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CR.A/698/1996 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 698 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
GANDUBHAI
BHAGWANBHAI SAVALIA & 1 - Opponent(s)
=========================================
Appearance
:
MS CM SHAH, ADDL. PUBLIC
PROSECUTOR for Appellant(s) : 1,
MR DK MODI for Opponent(s) : 1 -
2.
MR MD MODI for Opponent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/03/2010
ORAL
JUDGMENT
1. Heard
learned Additional Public Prosecutor Shri Nanavaty for the appellant
and Shri D.K. Modi, learned advocate, who, at the request of the
Court, has agreed to act as amicus curiae.
2. The
appellant State has preferred this appeal under Section 378 of the
Criminal Procedure Code assailing the order of acquittal dated
10.5.1996 passed by the Additional Chief Judicial Magistrate, Gondal,
in Criminal Case No. 711 of 1991, acquitting present respondents/
original accused of the charge of committing offence under Sections
7(1) and 16 of the Prevention of Food Adulteration Act, 1954 ( ‘PFA
Act 1954’ for the sake of brevity) for the reasons stated thereunder.
3 It
was the case of the prosecution before the Court that concerned Food
Inspector in discharge of his duty had collected sample of Chilli
powder on 13.5.1991 from the shop of the accused and after completing
the formalities, one of the samples was sent for analysis and the
report indicated that the sample was not in conformity with the
standards prescribed. After obtaining sanction to lodge complaint,
same was lodged against the accused/respondent for the offence under
Sections 7 & 16 of the PFA Act. Trial Court summoned the accused,
their plea were recorded and after recording plea of not guilty to
the charge, the trial commenced. At the end of trial only on a
solitary ground acquitted the accused vide order of acquittal dated
10.5.1996, which is impugned in this appeal.
4. Shri
Nanavaty, learned Additional Public Prosecutor for the appellant
submitted that the ground which is relied upon by the Court for
acquitting accused namely inadmissibility of Public Analyst Report on
account of his not signing the report on the same day is no more a
good law, and that ground ought not to have been made sole ground for
acquitting the accused of the charges levelled against them. Shri
Nanavaty submitted that recently this Court has, in such a situation,
remanded the matter to the trial court as the trial court did not
advert to any other aspects in the matter.
5. Shri
Nanavaty, relying upon the decision of this Court in the case of
State of Gujarat vs. Prafulchandra Ranchhodkumar in Criminal Appeal
No.493 of 1996 decided on 11.1.2010 submitted that the trial Court
was not justified in recording acquittal on the ground of Public
Analyst report being inadmissible or not of any material when the
sample was not examined. Shri Nanavaty submitted that the Division
Bench of this Court in the case of State of Guajrat vs. Vishramdas
Virumal, reported in 2000(4) GLR 2884 has held that in such a case,
report cannot be ignored without examining the Public Analyst as a
witness either by the Court or by the accused raising doubt about the
correctness of the report. Shri Nanavaty also relied upon another
decision reported in case of State of Gujarat vs. Uttamchand
Hathichand Shah & ors, reported in 2007(2) GLH 249.
6. Shri
Nanavaty submitted that relying upon above two judgments, this Court
in case of State of Gujarat vs. Prafulchandra Ranchhodkumar (Supra)
decided to remand the matter back for appropriate examination of the
case. He submitted that in the instant case also, this Court may
remand the matter.
7. This
Court heard Shri D.K. Modi, learned advocate who appears as amicus
curiae, and has submitted that after long gap of almost 20 years,
remanding the matter would serve no purpose. He has submitted that
the sample was taken in the year 1990, acquittal order is pronounced
in the year 1996 and, now the matter is remanded back to the trial
Court for further trial on the aspect of remaining points, same would
act as prejudice against the respondents original accused.
8. This
Court is in complete agreement with learned Additional Public
Prosecutor with regard to the erroneous findings of the Court in
respect of inadmissibility of Public Analyst Report. But, this Court
is not inclined to remand the matter. Shri Modi, therefore was called
upon to make submission in respect of any other point which may be
available to the accused respondents to rely upon any other ground
for sustaining the acquittal which are not adverted to by the Court
of the first instance. In this case, thus, Shri Modi submitted that
the sample food article being Chilli Powder which was in a gunny bag
from which the sample was collected and now it is to be seen from the
certified copy of the testimony of the Food Inspector which is placed
on record by learned Additional Public Prosecutor. It can be seen
that the Food Inspector has not given any evidence with regard to the
stirring and/ or mixing the entire quantity of the chilli powder so
as to make it homogeneous representing of the entire quantity of the
sample. Therefore, this being a serious lacuna in the case of the
prosecution, the order of acquittal needs to be sustained.
9. Shri
Modi’s submission with regard to non-stirring of the entire quantity
of powder appears to be correct. He relies upon the decision of the
Delhi High Court in the case of State vs. Mahavir reported in
2009(3) Crimes 209(Del.) with regard to requirement of stirring and
making entire quantity homogeneous before taking sample that was the
case of Lal Mirchi Powder.
10. This
Court is of the view that when the sizable record is destroyed as
reported, the remand would not serve any useful purpose especially
when the sample in question had been collected way back in the year
1991 and the acquittal is recorded in the year 1996. The order of
acquittal needs no interference in view of the fact that the same is
sustainable on other grounds.
11. This
Court is of the view that in view of the peculiar facts and
circumstances of the case, the order of acquittal need not be
interfered with. Accordingly, the appeal is dismissed. Bail bonds, if
any, stand cancelled.
(S. R.
Brahmbhatt, J. )
sudhir
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