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SCR.A/918/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 918 of 2008
==========================================
NENAJI
JASHAJI PRAJAPATI & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
KV SHELAT for petitioners
MR MUKESH PATEL,
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 26/06/2008
ORAL
ORDER
Leave
to join the complainant Food Inspector as respondent No.2 herein.
Heard,
Mr. K. V. Shelat, learned Advocate for the petitioner.
The
learned advocate for the petitioner has submitted that in connection
with samples of 250gms, packets of tea in original company packing,
the petitioners are sought to be prosecuted under the provisions of
the Prevention of Food Adulteration Act, 1954. It is submitted that
the said samples were sent to the Government analyst, who found them
to be in conformity with the norms prescribed in respect of the
same, and thus the sample was passed. However, in the opinion of the
respondent, there was breach of Rule 32(b) & (e) of the
Prevention of Food Adulteration Rules, 1955 as the batch number was
not legible. According to the learned Advocate for the petitioner
the Supreme Court in the case of Dwarka Nath v. Municipal
Corporation of Delhi, 1971 (2) SCC 314, while construing
similarly worded provisions of Rule 32 (e) of the said Rules, had
held that the said rule is invalid and that the appellants therein
could not be convicted for non-compliance of the same. It is
submitted that though the rules in question have subsequently been
amended, there is no substantial change in the rules; hence, the
aforesaid decision of the Supreme Court would still be applicable to
the amended Rule 32(e) of the Rules.
It
is further pointed out that insofar as the petitioner No.1 is
concerned, he is only a purchaser of the goods from petitioner No.2,
hence, there is no question of prosecuting him on the ground of
misbranding.
Considering
the submissions advanced by the learned Advocate for the
petitioners, as well as in view of the law laid down by the Supreme
Court in the case of Dwarka Nath (supra), issue
NOTICE, returnable on 30th July, 2008. By way of
ad-interim relief, further proceedings of Criminal Case No.1184 of
1998, pending in the Court of the learned Chief Judicial Magistrate,
Gandhinagar, are hereby stayed.
Mr.
Mukesh Patel, learned Additional Public Prosecutor, waives service
of notice on behalf of the respondent No.1-State of Gujarat.
[HARSHA
DEVANI, J.]
parmar*
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