R.A. JAHAGIRDAR, J.
In Criminal Case No. 1666 of 1974 four accused were prosecuted for an offence punishable under section 16(1)(a)(i) of Prevention of Food Adulteration Act. Accused No. 1 was the father of accused Nos. 2 and 3 and accused No. 4 was side to be a partnership firm consisting of the other accused. The case was on the basis of a complaint filed by the Food Inspector of Aurangabad who, the prosecution alleged, purchased 450 gms. of what was sold as Shaha Jira. It was, however, found that it was not Shaha Jira at all but it was Ghas Jira a commodity used for treating the animals medically. According to the prosecution on learning from one Gopikishan of a different village altogether that Shaha Jira was being sold by the firm of the accused in an adulterated form, the Food Inspector of Aurangabad accompanied by the Assistant Commissioner of the Food and Drug Administration, Gopikishan, and a panch went to the shop of the accused. Gopikishan made a sort of recon
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naissance trip to the shop and purchased 250 gms. of Shaha Jira from accused Nos. 1 and 2 who were then present in the shop. Thereafter the Food Inspector made a statutory purchase by requiring accused No. 1 to sell him 450 gms. of what was branded as Shah Jira. The sample sent to the Public Analyst showed that what was sold was not Shaha Jira but Ghas Jira. On these allegations the accused were prosecuted in the case referred to above.
2. The defence of the accused as disclosed in the cross-examination of the prosecution witnesses was that what was sold to the Food Inspector was sold not as Shaha Jira but as Ghas Jira. The learned trial magistrate accepted the prosecution case in so far as it related to accused Nos. 1 and 2 and convicted them under section 16(1)(a)(i) of the Act, sentencing each of them to rigorous imprisonment for six months and to a fine of Rs. 1,000/-. In default of the payment of fine further rigorous imprisonment for one month was directed. This order of conviction and sentence was challenged by accused Nos. 1 and 2 in an appeal preferred by them being Criminal appeal No. 11 of 1977.
3. It may be mentioned at this stage that accused No. 4 was acquitted by the learned trial Judge as it was not shown to be a Company and the name of accused No. 3 was deleted as he was a minor. The learned Sessions Judge of Aurangabad who heard the appeal partly allowed the same by acquitting accused No. 2. He, however, confirmed the conviction and sentence of accused No. 1. Accused No. 1 has now approached this Court invoking its revisional jurisdiction by contending that the order of conviction and sentence passed by the two courts below is improper and illegal.
4. Mr. Agarwal, the learned Advocate appearing in support of the petition, has raised several contentions regarding the legality of the prosecution itself by questioning, amongst other things, the consent given for the instant prosecution. I have, however, not found it necessary to examine the various contentions raised by him because in my opinion the petitioner must succeed on a limited ground viz. that he had not sold Shaha Jira to the Food Inspector but had sold Ghas Jira. As a result it is not necessary to refer to the various provisions of law and other parts of the evidence. It will be sufficient to examine the case of the accused only on this question as to whether he sold Shaha Jira or Ghas Jira. Unfortunately the two courts below have not pointedly applied their minds to this aspect of the case, but have proceeded to accept the case of the prosecution without examining the case on probability. Though this petition is a revisional application, I have persuaded myself to look at some parts of the evidence because in criminal trial the probabilities of the case must be considered by the courts of facts which must also find that the prosecution has proved its case beyond a reasonable doubt. This aspect of a criminal trial has not been, in my opinion, properly borne in mind by the two courts below.
5. The Food Inspector Kundalik Shelar (P.W. 1), has deposed that he had gone to the shop of the accused for purchasing Shaha Jira. He has also mentioned that on the earlier day another Food Inspector had purchased biscuits and Shaha Jira from the shop of one Gopikishan Nawandar of village called Wai. No explanation has been given by Food Inspector Shelar as to why after the said purchase from the shop of Gopikishan was made his movement was directed towards the shop of the accused. Presumably the commodity purchased from the shop of Gopikishan was adulterated and Gopikishan told the Food Inspector that he had purchased the commodity from the shop of the accused. Gopikishan was first made to purchase some quantity of Shah Jira from the shop of the accused. After he had done so, the Food Inspector stepped into the shop and according to him he demanded 450 gms. of Shaha Jira. It is also mentioned that after 450 gms, were handed over to the Food Inspector, practically nothing of that commodity was left in the tin from which it was taken. It had been suggested to the Food Inspector in the cross-examination that accused No. 1 refused to give the receipt stating that there was no Shaha Jira in his shop. This has been naturally denied by the Food Inspector. If we at this stage look to the cross-examination of Gopikishan, who is almost in the role of an accompanies, we will find that he says he does not remember whether accused No. 1 had named the substance sold to him as Ghas Jira. It is inconceivable that this witness who remember so many other things would conveniently fail to re member under what name accused No. 1 sold the commodity to him. He had gone to purchase specifically that commodity.
6. The Food Inspector confessed his ignorance about the Price of Shaha Jira at the relevant time but there is the evidence of the Assistant Commissioner Prabhakar Joshi (P.W. 2), which shows that at that time the price of Shaha Jirar was about Rs 60/- per kg. From the rest of the testimony of this witness. I find that he is a somewhat experienced officer who can recognise Shah Jira with a naked eye and who in fact saw that the stuff in the tin container from which it was sold to the Food Inspector was not in fact Shaha Jira. The accused has also examined a witness in his support who has mentioned that Shaha Jira is generally sold at Rs. 80/- to Rs. 100/- per kg. Whereas Ghas Jira is sold at Rs. 10/- per kg. There is no successful or effective cross-examination of this witness by the Public Prosecutor on this aspect. It is, therefore, safe to hold that at the relevant time the price of Shah Jira was between Rs. 60/- to Rs. 80/- per kg. If this is so, it is difficult to believe that Gopikishan who himself is a trader by profession would purchase the commodity from the accused on the basis that it was Shaha Jira because the price which was paid by him as well as the Food Inspector to the accused for the commodity purchased, by them was at the rate of Rs. 10/- per kg. The suggestion of the accused, therefore, that what was sold to the Food Inspector was Ghas Jira and not Shah Jira is supported by the prosecution evidence as well as by the defence evidence.
7. In a case like this where Gopikishan accompanying the Food Inspector's party is almost an accomplice, it was essential for the Food Inspector to take with him independent panchas to witness the statutory sale that was going to be effected. In the instant case a panchanama has undoubtedly been drawn. One of the Panchas attesting this panchanama is Gopikishan himself whose word is, in my opinion, worthless because he is in the first place not an independent person at all and secondly he himself is a trader and has participated in this particular transaction leading to the prosecution of the accused. No reason has been given as to why the second panch who is alleged to have attested this panchanama has not ben examined. Section 10(7) of the Prevention of Food Adulteration Act requires that the Food Inspector must be accompanied by witnesses whose signatures must be obtained not only on the samples but also on the panchanama. The requirement of section 10(7) is also that the witnesses must be present at every stage i.e. of entry, inspection and taking of sample. It has been so held by Vaidya, J. in (R.A. Samant v. The State of Maharashtra)1, 70 Bom.L.R. 794.
8. In (Babulal Hargovindas v. State of Gujarat)2, A.I.R. 1971 S.C. 1217 the Supreme Court has also pointed out that the provisions of section 10(7) being salutary, should be complied with by the Food Inspector. It may be that there is no legal embargo upon accepting the evidence of the Food Inspector even if the panch witness has not been examined, but in the instant case it has not even been established that independent witnesses accompanied the Food Inspector. The one viz. Gopikishan is definitely not an independent person and we do not know that the character of the other panch who signed the panchanama. There is a cloud of suspicion over this entire transaction leading to the present prosecution which is not dispelled by the evidence of the prosecution. Indeed, some parts of the evidence themselves are responsible for creating this cloud of suspicion. It is a part of out criminal jurisprudence that the prosecution must prove its case beyond reasonable doubt which, in my opinion, it has not done in the instant case. The conviction and sentence of the petitioner who was accused No. 1 will have, therefore, to be set aside.
9. In the result, the conviction and sentence of accused No. 1 recorded by the Judicial Magistrate, First Class at Jalna in Criminal Case No. 1666 of 1974 and confirmed by the learned Sessions Judge of Aurangabad in Criminal Appeal No. 11 of 1977 are set aside. The bail bond of the accused shall stand cancelled. Fine, if paid, shall be refunded