This appeal is directed against the judgment and order dated 9th July, 2009 passed by Judicial Magistrate, First Class, Mapusa, Goa, acquitting the respondents of the offence punishable under Section 87(F) of Goa Public Health (Amendment) Act, 2005.
2. Respondents are alleged to have stocked for sale Goa 1000 Gutkha and RMD Gutkha containing tobacco as one of the ingredients, the stock and sale of which is prohibited in State of Goa, in their premises VS-22 Venor Plaza, Calangute, Bardez Goa. It is the case of the prosecution that on 29th April, 2006 the inspector appointed under Prevention of Food Adulteration Act, 1954 visited the premises of respondent no.1 where respondent no.2 was present as a vendor. On inspection, the inspector found 25 sealed packets of Goa 1000 Gutkha and 8 sealed packets of RMD Gutkha kept in the shop. Since the articles contained tobacco, the sale, manufacturer, distribution and stocking of which is prohibited in the State of Goa under Section 87A(1) and 87A(2) read with order 13/144/97/I/PHD (Part), read with the notification dated 20th December, 2004 published in Official Gazette under Goa Public Health(Amendment) Act, 2005, he filed complaint for the offence punishable under Section 87(F) of Goa Public Health (Amendment) Act, 2005.
3. The trial Court acquitted the respondents on two grounds. Firstly that the prosecution has failed to establish that the packets recovered actually contained tobacco. And secondly that the notification issued by the Government does not prohibit mere storing of food articles containing tobacco, consequently, mere storing is not an offence.
4. Mr. Rivonkar, learned Public Prosecutor submits that the trial Court has erred in holding that the prosecution has failed to establish that the packets actually contained tobacco. He points out that the prosecution has produced report of a public analyst that samples of 1000 Gutkha and 8 sealed packets of RMD Gutkha found in the shop of respondent no.1 contained Gutkha. Prosecution has examined the public analyst as a witness. The report and the deposition of public analyst shows that she had conducted 2 tests for finding out whether one of the ingredients of the packets was tobacco. The tests were i) Odour test and ii)Silicotungstic Acid Test. The odour test showed that the alkaline distillate has characteristic odour of tobacco and the second test gave positive result. On the basis of the tests she had opined that the sample of Goa 1000 Gutkha analysed showed presence of Tobacco, Menthol, Lime, Betelnut Pieces and Catechu.
5. With the assistance of both the counsel I have gone through the notes of evidence as also the various documents produced in evidence by the prosecution. The evidence produced completely supports the arguments of Mr. Rivonkar that learned trial Court was not correct in holding that the packets of Goa Gutkha and RMD did not contained tobacco. The learned Judge has completely ignored the second test performed by the analyst of Silicotungstic Acid test which was positive. It considered only the odour test and consequently arrived at the incorrect finding. This finding of the trial Court therefore, cannot be sustained.
6. As regards the second finding of the trial Court on application of the notification issued by State Government under Section 87A(2) of The Goa Public Health (Second Amendment) Ordinance, 2004, perusal of the notification shows that though Section 87A(1) prohibits, amongst other acts, storing of the injurious food articles, the notification issued by State Government had omitted the word "Store". The acts described in Section 87A(1) become prohibited acts only on issuance of the notification under Section 87A(2). Omission of the act of storing from the notification, in operation at the relevant time, would only mean that storing of such food articles did not invite penal action. Apparently this mistake has been corrected later by the State Government by issuing fresh notification dated 5th January, 2010. Mr. Rivonkar, however in fairness, concedes that the new notification will not have retrospective application. In these circumstances, the trial court must be held to be correct in its second finding. The offence alleged against the respondents cannot be said to have been completed in the absence of notification prohibiting storing of injurious food items.
7. Hence, the appeal is dismissed.