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CR.A/133/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 133 of 2011
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AHMEDABAD
MUNICIPAL CORPORATION THROUGH - Appellant(s)
Versus
JITENDRA
VASUDEV JETHANI & 1 - Opponent(s)
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Appearance :
MS
JIRGA D JHAVERI for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR HL JANI, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/02/2011
ORAL
ORDER
The
appellant-Ahmedabad Municipal Corporation through Food Inspector has
preferred the present appeal under Section 378 of the Code of
Criminal Procedure, 1973 against the Judgment and Order dated 14th
May 2010 passed by the learned Metropolitan Magistrate, Court No.8,
Ahmedabad, in Criminal Case No.24 of 2002 for the offences
punishable under the Prevention of Food Adulteration Act, 1954,
whereby the learned Magistrate has convicted the respondent
No.1-original accused till the Court rise and also imposed fine of
Rs.2,500/-, and in default of payment of fine, ordered to undergo
simple imprisonment for a period of seven days.
The
short facts of the prosecution case is that on 27th
February 2002 the complainant-Food Inspector along with his Peon has
visited AIRIS CLICK BEVEREGIS PVT. LTD., Ahmedabad. It is the case
of the complainant that at that time the respondent No.1-accused was
present and was doing business. It is the case of the complainant
that after giving his identity as Food Inspector, the complainant
purchased 45 pouches of Natural Mineral Water of Cool Brand in
presence of panch witness as sample and also paid consideration for
the same. On asking about the ownership of the shop, the respondent
No.1 had replied that he is the owner of the shop, but did not
produce any documentary evidence. It is also the case of the
complainant that after following due procedure of sealing, the
sample was sent for analysis. On examination, the Public Analyst
found that the said sample was adulterated. Therefore, after
following the due procedure, complaint was filed against the
respondent No.1-accused in the Court of learned Metropolitan
Magistrate, Court No.8, Ahmedabad for the offences punishable under
Section 16 of the Prevention of Food Adulteration Act, 1954.
Thereafter,
upon service of summons, the respondent No.1-accused appeared before
the Court and as the accused not pleaded guilty, the trial
commenced. Thereafter the trial was conducted before the learned
Magistrate. To prove the case of the prosecution, prosecution has
produced oral as well as documentary evidence. Thereafter, further
statement of respondent No.1-accused was recorded under Section 313
of the Code of Criminal Procedure wherein the accused had denied the
case of the prosecution.
Thereafter,
after considering the oral as well as documentary evidence, the
learned Magistrate by his order dated 14th May 2010
convicted the respondent No.1-original accused till the Court rise
and also imposed fine of Rs.2,500/-, and in default of payment of
fine, ordered to undergo simple imprisonment for a period of seven
days.
Being
aggrieved and dissatisfied with the said Judgment and Order dated
14th
May 2010 passed by the learned Metropolitan Magistrate, Court No.8,
Ahmedabad, in Criminal Case No.24 of 2002, the complainant-Food
Inspector has preferred the above mentioned Criminal Appeal.
Heard
Ms.Jirga Jhaveri, learned counsel for the appellant and Mr.H.L.
Jani, learned Additional Public Prosecutor, appearing on behalf of
the respondent No.2-State.
Ms.Jhaveri,
learned counsel for the appellant, has contended that the Judgment
and Order passed by the learned Magistrate is not proper, legal and
it is erroneous. She has also argued that the learned Magistrate has
not considered the evidence of the witnesses. She has argued that
the learned Magistrate has not considered the fact that the Food
Inspector has followed the proper procedure while collecting the
sample, etc. are just and proper. The sample was seized and sealed
properly. Yet, the learned Magistrate has not considered the
evidence of prosecution. He, therefore, contended that the order
passed by the learned Magistrate is without appreciating the facts
and evidence on record and is required to be quashed and set aside
by this Hon’ble Court.
I
have
gone through the order of passed by the learned Magistrate. I have
also perused the oral as well as documentary evidence led before the
trial Court and also considered the submissions made by learned
advocates for the parties.
The
trial Court has, after appreciating the oral as well as documentary
evidence, observed that the sample was misbranded to the extent that
the pouch of Natural Mineral Water (Cool Brand) was not having ISI
Mark, which is necessary. Thus, the prosecution has proved its case
against the respondent No.1-accused. The learned Magistrate has also
observed the judgment referred by the respondent No.1-accused. In
that judgment, the High Court has observed that if it is the only
guilt of the respondent No.1-accused, then the conviction imposed
upon the accused, i.e. the accused was convicted till the Court rise
and also imposition of fine, is not required to be altered. The
learned Magistrate has observed that in the present case also, the
only guilt of the respondent No.1-accused is that he has sold
pouches of Natural Mineral Water (Cool Brand), which were
misbranded. It is also observed by the learned Magistrate that
looking to overall situation and the accused has family
responsibility, minimum sentence to be imposed upon the respondent
No.1-accused. Hence, the
learned Magistrate convicted the respondent No.1-accused and
sentenced him till the Court rise and also imposed fine of
Rs.2,500/-.
In
above view of the matter, I am of the considered opinion that the
judgment and order passed by the trial Court is just and proper.
I
find that the findings recorded by the trial Court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order recorded by the trial Court and
hence find no reasons to interfere with the same. Hence the appeal
is hereby dismissed.
The Judgment and Order dated 14th
May 2010 passed by the learned Metropolitan Magistrate, Court No.8,
Ahmedabad, in Criminal Case No.24 of 2002 is hereby confirmed. Bail
bond, if any, shall stands discharged. Record and Proceedings, if
any, be sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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