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CR.A/843/2000 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 843 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
=======================================================
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 ?
=======================================================
ADARSH
CHEMICALS & FERTILIZERS LTD. & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=======================================================
Appearance :
MR
JAL SOLI UNWALA for Appellant(s) : 1 - 2.
PUBLIC PROSECUTOR for
Opponent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/04/2010
ORAL
JUDGMENT
Present
Appeal is directed against the judgment and order dated 11.08.2000
delivered by the Learned
Special Judge & Additional Sessions Judge, Jamnagar in Special
Criminal Case No.6 of 1994 recording
the conviction of the accused for the violation of the Fertilizers
(Control) Order, 1985 and under Section 7(i)(a)(ii) of the Essential
Commodities Act and imposing sentence of SI for three months and
fine of Rs.1,000/-, in default, to undergo SI for one month.
The
facts of the case briefly summarized are as follows:
2.1 The
complainant visited the premises of the accused for the inspection
and collected sample of pesticides (WS), which was found in a sealed
bag manufactured by Adharsh Chemicals & Fertilizers Ltd., Udhana
and on the basis of sample and analysis, it was found that the sample
was not as per the standard and thereby the accused have violated the
provisions of the Fertilizers
(Control) Order, 1985 read with provisions of the Essential
Commodities Act and thereby the offence under Section 7(i)(a)(ii) of
the Essential Commodities Act has been committed.
2.2 On
the basis of the aforesaid complaint, case was registered being
Special
Criminal Case No.6 of 1994.
Since it is a summary case, plea of the accused was recorded at
Exh.6. The accused denied to have committed any such offence and,
therefore, the learned trial Court proceeded
with the trial.
2.3 In
order to bring home the charges leveled against the accused, the
prosecution has examined several witnesses and has also produced
documentary evidence.
2.4 After
recording the evidence of the prosecution witnesses was over, the
Learned
Special Judge & Additional Sessions Judge, Jamnagar recorded
the further statements of the accused under Section 313 of the
Criminal Procedure Code.
2.6 After
hearing the learned APP as well as learned advocate for the accused,
the Learned
Special Judge & Additional Sessions Judge, Jamnagar convicted
the accused for the alleged
offence and sentenced them as stated hereinabove.
Learned
counsel, Mr.Unwala for the appellant-accused referred to the
testimony of the complainant at Exh.11 and submitted that as stated
by this witness, when the sample was collected from a sealed bag
received from the manufacturer, Adharsh Chemicals & Fertilizers
Ltd., Udhna, which rules out any possibility of tampering or
adulterating. He further submitted that it is not even the case of
the prosecution that there was any adulteration either by the
accused or by the manufacturer. He, therefore, submitted that it is
more in the nature of some kind of nominal variation in the
standard. He submitted that as per the required standard, P2O5
should be dissoluble with 16% as against 31.68% found in the sample.
He, therefore, submitted that the phosphoric acid was also found
more but the difference is very less and considering this marginal
different, it is not the case of the prosecution about any
adulteration and such variation may be due to various circumstance
beyond control. He, therefore, submitted that the Court below has
recorded the conviction erroneously without appreciating this aspect
merely on the basis of the report of the Public Analyst, which was
produced at Exh.16 and 26, which suggest that the sample does not
conform to the prescribed standard. He submitted that even if the
sample may not have conform standard, the Court ought to have found
out whether there was any adulteration or any irregularity. If there
is no such evidence then merely because of said marginal difference,
the conviction could not have been recorded. Learned counsel further
referred to the testimony of P.W.No.2, Exh.24 and submitted that as
stated by this witness, he has not carried out test or analysis as
admittedly it was done by one Mr.A.R. Balas. Learned counsel
submitted that this witness has stated that he has simply drawn the
sample and, thereafter, the analysis has been made by his assistant.
He submitted that he himself has not carried out test and report at
Exh.26 made by him is based on the report at Exh.16. Again he
submitted that as stated by this witness, he has not mentioned about
the details as to the analysis made, the procedure or method
followed or which method was followed. He, therefore, submitted that
the report at Exh.26 is in fact based on the report at Exh.16, for
which, there is no evidence of the analyst. He submitted that the
report at Exh1.6 is made by the Analyst, Mr.A.R. Balas, who is not
examined by prosecution and, hence, the accused could not
cross-examine this witness on this aspect. He submitted that the
report at Exh.26 is made on the basis of the report at Exh.16 and
that report itself does not contain any details as to the procedure
followed or any other method adopted. He, therefore, submitted that
the conviction is based merely on the basis of said report and,
therefore, the impugned judgment and order recording conviction is
erroneous. Learned counsel further submitted that admittedly the
sample has to be of minimum 400 gram, which is not there. He also
referred to the report and the testimony of P.W.No.2 and submitted
that he has also admitted that if the sample is less than 400 gram,
it would affect the result. He, therefore, submitted that the
impugned judgment and order recording conviction is erroneous.
Learned
A.P.P., Mr.Jani resisted the application and submitted that as
discussed in the impugned judgment, the P.W.No.2 has specifically
stated in his testimony at Exh.24 that analysis was made by his
assistant in his presence and under his guidance and, therefore, it
cannot be said that P.W.No.2 himself cannot testify or the report is
not valid. It is submitted that the variation is admittedly found as
stated in the report at Exh.16 and 26 suggesting that the sample
does not conform with the standard and, therefore, breach has been
committed. Therefore, learned A.P.P., Mr.Jani submitted that whether
the analysis has been made by X or Y, in which, it is required to be
considered that the analysis was made in his supervision and under
the guidance of Mr.A.R. Balas and, therefore, the report cannot be
brushed aside. He submitted that it is stated that the details are
not mentioned in the register as well as the details as to the
procedure and the method adopted is also not mentioned actually in
the report at Exh.16 that by itself would not make it unbelievable.
For that purpose, he referred to the testimony of P.W.No.2, Exh.24
and submitted that he has explained as to what has transpired and
the method of P2O5 is provided in FCO Schedule-II on the basis
thereof, therefore, the sample does not conform with the standard
and, therefore, merely because there is no mention in the report
about the procedure and the method, the impugned judgment and order
cannot be said to have been erroneous. However, he also fairly
stated that report is not of minimum 400 Gram as required.
In
view of the rival submissions, it is required to be considered
whether the impugned judgment and order could be sustained or not.
It is evident from the record that there are no allegations with
regard to any adulteration and the same has been collected from the
sealed bag supplied by the manufacturer, Adarsh Chemical &
Fertilizer Ltd., therefore, the contention of the learned advocate
that whatever the marginal difference is there could not be
attracted to the present accused as he has simply received from the
manufacturer, for which, he has no control. Therefore, first aspect,
which is highlighted is with regard to any possibility of
adulteration or manipulation, which does not appear to so and that
is not the case of the prosecution.
Another
facet of the arguments with regard to report at Exh.16 and 26 that
the conviction is recorded only on the basis of said report and
opportunity of cross-examination has not been given to the accused
as the person, who has carried out the analysis is not examined is
required to be appreciated. The report at Exh.16 has been made by
Mr.A.R. Balas and P.W.NO.2 has stated in his testimony at Exh.24
that in his presence and under his supervision and guidance, Mr.A.R.
Balas had carried out test and analysis. He has also explained with
regard to the procedure stating that P2O5 FSC Schedule-II is
applicable and he has also stated that report was prepared and on
that basis, the analysis has been made, however, admittedly in the
report at Exh.16, there is no mention about any details including
the procedure and the method followed. The report at Exh.24 is made
on the basis of the report at Exh.16. Therefore, the basis for which
the report at Exh.26 is report at Exh.16 and the person, who carried
out the said test, may be under the supervision of P.W.No.2, who is
not examined. Had he been examined, the accused could have
opportunity to cross-examine with reference to the report including
as to how he has arrived at conclusion. Admittedly, report at Exh.16
does not contain as to any procedure and any details and as also
method adopted or followed. Further admittedly, sample, which is
required to be taken has to be minimum 400 gram and it is also
stated by P.W.No.2 in his testimony at Exh.26 that otherwise, it
would affect the analysis report. A close look at the report at
Exh.16 and 26 would suggest that the sample is of 1 gram, which was
tested. Therefore, again it would raise doubt with regard to manner
in which the analysis was made and the test was carried out. Even
assuming that the analysis was made by Mr.A.R. Balas under the
guidance and under the supervision of P.W.No.2, at-least manner and
method and the details as to the procedure followed ought to have
been recorded, which his not to be found in the report at Exh.16. It
transpires that the report, Exh.26 is based no the report at Exh.16
and, therefore, it would raise doubt about the conclusion. Further
the case of the prosecution is at the most that the sample does not
conform or adhere to the standard prescribed and difference is
marginal. Therefore, when there are not allegation for adulteration
and as stated by the learned counsel, it could be for various
reasons when it is supplied by the manufacturer, it would not be
appropriate to record conviction for said marginal difference based
on the report, which cannot be readily accepted.
In
view of the aforesaid facts and circumstances, this Court is of the
opinion that recording conviction of the accused for
the violation
of the Fertilizers (Control) Order, 1985 and under Section
7(i)(a)(ii) of the Essential Commodities Act cannot be sustained.
In
the result, Criminal Appeal accordingly stands allowed. Judgment and
Order dated 11.08.2000 delivered by the Learned Special Judge &
Additional Sessions Judge, Jamnagar in Special Criminal Case No.6 of
1994 recording the conviction of the accused persons for the offence
under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 is
quashed and set aside and the appellant no.2 viz., Jayant K. Patel
is ordered to be set at liberty forthwith, if not required in any
other offence. He is on bail and, hence, his bail bonds stand
cancelled. The fine paid by the appellants-accused, if any, is
ordered to be refunded.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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