JUDGMENT
R.P. Desai, J.
1. The Respondent was tried in the Court of Judicial Magistrate, First Class (Railway) Daund, at Daund in Reg. Criminal Case No. 49 of 1981 for having committed offence punishable Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, for selling adulterated groundnut oil, on 14.10.1980 at about 10.00 a.m. at Daund Railway Station.
2. By his judgment and order dated 22.3.1984, the learned Magistrate acquitted the accused (Respondent) of the said offence. The State of Maharashtra has impugned the said judgment and order of acquittal in this appeal.
3. At the trial the case of the prosecution was as under :
On 14.10.1980, the Complainant Divisional Health and Food Inspector, S.D. More, visited the Food Stall of M/s. Y.R. Khan along with Health Inspector Shri Barde and his Khalashi in order to collect samples from the said stall which is situated on the platform of Daund Railway Station. The Respondent is a Vendor of M/s. Y.R. Khan. The complainant S.D. More asked the accused, who was incharge of the counter as to where the oil was kept. It is kept under the counter in insanitary condition. The complainant told the accused his intention to collect the sample of groundnut oil for analysis and he gave notice in proper form. After giving notice the complainant took sample of groundnut oil as per rules and paid Rs. 4.50 towards price of the said sample. He then sent the sample for analysis to Public Analyser and on analysing the same the Public Analyst issued a certificate showing that the sample did not conform to the standards prescribed under Prevention of Food Adulteration Act, 1955. The complainant, therefore, lodged a complaint against the Respondent.
The prosecution examined P.W. 1 S.D. More Divisional Health and Food Inspector before charge. He stated that on 14.10.1980, He had visited the Food Stall of M/s. Y.R. Khan and sons at about 10 a.m. and he found that the groundnut oil was stored in insanitary condition. After informing the accused his intention of drawing sample for analysis, the complainant took sample of groundnut oil as per Prevention of Food Adulteration Rules and paid Rs. 4.50 towards the price. He stated that the sample was sent for analysis to the Public Analyst. The report shows that it was adulterated.
The charge was framed against the accused Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, to which the Respondent pleaded not guilty. According to him he had not kept the said groundnut oil for sale on the counter and that it was not adulterated within the meaning of Section 7 read with Section 16 of the P. F. A. Act, 1954, and Rules.
In support of its case the prosecution examined P.W. 1 Shivram Daji More, Divisional Health and Food Inspector and P.W. 2 Vasant Tukaram Barde, Health Inspector, Daund. After perusing the evidence adduced by the prosecution and after considering the defence of the accused, the learned Magistrate by his Judgment and Order dated 22nd March, 1984, acquitted the accused of the said charges. As stated above the said judgment and Order of acquittal is under challenge in the present appeal.
4. Smt. Joshi, the learned A.P.P. assailed the impugned judgment and Order on several grounds. She contended that the impugned judgment and order of acquittal is perverse. According to her the evidence of P.W. 3 Shivram Daji More the Divisional Health and Food Inspector and the evidence of Vasant Tukaram Barde (P.W.2) Health Inspector, Daund was clinching and the learned Magistrate was wrong in discarding the same. According to her evidence of both these witnesses indicates that the samples were drawn as per the procedure laid down under the P. F. A. Rules. She drew our attention to the finding given by the learned Magistrate that the prosecution had proved that the accused had sold the stored food articles. She also contended that the learned Magistrate had given a positive finding that the accused had stored the groundnut oil and he further came to a conclusion that the stall being a food stall the groundnut oil was used for preparation of food. The accused had not explained the propriety of keeping groundnut oil in the stall. Therefore, his claim that it was not for sale cannot be accepted. Mrs. Joshi contended that having come to this positive finding the learned Magistrate should have gone on to hold, in the light of the report of the Public analyst which indicates that sample was adulterated, that the accused was guilty of the offence with which he was charged. Mrs. Joshi relied upon the judgment of Hon’ble Supreme Court Babu Lal Hargovindas v. The State of Gujarat and contended that it is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. According to her in the instant case the Food Inspector’s evidence inspires confidence and there was no reason to discard his testimony on the question of drawing of samples as required under the P.F.A. Rules. Mrs. Joshi also contended that no suggestion was put to the Food Inspector that the bottles in which the groundnut oil was kept were not clean. Relying upon the judgment of Orissa High Court Bichitranand Nayak v. State of Orissa 1978 Cr. L.J. 1050 she contended that if there is no challenge in the cross-examination no inference could be drawn that sample was not properly preserved. According to Mrs. Joshi therefore, the learned Magistrate erred when he acquitted the accused and the said judgment and order deserves to be reversed.
5. As against this Smt. Revati Mohite Dere contended that the impugned judgment and order can by no stretch of imagination be called perverse. She submitted that the evidence of both the witnesses i.e. P.W. 1 Shivram Daji More, the Divisional Health and Food Inspector and P.W.2 Vasant Tukaram Barde, Health Inspector at Daund indicates that the sample of groundnut oil was not drawn in clean bottles and as such the procedure laid down under the P.F.A. Rules was not followed. She also submitted that the Khalashi who had drawn the samples was not examined and, therefore, the prosecution had not proved that the samples were drawn in the manner required under the P.F.A. Rules. In this connection she relied on judgment of Gujarat High Court the case of M.B. Bisaldar v. Radhe Shyam Ramdhan Agrawal and Anr. 1981 Cr. L.J. NOC 102 : 21(2) G.L.R. 136 wherein a similar fact situation the Gujarat High Court has held that where bottles in which samples were sent, were cleaned by peon of the Food Inspector and the peon was not examined, the accused must be given benefit of doubt. She submitted that the failure on the part of the prosecution to examine Khalashi has adversely affected its credibility and the learned Magistrate was right in holding that the prosecution had failed to prove that the samples were drawn properly. She also contended that there was a breach of Section 10(7) of the Prevention of Food Adulteration Act, 1954 which requires that where the Food Inspector takes any action he has to call one or more persons to be present at the time when such action is taken and take his or their signatures. According to Smt. Revati Mohite Dere P.W.2 Vasant Barde has in his evidence admitted that at the time of collection of sample many passengers and staff members were present. Neither Mr. More nor Mr. Barde requested any of the passengers or any other person to act as a panch while they took the sample. Relying on judgment of the Kerala High Court reported in 1983 Criminal Law Journal 1981 Food Inspector Chalakudy Municipality and Anr. v. Prabhakaran and Ors. she contended that though the provisions of Section 10 Sub-section (7) are not mandatory the obligation cast on a Food Inspector Under Section 10(7) to call one or more persons to be present, at the time he takes action is to lend credibility to his evidence and the obligation to have the signature of those present to be taken is only to enable him to prove, if challenged that the action was taken by him in accordance with law, Smt. Revati Mohite Dere contended that evidence of both these witnesses does not indicate that the requisite care was taken while drawing samples. If the provisions of Section 10(7) were followed that would have lent some credibility to their evidence. She submitted that the evidence of both the prosecution witnesses does not inspire confidence as far as drawing of the sample is concerned and hence the same has been rightly discarded by the learned Magistrate. Breach of provisions of Section 10(7) of the Act has also adversely affected the credibility of the prosecution story. She therefore, submitted that the learned Magistrate had rightly recorded the order of acquittal and the same deserves to be confirmed by this Court.
6. In order to appreciate the rival contentions we have with the assistance of the learned Counsel appearing for both the sides gone through the entire evidence and the relevant provisions of the Prevention of Food Adulteration Act, 1954 and the relevant Rules,
7. It is significant to note that the learned Magistrate has recorded a finding that the prosecution had proved that the Respondent -accused had stored groundnut oil and it was also used for preparation of food articles in the stall of M/s. Y.R. Khan. He has also come to a conclusion that the plea of the accused that it was not for sale on the counter is not acceptable. The learned Magistrate however, came to the conclusion that there was no evidence to indicate that the samples of groundnut oil were drawn in clean bottles. According to the learned Magistrate the necessary procedure was not followed and, therefore, he gave benefit of doubt to the accused. Therefore, the only question on which we have to focus our attention is whether the evidence of P.W. 1 S.D. More and P.W. 2 Mr. Barde shows that the requisite care was taken while drawing samples.
8. P.W. 1 S.D. More has in his evidence stated that there was a tin of 16 kgs. capacity containing about 5 kg. of Groundnut oil under the counter, and that it was in insanitary condition. According to him the accused gave 375 gms. oil in one clean utensil with the help of Khalashi one Jabbar Khan. The accused and the said Khan weighed the oil and took 125 gms. each in three clean, empty and dry bottles. According to him bottles were closed property and were sealed. In the cross-examination this witness has stated that the sample of oil was taken in the mug in the stall. The said mug was used for drinking water in the stall, and it was cleaned in his presence, with a soap by his Khalashi. He further stated that he did not remember when the three bottles were brought in his custody and further stated that the said bottles were cleaned with Vim powder by his Khalashi on the last evening. Therefore, it is clear that the said three bottles in which the ground nut oil was poured were cleaned by his Khalashi not prior to the drawing of the sample but on the last evening indicating that the bottles may not be clean at the time of drawing of the samples. This witness also did not remember when these bottles were brought in his custody. The prosecution has also not chosen to examine Khalashi who is said to have cleaned them with soap. Therefore, the evidence of this witness does not help the prosecution in showing that sufficient care was taken while drawing the sample.
9. The evidence of this witness was attacked by Smt. Joshi on the ground that no suggestion was put to this witness that the bottles were not cleaned. However, it appears that he was in fact asked whether the bottle were leak proof and to that he has answered that it is not true that the bottles were not leak proof. Therefore, Smt. Joshi is not right when she says that the fact that the bottles were not clean was not put to this witness.
10. P.W. 2 Vasant Barde has in his evidence stated that all the material for collecting the sample was brought by Mr. More, Food Inspector from Solapur office. The sample of 375 gms was taken in one plastic mug and the said mug was taken from the stall. He has nowhere stated that the mug was cleaned by the Khalashi with soap or the bottles were cleaned prior to drawing of the samples. When a suggestion was put to him that the bottles were not cleaned, he has merely denied it.
Therefore, both these witnesses are not able to establish that the samples were drawn in clean bottles. We are, therefore, of the opinion that the learned Magistrate was right in coming to the said conclusion.
11. As stated above Smt. Joshi has relied upon the judgment of the Hon’ble Supreme Court Babulal Hargouinda v. The State of Gujarat where it is held;
It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration
However, in the relevant paragraph the Hon’ble Supreme Court has further clarified that the evidence of the Food Inspector alone, if believed can be relied on for proving that the samples were taken as required by law. In the facts of that case the provisions of Section 10(7) of the P.F.A. Acts were followed. The panch witnesses were called and their signatures were taken while drawing the samples. It is against this background that the Hon’ble Supreme Court observed that the evidence of the Food Inspector could be accepted without corroboration. In the case before us independent panchas were not called and the evidence of the Food Inspector alone does not inspire confidence and, therefore, the judgment of the Hon’ble Supreme Court relied upon by Smt. Joshi can be distinguished from the facts of the instant case.
12. Apart from this, the non-examination of Khalashi has also adversely affected the prosecution case. In this connection reliance of Smt. Revati Mohite Dere, on the judgment of the Gujarat High Court M.B. Bisaldar v. Adheshyam Ramdhan Agrawal and Anr. 1981 Cr. L.J. NOC 102 : 21(2) G.L.R. 136 is apt. In that case the Gujarat High Court has taken a view in a similar fact situation that in case of non-examination of the person who actually draws the samples, the accused may get benefit of doubt.
13. We have, therefore, no hesitation in coming to the conclusion that the prosecution has failed to prove that the samples of groundnut oil were drawn as required by the P.F.A. Rules, 1954.
The learned Magistrate has rightly recorded the Order of acquittal and the same does not deserve to be upset. We do not find that the vice of perversity is attached to the impugned judgment and order.
14. In the result, the Appeal is dismissed. The Judgment and Order of Acquittal dated 22nd March, 1984, passed by the Judicial Magistrate, First Class (Rlys.), Daund, is confirmed. The Respondent-Accused is on bail. The Respondent need not surrender. His bail bond stands cancelled and surety discharged,
15. In case an application for certified copy is made, the same should be issued expeditiously.