Gujarat High Court Case Information System
Print
CR.A/796/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 796 of 2008
=========================================================
K.A.MEHTA
- Appellant(s)
Versus
SURESHKUMAR
LAXMANJI THAKORE & 1 - Opponent(s)
=========================================================
Appearance
:
MR
RR MARSHALL for
Appellant(s) : 1,
MR DK MODI for Opponent(s) : 1,
MR MD MODI
for Opponent(s) : 1,
MRS FD PATEL,ADDL.PUBLIC PROSECUTOR for
Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 18/07/2008
ORAL
ORDER
1. The
appellant has preferred this appeal under Section 378 of Criminal
Procedure Code and challenged the judgment and order of acquittal
passed by learned Metropolitan Magistrate, Court No.6, Ahmedabad on
30th December, 2006 in Criminal Case No.13 of 2004 whereby
the respondent accused is acquitted for the offence punishable under
Section 7(i) of the Prevention of Food Adulteration Act, 1954
(hereinafter referred to as ?Sthe Act??.)
2. The
appellant was serving as a Food Inspector in the Health Flying Squad
of Ahmedabad Municipal Corporation and his appointment was notified
in the Government Gazette. On 6.8.2003 at about 7:30 in the morning,
the appellant stopped, on the road, loading vehicle bearing
No.GJ.2-Q-8618 with the respondent accused carrying milk containers.
On inquiry, the respondent accused informed him that he was doing the
business of selling milk. There were about 7 to 8 aluminium milk
containers in the vehicle containing Cow milk. After ascertaining the
price, and quality of milk,the appellant purchased about 1500
mililiters of milk and paid Rs.15/- to the respondent accused, who
stirred the milk in the container and gave it to the appellant in a
clean empty container. A Panch was called and the respondent-accused
was informed in writing that the sample of milk purchased was to be
sent to Laboratory for analysis. The milk was stirred and mixed with
the help of steel spoon and was filled in equal quantity in three
bottles. The bottles were packed and sealed. Thereafter one of the
bottles was sent to the Laboratory at Ahmedabad Municipal Corporation
for analysis. On analysis, it was found that the milk sample was
adulterated. Therefore a complaint for the offence punishable under
Section 7(i) of the Act was lodged and summons was issued against the
respondent-accused. On completion of recording of evidence,
incriminating circumstances appearing in the evidence against the
respondent-accused were explained to him. In the further statement
recorded under Section 313 of the Criminal Procedure Code, 1973, the
respondent- accused denied having committed the offence and claimed
that false case is filed against him. After hearing oral submissions,
the learned Metropolitan Magistrate came to conclusion that the
prosecution has failed to prove the charge and therefore the
respondent accused was acquitted. Being aggrieved by the said
decision, the appellant has preferred this appeal.
3. I
have heard learned advocate Mr.Marshall for the appellant,learned
advocate Mr.D.K.Modi for respondent No.1 and learned A.P.P. Mrs.
F.D.Patel for respondent No.2.
4. It
appears from the impugned judgment that the respondent accused was
acquitted as the prosecution failed to prove that the report of
Public Analyst was received by the respondent-accused as provided
under Section 13(2) of the Act. Learned Metropolitan Magistrate
relied upon the decision of Rameshwar Dayal V. State of U.P. reported
in 1996 Supreme Court Cases(Cri) 75.
5. Under
Section 13(1) of the Act the Public Analyst is required to forward
report to the Local (health) Authority i.e. the result of the
analysis of article of food submitted to him for analysis. Under
Section 13(2) on receipt of the result of the analysis under Section
13(1) to the effect that the article of food is adulterated, the
Local (health) Authority, after institution of prosecution against
the person from whom the sample of food article was taken and the
person,if any, whose name, address and other particulars have been
disclosed under Section 14A, forward a copy of such report informing
them that if it is so desired either or both of them may make an
application to the Court within a period of ten days from the date of
receipt of copy of report to get the sample of food article kept by
the Local(health) Authority, analyzed by the Central Food Laboratory.
In the instant case, it appears that the sample of milk was taken
from the respondent-accused. The prosecution has produced the
evidence to indicate that Public Analyst’s Report was sent to
respondent- accused,but no evidence was produced to indicate that the
report was received by respondent accused. It is the defence of the
respondent-accused that he did not receive the Public Analyst Report.
As there is no evidence to indicate that the respondent-accused
received the report, it can be inferred that the respondent-accused
could not exercise his right under Section13(2) to make an
application to the Court to get the sample of food article kept by
the local(Health)Authority analyzed by the Central Food Laboratory.
This has caused serious prejudice to the respondent accused and the
requirements of Section 13(1) of the Act are not satisfied. In the of
decision of Rameshwar Dayal (Supra),the Hon’ble Supreme Court held
that when report of Public Analyst is not supplied to the accused
under Section 13(2) of the Act, a prejudice would be caused to his
valuable right and so conviction can not sustain. In view of this
decision, learned Metropolitan Magistrate was justified in recording
acquittal of the respondent accused.
6. In
view of above, as the appellant failed to comply with legal
requirements under the Act, learned Metropolitan Magistrate was
justified in coming to the conclusion that the prosecution has
failed to prove the case beyond reasonable doubt and was justified in
recording acquittal. Therefore, the Appeal does not require
interference and is required to be dismissed. Accordingly appeal
fails and stands dismissed.
(Bankim
N. Mehta, J.)
sudhir
Top