he found fault with the report of the Public Analysts. She drew our attention to the report of the Public Analysts which says that the sample did not confirm to the sample of plain toffee as per P.F. Act, 1954. According to Smt. Joshi the said report is squarely covered by Section 2(1)(m) of the Prevention of Food Adulteration Act, 1954. She contended that the impugned judgment, and Order is perverse and deserves to be reversed by this Court. As against this Smt. Agarwal contended that the impugned judgment and order can by no stretch of imagination be called perverse. She contended that no fault could be found with the appreciation of evidence of the learned magistrate. She contended that since the accused had produced a warranty they were covered by Sub-Section 2 of Section 19 of the Prevention ol’Food Adulteration Act, 1954 and as such it cannot be said that the accused had committed any offences. She, therefore, contended that no interference is called for with the impugned judgment, and order of acquittal.
7. The evidence of complainant Shaukat Hussen Noor Mohamed Hussen (P.W. 1) does indicate that he did not purchase the plain toffee in bulk. He has admitted that he purchased toffee of 1500 Gms. in three packets of 500 Gms. each. Each packet was labelled as KIRAN PLAIN TOFFEE manufactured by Kailas Confectionary Works, 204, Ulhasnagar. He put each packet in separate brown paper bag and separately labelled and pasted it with gum. The three packets were separately put in another brown paper bag and each packet was closed to its mouth by pasting them with gum. In the cross-examination be admitted that he did not ask accused No. 1 to sell the plain toffee by opening these three packets. He has admitted that he was aware of the Rule 22 of P.F.A. Rules 1955 that the required quantity of food product to be purchased for sending it to Public Analyst is 200 Gms. He also stated that, he did not confirm the cleanliness and dryness of each of these three plastic bags before putting the plain toffee in each of them for packing purpose and he did not feel it necessary to open these three plastic bags, take out the plain toffees there from and again repack them in three bags. He has admitted that he did not divide any of the three samples purchased by him but. he kept each of the three packets in the same condition in separate brown paper bags. Section 11(1)(b) gives the procedure to be followed by Food Inspectors. It reads thus :
11(1) When a food inspector takes a sample of food for analysis, he shall-
(a) …
(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed.
8. It is, therefore, clear that the quantity to be sent for analysis is to be purchased in bulk and it is to be divided into three parts. Each sample has then to be sealed and fastened up in such manner as its nature permits and the signature or thumb impression of the person from whom the sample has been taken is to be then obtained. It is clear that in the instant case Food Inspector has not followed this procedure. The Food Inspector has not given any reasons why he has not followed the procedure laid down under Section 11(1)(b). We are not impressed by Mrs. Joshi’s submission that because the Food Inspector purchased three packets each containing 500 Gms. of plain toffee, it was not necessary for him to follow the provisions of Section 11(1)(b) of the said Act. The purpose of making such a provision is that each sample should represent the whole bulk from which the sample was obtained. Therefore, it was wrong on the Part of the Food Inspector to collect the sample without following the procedure laid down under the Act. The order of acquittal is, therefore, rightly recorded. In view of this it is not necessary for us to deal with Smt. Joshi’s contention that the report of Public Analyst is covered by Sub-section (m) of Section 2 of the Prevention of Food Adulteration Act. We wish to make it clear that all the observations made by us in this case are made in the peculiar facts and circumstances of the present case.
9. In the result the Appeal is dismissed. The Judgment and Order of acquittal dated 30.6.1984, passed by the Additional Chief Judicial Magistrate, Pune, in Criminal Case No. 5/82 is confirmed. The accused are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
10. In case an application for certified copy of this judgment is made, the same may be issued expeditiously.
