Decided on June 16,1988



- (1.)These two appeals arise out of the judgment and order passed by the learned Additional Sessions Judge, Baroda in Criminal Appeal No. 89 of 1980 whereby he acquitted the present respondent-original accused. The respondent-accused had filed the said appeal against the order of conviction and sentence passed by the learned Judicial Magistrate, First Class (Municipal), Baroda in Criminal Case No. 5387 of 1979. Criminal Appeal No. 520 of 1981 is filed by the State against the order of acquittal passed by the learned Additional Sessions Judge; whereas Criminal Appeal No. 943 of 1981 is filed by the Food Inspector who is the original complainant, against the said order of acquittal. As both these appeals arise out of the same judgment, they were heard together; and are disposed of by this common judgment.
(2.)On 10-5-1979 at about 8-30 a. m. Food Inspector Manubhai Maganlal Pandya visited the shop of the accused. At that time the accused was present in his shop. In the front portion of the shop, there was a cupboard; and in that cupboard several packets of Johnson cocoa were stored. As the complainant suspected that the said cocoa-powder was adulterated, he purchased 600 grams of Johnson cocoa for the purpose of analysis. He prepared three samples out of it; and got one such sample analysed by the Public Analyst of the Baroda Municipal Corporation. On analysis, the said sample was found to contain permitted coal tar dyes colours and maize starch in substantial quantity. It was, therefore, reported to be adulterated and misbranded. In view of this report, the Food Inspector filed a complaint in the Court of the Judicial Magistrate, First Class (Municipal,) Baroda and on the basis of that complaint the accused was tried and ultimately convicted by the learned Magistrate.
(3.)Before the learned Magistrate, the prosecution examined the Food Inspector and the Public Analyst to prove that cocoa-powder which was purchased from the accused was adulterated. Various contentions were raised before the learned Magistrate on behalf of the accused, but learned Magistrate did not find any substance in any of them; and held that as the cocoa-powder which was sold by the accused contained colour even though use of colour is not permitted by the Rules and as it contained substantial quantity of maize starch, the said article of food was adulterated. He also held that in substance, it was maize starch so coloured as to look like cocoa-powder. The article which the accused sold can be said to be a misbranded article; and, therefore, the accused was found guilty of having committed an offence punishable under Sec. 7(ii) read with Sec. 16 of the Prevention of Food Adulteration Act, 1954 (hereafter referred to as 'the Act'). Even though the learned Magistrate has not specifically stated in his judgment that he was convicting the accused for having committed breach of Rule 29 of the Prevention of Food Adulteration Rules, 1955 (hereafter referred to as 'the Rules'), the finding that the sample contained artificial colour even though it is not permitted by Rules, makes it clear that the accused has been convicted for committing breach of the said Rule. In fact, because of the allegation that he was selling cocoa-powder which contained artificial colour, it was believed to be a case of adulteration falling within sub-clause (j) of clause (ia) of Sec. 2 of the Act. It was for that reason that the procedure which the learned Magistrate followed was the one prescribed for trial of warrant cases. Imposition of one year's imprisonment on the accused also indicates that he has been convicted for the offence punishable under Sec. 16(lA)(i) of the Act. We are required to make this clarifi cation because in the final order, the learned Magistrate has written Gujarati letter "A" within brackets after figures 16(1) in Gujarati language. It appears to us that the learned Magistrate has committed an error in not properly describing the section under which he was convicting the accused.

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