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CR.A/1035/1994 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1035 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
GUJARAT
SULPHATE CHEMICALS - Appellant(s)
Versus
D.C.PATEL
- Opponent(s)
=========================================================
Appearance
:
MR
RUSHABH SHAH for MR KB ANANDJIWALA
for
Appellant(s) : 1,
MR RC KODEKAR, APP for Opponent(s) : 1,
NOTICE
SERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 10/03/2010
ORAL
JUDGMENT
The
appellants original accused have filed this Appeal under Section
374 of Cr.P.C. challenging the Judgment and order of conviction
dated 14.10.1994 passed by the learned Additional Sessions Judge,
Valsad, Camp at Valsad in Essential Commodities Case No. 3 of 1990,
whereby the learned Additional Sessions Judge has held the
appellants accused guilty for the offences charged against them.
Brief
facts of the prosecution case is that on 23.6.1989 the respondent
No.1 visited the office of Pardi Taluka Sahakari Kharid Vechan Sangh
and checked the register and record of the said Sangh and found the
stock of Zinc sulphate chemicals fertilizer of 370 kgs. (total 37
bags of 10 kgs. Each) On the said bags there was symbol of Gulab
Brand Zinc Sulphate and marked as 21 % minimum zinc and also
mentioned Batch number and the date of manufacturing was shown as
8.5.1989. It is alleged that the complainant selected two bags and
took samples from the said bags on random basis and after completing
necessary procedure, he sent one sample to the Laboratory at
Gandhinagar on 26.6.1989, and another sample was submitted to the
Court whereas the third sample was given to the Manager of the said
firm. The Laboratory, after analysing the sample, prepared the
report in which it was found that the sample contains the percentage
of zinc of 18.36 % instead of 21 % and thereby the said fertilizer
is of a sub-standard quality by 2.64 % of zinc. It is alleged that
during the course of inquiry it was found that the said Sangh was
not selling the zinc sulphate to the customers but the same was
received by the sangh under subsidy as Rice crop in Valsad district
was covered under the scheme of National Food-grain Products and the
same was delivered to the sangh through the Gujarat Co-Op. Marketing
Federation, Ahmedabad, on 3.6.1980. Thereafter, the complainant
issued notices to the accused on 23.8.1989 and thereafter on
receiving the reply, the papers were sent to the Director of
Agriculture, for according sanction and after obtaining the sanction
the complaint came to be lodged against the accused in the Court.
On
completion of investigation the charge-sheet against the accused
came to be submitted before the concerned Court. Thereafter, the
charge was framed against the accused under Section 19(1)(A) of the
Chemical Fertilizer Control (Order), 1985, which is punishable under
Section 3 r/w Section 7 of the Essential Commodities Act. The
prosecution has examined 2 witnesses and also produced documentary
evidence, and at the end, recorded the statement of accused under
Section 313 of Cr.P.C. At the conclusion of the trial, after
considering the oral as well as documentary evidence led by the
parties and the arguments advanced, the learned Additional Sessions
Judge, vide impugned Judgment and order dated 14.10.1994, held the
accused appellants guilty of the offence under Section 7(1)(2)
of E.C. Act and imposed fine of Rs.2000/- upon the accused No. 1
company and also held the accused No.2 guilty of the said offence
and awarded sentence to suffer simple imprisonment of 3 months and
to pay fine of Rs.1,000/- and i/d to under-go SI for 1 month.
Being
aggrieved by and dissatisfied with the Judgment and order dated
14.10.1994 passed by the learned Additional Sessions Judge, Camp at
Valsad, in Essential Commodities Case No. 3 of 1990, the appellants
(original accused) have preferred this Appeal.
Heard
learned Advocate Shri Rushabh Shah for Shri Anandjiwala, on behalf
of the appellant original accused and learned A.P.P. Shri R.C.
Kodekar for the respondent State. I have gone through the
Judgment and order passed by the learned Special Judge and also gone
through the oral as well as documentary evidence produced before me.
I have also gone through the papers produced before me.
Learned
Advocate Mr. Rushabh Shah for the appellants has contended that
while taking the sample by the complainant no procedure, in
accordance with law, was followed. He has contended that office of
the Sangh is situated in a thickly populated area and the godown is
also situated nearby, however no panchas were called by the
complainant though the panchas were easily available. He has also
contended that complainant has failed to produce any independent
evidence on the record. He has contended that as per the evidence,
the complainant was holding the additional charge of Pardi region
and, therefore, he was not authorized to take the sample. He has
contended that the sanction is without application of mind and,
therefore, the court cannot presume the facts in favour of the
prosecution and the benefit would go to the accused. He has
contended that the sample was not taken in a proper manner. He has
also contended that the accused were never informed about taking of
sample nor about the report till 23.8.1989, i.e. 2 months of taking
the sample, however, the rules provide that the report must be sent
to the accused within 30 days and, therefore, the said Rule was not
complied with by the prosecution. He has contended that because of
the moisture the zinc sulphate would become lumpy and that may
affect the percentage of zinc and, therefore, the defence of the
accused is more probable than the case put forward by the
complainant and, therefore, the benefit would go in favour of the
accused. He has also contended that neither the Director of
Agriculture, who has accorded the sanction nor any other persons
from the office of Director of Agriculture is examined. He,
therefore, contended that the learned Judge has failed to appreciate
the material evidence on record and wrongly believed the case of the
prosecution and held the appellant accused guilty for the
offences charged against them. Therefore, the conviction and
sentence imposed by the learned Judge requires to be quashed.
Learned
A.P.P. Shri Kodekar has supported the Judgment and order of the
learned Special Judge. He has contended that from the oral as well
as documentary evidence it is established that the prosecution has
proved its case beyond reasonable doubt. He, therefore, contended
that the trial Court has not committed any error in holding the
appellants accused guilty for the charges levelled against them
and, therefore, no interference is required to be called for.
I
have gone through the Judgment and order of the trial Court. I have
also perused the oral as well as documentary evidence on record. The
defence of the accused is that they have manufactured the fertilizer
as per the specification and at that time the percentage of zinc was
exactly as per the specification. It is also evident that the
fertilizer can be affected because of moisture in the atmosphere and
percentage is also affected due to the manner and method in which
the sample has been taken. It is also the defence of the accused
that the sample was not taken in his presence. The complainant in
his evidence (Exh.34) during cross examination has admitted that the
place in question was thickly populated area and the panchas can be
easily made available. He has also admitted in his cross examination
that the fertilizer can be affected because of moisture in the
atmosphere. He has also admitted that at the time of taking sample
he had not informed the accused and he informed the accused about
taking of sample on 23.8.1989.
I
have also gone through the provisions of the Fertilizer Control
Order, 1985. Section 30, reads as under :
SECTION
30 TIME LIMIT FOR ANALYSIS AND COMMUNICATION OF RESULT :
SECTION
30(3) The authority to whom the analysis report is sent
under sub-clause (2) shall communicate the result of the analysis to
the dealer/manufacturer/ pool handling agency from whom the sample
was drawn within 30 days from the date of receipt of the analysis
report of the Laboratory.
It
has come in evidence that the complainant has taken the sample on
23.6.1989 and sent the said sample to the Laboratory on 26.6.1989.
It appears that the Report was received on 3.7.1989, however, the
accused were not informed about taking of sample nor about the
report till 23.8.1989. The Rule provides that the Report must be
sent to the accused within 30 days. Under sub-clause (3) of Section
30 of the Fertilizer Control Order, 1985, it is mentioned that the
authority to whom the analysis report is sent under sub-clause (2)
shall communicate the result of the analysis to the
dealer/ manufacturer/pool handling agency from whom the sample was
drawn within 30 days from the date of receipt of the analysis
report of the Laboratory. The word shall means it
is a mandatory provision. I am, therefore, of the opinion that when
the mandatory rule is not followed by the authority then the
appellant has right to say that the prosecution has committed breach
of mandatory provision and the benefit would go in favour of the
accused. Therefore, in my opinion, the learned Judge has committed
grave error in holding the appellant accused for the charges
levelled against them.
Further,
the appellants were not informed about taking of samples nor the
same were taken in presence of the appellants. It is not brought on
record that while taking the samples, proper procedure was followed.
From
the oral as well as documentary evidence, in my view, the learned
trial Judge has erred in holding the appellant accused guilty
for the offences charged against them. Hence, the story put forward
by the prosecution is not trustworthy and is doubtful and the
prosecution has failed to establish the guilt against the accused
and hence, there is error apparent of appreciation of fact and law
resulting into miscarriage of justice. Hence, impugned Judgment
requires to be quashed and set aside.
In
view of above, this Appeal is allowed. The Judgment and order dated
14.10.1994 passed by the learned Additional Sessions Judge, Camp at
Valsad, in Essential Commodities Case No. 3 of 1990, holding the
appellant accused guilty for the offence charged against them,
is hereby quashed and set aside. The appellant accused is
acquitted from the charges levelled against them. Fine, if paid, be
refunded to the appellant accused. Bail Bond, if any, shall
stand cancelled. Record & Proceedings be sent to the trial Court
immediately.
(Z.K.SAIYED,
J.)
sas
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