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CR.MA/13633/2009 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13633 of 2009
In
CRIMINAL
APPEAL No. 2431 of 2009
With
CRIMINAL
APPEAL No. 2431 of 2009
======================================
STATE
OF GUJARAT,FOR & ON BEHALF OF C P GOHIL,FOOD INSPECTOR -
Applicant(s)
Versus
SABBIRBHAI
TAHARALI DAUIDI, DISTRIBUTOR & PARTNER & 2 - Respondent(s)
======================================
Appearance
:
MS CM SHAH,
ADDL.PUBLIC
PROSECUTOR for Applicant(s) : 1,
None for Respondent(s) : 1 -
3.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/04/2010
ORAL
ORDER
1. Heard,
Ms. C.M.Shah, learned Additional Public Prosecutor for the State.
2. The
applicant-appellant State of Gujarat has taken out this application
for seeking leave to appeal challenging the order of acquittal dated
29th April, 2009 passed by the Judicial Magistrate First
Class, Vadhvan in Criminal Case No.100 of 2000 acquitting the accused
respondents herein above of the charge of committing offence
punishable under Section under Section 2(1-a)(m), Sections 7(1) and
7(5) and under Section 16 of the Prevention of Food Adulteration Act,
1954 ( hereinafter referred to as the PFA Act for the sake of
brevity).
3. This
Court has heard Ms. C.M. Shah for the applicant-appellant at length
and has perused the documents pertaining to the case produced by her,
which has been ordered to be taken on record. The copies of the
relevant documentary evidences are produced on record. This Court is
of the view that leave itself is not required to be granted for the
following reasons:-
3.1 The
original complainant-Food Inspector in discharge of his duties on
4.10.1999 visited the premises of the accused No.1 along with the
Panch witness and after introducing himself as such and verifying the
licence etc. found that the said accused were producing mineral water
and packing them for sale in pouches. Around 2,500 pouches were lying
in the premises. After notifying his intention of collecting the
sample for analysis and issuing requisite notice in Form No.6, the
Food Inspector purchased 36 pouches each containing 250 ml. of
mineral water and paid the price thereof. Thereafter, the Food
Inspector divided it into 3 equal parts and after sealing and
affixing etc. in presence of panch and completing the formalities,
one sample article was sent to the Public Analyst, Vadodara and
remaining two parts were sent to the Local (Health) Authority,
Surendranagar. The Public Analyst vide its report dated 21.10.1999
declared the sample article to be in conformity with the standards
laid downin P.F.A.Rules. However, concerned authority declared that
as requisite tests were not carried out by the Public Analyst while
examining the pouches of the mineral water, the report was said to be
erroneous and hence under Section 13(2)(e) of the PFA Act, the
remaining part was sent to the Public Analyst, Municipal Corporation,
Vadodara on 1.11.1999. The Public Analyst report was received on
14.12.1999 wherein it was found that the fluoride content was found
to be more than the prescribed and a bacteria of E.coli was also
found. The Second report by the second Public Analyst contained
opinion with regard to article not in conformity with the provisions
of Prevention of Food Adulteration Rules, 1955. The requisite
sanction was obtained on 29.2.2000 which was accorded on 29.2.2000
and complaint came to be lodged on 1.3.2000. The Court, after
recording plea of not guilty, framed charges, recorded the evidence
and the statements of the accused were recorded under Section 313 of
the Code of Criminal Procedure, 1973 and after appreciation of the
same, acquitted the accused of the charge of committing the offence
punishable under Section 2(1-a)(m), Sections 7(1) and 7(5) and under
Section 16 of the Prevention of Food Adulteration Act, 1954 vide
order dated 29.4.2009 impugned in the present leave to appeal and
appeal under Section 378 of the Code of Criminal Procedure, 1973.
4. Ms.
Shah, learned Additional Public Prosecutor, has taken this Court
through the testimony of the Food Inspector and the report of the
Public Analyst at Exh.30 and Exh.55.
5. She,
however, could not controvert the findings recorded by the Court that
the samples of mineral water pouches in question were containing
specific stipulation that they were best for use before 3.11.1999.
The sample was collected on 4.10.1999 and the first report of Public
Analyst declared the same to be in conformity with the Rules and not
adulterated. The subsequent report by another Public Analyst of
Vadodara Municipal Corporation contained information with regard to
existence of E.coli bacteria and contents of Fluoride more than the
permissible limits and hence it was declared to be adulterated. It
has come out in the recording of the evidence of the Food Inspector
that the date of examination of the sample was 1.12.1999 which is
the date admittedly subsequent to the date prescribed for the best
usage, namely, 3.11.1999. In view of this, when the sample is said to
have been examined on 1.12.1999 or when there was no date
specifically prescribed with regard to the examination of the sample
food article ,then the acquittal cannot be said to be so perverse as
to call for any interference under Section 378 of the Code of
Criminal Procedure.
6. This
Court has perused the relevant copies of the papers of the trial
Court as well as the relevant papers produced by the learned
Additional Public Prosecutor pertaining to this case, which have been
ordered to be taken on record. The date of expiry or the date on
which the sample would have been said to be the best to be used, is
the crucial date i.e 3.11.1999 . The sample was,therefore, required
to be examined on/or before 3.11.1999. In the instant case, though
the sample was actually sent on 1.11.1999 to the second Public
Analyst, he has not specifically mentioned anywhere that the sample
was examined on or before 3.11.1999.
7. In
view of this, the Court is not inclined to interfere with the order
of acquittal which cannot be said to have resulted into miscarriage
of justice in any manner.
8. This
Court is of the view that leave to appeal itself is not required to
be granted. Leave is, therefore, refused to file appeal and as such
the leave is refused. As the leave to appeal is refused, Appeal
itself is also not required to be entertained and the same is,
therefore, dismissed.
(S.
R. Brahmbhatt, J. )
sudhir
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