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CR.RA/331/2002 2/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 331 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
CHANDUBHAI
LALJIBHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RAJESHWAR J DAVE for
Applicant(s) : 1 - 2.
MR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 18/02/2010
ORAL
JUDGMENT
Both
the applicants who were original accused in Criminal Case No.562 of
1992 tried by learned Judicial Magistrate First Class, Kalol and
original appellants in Criminal Appeal No.45 of 2001, heard and
disposed of by learned Additional Sessions Judge, Mehsana have
preferred this revision application u/s.397 r/w.Section 401 of the
Cr.P.C. challenging the legality and validity of the judgments
rendered by both the subordinate Courts.
The
prosecution case in nutshell is that the respondent No.2 Food
Inspector (‘FI’, for short) Mr.Sumanchandra Trivedi along with other
Officers of the raiding party visited the shop of the applicant
accused on dated 10.4.1991 and collected a sample of groundnut oil
from one packed and sealed groundnut oil tin by opening the seal and
packing of the tin. The sample was forwarded to Public Analyst and
it was reported that the groundnut oil was adulterated. It was
further revealed that the packed and sealed tins of groundnut oil
were manufactured by applicant accused No.2 Pravinbhai Laljibhai, a
nominee of M/s.Atlas Oil Mill, Rajkot. Bill and relevant documents
to that effect were collected from the vendor applicant accused
No.1 Chandubhai at the time of the raid. The FI, after obtaining due
sanction to launch criminal case against both the accused, filed a
criminal complaint against both applicants accused in the Court of
learned JMFC, Kalol, which was registered as Criminal Case No.562 of
1992. It further transpires that the accused applied u/s.13(2) of
the Prevention of Food Adulteration Act (‘PFA Act’, for short) for
re-analysis of the sample by Central Food Laboratory, Gaziabad
(‘CFL’, for short). After recording the evidence on record and after
receipt of the report of CFL, learned JMFC, Kalol by judgment and
order dated 16.7.2001 in Criminal Case No.562 of 1992 recorded
conviction of both the accused for the offence punishable u/s.16
r/w.Section 7 of the PFA Act and each of the accused was sentenced
to undergo R.I for three years and fine of Rs.2000/- each and in
default of payment of fine, S.I for one month.
2.1 Both
the applicants original accused challenged their conviction by
preferring Criminal Appeal No.45 of 2001 in Sessions Court, Mehsana.
Learned Additional Sessions Judge, Mehsana vide judgment and order
dated 14.8.2002 dismissed the appeal and confirmed the order of
conviction and sentence recorded by the trial Court. This has given
rise to the present criminal revision application.
I
have heard the arguments of learned advocate, Mr.Dave, for the
applicants accused and learned A.P.P., Mr.Sejpal, for the
respondents.
At
the outset, learned advocate, Mr.Dave, for the applicants submitted
that the manner and method adopted by the trial Court in trying the
case are illegal and irregular. My attention is drawn to Section
13(2D) of the PFA Act and it is submitted that as provided under the
said provision, once the Magistrate forwards sample for re-analysis
to CFL, the Magistrate shall not continue with the proceedings
pending before it until the report of CFL is received. It is
submitted that in the instant case, the trial Court received the
report of the CFL on dated 28.11.2000 vide forwarding letter of CFL
dated 22.11.2000. It is submitted that prior to dated 28.11.2000,
except pronouncement of judgment, each and every procedure was
undertaken by the trial Court, meaning thereby that the charge was
framed and evidence of the FI and his witnesses was recorded. It is,
therefore, submitted that this is a material irregularity going to
the root of the prosecution case and this has caused great prejudice
to the defence of the accused.
4.1 Learned
advocate, Mr.Dave, for the applicants submitted that there is a
vital discrepancy regarding code number (serial number). About
sample analysed by the Public Analyst, it is submitted that code
number 6/MSH/KAL-1/305 is referred so far as the sample is
concerned, but the code number and serial number of slip referred in
CFL report is 6/MSH/KA/1/305. It is submitted that, thus, the
discrepancy in code number and serial number in the details of
sample analysed by Public Analyst contained in the copy of
memorandum and the code number and serial number of the sample
analysed by CFL is apparent.
4.2 Learned
advocate, Mr.Dave, for the applicants further submitted that in the
instant case, no record is produced to show as to how and adopting
which procedure learned Magistrate forwarded the second set of
sample to CFL. Neither any copy of forwarding letter nor registered
AD slip nor any rojkam prepared by the Magistrate while forwarding
the sample to CFL is produced on record. In that respect, my
attention was drawn to Rule 4 of the PFA Rules and it is submitted
that there is a clear violation of mandatory requirements laid down
under Rule 4.
4.3 Learned
advocate, Mr.Dave, for the applicants further submitted that in the
instant case, there is outright violation of mandatory requirements
laid down under Rule 14 of the PFA Rules. If the evidence of FI is
considered, according to him, the work of lifting samples etc. was
undertaken by him whereas if the evidence of Sanitary Inspector PW-2
Kantilal Trivedi is considered, according to his evidence at the
instance of FI, he had collected the samples of groundnut oil. It
is, therefore, submitted that thus there is a major inconsistency in
the evidence adduced by the prosecution as to actually who collected
the sample. FI PW-1 Sumanchandra Trivedi in his evidence stated that
from the packed and sealed tin of groundnut oil, the groundnut oil
for the purpose of sample was initially collected in a utensil
(tapeli) and, thereafter, the same was collected in three clean and
dried glass bottles. It is submitted that the FI nowhere stated as
to when and how the bottles were cleaned and dried and who had
cleaned and dried the bottles. There is no evidence whatsoever
regarding cleaning of the utensil (tapeli). It is submitted that if
the evidence of PW-2 Kantilal Trivedi is accepted, that in fact, the
samples were collected and lifted by him, then, in his entire
evidence, even orally he does not say that the sample bottles were
cleaned and dried. Therefore, it is submitted that there is a clear
non-compliance of Rule 14 of the PFA Rules.
4.4 Learned
advocate, Mr.Dave, for the applicants submitted that the conviction
came to be recorded solely relying upon the CFL report, Exh.116, as
the report of CFL, supersedes report of Public Analyst. If the
further statements of the applicants recorded u/s.313 of the Cr.P.C.
are considered, nowhere the question was put to any of the
applicants accused by the trial Court seeking their explanation
about the evidence in form of CFL report. It is, therefore,
submitted that the trial Court used the important piece of evidence
of CFL report without affording any opportunity to any of the
accused to explain in their further statements.
4.5 Learned
advocate, Mr.Dave, for the applicants submitted that if the judgment
rendered by the first Appellate Court is considered, the judgment is
based on presumptions and inferences which were not available on
record and the first Appellate Court upheld the conviction of the
applicants.
4.6 Ultimately,
it is submitted that the revision application may be allowed.
Learned
A.P.P., Mr.Sejpal, for the respondents vehemently opposed this
revision application and submitted that considering the limited
scope contained u/s.397 r/w.Section 401 of the Cr.P.C. and
considering the concurrent findings of two subordinate Courts, there
is no reason whatsoever to interfere with the findings in this
revision application.
5.1 It
is submitted that about the compliance of mandatory requirements
laid down under the PFA Act and Rules, both the subordinate Courts
have unanimously held that the mandatory requirements were duly and
fully complied with.
5.2 Regarding
the contention raised on behalf of the applicants about Section
13(2)(D) of the PFA Act, it is submitted that the irregularity, if
any committed by the trial Court, does not vitiate the whole
proceedings and trial. The trial Court delivered the final judgment
in the criminal case only after the receipt of the report of CFL. It
is submitted that even considering the report of CFL, Exh.116, the
sample of groundnut oil is found to be adulterated. The entire
evidence was recorded in presence of both the accused, and,
therefore, they were fully conversant about the report of CFL. They
were represented by advocate before the trial Court. Therefore,
non-putting of the incriminating piece of evidence emerging from the
CFL report shall not vitiate the trial and the ultimate conclusion
arrived at by the trial Court. Ultimately, it is submitted that the
revision petition may be dismissed.
I
have gone through the paper-book of the record and proceedings of
the trial Court supplied by learned advocate, Mr.Dave, for the
applicant. The set of paper-book shall be taken on record.
Considering
the evidence of FI PW-1 Mr.Trivedi examined at Exh.26 about the
collection and lifting of sample, he categorically stated that it
was he who conducted the work. He selected the packed and sealed tin
of groundnut oil for the purpose of collecting the sample. It was he
who stirred the contents of the tin and according to him, initially
he collected the groundnut oil for the purpose of sample in an
utensil (tapeli) and, thereafter, the same was poured in three equal
parts in cleaned and dried three glass bottles. In this respect,
considering the evidence of PW-2 Kantilal Trivedi, Exh.61, according
to him, at the time of raid, he had accompanied the FI
Mr.Sumanchandra Trivedi. In his cross-examination, he stated that he
has to accompany the FI whenever FI visited the shops for collecting
samples of food articles. According to him, he was told by Supply
Officer to open packed tin of groundnut oil and to collect the
sample. According to him, thereafter he collected the sample of
groundnut oil in three glass bottles in equal share. Under such
circumstances, about the contention raised by learned advocate,
Mr.Dave, for the applicants that out of the two Officers, who
collected the sample, is still uncertain. This fact carries
relevance for the reason that FI PW-1 Mr.Trivedi in his evidence
regarding compliance of Rule 14 of the PFA Rules only deposed that
the bottles were cleaned and dried, whereas if the evidence of PW-2
Kantilal Trivedi is accepted, that it was he who lifted the sample
and poured the groundnut oil in equal share in three glass bottles,
then in his evidence he nowhere stated that the bottles were cleaned
and dried.
Reliance
was placed upon a case of C.D.Patel, Food Inspector Vs.
Popatlaljivaji Thakor reported
in 2005(1) FAC 46.
In a case arising under the PFA Act, this Court observed that there
was no evidence to come to the conclusion that the sample bottles
were cleaned at the time when the sample was collected therein. It
was held that thus, there was a breach of mandatory requirement laid
down under Rule 14 of the PFA Rules
and the acquittal order rendered by the trial Court came to be
confirmed. About Rule 14 of the PFA Rules, similar observation was
made in the case of State of Gujarat thro’ SS Patel, Food
Inspector Vs.Shyamal Tolaram Kourani decided
on 19.5.2009 in Criminal Misc.Application No.16203 of 2008
in Criminal Appeal No.3036 of 2008 by
this Court. In the case of Sudhirchandra B.Joshi, Food
Inspector, Baroda Vs.Arvindkumar Naranbhai Patel and Ors.
reported in 1995(2) GLH (U.J.24) 24,
this Court about compliance of Rule 14 of the PFA Rules held that a
duty is cast on prosecution not only to comply with mandatory
provision, but to lead evidence at the trial for its compliance.
In
light of the principles established by this Court in the above
judgments and considering the facts and circumstances of the present
case, it can safely be said that the FI PW-1 Sumanchandra Trivedi
nowhere states as to when and how the sample bottles were cleaned.
He nowhere states as to who cleaned the same. As state above, the
prosecution has not only to prove that the samples so collected in
cleaned and dried bottles, but should adduce evidence to that
effect. Under such circumstances, I am of the considered opinion
that in the instant case, the mandatory requirements laid down under
Rule 14 of the PFA Rules, cannot be said to have been duly and fully
complied with.
There
is no dispute that in the instant case, the accused opted for
sending the sample of groundnut oil for re-analysis to CFL. It
appears that the accused before the trial Court applied for the
same. About the procedure by which the Magistrate forwarded the
sample to CFL is concerned and considering Sub-Rule 3 of Rule 4 of
the PFA Rules, it is clearly provided that a copy of memorandum and
specimen impression and the seal used to seal the container and the
cover shall be sent separately by registered post to the Director.
10.1 In
the instant case, nothing emerges from the evidence on record as to
how and in which manner the trial Court forwarded the sample for
re-analysis to the Director of CFL. Learned advocate, Mr.Dave, for
the applicants submitted that no office copy of the memorandum is
produced on record nor any AD slip showing that the memorandum and
specimen impression of the seal were sent to the Director by
registered post. It is further submitted that nothing emerges that
at the time when the trial Court forwarded the sample to the
Director of CFL, a writing, in form of rojkam was prepared by the
trial Court. In the case of Shriram Harichand Gujaral Vs.State of
Gujarat reported in 1976(17)
GLR 434, this Court has held
that the provisions of Rule 4(3) of the PFA Rules are mandatory in
nature. This Court in the aforesaid judgment observed that
therefore, the requirement of sending
separately the specimen impression of the seal serves a very
laudable purpose of safeguarding and protecting the interests of the
accused and ensures fair administration of justice to him. It is
this special safeguard which the accused loses when the specimen
impression of the seal is sent to the Director as an enclosure in
the packet sent to him for analysis . It is further observed that
it assumes greater significance in cases under the Prevention of
Food Adulteration Act where the fate of the accused depends upon the
certificate issued by the Director the contents of which are final
and conclusive evidence of the facts stated therein .
10.2 Similar
observation was made by this Court in the case of State of
Gujarat Vs.Ramanbhai Durlabhbhai Patel & Anr.
reported in 1997(2) GLH 457.
It was held that the provisions contained under Rule 4(3) are
mandatory in nature and strict compliance is necessary. In the said
case, there was no evidence to show that copy of the memorandum and
specimen impression of the seal were sent separately to the Director
of CFL under the acknowledgment slip duly signed by the addressee
i.e. Director to the CFL for reanalysis. It was further observed
that for the due compliance of mandatory requirements laid down
under Rule 4(3) of the PFA Rules, no presumption can be raised under
Section 114 of the Evidence Act. Ultimately, in paragraph 13 of
said judgment, it is
observed that the lack of little extra carefulness on the part of
such official of the Trial Court has proved a costly lapse for the
prosecution .
Thus,
in light of the above discussion, the mandatory requirements laid
down under Rule 4(3) of the PFA Rules cannot be said to have been
duly and fully complied with.
Learned
advocate, Mr.Dave, for the applicants submitted that in the instant
case, if the memorandum of the description of sample as emerged from
the details of sample, Exh.42 is considered, the code number and
serial number and slip of Local Health Authority is 6/MSA/KAL-1/305
whereas if the CFL report, Exh.116 is taken into consideration, the
code number and serial number of LHA slip is referred to
6/MHA/KA/1/305. It is submitted that this discrepancy in code number
and serial number would nullify the effect of the report of
Director, CFL. Reliance was placed upon the case of V.C.Dodiya
Vs.S.M.Thakkar reported in
1994(1) GLR 487.
Perusing to the facts of said case and considering the discussion
made in paragraph 5 in said judgment, it transpires that there was
no discrepancy regarding code number and serial number in forwarding
letter, Exh.61 and report, Exh.67. However, FI in his oral
deposition mentioned the serial number D-17/5(IU)(1) whereas the
code number as emerged from forwarding
letter and the report was D-17/5(IV)(1). Thus, the discrepancy was
that in forwarding letter and report, in place of V the FI in
his oral deposition referred U . This Court held that there was
patent inconsistency in referring the code number and serial number
in the evidence of FI. What was referred to serial number of
the sample by FI in his evidence before Court is not the one and the
same which was forwarded to Public Analyst and which ultimately came
to be analysed. It was further observed that it is indeed quite
difficult for this Court also to express any opinion at this
juncture as to whether it was some honest, bonafide mistake on the
part of the FI while describing the serial number of the sample
before the Court as the one and the one which was referred to in the
forwarding letter, Exh.61 and, ultimately, came to be analysed and
so reported in Exh.67 or whether it was a mistake on the part of the
learned Magistrate while recording the deposition of the FI that
somehow he failed to correctly write the serial number of the
sample .
In
the instant case, if the judgment and order rendered by the learned
Additional Sessions Judge is considered, about the discrepancy, the
learned Addl.Sessions Judge observed that there may be bonafide
mistake on the part of the typist regarding such discrepancy in
serial number and code number. As observed by this Court
in V.C.Dodiya’s case referred above, this Court criticized such
approach of raising inference and presumption that there may be
honest or bonafide mistake. The fact remains that in the instant
case, there is a discrepancy in code number and serial number
regarding the sample.
It
is pertinent to note that in the instant case, after forwarding the
sample at the request of the accused to CFL, as provided
u/s.13(2)(D), the
trial Court did not wait for report of the CFL to come. The
provisions contained u/s.13(2)(D) suggests that till the receipt of
the certificate and the result of the analysis from the Director of
the CFL, the Court shall not continue with the proceedings pending
before it in relation to the prosecution. There is no dispute that
the trial Court received the report of CFL, Exh.116 on dated
28.11.2000, prior to which the charge was framed and the witnesses
examined by the prosecution was recorded. Despite such admitted
facts, the learned Additional Sessions Judge in the impugned
judgment and order observed that the report of CFL was received by
the trial Court in the year 1992. Such faulty observation on the
part of the first Appellate Court is contrary to record and amounts
to misreading of evidence. However, whether the evidence recorded by
the trial Court without waiting for the report of the CFL can be
treated as irregularity going to the root of the matter
and amounting to vitiating the trial may not be required to be
elaborately dealt with for the simple reason that, as stated above,
in the instant case, there was clear non-compliance of the mandatory
requirements laid down under Rule 14 and Rule 4(3) of the PFA Rules.
Over and above this, the discrepancy in code number and serial
number creates reasonable doubt, which shall ultimately go to the
accused.
Last
but not the least, it is pertinent to note that the trial Court
recorded the further statement of the applicant accused after
the trial Court received the analysis report of CFL. Exh.116.
Considering the judgment of the trial Court and even of the
Appellate Court, needless to say that the conviction came to be
recorded on the basis of report of analysis of the sample by CFL. To
put it differently, that was an important evidence, which was going
against the accused. Despite this, if the further statements of the
accused recorded by the trial Court u/s.313 of the Cr.P.C. are
considered, not a single question was put to any of the accused
seeking their explanation about the evidence in form of report of
CFL. Learned advocate, Mr.Dave, for the applicants drew my attention
to the case of Shankarlal
Mangilal Jain Vs. State of Gujarat
decided by this Court on 15.9.2000 in
Criminal Revision Application No.110 of 1994. In
the said case, petitioner Shri Jain came to be convicted by the
trial Court for the offences punishable
under Section 16 r/w.7 of the PFA Act. His appeal came to be
dismissed by learned Sessions Judge, Ahmedabad. Ultimately, he
preferred Criminal Revision Application u/s.397 r/w.Section 401 of
the Cr.P.C. In the said judgment, this Court observed that the
further statements of the petitioner accused was not properly
recorded by the trial Court in accordance with law. In this respect,
in the said judgment, it is observed as under:-
It
is equally true that the accused was not called upon to explain the
nature of adulteration found in the sample of oil collected from
him. The only question put to him was – “What he had to say
about the report of the Director of Central Food Laboratory ? To
which he had answered that, `the report is false”. The accused
was not explained the contents of the report of the Director of
Central Food Laboratory, and that it was found to be adulterated by
addition of cotton seed oil, and no explanation was sought from
the accused as regards the nature of adulteration. This, in my
view, can not be said to be an adequate opportunity given to the
accused to defend his action. This opportunity of defence, as
envisaged under section 313 CRPC, is an important and vital to right
of defence. The infringement of
such right shall result into acquittal.
If
the facts and circumstances emerging from the instant case are
considered, it clearly transpires that the instant case rests even
on better footing than Shankarlal Jain’s case, in the sense that in
the instant case, the learned trial Judge did not ask even a general
question to any of the applicant accused as to what they
have to say about report of Director of CFL. In Shankarlal Jain’s
case, this Court held that even to put such general question to
the accused about what he has to say, regarding the report of CFL
cannot be said to be due compliance of provisions contained in
Cr.P.C., whereas in the instant case, the trial Court did not put
even such general question to any of the accused. Under such
circumstances, I am of the opinion that the principle established by
this Court in Shankarlal Jain’s case squarely applies to the facts
and circumstances of our case.
In
the result, I am of the opinion that the revision application
deserves to be allowed.
For
the foregoing reasons, the revision application is allowed. The
judgment and order rendered by learned Additional Sessions Judge,
Mehsana on dated 14.8.2002 in Criminal Appeal No.45 of 2001 whereby
the judgment and order rendered by learned Judicial Magistrate First
Class, Kalol on dated 16.7.2001 in Criminal Case No.562 of 1992
wherein both the applicants accused came to be convicted for the
offences punishable under Section 16 r/w.7 of the PFA Act and the
sentence awarded to them thereunder and which came to be upheld by
the learned Additional Sessions Judge, Mehsana in the aforesaid
appeal, are hereby quashed and set-aside. Both the applicants
accused are ordered to be
acquitted from all the charges levelled against them. Fine, if paid,
be refunded to them.
(J.C.UPADHYAYA,
J.)
(binoy)
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