BHAGWANDAS KHIMJI PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS criminal revision application is directed against the judgment and order passed by the Addl. Sessions Judge, Akola dated 17-8-90 in Criminal Appeal No. 172/ 87 arising out of and confirming the Judgment and order passed by the J. M. F. C. , Akola in Criminal Case No. 431/1981, dated 5-12-1987, convicting the applicant/accused under section 16 of the Prevention of Food Adulteration Act and sentencing him to suffer R. I. for 2 years and to pay a fine of Rs. 3000/- in default to suffer further R. I. for 6 month.

(2.) THE accused was tried for the offence u/s 7 (1) r/w section 2 (ia) (m) punishable under section 16 of the Prevention of Food Adulteration Act. The facts giving rise to the prosecution are, briefly, stated as under Shri Mankar---complainant, who is a Food Inspector has been notified by the State Government for Akola district under section 9 of the Prevention of Food Adulteration Act, 1954. The appointment of Shri Mankar is as per Notification No. PFA/1072/52885/v dated 22-2-1973 and the Jt. Commissioner of Food and Drug Administration, Nagpur, has notified him by the notification of State Government No. FA/1276/1835/ph-4-III Dated 5th October, 1976. While working as food Inspector, District Akola and other revenue areas under the control of the complainant- Shri Mankar, on 24-9-80 at about 9. 30 a. m. visited the shop of the applicant accused at Jaihind Chauk, Akola. The accused who deals in grocery shop runs his business under the name and styled "m/s Shriram Kirana Stores. The applicant/accused Bhagwandas was present in the shop. Shri Mankar disclosed his identity and his intention of drawing sample of coconut oil which was strode and kept for sale in the shop of the accused. In presence of the panch witnesses Shri mankar demanded 375 grams of coconut oil and had paid Rs. 7. 50/- for the same. A notice was issued in form No. VI and a receipt was obtained from the accused. A notice under section 14 (a) was also issued to the accused for which a receipt was obtained from him. A sample of coconut oil purchased from the accused was then divided in three equal parts and each part was filled up in clean, dry and empty bottles which were duly closed with the help of cork. The bottles were sealed as per the procedure laid down in the Act. The complainant thereafter prepared all required documents, labels and had signed the same and obtained signatures of accused and panchas. Panchanama to that effect was drawn on the spot. Shri Mankar--the complainant on 25-9-80 sent one sealed sample bottle of coconut oil bearing Sr. No. 521 to Local health Authority and Chief of Municipal Council, Akola and form No. VII in sealed packed to Public Analysts for Health Laboratory, Amravati. The another sealed packed and copy of form No. VII and specimen impression of seal used for sealing the samples was sent separately to Public Analyst, Public Heath Laboratory, Amravati. The complainant also sent remaining two sealed counter- parts of sample to Local Health Authority and Chief Officer to Municipal Council, Amravati alongwith copies of form No. VII and copy of appendix D in sealed packet by a hand delivery. The Public Analysts of Public Heath Authority, Amravati has reported the adulteration in sample of coconut oil and opined that the sample of coconut oil does not confirm to the standard of coconut oil as per the provisions of Prevention of Food Adulteration Act and Rules 1955, vide his report dated 5-11-80. Thereafter, Shri Mankar sent all the concerned papers to the Local Heath Authority and Chief Municipal Council, for necessary permission from the joint Commissioner, Food and Drug Administration, Nagpur to prosecute the accused. On receipt of the sanction from the Joint Commissioner, Nagpur, the complainant Shri Mankar had filed the complaint against the accused under section 7 (i) r/w 2 (ia) (m) of the Prevention of Food Adulteration Act. The learned J. M. F. C. , Akola considering the prosecution evidence and also the defence, arrived at the conclusion that the applicant/accused has committed the offence and, therefore, he was convicted and sentenced vide order dated 5-12-87. Being aggrieved by the judgment and order of conviction and sentence passed by the J. M. F. C. , Akola on 5-12-87, a Criminal Appeal No. 172/87 was preferred before the Sessions Judge, Akola. The criminal appeal was heard by Addl. Sessions Judge, Akola who confirmed the order of conviction passed by J. M. F. C. Akola, however, modified the sentence to the effect that the applicant/accused to suffer R. I. for 6 months and to pay fine of Rs. 3,000/- in default to suffer R. I. for 3 months, vide order dated 17-8-90.

(3.) SHRI Sirpukar, the learned Counsel for the applicant/accused mainly attacked the findings of both the learned lower courts submitted that the coconut oil is not used in Akola as a food but it is used as a hair oil. In spite of such evidence, both the learned lower courts committed errors in arriving at the findings that the coconut oil is a food as it is used for eating. The prosecution has to prove that the particular article which is sold must be "food". The coconut oil is used as a cooking material in the State of Kerala only. Though the Prevention of Food Adulteration Act is applicable to the whole of India, but one article used as a Food in one part but in other parts it is not used as a Food or cooking substance but used a cosmetic, whether the person who deals in that part commits the offence punishable under the provisions of the Prevention of Food Adulteration Act, 1954.