Criminal Appeal No.547 of 1988

11th June, 2004

Petitioner Counsel: Mr. A. M. SHRINGARPURE
Respondent Counsel: Mr. GIRISH AGRAWAL,R. M. AGRAWAL

Cases Cited:
State of Maharashtra Vs. Gopalprasad Govindprasad Agrawal, AIR 1999 SC 1507 [Para 2]
State of Maharashtra Vs. Nandiram Badildas Ahuja, 1988(1) Bom.C.R. 68 [Para 2,5]
AIR 1986 SC 2160 [Para 3]

JUDGMENT

JUDGMENT :- Heard the Public Prosecutor and Mr. Agrawal for the accused. This is an appeal by the State against acquittal of the accused under Section 7(i) r/w. 2(ia)(a)(m) punishable under Section 16 of the Prevention of Food Adulteration Act.

2. However, apart from arguing on merits, Mr. Agrawal for the accused contended that the date of the offence in this case is 6-11-1982 when the Food Inspector took samples from the shop of the accused, that way it is more than 22 years old case. Complaint was filed against the accused in 1983 vide Criminal Case No.114 of 1983 and after facing prosecution for 7 years, accused came to be acquitted by the then Judicial Magistrate, First Class, Solapur, by judgment dated 21-3-1988. This appeal was filed in 1988 and it is coming for hearing after 16 years for no fault of the accused. Therefore, according to Mr. Agrawal, when the accused is acquitted for the offence allegedly committed in 1982, then after 22 years this Court should not interfere in the order of acquittal. Mr. Agrawal relied upon two judgments in this regard. One is of the Supreme Court and the other is of the Division Bench of this Court. The Supreme Court Judgment is reported in AIR 1999 SC 1507, State of Maharashtra Vs. Gopalprasad Govindprasad Agrawal and the Division Bench Judgment of this Court is reported in 1988(1) Bom.C.R. 68, State of Maharashtra Vs. Nandiram Badildas Ahuja.

3. In the case of Supreme Court two separate prosecutions were launched against the Respondents under Prevention of Food Adulteration Act for exposing for sale chilli powder and turmeric (whole) in their shop, which on analysis were found to be adulterated. The trial Court convicted the accused. The Appellate Court set aside the conviction on the ground that written consent given under Section 20 of the said Act was not proper. The judgment of the Supreme Court reported in AIR 1986 SC 2160 was relied upon by the High Court.

4. The State challenged the order of acquittal before the Supreme Court. The Supreme Court on going through the record came to the conclusion that High Court was not justified in concluding that the consent was not proper. However, even then, the Supreme Court in para 5 of its judgment held as under :

"Ordinarily after recording the above findings we are required to set aside the impugned acquittal and remand the matter for disposal of the appeals on their merits but having regard to the fact that since the offences were allegedly committed almost 20 years have elapsed we do not find inclined to take such a course of action. We therefore dismiss the appeals."

5. The judgment of this Court of the Division Bench reported in 1988(1) Bom.C.R. 68, State of Maharashtra Vs. Nandiram Badildas Ahuja was relied upon by Mr. Agrawal. In that case the incident of adulteration had occurred in 1978. It was in respect of an ice candy factory run by the accused. The learned Magistrate acquitted the accused by its order dated 31-8-1979. The order came to be challenged in Criminal Appeal No.501 of 1980 by the State. The matter came before the Single Judge for hearing. Therein also one of the contention was breach of Rules 16 and 17 of the rules framed under the Prevention of Food Adulteration Act. The judgment of another Single Judge in Criminal Appeal No.146 of 1977 was placed before the said Single Judge and therefore the matter was referred to the Division Bench which ultimately disposed of the appeal. After hearing the arguments of both the sides. In para 5 the Division Bench observed as under :

"As we have indicated the alleged offence was committed on 19th of April, 1978 for which sanction was accorded on 2nd of August, 1978 and ultimately prosecution was launched on 28th of November, 1978. The learned Magistrate recorded the order of acquittal on 31st of August, 1979. The learned Single Judge recorded the order under reference on 24th of January, 1983. Inspite of that the Appeal was placed for final hearing for the first time in the year 1987. Thus the offence alleged to have been committed in April, 1978 gave rise to a proceeding which is sought to be terminated one way or the other in June, 1978 i.e. after more than 9 years."

6. In that background the Division Bench further observed that :

"This passage of time in our opinion has changed the complexion of the situation. The learned Counsel for the accused submitted that the accused has abandoned the said business and is well settled in life. The whole efficacy of hearing the appeal and making reference has practically frustrated or atleast diluted on account of this passage of time for which the accused cannot be blamed. In our opinion, on this short premise we are not inclined to disturb the order of acquittal and as such it may not be necessary to express any opinion on the point referred to by the learned Single Judge."

7. Thereafter the Division Bench observed that though they were dealing with reference, it was not found necessary to again sent back the matter to the Single Judge after so many years and therefore they held that it would not serve the end of justice to disturb the acquittal on any account and which can be done conveniently without expressing any opinion on merits.

8. Mr. Agrawal, therefore, submitted that the situation should not be interfered with after lapse of so many years. The offence was committed on 6-11-1982. The accused have faced trial for 7 years and came to be acquitted on 21-3-1988. This appeal was filed in 1988 and it came up for hearing only in 2003 and the effective hearing on 10-6-2004 i.e. nearly after 22 years of the offence and 14 years of the date of acquittal therefore looking to the aforesaid two judgments of the Supreme Court and the Division Bench of this Court it is not necessary to go into the merits of the matter and dismiss the appeal.

9. The learned APP could not point out as to how now the Single Judge can come to any different conclusion from the views taken by the Division Bench of this Court in the aforesaid matter. Therefore, without going into the merits of the case, this appeal is dismissed.

Appeal dismissed.