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CR.A/117219/1986 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1172 of 1986
With
CRIMINAL
APPEAL No. 1173 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==========================================
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
Versus
JAYANTILAL
NARANDAS DHANDHUKIA AND ANOTHER
==========================================Appearance
:
MR MG NANAVATI,
ADDL PUBLIC PROSECUTOR for the Appellant
MS
CHETNA SHAH for HL PATEL Advocates for the
Opponents
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 25/08/2008
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Criminal
Appeal No. 1172 of 1986 has been filed by the State of Gujarat
challenging the judgment and order dated 30.06.1986 passed by the
Sessions Judge, Bhavnagar in Criminal Appeal No. 12 of 1985, whereby
the Sessions Judge in appeal set aside the judgment and order of
acquittal dated 30.01.1985 passed by the Judicial Magistrate First
Class, Botad in Criminal Case No. 913 of 1983 and convicted the
respondent accused for the offence under Sections 2(1) and 7(1) read
with Section 16 of the Prevention of Food Adulteration Act, 1954.
Criminal
Appeal No. 1173 of 1986 has been filed by the State of Gujarat
challenging the judgment and order dated 30.06.1986 passed by the
Sessions Judge, Bhavnagar in Criminal Appeal No. 10 of 1985, whereby
the Sessions Judge in appeal set aside the judgment and order of
acquittal dated 21.01.1985 passed by the Judicial Magistrate First
Class, Botad in Criminal Case No. 910 of 1983 and convicted the
respondent accused for the offence under Sections 2(1) and 7(1) read
with Section 16 of the Prevention of Food Adulteration Act, 1954.
In
Criminal Case No. 910 of 1983, the respondent Jayantilal Narayandas
Dhandhukia was found selling adulterated ground-nut oil and in
Criminal Case No. 913 of 1983, the respondent Prabhuji Hirjibhai
Patel was found selling milk which did not meet the prescribed
standard.
Though
several arguments have been advanced on both sides, we propose to
dispose of both the appeals on a short point which is common in both
cases.
In
both the cases, a submission has been made on behalf of the accused
with regard to violation of Rule 9(A) of the Prevention of Food
Adulteration Rules, 1955. Rule : 9(A) of the Rules reads as under :
“9.A.
Local (Health) Authority to send report to person concerned – The
Local (Health) Authority shall (within a period of ten days) after
the institution of prosecution forward a copy of the report of the
result of analysis in Form III delivered to him under sub-rule (3) of
Rule 7, by registered post or by hand, as may be appropriate, to the
person from whom the sample of the article was taken by the Food
Inspector, and simultaneously also to the person, if any, whose name,
address and other particulars have been disclosed under Sec. 14-A of
the Act.”
The
aforesaid bracketed portion containing the words “within a
period of 10 days” replaced the word “immediately”
which was appearing prior to its amendment by Notification No. GSR
500(E), dated 9-7-1984 (w.e.f. 9-7-1984). It is this word
“immediately” which would be required to be taken into
consideration in so far as this matter is concerned.
The
said Rule provides that the Local (Health) Authority shall within a
period of ten days after the institution of prosecution forward a
copy of the report of the result of analysis in Form III delivered to
him under sub-rule (3) of Rule 7, by Registered Post or by hand, as
may be appropriate, to the person from whom the sample of the article
was taken by the Food Inspector, and simultaneously also to the
person, if any, whose name, address and other particulars have been
disclosed under Sec. 14-A of the Act.
A
perusal of the record of Criminal Case No. 910 of 1983 shows that
there is no signature of the accused on the copy alleged to have
served upon him by the Inspector. In Criminal Case No. 913 of 1983,
the notice notice as contemplated under Rule 9-A was received by the
accused on 27.12.1983, admittedly beyond the period of 10 days.
Thus, there is a clear breach of Rule 9-A of the Rules in both the
cases.
In
Chimanlal Govindji Thakker vs. State of Gujarat reported in (1997) 1
GLR 458, a learned Single Judge of this Hon?”ble Court observing
that there has been a violation of Rule 9-A of the Rules allowed the
appeal of the accused and acquitted him of the charges.
We
see no reason to take a different view. Although an argument was
advanced on behalf of the State that the said Rule is only directory
and not mandatory and that no prejudice having been caused to the
accused, they cannot be acquitted only on the ground of
non-compliance of said provision. Whether prejudice has been caused
or not would depend upon the facts of each case. But considering the
enormous lapse of time, almost 25 years, since the date of incident,
we are not inclined to entertain the said submission.
The
appeals filed by the State are accordingly dismissed.
(BHAGWATI
PRASAD, J.)
(S.R.BRAHMBHATT,
J.)
omkar
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