SURYA NARAYAN MANIALAL SAHU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this case the accused stands convicted for the offence punishable under section 16 (1) (a) (i) of the prevention of Food Adulteration Act and was sentenced to under go rigorous imprisonment for four months and to pay a fine of Rs 1000/- or in default of payment of fine, to suffer furthe rigorous imprisonment for six months It oppears from the record (hat the accused is the owner and proprietor of a grocery shop know as - M/s. Chetan Kirana Stores' at Imambada Road, Jat Tarodi, Nagpur. on September 6, 1973 at about 4 p. m. Food Inspector Mankar along with panchas visited the shop of the accused He purchased 450 grams of ground nut oil, then samples were drawn and sealed; and thereafter one bottle was sent to the Public Analyst for Analysis. On analysing the Public Analyst found that the grpund nut oil was adulterated After obtaining the necessary sanction to prosecute the accused a complaint was filed in the court of the Judicial Magistrate First Class, Nagpur, During the pendency of the case the accused requested that the sample in his possession should be sent to the Central Food Laboratory. Calcutta, for analysis throgh the court process. It appears from record that a report was also received from the Director, Central Food Laboratory, Calcutta, that the ground nut oil was adulterated After appreciating all the evidence on record, the courts below came to the conclusion that the samples were duly drawn by the Food Inspector and the ground nut oil purchased by the Food Inspector from the shop of the accused was adulterated. In this view of the evidence, the accused was convicted and sentenced for the above said offence.

(2.) Initially the accused was sentenced to undergo six months' rigorous imprisonment and to pay a fine of Rs. 1000/- However in the appeal the substantive jail sentene was modified and the accused was-sentenced to undergo rigorous Imprisonment for four months Therefore, when the matter came up before this court in a revision filed by the accused, a suo motu notice for enhancement of sentence was issued, which is registered as Criminal Revision Application No.8 of 1976.

(3.) As both these matters arise of the same proceeding they are being disposed by this common judgment, Shri Manohar, the learned counsel for the accused, contended before me that the Food Inspector has not followed the mandatory procedure prescribed by the act & the Rules while taking the samples. According to him. the samples were not taken in bulk and therefore, it cannot be said that the sample represented the goods purchased from the shop. He further contended that the Food Inspector has also not complied with the mandatory provisions of section 10 (7) of the Act as he has not called any independent witnesses when the samples were drawn, According to Shri Manohar, the other panch witness who was called by the Food Inspector was a Food Inspector himself If this is so, he cannot be termed as "an independent witness" The second witness who was called when the samples were drawn is not examined. Thus, this is a case where there was no independent witness present when the samples were drawn. He further contended that the sample was not collected in a dry and a clean bottle, and, therefore, there was a breach of Rule 14 of the Rules. According to Shri Manohar, the sample sent by the Court under section 13 (2) of the Act was also not properly sent. Section 13 (2) of the Act enjoins a duty upon the Magistrate to send the sample to the Direcetor, Central Food Laboratory, for certificate under its own seal and that too in the prescribed form. Then Rule 4 lays down the procedure for sending such a sample. Rule 4(3) in particular contemplates that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover should be sent separately by the registered post to the Director. In the present case, according to Shri Manohar, the sample itself was not sent under ti,e seal of the Court, nor rule 4 (3) of the Rules was complied with. In this view of the matter, it is contended by the learned counsel that the conviction of the accussed is wholly illegal.